STATE OF NEW SOUTH WALES v SINCLAIR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, COLE JJA and ROLFE AJA 18 July 1996, 18 July 1996 [1996] NSWCA 487 ASSESSMENT of s66 and s67 Workers Compensation Act 1987 sums by trial judge not disturbed — s67 sum include assessment for "distress". Cole JA The employer has appealed against an award under the Workers Compensation Act 1987 made by Burke CCJ in favour of the respondent. His Honour awarded lump sum payments pursuant to s66 of $39,000 in respect of a 50% impairment of the back, $19,380 in respect of a 20% permanent loss of the efficient use of the left leg at or above the knee and $14,535 in respect of a 15% permanent loss of efficient use of the right leg at or above the knee. In addition his Honour awarded the sum of $38,000 pursuant to s67 in respect of pain and suffering which equated to 59% of the maximum allowable in respect of a worst case. Two grounds of appeal were pressed. The first was that the awards pursuant to s66 were excessive and against the weight of the evidence. There was medical evidence supporting a permanent impairment of the back of up to 30% and in respect of each leg at or above the knee of up to 10%. The trial judge regarded these as "organic assessments" but was of the view that there was a "super added component of further restriction in the use of the legs because the use of them tends to promote excess back pain, and the applicant thereby desists from using them". This resulted in a greater permanent loss of the efficient use of portions of both lower limbs!. It was contended that there was no evidence to support that approach. I do not think that is so. Dr Bleasel's report notes a complaint of "difficulty walking due to pain in the back and legs'. It is thus apparent that activity with the legs caused pain not only in the legs but in the back and, having regard to the trial judge's capacity to assess the quality of the respondent's evidence, I see no basis for interfering with his assessment of the quantum of the loss of function found in respect of the s66 claim. As was made clear in Manning Valley Senior Citizens Home Ltd v Cleveland3, a court is not bound by an expression of medical opinion. The second ground of appeal argued was that the s67 award was excessive. The appellant seized on a passage in the judgment in which his Honour discussed the appellant's deprivation of the opportunity to work. That was said to be a misdirection 1. See the Department of Public Works v Morrow (1986) 5 NSWLR 166. 2. Appeal Book at 37 3. (Unreported) NSW Court of Appeal, 29 August 1995. 2 UNREPORTED JUDGMENTS in relation to a s67 claim. As was made clear in the Alvorac General Engineering Pty Ltd v Arlotta4+ pain and suffering in s67 means "actual pain or distress or anxiety suffered or likely to be suffered". It seems to me that properly understood the trial judge was addressing an aspect of "distress" which flowed from the loss suffered for which s66 payments were awarded. Indeed His Honour said so in terms. In my opinion this ground has not been made out. The appeal should be dismissed with costs. Meagher JA I agree. Rolfe AJA I also agree. Meagher JA: The orders of the Court will be as stated by Cole JA. Appeal dismissed with costs. Representation: Counsel for the Appellant: P Morris Solicitors for the Appellant: Moray and Agnew Counsel for the Respondent: J Sharpe Solicitors for the Respondent: Jones Staff and Co 4. (1993) 29 NSWLR 734; see also Carter Corporation Pty Ltd v Medway (Unreported)NSW Court of Appeal, 12 July 1995.