NEW SOUTH WALES BAPTIST NURSING HOMES TRUST (t/as YALLAMBIE NURSING HOME) v BINGHAM SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, SHELLER and CRIPPS JJA 25 August 1993, 21 September 1993 [1993] NSWCA 190 APPEAL from Compensation Court — Back injury to nurse — Dispute as to relationship between work and disability. WEEKLY PAYMENTS — Date when injury occurred which produced incapacity — No error as to when injury occurred or quantum of compensation to be ordered. S66 AWARD — Uncertainty of findings basing s66 award of lump sum — No ground for interfering with judge's assessment — Effect of previous claim and award — Admitted error in failure to take account of previous payment. S67 AWARD - Uncertainty as to basis of previous award — Uncertainty as to terms of present award. Mahoney JA The worker Jennifer Lee Bingham was born on 28 December 1959. She trained as a nurse. In November 1984 she was employed by New South Wales Baptist Nursing Homes Trust ("the employer"). During her employment she developed a back condition. She ceased to work for the employer in February March 1989 because of that condition. Her employment was terminated in November 1989. Weekly compensation was paid to the worker from the time she ceased to work until 1 May 1992. The weekly compensation was then terminated. The worker consequently commenced proceedings for compensation. On 20 May 1993 his Honour Judge Davidson in the Compensation Court awarded the worker weekly payments, sums under s66 and s67 of the Workers Compensation Act 1987, interest, and other compensation. The employer has appealed to this Court against that award. It is accepted that the appeal is by way of rehearing: Supreme Court Act 1970, s75A. In the proceedings in the Compensation Court, an issue was raised between insurers. The employer was insured by one insurer until 30 June 1987 and thereafter by another. In the Compensation Court, one insurer had assumed the carriage of the proceeding on behalf of the employer. His Honour gave leave to the other insurer to take part in the proceeding. When the present appeal came before the court for hearing, Mr Choat appeared, or sought leave to appear, for the last mentioned insurer. By reason of his Honour's findings, it was accepted that the insurer liable to indemnify the employer was the insurer who had assumed conduct of the proceeding. This Court felt it appropriate for Mr Choat, either as of right or by leave, to represent the other insurer in case it might become necessary for issues to be determined as between the two insurers. 1. THE ISSUES: I confess to having had difficulty in determining from the submissions as presented, what precisely are the issues raised for the employer on this appeal. Mr Sharpe, for the employer, prepared written submissions but these were elaborated 2 UNREPORTED JUDGMENTS by detailed oral submissions which ranged over a wide area. I shall endeavour to formulate and deal with the essential issues which emerged from what was put to the Court. The submissions related essentially to four matters: the entitlement to weekly payments; the sum awarded under s66; the sum awarded s67; and the amount of interest awarded to the worker. I shall deal with each of these, and the contentions which I think were made in respect of them, in that order. 2. THE FACTS: In order to understand the submissions made it is necessary to refer in more detail to the evidence adduced before the Compensation Court. I shall confine myself to the matters essentially relevant to the issues as they have been argued. Following her nursing training, the worker was employed at Gosford Hospital and subsequently the Eastwood Occasional Care Centre. Her duties were of a nursing character. In November 1984 she commenced work with the employer. She worked on various shifts and mainly part time. When she commenced with the employer she did not have any back problems of a kind here relevant. Her work involved caring for a large number of geriatric ladies with "lots of heavy bending and lifting and toiletting the patients, showering them, fanning them, feeding them, doing everything for them, turning their bed, putting them in and out of bed several times". In August 1986 she had a fall at work. Before that she had been experiencing "some backache" but it was made worse by the fall. "It would be very heavy after a shift and I would have to lie down for about half an hour". A few months afterwards, her second child was born. After that her backache was "transient". In about March 1987, when she returned to work, her back "was gradually getting worse, it was a very gradual thing over those 2 years", that is, 1987 to 1989. She found difficulty with activities such as lifting, which made the pain worse. She found she had to rest and to "lie on the bed for about half an hour and then it would be cope able and I'd get up again...". In February 1989 there was an increase in the back pain. The worker took a week off work in the hope that her condition would improve. She was given "non lifting" work. But, in the course of employment, she undertook some lifting and that made the pain worse. Finally she concluded "I couldn't continue" and from that time ceased work. She was under the care of her general practitioner, Dr Currow, and, on reference from her, to Dr John Grant. He treated her with traction and, subsequently, on 31 January 1991, she underwent a spinal fusion. The fusion did not cure her symptoms and she was "getting still back into post operative levels of pain, pain down my legs, pain into my neck and shoulders". Various procedures were tried, by way of rehabilitation and otherwise. None of these improved her condition to the extent that she was able to return to work. She described her condition as "continuously paining, the pain levels varied depending on what I do, it depends on the weather". On a scale of 1 to 10 she described her pain as "around a 6 to 7, it gets up into the 10 zone - no problems, if I just trip or, you know, do too much bending or something like that". She was, she said, unable to sit for long and had spasms in her back. In 1990, following termination of her weekly payments of compensation, she commenced proceedings in the Compensation Court. On 13 September 1990, the Court "by and with the consent of the parties hereto" made an order: WHEW SOUTH WALES BAPTIST NURSING HOMES TRUST (t/as YALLAMBIE NURSING HOME) v BINGHAM (Mahoney JA) "1. That the respondent pay the applicant, as lump sum compensation, $7,407 in respect of 15 impairment of the applicant's back". The worker had claimed: " (b) lump sum - to be assessed in respect of permanent spinal impairment and pain and suffering (c) medical and hospital expenses (d) an order for interest pursuant to s19 of the Compensation Court Act 1984 and/or s117 of the Workers' Compensation Act 1987." How the proceeding came to be terminated by a consent order merely for an award under s66 does not appear. The worker said in evidence that, after that award, "there was a definite worsening, particularly over winter this year" in the levels of pain in her back. In addition, there was "a worsening in the level of disability". "I was being able to do less and less, my husband was doing more and more". The present proceeding was commenced in the Compensation Court in 1992. Davidson J heard evidence from, inter alia, the worker. He received in evidence certificates of medical panels dated 14 June 1990 and 22 July 1992 and, inter alia, a large number of medical reports. On 20 May 1993, his Honour awarded the plaintiff: weekly payments of compensation from 2 May 1992; $17,040 under s66; $17,000 under s67, apportioned as to $7,000 in respect of past pain and suffering and $10,000 in respect of future pain and suffering; and interest on the weekly compensation, the s66 amount, and $7,000 of the s67 amount. 3. WEEKLY PAYMENTS: Mr Sharpe submitted that a case for weekly payments had not been made out. His submissions were, I believe, three: that the worker was not incapacitated; that (if she was) the incapacity did not result from an injury; and that the compensation was wrongly calculated. Mr Sharpe pressed at some length the submission that the worker was not incapacitated or totally incapacitated. That submission should not be accepted. The worker's own evidence indicated she could not carry out relevant work. His Honour, I think, is to be taken to have accepted her evidence and, I think, to have been affected by what he saw of her in doing so: Abalos v Australian Postal Commission (1990) 171 CLR 167. Her treating surgeon supported that conclusion. In his report of 23 October 1991 he recorded her statement that she had had "a recent episode of severe low back pain with pain radiating into her legs and the upper part of her spine" during and following "a work trial or assessment which she found was impossible for her to undertake". He concluded: "\.. at this stage she is certainly not fit for work and as some eight or nine months have passed since surgery one wonders concerning the future prognosis as to whether she will eventually achieve a degree of improvement which will enable her to return to work." On 17 February 1992, Dr Grant felt "one would have to accept that surgery has failed to produce any relief for her". On 14 July 1992 he made an "extremely difficult" assessment of the degree of her disability in the lumbar back: he opined the figures "35 and 45% back disability at the lumbar level". 4 UNREPORTED JUDGMENTS Reference was made in evidence to the possibility of her taking other work. In view of the restrictions upon her sitting and standing for significant periods, it is right to conclude, as his Honour did, that it had not been shown that there was other work which reasonably she could undertake. Mr Sharpe then submitted that it had not been shown that her incapacity had resulted from an injury within the legislation. This submission derived from the nature of his Honour's conclusions. His Honour saw the worker's claim as being incapacity "as a consequence either of two specific injuries specified as being August 1986 or 5 February 1989, or from the general nature and conditions of her employment with the respondent". His conclusion was that it was the last mentioned. He concluded that in 1986 her back condition "was not showing permanent effects so far as incapacity for work is concerned, either as a result of that specific incident or, indeed, by way of comparison, from the nature and conditions of the work that she had been doing and did up until 30 June 1987". His Honour thought that her condition was the result of "the nature and conditions of her employment, from 1 July 1987 to 5 February 1989" and excluded the pre 30 June 1987 work as a contributing factor. His conclusion was that "the applicant suffered injury to her low back" from such matters. I do not think this Court should differ from his Honour's conclusion: it is one to which I would come. There is a difference, of which the judge could take notice, between the kind of pain and other symptoms apt to result from nursing work involving lifting and the like, and the pain and symptoms apt to result from the development of a physiological condition of the back as the result of a continuous period of lifting and the like such as his Honour referred to. It was, in my opinion, proper to conclude that it was only during the period specified by his Honour, 1 July 1987 to 5 February 1989, that something of the nature of an injury took place. It was not in argument contested that a continued period of such activities was apt to produce physiological change amounting to an injury. Nor was it suggested that it is necessary to establish a particular point in time at which, for example, the relevant tissue ceased to return to normal after such activities and became generally abnormal. It is sufficient to conclude, as I do, that the injury occurred during the stated period. The submissions in relation to the quantum of the weekly payments suggested that there was error in the period worked by the plaintiff, as adopted by the judge, or in the level of her weekly payments. I find difficulty seeing a basis for this submission. The time period was taken from records produced by the employer: the criticism of them made before this Court, relating to weekend shifts, was not made at the trial. And the amount or rate of payment, it was conceded, was taken from the relevant award. At least, the contrary was not shown. Accordingly, I find no error in the weekly payments awarded. 4. S66 AWARD: S66 provides that a worker "who has suffered a loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive... the amount equal to the percentage of" the specified amount in the Table: s66(1). That relied upon as a "loss" was the permanent impairment of the worker's back. S65 defines "loss" "in relation to a thing" to mean the loss of the thing or the permanent loss of the use or efficient use of it. S65(2) provides: "65(2) In this Division, a reference to a loss mentioned in the Table to this Division includes a reference to: (a) the permanent impairment of the back...". WHEW SOUTH WALES BAPTIST NURSING HOMES TRUST (t/as YALLAMBIE NURSING HOME) v BINGHAM (Mahoney JA) In order to understand the submissions made, it is necessary to refer to the way in which s66 and the Table operate. S66(1) specifies what, in the Table, is described as "maximum amount payable". At the relevant time this was $85,200. The subsection provides that the worker is to receive "... the amount equal to the percentage of ($85,200) set out opposite to that loss in that Table". The "loss in that Table" is stated in the following terms: " TABLE COMPENSATION FOR PERMANENT INJURIES Permanent impairment of back, neck, pelvis: Permanent impairment of the back................. 0 - 60" Nature of injury Percentage of maximum amount payable The notes to the Table relevantly provide: "(a) Where a range of percentages is provided by the Table, the maximum percentage is payable only in a most extreme case and the percentage payable in any other case shall be reasonably proportionate to that maximum percentage having regard to the severity of the matter. The amount payable in any particular case shall, in default of agreement, be determined in accordance with this Act by the Compensation Court." Accordingly, in accordance with the decisions of this Court, the maximum amount payable for permanent impairment of the back ("in a most extreme case") is 60 per cent of the maximum amount ($85,200), viz, $51,120. The amount to be awarded to the worker is accordingly to be "reasonably proportionate to that maximum percentage having regard to the severity of the matter". It is not specified in the section whether "the severity of the matter" is to be determined by, or only by, the degree of "permanent impairment of the back" or whether other factors, eg, pain, discomfort or the like may be taken into account in determining "the severity of the matter". In the present case his Honour dealt with the matter by reference to the degree of permanent impairment of the worker's back. It does not appear to have been submitted that any other approach should be adopted nor was it so submitted in this Court. It is proper, therefore, to deal with the matter on that basis. In the evidence, opinions had been expressed as to the degree of "disability" or the like of the worker's lumbar back. His Honour referred to the fact that, in June 1990 and July 1992, the worker's condition had been assessed by separate medical panels. In each case, there had been the assessment of the permanent impairment of the back as "15 per cent of the total loss" thereof. Dr Grant had "assessed 35 per cent to 45 per cent back disability at the lumbar level" and Dr Searle the "equivalent to 60 per cent permanent impairment of her back". His Honour rejected Dr Searle's assessment. He did not see the medical panels as reflecting "the whole of the evidence in the case and my assessment of the impairment". He thought of Dr Grant's assessment (35 to 45 per cent) that the true level of the disability "must be lowered considerably" because, I think, the doctor had referred only to the lumbar level and not to the whole of the back. His Honour then said: "T have had regard to the severity of the matter and the percentage that I FIND payable in this case, which is reasonably proportionate to the maximum percentage, is 20% impairment of the back. I have determined that percentage by concluding that this is a case of one third of a most extreme case. The resultant award, in my view, is the sum of $17,040. I have taken as the date of injury, 6 UNREPORTED JUDGMENTS February 1989, when 100% under the Table was $85,200. The maximum for impairment of the back was 60%; that is, $51,120. I find this to be one third of that most extreme case which would attract $51,120. The result, as I have said, is $17,040." The award was made accordingly. However, after an appeal had been lodged to this Court, his Honour caused the matter to be relisted before him. He invited the parties to apply to him for a reconsideration or variation of the matter and, I think, it is proper to infer that his Honour felt that the amount which he should have awarded was 20 per cent of $51,120, viz, $10,224 rather than one third of $51,120, viz, $17,040. The employer in particular did not pursue his Honour's suggestion and the matter is accordingly before this Court on appeal. It has been submitted that the employer's attitude should affect the order of costs made by this Court. As I have said, his Honour proceeded on the basis that the matter was to be determined by reference to the percentage of the permanent impairment of the back. It was, I infer, his Honour's conclusion that that impairment was 20 per cent. There is difficulty in accommodating this to his Honour's stated conclusion that the case was "one third of a most extreme case" and that "by" that conclusion he had arrived at his assessment of a 20 per cent impairment of the back. If, for the purposes of the Table, his Honour arrived at the 20 per cent figure it is not clear from what it was taken. There was, I think, no medical opinion precisely to that effect. In these circumstances, I find difficulty myself in coming to a particular assessment of the "permanent impairment of the back". I do not feel able to give any satisfactory reason for an assessment of a percentage different from that arrived at by the judge. In these circumstances, in the relevant sense, I am not satisfied that the judge was wrong in his assessment. I am conscious that, on a rehearing, it is for this Court to arrive at its own conclusion: Warren v Coombes (1979) 142 CLR 531 at 551 and 552 to 553 per Gibbs ACJ, Jacobs and Murphy JJ. But where, within a range, no particular conclusion appears to be indicated by the evidence and there is no satisfactory reason for differing from the amount, within that range, arrived at by the trial judge, it is open to and, I think, proper for this Court to abide by his Honour's conclusion: cf Harper v Bangalow Motors Pty Ltd and Anor (Court of Appeal, 24 July 1990, unreported) per Mahoney JA at 9 and 12 to 13. That being so, the appeal must succeed to the extent that $10,224 is to be substituted for $17,040 in the award. Mr Sharpe urged other errors in relation to the s66 award. He submitted that, because of the award made on 13 September 1990, no further award could be made in respect of the back condition under s66. This submission does not appear to have been advanced to the judge: at least, there is no reference to it in the judgment. It raises a matter of some importance under the Workers Compensation legislation. Two provisions at least are relevant. Note (g) to the Table to Division 4 provides that in the case of the impairment of the back, "compensation is payable only in respect of the degree of permanent impairment suffered as a result of the injury concerned and as if any impairment existing before that injury did not exist". And s71 provides that where compensation for the loss of a proportion but not all of a thing has been paid and the worker suffers "a further loss of that thing", "compensation is payable under this Division for the further loss, but only the proportion of that further loss of the thing shall be taken into account in calculating the compensation payable". (I WHEW SOUTH WALES BAPTIST NURSING HOMES TRUST (t/as YALLAMBIE NURSING HOME) v BINGHAM (Mahoney JA) have assumed that, in s71(1)(a), the use of "and" is not to cumulate the conditions of the operation of the section but to enumerate the circumstances in which it may operate). The total effect of these provisions is, I think, intended to deal with a case of the present kind. If an award of compensation has been made for a partial loss of a thing and a further loss of the thing occurs the (sensible) intention is that the partial compensation awarded by reference to the Table is to be increased but only proportionately to the further loss. For this purpose, a reference to "loss" is a reference to, inter alia, the impairment of the back. If "the impairment of the back" be read into the provisions in the place of "loss" there is, I think, no semantic difficulty in concluding that the purpose and intention emerges that, where there has been an increase in the permanent impairment of the back, further compensation proportionate to the further impairment may be awarded. In the present case, compensation was awarded for a 15 per cent impairment. The judge has found that the impairment is now 20 per cent. Prima facie and subject to what I shall say, the award to be made should be of compensation for the difference, viz, 5 per cent. There is a qualification to this. To establish entitlement to a further 5 per cent, it is necessary that it appear that, since the date in respect of which the first award was made, there has been, within s71, "a further loss", ie, a further permanent impairment of the back. It is not clear from the judgment whether his Honour so found. His Honour's judgment, read literally, is I think consistent with two positions: that his Honour felt that in September 1990 the permanent impairment was not 15 per cent but 20 per cent and awarded accordingly; or that his Honour thought that, whilst in September 1990, the permanent impairment was 15 per cent, it had, by 1993, increased to 20 per cent. As I have said, his Honour's attention does not appear to have been directed to this question in terms and it was not, in terms, dealt with in the judgment. I do not think that this Court is in a position to come to a conclusion in relation to the matter. If this aspect of the matter is to be pursued, the matter must be returned to the Compensation Court for further consideration. It is proper to record a further submission made in relation to the s66 award. The judge ordered payment of $17,040. It is accepted that, pursuant to the award of 13 September 1990, the employer has already paid $7,407. That was not taken into account by the judge in ordering the payment of $17,040. To that extent, the award was in error. However, for the reasons I have indicated, the approach to the award which was adopted at trial level was wrong and the adoption of the correct approach will deal with this matter. 5. S67 AWARD: His Honour held that at the relevant time, viz, February 1989, the amount payable "in a most extreme case" under s67 was $42,600. He concluded that, having regard to "the degree and duration of the pain and suffering and the severity of the 20 per cent loss of the impairment of the back which I have found", the amount awarded should be $17,000. Difficulties arise in giving effect to this portion of the award. As I have said, the 1990 proceedings sought an award under s67 but none was made. Whether that resulted from a genuine compromise and waiver of rights under s67 or for other reasons does not appear. If a waiver of rights was involved it would be necessary to determine whether the waiver extended only to past pain or to future pain as well. 8 UNREPORTED JUDGMENTS If an amount had been awarded or the s67 claim otherwise determined in 1990 and for the pain only to that date, then, with a further loss or deterioration and further pain, a further sum could be ordered under s71. That sum would no doubt be proportionate not merely to the extent of the deterioration but to the quantum of the pain actually suffered. No attention appears to have been directed to this issue in framing the questions and adducing the evidence at the trial. Accordingly, I find difficulty in determining what course should be followed in this regard. If the s67 claim was, in 1990, ignored further difficulties arise. Prima facie, s71 limits the s67 payment in respect of deterioration to "the proportion of that further loss of the thing" or deterioration: s71(1)(a). On that basis, no claim may be made for the pain suffered up to September 1990. In the absence of information as to the agreement underlying the 1990 award or the circumstances of it, it is in my opinion not possible for this Court to express a final view as to the rights of the parties in this regard. As there has been error in the present award in relation to s67, this matter also must be returned to the Compensation Court for further consideration. 6. INTEREST: It was submitted, inter alia, that, in calculating the interest to be awarded in respect of items in the present award, no account had been taken of, eg, the fact that the amount under the 1990 award in respect of s66 had been paid or that payments of compensation on a weekly basis had been paid. In view of the difficulties in relation to other aspects of the award, it is not necessary to pursue these matters. They may be pursued before the Compensation Court on a rehearing. 7. ORDERS: For the reasons set forth above, the appeal should be upheld. The award should be set aside. The matter should be returned to the Compensation Court for further consideration. On that consideration, further evidence may be taken or it may be necessary for a rehearing of the procedure to be undertaken ab initio. That is to be determined by the judge, whether Davidson J or another judge, who then hears the matter. The respondents should pay the employer's costs of the appeal. Sheller JA I have had the benefit of reading the judgment of Mahoney JA and agree with it and the orders therein proposed. Cripps JA I agree with Mahoney JA. The appeal is upheld. The award is set aside. The matter is returned to the Compensation Court for further consideration. On that consideration, further evidence may be taken or it may be necessary for a rehearing of the procedure to be undertaken ab initio. That is to be determined by the judge, whether Davidson J or another judge, who then hears the matter. The respondents are to pay the employer's costs of the appeal. Counsel for the Appellant: JL SHARPE Instructed by: VANDERVORDS Counsel for the Respondent: PM HALL QC/RJ TAYLOR Instructed by: CARROLL and O'DEA WFEW SOUTH WALES BAPTIST NURSING HOMES TRUST (t/as YALLAMBIE NURSING HOME) v BINGHAM (Cripps JA) Employers Mutual Indemnity Association Ltd: Ms Choat Employers Mutual Indemnity Association Ltd: GOLDRICK FARRELL MULLAN