Compensation Court of New South Wales CITATION : Gajic v Tempo Services Limited [2001] NSWCC 143 PARTIES : Vivkica Gajic Tempo Services Limited MATTER NUMBER(S) : 52836 of 1999 JUDGMENT OF: Campbell CJ at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 14/02/01, 19/02/01 EX TEMPORE JUDGMENT DATE : 02/19/2001 FOR APPLICANT: Mr T Muir instructed by Steve Masselos & Co LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M T Crimmins instructed by P W Turk & Associates JUDGMENT: 1. The applicant claims lump sums under the Workers Compensation Acts in respect of injuries to her hands which Commissioner Ashford, as she then was, found the applicant to have suffered arising out of and in the course of her employment with the respondent between April 1990 and January 1991. 2. On 1 May 1995 Ashford C had awarded the applicant compensation under s 66 in respect of 5 per cent loss of the efficient use of each hand. That amount did not cross the threshold under s 67(2) and there was no award under s 67. 3. Presently the applicant claims to have suffered as a result of the injuries 12.5 per cent permanent loss of the efficient use of the each hand, that is, a further loss of 7.5 per cent in respect of each hand. 4. Mr Muir of Counsel appeared for the applicant and Mr Crimmins of Counsel for the respondent. Counsels' addresses have been recorded and I do not need to refer to each submission merely to ensure that it is noted. 5. The hearing took a considerable time largely because the applicant, a lawyer in her native country, was, as she had been before Ashford C, "a difficult witness who was garrulous and who appeared determined to tell her story without reference to questions asked". Nonetheless, the matters at issue fall within a relatively small compass and I can deal with them quite shortly. 6. Ashford C in her judgments (of which there were two) referred to the evidence of a considerable number of doctors. She accepted the views of Dr Conolly and commented "I have particular regard to the opinion of Dr Conolly who is an eminent hand surgeon". 7. In the light of that comment, Dr Conolly's connection with the applicant's treatment and her rather determined personality I do not find it at all surprising that she "insisted" upon the operations upon her thumbs being conducted by that doctor despite attempts to direct her to other hand surgeons. 8. By the time the matter came before Ashford C for lump sum assessment the applicant had had a release operation on the right middle finger recommended by Dr Conolly and carried out by Dr Kapila. Mr Crimmins' rather vigorous assault upon the applicant's genuineness seems at odds with her acceptance that that operation was successful. 9. In her judgment on the assessment Ashford C referred to two reports of Dr Conolly of 30 January 1995 and said:- The report of Dr Conolly is the only updated assessment dealing with any loss of function or use of the hands. It is his view that the applicant has a 5 per cent loss of function of the right hand and a 5 per cent loss of function of the left hand from flexor tenovaginitis, which in his view is work related. It is also his opinion that if the applicant has no further treatment, then the condition is permanent. I note that he is of the opinion that surgical release is advised in relation to residual "triggering" of both thumbs. The Judge also said:- I have regard to the applicant's evidence that she is still contemplating further surgery, it appears that she is not particularly keen to have such treatment. I am satisfied that I should accept the assessment made by Dr Conolly and find that the applicant has a 5 per cent loss of each hand as a result of injury. 10. In fact the applicant quite soon decided that she would undergo surgery, as Dr Conolly had recommended and pursued her insistence upon having that surgery and having it conducted by Dr Conolly. The respondent's insurer was of the view, no doubt on the basis of the medical advice it received, particularly from Dr Mowbray and Dr Kuo, that surgery was unnecessary. A dispute continued on this issue for some years. 11. Ultimately, in July 1999 the insurer agreed to fund the operations which were carried out by Dr Conolly as to the right thumb on 8 October 1999 and as to the left thumb on 10 December 1999. 12. I am quite unpersuaded by Mr Crimmins' submission that the applicant, having failed to obtain an award under s 67, had insisted upon undergoing surgery in order to obtain an assessment which would cross the threshold under s 67(2). 13. Dr Conolly advised as early as May 1991 that there should be an operative release of the thumbs and the right middle finger. 14. In a report of 13 July 2000 Dr Conolly said that before the operative procedures the applicant had an approximate 15 per cent loss of the function of each hand but that that degree of loss was not permanent because the operation's had given some relief. 15. In a report of 7 June 2000 the doctor had said:- ...it is my opinion that Mrs Gajic has an 8 per cent loss of function of her right hand. ...and an 8 per cent loss of function of her left hand. ...which can be said to be related to her work as a cleaner 16. In a later report of 16 August 2000 Dr Conolly said: ...Mrs Gajic has an approximate 10 per cent permanent loss of the efficient use of each hand 17. There is no evidence to explain the increase from 8 per cent to approximately 10 per cent. A possible explanation may be that in the second letter the doctor was allowing some small amount for loss of use due to aging changes. 18. The applicant bears the onus of establishing the degree of loss and I consider that I should accept that the applicant has suffered 8 per cent loss of the efficient use of each hand as a result of the employment injury. 19. I am fortified in that view by the opinion of Dr McKessar, who examined the applicant for the respondent. The doctor said in his report of 11 July 2000:- As you are aware I found this patient difficult to examine, but you will note that Professor Conolly has suggested that this patient has an 8 per cent permanent loss of efficient use of her right hand and an 8 per cent permanent loss of efficient use of her left hand which he attributes to her work as a cleaner. I had assessed her as having a 12 per cent permanent loss of efficient use of her right and left hands, of which I would have regarded one third as being due to pre-existing constitutional and degenerative changes occurring outside her work. From this you will see that we both believe quite separately that she has an 8 per cent permanent loss of efficient use of both hands attributable to her work. 20. Dr Endrey-Walder, who examined the applicant for her Solicitors, reported in June 2000 that he considered that after the operations the applicant was left with a 12.5 per cent loss of efficient use of each hand. 21. Dr Mowbray, who examined the applicant for the respondent on a number of occasions, said in a report of 17 July 2000:- Following my examinations of this person any impairment in the hands is based solely on her symptoms as there are no physical findings which would confirm any impairment. I believe her impairment would be not more than loss of 5 per cent of the efficient function of each hand and this could be considered due to her employment. 22. Dr Conolly as the treating doctor was in a better position than Dr Endrey-Walder or Dr Mowbray to form a view on the correct assessment. 23. Further, reliance upon Dr Conolly's assessments ensures the correct comparisons in that Ashford C's award was based on the doctor's assessment at the relevant time and an award based on his present assessment more probably than not reflects the increase in the degree of loss of efficient use. 24. There is a good deal of other medical material before me, however, I do not consider it necessary for me to refer to it to explain my findings and award. 25. The award I shall make together with the earlier award crosses the threshold provided in s.67(2) and the applicant is now entitled to an award under s.67. 26. The amount provided for a most extreme case is $48,400 (injury before 1 April 1991) and the task of the Court is to arrive at a figure duly proportional to that sum. 27. The applicant is now 66 years of age and, apart from the future, she has suffered pain and discomfort and restriction of activity and undergone operative treatment. The pain, discomfort and restriction will continue. No further surgery is suggested. 28. The applicant made it clear that she is not in continuous pain, but that she suffers pain in her hands upon activity, especially lifting. She does suffer some other symptoms including pins and needles, however, they can probably be explained by a mild carpal tunnel syndrome which was expressly and correctly not relied upon in these proceedings. The applicant does take pain killing medication which she finds effective. The hands are a part of the body in much use in ordinary living and pain and restriction upon such use must be a pervasive feature of ordinary life for the applicant. 29. In my view an appropriate proportionality is maintained by an award under s 67 of $9750. 30. My findings may be summarised as follows:- (a) The applicant suffered injury to her hands arising out of and in the course of her employment with the respondent between 18 April 1990 and 9 January 1991. (b) As a result of the said injury the applicant suffered:- (i) 8 per cent permanent loss of the efficient use of her right hand. (ii) 8 per cent permanent loss of the efficient use of her left hand. (c) On 1 May 1995 an award was made in favour of the applicant in respect of 5 per cent permanent loss of the efficient use of each hand resulted from the said injury. 31. I make an award for the applicant. 32. Under s 66 in the sum of $2031.75 in respect of a further 3 per cent permanent loss of the efficient use of the right hand. 33. In the sum of $1886.63 in respect of a further 3 per cent permanent loss of the efficient use of the left hand. 34. Under s 67 in the sum of $9750 35. Medical expenses s 60. 36. Respondent to pay the applicant costs with a second conference for Counsel at $200. Mr T Muir instructed by Steve Masselos & Co appeared for the applicant Mr M T Crimmins instructed by P.W. 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