FRIDAY COTTAGE AUSTRALIA PTY LTD v MISIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and HANDLEY JJA 5 June 1995, 22 August 1995 [1995] NSWCA 156 WORKERS COMPENSATION — lump sum — Trial Judge's award not supportable. The worker was injured in 1989. In 1992 Manser CCJ awarded weekly compensation for partial incapacity, finding that the worker was able to work. In 1993 the worker sought a lump sum award for 30% permanent impairment to his back. Manser CCJ awarded $38500 or 73.45% of the award "payable only in a most extreme case". A medical panel had assessed the impairment to the worker's back at 20%, and three doctors at 50%, 25%, and 10% respectively. Held: His Honour's award could not be supported. Compensation was reassessed in accordance with the findings of the Medical Panel. ORDERS 1. Appeal allowed with costs. 2. Set aside the award of $38,500 as lump sum compensation under s66 in respect of permanent impairment of the applicant's back and substitute an award of $10,482 with effect from 16 February 1993. 3. The respondent to have a certificate under the Suitors Fund Act. Mahoney JA I agree with the judgment of Handley JA. Priestley JA I agree with Handley JA. Handley JA This is an appeal from an award of lump sum compensation under s66 of the Workers Compensation Act 1987 made by Manser CCJ on 16 February 1993. The claim arose from a work injury on 27 August 1989. The Judge determined the worker's claim for weekly compensation on 4 March 1992. He was not satisfied at that time that his condition was permanent and he declined at that stage to assess his lump sum entitlements. The Court has been supplied with a copy of this judgment which was not in the appeal book. In the judgment under appeal the Judge reviewed the worker's evidence and concluded: "... the applicant's apparent carelessness with the truth, raises serious doubts about his veracity generally, and produces a situation to my mind where I cannot rely upon the applicant's complaints... " Nevertheless there was no dispute that the worker had a disc lesion and was partially incapacitated. His application for determination as amended on 28 January 1993 claimed a lump sum award under s66 for 30% permanent impairment of his back and a further award for 30% permanent loss of the efficient use of his right leg at or above the knee. The Judge awarded $38,500 or 73.45% of the maximum for losses of that kind which was "payable only in a most extreme case". See note (a) to the Table at the end of Division 4. He declined to make an award for permanent loss of the efficient use of the worker's right leg but awarded $17,500 under s67 for pain and suffering. The employer did not appeal from the s67 award and the worker did not cross-appeal from the refusal of the Judge to award lump sum compensation for his right leg. 2 UNREPORTED JUDGMENTS Following his Honour's first judgment the WorkCover Authority referred the dispute between the parties as to the extent of the permanent impairment of the worker's back to a Medical Panel. On 13 August 1992 the Panel assessed the worker as having suffered a permanent impairment of his back of 20%. The Judge also had before him evidence in report form from doctors qualified by the parties on this issue. Dr Maniam, qualified by the worker, in his report of 18 October 1991 concluded that the worker's "low back function" was curtailed by fifty per cent of normal. Dr Conrad, also qualified by the worker, in his report of 6 December found that the worker had a twenty five per cent permanent impairment of the use of his back. On the other hand, Dr Morris, qualified by the employer, in his report of 13 February 1992 expressed the view that "there is at most a ten per cent loss of use of his back." In these circumstances it is clear that his Honour's award equivalent to 73.5% of a most extreme case cannot be supported. It is more than double the percentage claimed by the worker in his application for determination and is not supported by any medical evidence. It is inconsistent with the Judge's earlier finding that the worker had been able to earn $320 a week in some suitable employment since 1 August 1990. The highest percentage figure supported by the evidence was fifty per cent but this was based on the worker's low back function and did not address the issue under the statute. Moreover Dr Maniam had accepted the worker's history and complaints which the Judge was not prepared to do. His Honour's award must therefore be set aside. This Court has the benefit of his findings on credit which were not challenged and this being a rehearing, there is no reason why we should not reassess. Both parties asked us to do so. In my opinion the Court should adopt the view of the Medical Panel which approximates that of Dr Conrad and substitute an award of $10,482 based upon 20% permanent impairment of the worker's back. The following orders should be made: 1. Appeal allowed with costs. 2. Set aside the award of $38,500 as lump sum compensation under s66 in respect of permanent impairment of the applicant's back and substitute an award of $10,482 with effect from 16 February 1993. 3. The respondent to have a certificate under the Suitors Fund Acct. 1. Appeal allowed with costs. 2. Set aside the award of $38,500 as lump sum compensation under s66 in respect of permanent impairment of the applicant's back and substitute an award of $10,482 with effect from 16 February 1993. 3. The respondent to have a certificate under the Suitors Fund Act. COUNSEL: Appellant: CE O° CONNOR QC/T GOTTERSON Respondent: DW ELLIOTT SOLICITORS: Appellant: HUNT AND HUNT Respondent: ANTHONY MALOUF AND CO