Lynch v Chivers

[1990] TASSC 114

Serial No B37/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Lynch v Chivers [1990] TASSC 114; B37/1990

PARTIES:  LYNCH, Francis
  v
  CHIVERS, John Maxwell,
  trading as ACE APPLICANCE CENTRE

FILE NO/S:  WC137/1987
DELIVERED ON:  13 July 1990
JUDGMENT OF:  Cox J

Judgment Number:  B37/1990
Number of paragraphs:  19

Serial No B37/1990
List "B"
File No WC 137/1987

FRANCIS LYNCH v JOHN MAXWELL CHIVERS
trading as ACE APPLIANCE CENTRE

REASONS FOR JUDGMENT  COX J

13 July 1990

1. The plaintiff claims weekly payments of compensation under the Workers' Compensation Act 1927 in respect of an injury by accident sustained by him on 13 July 1984 arising out of and in the course of his employment with the defendants. The plaintiff had been employed by them as a mechanical serviceman for five years.

1. On the morning of the accident, he went with a co–worker to the home of a customer to collect a washing machine in need of repair. In the course of their carrying it down steps towards the vehicle provided by his employers to transport it to the workshop, there was a sudden shift in weight and the plaintiff felt severe pain in his lower back. He succeeded in loading the machine and returned to the workshop. During the course of the day the pain became progressively worse and after lunch he found difficulty in moving. He completed work at 5pm that day and over the weekend remained lying in bed or on a couch at home because of the pain.

1. On the following Monday, his general practitioner was summoned to the plaintiff's home.           The doctor arranged for the plaintiff to be admitted to St Johns Hospital and he was there seen by Mr Howard Bye, orthopaedic surgeon. He remained in hospital for a period of 10 to 12 days during which time his symptoms improved somewhat.

1. He was advised by his general practitioner to give up the kind of work he had been doing and to take on something lighter. In late August 1984, he resigned his employment with the defendant and commenced working on his own account as the proprietor of a small corner store selling take–away food. Thereupon his employers, who between the accident and that time had paid weekly payments of compensation at the appropriate rate, and had accepted responsibility for the payment of his medical and hospital accounts, ceased making weekly payments.

1. The plaintiff continued in business for about 14 months. Throughout this time he found difficulty in undertaking many of the activities required of him. These included stocking refrigerators with bottles and cans of drinks, bringing in cartons of milk and cleaning cooking apparatus. His work involved long hours and marital problems developed between him and his wife, culminating in a separation. The business furthermore barely broke even in financial terms.

1. In October 1985 he sold the business at a loss and applied for and was granted sickness benefits for about six weeks. He then obtained work as a taxi driver but after working for six days his back was so painful that he could not get out of bed and he resigned. He has not worked since.

1. His employers then resumed payment of weekly compensation. He endeavoured to obtain other work but without success. In September 1986 he and his wife, with whom he was now reconciled, moved to Dunalley and he continued his endeavours to procure work, without success save that he was able to make and sell children's furniture. The amount received was only a matter of a few hundred dollars.

1. On 14 August 1986 the plaintiff was examined in Melbourne by an orthopaedic surgeon, Mr A J Buzzard, on behalf of the defendants. On 30 October 1986 they made a final weekly payment to the plaintiff and then unilaterally terminated payment of the same. Early in 1987 his wife and he again separated and he moved to Risdon Vale where he took up residence with his daughter and her husband. Since then he has continued to seek work but without success.

1. The plaintiff claims, and I accept, that ever since his return to the work force in August 1984, he has suffered low back pain. He is not totally incapable of engaging in some work, but he is quite unfit for heavy work including the kind of work he was engaged in as an appliance serviceman. He is presently aged 51 and he helps his daughter with some household chores, he does a little gardening and walks four to five kilometres per day for exercise. He can play, within reasonable bounds, with his small grandchildren and do odd jobs around the place, including a little mechanical work on his car. He finds sitting painful for any length of time and likewise prolonged standing.

1. Mr Bye gave evidence that when he first saw the plaintiff on 17 July 1984, he appeared to be suffering with acute low back strain and was in considerable pain. He ordered bed rest, analgesics and physiotherapy in a hospital setting and was able to observe muscular spasm at the site complained of. After his discharge from hospital, Mr Bye saw the plaintiff in his rooms where he complained that any jarring of his back caused a stabbing pain again in his lumbar sacral spine which was made worse when he fully extended his back or hyper–extended his lower spine. The pain went into his right buttock and the front of his right thigh. By the end of August 1984 he seemed to be settling and there was a lot less spasm and he had no leg pain at that time. He was walking a lot easier and was able to sleep better. Mr Bye approved of the proposal that the plaintiff should change his job and embark upon the venture of selling take–away food. He next saw him on 29 October 1984, when the plaintiff was still having troubles, complaining of soreness and aching in the lower lumbar sacral spine. His legs were normal, but he was tender in the low part of his spine. In November that year, he found the plaintiff a little worse and suggested that he use a brace. By December he seemed a lot happier with the brace and Mr Bye was hopeful that the combination of the brace and lighter work, plus the passage of time, would improve the condition of his back. In December of 1984, Mr Bye was still of the view that the plaintiff was unfit to resume his former work. He did not see the plaintiff until March of 1990 as he was referred by his general practitioner to the late Mr Graeme Duffy, a neurosurgeon.

1. On 30 March 1990, Mr Bye examined the plaintiff who claimed there was no change in his condition since the end of 1984 and continued to complain of low back pain at the belt line. He said that he could do most things for short periods of time, but if he tried to do too much then he developed pain at the belt line, radiating into his right groin and buttock. If he lifted any heavy things he had to take it easy for a couple of hours. Mr Bye's examination of the plaintiff was a little difficult as the latter had recently undergone a hernia operation but making due allowance for that condition, Mr Bye felt that his spine was stiff and that the stiffness was due to the condition of his lumbar sacral spine, rather than any effects of the hernia operation. X–rays taken at Mr Bye's direction revealed moderate, but very widespread arthritic changes in his lumbar sacral spine which were fairly bad at the top part and moderate at the low bottom part. He was of the view that the osteoarthritis was continuing to develop and had probably been started by the incident. He thought the plaintiff would be very foolish to resume work involving the lifting of washing machines and other similar appliances. He did not consider him fit for any heavy work. Asked to assume an asymptomatic lower back immediately prior to the accident in 1984, Mr Bye said that given the amount of spasm he had observed at that time, the plaintiff had probably ruptured some of the little ligaments supporting the low part of his back, that part then becoming arthritic with his genetic predisposition to such changes and the kind of work he had been doing. He considered that the incident had tipped the balance to hasten the onset of osteoarthritis in the plaintiff's back.

1. Mr Duffy's reports were admitted by me pursuant to the provisions of s81D of the Evidence Act 1910 although the defendants' counsel objected to the adoption of this course. Mr Duffy first saw the plaintiff on 3 May 1985 and then found quite marked restriction of lumbar spine movements and tenderness to palpation in the lower lumbar spine. An x–ray and CT scan conducted at that time confirmed osteophytic lipping and degenerative changes with some bulging of the 34 and 45 discs, but with no evidence of nerve root compression. On the history which the plaintiff gave Mr Duffy, that is that he had not suffered any significant back problems prior to the injury ten months previously when he was lifting the washing machine, Mr Duffy thought that the persistence of his symptoms could be attributed to that injury even though there were pre–existing degenerative changes in his back. He did not feel, apart from symptomatic treatment, that further investigation or consideration of surgery was indicated, but felt that it was important that the plaintiff should limit his activities to avoid heavy work. Mr Duffy did not believe that he was medically fit to continue the take–away food business and advised him to dispose of it.

1. In July 1985 the plaintiff was continuing to complain of back pain, right buttock pain and pain into the right groin and down into the right leg. Mr Duffy arranged for myelograms which revealed that at the lumbar 4 level, there was some asymmetrical disc bulging on the left side causing some minor deformity of the thecal sac. The L45 level showed no significant abnormality and Mr Duffy felt there was no place for surgery. He next saw the plaintiff in August 1987 when he still complained of symptoms. He had grumbling pain low in his back which tended to radiate towards the right leg, pain in the right hip occasionally radiating into the right testicle and he noticed occasionally a burning sensation in the right big toe. He appeared rather depressed at the time of the examination but was able to move freely and dress and undress without difficulty. Mr Duffy was of the opinion that the plaintiff was suffering from genuine symptoms of low back pain which limited his ability to undertake heavy lifting or work entailing repetitive back movement. On the history as given to him, he attributed that to the work injury in 1984. He acknowledged that the plaintiff has a degree of spondylytis in his spine but noted that this was said to have been symptom free prior to the injury in 1984 and that the plaintiff had been consistent in his complaints of symptoms since the time of the injury. Having read a report from Mr Buzzard who had by now examined the plaintiff in Melbourne, Mr Duffy said that he did not agree that the physical findings were completely normal and that the fact that there were no outstanding or gross physical signs did not mean that Mr Lynch's complaints were not genuine. In a final report of 9 May 1989, Mr Duffy said that after further examination that day, he found no reason to change his previously expressed opinions that the plaintiff suffered from what he believed to be genuine ongoing back pain and on the history as Mr Duffy understood it, he attributed his present disabilities to the work injury in 1984.

1. That the plaintiff has chronic back pain is further corroborated by a report tendered by consent from Dr Frank Meumann of the Risdon Vale Community Health Centre confirming that the plaintiff had consulted him about chronic back pain on 9/12/88, 14/12/88, 4/1/89, 15/2/89, 20/2/89, 3/4/89, 1/6/89, 2/8/89, 2/10/89, 30/11/89, 30/1/90 and 7/3/90. The treatment prescribed had been weight reduction (the plaintiff has lost 16 kgs since the accident) dolobid tablets, panadene forte tablets, prothiaden tablets and temazepam capsules.

1. The defendant called Mr Buzzard who in addition to his examination of the plaintiff in Melbourne in August 1986, conducted an examination that day in a room in the court building. On the first occasion he had reported in substance as follows:

"On examination I found him to be a fit looking man who dressed and undressed with no particular difficulty using both hands normally. His pulse and blood pressure were normal. On examining his head and neck there was a full range of movement of the cervical spine. There was pain on movement of it. On examining his chest and cardiovascular system and abdomen, no significant abnormalities were noted and on examining his back there was no tenderness in the back. The patient was able to sit at right angles on the examination couch with no particular pain. The straight leg raising tests were negative. He was able to touch his toes with apparent ease. On examining his extremities both arms were equally and normally developed by measurement. There was callousing in the palm of the left hand. There was a subungual haematoma of the right thumb which he said was due to jamming it in a door. No other abnormalities were noted. His central nervous system was normal to gross examination.

The history given by this man is consistent with a disc prolapse giving rise to sciatica. In particular I draw your attention to the aetiology of the patient's pain and the fact that he claims that his pain is aggravated by sneezing. It would appear that he has been told by Mr Duffy that he does have a bulging disc which is pressing on a nerve. This appears to be inconsistent with the comments made in Dr Dahloe's report and that of Mr Duffy. It would appear that the patient has had two CT scans and a myelogram which have been essentially normal. I would stress that bulges of disc are normal. The combination of such investigations is such as to reasonably exclude significant disc pathology though some would hold that discography would be an additional investigation and would be reasonable. In this man I draw your attention to the normality of the clinical examination of the findings in relation to this man's back. Taking this clinical normality along with the apparent normality of the above mentioned investigations yet to be seen by me, I must therefore conclude that this man is not suffering from a significant problem in relation to his low back and therefore his symptoms in relation to his low back are functional. I would next draw your attention to the patient's marital disturbance. This would appear to be the context in which functional overlay could well develop."

1. After his examination on the day on which he gave evidence Mr Buzzard said:

"I have no doubt that he does have symptoms. I feel from what I have seen of the x–ray reports and what I have seen on the clinical examination of this man, that although he has arthritis of his spine, he would be capable of returning to full work, including the work of a washing machine repairman, but in the process of so doing, because he has been away from work for such a long period of time, he could not go back to it heavily immediately. He would have to go back to it in a light duty fashion."

1. In cross–examination Mr Buzzard said that in retrospect he now did not think that the plaintiff had had a disc prolapse and that he did not think he had had anything other than a strain to his back at the time of the accident at work. He said that he would have expected such a ligamentous type strain to have resolved itself within two months of the incident at work and acknowledged that it followed from this that it was a matter of coincidence that the symptoms of pre–existing but progressing osteoarthritis commenced to take over within a period of no more than two months following the date of the accident, because by then he would have made a full recovery from his sprain or strain. While apparently prepared to dismiss as insignificant the fact noted by Mr Duffy that there was some bulging of some of the discs, Mr Buzzard had not seen the x–rays and was not aware of the extent of bulging save that it did not, according to Mr Duffy, cause any nerve root compression. When asked whether he conceded that if the plaintiff had not had this incident it is possible that he might have continued to have degenerative changes in his back which remained asymptomatic, this exchange occurred:

"AI think it is unlikely because the natural history of degenerative disease is one of relentless progression.

QBut there are many people who suffer these changes isn't that so?

AYes.

QBut who by some stroke of good fortune do not suffer any symptoms?

AYes. But the natural history still remains as I have said, that is that the thing will get gradually worse and most people will have more and more symptoms as they continue on getting older."

1. I found Mr Bye's evidence and opinions more persuasive than those of Mr Buzzard. I am satisfied that whatever the precise pathology of the incident at work, it was the cause of the plaintiff's degenerative condition becoming symptomatic a situation which might not otherwise have eventuated for many years to come. I also reject the suggestion that the plaintiff is fit to resume work as an appliance serviceman, lifting heavy and bulky equipment. Even on Mr Buzzard's evidence he is not and never has been, fit to resume such work and would require light duties in that industry to make himself capable of doing so. There is no evidence that the defendants ever offered to re–employ him on that basis and none which suggests that any other employer would be prepared to accept the plaintiff on that basis. Such partial capacity as the plaintiff has (if partial it is) is illusory. It is of the kind contemplated by r3 subr(2) paraf of the First Schedule to the Act and should be treated as total incapacity.

1. In my view the plaintiff is entitled to the balance of the weekly payments claimed by him which I understand from the pleadings to be $22,811.45.