Diosdado Sayseng v Kellogg Superannuation Pty Ltd & Anor

Background 9 The plaintiff was born in the Philippines on 22 December 1948. After finishing high school he attended the Philippines College of Arts and Trades during 1967 and 1968. He left to assist his parents in the conduct of their grocery store. Between 1970 and 1972 he was employed as an apprentice sign writer, and from 1973 as a labourer/machinist by Standard Fans, a manufacturer of fans. Although without qualification, he was employed by Well Built Constructions between 1975 and 1976 as a model maker and draftsman. Subsequently he resumed working in his parents' store. His duties included buying goods in the markets, and assisting his parents as required. From about 1979 to 1988 he was employed by Fil-Asia as a draftsman, and developed his skills on the job. 10 On 18 January 1973 the plaintiff married his wife, Teresita Sayseng. They have three adult children. 11 In 1988 the plaintiff came to Australia as an immigrant, and on 30 March 1988 applied in writing to Kellogg for factory employment. He commenced working for Kellogg on a casual basis in about April 1988, and on a full-time basis in December 1988 as a machine operator. On 16 December 1988 he applied to be admitted as a member of the fund, and was treated as having joined it on 9 January 1989. In December 1989 he was promoted to leading hand, and when that position was abolished in 1994 he was reclassified as a machinist. 12 The plaintiff continued employment with Kellogg until he applied in writing for voluntary redundancy on 9 September 1998, accepted redundancy and finished work on 21 September 1998. On 18 October 1998 the plaintiff lodged an application with the trustee for disability benefit on the basis that he was totally and permanently disabled as a result of low back problems which had developed since about January 1996. Both the trustee and the insurer rejected the claim. The insurer rejected the claim on 27 April 2000, and the trustee rejected it on 9 April 2001. 13 The plaintiff has not worked since the termination of his employment with Kellogg. For some months afterwards, until the end of 1998, he looked for work through employment agencies, including Centrelink. He also applied in writing in response to newspaper advertisements for process workers and machine operators. His attempts were unsuccessful. 14 His time is spent at home. He suffers from constant low back pain of fluctuating degree with associated lack of flexibility in movement. His ability to carry out ordinary domestic activities including cleaning, gardening, and shopping is very limited, as is his ability to walk, drive, and to lift objects. Pain and discomfort interrupt his sleep. He takes a variety of medication including Tramal, an analgesic, and Mobic, an anti-inflammatory medication. Education, training and experience 15 The plaintiff commenced working for Kellogg on a casual basis in about April 1988, and on a full-time basis in December 1988. He was trained on the job as a machine operator to operate a machine which filled packaged cereal boxes. He was required to lift boxes containing 110 flattened cardboard boxes, and to load them onto a machine which filled them with cereal. The weight of the boxes and other loads in the process varied from about 12-18 kgs. Loading was rapid and repetitive, and involved continuous bending, lifting to about chest level, carrying and twisting. He also managed the progress of sealed cases of cereal products along a conveyor belt, which involved bending and lifting. 16 The plaintiff worked a lot of overtime. Usually he worked 12 hour shifts, with three half hour meal breaks, and averaged 48 hours per week. During product changeovers, (e.g. from Cornflakes to Sultana Bran) he was required to lift and carry tubs of excess cereal for dumping into a container. The tubs weighed between about 15-20 kgs. 17 The plaintiff was promoted to leading hand at about the end of 1989 and worked as such for about four years until the position was terminated. He then returned to work as before. The physical demands upon him were substantially the same throughout. The injury 18 In June 1996 the plaintiff complained of low back pain. Following x-rays, Dr Cooke, radiologist, reported on 24 June 1996 a mild scoliosis which might be due to muscle spasm and a bony stress reaction at the sacro-iliac joints. The plaintiff continued to work with intermittent low back pain on a daily basis. He next consulted his general practitioner, Dr Esplago, on 15 August 1997 complaining of low back pain after prolonged hours at work. A CT scan of his lumbar spine was carried out by Dr Lim who reported, on 22 August 1997, that there was a disc herniation at L4/L5 resulting in relative spinal canal narrowing, and generalised bulging of the nucleus pulposus at L3/L4 obliterating the epidural fat. 19 On 25 August 1997 the plaintiff was referred to Dr Robin Mitchell, a specialist rehabilitation physician retained by Kellogg to design and manage rehabilitation programmes. The plaintiff attributed his symptoms to manual handling at work. Dr Mitchell found the plaintiff to have significant low back pain, and clinical signs of a lumbar disc lesion consistent with the CT findings. He considered him to be currently unfit for work. 20 On 5 September 1997 Dr J S Compton, neurological surgeon, reported to Dr Esplago on his examination of the plaintiff. The plaintiff complained to him of low back pain for more than one year which he attributed to heavy lifting at work as a machine operator. Dr Compton's view was that the CT scan was certainly suggestive of disc prolapse with nerve root compression, and that it was probable that he would require surgical treatment for its resolution. On 19 September 1997 Dr Esplago noted that the plaintiff was much improved and able to tolerate more movement without much pain, and that he had been helped by physiotherapy. His view was that he was fit to start on a programme with the rehabilitation officer at work but on restricted hours, namely four hours with regular breaks. He thought it was too early to determine whether a permanent impairment had been sustained. 21 On 29 September 1997 the plaintiff commenced work under a rehabilitation programme for four hours a day on light duties subject to instructions which required frequent posture breaks, avoidance of bending or twisting, and with lifting limited to 5 kgs. He continued to do so until certified unfit on 11 December 1997. For many days during October and November 1997 the plaintiff was found to be unfit for work. Details of the programmes are contained in the Workplace Rehabilitation Plans (Ex C). Many of the plans included the following statement: "The purpose of the rehabilitation program is to facilitate your safe and productive return to the workplace. While the Company will help to secure that outcome, if the objectives of a return to work program cannot be met, for whatever reason, the Company may terminate employment following the provisions of part 7 of the New South Wales Industrial Relations Act 1996. Unless stated otherwise, the objective of all programs is to return injured employees to normal pre-injury duties". 22 Dr Mitchell next saw the plaintiff on 9 October 1997. He reported that the plaintiff had managed the four hour rehabilitation programme for the first two days, 29 and 30 September, but increasing pain prevented attendance between 1 and 6 October. He worked on 7 October, but left work next day because of pain. It was noted that although there was little pain in the morning, it would increase considerably after two hours of work. Although straight leg raising was full at 90 degrees, there was considerable muscle spasm with high level of low back pain experienced. Dr Mitchell found the absence from work to be not unreasonable, and that a gentle rehabilitation programme, working for four hours, could be resumed on 13 October 1997. 23 Dr Mitchell next saw the plaintiff on 31 October 1997. He commented that the plaintiff was fit for the current programme with certain restrictions, including regular mobilisation during the day. He noted the need for medication to control and relieve pain. The plaintiff was seen again on 7 January 1998 whilst off work. Following an examination which included full straight leg raising, it was considered he was making good progress. 24 The plaintiff was referred by his general practitioner, Dr Tablante, to Dr Giblin who first attended him on 11 December 1997. Dr Giblin found his symptoms compatible with the stenosis shown by Dr Lim's CT scan of 22 August 1997. He certified that the plaintiff should cease rehabilitation until further notice. Examination of the plaintiff's legs showed no evidence of neurological involvement in his lumbar spine. His assessment was that pain came from the point at L4/L5 without any nerve impingement, and found that focal pain and inability to extend the lumbar spine was consistent with the radiological findings. Dr Giblin said that the pain was produced by the bones pinching together, and from the soft tissues being stretched by the disc prolapse, and the inherent inability caused by the disc. 25 On 13 January 1998 the plaintiff underwent an MRI scan of the lumbar spine. Dr R Shnier's report disclosed that the invertebral discs at L3/L4 and L4/L5 were desiccated, and that at L3/L4 there was degenerative disc bulging and at L4/L5 a disc protrusion causing narrowing of the spinal canal. 26 On 21 January 1998 Dr Kerr reported on a CT lumbar myelogram for the plaintiff which showed diffusive bulging of the L4/L5 disc but no definite evidence of nerve root compromise. 27 Dr Giblin saw the plaintiff again on 19 and 22 January 1998 when there was no improvement. On 3 March he found some improvement, and certified the plaintiff fit to attempt restricted duties on 9 March 1998. 28 The plaintiff returned to work under the same rehabilitation programme on 9 March 1998 and continued on light duties until employment terminated on 21 September 1998. During the period the shifts increased gradually from four to 12 hours, and the weight limit increased from 5 kgs to 6 kgs. In evidence (Ex D) was a daily progress monitoring sheet for the period 12 March - 17 September 1998, which was completed by the plaintiff each hour of the working day. It recorded, inter alia, a description of the difficulties, and the degree of pain, experienced. It evidences that the plaintiff suffered constant pain of varying degree, and stiffness, in his low back which he relieved by stretching exercises. 29 Mr D Brown, occupational psychologist, assessed the plaintiff for Kellogg on 6 March 1998. He described the plaintiff as not an assertive person with a risk that he would not deal with mounting issues until he felt totally unable to continue. He noted the plaintiff's lack of tolerance for sitting, which suggested that after the 45-minute drive to work he did not arrive "… in the best possible condition". He saw him again, at work, on 4 June 1998. He noticed that the plaintiff had difficulty in carrying out the duties assigned to him, and in working at the pace required. He noted that the plaintiff was not familiar with the methods required on the bulk line and the packing line. He recommended further training and supervision to achieve a better result. Mr Brown's impression was that the plaintiff had found a level of "tolerable discomfort", and suggested he be trained to use recommended work methods, and to use his own pain level charts "… to prove to him that the work he is doing is not making him worse". He commented that if these were done "… (Kellogg) will at least have a chance of increasing his duties to a more normal level". 30 On 14 April and 1 June 1998 Dr Giblin found the plaintiff to be suffering from persisting mechanical back pain being the soft tissue and arthritic pain of which he had always complained. On 1 June 1998 he advised the plaintiff that unless he had long term light duties he would have to cease work. 31 Dr D M Salmon first saw the plaintiff on 1 June 1998 and commenced a programme of pain management which included medication. On 22 June 1998 he performed a lumbar facet nerve block without significant relief. On 28 July 1998 he administered a lumbar epidural steroid injection which reduced lumbar pain levels. On 3 November 1998 he found the plaintiff was experiencing less leg pain and was able to walk. 32 Dr D Bornstein, orthopaedic surgeon, saw the plaintiff on 11 June 1998 for Kellogg's workers' compensation insurer. He examined the plaintiff and viewed the radiological reports. His opinion was that the plaintiff had a degenerative and bulging disc at L4/L5 with which his symptoms were consistent. He stated that the plaintiff was not fit for the work he was doing. His opinion was that the nature and conditions of his employment had not caused, but had exacerbated, the condition. He said that the plaintiff will never be fit for heavy manual work, and for "bending/lifting/carrying type work", and that anything which involves bending/lifting was reasonably inappropriate and likely to lead to an increase in symptoms. He thought that he would never get back to packing line operating on a full-time basis but would be able to carry out light duties. Dr Bornstein said that the plaintiff would continue to have problems with his back indefinitely, and could suffer sever recurrences of pain from time to time, and it would be prudent to alternate standing, walking, sitting, and posture as much as possible. He thought it would be more appropriate to maintain him on permanent light duties. 33 On 14 September 1998 Dr Gray reported on a CT scan for the plaintiff which showed a moderate broad based bulging of the L4/L5 disc, and canal stenosis, but no direct pressure on the nerve roots. 34 On review on 17 February 1999, Dr Salmon found no significant change in pain levels, and noted that the plaintiff complained of left low back pain but not of leg pain. He noted that the plaintiff was attending a CRS retraining programme in jewellery sorting. On 29 April 1999 he noted the retraining did not proceed, and that the plaintiff's situation was unchanged. On 20 July 1999 medication was prescribed for pain related sleep disturbance, and lumbar pain which was exacerbated on turning. 35 Dr J G Bodel, orthopaedic surgeon, examined the plaintiff on 25 February 1999 for the workers' compensation insurer. The plaintiff reported constant back pain which was aggravated by prolonged sitting, bending, twisting or lifting, and intermittent leg pain worsened by prolonged standing or walking. Dr Bodel's opinion was that the plaintiff suffered from mechanical back ache with disc disease at L4/L5 with an element of vertebral canal stenosis. He found the plaintiff to be unfit for his pre-injury work, or any other work which required unprotected bending, twisting or lifting. He said he may be able to tolerate part-time light duty work where he could change position frequently and avoid lifting more than 10 kgs. He said that, overall, the prognosis was guarded and the plaintiff may have great difficulty in returning to work. 36 Dr W H Wolfenden, neurologist, saw the plaintiff on 1 April 1999. His view was that the plaintiff had considerable damage to his L4/L5 disc which was irritating sciatic nerve roots and producing sciatic pain in both legs, and was attributable to employment conditions between 1988 and 1998. He said he was totally unfit for work, and certainly not fit for any work involving bending and lifting. He thought he would be unable to find work anywhere, that the prognosis was poor, and he would always have a bad back. 37 In his report of 13 October 1999 Dr Giblin stated his opinion of the plaintiff's ability to work based on the abovementioned attendances. He said that the plaintiff appeared to have a work related soft tissue injury to his low back, with a guarded prognosis for the short, medium and long term. In his opinion the plaintiff should be considered as fit only for light duties, avoiding heavy repetitive bending, lifting and twisting and prolonged periods of uninterrupted sitting and standing. His view was that the plaintiff was permanently unfit to do his normal job as a packing machine operator on a full-time or part-time basis. 38 Dr P D Funnell, a specialist in rehabilitation medicine, examined the plaintiff on 12 January 2000. The plaintiff described constant pain over his low back which was aggravated by sitting or standing for more than 30 minutes, and by twisting his back to either side. He said he was unable to do more than very light physical activity. From the radiological investigations, Dr Funnell observed some narrowing of the spinal chord at L4/L5 disc which, together with the disc bulge, could predispose him to the condition of central spinal canal stenosis. Dr Funnell's view was that neither the radiological investigations nor his findings on clinical examination supported the plaintiff's claims of pain, and that he reported pain at times when, in his view, it should not have been present. After interview and examination, his opinion was that the plaintiff had suffered a minor injury which should not have rendered him totally unable to work. He could see no reason why the plaintiff should not return to his previous full-time employment as a machine operator to do manual handling work limited to 15 kgs. 39 In cross-examination he accepted that the plaintiff's injury was of a kind which waxes and wanes from day to day. He did not have Dr R Shnier's report of 13 January 1998 of an MRI scan. Dr Funnell agreed that for identification of disc structure a MRI scan was superior to a CT scan, and found it important that the MRI scan did not reveal impingement of the nerve roots. His overall view was that there was some narrowing of the spinal canal but not enough to compress the nerves. He accepted that the plaintiff's record of constant pain experienced during the last six months of employment was consistent with the findings of the MRI scan. Nevertheless, he considered the plaintiff to be fit for office work involving sitting and standing, and the ability to change posture freely as required. He said (T p 108): "My assessment … was a physical assessment of this gentlemen in terms of the physical capabilities and possible impairments related to his back injury. I would recognise that, at his age, with his social and cultural background, it would be no easy thing to achieve employment in those areas but, in terms of his back injury, that didn't prevent him from pursuing those occupational roles." 40 Dr A J Bookallil, neurosurgeon, saw the plaintiff at the request of Kellogg's workers' compensation insurer on 15 June 2000. In his report of 19 June 2000 he stated that the radiological investigations showed that the plaintiff suffered from chronic disc degeneration of L4/L5 with a disc protrusion and mild lumbar canal stenosis. He did not doubt the plaintiff's history of continuing increasing pain in back and legs which worsened with standing, walking, or sitting, was consistent with the radiology. 41 Dr Bookallil's opinion was that the injury was due to heavy work and, although there was not a specific incident, during 1996 the plaintiff developed increasing back pain which ultimately resulted in him stopping work. He did not believe the symptoms were due to any pre-existing problem. His assessment was that the plaintiff's ability to lift, carry, and sit was impaired, and that he had difficulty with walking any distance. In his report of 19 June 2000 Dr Bookallil stated his opinion as to the plaintiff's fitness for employment thus: "Mr Sayseng is unfit for full duties and if he did go back to work, he could not do heavy work. He would be advised to avoid heavy lifting and carrying. He would be fit for selected duties if it did not involve any lifting or carrying. He would be fit for a sedentary job." 42 He went on to say that the plaintiff was capable of performing some duties although he would not be able to do the heavy work that he had been doing at Kellogg's, and should avoid heavy lifting and carrying. He did not indicate the nature of the duties to which he referred. His prognosis was that it was likely that the plaintiff's symptoms will persist into the future.