Eastwill Pty Ltd v Lonergan

[1987] TASSC 83

Serial No B13/1987
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Eastwill Pty Ltd v Lonergan [1987] TASSC 83; B13/1987

PARTIES:  EASTWILL PTY LTD
  NOMINAL INSURER
  v
  LONERGAN, John

FILE NO/S:  WC432/1984
DELIVERED ON:  10 April 1987
JUDGMENT OF:  Underwood J

Judgment Number:  B13/1987
Number of paragraphs:  31

Serial No B13/1987
List "B"
File No WC 432/1984

EASTWILL PTY LTD and THE NOMINAL INSURER
v JOHN LONERGAN

REASONS FOR JUDGMENT  UNDERWOOD J

10 April 1987

1. This is an application to review weekly payments made to a worker pursuant to the provisions of the Workers' Compensation Act 1927. The application was taken out by the employer, Eastwill Pty Ltd However, as the company has ceased business and has been removed from the Register of Companies, the Nominal Insurer was joined as a party and took over conduct of the proceedings.

1. The worker, John Lonergan, claimed that in the latter part of 1978 he suffered a number of accidental injuries arising out of and in the course of his employment. In respect of the claimed incapacity for work by reason of those injuries the worker was paid weekly payments for the period from 20 September 1978 until 24 October 1978.

1. Thereafter, in circumstances which I shall refer to later, no further weekly payments were made until the 23 January 1984. On that date payments recommenced and continued until the 4 March 1984. Weekly payments again resumed on the 9 April 1984 and were paid to the worker until 6 October 1984.

1. On 24 September 1984 Mr Lonergan was personally served with a letter from the employer's insurance company which said (formal parts omitted):–

"In accordance with Section 21(1)(c) of the Workers' Compensation Act we hereby give formal notice that in ten (10) days from the date of receipt of this letter we intend to terminate payments to you of weekly compensation. We are taking this course as the result of certification from Mr Graeme Duffy, copy of which is enclosed for your information."

1. Attached to that letter was a medical report from Mr Duffy addressed to the solicitors for the insurer which stated (formal parts omitted):

"I have seen Mr Lonergan on 11th December 1980, 15th January 1982 and 19th July 1984. It is my opinion that Mr Lonergan suffers from an incapacity due to spinal spondylitis that renders him only fit for sedentary work. I do not believe that he is now suffering from incapacity which could be attributed to injury by accident in 1978."

1. By way of response to the medical report of Mr Duffy the worker obtained a certificate from another medical practitioner, Dr Heddle. Dr Heddle certified that he disagreed with the opinion of Mr Duffy and expressed the opinion that Mr Lonergan was still incapacitated for work as a result of the "accident and resultant injury he sustained in or about August 1978".

1. As provided for by s21(3) of the Act, the worker served that certificate on the employer, whose insurers thereafter paid the weekly compensation into court until a total amount of B x 284 ($32,319) had been paid. The employer, by a summons dated 26 November 1984 referred the matter to this court.

1. The procedural steps taken by the employer were not in accordance with the rules made under the Workers' Compensation Act. Rule 35 provides that every application to review shall be made by summons to show cause and r31 makes provision for the filing of an affidavit in support of the application to review.

1. However, counsel expressly agreed that the procedural error should be ignored and the matter be treated as a properly constituted application to review as provided for by s21(3) and s22 of the Act.

1. There was considerable argument as to whether the letter from the insurer and the accompanying report from Mr Duffy (upon which the employer relied as authority to cease making payments) complied with the statutory requirements set forth in s21(1)(c) and s21(2) of the Act.

1. The express agreement that the proceedings before me were to be treated as proceedings for an application for review on the part of the employer makes a decision on this argument immaterial. Section 21(3) requires an employer who has been served with a doctor's certificate disagreeing with the opinion of its doctor, to refer "the matter" to a judge who shall deal with it as an application to review the weekly payment. Section 22(1) provides that any weekly payment may be reviewed by a judge upon the application of the employer or a worker. Thus, the effect of s21(3) is to compel an employer to apply for a review where there are conflicting medical opinions with respect to the incapacity of the worker being no longer due or no longer wholly due to the accident.

1. Section 21(1)(a) – (e) inclusive prescribe the only circumstances in which an employer may lawfully terminate or diminish weekly payments. See Gamble v Brown's Constructional Enterprises Pty Ltd [1962] Tas SR 368; Barber v Australian Pulp and Paper Mills Limited [1981] Tas SR 387; Adams v Cadbury Schweppes Pty Ltd Cox J 71/83. The circumstance described in par(c) only entitles the employer to terminate or diminish weekly payments if the medical certificate complies with the requirements prescribed by subs(2) and the employer has not been served with contradictory medical report as provided by subs(3). But, even if an employer wrongfully terminates payments upon purported reliance of the circumstance set forth in s21(1)(c), he is not thereby precluded from relying upon any other paragraph in s21(1) to justify termination of payments. (See Holmyard v Marine Board of Hobart, Cosgrove J 10/87).

1. Weekly payments in the present case ceased on the 6 October 1984. The Nominal Insurer for the employer, asserted that the cessation was lawful as the worker was not then entitled to such payment under the provisions of the Act, (s21(1)(e)) . It was alleged that any incapacity the worker was then suffering from was not due to any accidental injury which arose out of and in the course of his employment with Eastwill Pty Ltd in 1978.

1. I assess Mr Lonergan to be a truthful witness and, generally speaking, his evidence accurate. However, his persistent belief over a long period of time that all his disabilities are due to incidents at work in 1978 has resulted in a somewhat distorted view of some of the relevant events. I make the following findings of fact.

1. In 1978, Mr Lonergan (for convenience hereafter referred to as "the worker") was employed by Eastwill Pty Ltd ("the employer") as a ventilation plumber. He was working at the Queen Alexandra Hospital installing air conditioning. He was then aged 46 years and in excellent health without prior history of pain in any part of his spine. On the 16 August of that year he and a number of other workmen were lifting a heavy piece of round ducting. The others unexpectedly let go and momentarily, the worker took the full weight until he also lost his grip. He immediately felt pain in between his shoulder blades. He did not immediately stop work but two days later as the pain worsened he consulted Dr Heddle. After a day or two off work and some physiotherapy all symptoms disappeared.

1. In September 1978 another incident occurred. This time the worker was standing on a small ladder a few feet off the ground. With both arms outstretched above his head he was attempting to join two lengths of air conditioning duct by pulling them together. His head was tilted back to watch what he was doing. In this position the worker then turned his head slightly to the right to look at the joint and immediately experienced severe pain in the same place as before. The pain forced him to let go of the ducts, stumble off the ladder and awkwardly collapse into a sitting position on the floor. As on the previous occasion, he did not immediately stop work but, two days later as the pain persisted he consulted Dr Heddle. This time the pain was spread over a wider area of his back end he experienced some numbness in one arm and the thumb and forefinger of that arm.

1. The worker remained off work, receiving physiotherapy end other treatment, until the 24 October 1978. On his return to work the symptoms were improved but had not completely disappeared. He remained with the employer for a period of six months. He then left and, together with his wife, carried on the business of a general store keeper at Nubeena. The worker said that he left his employer because, "he didn't want to carry injuries" and "thought they (the symptoms) would go away in time". The conduct of the business at Nubeena involved a twice weekly journey to Hobart to obtain supplies. The plaintiff said the driving, bending and lifting involved in this work caused pain in his neck to such an extent that after 18 months he sold the shop. Following the sale he worked for 4 months delivering parcels in the Hobart area on a contract basis for TNT Limited. I have some reservations about the reasons given by the worker for selling the shop. He admitted that it wasn't a financial success and if the work of driving and lifting supplies caused pain it seems curious that he should immediately take on a job performing exactly the same work.

1. He said that during the period he was driving for TNT Limited his symptoms worsened and he consulted a physiotherapist and Dr Cull. This was the first time he had sought medical or para–medical advice for his symptoms apart from one or two consultations with a general practitioner since the end of 1978; a period of approximately two years. As a result of advice from Dr Cull and his physiotherapist he abandoned the carrying of freight from TNT Limited and took a job as a welder with Taylor Bros, shipwrights of Battery Point. He remained in this employment for a continuous period of approximately 3½ years. Despite his evidence that initially, the work was relatively light and only became arduous towards the end of the 3½ year period, I find that throughout, the work he was required to do was reasonably heavy. He described using heavy duty grinders and welding equipment which required him to wear a heavy and cumbersome welder's eye guard. He carried out all manner of repairs to a wide variety of craft. Such work involved lifting, climbing ladders and scaffolding and working in confined spaces. For over a year he was exclusively occupied in enlarging the capacity of the slip yard. This involved taking up the existing slip rails and rebuilding the ways so that larger craft could be accommodated. It included the manufacture and modification of the steel cradles used to carry the boats up the ways. Once the slip yard had been enlarged he was engaged in heavy work modifying barges for use in the Antarctic.

1. During his period of employment with Taylor Bros he suffered two accidents. In the first, he twisted his knee while stepping over a boat railing, with such severity that the cartilage was torn. An operation was necessary and he was unable to work for three months. In the second, he and another employee were carrying a large gas cylinder when it slipped and he injured his lower lumbar spine. On this occasion he was off work for a week. The plaintiff says, and I accept, that during the time he worked at the shipyard the pain in his neck gradually got worse until he could stand it no longer and had to resign. Of the pain in his neck he said:

"Progressively, it got worse over the years. The severity depends upon what I am doing. If I lift anything the pain gets worse."

1. On 23 January 1984 shortly after his resignation from Taylor Bros and after a period on sickness benefits, the employer or its insurers recommenced making weekly payments to the worker. Apart from a short break during March 1984 these payments continued until 6 October 1984 when Mr Duffy certified that the plaintiff's incapacity was no longer due to any injury in 1978.

1. Since October 1984 the worker has started at a number of jobs all of which involved skilled or semi–skilled manual labour. He said that he was unable to continue with any of them because of severe pain in his neck and an associated weakness of grip in his left hand. I accept his evidence with respect to this claimed disability and find that since the day payments ceased to be made to him, he has been either partially or wholly incapacitated from working.

1. The existence of such incapacity was not really in dispute upon the hearing. The real issue was whether such incapacity was due to any accident at work in 1978. To determine this it is necessary to examine the medical evidence. The employer called Mr Duffy, a neurosurgeon to give evidence. The defendant called Mr Liddell who is also a neurosurgeon and Dr Heddle, a Fellow of the Royal College of Surgeons and a specialist in sports medicine.

1. It was common ground between the medical practitioners that, prior to the events in 1978, the worker's cervical and lumbar spine showed moderately severe degenerative changes particularly at C4/5 and, to a lesser extent, C5/6 and C6/7. This condition is known as cervical spondylitis. It was accepted by all practitioners that the worker was asymptomatic prior to 1978. The weight of all the medical evidence was that there had been a full recovery from the first accident at work in 1978. There was disagreement with respect to the causal link between the second incident and the incapacity for work when payments ceased on the 6 October 1984.

1. Mr Duffy saw the worker on the 11 December 1980, 15 January 1982 and 19 July 1984. Dr Heddle saw him on several occasions between shortly after the first incident in August 1978 and the 10 October 1979. He did not see him again until the 24 February 1984. Thereafter he has been consulted by the worker on many occasions. Mr Liddell only saw him once, on the 29 March 1985.

1. When Dr Heddle examined the worker shortly after the second incident he detected, by pin prick tests, some loss of sensation in the thumb and forefinger of the left hand. All three medical witnesses agreed that this indicated interference with the 6th or 7th cervical nerve. I find that this interference was caused by the second incident at work. However, I accept the opinion of Mr Duffy that the resultant numbness in the thumb and forefinger is not and has not been, causative of any incapacity for work. That incapacity arises from pain and restriction of movement of the cervical spine.

1. It was Dr Heddle's opinion that the principal cause of the disabling pain in the neck was damage to the soft tissue in the vicinity of the cervical spine, principally involving intraspinous ligament at C7 and T1 level. He considered that the soft tissue was strained in the first incident in 1978 and damaged in the second. He conceded that some of the pain may be due to the degenerative condition but considered that principally, the disability arose out of the damage to the ligament. Neither Mr Liddell nor Mr Duffy took the view that there was evidence of any injury to the ligaments or soft tissue. Both were of the opinion that the pain and restriction of movement arose from the condition of spondylitis. I prefer the latter opinions to that of Dr Heddle. Underlying Dr Heddle's opinion was his belief that in the second incident, the worker sustained hyper–flexion to his neck. This belief is not supported by the description of the second incident given by the worker in evidence.

1. Both Mr Duffy and Mr Liddell were of the opinion that the pre–existing degenerative condition of the cervical spine was such that it was liable to become symptomatic upon being subjected to even minor trauma. In accordance with their opinions I find that the trauma sustained in each of the incidents at work was responsible for the onset of symptoms which immediately followed each event. However, as demonstrated by the evidence of the worker, apart from a short period immediately after the second incident, those symptoms were not sufficiently severe to incapacitate him from working. The worker remained in work of quite a heavy nature for a continuous period in excess of 5 years. During that time his cervical spine was no doubt subjected to frequent insult. Each would be likely to be productive of symptoms. The worker's evidence that the progression of disablement was a gradual process confirms that this is what occurred. This is not a case of an exacerbation of an injury. It is a case where the worker has, over a period of five years in the employ of different employers, sustained numerous separate injuries. Each operated upon the long standing degenerative condition to produce symptoms. Gradually, the cumulative effect of each of these injuries resulted in pain of sufficient degree to produce an incapacity for work.

1. I therefore find that incapacity for work in October 1984 and thereafter was due to the degenerative condition being subjected to the trauma involved in carrying out work after the end of 1978 and not to any accidental injury arising out of and in the course of his employment with the employer.

1. Mr Duffy's opinion which I accept, was that had Mr Lonergan not been involved in either of the two incidents at work in 1978 he would in any event have suffered from the symptoms of which he has complained since October 1984.

1. Unfortunately, when Mr Liddell examined the worker he was not given a full work history after 1978. This history was put to him in the course of his evidence and he was then asked whether in his opinion any of the 1978 events caused either partially or wholly the incapacity for work which he found in March of 1985. He said:

"I must confess that I would have expected him to have remained incapacitated in the interim period. I mean, certainly it is common experience that people go back to work for a while and find they don't cope and so on, and then they have periods of working on and off, but to go – to undertake sustained employment for a prolonged period, I find it difficult then to attribute subsequent incapacity to a former injury."

1. I find that the employer was entitled to terminate payments on the 6 October 1984 as the worker had then ceased to be entitled to such payment under the provisions or the Workers' Compensation Act. Consequently, I order that the monies paid into court since the 6 October 1984 be paid out to the Nominal Insurer.