Brian McCrowe v Toll Pty Limited [2003] NSWCC 10 (2 April 2003)

Last Updated: 17 July 2003

NEW SOUTH WALES COMPENSATION COURT

CITATION: Brian McCrowe v Toll Pty Limited [2003] NSWCC 10


PARTIES:
Brian McCrowe
v
Toll Pty Limited (formerly known as Finemores Pty Limited)


CASE NUMBER: 11304 of 2002 of 2003.00


CATCH WORDS: Assessment of Compensation


LEGISLATION CITED:


CORAM: Geraghty J

DATES OF HEARING: 2nd April 2003

EX TEMPORE DATE: 02/04/2003


LEGAL REPRESENTATIVES

FOR APPLICANT:
MR M PERRY instructed by Steve Masselos
FOR RESPONDENT:
MR M INGLIS instructed by Leigh Virtue & Hicksons Lawyers


JUDGMENT:

1. Brian McCrowe seeks weekly benefits from 17 September 2001 to date and continuing, and lump sum compensation for neck impairment, loss of use of his upper and lower limbs, together with payment of medical expenses.

2. His claim is based on an injury which he alleged he sustained on 15 January 1995. It was a minor incident and on the evidence he gave before me, it did not seem to result in any permanent injury. Within a few days, he was back at work and the neck symptoms had resolved. However, also bases his claim on the nature and conditions of employment as a welder from June 1994 until September 2001, though he was involved in heavy welding work for the respondent from as earlier as October 1986 and, before that time had worked as a welder for two years with Guild Matthews, as well as working for a time checking trains for the railway, and as self employed in leather work and jewellery with his wife and attending various shows.

3. Since the issue is mainly a medical one, it depends very much on the support provided by the medical experts.

4. Exhibit A contains a report from Dr Martin Jude which is dated 13 March 2003. Dr Jude is a neurologist and consultant physician who initially reviewed McCrowe in July 2001. When he viewed an MRI scan exposed in July 2001, he reported that:

It showed evidence of severe spinal cord compression adjacent to the C4/5 level, and to a lesser extent, at one vertebral level higher with signal alteration in the cervical cord consistent with myelomalacia.

5. He noted that: The compressive abnormalities were related to degenerative joint disease in the cervical spine, with alteration in bone marrow spinal intensity in four vertebral bodies which, he said, was again consistent with degenerative joint disease. It was on the basis of this MRI scan that the applicant was referred to Dr Timothy Steel, a neurosurgeon, who performed surgery at the cervical spine level on 17 September 2001. Dr Jude, in summary observed that McCrowe: Initially presented with symptoms of hand paraesthesia, he said:

The clinical suspicion was that this was related to carpal tunnel syndrome, and although this diagnosis would technically found to be present in the right hand, his clinical syndrome was more in keeping with cervical spinal cord compression which was confirmed by imaging and with changes consistent with degenerative joint disease.

6. Dr Jude observed that the nature of McCrowe's problem was one of degenerative disease, and that the nature of his work as a welder and in lifting heavy objects would certainly be likely to have accelerated degenerative joint disease. However, Dr Jude did not believe that the work had directly caused the condition and that he would have undergone the surgery in any event. He said that: The underlying carpal tunnel syndrome would be consistent with his normal work duties, but the changes allegedly were marginal, so that Dr Jude did not believe the carpal tunnel played any significant part in his functional incapacity. In any event, the more recent nerve conduction studies showed some amelioration or improvement in this syndrome, so that the changes were marginal in the right hand, normal in the left.

7. The doctor observed (and this was my conclusion independent of this report) that the accident which took place in November 1995 had no direct causative effect on any of the symptoms which the applicant now complains of.

8. Exhibit 1 contains a series of reports of a number of doctors. Dr Robert Smith first examined the applicant in July 2001. He thought that:

Historically, everything was rather indefinite concerning the alleged carpal tunnel syndrome, because those symptoms according to McCrowe had 'just came on'. He also gave a history of low back problems and some unsteadiness with his gait.

9. Dr Smith gained the impression in July 2001 that McCrowe's condition was not due to any definite work-related incident. In an additional report dated January 2003, having examined a number of investigative reports, and particularly the MRI scan, and having read the report of Dr Jude of August 2001, Dr Robert Smith concluded that he was quite certain McCrowe's symptoms were all due to intrinsic neck changes. He thought that the parties could be quite sure that the symptoms had nothing to do primarily with his work as a welder, and noted that it should be remembered that he had been told that the symptoms had just came on.

10. These conclusions of Dr Robert Smith are mirrored in the conclusions of Dr Perrett whose initial report is dated August 2002 and whose follow up report is dated January 2003. In his final report, Dr Perrett noted that he read the records of Dr Zammit and Mr Roberts', the chiropractor, all of which confirmed his own opinion, expressed in his earlier report of August 2002, namely that McCrowe's neck problems arose from constitutional condition of cervical spondylosis which had progressively worsened.

11. In his final report of January 2003, Dr Lloyd Hughes observed that all the documentation which he had been given to read, including the reports of the chiropractor and Dr Zammit, confirmed his opinion that the problem was degenerative disc disease in the cervical and lumbar spine which had been in existence since at least 1992, and further confirmed that the incident pleaded in November 1995 was completely irrelevant.

12. Dr Harvey prepared a report dated January 2003 and diagnosed, as the others did, cervical myelopathy. He observed that McCrowe had a relatively mild spastic paresis of the right upper limb, but quite a significant spastic paresis of both lower limbs. He said the applicant's condition in the cervical spine was secondary to advanced degenerative changes in the cervical spine with spinal stenosis.

13. There seems to be little doubt that almost the entire condition of the worker is the result of degenerative changes. There does seem to be some evidence that he did have carpal tunnel but this seems to have disappeared, or at least almost disappeared, and is of no significance.

14. In the light of the medical evidence, and in the light of the applicant's evidence in chief before me, I have no hesitation in entering an award for the respondent. I make no orders as to costs.
Mr M Perry instructed by Steve Masselos appeared for the applicant.
Mr M Inglis instructed by Leigh Virtue & Hicksons Lawyers appeared for the respondent.