Johnson v Comalco Aluminimum (Bell Bay) Limited

[1988] TASSC 83

Serial No B15/1988

List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Johnson v Comalco Aluminimum (Bell Bay) Limited [1988] TASSC 83; B15/1988

PARTIES:  JOHNSON, Andrew
  v
  COMALCO ALUMINIMUM (BELL BAY) LIMITED

FILE NO/S:  WC19/1986
DELIVERED ON:  28 April 1988
JUDGMENT OF:  Wright J

Judgment Number:  B15/1988
Number of paragraphs:  23

Serial No: B15/1988

List "B"

File No WC19/1986

ANDREW JOHNSON v COMALCO ALUMINIUM (BELL BAY) LIMITED

REASONS FOR JUDGMENT  WRIGHT, J

28 April 1988

1. This is a claim for a lump sum compensation, pursuant to item 11, rule 5 of the 1st Schedule of Workers Compensation Act and also for weekly payments, medical expenses and travelling expenses allegedly incurred by the plaintiff in consequence of injuries which he sustained whilst employed as a warehouse attendant by the defendant on or about 28 January 1986 at Bell Bay.

1. It is not disputed that on that day the plaintiff suffered personal injury by accident arising out of his employment when he slipped on a step and went over laterally on his right ankle. The ankle became swollen and the plaintiff consulted a medical colleague of Dr Mooney, the company doctor at Comalco. He was first seen by Dr Mooney on 3 February 1986. Dr Mooney found bruising over the lateral half of the ankle joint although there was no obvious swelling and there was increased tenderness on stressing the lateral and anterior lateral aspects of the ankle joint. Dr Mooney considered that the plaintiff had sustained an anterior lateral ligament tear. On 4 February the plaintiff attempted to return to work but on the following work he went off the job because of back pain associated with his fall and on the following Monday he was still complaining that his ankle was sore. Dr Mooney examined him again that day and found that the anterior joint margin was tender although there was no obvious swelling again. Dr Mooney recommended that he return to selected duties and arranged to see him again the following week. He did this on 17 February when the plaintiff complained that the ankle had swollen excessively the previous week. On this occasion Dr Mooney recommended resting the ankle and he also organized physiotherapy. A week later the ankle was still swollen and tender and Dr Mooney considered that it was time to refer the plaintiff to a specialist for further opinion. This he did on 27 February 1986 when the plaintiff saw Mr Dermot Morgan, an orthopaedic surgeon in Launceston.

1. Mr Morgan found that there was tenderness below the lateral malleolus of the ankle with pain on inversion and apparently an increased inversion. Mr Morgan confirmed that there had been a tear of the lateral ligament of the right ankle and suggested initial treatment by way of immobilizing the ankle in plaster for several weeks. This was done but on review by Mr Morgan in April, the plaintiff was still complaining of symptoms so Mr Morgan proceeded to operate. He performed a peroneus brevis tenodesis on 1O April and the plaintiff's ankle was again immobilized in plaster which was removed on 30 May.

1. The plaintiff was reviewed by Dr Mooney on 4 July 1986 and at Dr Mooney's suggestion, he attempted to return to work on 7 July. However, he saw Dr Mooney again on 9 July complaining that the ankle had worsened since returning to work so he was again certified as unfit. The plaintiff was reviewed by Mr Dermot Morgan on 26 August 1986 and Mr Morgan was then of opinion that that there was little swelling in the ankle and that there was a good range of movement. He certified the plaintiff as fit for work as a warehouse attendant from that date. Dr Mooney had seen the plaintiff shortly before this on 22 August and at that stage in light of the plaintiff's continued complaints of pain in the ankle, he had certified him as unfit for work until 29 August. Exactly what occurred between the 29 August and 19 September is not clear from the evidence but on the latter date, the plaintiff saw Dr Mooney again. Dr Mooney could find no obvious swelling and despite the fact that the plaintiff complained that his ankle was tender, Dr Mooney was of opinion that the ankle was stable. At that stage Dr Mooney had an opinion from Dr Morgan that the plaintiff was fit to return to work and also a certificate from Mr Batten. Mr Batten's certificate was not put in evidence but the contents of it were given without objection as saying that the plaintiff was fit to return to work for limited duties of a clerical nature. When Dr Mooney found that such duties were unavailable to the plaintiff that day, he commenced to prepare a certificate certifying him unfit for work but as a result of further consultations and consideration of the matter, he changed his opinion and produced a certificate certifying him fit to return to work.

1. The plaintiff described his duties as being mainly concerned with operating the weigh bridge. This entailed a good deal of walking between the weigh bridge office and the weigh bridge itself, printing out tickets, painting identifying marks and numbers on ingots and billets and remaining standing on his feet as he said, "nearly all day". The plaintiff attempted to return to work on 22 September 1986. However, he said his ankle was swollen, sore and bruised at the time and he ventured the opinion that he was not fit to return to work. He saw the supervisor Mr Crumpton and had a discussion with him. He said that Mr Crumpton asked him why he had gone back to work as nothing had been arranged for him to do. The plaintiff said that he said to Mr Crumpton, "Well, I have just been cleared to come back to work" and Mr Crumpton replied, "We are of the understanding that you have a disability, a permanent disability of the ankle. As far as I am concerned the best thing you can do is to just hop in your car and go back at home and I will notify you later if I have got something for you". The plaintiff accordingly returned home that day and consulted Dr Reddy, a general practitioner, whom he had seen previously on several occasions in connection with the injured ankle. Dr Reddy provided him with a certificate but despite indications that it would be produced, it was not put in evidence. The plaintiff stated that he believed that it certified him as being unfit for work. Dr Reddy was not called and obviously secondary evidence of what he is alleged to have stated in a certificate cannot be used as a foundation for forming an opinion as to the plaintiff's condition at that time.

1. On 24 September, the plaintiff was notified by the defendant company to attend at the head office and as a consequence of a meeting that took place there on that day, the plaintiff was dismissed from Comalco's employment. The plaintiff claims that on 24 September 1986 he was still unfit for work and remained so for a period of 12 months thereafter. The defendant, on the other hand, maintains that on 24 September 1986, the plaintiff had recovered sufficiently from his ankle injury to be fit for all forms of work. The plaintiff made no immediate attempts to seek alternative employment, taking the view that he was unfit to do so and in October 1986, he was referred by his general practitioner to Mr R W L Turner, a specialist orthopaedic surgeon, in Hobart. Mr Turner stated that the plaintiff's initial complaint to him was that the right ankle was painful, it tended to ache all the time, it felt weak and tended to swell. His initial examination disclosed a surgical scar over the lateral aspect of the ankle running behind the lateral malleolus and an area of discolouration anterior to the scar. The lateral ligament complex was tender and there was quite marked limitation of movement both at the ankle and the subtalor joint. X–rays failed to disclose any abnormality and Mr Turner considered that the plaintiff's symptoms may be due to an early reflex sympathetic dystrophy. For confirmation of this provisional diagnosis and for treatment, if necessary, Mr Turner referred the plaintiff to Dr Michael Anthony Jackson, a consultant anaesthetist specializing in pain management, also in Hobart.

1. Dr Jackson gave evidence that he has had quite extensive experience in treating reflex sympathetic dystrophy. Dr Jackson first saw the plaintiff on 2O October 1986 when he noted that he was limping and unable to put weight on his right foot and ankle. He noted that power, tone, sensation, deep tendon reflexes and peripheral pulses were equal and symmetrical. He noted also some increase in hair growth on the plaintiff's foot and he found the ankle to be rather cold and blotchy on the right side as compared with the left. He formed the initial impression that there was evidence of sympathetic over–activity which he attributed to the original injury to the right ankle. He agreed that it was not a particularly "florid" or "full blown" case of sympathetic dystrophy but nonetheless it had developed to such a degree that it warranted the performance of a diagnostic lumbar sympathetic block. This is a procedure which actually interrupts the sympathetic nerve supply to the affected limb and, by observing whether or not any change occurs in the condition of the foot, it can be determined whether the presenting signs and symptoms are referable to sympathetic over–activity. Although this procedure is primarily diagnostic, it can sometimes have a curative effect. Dr Jackson found that the plaintiff gained good initial symptomatic relief from his complaint as a result of this procedure and took the view that this tended to confirm his provisional diagnosis of sympathetic dystrophy. Thereafter, he administered a further series of injections of guanethidine to the plaintiff with encouraging results. As Dr Jackson explained, guanethidine depletes the nerve endings of a substance called noradrenalin which is the neurotransmitter at the sympathetic nerve endings. By removing this neurotransmitter, guanethidine effects a pharmacological sympathectomy. A similar result can be achieved by either a surgical sympathectomy or a chemical sympathectomy but the first of these is, a major surgical procedure undertaken upon the abdomen for the purpose of severing the sympathetic nerve supply to the affected limb. Whilst in the second, the injection of drugs around the sympathetic trunk permanently scar and kill the sympathetic nerves. Neither of these procedures is without attendant substantial risk. Dr Jackson made the point very strongly that once a decision has been taken to treat a case as one of sympathetic dystrophy, it is very important to be aggressive in the following treatment because if energetic treatment is not undertaken, the condition can progress and finish up as a full blown florid case creating a crippling disability. After the initial course of injections the plaintiff was reviewed by Dr Jackson on 13 November 1986 and good symptomatic improvement was reported by him in the affected right ankle. However, the initial problems returned and he was seen again on 13 January 1987 and at that stage Dr Jackson considered that a repeat course of intravenous guanethidine injections was called for. These were carried out on 16 January 1987 at Calvary Hospital.

1. He was seen again on 12 February 1987 and reported to Dr Jackson that his symptomatology had become worse and that he felt that his condition was going back to where it had been previously. On this occasion Dr Jackson admitted the plaintiff to St. Johns Hospital where he again received a course of guanethidine injections. Following this, the symptoms did not return and when Dr Jackson saw the plaintiff for a final review in April 1987, he found that the symptoms of sympathetic over–activity had gone, that his foot was now nice and warm although he still required the use of a TENS machine to overcome residual pain in the ankle. Having achieved his primary objective of alleviating the symptoms of sympathetic dystrophy, Dr Jackson referred the plaintiff back to Mr Turner, because he considered that Mr Turner may be able to do something surgically to cure the ongoing pain.

1. Despite an initial reluctance to undertake further surgery because of the risk that in doing so the sympathetic dystrophy may recur, Mr Turner decided to undertake an anterolateral capsule joint tightening procedure. This was done on 2 July 1987. It is a procedure that Mr Turner explained is not commonly performed in Australia but it is one that he has found may often cure a residual instability in the affected joint following a peroneus brevis tenodesis. Mr Turner said that in his experience, symptoms frequently persist after the peroneus brevis tenodesis procedure due to damage to the ligamentous structures of the joint and that these symptoms may sometimes be relieved by the capsule tightening procedure just mentioned. He considered that the plaintiff's symptoms were of the kind frequently experienced after a peroneus brevis tenodesis, and he found on operation that there was swelling and that there was excessive fluid in the joint, coupled with thickening of the synovium synovitis, a combination of which will produce a clinical appearance of swelling. Following the procedure (carried out on 2 July), the plaintiff was in plaster for a month and when seen by Mr Turner on 24 August 1987, he reported that the ankle had improved considerably although there was still a little pain and some slight stiffness. Examination showed that the ankle lacked a few degrees of dorsiflexion and there was a very mild residual anterior instability.

1. In a report dated 1 September 1987 (exhibit P2) Mr Turner said, "This man's ankle has improved with further surgery. I believe that he is now at the stage where consideration could be given to him (sic) returning to work. I have advised his doctor that this would be appropriate in another three weeks or so." The plaintiff gave evidence that since his final consultation with Mr Turner, his ankle has been "good, real good" and that he has had no further problem since then with swelling or soreness in the ankle. In short, apart from any disability that may exist due to limitation of movement or strength in the ankle, there is no disability which can now be said to arise from pain or discomfort in the affected joint.

1. The defendant called Mr Dermot Morgan who had performed the initial surgical procedure upon the plaintiff's ankle on 10 April 1986. He was engaged to review the plaintiff on 4 June 1987 after Dr Jackson's procedures had been carried out but before Mr Turner had carried out the capsule tightening operation. Mr Morgan challenged both the diagnosis of reflex sympathetic dystrophy and the necessity for the subsequent surgical procedure at the hands of Mr Turner. In a report dated 13 November 1987 (exhibit D1) Mr Morgan said this, "The diagnosis of reflex sympathetic dystrophy has become a rather popular one in the last few years and in some quarters tends to be applied to any person who complains of continuing pain for which there is no obvious reason. The condition is a real one but it is fairly rare in significant occurrence. It should only be applied to a case where there are the appropriate signs of the disease and this includes obvious swelling, colour and temperature change and real pain on restricted movement and palpation. I can only say on the times I have seen Mr Johnson that there has been no clinical evidence of reflex sympathetic dystrophy. The minimal swelling I observed was quite compatible with injury and surgery."

1. Mr E D McIntyre, another specialist orthopaedic surgeon from Launceston, gave evidence of having examined the plaintiff in June of 1987 and so far as the diagnosis of reflex sympathetic dystrophy was concerned, he expressed the view that "he didn't have the clinical picture of R.S.D." In the circumstances, of course, this is scarcely surprising as Dr Jackson claimed to have eradicated or alleviated the plaintiff's main symptoms of reflex sympathetic dystrophy by that time. Although not fully borne out by the evidence of Mr Morgan and Mr McIntyre, it was suggested to Dr Jackson in the course of his evidence that his diagnosis was astray because of the absence of shiny blotchy skin and the absence of persistent boring or burning (causalgic) pain in the plaintiff's foot. However, it seems plain from the whole of the medical evidence that reflex sympathetic dystrophy is not a condition which is defined only by reference to rigid and specific diagnostic criteria. It can be present to varying degrees in different people and although it is plain that in any given case, one can wait until it reaches a florid and obvious state to confirm the diagnosis, this procrastination can only be undertaken at serious risk of permanently damaging the long term health of an injured party.

1. In the present case I am quite firmly persuaded that the provisional diagnosis by Mr Turner was both astute and accurate. I am satisfied that the plaintiff had a condition that may properly be characterised as reflex sympathetic dystrophy and that Dr Jackson's diagnostic procedures and treatment of this condition were reasonably and properly undertaken by him. The condition was recognized when it was in an initial or mild phase and this fact, I think, may account for the failure of other medical personnel connected with the plaintiff's treatment, failing to observe it before October 1986.

1. Mr Morgan and Mr McIntyre also ventured the opinion that the plaintiff's ankle was not unstable when observed by them. However, Mr McIntyre made it clear that he regards instability as "when the patient complains to me that his ankle gives way". It is plain, however, that neither the plaintiff nor Mr Turner were talking of an instability of this gross kind. Mr Morgan said that he has never done nor come across the procedure of tightening the anterior capsule. Mr McIntyre said that the procedure is certainly not a common procedure and it is not a well established one in his view. Notwithstanding the great respect that must, of course, be accorded to the opinions of these two eminent surgeons, I am fully persuaded that Mr Turner made a correct diagnosis as to the instability of the joint capsule and carried out an appropriate and effective operation to overcome that condition. Whilst I am unaware of the nature or extent of the information that was given to Mr McIntyre before he carried out his examination of the plaintiff, it is perfectly obvious that Mr Morgan had considerable experience of the plaintiff and had voiced an opinion as early as August 1986 that the plaintiff was consciously exaggerating his disability. This was a view shared by neither Mr Turner nor Dr Jackson but as the plaintiff's credibility has formed such a significant issue in this trial, it is appropriate that I should say that I saw nothing in his answers or demeanour in the witness box to suggest that he was unreliable or was a liar or a malingerer and, despite Mr Morgan's suggestion that Machiavellian motives may underlie a significantly understated case, I find it strong confirmation, both of the reliability of the plaintiff and the accuracy of the diagnoses performed by Mr Turner and Dr Jackson that following their treatment of him, his complaints of pain and discomfort which had persisted in the face of reassurance from Mr Morgan, Mr Batten, Dr Mooney and perhaps even Dr Reddy, had completely disappeared prior to trial. I think it quite unlikely that the plaintiff would have subjected himself to numerous procedures which were, no doubt, uncomfortable at least and probably painful, certainly temporarily disabling and plainly of uncertain outcome simply for the purpose of "getting even" with his employers for the way in which they had treated him either on this or some earlier occasion.

1. Since Cardiff Corporation v Hall [1911] 1 KB 1009, it has been clear law that a workman alleging the continuation of the partial incapacity entitling him to weekly compensation payments, must establish that any difference between his pre–accident earnings and his current earning rate, is attributable to the injury rather than extraneous causes. In particular it is insufficient if it is shown that due to a general economic down–turn he is unable to get a new job. However, as Fletcher Moulton LJ said in the Cardiff Corporation case at 1019:

"Now the effect of the particular accident in diminishing the chance of obtaining employment is in many cases so personal a matter that it can only be arrived at by evidence as to the results of the efforts to obtain it. Such evidence is open to the objection that the difficulty of obtaining employment in the same or other trades may not be due solely to the effect of the accident but also partly to the state of the labour market. This consideration no doubt increases the difficulty of the tribunal in arriving at the right decision, but it does not affect the admissibility and in some cases the necessity of the evidence, and the tribunal must use all the material before it so as to separate as far as practicable that which is due to the one cause from that which is due to the other."

At 1019 he also observed:

"... The employers can of course answer the claim ... by showing that suitable work has in fact been offered to the workman either by themselves or by others and that he has refused it, but in the absence of such evidence the court is greatly influenced by the proof of repeated and unsuccessful attempts on the part of the workman to obtain the suggested work. It goes far to demonstrate that the man's labour has become unmarketable."

1. His Lordship rejected the submission that if such evidence was not rebutted it became conclusive that the workman was entitled to compensation on the basis of a total incapacity saying:

"It is impossible to hold that the employer necessarily or generally guarantees the conditions of the labour market where there is partial incapacity any more than he guarantees that the workman shall get employment where incapacity has for the time ceased."

1. It is plain therefore that in considering the test propounded in rule 3, sub–rule (1) of Schedule 1 of the Workers' Compensation Act 1927, a claimant worker's ability to earn in suitable employment or business during a period of alleged incapacity is to be judged in relation to inability to get employment resulting from the incapacity rather than from inability caused by other factors. I have already referred to the plaintiff's evidence concerning his conversation with Mr Crumpton shortly before he was dismissed by the defendant. I note that Mr Crumpton was present in Court at the time of the trial but was not called to contradict what the plaintiff said about that conversation.

1. In the circumstances of this case and in the absence of any direct evidence to the contrary, I think it is legitimate to infer that the plaintiff was dismissed from his employment with the defendant company because it perceived that he had an incapacity rendering him unfit for the job on which he had previously been engaged. No evidence was called by the defendant and no questions were put to the plaintiff to suggest that he had been dismissed for disobedience, general laziness, lack of work due to a down–turn in the industry or for any other reason. Speaking of the occasion when he first consulted Mr Turner in October 1986, the plaintiff said that:

"The ankle was still pretty swollen and it was an off–bluish colour like an old bruise around the ankle and that it was a real pale yellowy colour down the side of my foot, leading down towards me toes".

1. He said further that the maximum time that he could spend walking around or standing would be a "couple of hours" and he then found it necessary to rest his foot by putting it up and leaving it there otherwise it would just continue to swell. He was asked whether he had started looking for work after his dismissal from Comalco and he said:

"Oh well I really couldn't see the sense in looking for employment straightaway because, like, I was still having this trouble with my ankle and I knew that I couldn't go to work so there was no sense in trying to find a job if you can't go."

1. He then went on to detail some of the treatment that he had received from Dr Jackson indicating that the hot and cold feeling in the foot had cleared up following treatment but that the pain continued. He detailed also the treatment that he had received from Mr Turner between May and September 1987. During the twelve month period in question between September 1986 and September 1987, the plaintiff gave a certain amount of assistance in the take–away business run by his wife at Invermay. They were partners in this business and it made a loss. It was plainly a business that was unable to produce an income that should be taken into account under the provisions of rule 3(1) of the First Schedule. However, the plaintiff claimed that in any event, "I couldn't do ...... a lot because I had to just keep going back and resting and putting my foot up because it would swell up." He said that he started to look for work. He did not specify when this occurred but he gave evidence that in April 1987, he secured three days employment at Longford for which he was paid $90. He secured two days work with Fraser Bros., wool carting for which he was paid $40 and he obtained a job as a book–maker's clerk for which he obtained $40. He was asked specifically how his leg felt after the day at the races working as a clerk and he said, "it swelled up, ached and really ached, because I was standing on the concrete from, I don't know, 11 o'clock in the morning until 5.15 in the afternoon." He said he applied for several other jobs at this time and he gave details of some of those applications. None of them was successful.

1. It seems to me that although the plaintiff was looking for work at this time, he was still physically disabled to such a degree that even if he had obtained employment it was unlikely that he would have been able to give proper service or satisfaction to any intending employer and, in all the circumstances it is, in my opinion, appropriate to conclude that the plaintiff's failure to earn monies during this period was a consequence of the partial incapacity produced by the accident.

1. In the result, therefore, I accept that the plaintiff was indeed partially disabled when dismissed by the defendants from their employment and that he continued in that state for a period of twelve months. The treatment that the plaintiff received to alleviate that partial disability was, in my opinion, both reasonable and proper. I accept that following his dismissal the plaintiff was able to earn the sum of $170.00 only and that the ad hoc assistance that he was able to provide from time to time in the partnership conducted by his wife, is neither capable of quantification nor, in any event, properly to be regarded as income earned by him during the relevant period.

1. Consequently, on the basis of the agreed figures contained in the Particulars, dated 26 August 1987, as amended, I find that he is entitled to weekly payments from 24 September 1986 to 24 September 1987, amounting to $21,055.07 less the sum actually earned by him, $170.00 viz; $20,885.07. I also find that the medical expenses listed in paragraph (b) were incurred by the plaintiff and, in particular, I find that Dr Jackson's expenses to the extent of $1,168.00 were reasonable. I also infer that the expenses in respect of Dr Batten, Dr Reddy, Mr Turner, Dr Jackson, Calvary Hospital and St. Johns Hospital were incurred in respect of treatment reasonably and properly given to the plaintiff as a result of his injury. However, in the absence of evidence as to how and when the plaintiff saw "A. J. McIntosh" "Rush, Taylor, Barr and Smith" and "Physiotherapy Sports and Injuries Clinic", I am simply unable to draw a legitimate inference that these fees relate to the plaintiff's injury at all. The same comment must apply to "Northside Physiotherapy", "Kevin Corby Pharmacy" and "Hobart Pathology". I am not prepared to allow these items. The total medical expenses allowed therefore amount to $6,804.80. Travelling expenses were conditionally agreed at $1,592.00 and consistently with my findings, they will be allowed at the sum of $1,518.00, being the amount claimed, less $74.00 for thirty–seven trips to physiotherapy. The final part of the claim is for 20% disability of the leg as a whole, pursuant to item 11, rule 5 of the First Schedule. In my opinion, the plaintiff clearly does not succeed in this claim. The unanimous view of all doctors who gave evidence and expressed an opinion on this aspect of the claim is that his current disability does not exceed 5%. As the sum of $1,548.36 was paid to the Public Trustee on his behalf in March of this year, representing a 5% permanent disability payment, he will recover nothing under this head in these proceedings. The plaintiff is therefore entitled to judgment in the sum of $29,207.87.