Worker Awarded Compensation for Permanent Loss of Left Hand

The Court awarded weekly compensation and a lump sum to the worker for permanent loss of use of the left hand after the employer failed to secure insurance coverage. The Court exercised its discretion under s145 of the Workers Compensation Act 1987 to order the employer to repay the Uninsured Liability and Indemnity Scheme for compensation paid to the worker.

Reported Decision : 23 NSWCCR [ADDRESS] of New South Wales

CITATION : [NAME] v [COMPANY] and [NAME] Authority of New South Wales [2002] NSWCC 10 [NAME] PARTIES : [COMPANY] [NAME] Authority of New South Wales MATTER NUMBER(S) : 39992 of 2000

JUDGMENT OF: Wright C at 1 Assessment of Compensation - Entitlements & Liability :- uninsured employer CATCHWORDS: failure to undertake medical treatment whether refusal to undergo operation unreasonable power to determine questions of repayment of compensation by an uninsured employer under s145 LEGISLATION CITED: Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 CASES CITED: [NAME] v. [COMPANY] (1982) 150 CLR 345 24 May 2001 DATES OF HEARING: 22 October 2001 11 February 2002 DATE OF

JUDGMENT: 02/28/2002

FOR APPLICANT: [redacted] LEGAL REPRESENTATIVES: FOR FIRST RESPONDENT: [redacted] FOR SECOND RESPONDENT: [redacted]

JUDGMENT:

1. The applicant was a worker aged 17 years when employed by a [COMPANY] operated by [NAME] in 1997. On 17 February he suffered a left index finger injury, diagnosed as a compound comminuted fracture of the proximal phalanx, when it was caught in a spindle machine.

2. The worker underwent a number of surgical procedures. The finger became infected. A small bony sequestrum was removed. Then followed a surgical arthrodesis of the PIP joint and the removal of a pin that had been earlier affixed.

3. There are claims for payments of weekly compensation from 18 March 2000 to date and continuing, and for lump sums under s 66 and s 67 of the Workers Compensation Act 1987 for permanent losses of use and for pain and suffering. The worker apparently received weekly payments of compensation until 17 March 2000 from the Uninsured Liability and Indemnity Scheme ([NAME]).

4. The [NAME] Authority has been joined to permit the worker to recover any further payments from the [NAME] The respondent employer did not have insurance at the date of injury. The Scheme seeks to recover any compensation and costs paid or payable from the uninsured employer. The employer seeks to have the Court exercise a discretion under s 145 of the above act to order that there be no repayment by the employer to the [NAME]. The first respondent during the proceedings sought to join [COMPANY] (under s156A Workers Compensation Act 1987) to gain relief from any liability as an uninsured employer. It alleged that there had been misleading conduct by Mr [NAME] of that company as an insurance intermediary. However a corporations search revealed that the [COMPANY] had been deregistered in 1999 and this action was not available to [NAME].

6. A threshold issue was whether the worker has unreasonably refused to undergo medical treatment in the form of the amputation of the affected finger. There was argument about whether such a failure might constitute a novus actus interveniens or be a failure to mitigate loss.

7. There was also a question whether the worker had failed to submit to a work trial with [NAME] and was in breach of his obligations under the Act. Evidence of the Applicant and some background Facts 8. [NAME] was born on [DATE] and left school at the end of Year 10. Prior to that time he had worked casually for [NAME]. He commenced an apprenticeship and had been working with Llandilo for some 8 months or so before injury. 9. [NAME], plastic surgeon, initially treated his hand with soft tissue debridement and repair and insertion of two k-wires. After infection the finger needed antibiotic therapy over several months. On 14 October 1997 the worker was again admitted to hospital for an exploration of the finger, during which the small bony sequestrum was removed. After this procedure the infection ceased and a surgical arthrodesis of the PIP joint was undertaken on 25 November 1997. The pin fixation was persisted with for a longer period, according to [NAME], plastic and reconstructive surgeon, because of the reduced bone stock. X-rays on 27 February 1998 showed that the arthrodesis had been successful and the pin was removed on that day.

10. In early -------2000, the worker was referred to [NAME] for work assessment. He was given a work trial with [NAME] from February 2000, apparently after the involvement of [NAME]. A number of rehabilitation reports were tendered. The worker claimed to have a lot of pain in the finger and in the arm when he started the work trial. At the time he was taking Panadeine Forte for pain and Zoloft for stress. The work trial involved duties such as sweeping, hammering and chiselling. He saw a psychiatrist [NAME] for emotional problems when he was doing his work trial. There were emotional problems with the damage to his finger, the jeopardising of his career choice of carpenter and the choice about amputation or not. He did not continue with the work trial because the pain got to me that badly I couldn't touch anything with my left hand because my whole arm started to hurt and … couldn't keep it up.

11. There was some initial difficulty in reaching firm conclusions about the quality of the worker's evidence. He is a young man with emotional problems. He only has a basic understanding of the English language. There were a number of instances where the meaning of fairly commonly used words eluded him. I do not think that these were either instances of an inability to concentrate on the question or a feigned response.

12. There were several areas of dispute, namely the extent of the pain suffered by him, the effect that such would have on his employability and whether the recommended course of medical treatment, more particularly the refusal to have his finger amputated, was unreasonably refused. 13. [NAME]'s evidence of the levels of his pain experience in recent times and of his ability to carry out particular types of work was not clear cut. His basic claim is that, since early 2000 when he undertook the work trial, his finger pain on a scale of one to ten (with ten being the worst) has been no less than eight without medication and no less than five out of ten with medication. The pain went into the arm at least 50 percent of the time. The nature of the pain never changed and it was there every day. He denied misrepresenting the grip strength of his left hand.

14. The worker was certified fit to return to suitable work in March 1998 after he had been assisted by the rehabilitation personnel. At that time he thought that he was fit for light duties.

15. He had found the tasks allocated to him during the work trial (including assisting with staircase construction) to be easy. He said that he could not use his left hand "at all". He described the tasks as "only sweeping" at one time. He nevertheless ceased that work because of pain in his finger that extended to the forearm and the whole arm periodically. [NAME] had a number of days off work due to the level of his finger pain but also because of other unrelated ailments. He told either [NAME] of the company or his case officer, [NAME] from [NAME], of the reasons when he could not attend work but this was not the full story. He could not remember [NAME] telling him he was pleased with his work. [NAME] had called in for periodic visits to check his progress.

16. He had hand therapy with [NAME]. He agreed that such advice and therapy was helpful as it taught him to use his hand but not the affected finger.

17. When he saw [NAME], who had taken over after Ms [NAME], he was proceeding with his studies and still had the desire to finish his apprenticeship and pursue employment as a carpenter. He had finished two years' successful study before he went into custody on remand. At TAFE he was able to do a two-handed lift to put timber in a vice, but he could not operate power tools. He had operated an electrical tool in the right hand with material fixed firmly in the vice. He was able to handle tools with both hands some of the time. He could hold a chisel steady with the other digits of the left hand. He had complained to [NAME], who had been his instructor at TAFE in 1999, both of his pain and of his inability to complete some tasks. He denied stopping his activities when [NAME] entered the classroom. 18. [NAME] denied that he had missed any arranged appointments for vocational assessment. He could not remember receiving any correspondence from [NAME] at his home address in late 1999 and early 2000. It transpired that he had fathered a child by a young woman in the Wollongong area and had travelled to that area to see her and the child. The child who was born in the first half of 2000 died seven months later. He had not told anyone of this involvement. When this was revealed, he agreed that he had ceased the work trial so he could go to Wollongong. He had agreed with the rehabilitation and [NAME] people that he would do part-time light work from 28 February 2000. He then said that he did not use a hammer and chisel or an electric nail gun. [NAME] had shown him around the factory. He denied using both hands to lift materials in the early days.

19. Interestingly the worker claimed that he could not tolerate any examiner touching his index finger or using that finger for any normal use. He became habituated to using the middle finger and the thumb for gripping purposes.

20. The [NAME] raised the question of amputating the affected finger. The worker said that he opposes this. He does not like the look of his misshapen index finger. He thinks about his problem constantly. He does not like people asking him about his finger. He acknowledged that first [NAME] and then [NAME] had advised him about the benefits of amputation. He had wanted to save his finger rather than having it amputated. He understood that there would still be pain experienced after amputation, although there would be much improvement. 21. [NAME] has continued a TAFE course in carpentry, with the wish to finish the course. He wishes to be a carpenter and joiner. He has had no paid work since the work trial. Unfortunately on the last scheduled hearing date the worker, had been sentenced to gaol.

22. Before his injury the worker was engaged in tai-kwan-do and played soccer and rugby with his friends. He helped his father mow the lawns and tended a greenhouse growing cucumbers. He can play soccer but avoids activities which might cause him to bump his finger. That finger appears as a fixed flexion deformity with scars on the dorsum of the finger. 23. [NAME] claimed that, after he had ceased the work trial, he had genuinely desired to find work. He made one application over the telephone for "computer work" although he did not have any relevant experience, and he could not remember when this was. He had also sought part-time factory work a "couple" of times but he could not remember when. He had telephoned several contacts after perusing newspapers. He agreed that he only ever wanted to be a cabinet maker/carpenter. He agreed that he was capable of doing some light cabinet making work. He agreed that after May 2000, at the finish of the work trial, he had been in trouble with the police and even before he was placed into remand in September 2000 he had served some weekend periodic detention. Lay Evidence from the Respondents 24. [NAME] called three witnesses to shed light on the abilities of the worker and the work that was arranged for him in the trial period.

25. In 1999 the worker was a student in the stage two practical and theory class of [NAME], a licensed builder and TAFE carpentry and joinery teacher. [NAME] observed the worker using an array of hand tools, the majority of which required two-handed involvement. He thought that the worker "would have" used power tools during the course, probably a drop saw and a router. About six to seven weeks into the course, [NAME] asked to be allowed to observe the worker's practical class. [NAME] had not previously seen any obvious disability in the worker. He was used to working with people with disabilities and could observe their work. The worker did not complain about any pain in the left hand or about difficulty with two handed tasks. He did not observe the worker using any unusual technique to do his hand tool work. The worker appeared to be enjoying his work. He agreed that he could do the work tasks. He was an average student. [NAME] noticed that the worker stopped his activity when [NAME] entered the room (although [NAME] says she was only there once when the worker was there). The teacher had about 13 to 16 persons in his class and did not pay attention to any one student for a lengthy period of time, but the supervision was regular and he ensured that the students completed their practical assignments. 26. [NAME], a licensed builder, carpenter and joiner and manager of [NAME], employed the worker in early 2000. He had been involved previously in providing employment opportunities for people with disabilities. He met with the worker and [NAME] and devised a limited work programme that included use of hand tools (some pneumatic) at a bench and the bundling of parts to accompany stair rails (See Exhibit 2-1 workplace assessment). The work excluded heavy lifting over 20 kilograms. The work was for four hours daily from Monday to Thursday. A formal agreement was devised, with the document being signed by the parties. The worker was irregular in his work attendance and did not usually advise if he was not coming in. His enthusiasm in the first few days dissipated thereafter. [NAME] tried to encourage the worker's rehabilitation. 27. [NAME] understood that the worker needed to have his tasks rotated. 28. [NAME], rehabilitation consultant and physiotherapist, was involved with the worker from June 1998, taking over from [NAME]. She organised the worker to see [NAME] for a second opinion. There had been an occupational assessment. As the worker was keen on carpentry, and nothing else, she had developed a rehabilitation plan to help him get into carpentry work. She organised some psychological counselling. He had difficulty coming to terms with his injury and its consequences and the choice that he was being asked to make. The worker had complained about a very tender finger.

29. She could only remember going to the TAFE once when she saw the worker there. At the TAFE the worker had showed her his work and stated that he was not using all the tools. He had missed a lot of appointments to discuss his progress. She might have observed the worker about two or three times at [NAME] after the agreement for light work was agreed between the parties. She had to make sure the duties were suitable to him. These involved collecting materials from various parts of the factory and assembling them. Some tasks were excluded (such as using vibrating equipment). The worker had never got to the "job application" stage as the focus was on carrying out the work trial and seeing whether what employment would come of it. She had difficulties in contacting the worker during the agreement period after he stopped attending [NAME]. She was not aware that the worker was spending time in Wollongong.

30. Also tendered were a series of letters from [NAME] to the worker at his parent's home at lot 27 [NAME] requesting him in late 1999 and early 2000 to contact them to discuss rehabilitation proposals, and documenting some failure to do so. Obviously contact was subsequently made, with the worker entering on the work trial in February 2000. Medical and Related Evidence 31. There is no dispute that the worker sustained a compound comminuted fracture of the proximal phalanx of the left index finger at work on 17 February 1997. The worker's finger became infected in 1997 and required antibiotic therapy over several subsequent months. The medical evidence supports a serious and long lasting injury to the non-dominant hand and an impact from that injury upon his ability to work in the open labour market in work available to him in an uninjured state. 32. [NAME] set out the results of surgery in April 1998. After the arthrodesis, he encouraged the worker to begin using the hand normally with the use of a protective splint at night. In April 1998 he thought that the finger was quite scarred but was non-tender to palpation and there was normal sensation in the tip. He thought that some useful function could be recovered. The doctor did not record any symptoms beyond the finger. In April 1998 [NAME] thought that if the finger was not functioning very much at all, and got in the way, then the finger should be amputated so as to get him back to work quicker. [NAME] thought that the worker's motivation was poor. Further operations were not going to improve finger function. 33. [NAME] of the [COMPANY] reported on therapy provided to the worker over two periods, from 26 February 1997 to 18 June 1997 (when infection became a problem) and from 15 May 1998 until 22 January 1999. The worker had a number of assessments during his continuing medical treatment and was given occupational therapy with a view to optimising his use of carpenter's tools. There was a plateauing in status in January 1999. She thought that the worker had demonstrated poor compliance with home therapy programs and he required maximal encouragement to apply himself. There was reduced grip strength in the left hand. His degree of cooperation was questioned. The worker avoided all functional use of the left index finger. He did compensate by using his middle finger to grasp objects and he was independent with all activities of daily living. The worker was careful to carry out heavy bilateral (hand) duties. 34. [NAME] had cleared the worker to return to light duties from 16 March 1998.

35. In September 1998 [NAME] hand surgeon reviewed the case for medico-legal purposes. The complaints were of daily pain in the left hand, some pain in the arm and an inability to use the hand. He accepted that the scars on the finger were tender. He observed that there was adequate extension in the index finger, the PIP joint was fused at 25 degrees of flexion and attempted full flexion failed to reach the distal palmar crease by five centimetres. The overall grip strength of the left hand was poor. There had been damage to the radial digital nerve. The worker had stiffness and loss of sensation and loss of coordinated use of the index finger with associated reduction in grip strength, with pain on attempted use. This constituted a 28 percent loss of efficient use of the hand. There was not sufficient function to return to work as a carpenter. Some consideration should be given to amputation of the finger through the shaft of the index metacarpal to regain better use of the hand. This would depend upon the worker having the mental ability to accept the situation and respond and cooperate with a re-education and strengthening program. If the operation was performed the worker would probably be able to return to full-time work within five months of operation.

36. In January 2001 [NAME] noted that the finger pain radiated to the back of the hand. However the worker had reported loss of touch anywhere in the finger distal to the palm. The worker was permanently unfit to return to work as a carpenter and joiner and only fit for selected duties that mainly required use of the right hand. 37. [NAME] has been the worker's local doctor and has treated him for pain and depression towards the end of 1998, whereupon referrals to [NAME], psychologist and [NAME], psychiatrist were made. [NAME] thought that the injury had greatly affected [NAME] emotionally due to the lost opportunity to be a carpenter. 38. [NAME] noted that the worker was upset about the prospect of having an amputation carried out and was reluctant to have further surgery. She thought that the worker was both anxious and depressed in September 1998. He had few strategies for pain management. He also had a post traumatic stress disorder which needed to be treated. In January 1999 [NAME] thought that a consequence of the continuing depression was a low tolerance of pain and difficulty in making decisions. He was not a suitable subject for cognitive behavioural therapy at that time, although a course of anti-depressants might help him.

39. Medical reports tendered by the second respondent included those from [NAME] and [NAME]. The first two [NAME]' opinions related to the condition of the hand and the desirability of amputation as a means of returning the worker to productive work as a an apprentice carpenter. [NAME] declined to provide certification of unfitness in December 1998 after all treatment bar amputation had been tried. 40. [NAME] in September 1997 assessed losses of use before the final operative treatment. 41. [NAME] in November 1997 did not believe that the damaged index finger was ever going to be useful and hand function would be better served by amputation of the digit. 42. [NAME] in March 1998 concluded that there had been adequate treatment in an attempt to conserve the finger but the prevailing view was that the finger should be amputated to enable the worker to return to fitness for work. A competent hand surgeon might remove the head of the metacarpal as well as the finger to attain a more symmetrical and useful hand. There was a 20 percent loss of use of the hand or a 100 percent loss of use of the finger. In December 1998 [NAME] posed the dilemma that this young man faces - either to continue to suffer pain and discomfort and loss of employment opportunities into the future or have the amputation done and give himself a chance of gainful employment especially in the carpentry and joinery area. [NAME] apparently spent some time explaining the procedure and the benefits that may follow from such a surgical procedure but to no avail. He recommended that the worker take up suitable sports to take his mind off his problem and attain some physical fitness. The worker would also benefit from some psychiatric and psychological assistance as well as the ministrations of a "caring surgical unit". 43. [NAME] in November 1999 accepted that the worker had a chronic stiff and painful left index finger. He observed that the worker did not seem to be able to bridge the inconsistency of training for employment which he claims he physically could not do. 44. [NAME] was in no doubt that the worker needed the amputation because he had a useless finger causing pain and preventing return to employment. A phantom type pain may be a result of amputation. Amputation would not result in a loss greater than 25 percent of the hand.

45. Dr [NAME], consultant psychiatrist, in a medico-legal report in November 1999 had a history of the worker harbouring some resentment about the boss's conduct after he was injured, the lack of insurance and the question of training in the use of the spindle moulding machine. [NAME] thought that the worker was suffering from an adjustment reaction with associated anxiety, but not a depressive illness or a post traumatic stress disorder. The refusal to have the amputation was dictated by an attitude rather than the presence of any psychiatric illness. The worker would see himself as physically unattractive if he underwent amputation. There was a degree of personal vulnerability.

46. In May 2001 [NAME] thought that there was reasonable grip strength excluding the index finger. The worker may be better off without the index finger but his reluctance to have the operation was understandable. [NAME] assessed 60 percent loss of use of the finger and a small five percent loss in the middle finger, which would be equivalent to 13 percent loss of use of the hand using the AMA Fourth Edition Tables. 47. [ADDRESS] also had the benefit of a number of physical and occupational assessments from [NAME] Australia and [COMPANY] up to 2000. [NAME] reported on the work conditioning program through his weekly TAFE course and his work trial. The [NAME] reports chronicled the attempts to have the worker work modified duties on a regular basis with a view to increasing his weekly output. The worker began raising difficulties of attendance in and from April 2000. [NAME], physiotherapist, in July 2000 urged that the worker return to some work. Whilst his left finger was non-functional and a source of significant pain, resumption of normal work and social activities was an important component in the management of "chronic" pain and injury. The Insurance Position 48. [NAME], acting for [NAME], called [NAME], the principal of the company and his sister, [NAME], in respect of any liability by the company to the [NAME] Authority. [NAME] raised the question whether the latter had made a formal request for reimbursement by letter or other communication. The application for determination in the prescribed court form, filed by the applicant for compensation, contains a reference to an order to that effect if the applicant succeeded against the first respondent and caused the second respondent to pay the award. 49. [NAME] commenced as a sole trader business in 1996. On 11 September 1996 the first respondent was incorporated and business was thereafter conducted by that company. [NAME] dealt with an Accountant, [NAME], who arranged a meeting at the business premises at [ADDRESS], Llandilo between [NAME], Hill, [NAME] (a business broker), [NAME]'s brother [NAME] and [NAME]. [NAME] worked in the office for her brother, doing the paperwork and answering the phones. [NAME] had maintained that he had no employees until the company was incorporated but this claim appears a little dubious because of [NAME]'s evidence of working at least part-time for him under the business name.

50. The discussion revolved around getting all the superannuation and insurances into one portfolio. [NAME] had requested "[NAME]" insurance. [NAME] had tacitly agreed to arrange cover. He told the employer that he would be covered from that day. The first respondent paid over premiums for other insurance but was told that the premium notice for workers' compensation would be issued in due course. [NAME] sought some confirmation of the position on a number of occasions but had not been notified by the time [NAME] was injured. He did not ever receive any workers compensation documents. Subsequently he was prosecuted for non-insurance and was convicted. [NAME] gave similar evidence in clear terms that she also had been reassured about the workers compensation insurance by [NAME] but that she had realised that there was no insurance after she had rung the broker following [NAME]'s injury.

51. One intriguing piece of evidence admitted on the tender of the first respondent over objection was a document purporting to be a FAX on Monday 4 November 1996 addressed to "[NAME]" at [NAME] from [NAME]. There was no [NAME] at the Fax address which [NAME] said was the correct fax address for his company at the time. The document read [NAME] Re our earlier phone call re your Workers Compensation Insurance. I have obtained a cover note No 5951 as of this date for you. The quotation for the insurance is $3,015.00 and you will receive all the relevant paperwork in the mail shortly. [NAME].

52. There was no evidence before the Court that any licensed [NAME] or fund manager had ever issued a cover note for the risk of the first respondent. I am unaware of the extent of inquiries made to validate the assertion in the facsimile transmission. Submissions 53. The respondents questioned the effects of the injury in terms of entitlement to weekly payments and lump sums. The failure to undertake the surgery may be a failure to mitigate the effects of injury. The worker may be seen to have unreasonably refused the surgery, which offered a better chance of an early return to work. The worker's complaints of severe, unremitting pain were not entirely consistent with his unwillingness to reduce that pain and increase his chances of successful employment after an amputation. There was some doubt cast about the level of pain and the use of the index finger in the evidence of [NAME] and [NAME]. It was clear that if the finger was of no use it should be amputated. The decisions in [NAME] v [COMPANY]. (1982)150 CLR 345 and [NAME] v [COMPANY] (unreported, Court of Appeal, 19 June 1990) were relied upon to argue that the worker's refusal to undergo that form of medical treatment had been unreasonable. There was also the question raised about the treatment of the worker's claim if the refusal was found to be unreasonable. Did the refusal break the chain of causality between the injury and any effects? One basis for action might be the attitude that the worker did not mitigate his loss by appropriate treatment and therefore a discretion could be exercised in respect of weekly entitlements. [NAME] invited the Court to conclude that the worker had exaggerated the level of his pain, as his complaints were inconsistent with observations of a number of the lay witnesses and medical examiners. 54. [NAME] queried the effects that the worker's lack of cooperation with the rehabilitation program and the subsequent incarceration had upon his weekly compensation rights. 55. [NAME] submitted that the Court would have a discretion to exercise in relation to s 40 payments as the worker had not cooperated with the work trial. His absence was more due to other factors such as his personal problems and his loss of a driving licence.

56. He also addressed the Court on its power and its discretion to order that the first respondent not repay compensation to the [NAME]. in respect of moneys paid out for the worker's injuries. The case of GRE Insurance Workers Compensation (NSW) Limited v Nohil Pty Ltd and Others (1996) 13 NSWCCR 74 was brought to my attention. [NAME] argued that a decision by the Court to consider waiver of liability was premature as [NAME] had a discretion to waive payment after a notice had been served by it upon the uninsured employer. The first respondent did not challenge the factual basis for this assertion. 57. [NAME] submitted that the worker had genuine persisting pain in the finger and had a genuine wish not to lose part of his hand. The sentiment was understandable in a young, vulnerable person. There had been no absolute refusal but rather a decision not to proceed with the surgery at this time. The worker did not attain 18 years until 31 July 1998 and could not legally consent before that time. [ADDRESS] would recognise that the worker had a resulting adjustment disorder. 58. [NAME] submitted that the appropriate loss was to the hand and should be assessed at something between 25 percent and 28 percent of the total use of the hand. There should be a significant award under s40 for continuing partial incapacity. He recognised that, in accordance with the approach by the Court in Stranlund v Mid Coast Meat Co Pty Ltd (1999) 19 NSWCCR 91, the worker's weekly entitlement would be limited during his period of imprisonment. Observations 59. The worker clearly has had a significant disability since his injury in 1997 at the age of 17 years, apparently sustained when he was being instructed in the operation of the machine. The worker appears to have been paid some weekly compensation for his injury, although not beyond 17 March 2000. Any rehabilitation and other supportive measures were clearly delayed by the absence of any [NAME] or insurance arrangements for the employer. The worker's pre-injury income was low, with the uncontested claim for "probable weekly earnings" of $416.90 reflecting the worker's young age and apprentice status.

60. The key issues to decide, but not necessarily in this order, are (a) the extent of permanent loss and incapacity for work; (b) whether the worker was unreasonable to refuse to submit to treatment and, if so, the effect of this refusal; (c) the entitlements of the worker generally and especially when incarcerated; (d) whether there is a permanent loss of efficient use and, if so, what; and (e) whether it was appropriate for the Court to consider an application under s154 of the Act.

61. The event of 17 February 1997 has had serious consequences for all concerned. The young lad of 17 years with aspirations to the trade of carpenter and joiner, has had to face disfigurement, persisting pain, the threat to any career and future earnings and the prospect of a radical operation that would give him a misshapen but workable hand. The employer faces serious financial consequences due to lack of protective insurance. [ADDRESS] must decide the outstanding questions according to law and not according to sympathy. Failure to undertake medical treatment - does this constitute a novus actus? 62. The principal causation question is whether any incapacity "results from" injury. A work injury may be one of the causes and not the only cause of incapacity. The unreasonable refusal of reasonable medical treatment may constitute a cause of incapacity. However for such a failure or novus actus interveniens to be shown to be the only cause of incapacity, the respondent must prove that the incapacity resulting from the injury would have ceased to exist, and that the incapacity which exists is the sole result of the novus actus. There are a number of established authorities that a nexus will exist despite there being a supervening non-employment condition ([NAME] v [NAME] & Steel Limited 44 SR (NSW) 36; [1943] WCR 97; [NAME] v [NAME] Co (Aust.) Ltd 46 SR (NSW) 20; (1945) 19 WCR 103 at 111). It is quite clear that whether the worker had the operation or not, he would be left with a significant physical disability which would have the potential to affect his future ability to earn.

63. The case of [NAME] (ibid) involved an injury in N.T. An immediate back operation was recommended by the surgeon. The employer claimed that the refusal to have an operation was unreasonable and that compensation should be denied. The High Court outlined the origin of the rule and considered a number of factors. The High Court adopted the approach taken in Steele v Robert George and Co (1937) Ltd [1942] AC 497. [ADDRESS] accepted the statement of Viscount Simon in Richardson v Redpath Brown & Co[1944] AC 62 at 68 of what is "reasonable" as the "received doctrine" in Australia - "The material question ..is not whether the medical advice given to the workman against an operation is more soundly based than advice in favour of it, but whether the workman who refuses to be operated upon is acting reasonably in view of the advice that he has been offered."

64. The focus is upon the reasonableness of the decision of the worker rather than the objective reasonableness of the operation for the condition addressed. The headnote states that - "an assessment of the reasonableness of the worker's refusal of treatment depended upon the workers knowledge at the relevant time" medical evidence that the operation might reasonably have been performed was irrelevant to the question whether the worker's refusal was reasonable." [ADDRESS] in [NAME] held that the rule relating to unreasonable refusal to submit to treatment should be regarded as giving effect to a worker's obligation to take reasonable steps to mitigate damage and not as based upon causality.

65. In [NAME] v [COMPANY], unreported, 4 May 1999, Chief Judge Campbell observed that since the decision in Elmer v Thomas Playfair Pty Ltd [1954] WCR 14 the New South Wales Courts had adopted the approach of the English Courts on questions of unreasonable refusal of medical treatment. In [NAME] the NSW Supreme Court upheld a decision of Judge Rainbow that a s16 permanent loss was not the result of an employment injury but of the unreasonable refusal to undergo a surgical operation. The question of unreasonable refusal was a question of fact and the employer carried the onus of showing that there was a strong body of evidence that there was a reasonable prospect of success if an operation went ahead.

66. In finding that the worker's refusal was not unreasonable, the High Court in [NAME] said that the statement of the worker's knowledge was important for him to make an informed judgment. The relevant time to consider reasonableness was at the time of the making of the decision. 67. [NAME] was only 16 years when he sustained his injury in February 1997. He turned 18 in July 1998. He was supported and counselled by his mother. She not unnaturally urged the treating [NAME] to do everything they could to save the finger. The injury was a shocking one in the lay sense of the word and caused emotional distress to the worker to the extent of an adjustment disorder being diagnosed and treated. The first surgical intervention took place almost immediately after the injury by [NAME], a plastic surgeon. He said that the injury basically destroyed the extensor tendons and he had tried to salvage the finger "perhaps against my better judgment". A wound infection followed and needed treatment. The worker underwent further surgery in October 1997 and on 25 November 1997. [NAME] in April 1998 noted that the arthrodesis had firmly united. He thought that the worker might regain some use of the finger. In March 1998 [NAME] pointed out that amputation would need the full consent of the worker. I am not aware whether the opinion of [NAME] in December 1998 was fully transmitted to the worker. On 22 April 1998 [NAME], who was not then the treating doctor, gave an opinion to the worker's solicitors that the finger should be amputated to get the worker back to work "quicker". [NAME], hand surgeon, in September 1998, in a medico-legal report stated that some consideration should be given to amputation, which would give the worker better control, but [NAME] needed the mental ability to accept the situation. The amputation offered a "better chance" of rehabilitation. At about this time the worker was emotionally depressed and anxious and had concerns about the appearance of his hand with an amputated finger. He was then a few months over the age of 18 years. [NAME] in late 1999 said that it would have been better for the worker to have accepted [NAME]'s advice for amputation at the time of the accident. No one appears to address whether or not there could possibly be phantom like pain after early amputation but I infer that this would also be a possibility.

68. The worker has maintained his desire to avoid the radical surgery. Perhaps with some greater period of time and increased insight he may choose otherwise. At the relevant time when the surgery was suggested the worker was young, under age and in emotional turmoil. In the circumstances, I do not consider that he unreasonably refused to have such surgery. He indeed submitted to other surgery. His failure subsequently to agree to such amputation surgery is not considered to have represented a novus actus which has broken the chain of causation. [NAME]'s opinion that the worker did not have a psychiatric condition is not inconsistent with the worker's repulsion at the prospect of losing part of his hand at such a young age. Claim for Lump Sums 69. The worker must prove that a condition is a permanent one and also the extent of the losses under s 66 and s 67. There are two scenarios in this matter and the situation, I consider, is still fluid and not firmly fixed. The decision by the worker appears not to be irrevocable, especially if he realises his main hope for employment is to have the operation. Having the surgery has a number of pluses and minuses. He may have wider career opportunities, reduced if not ameliorated pain in the finger and hand and probably some increased emotional distress if he has the operation. If the worker does not have surgery and continues to have disabling pain of varying proportions, there is a reduced likelihood of securing meaningful and remunerative work and emotional distress both from the pain and discomfort and the lost opportunities. These are two widely divergent paths for which the Court does not have a crystal ball.

70. In view of the perceived sense of aggrievement in the worker and the loss of income support, and the uncertain state of affairs that the worker has been subject to, I consider that it is appropriate not to address the pain and suffering issue until a further period of time has expired, say two years, but to assess a permanent loss of use that would cover the minimum loss suffered. I consider that there is sufficient evidence to find that the worker has a 25 percent permanent loss of efficient use of the left hand, irrespective of whether he has the operation or not. Weekly Payment Entitlement 71. The worker undeniably has a significant level of physical disability. However the clear fact remains that, through the worker's choice, his level of incapacity, since 18 March 2000 is significantly in excess of that which it would have been had his hand been surgically corrected. The various operative procedures and his emotional distress have delayed the worker's completion of studies. The worker's actions toward attaining his trade qualifications and the observations from [NAME] about his management of his practical classes are inconsistent with the higher level of pain and disability to which the worker alluded in his evidence. [NAME]'s total evidence is not fully accepted.

72. The weekly entitlements involve a review of relevant facts to date. The worker, due to his age and his lack of any other occupational experience, is seriously affected in competing for any job in the open labour market available to him. The extent of that incapacity depends upon the view one takes of his truthfulness about the effects of his injury.

73. I made some preliminary observations about his evidence at page three of this judgment. The injury to his hand has doubtlessly had a catastrophic effect upon his self image and upon his ability to work as a carpenter. He appears to have had no other occupational goals before his injury, nor has he been able to focus upon any other jobs whilst he has a painful hand.

74. The task is therefore to decide whether the worker has been totally incapacitated or partially incapacitated. The medical treatment is at an end unless the worker chooses to have the operation. The claim for weekly compensation starts at 18 March 2000. Before that time there had been some co-operation with a work trial, although the type of duties probably did not represent a real job in the labour market available to him. He was not being paid for the trial. The work trial was offered by a [NAME]. The worker appears to have come adrift from the work trial before 18 March 2000 as his attendance thereafter was spasmodic. The worker had and has had since then a significant physical problem, even if I consider that some of the worker's claims to severe physical pain are probably modulated by his psychological state.

75. I conclude that the worker has been partially incapacitated for work since 18 March 2000. I accept the evidence of [NAME] as to the worker's ability to use some hand tools generally, although I do not accept that the worker can use the left hand fully for percussive or strong gripping actions. The worker is not entitled to the benefit of s 38 of the Act from this time because there were other non-work factors that influenced his behaviour and his willingness to work. A worker must have the necessary readiness and willingness to carry out suitable employment. The rehabilitation people did a sound job of arranging the work trial, devising the limitations and coordinating with the parties, but were let down by the worker's limited cooperation. 76. [ADDRESS] has a discretion under s40 of the Act to order weekly payments that are appropriate and not exceeding the difference between probable weekly earnings and ability to earn. I have concluded that the appropriate amount, having regard to all the circumstances, is an amount of $200 per week. However, in the period during which the worker has been and is to be imprisoned, there should be a heavy discount of weekly payments in accordance with the rationale exposed in [NAME] and other earlier decisions. I conclude that the figure should be $25 per week for that time. Findings 77. I find that the worker could earn $200 per week in light part-time manual or unskilled work mainly using his right hand if he were so minded, such as in a shop or in a parking station.

78. I find that his probable weekly earnings had he not been injured would have been $416.90 for all relevant periods.

79. I find that the worker has sustained a 25 percent permanent loss of the efficient use of the left hand.

80.

For the reasons set out above, I do not at this stage make any award under s67 for pain and suffering.

81. I find that the first respondent was not insured under the Workers Compensation Act at the date of injury to the applicant worker.

82. As the first respondent was uninsured at the relevant injury date, I propose to make awards against both [NAME] and the [NAME] Authority. S145 Application 83. So far as the application for relief is concerned, the provisions of s145 are as follows - "145 [NAME] to reimburse Authority (cf former s 18C (21)"(26)) (1) The Authority may serve on a person who, in the opinion of the Authority, was: (a) in respect of an injured worker to or in respect of whom a payment has been made under the Scheme, an employer at the relevant time, or (b) an [NAME] under this Act of such an employer,

a notice requiring that person, within a period specified in the notice, to reimburse the [NAME] Authority Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice. (2) The Authority may, by instrument in writing, waive the liability of an employer under subsection (1) to reimburse the [NAME] Authority Fund an amount, if the Authority, in respect of the amount, is satisfied that: (a) the amount is beyond the capacity of the employer to pay, (b) the employer could not reasonably have been expected to regard himself or herself as an employer at the relevant time, (c) the employer, not being a corporation, is bankrupt and the liability under this section is not provable in the bankruptcy, (d) the employer, being a corporation, is being wound up and the liability under this section is not provable in the winding up, (e) the employer, being a corporation, has been dissolved, or (f) it would not be commercially feasible for the Authority to attempt to recover the amount. (3) A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person's liability under this Act. (4) The Commission may hear any such application and may: (a) make such determination in relation to the application, and (b) make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned, as the Commission thinks fit. (5) In any proceedings under subsection (4), a certificate executed by the Authority and certifying that: (a) the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and (b) a person named in the certificate was, in the opinion of the Authority, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act, is (without proof of its execution by the Authority) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate. (6) The Authority may recover an amount specified in a notice served under subsection (1) (being a notice in respect of which an application has not been made under subsection (3)) from the person to whom the notice was given as a debt in a court of competent jurisdiction. (7) An order by the Commission that the Authority is to be reimbursed by a person named in the determination concerned may be enforced under section 23 of the [ADDRESS] 1984 ."

84. The Commission is, of course, the newly constituted Workers Compensation Commission enacted under Pt 10 of the Workplace Injury Management Act 1998 as amended by the Workers Compensation Legislation Further Amendment Act 2001 (No 94). Prior to 1 January 2002, the [ADDRESS] was vested with the jurisdiction now held by the Commission.

85. As I understand the case of [NAME], the Court in that matter appears to have been decided on a totally different point to that involved in this matter. An injured worker had been paid by the [NAME] Authority on the assumption that the employer had no insurance. Upon establishing that there was insurance, the Authority sought to recover the moneys paid out from the relevant [NAME]. [ADDRESS] had the power to order payment by the [NAME] of the moneys already paid as s145 was a plenary power that allowed the Court to adjust the rights between the parties who may have had a liability in respect of compensation claimed by or awarded to an injured worker.

86. Consequently there is no doubt that before 1 January 2002 the Court had a power to determine questions arising under s145. But that power appears to be conditional upon meeting the conditions set out therein. Subsections (1) and (2) of s145 are to be read together. The Authority may require payment or it may waive payment after it has served a notice on a liable [NAME] seeking reimbursement of the moneys paid. That has not been done. Subsection (3) as it then stood appeared to provide a power for the Court to determine disputes between [NAME] and the employer and [NAME] as to the fundamental liability of the [NAME] for compensation payments. I consider that the provisions, particularly sub-s(2) gives the Authority the power to waive payments or part payments on limited grounds. It does not give the Commission or the Court a power to waive the liability but rather to determine questions of liability that arise after compensation has been paid voluntarily by the [NAME] Authority. Awards and Orders 87. I make an award in favour of the worker against the first respondent under s40 at the rate of $200 per week from 18 March 2000 to date and continuing, with the exception of the worker's period of imprisonment during which compensation shall be at the rate of $25 per week. There is also to be paid a lump sum of $16,250 for 25 percent permanent loss of the efficient use of the left hand. There will be a general s60 order. I order the 1st respondent to pay the costs of the applicant worker.

88. I make a further award that the second respondent pay the compensation and costs awarded against the first respondent*.

89. The question of s67 compensation is deferred for 18 months, with the parties being given liberty to restore the matter to the list at that time.

90. The question of relief sought from [NAME] Authority should be the subject of separate application to the Authority after any demand has been made on the first respondent. [NAME] instructed by [NAME] with [NAME] appeared on behalf of the applicant. [NAME] instructed by [COMPANY] appeared on behalf of the first respondent. [NAME] instructed by [NAME]. appeared on behalf of the second respondent.

*Orders amended under slip rule on 13 March 2002 by deleting reference to the 2nd respondent's costs of these proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.