RAPFORD PTY LTD (t/a GILBERT FOIL CONTAINER CO) v WILLIAMS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COMPENSATION COURT MAHONEY, PRIESTLEY and Cripps JJA 19 November 1992, 25 June 1993 [1993] NSWCA 225 WORKERS COMPENSATION — MOST EXTREME CASE WORKERS COMPENSATION — amputation below left elbow — trial judge finds 100% loss efficient use of arm above left elbow and consequently of whole arm — evidence of continuing severe pain — whether trial judge correct in (1) awarding maximum amount for pain and suffering under s67 as "a most extreme case", (2) making awards under Table for each loss above and below elbow, sum of which exceeds 100% of maximum amount prescribed by s66(1), and s66(3) standing over with liberty to apply s66 claim for neck injury on ground of lack of evidence as to permanency of injury. WORKERS COMPENSATION — amputation below left elbow — trial judge finds 100% loss efficient use of arm above left elbow and consequently of whole arm — evidence of continuing severe pain — whether trial judge correct in (1) awarding maximum amount for pain and suffering under s67 as "a most extreme case", (2) making awards under Table for each loss above and below elbow, sum of which exceeds 100% of maximum amount prescribed by s66(1), and s66(3) standing over with liberty to apply s66 claim for neck injury on ground of lack of evidence as to permanency of injury. Mahoney JA On 31 July 1989 Mr Gary Williams (the worker) suffered an injury in the course of his employment with the appellant company. It involved, inter alia, the crushing of his left hand, injury to his right arm and trauma in respect of his neck. The most serious injury was that to his left arm. He suffered great harm from it initially. Shortly after the accident it was amputated between the wrist and the elbow. He continued to suffer great pain and on 13 November 1989 there was a revision of the stump. He continues to suffer pain and it is at least possible that further surgery will be required. On 11 March 1992 Manser J in the Compensation Court of New South Wales made orders in respect, inter alia, of entitlements under s66 and s67 of the Workers Compensation Act 1987. The court directed interest upon amounts which it ordered "at the rates prescribed by Rules of Court". The company has appealed to this Court against his Honour's awards. The appeal is not limited to questions of law. It will be convenient to deal with the matters argued seriatim. 1. S67 AWARD: S67 provides that where a worker has suffered a loss as there provided, he is "entitled to receive... by way of compensation for pain and suffering resulting from the loss... an amount not exceeding" that provided for in the Act. It is 2 UNREPORTED JUDGMENTS provided that the maximum amount of compensation under s67 "is payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity of the loss or losses": s67(3). It has been assumed that the relevant maximum amount is $43,700. His Honour examined the meaning of "a most extreme case". He treated "a most extreme case" as in effect designating a category of cases rather than a pyramidic structure of them. His Honour said: "T feel myself not troubled in the slightest in the present case in forming the view that at the time of injury this man's case fell into the class of a most extreme one. However, if it be necessary to take a more extended view of the circumstances then the evidence would satisfy the most critical analyst that this was a most extreme case." His Honour accordingly awarded the maximum sum then applicable. Two questions arise: whether his Honour erred in principle in his construction of the phrase and, if he did not, whether his assessment was wrong. This Court has referred to the meaning of the phrase and similar phrases in other cases. I am satisfied to approach the matter upon the basis that reference to "a"? most extreme case indicates that there is a class or category of cases, into which cases of varying degrees of pain and suffering fall, all of which are entitled to a maximum award. I was initially of the view that the present did not fall within that class of cases. But, were I deciding the matter myself as at a trial, it is probable that I would not come to a conclusion different from that of his Honour. I have considered in detail the description by the worker of the pain and suffering resulting from the injury to his left arm. The descriptions given by him in the course of his evidence indicated great pain not merely at the time of the injury but since. After the initial amputation, he described a process whereby "two bones started to touch" and that produced "a shocking sensation, pain just shoots straight through the arm up into the brain more or less", and he had "an absolutely burning sensation and soreness through the arm and cramping through muscle which I am still getting". Following the second operation to alter the stump, that difficulty was improved but his stump remained "very sensitive". He has been able to go to work and work with the assistance of a tradesman. He has used a prosthesis. But when using it, he noticed "a burning sensation and just unbelievable pain in the end of the stump". He said: "T find that of a night now, if I, you know, work all day and I've used the prosthesis most of the day, at the end of the day it's absolutely like a burning sensation in it and throbbing, just up to about that distance up from the stump." His evidence was corroborated by the medical certificates tendered at the hearing. A certificate from the Sydney Pain Management Centre dated 6 February 1991 recorded that the worker "gets pain in the stump and described the nature of pain as throbbing, piercing and severely aching at night. He said that the end of the stump is very tender to touch and extremely painful if it gets bumped". The report described concomitant pain and discomfort and recorded: "He said that he gets up with it at night and walks in the house before he can go back to sleep. He goes to bed at about 10pm and wakes up at about midnight. He said that sometimes he can go back to sleep, but at other times he cannot." The report commenced: URAPFORD PTY LTD (t/a GILBERT FOIL CONTAINER CO) v WILLIAMS (Mahoney JA) 3 "He requires treatment for pain relief, psychosocial and relaxation therapy for modification of his pain behaviour and improving his coping with the pain and the amputation as well as improving his general physical fitness. All these can be provided at a pain management clinic." At the date of the hearing, his Honour had the benefit of a recent (20 February 1992) report from Dr Kevin Bleasel, a neurosurgeon. Dr Bleasel described the worker's symptoms as involving "a serious phantom pain along the line of the injury to the back of the left hand... These pains are constantly present but at night are very disturbing". The doctor recorded: "Loss of sleep because of the pain so that he walks the floor at night and uses ice baths and other means to quiet the pain in the stump and reduce the phantom pain." Dr Bleasel also recorded: "Over the time of his devastating injury he suffered a very great deal of pain in addition to the humiliating loss of his hand the ugly painful stump that was left. At one period the two bones of the forearm were touching so that pronation and supination movements of the forearm brought the bones into contact causing excruciating pain.... This particular pain was corrected by the amputation of the distal end of one of the forearm bones but he said he went through a period of agonising pain with little sympathy from his medical advisers." Reference was made in the evidence to the possibility of further surgery to relieve the pain. What will in fact happen and with what success is not clear. The determination of whether this is "a most extreme case" involves, inter alia, two things: a factual determination of what pain the worker has suffered and presently suffers and his prospects for the future; and the categorisation of that degree of pain and suffering. I do not find error in the judge's determination of the first of these. I understand him to have accepted as a fact that the worker has suffered and will continue to suffer continuous pain of a high degree. The categorisation of such pain is a matter on which minds may differ and, within the existing authorities, a trial judge's discretion must, to the proper extent, be respected. The parties are entitled, as on a rehearing, to the judgment of this Court upon such matters but this Court will not intervene unless, within the established authorities, it is satisfied that the assessment made by the judge is beyond what was open to him. Views may differ as to the significance of serious pain. The comparison of it with, eg, paralysis, loss of sight and the like is a qualitative one and, to an extent, idiosyncratic. Accepting as I do the degree of pain which his Honour thought to exist, I am not satisfied that his Honour was wrong in treating the worker's continuous pain as "a most extreme case''. It was open to him to take the view of such pain which clearly he did. I do not mean by this that ordinarily a worker whose injuries allow him to return to work and act generally in the way the present worker does will fall within this class. But I see the evidence of the worker and those speaking for him in this case as establishing a special case. Therefore this ground of appeal should fail. 2. S66: S66(1) provides that "a worker who has suffered of a thing mentioned in the Table to this Division..." is entitled to "the amount equal to the percentage of" the statutory amount "set out opposite to that loss in that Table". 4 UNREPORTED JUDGMENTS The Table in the statute provides, in respect of arm injuries: "Loss of right arm at or above elbow 80% Loss of right arm below elbow 15% Loss of left arm at or above elbow 15% Loss of left arm below elbow By s65(1) "loss" in relation to a thing means: "(a) the loss of that thing; or (b) the permanent loss of the use, or of the efficient use, of that thing". The judge stated the issue raised before him as follows: "So far as compensation under s66 is concerned, the contest really is as to whether the applicant should be compensated on the basis of a percentage loss of efficient use, or loss of the left arm below the elbow or above the elbow, or both". His Honour concluded that the worker "has lost 100 per cent of his left upper limb and that this amounts to a total loss of the limb in its respective component parts, that is to say below the elbow and above the elbow". His Honour said: "So far as the assessment of the loss of function of the right arm, I accept Dr Bleasel's assessment at 15 per cent and apportion that loss as between the arm below the elbow and above the elbow equally." The award as it was drawn up was, in this regard, in the following terms: "1. That the respondent pay the applicant, as lump sum compensation under $66, $65,512.50 in respect of 100% loss of use of the applicant's left arm at or above the elbow, $61,145.00 in respect of 100% loss of use of the applicant's left arm below the elbow, $5,241.00 in respect of 7.5% loss of use of the applicant's right arm at or above the elbow and $4,913.43 in respect of 7.5% loss of use of the applicant's right arm below the elbow." Counsel informed the court that the former sum $65,512.50 was 75 per cent of the maximum amount under s66(1) at the date of the injury and that $61,145 was 70% of the maximum amount under s66(1) at the same date. As I have said, the amputation was between the wrist and the elbow. The worker did not physically lose the arm at or above the elbow: his loss was below the elbow. But the learned judge, in my opinion, correctly, saw the definition of "loss" as warranting him considering the loss not merely of the physical member but also of the efficient use of a specified member. He was not in error in concluding that there was a loss of the efficient use of the whole arm. What his Honour then did was to give amounts separately in respect of the loss of efficient use of the upper and the lower part of the left arm. The result of that was that he gave in total more than 100 per cent of the maximum amount prescribed by s66. With respect to those who are of a different opinion, I find difficulty accepting that this is the effect of s66. If there be a loss of, eg, the left arm at or above the elbow, that, if the loss be physical, involves as part of it the loss of the left arm below the elbow. If the reference is to loss of efficient use only, it is difficult to see, special cases apart, that there will be a loss of the efficient use of the left arm above the elbow but no such loss of the arm below the elbow. However that be, what is in issue in this case is the particular award which the judge made. He distinguished between compensation on the basis of a percentage of loss of efficient use and compensation for physical loss of parts of the arm. There was, as his Honour found, 100 per cent loss of the efficient use of the whole URAPFORD PTY LTD (t/a GILBERT FOIL CONTAINER CO) v WILLIAMS (Mahoney JA) 5 of the arm. It may be that his Honour did not correctly address the problem posed by s66 and the Table. In respect of "arm injuries" the Table presupposes that there will be findings in respect of loss of, or loss of efficient use of, an arm above and below the elbow. The judge is assumed to make an assessment of the loss of, or loss of efficient use of, each portion of the member and then to make a separate assessment of compensation in respect of the loss of each portion of the member as specified in the statute. In the case of "arm injuries" that may produce the result that the total amount awarded in respect of an arm is more than the statutory amount specified in s66(1). No proper finding was made by the judge in this regard. However, I think it may be inferred that his Honour, on the basic facts he found, would have concluded that there was loss of efficient use of both portions of the left arm in toto. If that be so then he would be entitled to award compensation on the cumulative basis to which I have referred. Note C to the Table provides that if a loss "may be compensated by a combination of items in the Table or by a proportionate loss of a single item, the loss shall be compensated by a proportionate loss of a single item...". I do not think that that provision applies because, in the Table, there is no "single item" relating to the arm as a whole. S66(2) provides a further limit of the total amount which may be awarded for "more than one of the losses mentioned in the Table...". Any award must of course comply with that provision. It was further submitted that the learned judge erred in awarding compensation by reference to percentages of the maximum amount prescribed by s66(1) at the date of injury rather than the date of trial. What his Honour did is, I think, in accordance with the existing authorities. I find no error in what his Honour did in this regard. His Honour made awards by reference to the loss of efficient use of the right arm. For the reasons I have set forth, I see no error in this regard. 3. INJURY TO THE NECK: The worker claimed compensation for injury to his neck. His application referred, inter alia, to the award of a s66 lump sum in relation to the impairment of his neck. Dr Bleasel said that there was "a restriction of movement and pain and he has difficulty driving because of this. I would estimate his loss of function of the neck as ten to fifteen per cent". The learned judge said: "So far as the impairment of the neck is concerned, however, Dr Bleasel has not expressed himself in such a way that I can confidently infer that the condition of the worker's neck is permanent. Consequently I stand that matter over and grant liberty to apply." It was submitted for the company that his Honour erred in not dealing with the claim for compensation under s66 for this injury. I would not wish to limit the discretion which a court such as the Compensation Court of New South Wales has to ensure that its procedures are adjusted to produce a just result. But, upon the evidence before this Court, I do not think that there was proper reason for the court to make the order that it did. I accept that a court may, in appropriate circumstances, itself stand over a procedure. But the order was made in this case because of what the judge saw as an inadequacy in the evidence touching the permanency of the 6 UNREPORTED JUDGMENTS condition of the worker's neck. I do not think that this is a reason for standing a matter over to an unspecified date, with merely liberty to apply. Prima facie, parties are entitled to have the matter decided upon the evidence which is available to the court at the time. There may be reasons, which do not appear before this Court, which would justify an order such as that which was made. But in my opinion, on the evidence before this Court, his Honour should have proceeded to determine the whole of the application. For these reasons, I am of opinion that the award should be set aside and the matter returned to the Compensation Court to complete the determination of the matter and to make such orders as, in the light of the reasons of this Court, are appropriate. Each party should bear its or his own costs of the appeal. Priestley and Cripps JJA We agree with almost the entirety of what Mahoney JA has said. The one matter upon which we have a different view is probably more formal than substantial although it has the consequence of producing a final order other than that suggested by him. The difference relates to the aspect of the appeal dealt with by Mahoney JA under the heading "3. INJURY TO THE NECK". In our view it was within the competence of the trial judge, under the somewhat more relaxed procedures available to the Compensation Court under the Workers Compensation legislation than to many other courts, to take the course that he did. We do not think we should interfere with the order made by the trial judge standing over the aspect of the claim before him concerning the condition of the worker's neck. We therefore think that the appeal should be dismissed with costs. We would point out that under the order proposed by Mahoney JA very much the same position would be reached as under the order we favour. Either way, as we understand it, what would happen next would depend on some action being taken by one of the parties to bring the question concerning the condition of the worker's neck back before the Compensation Court for decision. In our view the simpler course in the proceedings in this court is to make the order we have just indicated. The court's order will therefore be that the appeal will be dismissed with costs. The appeal is dismissed with costs. Counsel for the appellant: J L Sharpe Solicitors for the appellant: Moray & Agnew Counsel for the respondent: Miss C Simpson QC / Ms T Kavanagh Solicitors for the respondent: McMahon & Drake