BRUTTCORN Pty Ltd T/AS COBARGO MOTORS AND BERMAGUI AUTOMOTIVES v PYKE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MEAGHER and Cripps JJA 18 February 1993, 26 March 1993 [1993] NSWCA 41 WORKERS' COMPENSATION — statutory lump sum — permanent impairment of the back — certificate of Medical Panel estimates 15% total "loss" — other medical estimates directed to "loss of function, lumbar spine", "permanent impairment of low back function" and incapacity for work — Compensation Court judge (Manser CCJ) awards 20% of maximum amount payable — appeal to Court of Appeal INTEREST — workers' compensation — award of interest on past pain and suffering — whether MBP (SA) Pty Ltd v Gogic (1991) 65 ALJR 203 (HC) applies — whether Ruby v Marsh (1975) 132 CLR 642 applies LEGAL PRACTITIONERS — duty of professional care — medical certificates in workers' compensation cases — certificates unresponsive to precise statutory criteria — observations by Kirby P on the duty of practitioners to redirect medical witnesses to the correct statutory issues. Held: (1) The judge was not bound in the circumstances to adopt the Medical Panel's assessment but the assessment was for him to determine. Jones Bros Bus Co Pty Ltd v Baker (1992) 26 NSWLR 322 (CA) applied; (2) There was evidence sufficient to sustain the judge's award. Held: (1) An award of interest at 17.3% was excessive. Arklow Pty Ltd (t/as Champion Press) v Taavao, Court of Appeal, unreported, 11 June 1992 applied; (2) Interest of 8.6% substituted. Workers Compensation Act 1987, s66, s67, and s131. Kirby P It is remarkable that, although the Workers Compensation Act 1987, s66 has been operating for a number of years, it remains difficult to secure from medical witnesses assessments under the section which are directed to the precise criteria mentioned in the section and in the Table referred to by it. Instead of securing assessments specifically directed at determining the "permanent impairment" of the worker's "back", the assessments given in this case ranged from: - "20-30% loss of function, lumbar spine" (Dr P Kudelka); - 25% permanent impairment of low back function" (Dr JD McKee); to - "30% incapacitated as a result of his injury at work" (Dr MJ Rigby). Even more extraordinary is it that the Medical Panel, a body created by statute and operating under s131 of the Act, should itself direct its assessment, in part at least, to the "total loss" of the worker's back. Its assessment reads: "We assess the permanent impairment of the back as 15% of the total loss thereof." 2 UNREPORTED JUDGMENTS Although "loss" is referred to in respect of other bodily injuries mentioned in the Table, a differentiation exists in respect of the back. There only "permanent impairment" is referred to; not "loss". So far, at least, as the private medical practitioners are concerned, the mistake cannot be blamed on them. They can scarcely be expected to hold the convoluted language of s66 in their memories. They may even get through life without ever studying the section or the Table to which it refers. But it is essential that legal practitioners, acting for the respective parties, should specifically direct the attention of the medical witnesses to the precise language of the Act. If their initial report is not directed to the statute's criteria, it is the duty of the lawyers to redirect the attention of the medical practitioners so that their evidence to the Compensation Court - written or oral - will fasten on the exact statutory language and will offer opinions which are properly addressed to the legal issue to be determined by the judge of the Compensation Court hearing the worker's claim. This rudimentary attention to the lawyer's task is especially necessary because of the fact that the Compensation Court decides the great bulk of its work in cases such as the present upon written certificates, unelaborated by oral testimony. One can only have sympathy for the judges who are required to apply the statute upon the basis of written medical certificates which uniformly miss the statutory target. I am afraid that this case (like so many others) seems to bear the hallmarks of inattention. Either the lawyers did not notice that the medical witnesses had not addressed their minds to the precise legal question in hand. Or they did not notice it until too late. Or they did not themselves know the correct legal question. Or they simply did not care. Closer attention to detail is required of a learned profession which is paid handsomely for its work. Nevertheless, I agree with Cripps JA that the certificate of the Medical Panel (itself in part defective) did not bind the primary judge. He was entitled to derive from the various estimates given the discretionary determination which is reflected in his award. I can understand the complaint of the appellant. But the proper time to have voiced that complaint was upon the tender of the medical certificates expressed in terms which were not strictly pertinent to the statutory question. No objection was taken at that time. The various certificates thus came before Manser CCJ. Doubtless drawing upon his expertise as a judge of the Compensation Court, he produced his award. I do not believe that we should interfere in it. I agree with what Cripps JA has written about interest. Cf Bresmac Pty Ltd v Starr, Court of Appeal, unreported, 24 December 1992; (1992) NSWJB 139; KBH Constructions Pty Ltd (In Liquidation) v Correia, Court of Appeal, unreported, 23 March 1993. I also agree with the special order as to costs and with the reasons given for that order. Meagher JA I agree with Cripps JA. Cripps JA On 22 May 1988 Mr Pyke injured his back at work. On 18 October 1991 Manser CCJ made an order that he receive weekly compensation on the basis of partial incapacity from July 1988 to October 1991 and continuing. He awarded him a lump sum of $16,680.00 for permanent impairment of his back pursuant to s66 of the Workers Compensation Act 1987 and $13,900 for pain and suffering pursuant to s67, $4,000 of which he apportioned for pain and suffering from the date of injury to the date of trial (18.10.91). He also ordered the employer to pay interest on $16,680 and $4,000 at rates prescribed under the Rules of Court which, we were told, was 17.3% per annum. The employer URUTTCORN Pty Ltd T/AS COBARGO MOTORS AND BERMAGUI! AUTOMOTIVES 3 PYKE (Cripps JA) (Cripps JA) appealed on four grounds. At the hearing of the appeal, two grounds were abandoned and one was amended. The two grounds argued were: 1. That his Honour erred in awarding the respondent 20% of the maximum amount payable pursuant to s66 of the Workers Compensation Act 1987... 4. That his Honour's awards with respect to interest were excessive." On behalf of the appellant Mr Hall QC submitted that it was not open to Manser CCJ to find 20% permanent impairment of his back as a result of his injury. The dispute concerning the medical condition of Mr Pyke was referred to a Medical Panel constituted in accordance with the provisions of the Compensation Court Act 1984 and the Workers Compensation Court Act 1987. The Panel certified an assessment of the permanent impairment of Mr Pyke's back as "15% of the total loss thereof'. It further certified that he had tenderness at the L4 level on the left side (noting that the CT scan showed a disc protrusion at the L4/5 level) and tenderness of the left calf and thigh. There was much medical opinion directed to the extent of permanent impairment of Mr Pyke's back. Dr Kudelka said in a report dated 9 November 1990: "The patient has a disability which I would assess as 20-30% loss of function, lumbar spine." Dr McKee in November 1990 noted the CT scan showed an intervertebral disc bulging on the left side of the L4/L5 level and thought that Mr Pyke had: "...[A] probable 25% permanent impairment of low back function, due to his work injury." Dr Rigby on 7 May 1991 and after referring to his diagnosis of chronic lumbar disc lesion said: "He is 100% incapacitated to return to his previous occupation. He is capable of retraining and rehabilitation to employment that does not involve any bending, sitting or standing for prolonged periods. To this extent he is 30% incapacitated as a result of his injury at work." Mr Hall QC submitted that because the opinions of the doctors were not expressed precisely in terms of impairment of the back there was relevantly no evidence entitling Manser CCJ to do otherwise than accept the Medical Panel Assessment referred to above. The questions in the appeal are, first, whether the medical opinions of the doctors were probative of the extent of permanent impairment of Mr Pyke's back and, second, if not, whether the certificate of the Medical Panel precluded an award being made by reference to any impairment above 15%. Manser CCJ determined that Mr Pyke's impairment was not "a most extreme case". There is no challenge to that finding. His function then became, as Clarke JA pointed out in Jones Bros Bus Co Pty Ltd v Baker (1992) 26 NSWLR 322 at 341-342: "\..[T]o determine what percentage of the sum set out in s66(1) should, in the light of the severity of the impairment, be regarded as reasonably proportionate to the maximum percentage. If, for instance, it concluded that the severity of impairment indicated that the applicant should be awarded an amount about half that award for "a most extreme case" it would fix 30 percent as the reasonably proportionate percentage. Obviously, what percentage should be awarded in any particular case would depend upon the trial judge's evaluation of the severity of the impairment and its proportional relationship with 'a most extreme case'." I do not think it has been demonstrated that Manser CCJ erred. As I have said, the only point argued is that the finding was not open. Manser CCJ was not bound to adopt the Medical Panel's assessment (see s132(5) of the Act). In Jones Bros at 337, Kirby P (with whom Gleeson CJ agreed) said: 4 UNREPORTED JUDGMENTS "Although it was conceded that the certificate of the medical panel was not conclusive, it was submitted that it was prima facie evidence as to the nature and extent of the impairment in question. There is nothing in the Act which justifies this submission. The weight to be given respectively to the certificate of the medical panel and other evidence was exclusively for Moroney CCJ to determine." The medical opinions referred to above were relevant to the task Manser CCJ was required to undertake or, at least, he was entitled to so regard them. The circumstance that certain opinions relating to impairment were not expressed in the precise language of the section does not render the opinions of no probative value. I note that there is no record of any objection when the reports were tendered that they were not relevant to Mr Pyke's claim under s66 of the Act. Had a finding of 20% impairment been made upon the basis of the Medical Panel assessment and Mr Pyke's complaints and without any other medical evidence, it would not, I think, have been outside Manser CCJ's discretion. However, clearly enough, he had regard to the medical opinions and I am of the opinion he was entitled to do so. Accordingly, the first ground of appeal fails. The second ground of appeal, as originally framed, alleged that the award of interest was excessive because it was not in accordance with the principle set out by MBP(SA) Pty Ltd v Gogic (1991) 65 ALJR 203. The submission was abandoned for the reason that Gogic has no application to entitlements under s66 and s67 because those entitlements are fixed by reference to the money of the day of injury and not money of the day of trial. However, in lieu thereof it was submitted that interest at the rate of 17.3% per annum on $4,000 (being that part of the award under s67 for pain and suffering) was excessive because Mr Pyke was not kept out of his money with respect to pain and suffering until, in effect, the pain was experienced and the suffering occurred (see Ruby v Marsh (1975) 132 CLR 642 and Fire and All Risks Insurance Co Ltd v Callinan (1978) 140 CLR 427). Mr Poulos QC did not, as I understand him, dispute that Manser CCJ ought to have had regard to the principle in Ruby v Marsh (see also Arklow Pty Ltd (T/as Champion Press v Taavao 11 June 1992 Court of Appeal unreported). He accepted that an application of relevant principle would result in an award of interest of 8.6% on the sum of $4,000. However, he submitted that because Manser CCJ's discretion was exercised too liberally in favour of the appellant employer when apportioning the s67 entitlement, the Court should ignore the miscarriage of discretion with respect to the rate of interest on the apportioned sum. That being the only argument advanced the submission should, for self-evident reasons, be rejected. The appeal must, therefore, be upheld upon the ground that Manser CCJ erred with respect to the award of interest. The parties urged upon the Court that if the only error made was with respect to the amount of interest payable, the matter should not be remitted to the Compensation Court and that this Court should vary the award. In the circumstances of the case, and to avoid unnecessary expense, I think it is appropriate to adopt that course. In my opinion, the respondent should have his costs of the appeal notwithstanding that the appellant was partially successful. The appellant's stated ground of appeal with respect to interest which it did not abandon until the hearing, was that the trial judge erred in failing to have regard to the principles referred to in Gogic. A consequence of my conclusion with respect to the appropriate rate of interest is that the amount payable as ordered by the judge should be reduced by about $1200. Although no URUTTCORN Pty Ltd T/AS COBARGO MOTORS AND BERMAGUI! AUTOMOTIVES & PYKE (Cripps JA) (Cripps JA) objection was taken to the amended ground of appeal, I think Mr Pyke should have his costs of the appeal. Accordingly, I propose the following orders: 1. Appeal upheld in part. 5 2. So much of the order and award of Manser CCJ as required the appellant employer to pay the respondent worker interest on the sum of $4,000 part of the award of $13,900 pursuant to s67 from the date of injury to the date of trial at rates prescribed by the Rules of Court, being rates applicable from time to time and under the Supreme Court Act be set 10 aside and in lieu thereof that the appellant pay the respondent interest on the said sum of $4,000 from the date of injury on 22 May 1988 to the date of the award on 18 October 1991 at the rate of 8.6% per annum. 3. The award and order of Manser CCJ otherwise confirmed. 4. The appellant to pay the respondent's costs of the appeal. Counsel for the Appellant: PM Hall QC/S Bell Instructed by: Hunt and Hunt 20 Counsel for the Respondent: J Poulos QC/RI Harrington Instructed by: Carroll and O'Dea