MANNING VALLEY SENIOR CITIZENS HOMES LTD y CLEVELAND SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and MEAGHER JJA 13 June 1995, 29 August 1995 [1995] NSWCA 271 WORKERS COMPENSATION ACT 1987, s66 and s67, CALCULATION PERCENTAGE IMPAIRMENT OF MAXIMUM AMOUNT PAYABLE, EVIDENCE TO SUPPORT PERCENTAGE CALCULATION. FACTS: A worker was involved in an accident which took place on 19 September 1990, when she experienced the onset of back pain whilst dragging a tub of laundry. She had to stop work because of the aggravation of the pain in her back and leg. Weekly compensation was paid until 29 August 1991. The trial judge entered an award pursuant to s66 of the Workers Compensation Act in the sum of $25,000 for permanent impairment of the back (approximately 45 per cent of the maximum payable), and in the sum of $20,000 pursuant to s67 of the Act (approximately 43 per cent of the maximum payable). Counsel for the employer appellant argued that both amounts were selected by the trial judge without evidence to support them; that the figures chosen were purely arbitrary. HELD: (By Meagher JA, Mahoney and Clarke JJA agreeing) It does not matter that no medical witness gave a figure equal to that chosen by the trial judge. It was the trial judge's task to arrive at a determination of the loss by reference to all the evidence. Once he accepted the respondent's evidence at its highest, it was impossible to argue that the amounts he selected were beyond a sound discretionary judgment. ORDERS: (1) Appeal dismissed with costs. Mahoney JA : I agree with the judgment of Meagher JA. Clarke JA : I agree with Meagher JA. Meagher JA : This is an appeal by an employer against an award made in favour of the respondent worker by Burke CCJ. The award relates to an accident at work which took place on 19 September 1990, when she experienced the onset of back pain whilst dragging a tub of laundry. She worked on for a period of about two weeks before seeking medical attention. She then had a short period of hospitalisation, after which she returned to work, but doing lighter duties. She started off at 2 hours per day and gradually built up to about 6 hours. She then had to stop work because of the aggravation of the pain in her back and leg. She was not offered any rehabilitation and she was dismissed on 2 April 1991. She has not been employed since. Weekly compensation was paid until 29 August 1991. His Honour Burke CCJ found that as a result of injury received in the course of her employment with the appellant employer, the respondent worker has remained partially incapacitated for work and he entered an award for weekly payments of compensation pursuant to s40 from 30 August 1991 to date and continuing. That part of his Honour's award is not under attack. But his Honour also entered an award pursuant to s66 of the Act in the sum of $25,000 for permanent impairment of the back, and in the sum of $20,000 pursuant to s67 of the Act. These parts of his Honour's award are contested. 2 UNREPORTED JUDGMENTS Certain other points should be mentioned. The worker was born in November 1934, so is at present over 60 years of age. She left school when she was 14 and worked in take away food stores until she married. She raised five children and then returned to the work force mainly as a domestic. Although her husband had been in employment until about 1989, he was forced to retire through ill health and therefore became dependent on his wife's earnings. In the course of a long history of employment, she worked for the appellant for about fourteen years before the accident of September 1990. It was hardly enviable employment. She was the only laundress working in an institution for seventy to eighty geriatrics, all of whom were incontinent. Her work involved the cleaning of all their personal washing, together with their blankets and bedspreads. No mechanical aids were available for the movement of washing, wet or dry, in the laundry. His Honour's findings on the worker's complaints should be quoted in full: "On 10 December 1992 the applicant had multiple medical examinations. I guess if she was not bad before she must have been thereafter. Amongst others she saw Dr Evans - that is on her own behalf- he assessed a 28 per cent permanent impairment of the back, he imposed much the same types of restrictions as had been earlier suggested by Dr Rose and noted much the same consequence, that in his view it was unlikely in those circumstances that she would find employment. She was seen by Dr Clift on behalf of the respondent who regarded her as fit though he did think there was a 15 per cent permanent impairment of the back which resulted purely from constitutional changes. Dr Matheson also saw her on the same day, thought she had fully recovered from the effects of any work injury and that she lacked motivation and that was really why she was not working. The latter finding I find highly improbable. The applicant had worked for the respondent for 14 years, she did not stop when she hurt her back, she waited until it got to be almost unbearable, (have a look at Dr Rose's findings when he sees her). She has made two attempts to go back to work so to suggest that she lacks motivation seems to me to suggest an improbable consequence for a lady who had a pretty good work history and had done her job over a number of years for the respondent, apparently without complaint. There is no suggestion she was ever inefficient or incompetent in doing it. "There have been a variety of investigations. Everybody complains that the CT scan is not of particularly good quality, but certainly she has some LS-S1 narrowing and probably some protrusion and/or herniation at L4-5. Certainly she complains of sciatica on occasion and it seems to me that since 19 September 1990 there has been a marked change in the applicant's capacity, whatever degenerative changes she may have had antecedent to that day, she was able to do the job, do it as she had for a decade or so before. Since that time she has had increasing problems until unable to continue after a couple of weeks and had very little luck at getting back to work even in reduced activities. "The applicant complains of some fairly severe restrictions in the use of her back and this degree of apparent sciatica. She makes the usual complaints about walking, standing, bending, sitting, all those movements tend to exacerbate symptoms. In the practical sense she cannot do the ironing, she cannot do the vacuuming, she cannot mow the lawn, she is restricted in the general housework, all of which - plus the fact that she is not working - she finds frustrating and depressing which seems to be a fairly rational human reaction. She mentions that there has been an altered marital relationship, he(sic) husband is on the invalid URMANNING VALLEY SENIOR CITIZENS HOMES LTD v CLEVELAND (Meagher JA) 3 pension. At one stage he said he was going to leave her, but all of that seems to suggest a measure of distress and it would appear to be consequential upon the inhibitions which result from injury. In that context, the uncontradicted and accepted schedule of the applicant's, suggested probable earnings of $366. The real question becomes what is she able to earn? Any time she has gone back to work it has not lasted, it has been for reduced hours, at maximum six, at minimum two. Having regard to the types of complaint she makes, it seems to me unreal, particularly having regard to Dr Rose and Dr Evens assessments of employability, that she is going to do anything on a full-time basis. The most I could think of without being able to identify the job is that she can perhaps do some part-time lighter forms of work, maybe 10-15 hours a week, maybe around about $8 an hour, somewhere between $80 and $120 a week. I think probably her capacity to earn, her ability to earn after the injury could be assessed at about $100 a week, that leaves a not insubstantial difference. "Tn relation to s66, I have mentioned the fairly severe restrictions, the doctors note them, particularly Dr Evans and Dr Page. The applicant's account of the restrictions suggest that she has a fairly substantial inhibition in the use of her back. When you cannot walk, sit, stand, do all those normal everyday human activities, at least for any duration, to me suggests a substantial impairment of the back. In my view, proportionate to a most extreme case, Mrs Cleveland's impairment is approaching a ratio of one to two. It is certainly sufficient to pass the gateway of s67(2). It seems to me that the section says have regard to the severity of the loss, the degree of pain and suffering and its likely duration. "Having found as I have, I think she has a fairly severe loss impinging virtually on all facets of daily life. She complains of and I accept that she has substantial physical pain on activity, less so at rest. I also accept her account of considerable emotional distress. By and large I think that is fairly substantial in degree; the physical pain and the emotional distress. The only counter-availing element is the duration. As the applicant was around about 55 at the time of this injury, maybe a fraction more, so the duration is probably a bit shorter than had she been injured at 25, for instance. "Combining those sorts of indicia it would seem to me that the proportionality to a most extreme case as far as pain and suffering go is much the same order. approaching one for two." The sum awarded under s66 was about 45% of the maximum amount payable; the sum awarded under s67 was approximately 43% of the maximum amount payable. The employer has submitted that both amounts were selected by his Honour without any evidence to support them. On this argument, the figures chosen are purely arbitrary. It was pointed out, for example, that, in relation to the s66 award, the worker's own medical witnesses put her impairment at between 25% and 28%, whilst the appellant's medical witnesses put it at 15% or less. In my view, this submission is fallacious. It does not matter that no medical witness gave a figure equal to that chosen by his Honour. It was his Honour's task to arrive at a determination of the loss by reference to all the evidence. He is not the captive of the doctors. He heard the evidence of the worker, and was impressed by her. As far as I can see from reading the transcript, this is hardly surprising. Once he accepted her evidence at its highest it becomes impossible to argue that the amounts he selected were beyond a sound discretionary judgment. The appeal should be dismissed with costs. UNREPORTED JUDGMENTS Appeal dismissed with costs. COUNSEL: Appellant: C O°>CONNOR QC/P EVANS Respondent: P WEBB QC/T ROWLES SOLICITORS: Appellant: AO ELLISON AND CO Respondent: McCLELLANDS