Compensation Court of New South Wales CITATION : Mifsud v Australian Guarantee Corporation Limited [2001] NSWCC 47 PARTIES : Fiona Pauline Mifsud Australian Guarantee Corporation Limited MATTER NUMBER(S) : 35498 of 2000 JUDGMENT OF: Campbell CJ at 1 CATCHWORDS: Proceedings to Obtain Compensation - Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 13/03/01, 19/04/01 DATE OF JUDGMENT: 04/19/2001 FOR APPLICANT: Mr E Smith instructed by Gerard Malouf & Partners LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M F Batten instructed by Hickson Wisewoulds JUDGMENT: 1. The applicant in this matter claims lump sums in respect of an injury arising out of and in the course of her employment on 17 June 1998 when she fell on some stairs. Mr Smith, of counsel, appeared for the applicant and Mr Batten of counsel, for the respondent. Counsels' addresses have been recorded and it is therefore unnecessary for me to refer to each submission, merely to ensure that it is noted. The applicant is a 28 year old unmarried woman who worked in the Finance Industry with an excellent work history, both before and after her injury. On 17 June 1998 she descended the stairs at work, slipped, landed on her bottom and bounced down one or two stairs. She broke her fall with her left arm which became numb but has since recovered. The strap of her handbag which was across her right shoulder caught in the stair rail pulling her right shoulder back. She was about to go home and in fact did so. She returned the following morning to work to report the injury and also attended the Argyle Street practice, a medical clinic where she saw Dr Wu. 2. It is convenient to say that the applicant for some time, in fact years, had as her local general practitioner the practice of Dr Sing and partners in Fairfield. Mr Batten rather suggested that there was something slightly sinister in the applicant attending Dr Wu rather than returning to Dr Sing on this and other occasions. However, the applicant had moved to Parramatta and it seems to me that nothing can be taken from the fact that she consulted that new practice, although she did continue to go from time to time still back to Fairfield to Dr Sing. Dr Wu's short report and his notes refer on the first visit to the applicant only complaining of lower back pain. The doctor did mention on a subsequent visit on 14 February 1999t she had complained of pain in her back, neck and shoulder. However, I accept the applicant's evidence that she did have pain in those areas at the time and, indeed, she had been to see Dr Jabbour, a chiropractor, within a couple of days of the accident. The chiropractor noted the fall onto the outstretched arm, stabbing pain in the mid thoracic region of the spine, as well as the left right trapezius muscles, a headache and also pain in the lower area of the back. 3. The applicant over the ensuing period had regular treatment, initially, three times a week and then once a week from Dr Jabbour. She attended Dr Wu's practice, but not necessarily seeing him on numerous occasions. Mr Batten drew attention to the fact that there was no note in the clinical notes dealing with the conditions such as dermatitis, colds and the like, referring to the consequences of the fall. I do not think very much can be drawn from that. Doctors in such practices tend to concentrate on the particular issue about which the applicant saw the doctor, although it is fair to say that the applicant did not seek much medical treatment, relying rather upon the chiropractic treatment. More important, I think, is the fact that the applicant was on three occasions, both by Dr Wu's practice and Dr Sing's, referred to appropriate specialists. However, she never attended any of those appointments. 4. I found her reasons for not doing so somewhat unconvincing. She is a somewhat anxious and nervous person and she stressed the hassles, as she put it, of getting to the doctors. I think the proper conclusion to be drawn is that while she no doubt did suffer from pain and discomfort it was not of the marked degree which her evidence would retrospectively suggest. It is, as I said, however, correct to say that the applicant did continue to have repeated treatment from the chiropractor. 5. The applicant describes her present condition at the time of the hearing as follows: Question - Currently, what is the situation as far as your low back is concerned? Answer It's still sore. Question You have mentioned a bruise, it still feels like a bruise; is that still the situation. Answer - Yes, it is. Question - You have mentioned sitting as a problem, is that still a problem for you now. Answer - It is, yes. Question - What about your right leg. Answer - Yes, yes. It travels down there like I've got pain in my lower back - depending on how painful it is it will eventually go down my leg. Question - Okay. Answer - Down towards my hamstring area. Question - But that is an intermittent thing at this stage. Answer - Yes. Question - Your neck Answer Yes. Question Can you tell us what the current situation is with that. Answer - It's stiff, it's sore, kind of like pins and needles I guess. Question - Yes. Answer - And down my shoulder it gets - it feels like its numb and it does down there to about there. Question - You are indicating your right elbow. Answer - Yes. And it feels like somebody hit your funny bone, but it's constantly there. Question - Okay. Answer - That sort of numbness. Question - Do any things aggravate that. Answer - I do not know what aggravates. Question - Make worse. Answer - Yes, apart from obvious things like probably trying to lift something that I wouldn't lift anyway now. Question - Yes. Answer - I can't honestly say what aggravates this. I know what aggravates my lower back and that is basically down for too long,you know, I basically fidget around a lot now and I don't sit down for long. 6. The applicant had given evidence that she had been extremely active prior to the injury with aerobics, dancing with the Sydney Dance Company and other activities, all of which she had been obliged to cease. 7. The issues before me are whether she has suffered permanent impairment of her neck, her right arm, her back and her right leg, and if so the degree of that impairment. There is no treating specialists. There is the short note from Dr Wu and his clinical notes, and other similar material. There is a report from Dr Jabbour of 12 April 2000 which says that the prognosis is good if a particular program of care is maintained in order to fully correct the spinal problem, rather than deal with symptom relief. The doctor does, however, say that: It is likely she will continue to suffer exacerbations of both her lower back and neck pain from prolonged sitting, especially in front of a PC and from lifting or bending. Ms Mifsud seems to have suffered some impairment of her back and neck. 8. Dr Jabbour refers to permanent impairment be in the range of 10 to 15 per cent, but it is not clear whether she is speaking of those particular items or in a global way. Mr Smith properly did not press upon me, having regard to the nature of her qualifications, that too much could be drawn from that sort of figure. I do think, however, it does lend support to the proposition that the applicant does have some continuing impairment of back and neck. The doctor does not refer to the right leg. She said that she could not proffer a view in relation to the efficient use of the right upper limb at or above the elbow, making the observation as I've not performed any examination of the elbow region. 9. The applicant was examined for her solicitors by Dr Maniam on 30 April of 1999. It perhaps lends some little force to the observations I made before as to the non-attendance on treating specialists, that the applicant was able to bring herself to go to the qualified specialists. Dr Maniam had this to say as to diagnosis: 1. Musculoligamentous strain, cervical spine 2. Traumatic right shoulder, peri,arthritis 3. Musculoligamentous strain, lumbar spine. 10. The doctor had referred to x-rays of both shoulders which were normal. It is interesting to note that the doctor then said: She is not on any treatment at present and she attended mainly to chiropracty until 11/1/1999. I informed her that no further treatment will be necessary apart from the judicious use of the anti-inflammatory medication. Apart from this I've asked her to shed all the excessive weight. 11. He referred to several suggestions he had made: These alone will see her through to stability and maximal improvement. I am optimistic that within a space of another 12 months the symptoms will subside. The current ongoing disability is as described. 12. It is, I think, somewhat difficult to understand against that proposition how the doctor arrived at a percentage of permanent impairment and, indeed, what he then said was: The current percentage losses for the areas of injury are as follows:- 1. Percentage permanent impairment neck, 10 per cent. 2. Percentage permanent loss of efficient use of the right upper limb at above the elbow, 10 per cent. 3. Percentage permanent impairment of the back, 15 per cent. 13. I think the best one can make of that report is that the doctor expected there to be improvement and, indeed, on the face of what he said, total improvement. However, if there was no improvement, at that stage then these were the percentages he assessed. I think it may be taken that he had in mind that, if there was in fact no improvement, that would remain permanent impairment for the future. It will be observed that Dr Maniam made no assessment of impairment of the right leg, nor did he suggest that there was any such impairment. I should perhaps indicate that having regard to what fell during addresses the periarthritis is an inflammation of the tissues of the joint. 14. The applicant was seen by Dr Giblin for her solicitors on 16 August 2000. The doctor had a history which was correct. He had symptoms described which included references to the back, numbness in the arms and legs, discomfort around the base of the neck, aggravated by looking up to shelves at home or trying to lift groceries or wet laundry. He also noted her inability to return to her sporting activities of jogging, dancing, vacuuming, mopping or going to the gym. 15. The doctor carried out an examination which included an examination of the neck. The doctor expressed the view that as a result of the injury the applicant had suffered 12.5 per cent permanent impairment of her back and a 5 per cent permanent loss of efficient use of her right leg at or above the knee, taking into account all symptoms in the right leg as a whole. I am unable to read that account as the doctor lending any support to a view that there is permanent impairment of either the neck or the right upper limb. Dr Giblin is an experienced orthopaedic surgeon, who commonly provides medico-legal reports. The report being as it is, it seems to me that his indication is to be taken as limiting the permanent impairments to the matters I have noted. A factor in favour of such an interpretation is the view of Dr Maniam that the applicant was likely to continue improving. 16. Dr Sheehan examined the applicant for the respondent's solicitors. Dr Sheehan is essentially a general practitioner. I note that he made an observation relating to the fall, that he apparently enquired why the applicant was using the fire stairs. He then referred to the fact that the applicant had been sitting in the stairwell for ten minutes, that she said no other staff passed by. He made the observation that that puzzled him because the applicant had said that people did use the fire stairs. The general indication by the doctor of an investigation as to this sort of matter and the raising of doubts of that kind suggest to me that this doctor was directing his mind to investigation at a level which leads one to look with some care at his approach to the whole subject matter. 17. Dr Sheehan was of the view that the applicant was exaggerating her complaints and that she suffered from no permanent impairments, neck, back, arm or legs. He sets out his reasons for coming to that conclusion. The doctor was supplied with extensive notes from Dr Wu's practice and having read those the doctor drew a conclusion, perhaps, I think, more suitable to be drawn by a Court than by a doctor, that the absence of particular complaints supported his conclusions as to the applicant's true condition. 18. Dr Bodel examined the applicant on 4 February 2000. The doctor thought that the applicant's complaints were genuine. He noted that there was ... ... no spinal deformity. The patient complains of tenderness in the trapezius muscles at the base of the neck on both sides but there is no palpable involuntary muscle spasm. She has a reduced range of neck flexion extension and rotation and there is no crepitus on neck movement or pain on resisted movement, the patient today has shoulder abduction to 90 degrees on both sides and forward flexion to the same level but there is no restriction of shoulder rotation. There is no wasting in either shoulder girdle and no evidence of subacromial impingement in either shoulder. The patient has no lack of elbow, wrist or hand movement and no sign of wasting or distal neurological abnormality in either upper limb. There is no reflex abnormality or sensory impairment in the upper limbs. The patient has a good range of lateral bending and rotation of the thoracic spine and no spinal deformity and in particular no scoliosis. There is no loss of lumbar lordosis and the patient reaches forward in flexion with her hands to ankles. There is some slight hamstring tightness. There is no discomfort on extension and straight leg raising is 80 degrees on both sides. There is no wasting in either thigh or calf and no reflex abnormality or sensory impairment in the lower limbs. 19. The doctor in that report referred to some exercises which he thought would be of assistance to the applicant. He was of the view that there was at that time a 5 per cent impairment of function of the neck, 5 per cent impairment of function of the back, but he did not think that the assessments were necessarily permanent and he anticipated complete resolution of symptoms with appropriate exercise. He said he did not see any clinical evidence of structural damage in the neck or back which would lead to any final work-related permanent impairment of the neck or back. 20. The doctor examined the applicant again on 16 November 2000. The matters seen were essentially the same, however the doctor did see a CT scan of the lumbosacral spine of 4.3.000. He said: This is reported as being normal. On my viewing of the films there is a possibility of a minor central bulge at L5/S1 and the patient really needs an MRI scan to be absolutely certain. From a clinical point of view, however, this test is not required. 21. The doctor was of the view that the applicant suffered a soft tissue injury to the neck and a probable minor disc injury at L5/S1. The doctor by this time was prepared to make an assessment of permanent impairment and he expressed the view that there was a 5 per cent permanent impairment of function of the neck and a 5 per cent permanent impairment of function of the back. The doctor considered these to have arisen from the fall. There was no clinical evidence of any other factor contributing to the level of impairment. The comparison was to a most extreme case. The doctor considered there was no clinical evidence of any permanent impairment or loss of efficient use of either arm or either leg. 22. Dr Bodel was also supplied with a copy of the notes of Dr Wu and also of the chiropractor. He drew a different conclusion to that of Dr Sheehan. Reading them, he said that nothing in them led him to change the view that he had previously expressed. 23. That then left the Court in this position: 1. Dr Maniam considered there was a 10 per cent impairment of the neck; Dr Giblin, no evidence to support an assessment of the neck; Dr Sheehan, no assessment of the neck, indeed, a firm view there was none; and Dr Bodel, a 5 per cent permanent impairment of the neck. 2. Dr Maniam considered there was a 15 per cent permanent impairment of the back; Dr Giblin, 12.5 per cent permanent; Dr Bodel, 5 per cent permanent impairment of the back. 3. Dr Maniam considered there was a 10 per cent permanent loss of efficient use of the right arm at or above the elbow; there was no support from any other doctor. 4. Dr Giblin considered there was a 5 per cent permanent loss of efficient use of the right leg at and above the knee; there was no support from any other doctor. 24. I have already expressed qualifications in respect of what Dr Maniam had to say. The task for the Court is to reach a conclusion on the whole of the evidence. I have to bear in mind that the applicant bears the onus. In respect of the neck, despite the view of Dr Sheehan, I think I should accept that the applicant has suffered a permanent impairment of the neck as is the opinion of Dr Maniam and Dr Bodel. Having regard to the absence of any support from Dr Giblin and also the way in which Dr Maniam's report is expressed, I consider that, more probably than not, the applicant has suffered 5 per cent permanent loss of efficient use of the neck. 25. In respect of the back, Dr Maniam's figure was 15 per cent permanent impairment; Dr Giblin's, 12.5 per cent permanent impairment; and Dr Bodel's, 5 per cent permanent impairment. Having regard to Dr Bodel's observations in relation to the minor disc lesion, it seems to me appropriate that I should accept Dr Giblin's view of 12.5 per cent permanent impairment of the back, which produces an award on that basis. 26. In respect of both the right arm and the right leg there is one doctor supporting in each case and three doctors who do not. Mere numbers do not decide these matters, but nonetheless I do not consider the applicant has discharged the onus of showing that there is permanent loss of efficient use of either the right arm or the right leg. 27. The awards I shall make do not cross the threshold under s 67(2) and accordingly the applicant is not entitled to an award under s 67. My findings may be summarised as follows: (a) The applicant suffered injury to her neck, right arm and back on 17 June 1998 arising out of and in the course of her employment with the respondent. (b) As a result of the said injury the applicant suffered permanent impairment of the neck, being 5 per cent of a most extreme case. (c) As a result of the said injury the applicant has suffered permanent impairment of the back , being 12.5 per cent of a most extreme case. 28. I make an award for the applicant under s 66: In the amount of $2,000 in respect of permanent impairment of the neck. In the amount of $7,500 in respect of permanent impairment of the back. Medical expenses, s 60. I expect the parties to agree upon any claim for interest, should there be one. I grant liberty to apply should they be unable to agree. The respondent is to pay the applicant's costs. MR E SMITH instructed by Gerard Malouf & Partners appeared for the applicant MR M F BATTEN instructed by Hickson Wisewoulds appeared for the respondent DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.