Lockwood v Workcover Corporation/Cgu

"The onus of proof is on the worker to establish that there was an injury suffered on 1 August 1990. The worker cannot on balance of probabilities support that he has a compensable back disability. This decision is based on factual and medical information to hand."

4 That as a statement of law in the first sentence is incorrect. The second sentence, although opaque really means that Mr McCulloch's opinion was that the worker's back disability was a manifestation of "normal degenerative change" (TB 33).

5 The actual date of injury is shrouded in mystery. The worker's claim form (ie 10 years after the event) nominated August 1990 or 1991.

6 The worker's statement (TB 60) nominated "towards the end of 1992 when an engine block was being removed from a car".

7 Mr Peter Richardson (to whom the worker was apprenticed) said in 1999 "It happened sometime in 1992 when he and the worker were shifting an engine block that was on the ground".

8 Dr Lovell the worker's GP has notes of a surgery attendance on 15 December 1992 (TB 53)

"Yesterday lifting for work (couch) has tried to lift à from Right posterior shoulder to lower Right chest. Treatment ray lamp. On examination tender paraspinal muscles movements painful but full right medial scapular border movements painful especially lateral flexion left and right ? presumption feet and ......"

27/5/93 2/52 lower back pain - today - pain upper thoracic - twisted at work - not lifting SLR 50 ml Voltarin. Difficulty in bending. Reflexes right para vent spasm."

"21/6/93 Lower back pain persisting especially when sitting, lifting no radiation.

9 Dr Lovell did not give evidence. No transcription of his notes was available.

10 Following the consultation of 21 June 1993 Dr Lovell referred the worker to Mr Kevin Whitford a physiotherapist. By a report of 28 August 2001 (TB 38) Mr Whitford said the worker gave him a history of:-

* Back Pain developed due to lifting at work over a one month period.

* Back pain generally in the lumbar area with some referral to buttocks.

11 Mr Whitford thought that the worker had a "musculo-ligamentous injury to L2-4 L>R facet joints due to lifting procedures at work".

12 Mr Richardson in evidence deposed that the worker after the lifting incident went on to light duties supervised by himself. These continued until the employer company went into liquidation in 1996.

13 No report of the incident was made at the time to WorkCover Corporation. The explanation being that a family company was involved and the worker's father did not wish to have a claims record. The respondent takes no point on late notification and nothing turns on this. I accept that Mr Lockwood senior and Mr Richardson knew of the injury and what happened thereafter was effectively entirely under the control of Mr Lockwood senior. He or the company paid the worker's physiotherapy expenses and the medical expenses.

14 Ascertaining the exact date of injury is made more difficult because the worker's unsophisication. His memory is not good. His did his best to give accurate evidence. Mr Coppola very properly did not attempt to impugn the worker's credibility. After all, he was giving evidence in 2003 of events that took place 10 years before and to which he apparently first turned his mind in 1999. That would have been a difficult task for any person of unimpaired memory but a particularly formidable task for this worker.

15 Mr Richardson gave evidence, and he was an impressive witness. He did his best to reconstruct the date of injury.

16 He was quite certain that there was an incident lifting a Camira engine block. "It weighs a lot - the worker complained of back pain not long after he shifted the block". Richardson was aware that the worker had suffered some form of injury (TB)(111). The worker went to the doctor the next day. The worker was kept doing things that he could manage."

17 When the worker was taxed in cross-examination with the different account given by him to that of Mr Richardson as to how the incident occurred ie was it lifting the engine block out of a car or shifting it on the floor, he deferred to Mr Richardson's account. He said that Mr Richardson had a better memory.

18 I find as a fact that the worker suffered an injury to his lower back in the course of his employment in late 1992 to mid 1993. I have reached this conclusion because:-

* The job he was doing involved shifting an engine block (the weight of which was between 100 and 200 lbs although no precise evidence of weight was elicited). Commonsense dictates that such a task is capable of causing a back injury to a young man aged about 17.

* He went onto light work immediately thereafter and continued on light work.

* The medical/physiotherapy notes between 25 May 1993 and July 1993 clearly established that the worker made complaints of low back pain.

19 The worker was examined on three occasions on behalf of the employer by Mr GAJ McCulloch. He found that the worker was partially incapacitated for his pre-injury work.

20 On the issue of causation he came to the view that the worker's current disability was simply natural lumbar disc degeneration. He reached this view because "I can really find no history or radiological finding that an injury has actually occurred" (TB 36).

21 A careful reading of Mr McCulloch's reports leads me to the conclusion that he was concentrating on the exact history of what occurred seven or eight years previously. He found the history that he had, was non persuasive as a causative factor. His interest in causation caused him to lose sight of the fact that the only problem with the work relationship was an incorrect date. He conceded at the end of his evidence when questioned by the Bench given a full history, and then referred to the medico-physiotherapy notes, allied to a description of how the incident occurred, and the circumstances of the alleged injury, he could not exclude that incident as a causative factor.

22 The respondent's case was twofold. Firstly, that I could not be persuaded on the balance of probabilities that the worker had established that he suffered an injury in the course of his employment that gave rise to his current disability. I have already dealt with that. In my view the evidence clearly establishes such an incident.

23 Secondly, that whatever occurred during the course of the employment the worker's current disability was due to degenerative changes in the back. For that proposition Mr McCulloch's views are relied upon.

24 I do not accept Mr McCulloch's views. In my opinion he had an incomplete history. He either did not know of the medical notes between May and June 1993 or if he did know, overlooked them.

25 It is not without significance that in 1993 the physiotherapist Mr Whitford diagnosed a "musculo-ligamentous injury to L2-4 L and R facet joints due to lifting procedures at work". This is not very far from the opinion of Dr Collin Mills which is that the worker suffers from "chronic mechanical low back pain" which Mr McCulloch agrees with providing that it is regarding as discogenic back pain.

26 Therefore I conclude that the worker has demonstrated on the balance of probability that he suffers from a disability in the lumbar spine and that disability arose from his employment with the respondent.

27 There are no duties suitable to the worker's physical condition have been supplied by the employer since it went into liquidation. The worker's partial incapacity should be treated as total. If authority for this were needed see Holden v Toll Chadwick Transport Ltd (1987) 8 NSWLR 222 and the authorities therein discussed.

28 At the end of the case Mr Coppola indicated that as the worker's statement indicated that he spends time in the Phillipines (where his father has relocated a manufacturing business) the Corporation sought to apply s 36(1)(g) of the Act ie "without the Corporation's consent resident outside the State or absent from the State for more than two months in any continuous period of 12 months weekly payments may be discontinued.".

29 I took the view that such an application made at the end of addresses without notice upon which there had been no cross-examination took the worker's advisers by surprise and to allow such an application to go forward would amount to denial of natural justice.

30 Mr Coppola with his characteristic graciousness agreed not to pursue that aspect of the matter until a later date.

31 By way of obiter I would have thought that if the worker was in the Phillipines prior to the determination of 9 April 2001 being made, the application of s 36(1)(g) could hardly be an issue.

32 If the worker was overseas after the rejection on 9 April 2001 and he was not receiving weekly payments - to hold that the section had retrospective operation as from some date when payments are made pursuant to my orders, would be strange indeed. That juris prudential conundrum can await its solution on another day if need be.

33 The determination is set aside. The Corporation should accept the claim. The respondent should pay the worker's costs.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.