Cartner v Barclay [2002] NSWCC 9 (26 March 2002)

Last Updated: 12 June 2002

NEW SOUTH WALES COMPENSATION COURT

CITATION: Cartner v Barclay [2002] NSWCC 9


PARTIES:
Brian Carl Cartner
Michael Barclay


CASE NUMBER: 41304 of 2000 of 2002.00


CATCH WORDS: Statutes & Delegated Legislation


LEGISLATION CITED:
S 36, s 42(1)(d) Workers Compensation Act 1987 Current Weekly Wage Rate. Concurrent Earnings of self employed workers

CORAM: Walker J

DATES OF HEARING: 12/02/02

DECISION DATE: 26/03/2002


LEGAL REPRESENTATIVES

FOR APPLICANT: J Martin instructed by Heazlewoods Solicitors
FOR RESPONDENT: P Perry instructed by Vandervords Solicitors


JUDGMENT:

THE CLAIM

1. Brian Carl Cartner claims weekly benefits and lump sum compensation in respect of injury to his back and both legs.

2. The basis of his claim is that arising out of and in the course of his employment by the respondent as a harvester driver the nature and conditions of that work injured his back and consequently both his legs.

THE ISSUES

3. Mr Perry for the respondent puts in issue:
· worker
· injury and causation
· the quantum of the s 66 claims
· the application of s 68A
· probable earnings and ability to earn

MATTERS FOR DETERMINATION
1. Was the applicant either an employee or deemed employee of the respondent?
2. If so was he injured arising out of and in the course of his employment?
3. If so, did he suffer:
(a) a permanent impairment of his back?
(b) a permanent loss of the efficient use of both legs above the knee?
4. If so what is his entitlement pursuant to s 66?
5. Does s 68A apply to reduce his s 66 entitlements?
6. If the threshold has been crossed what is his entitlement for pain and suffering pursuant to s 67?
7. Was the applicant totally or partially incapacitated for work as a result of his work related disabilities. If so for what period(s)?
8. In respect of any periods of partial incapacity for work:
(a) What was the weekly amount that he would probably have been earning in the same or some comparable employment?
(b) What was the average weekly amount that the worker was earning or would be able to earn in suitable employment?
(c) What is the difference between (a) and (b)?
(d) Should the Court exercise its discretion and reduce that difference to some other amount more appropriate in the circumstances of the case?

THE EVIDENCE

THE APPLICANTS EVIDENCE

4. Brian Carl Cartner gave evidence that he is 65 years of age and married with a dependent wife. He commenced his evidence by outlining his work experience. He told the Court that on leaving school aged 15 years he obtained qualifications as a carpenter and for the greater part of his working life has worked in the building industry. He has taken periods off from time to time to work as a driver, to manage a mixed business, to graze sheep and to work as a miner at Cobar.

5. In 1990 he established his own business at Trangie as a carpenter and set up a family partnership with his wife to split that income.

6. The applicant said he became friendly with the respondent who is a harvesting contractor when he was carrying out carpentry work on Mr Barclay’s home late in 1995. On 1 November 1995 he had a conversation with the respondent in the kitchen of the respondents home. The respondent told him that his header driver had let him down and asked whether the applicant could do the driving for him during the wheat harvest which was about to start.

7. Mr Cartner said he told the respondent that he had never driven a wheat harvester before. His only experience with harvesting equipment was that he had once driven a cotton picker a short distance.

8. The respondent said he would teach him how to operate the harvester and he agreed to work as the respondents harvester driver during the wheat harvest at Trangie for $12 per hour and out of pocket expenses.

9. He started work on 6 November 1995 and worked almost every day including weekends to 7 December 1995. The hours of work were 7am to 7pm but he frequently worked late sometimes to midnight. This was because there was an urgency to get in the wheat harvest before it rained.

10. Mr Cartner said that Mr Barclay directed him as to the sites at which and the hours during which he worked. He was required to work extended hours and on weekends. The wheat harvester was owned and provided by Mr Barclay who trained him in its operation and also trained and assisted him in its maintenance. Mr Barclay was the boss and told him what to do. Mr Barclay provided him with fuel for the header and any expenses associated with its operation such as petrol meals and telephone calls.

11. Mr Cartner said he put his building business on hold during the time he drove the harvester leaving building contracts requiring performance.

12. The applicant told the Court that during his 25 years work as a builder he had occasional aches and pains in his back, arms and legs at the end of a days work. However they all quickly resolved and he was able to get on with his work without further pain.

13. Mr Cartner then described his work with the wheat harvester. He said that the wheat crop he was harvesting had been planted on ground previously used to grow cotton. The fields were crossed by a network of water channels and gutters that had to be negotiated by the harvester as it took in the wheat. The ride was very rough and bouncy. Mr Cartner said he had a great deal of difficulty with the harvesters seat which was not good. His major complaint was that his feet dangled above the cabin floor of the harvester and his buttocks took the full force of the constant jolting.

14. Mr Cartner then told the Court that after a month of enduring this rough ride on about 5 December 1995 he noticed that his back was very sore at the end of the days work. His back was so painful that he was having great difficulty sleeping. The problem was so bad by 7 December 1995 that he found it necessary to consult Dr John at Trangie. Dr John put him off work to 12 December 1995 and prescribed the strong narcotic pain killer Endone. He tried to work on 12 December 1995 but the pain forced him to see Dr John again. He had low back pain extending into his right buttock and thigh and pins and needles extending to the right foot. He was put off work for a further month. During this period his back trouble continued. Dr John moved his practice and the applicant transferred to Dr Wright at Narromine.

15. Between February and September 1996 despite his injury and an operation the applicant returned to his carpentry business to complete work he had contracted to perform prior to his injury. He supervised a few small jobs with the assistance of a friend Paul Berry. Mr Cartner said he took pain killers to enable him to complete the work relying upon Mr Berry and the trades subcontractors to do the heavy labour.

16. The back and right leg pain continued and in November 1996 Dr Wright referred him to see Dr Sheehy a neurosurgeon at St Vincent’s Hospital Sydney. After undergoing a lumbar myelogram and further CT Scans Dr Sheehy operated on 28 November 1996 decompressing the right S1 nerve root. The applicant said he was in hospital for 11 days before being returned home by Air Ambulance because he was not able to use public transport. The operation was not a success in that his back and right leg pain persisted.

17. Mr Cartner said that he was again admitted to St Vincent’s Hospital on 23 June 1997 for a further decompression of his S1 nerve. There was a significant improvement in his back and leg pain for a period of time after this operation but then the pain again returned. This time he also experienced left leg pain which he estimated commenced about 6 months after the second operation.

18. Mr Cartner’s current complaint was that almost any use of his back or legs brings on strong pain. He has not worked since April 1996. He said his current back and leg pain increases during the day as normal activities aggravate the pain. In the morning he can do things like walk around his garden and water the plants. However by the afternoon notwithstanding the heavy painkillers he is taking he finds he has to lie down on the couch for the rest of the day.

19. He described the back pain as constant, gradually becoming more severe. The leg pain is worse on the right. It is associated with numbness and pins and needles extending to the toes. The left leg pain is not as bad but similar in its application. Mr Cartner said he now takes Endone to get to sleep at night. During the day he takes about 10 Panadeine Forte tablets and also some Panadol. He has problems with simple things like putting on his socks and shoes. He uses a string to pull up the socks.

20. Mr Cartner said that prior to his injuries he had enjoyed ballroom dancing, fishing and golf. He has had to give all these recreational pursuits away. Mr Cartner said he was an MGB car enthusiast belonging to the MGB Car club. He has not been able to drive his MGB over the past 3 years. Mr Cartner also told the Court that his disabilities had seriously affected his personal relations with his wife.

CROSS EXAMINATION

21. Mr Perry showed the applicant Exhibit 1 which is an invoice under the business name BC & VA Carter dated 12 December 1995 with the further date 1.1.96 written above. The applicant said the invoice was in his wife’s handwriting and that she had prepared it from notes on the hours worked he had provided. He thought he had handed the invoice to the respondent after 12 December 1995 possibly on 1 January 1996. The applicant denied he had previously sent an invoice for driving the cotton harvester. He said he had not harvested cotton and was not paid for driving the picker to a sale for a friend.

22. The applicant agreed that he was not paid on a weekly basis. He said he used his building business invoice as a matter of convenience.

23. Mr Perry then asked the applicant whether he had told Dr Sheehy that his back pain started with driving the header. He said he did.

24. Mr Perry then put to the applicant that he had a long history of back pain but had waited until he had an employer to make the allegation so that he could claim workers compensation. He denied the allegation.

25. Mr Perry then put to the applicant that he had told Dr Sheehy that he had been experiencing low back symptoms on and off for many years. He agreed. He also agreed he told Dr Sheehy he had been working hard for many years. He said at times he had pain doing things like pouring concrete and when he went home his back would be sore. When he awoke the next morning the pain was not there. He said he had similar aches and pains in his arms, hands and legs that would also go away by the next morning.

26. Mr Perry then asked the applicant about the work he had performed between March and April 1996. Mr Cartner said that he did not perform heavy work but did supervision and light work.

27. Mr Perry then returned to the history taken by Dr Sheehy and put to the applicant for the second time that he had not told the doctor about the work on the header. He disagreed saying he told Dr Sheehy he was driving the header for a friend when he felt sharp pain in his back and right buttock. He said he recalled Dr Sheehy asking him what a header was.

28. Mr Perry put to the applicant that he had told the respondent prior to starting work that he had a bad back. He denied the allegation.

29. Mr Perry then asked the applicant whether he had played golf after his operations. He said he had tried to play golf on two Saturdays at the Trangie Club. He found the experience painful and unsatisfactory.

30. Mr Perry put to the applicant that in April 1999 he and a Lois Bartlett had won the 4 ball best ball competition at the Trangie Club. He agreed. Mr Perry asked him to explain how if he was no good at golf at all he could have won the competition. He explained that Lois Bartlett played the best balls and won the competition on her own.

31. Mr Perry put to the applicant that when examined by Dr Matheson on 15 December 2000 he indicated to him that he could not lift his leg beyond 30 degrees. Mr Cartner agreed but said that was without pain. He denied he was exaggerating his problem.

32. I propose to deal with the question of the applicants credit after I have analysed the medical evidence.

WORKER

The Law

33. I recently reviewed the law on worker in Savage v Programmed Maintenance Service Pty Limited (2002) 22 NSWCCR 184 paragraphs [4] to [18]). While the law is well established the review became necessary because of new learning emanating from the High Court in Hollis v Vabu Pty Limited (2001) HCA 9 August 2001.

34. At para [18] of my review I drew the following conclusions as to the current state of the authorities on worker:
1. It is an error of law in determining whether or not an employer/employee relationship exists to deduce from the semantic meaning of labels such as employee or independent contractor the legal rights of the parties. To adopt such legal adjectives is to invert the proper order of the inquiry which is into the contents of those terms - see: Brooks v Burns Phillp Trustee Co Ltd [1969] HCA 4; (1969) 121 CLR 432 Windyer J at 458 and Vabu at [36].
2. Independent contractors carry out their work as principals not as the employers representative. The fundamental difference is between a person who serves his employer in the employers business and a person who carries on trade or business on his or her own.
3. Modern Australian law has shifted the emphasis of the control test from the actual exercise of control to the right to exercise it. Control is no longer regarded as the only relevant factor. Rather the Court must examine the totality of the relationship between the parties.
4. Considerations of the policy issues of rights to economic independence and freedom of contract are not determinative of the legal character of the relationship.
5. Too much should not be made of investment in capital equipment as an indicia except in cases where the investment was most significant and greater skill was required to operate it.
6. Control by the employer over the manner of performance is an important indicia particularly in respect to matters such as hours worked, rosters and denial of the right to refuse work or carry out work for other parties.
7. Requirements as to the wearing of livery, presenting a good corporate image and advertising the employer are also significant indicators to be weighed.
8. Superintendence of finances including restrictions on bargaining the rate of payment, penalties for errors, method of payment and deduction of insurance are also significant indicators.

THE SUBMISSIONS

35. Mr Perry valiantly argued his clients case that Mr Cartner was not a worker but he had few feathers with which to fly.

36. Essentially the respondents case was that the applicant and his wife ran a business that was broad enough in its activities to include work such as driving a harvester. The respondents case that the harvesting work was part of the building business essentially rests on the facts that the applicant submitted an invoice to the respondent under the business name and was not paid on a weekly basis.

37. The applicants case as presented by Mr Martin is that for some years the applicant has worked as a builder/carpenter in the Trangie area. The applicant carried out and was paid for carpentry work on the respondents home. The respondent subsequently offered the applicant a job driving a wheat harvester when the normal driver let him down. The applicant was not in the business of harvesting wheat or driving harvesters. Indeed the applicant had never before engaged in such work or anything like it. The applicant put his building business on hold to work for the respondent. The respondent ran the harvesting business owned the harvester, trained the applicant to drive and maintain it, controlled the place and hours of work and required the applicant to work for him exclusively during the harvest season.

RESOLVING THE WORKER ISSUE

Overview of the Business Relationship

38. As I understand the Vabu decision this Tribunal of fact is required to take a broad overview of both the nature and operation of the putative employers business and the totality of the relationship between the parties within that business operation.

39. The undisputed fact is that it was the respondent, not the applicant, who was in the business of harvesting wheat. Indeed the applicant had never engaged in the occupation or driven a wheat harvester. The only previous activity the applicant had performed that vaguely related to driving farm machinery was an unremunerated short drive in cotton picker. His only connection with farm work was two years as a grazier at Cobar twenty years previously. The applicants Trangie business related solely to the building industry. He had wide experience in that industry and was prepared to take on any type of building work. However he had no qualifications and absolutely no experience in the specialised work of harvesting and had never owned, driven or maintained a harvester. The applicant had to put on hold building jobs he had agreed to perform so that he could drive for the respondent.

40. The contractual relationship between the parties in relation to the driving of the harvester arose because the respondents driver had let him down just as the harvest was about to commence. The getting in of the wheat harvest was a hurried affair given the risk of losing the grain with rain. The respondent in a desperate situation asked his builder to step in and learn to drive and maintain the respondents harvester.

The Relevant Indicia
A. Control

41. Mr Perry concedes that at all times Mr Barclay exercised control over the hours and place of work. The applicant worked from 7am to 7pm and sometimes to 12 midnight 7 days a week. There was no suggestion that Mr Cartner could perform work for any other party be it building work or driving wheat harvesters. There was no suggestion that he could delegate the driving.
B. Skill

42. Mr Cartner had no prior skills in the driving or maintenance of harvesters. All his skills were learned on the job from the respondent.

Tools and Capital Equipment

43. The respondent supplied the harvester and all the tools to maintain it.

Finances

44. The applicant and the respondent negotiated an hourly rate of $12 plus out of pocket expenses. The applicant was paid at the end of the contract after he submitted an invoice on his building business letterhead. The invoice was prepared by the applicants wife. These facts in isolation might be suggestive of an independent contractor. The applicant was geared up to issue invoices in his building business and it was obviously convenient to issue the invoice in that form.

Determination

45. Taking all the evidence into consideration concerning the various indicia to which I have been referred I determine on the balance of probabilities that the contractual relationship between the respondent and the applicant was that of employer/employee and that Mr Cartner was not an independent contractor.

THE MEDICAL EVIDENCE

THE APPLICANTS MEDICAL CASE

Dr Drew Dixon

46. The applicant saw Dr Dixon an orthopaedic surgeon on 20 October 1999 to assess his disabilities. Dr Dixon was of the opinion that the applicant was seriously and permanently disabled as a result of his accident. He diagnosed the condition as residual S1 radiculopathy and said the clinical picture suggested lumbo sacral discal instability. He assessed a permanent back impairment of 25 per cent, a permanent right leg loss of 15 per cent and a permanent left leg loss of 10 per cent. He excluded from these assessment any contribution from a degenerative condition of the lumbar spine.

47. On 7 March 2001 Dr Dixon again assessed the applicant. He diagnosed facet arthralgia secondary to discal instability.

48. Dr Dixon reported for a third time on 30 January 2002. He noted that the MRI of October 1999 showed a multi levelled disco vertebral changes in the lumbar spine with osteoarthritic change at the facet joints together with small right L3/4 and left L2/3 lateral and nerve root canal disc protrusions. He also noted that the applicant had a walking tolerance of 100 yards and found standing and sitting difficult.

49. His final assessment was 25 per cent for the back, 15 per cent for the right leg and 10 per cent for the left leg.

Dr Peter Ingle

50. Dr Ingle, a radiologist, reported on the MRI of 19 October 1999. He found multi levelled lumbar disco vertebral degenerative changes and facet joint on changes with bony outlet restrictions and small right L4/4 and left 2/3 lateral and intra-foraminal protrusions.

Dr Lesley North

51. Dr North, a radiologist reported on a CT Scan of the lumbar spine on 29 January 2002.

52. Dr North found multi-levelled disc degeneration with loss of height of the disc spaces with diffuse annulus bulge. There was degenerative resorption at L4/5 and L5/S1 with a central vacuum. There was osteoarthritis in the epiphysial joints throughout the lumbar spine. There were also mild disc bulges at L2/3 and L3/4 flattening the thecal sac and or moderate diffuse annulus protrusion at L4/5.

Dr John P Sheehy

53. The applicants treating neurosurgeon Dr Sheehy reported on 18 occasions between 15 October 1996 and 24 July 2001.

54. In his first report he noted a history of intermittent low back symptoms for many years but did not mention the header.

55. His report on 18 October 1996 noted that the lumbar myelogram and CT Scan showed compression of the S1 nerve root at L5/S1. His report of 31 October 1996 notes he operated on 28 October 1996 decompressing the S1 nerve root.

56. He noted the nerve was caught at L5/S1 by a focal postero-lateral disruption of that disc. He also noted that the right leg pain had gone after the operation.

57. On 20 November 1996 Dr Sheehy notes the return of right leg pain on 10 November 1996. On 20 March 1997 Dr Sheehy records he continues to complain bitterly of pain persisting in the right buttock posterior thigh with radiation to the back of his calf involving the lateral two toes of the right foot.

58. On 24 March 1997 after attending a further myelogram and CT Scan he diagnosed a mass lesion at L5/S1. He thought that was the result of either a post operative change or recurrent prolapse.

59. On 23 June 1997 Dr Sheehy operated again finding that the S1 neve was tightly caught again by the prolapse. He cleared away the disrupting material from the nerve.

60. On 8 August 1997 Dr Sheehy again notes severe pain in the low back over the past month. In his report of 11 September 1997 he describes the pain as intermittent stabbing pain in the low back on the right side radiating to the ground. He also describes sciatic pain. He noted walking exacerbates the pain.

61. On 11 November 1999 Dr Sheehy notes that the least activity tends to exacerbate his back or right leg pain. Back and right leg symptoms are equally troublesome. The is as well some pain in the left leg.

62. In his report of 24 July 2001 Dr Sheehy addresses the s 68A issue in the following terms:

I can find no reference in my reports or in other reports of any leg pain having present prior to the exacerbation of his back pain and development of leg pain for which he consulted Dr John. There were degenerative changes present on the spinal imaging obtained in 1995, however there was a major exacerbation of the back symptoms and development of leg pain described following an injury with a harvester in December 1995 and in such circumstances it would be reasonable to attribute 80 per cent of his residual sequelae to the effects of such injury and 20 per cent to the degenerative change.

Professor J G McLeod

63. The applicant saw Professor McLeod a neurologist for assessment on 14 December 2000. Professor McLeod’s opinion was that the major cause of Mr Cartner’s incapacity is chronic disease of the lumbar spine aggravated by his work from 6 November 1995 to 7 December 1995. He found the applicant unfit to return to work as a builder other than in supervisory capacity. He did not believe the protrusion at L3/4 and L2/3 were work related.

64. He assessed the back impairment 20 per cent, the right leg loss at 10 per cent but found no left loss.

65. He apportioned 5 per cent of the back impairment to the pre-existing condition.

THE RESPONDENTS MEDICAL CASE

Dr Peter Wilson

66. Dr Wilson, a radiologist, reported on Xrays and a CT Scan if the lumbar spine on 13 December 1995. His conclusion was that there was evidence of disc degeneration t L4/5 and L5/S1 with mild posterior bulging of all four discs.

Dr J M Matheson

67. The applicant was examined by Dr Matheson a consultant neurosurgeon on 15 December 2000 on behalf of the respondent.

68. His opinion is that Mr Cartner has a longstanding constitutional discal degeneration in his back. He did not believe the jarring from the header could have injured the back. If there was an aggravation caused by the work it has long since ceased. He found the applicant to be exaggerating his disability and its symptoms.

69. He assessed the back impairment at 25 per cent and found no permanent leg losses. On 14 January 2002 he amended his assessment to include a 5 per cent permanent right leg loss.

ANALYSIS OF THE MEDICAL EVIDENCE

70. The issues requiring my determination with the assistance of the medical evidence are as follows:
· The applicants Credit
· Injury and Causation
· Permanency of the left leg loss
· S 66 assessment
· Application of s 67 (if relevant)
· Capacity to earn

A. CREDIT

71. The issue pressed as going to the applicants credit related to the history given to Dr Sheehy and involved the extent of the workers pre-existing condition.

72. Mr Perry put to the applicant the proposition that he was aware he had a longstanding back injury caused by his hard work as a builder but was waiting until he entered into a contract of employment to reveal it so that he might obtain workers compensation. The applicant vigorously denied that allegation.

73. Mr Perry did not press this argument so forcefully in his submissions. Rather he chose to approach the case as a temporary aggravation of a pre-existing condition. Nevertheless his submissions leave a strong inference that Mr Cartner was not being truthful particularly in his assertion that he had told Dr Sheehy about injuring his back working on the grain harvester.

74. The applicants difficulties with Dr Sheehy’s clinical notes and reports were exacerbated by the fact that no report from Dr John was put into evidence. It is agreed that Dr John left Trangie shortly after the applicant first saw him and moved to West Wyalong. He was subpoenaed to produce his records but failed to answer the subpoena. The applicant did not call him.

75. Dr Sheehy’s clinical notes of 14 October 1996 makes a reference to Dr G Mutton 1 yr. No report was tendered from Dr Mutton. The applicant made no reference to him in his evidence nor was he cross examined about him. The rule in Browne v Dunn prevents the respondent using the mention of Dr Mutton in Dr Sheehy’s notes against he applicant.

76. There is no mention of Dr Mutton in Dr Sheehy’s report to Dr Wright of 15 October 1996. It is possible of course, that Dr Sheehy has confused Dr Mutton and Dr John because the applicants evidence is that he saw Dr John on 7 December 1995 which is near enough to a year before he saw Dr Sheehy. Mr Perry would have me read Dr Sheehy’s clearly written words 1 year to read instead years to suit his clients case. I cannot do so. The respondents problem is that there is little or no correlation between the brief 21 word clinical note on 14 October and the history recorded in Dr Sheehy’s report written the day after. Obviously Dr Sheehy did not rely on his clinical notes to compile that report because there is no mention of the back pain 1 year previously, no mention of a Dr Mutton and the clinical note makes no mention of intermittent back pain for many years or work as a self employed builder.

77. The only inference I can draw is that Dr Sheehy has compiled his report from his recent memory and not his notes. If that is the case, clearly Mr Cartner gave a longer history than Dr Sheehy chose to record.

78. In those circumstances I am not prepared to accept Mr Perry’s submission that Mr Cartner was being untruthful to the Court when he repeatedly asserted he had in fact given Dr Sheehy a history of injuring his back driving the header. Mrs Cartner’s evidence is that her impression of her husbands health was that it was excellent prior to driving the harvester.

79. Taking all the evidence into consideration on the balance of probabilities I determine that Mr Cartner did in fact give Dr Sheehy a history of his back injury while driving the wheat harvester.

80. My impression of the applicant was that he was a genuine credible witness.
B. INJURY AND CAUSATION

81. The applicants case is that he did have a mild pre-existing degenerative disease in his lumbar spine but prior to 7 December 1995 it was mostly asymptomatic with only occasional overnight aches and pain after heavy work. Then after bouncing on a wheat harvester across rough terrain using an unsatisfactory seat for long hours 7 days a week over a period of a month he developed severe pain in his back and referred pain into his right leg.

82. He asserts that the work for the respondent should be viewed as a major permanent aggravation of his mild pre-existing condition. He also submits that his condition has deteriorated notwithstanding the surgery on his back including the development of a permanent loss of efficient use of his left as well as his right leg.

83. The respondents medical case is that the applicant suffered from a very significant pre-existing osteoarthritis of the lumbar spine caused by his heavy work as a builder and miner. That condition was symptomatic prior to commencing work with the respondent. The work for the respondent may have temporarily aggravated his pre-existing disease of the spine but did not make a material contribution to his back impairment or leg losses.

84. The expert medical evidence in summary is as follows:
· Dr Matheson, the respondents neurosurgeon opines that the applicant has a chronic degenerative condition which could not have been produced by jarring his back driving a header. He felt that the work may have produced a bit of pain at the time but has long since resolved.
· Dr Dixon the applicants orthopaedic surgeon on the other hand expresses the opinion that the work was a substantial contributing factor to the injury causing mechanical instability in the lumbar spine. Indeed he describes the applicant as having been significantly disabled as a result of his work accident.
· Dr Sheehy the treating neurosurgeon as I have noted earlier was not particularly interested in matters of causation. However in his report of 24 July 2001 having read reports from Dr Champion, Dr Dixon and Professor McLeod he eventually addressed the question of nexus between the harvesting work and the permanent impairments and losses. He said

There were degenerative changes present on the spinal imaging obtained in 1995, however there was a major exacerbation of the back symptoms and development of leg pain described following an injury with a harvester in December 1995, and in such circumstances it would be reasonable to attribute 80 per cent of his residual sequelae to the effects of such injury and 20 per cent to degenerative changes.
· Professor McLeod a neurologist qualified by the respondent expressed the opinion that the major cause of his incapacity is chronic degenerative disease of the lumbar spine that has been aggravated by his work from 6 November 1995 to 7 December 1995. However he felt the numbness in the right leg was not work related.
· Dr Peter Wilson who conducted Xrays and a CT Scan of Mr Cartner’s lumbar spine on 13 December 1995 concluded he had evidence of disc degeneration at L4/5 and L5/S1 and mild posterior annular bulging of all four discs.
· A myelogram conducted at St Vincent’s Hospital on 16 October 1995 revealed compression of the right S1 nerve root at L5/S1.
· Dr Peter Ingle who conducted an MRI of the applicants lumbar spine on 19 October 1999 found signs of degenerative changes at L5/S1, L4/5, L3/4, L2/3 and L1/2. He also found small right protrusion at L3/4 and L2/3 and intra forminal protrusions.
· Dr Lesley North who conducted a CT Scan of the applicants lumbar spine on 29 January 2002 also found multi level disc degeneration.

85. The Court of Appeal recommends that these cases of conflicting medical evidence should be resolved by applying commonsense to the chain of causation and asking the question: was the workers disabilities the result of the work injury impugned?

86. The chain of causation as I read the evidence was:
1. The applicant who was 58 years of age in December 1995 had a work history of some 40 years of heavy labour mostly in the building industry.
2. The applicants evidence which I accept is that over the years after days of very heavy work such as concreting he had noticed aching in his back. Those aches invariably resolved by the following morning allowing him to resume his heavy labours without further problems.
3. The special investigations in December 1995 revealed some evidence of discal degeneration at L4/5 and L5/S1. Some 4 years later in October 1999 the MRI revealed widespread lumbar disco vertebral degenerative changes at all levels from T12 to L5/S1.
4. On 7 December 1995 after 4 weeks jarring of his buttocks on a wheat harvester travelling over very rough ground the applicant developed strong back pain referring into his right leg.
5. That pain was so disabling that it brought him to surgery at the hands of Dr Sheehy who decompressed the compromised S1 nerve root.
6. The operation was not a success in that the back and right leg pain persisted and gradually worsened bringing Mr Cartner to surgery for a second time to deal with a mass lesion at L5/S1. Dr Sheehy’s opinion was that this development was either the result of the first operation or a recurrent disc prolapse.
7. The second decompression of the S1 nerve was carried out by Dr Sheehy on 23 June 1997. Again the surgery was unsuccessful in that the back and right leg pain persisted. Indeed after a few months left leg symptoms began to appear.
8. The applicants back and bilateral leg pain have persisted ever since notwithstanding the fact that he has ceased work.

87. Commonsense suggests in this case that a man who has engaged in heavy physical labour for 40 years is likely to have developed some degenerative changes in his lumbar spine.

88. Dr Wilson’s CT Scan confirm this to be the case at L4/5 and L5/S1. His scan did not pick up the S1 nerve compromise at L5/S1 revealed by the myelogram in October 1995.

89. In the light of the CT Scan commonsense suggests that the occasional back aches experienced by Mr Cartner prior to December 1995 after heavy work were not passing strains but symptoms of the mild degenerative condition at L4/5 and L5/S1 revealed by Dr Wilsons CT Scan.

90. Commonsense suggests to me that a back injury involving an S1 nerve compromise is likely to produce mechanical instability in the lumbar spine as Dr Dixon opines.

91. Commonsense also suggests to me that the pattern of:
· A modest improvement after the first operation followed by gradually returning back and right leg pain.
· Discovery of a further prolapse and S1 nerve root compromise on the second operation
· Further improvement after the second operation followed by gradually increasing back and right and left leg pain.

is likely to have resulted from the continuing instability causing further recurrences of the origin L5/S1 prolapse again compromising the S1 nerve as found by Dr Sheehy.

92. Taking all the evidence into consideration on the balance of probabilities I determine that arising out of and in the course of his employment with the respondent between 6 November 1995 and 7 December 1995 the nature and conditions of that employment injured his back and consequently his right leg.

93. I further determine on the balance of probabilities that the unbroken chain of causation was as follows:
(i) The nature and conditions injury sustained between November and December 1995 resulted in a prolapse of the mildly diseased disc at L5/S1 compromising the S1 nerve root.
(ii) The prolapse left the applicants low lumbar spine with a mechanical instability.
(iii) The first operation relieved the nerve root related pain but the continuing mechanical instability resulted in a further prolapse of the L5/S1 disc again compromising the S1 nerve root.
(iv) Once more surgery relieved the nerve root compromise but yet again the instability caused a further prolapse at L5/S1. This time it compromised the S1 nerve root in a way that caused bilateral leg pain.
C. PERMANENCY

94. The respondent does not dispute that the applicant has a permanent back impairment or a permanent loss of the efficient use of his right leg.

95. In dispute is the permanency of the left leg loss. The applicant agrees that his left leg pain is not as bad as his right leg pain. However he asserts that it is painful and he has numbness running from his thigh to his little toe.

96. Dr Drew Dixon finds a significant permanent loss of 10 per cent in the left leg. Dr Sheehy notes pain in the left leg. Professor McLeod found no permanent loss in the left leg but he took no history or complaints of left leg pain or sciatica.

97. Dr Matheson also records no history of the development of left leg pain or complaint of continuing left leg pain in his report of 15 December 2000. In his report of 14 January 2002 he notes he is now claiming left leg pain as well. He takes a history that the left leg pain dates back to the original injury and notes the pain is intermittent and is worse walking. He finds no permanent left leg loss.

98. Taking all the evidence into consideration including that of the applicant I determine on the balance of probabilities that the applicant has a permanent loss of the efficient use of his left leg at or above the knee.
D. S 66 ASSESSMENT

99. Having determined that the applicant is a worker and has sustained a work related permanent back impairment and permanent bilateral leg losses I must now assess his entitlements under s 66.

100. The range of assessments are as follows:

Doctor Back Right Leg Left Leg

Dr Matheson 25 per cent 5 per cent Nil

Professor McLeod 20 per cent 10 per cent Nil

Dr Dixon 25 per cent 15 per cent 10 per cent

Dr Sheehy N/A N/A N/A

101. I am not obliged to accept any particular assessment and can rely on all the evidence including that of the applicant. Mr Martin amended the Application of Determination to claim a 50 per cent back impairment following the applicants evidence to the Court.

THE BACK

102. In Kayell Pty Ltd v Fahey (1995) 11 NSWCCR 442 Justice Mahoney said at Page 445B said

It may be that in particular cases the nature or circumstances of the case are such that the chain of reasoning from the injury or loss to the proportion or degree of loss to be found will require the evidence of an expert such as a medical expert. But in principle, in my opinion, medical evidence is not required in the ordinary case to make such a decision.

103. This is such an ordinary case and my task under s 66 is to calculate the percentage recoverable in a case falling short of a most extreme case. In other words to determine the reasonable proportionality of Mr Cartner’s back impairment to a most extreme case.

104. There is no legal test of the degree of permanent impairment of the back. The factors that need to be considered are: the degree of movement in different directions; the different ways movement is inhibited either physically or because of pain; or the existence of weakness; the need to restrict or avoid particular activities because of risk of pain or further injury.

105. The doctors in this case have relied upon their clinical examinations in arriving at assessments in the range of 20 to 25 per cent. However the applicant has given very moving evidence of the massive impact his back injury has had on his ability to do simple things and the way in which he is virtually confined to rest for half the day. I agree with Mr Martin that this evidence concerning the very substantial restriction the back impairment imposes on Mr Cartner’s movements and activities entitles him to a much more substantial proportion of a most extreme case than those assessed by the medical experts in their surgeries on clinical examination without the benefit of such a history.

106. Accordingly taking all the evidence into consideration and comparing the applicants back impairment to a most extreme case I determine that it represents 50 per cent of such a case.
(b) The Right Leg

107. Taking all the evidence into consideration concerning the applicants permanent loss of the efficient use of his right leg at or above the knee I determine that it represents a proportion equal to 15 per cent of the amount payable for the total loss therefore.
(c) The Left Leg

108. Taking all the evidence into consideration concerning the applicants permanent loss of the efficient use of his left leg at or above the knee I determine it represents a proportion equal to 10 per cent of the amount payable for the total loss thereof.
E. S 68A

109. It is agreed that the applicants pre-existing degenerative disease of his lumbar spine was a contributing factor causing his permanent back impairment and consequently his bilateral leg losses. What is not agreed is the extent of that contribution.

110. Mr Perry for the respondent suggests the Court should adopt Dr Matheson’s view that the contribution is 100 per cent. I have not accepted Dr Matheson’s theories on causation. Anticipating that possibility Mr Perry suggests I should then adopt Dr Sheehy’s view that 20 per cent of the impairment found should be attributed to the pre-existing condition.

111. Professor McLeod suggests that 75 per cent of the impairment should be attributed to the pre-existing condition.

112. The special investigations taken in December 1995 reveal only a mild degenerative condition at L4/5 and L5/S1. By 1999 the MRI reveals significant degeneration at all levels of the lumbar spine. That would suggest that most of the degeneration has occurred over the last 4 years as opposed to the 40 years Mr Cartner spent as a builder. My findings on causation relate the applicants pain and sciatica caused by the L5/S1 disc injury. I have attributed his recurrent prolapses to a mechanical instability caused by the work injury. The rapid degeneration of the spine after 1995 was one of the factors that convinced me of the existence of that instability. The question therefore becomes one of ascertaining the relative contributions of the pre-existing condition and the work injury to the damage of the L5/S1 disc.

113. Taking all the evidence into consideration on the balance of probabilities I determine that the pre-existing condition has made a 20 per cent contribution to Mr Cartner’s 50 per cent back impairment. In other words I am required to deduct 10 per cent from my s 66 assessment leaving Mr Cartner with an entitlement under s 66 of 40 per cent.

114. His consequent leg losses will also have to be reduced to 12 per cent for the right leg and 8 per cent for the left leg.
F. S 67 ASSESSMENT

115. I have found a most significant back impairment and moderate leg losses.

116. The applicant has endured a great deal of past pain and suffering including the pain at the time of his injury the pain associated with two operations and their recovery and the increasing pain that came upon him as his recurrent discal prolapses. The applicant has been left with strong back pain and intermittent leg pain and most troublesome numbness in both legs.

117. He described his understandable distress at being unable to work, at being denied his recreational pleasures and at the impact his disabilities have had on his personal relationship with his wife.

118. Mr Cartner is now 65 and in the normal course of events has a further 18 years pain and suffering ahead of him. His prognosis is not good with the prospect of further painful surgery ahead of him as his condition deteriorates.

119. Taking all the evidence into consideration and comparing the applicants pain and suffering to a most extreme case I determine that it represents 60 per cent of such a case.
G. CAPACITY TO WORK

120. It is the applicants evidence that Dr Johns and then Dr Wright put him off the harvester driving work.

121. However the applicants evidence is that he was able to perform some small building contracts between February 1996 and October 1996 working in a supervisory capacity and using a friend Paul Berry to do any heavy work. The questions of capacity to work therefore must be considered in the context of both the driving and building work.

122. These assessments are made particularly difficult by the fact that the applicants treating GPs have not provided reports and Dr Sheehy was not interested in workers compensation issues including capacity to work.

123. The applicants evidence at T11 is that Dr Johns put him off work for a month on Endone. At T12 & 13 the applicants evidence was that the building contract work he completed as a supervisor required the use of very strong medication despite the fact that the work was just a matter of sitting and walking around.

124. The medical evidence I accept, namely that of Dr Sheehy is that the applicant was suffering from a disc prolapse at L5/S1 which was compromising his S1 nerve root. From a physical point of view the best work he could do with his back and right leg disability was to supervise others.

125. On the balance of probabilities I determine that between 15 December 1995 and his first operation on 28 October 1996 Mr Cartner was capable of performing supervisory work and then only with the assistance of heavy narcotic medication.

126. In deciding Mr Cartner’s capacity to work the Court is not confined to the limitations placed upon him by his physical disabilities. I must also examine the labour market in which he is engaged. Although he may be able to perform some tasks, if he cannot sell his labour in that market then it is appropriate to make a finding of total incapacity for work.

127. Given Mr Cartner’s work experience and educational qualifications the market into which he could sell his labour involved heavy physical labour. I have considered the possibility that he could have worked part time as a building supervisor but that is an unrealistic suggestion in a small country town. Many years previously he had worked in a mixed business but that job requires some heavy lifting, prolonged standing, sitting and bending.

128. Taking all the evidence into consideration I determine on the balance of probabilities that the applicant was totally incapacitated for work from 7 December 1996 to his first operation on 28 October 1996.

129. Thereafter the applicants condition deteriorated as he suffered two recurrences of the L5/S1 prolapse. Gaining only temporary relief from his two operative procedures Mr Cartner has been left worse off by the recurrent prolapses to the point now that he needs to spend half the day resting.

130. Taking all the evidence into consideration I determine on the balance of probabilities that the applicant has been totally incapacitated for all work from 7 December 1995 and continuing.
H. THE WEEKLY BENEFITS CLAIM

131. The worker claims weekly benefits pursuant to s 36, s 37 and s 40 from 7 December 1995 and continuing.

132. Mr Cartner had been running his own business in Trangie as a builder/carpenter for a number of years. He took on a months work as a wheat harvester driver. He had never performed work remotely like it before. The evidence is that in agreeing to help the respondent out the applicant put aside a months building work he had contracted to do and which he felt obliged to complete after his injury.

133. It is not suggested that the harvest work was part time. On the contrary Mr Cartner was engaged up to 17 hours a day seven days a week to get the harvest in before the rains.

134. In making my determination under s 36 I am obliged to ascertain the applicants current weekly wage rate. That expression is defined in s 42. Mr Cartner was a businessman who contracted with the respondent to drive his harvester for an hourly rate plus out of pocket expenses including petrol sustenance and telephone charges. To my mind he was not a worker to whom s 42(1)(a), (b) or (c) would apply and his current weekly wage needs to be calculated under s 42(1)(d) by ascertaining his average weekly earnings prior to his injury pursuant to the provisions of s 43.

135. The application of s 43 raises the threshold question of whether s 43(1)(b) could apply if the applicants income as a builder can be categorised as concurrent earnings. Given that Mr Cartner was earning about $360 a week as a builder prior to his injury the addition of that sum could have a substantial effect on his current weekly earnings under s 36 or his average weekly earnings under s 37 or his probable weekly earnings under s 40.

Case Law on Concurrent Earnings

136. In Pratt v Claydon (1996) 14 NSWCCR 86 Mr Claydon, like the applicant, was a carpenter running his own business who took on a one off six day carpentry job for his sister. Justice Priestly at page 90F held that in those circumstances the trial judge was bound to apply the rules laid down in s 43(1) to resolve the question of Mr Claydon’s average weekly earnings. The first step was to decide under s 43(1)(a) whether or not it was impracticable because of shortness of time or terms of employment at the date of injury to compute the rate of remuneration. He then determined that the phrase average weekly earnings contemplates a five day week. He proceeded to base that weekly calculation on a daily rate arrived at by dividing the contract sum by the number of days worked. He then calculated the average weekly earnings by multiplying the daily rate by five.

137. In Watkins v The Scots College (1970) WCR (NSW) 214 Mr Watkins worked for the college during the day but was separately employed as a musician on some nights and weekends. His Honour Judge Ferrari held that the weekly amount which the worker would probably have been earning as a worker but for the injury had he continued to be employed in same or comparable employment should be determined by reference not only to the workers earnings in the employment in which he was injured but also by reference to his earnings in any concurrent employment.

138. In Fowler v Bartlett (1965) WCR 309 Mr Fowlers concurrent employment involved carpentry work on a Sunday raising the question as to whether illegal employment in breach of the Sunday Observance Act or an industrial award could be calculated as part of his average weekly earnings. Judge Ferrari found the Sunday work was not illegal and included the sum paid in the average weekly earnings.

139. In Lloyd v Midland Railway Company (1914) 2 KB 53 Mr Lloyd in addition to his job on the railway worked on a Saturday at a picture theatre. It was submitted by the railway that its contract of service excluded work for other employers and that for contracts of service to be concurrent they must be ejusdem generis. The Court of Appeal said there was no need for concurrent contracts to be in employment of the same nature.

140. In SS Raphael v Brandy [1961] UKHL 5; (1911) AC 413 the Law Lords were concerned with a stoker on board a merchant chip who also enjoyed a retainer from the Royal Navy Reserve. They held he was entitled to workers compensation from the merchant ship owners not only in respect of his wages but also of the retainer which had to be taken into account as earning under a concurrent contract of service.

141. In Palese v Ciba-Geigy Australia Ltd (1973) 1 NSWLR 146 the Court of Appeal considered the case of a worker who worked as a labourer during the week and a part time taxi driver on weekends. The Court of Appeal held that on its true interpretation of the provision in s 11(1)(a) of the 1926 Act (which are expressed in the same languages as s 40(1)(a) of the 1987 Act) indicates that the subsection is not confined to a comparison between the pre-accident and post accident earnings of the worker in relation only to the employer from whom he claims compensation but to his actual and probable earnings from all concurrent contracts of employment. The basis for this interpretation was the application of s 21(6) of the Interpretation Act 1897 to read the words weekly amount and employment to include the plural.

142. However Justice Moffit in his judgment at Page 149B raises a doubt as to the application of the interpretation to earnings from a business when he says:

leaving aside the question of earnings from a business, it is clear that there is brought to account in the post accident period everything that the worker is earning or is able to earn as a worker whether in one or more employments.

143. Justice Moffit’s doubts about business earnings were resolved by the Court of Appeal in Hill v Bryant (1974) 2 NSWLR 424. The worker was a self employed pharmacist but was also employed on weekends in another pharmacy where he was injured. The Court of Appeal held that the word employment as it appeared in s 11 of the 1926 Act (which is in similar language to s 40 of the 1987 Act) must be read in the plural so as to bring into account earnings received from concurrent employers, both in relation to the pre-injury and post injury position, that is to say the section requires a comparative account to be taken on a weekly footing of the earnings from all sources of a hypothetically injured and the same person subject to a given injury.

Conclusions

144. I draw the following conclusions from the case law just reviewed:
1. If Mr Cartner’s earnings in his building business are determined to be concurrent then they must be taken into account in calculating his entitlements under s 36, s 37 and s 40.
2. This is one of those cases to which s 43(1)a applies because the shortness of time and terms of employment make it impracticable to compute the rate of remuneration. Therefore an appropriate method of calculating the average weekly amount the applicant was earning as a harvester driver pursuant to s 43(1) is to divide the number of days he worked into his total earnings to ascertain a daily rate. That daily rate can then be multiplied by 5 to provide the average weekly amount.

(a) The Harvester Driving

145. Exhibit 1 shows the applicant worked 22 days for the respondent and earned $2916. His daily rate was therefore $133. Applying Justice Priestly’s formula in Pratt v Claydon I determine that his average weekly earnings were $665.
(b) The Business

146. The applicant tendered Taxation Returns for the business BC and VA Cartner revealing the following income:

Year Net Income Applicants Share

1994 $38,460 $19,230

1995 $10,741 $5,270

147. The applicants Wages Schedule falls into error by ignoring the business outgoings and Mrs Cartner’s half share of the profits.

Concurrent Earnings

148. The preliminary question is whether these business earnings can be said to be concurrent with those earned driving the harvester.

149. The Oxford Dictionary defines concurrent as having the primary meaning existing or in operation at the same time.

150. Time is a relative concept. These days workers frequently have more than one job. Sometimes the concurrent work is on the same day, sometimes within the same working week, sometimes on the weekend and sometimes periodically or occasionally throughout the year.

151. The word operation also has its flexibilities suggesting no more than an active process. Commonsense would suggest have that for jobs to be described as concurrent they must co-exist within some reasonable time frame.

152. The case law is of somewhat limited assistance here. Pratt v Claydon tells us that average weekly earnings is a concept based on a five day week. Yet many of the concurrent employment cases take into account a second job after normal working hours or in periods of structured leave such as weekends. In Brandy’s case the workers second job was a retainer as a reservist who might be called upon to serve at any time.

153. It is conceivable that if Mr Cartner’s employment as a harvester of crops was a regular event that occurred on one or more occasions during the year that a Court might find that time frame to be sufficiently flexible to meet the test of concurrency.

154. However that is not what I have found on the evidence. On the contrary, my findings of fact on the issue of worker were that Mr Cartner’s contract of employment with Mr Barclay was an arrangement giving Barclay exclusive control of the workers time and services for the duration of the wheat harvest including overtime and weekends.

155. Taking all the evidence into consideration I determine that the building business and the harvester driving employment did not exist or operate at the same time and accordingly the employment was not concurrent.

S 36 Assessment

156. This case is complicated by the fact that Mr Cartner to honour prior contracts worked in a supervisory capacity between April and October 1996. The contracts were small involving at the most, on the applicants evidence, a total of about 1 weeks work. The applicant paid his friend Paul Berry half the proceeds to do any heavy work further reducing its value to a negligible amount and probably a loss given the business overheads revealed in the Tax Returns.

157. The Tax Returns indicate the applicant's share of the business earnings for the entire financial year was only $5,270 which corroborates the applicants evidence that he earned little or nothing in 1996.

158. Given that the period worked was, at most, a week over several months, and the earnings were negligible and because I have found the applicant was totally incapacitated for work during that time in any event I propose to assess the weekly benefits entitlement under s 36 and s 37.

159. Mr Cartner is therefore entitled to weekly benefits pursuant to s 36 at the rate of $663 per week from 7 December 1995 to 7 June 1996.

S 37 Assessment

160. The applicant is entitled to weekly benefits pursuant to s 37 from 8 June 1996 and continuing at the maximum statutory rate payable to a worker with a dependent wife from time to time.

FINDINGS

161. I summarise my findings as follows:
1. The applicant was a witness of credit.
2. The contractual relationship between the respondent and the applicant with that of employer/employee. Mr Cartner was not an independent contractor.
3. Arising out of and in the course of his employment with the respondent between 6 November 1995 and 7 December 1995 the nature and conditions of that employment injured the applicants back and consequently his right leg. Further as a result of an unbroken chain of causation recurrent prolapses of the applicants L5/S1 disc after both operations caused further injury to the applicants back and consequently both legs.
4. The applicant has sustained a permanent loss of the efficient use of his left leg at or above the knee.
5. The applicant is entitled to lump sum compensation pursuant to s 66 for:
(a) a 50 per cent permanent back impairment
(b) a 15 per cent right leg loss
(c) a 10 per cent left leg loss
6. The applicant had a pre-existing degenerative condition of his lumbar spine that has made a contribution to his permanent back impairment representing 20 per cent of the impairment found under s 66. Accordingly I apply s 68A and reduce the applicants s 66 entitlements as follows:
(a) the back impairment to 40 per cent
(b) the right leg loss to 12 per cent
(c) the left leg loss to 8 per cent
7. The applicant is entitled to lump sum compensation for his pain and suffering representing 60 per cent of a most extreme case.
8. The applicant has been totally incapacitated for work from 7 December 1995 and continuing.
9. The applicants earnings as a builder and a wheat harvester driver were not concurrent.
10. Applying s 43(1)(a) and the formula in Pratt v Claydon I assess the average weekly earnings as a wheat harvester driver at $665.
11. The applicant is entitled to weekly benefits pursuant to s 36 at the rate of $665 per week from 7 December 1995 to 7 June 1996.
12. The applicant is entitled to weekly benefits at the maximum statutory rate payable under s 37 from time to time thereafter.

AWARDS

162. I make the following awards:
1. The respondent pay to the applicant pursuant to s 66:
(a) For his 40 per cent back impairment $24,000
(b) For his 12 per cent right leg loss $9,000
(c) For his 8 per cent left leg loss $6,000
2. The respondent pay to the applicant pursuant to s 67 $30,000
3. The respondent pay to the applicant the following weekly benefits:
(a) Pursuant to s 36 from 7 December 1995 to 7 June 1996 at the rate of $665 per week.
(b) Pursuant to s 37 from 8 June 1996 and continuing at the maximum rate payable from time to time for a worker with a dependent wife.
4. The respondent pay the applicants medical expenses pursuant to s 60.
5. The respondent pay the applicant interest on the arrears in weekly benefits at the rate of 3 per cent per annum.
6. The respondent pay the applicants costs.

Mr J Martin instructed by Heazlewoods Solicitors appeared for the applicant.
Mr P Perry instructed by Vandervords Solicitors appeared for the respondent.