Presti v Kaffe [2001] NSWCC 181

Reported Decision : (2001) 22 NSWCCR 549

Compensation Court of New South Wales

CITATION : Presti v Kaffe [2001] NSWCC 181 PARTIES : Maria Presti Orexi Kaffe MATTER NUMBER(S) : 56801 of 2000 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Miscellaneous Matters :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 19/10/01 DATE OF JUDGMENT: 10/19/2001

FOR APPLICANT: Mr M A J Daley instructed by Evan A Kontoulas & Associates LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr P C Sweeney instructed by P W Turk & Associates

JUDGMENT: 1. Maria Presti was injured in the employ of Orexi Kaffe on 22 March 2000. She picked up a rubbish bag and injured her right shoulder. That is not disputed by the respondent, Orexi Kaffe. The applicant claims a lump sum under s 66 for 30 per cent permanent loss of use of the right arm at or above the elbow. She also claims lump sum under s 67 for pain and suffering. S 60 expenses and interest are also claimed. The respondent does dispute those entitlements but only as to quantum. It does so on two bases. Firstly it says that there has been a binding medical panel under s 122 (6) of the Workers Compensation and Workplace Injury Management Act 1998 (the WIM Act). Secondly it says that if the panel is not binding, its doctors' assessments of the applicant's loss should be accepted. 2. I must decide as a preliminary question whether the panel is binding. I was not able to do this before the evidence commenced. The reason was that even if the respondent's submission that the panel was binding was correct, I would need to receive evidence to determine the applicant's s 67 entitlement. This is so because the medical panel found 15 per cent permanent loss of use of the right arm at or above the elbow. That puts the applicant over the threshold in s 67(2) of the Workers Compensation Act 1987 ("the Act"). Thus if the respondent is right and the panel is binding, the applicant is still entitled to s 67 compensation. 3. On 15 December 2000 the respondent's insurer applied for a medical panel. That is proved by Exhibit 2, a copy of its application. It is common ground that before it did so, the respondent did not serve any medical report on the applicant. At that time it had the report of Dr Anthony Smith of 19 September 2000 and an annexure to it of the same date. Those the respondent tendered as Exhibit 1. 4. An order was made for the convening of a medical panel after the respondent's application. A copy of this was Exhibit F. The heading of it reads "Order for Medical Panel under s 120(1), s 123 and s 124 of the Workplace Injury Management and Workers Compensation Act 1998". It constitutes Dr P. R. Henke and Dr M. L Cohen as members of the panel. It orders that the worker be examined by the panel on 26 April 2001. It orders that the panel assess "loss of right arm at or above the elbow". I presume that order is also intended to include loss of use. The panel met on the day appointed. Its report dated 26 April 2001 is Exhibit G. It finds that the applicant has 15 per cent permanent loss of use of the right arm at or above the elbow. 5. The preamble of the report reads: We hereby give you notice that having duly examined the abovementioned worker in accordance with the order for medical panel under s 122(2) of the Act and limiting this certificate to the aspects of the worker's condition hereunder appearing, WE CERTIFY AS FOLLOWS ... 6. Mr Daley for the applicant submits that the panel is not binding. His first point is that the order for a medical panel in its heading says that it is made under s 120(1), s 123 and s 124 of the WIM Act. Therefore, he says, s 122 can have no application. He says this despite the heading of the panel's report, which says it is made under s 122 (5) of the WIM Act. He takes me to s 120(1) of the WIM Act. That reads: (1) The Compensation Court, a conciliator or the authority may, at any time or from time to time, require any worker: (a) who claims compensation under this Act, or (b) who is in receipt of weekly payments of compensation under this Act to submit himself or herself for examination by a medical referee or medical panel on a date and at a place arranged by the Registrar of the Compensation Court. 7. He says that this is the section under which the order constituting the medical panel, Exhibit F, was made. He says the heading of the order proves this, because it says that it was made under s 120(1) as well as s 123 and s 124. It does not mention s 122. He does not say that s 123 and s 124 of the WIM Act are relevant to his argument. I do not think they are. 8. Mr Daley's first point is simply that s 120 does not contain any conclusiveness provision as to any panel finding under the section. He says s 120 is a separate provision for the obtaining of a medical panel from s 121 and s 122. He says that s 122(6) does not apply to s 120. I shall come to s 122(6) in a moment. Thus he says that the panel finding of 15 per cent permanent loss of use of the right arm at or above the elbow is not binding. 9. Mr Sweeney for the respondent says that the panel is not held under s 120 at all. He says that on its wording s 120(1) applies only when the Compensation Court, a conciliator or the authority requires a worker on his, her or its own motion to attend a panel. He says that the applicable section when a panel is requested by a worker or employer is s 122. Relevantly this reads: (1) Medical dispute means a disagreement between a worker and an employer as to: (a) the worker's condition, or (b) the worker's fitness for employment (2) If there is a medical dispute, the Registrar of the Compensation Court must, on the application of either the worker or the employer, refer the medical dispute to a medical panel … but only if: (a) the worker has submitted himself or herself for examination by a medical practitioner in accordance with a requirement of the employer under s 119 or has been examined by a medical practitioner selected by the worker, and (b) the employer or worker (as the case may be) has furnished the other with a copy of the medical practitioner's report of the examination (being a report relevant to the medical dispute). 10. Mr Sweeney does not say that s 121 of the WIM Act is relevant and neither does Mr Daley. It relates to assessment of medical disputes by approved medical specialists. It does not apply to the present case. 11. Mr Sweeney points to s 122 (6). It reads: Any certificate of a medical panel is conclusive evidence as to the matters certified, except in relation to the following ... 12. A number of exceptions are then set out. They do not include permanent loss of use of the right arm at or above the elbow. 13. Mr Sweeney firstly says that when the respondent applied for the panel there was a "medical dispute" within s 122 (1). Mr Daley does not dispute this. I think he was correct in so conceding. A medical dispute exists when a worker serves a medical report and claims a s 66 lump sum in accordance with it and the respondent does not take any further action. Thus, a dispute may be created by inaction. Judge Neilson so held in Illawarra Paving Pty Limited v Simone (1995) 11 NSWCCR 529. I think with respect he was correct. 14. Next Mr Sweeney says that the wording of s 122 (2) means that it is the section which comes into play when a worker or employer applies for a medical panel, not s 120 (1). I think he is right. I think the opening words of s 120 (1) clearly do not apply to an application for a medical panel by a worker or employer. This is because they read "the Compensation Court, a conciliator or the authority may, at any time or from time to time, require any worker ...". This is a clear indication that the subsection is designed to allow referral by this Court, amongst others, of its own motion. It does not on its face apply to applications by workers or employers. S 122 (2) does. This is so because its opening words read: If there is a medical dispute, the Registrar of the Compensation Court must, on the application of either the worker or the employer, refer the medical dispute to a medical panel ... [emphasis added]. 15. Those words clearly cover the present situation. Here the employer by its insurer applied for the panel: see Exhibit 2. I think that the heading of Exhibit F, the "Order for Medical Panel", is simply a clerical error. The Court by the Registrar who made the order had no power to make it under s 120(1). That section did not apply to the situation at all. The section that did apply was s 122. The heading of the medical panel's report, Exhibit G, refers indeed to s 122(5). It is correct in that respect. Clearly the report was produced under the authority given by s 122 (5). That subsection reads relevantly: (5) The ..... medical panel to whom a medical dispute is so referred is to give a certificate as to: (a) the worker's condition ... 16. Thus I consider that the medical panel was held under s 122(2) and s 122(5), not s 120(1). Thus Mr Daley's first point fails. 17. Under s 122(6), which I have quoted above where relevant, the panel was prima facie binding. Mr Daley seeks to avoid that conclusion. His second point (assuming his first point fails) is that s 122 (2)(b), which I have quoted above, was not complied with by the employer before the panel was held. He says that the words "as the case may be" in s 122(2)(b) refer to s 122(2)(a). He says they mean that where the worker "has submitted himself or herself for examination by a medical practitioner in accordance with a requirement of the employer under s 119" (see s 122(2)(a)) the employer has to have "furnished the other [the worker] with a copy of the medical practitioner's report of the examination" (see s 122(2)(b)). It is common ground that Dr Smith's report was produced after the worker was required to attend for examination by the employer. It is also common ground that it was not served by the employer before it applied for a medical panel. 18. Mr Sweeney meets that submission by saying that the panel was held after the worker was "examined by a medical practitioner selected by the worker" (see s 122(2)(a)). He says that the employer then applied for a panel. He therefore says that it was under no obligation to serve its report, even though it required a medical examination and received the resulting report before applying for the panel. He contends that the bracketed words "as the case may be" in s 122(2)(b) mean that an employer only has to serve its report where the panel has been applied for by it after it initiates the process by having the worker examined by its doctor (presumably under s 119) and the worker then refuses to accept the s 66 assessment in the resulting employer's report. He says they do not mean that an employer must serve its report where the worker obtains a report and seeks payment of the s 66 assessments in it, and the employer then commissions a medical examination and report and then applies for a panel, as here. 19. I do not think Mr Sweeney is right. The structure of s 122 (2) is as follows. It first requires that there be a medical dispute as defined by s 122(1). That is not in dispute here. It then requires the Registrar of the Compensation Court without discretion to refer the medical dispute to a medical panel on the application of either the worker or the employer. It then imposes two preconditions. The word "and" between subparas (a) and (b) of s 122(2) which impose the two preconditions is to my mind in its context clearly conjunctive. This means that both subpara (a) and subpara (b) must be complied with before a medical board is held. 20. S 122 (1)(a) firstly requires as a precondition that the worker be medically examined either as required by the employer or by someone selected by himself or herself. S 122(1)(b) then requires the person who has initiated the medical examination to serve his, her or its report on the other party. This is apparent because s 122(1)(a) first speaks of "the worker" and then of "the employer". The words "as the case may be" in subpara (b) of s 122(2) I think therefore refer one back to the words "worker" and "employer" respectively appearing in subpara (a). They therefore require the person who has initiated the medical examination, and then applied for the panel, be it employer or worker, to serve the report resulting from the examination on the other party. 21. Judge Neilson was confronted by a similar but not identical point in Smith v Norton Pty Limited No. (2) (1996) 15 NSWCCR 37. The argument his Honour had to deal with was that where a medical panel had been applied for under the section, both parties had to serve their medical reports regardless of which of them had applied for the panel. Here the argument is by contrast that where one party serves a report and another party then arranges a medical examination and applies for a panel, that party does not have to serve its report because s 122(2)(b) only requires service of the report which initiated the whole process, even though the party serving it did not eventually apply for the panel. At 40 his Honour said this about s 131(2) of the Act (the statutory predecessor of s 122(2) of the WIM Act now under discussion): The mechanism appears clearly to be and has always been accepted as such from my experience over the years, both in practice before the Court and on the bench, that the party applying for the medical panel must serve his medical report so that the other party, be it the worker or the employer, can ascertain whether the worker's claim or the employer's claim is disputed. If it is disputed then the person who served the medical report can ask for a medical panel. With respect I agree with his Honour. 22. Judge Geraghty held similarly on a similar but not identical point in Welsh v TNT Express (1993) 9 NSWCCR 345. Neither judge was required to determine the precise point that confronts me today, which is the meaning of the bracketed words "as the case may be" in s 122(2)(b). 23. I think Mr Daley's argument about the meaning of these words is correct. It fits best with the wording and structure of the subsection itself in the way that I have discussed. It also makes the provision work in practice. If Mr Sweeney is right, it means that a worker or an employer, confronted with a medical report containing a s 66 assessment which is unpalatable, may then obtain a medical examination and report and then, without serving that report, apply for a medical panel under s 122(2), and then contend that s 122(2)(b) is complied with because the original s 66 assessment with which the applicant for the medical panel did not agree, was served by the other party which did not apply for the panel. 24. This construction would deprive that other party of knowledge of the contents of the medical report obtained by the applicant for the panel. It would work injustice because the party who did not apply for the medical panel would not know what the other party's medical report said before the panel was held, and therefore could not address it in competing reports to be supplied to the panel. Even more importantly it would deprive the party that did not apply for the medical panel of the opportunity of accepting the assessment in the report obtained by the applicant for the medical panel, thus resolving the medical dispute and avoiding the necessity for a panel to be held. That construction is I am sure not what Parliament intended, and I do not think the plain words of the subsection will bear it anyway. 25. The result is that I think that subpara (b) of s 122(2) was not complied with by the employer before the panel was held. The words "only if" in the opening words of s 122(2) clearly require that the preconditions in subparas (a) and (b), which follow them, be satisfied before the Registrar may make an order for referral to a panel under the subsection. In the absence of compliance with subpara (b) here, the order for referral to a panel was not made according to law. It follows that the panel was not validly held. Therefore s 122(5) does not apply to make its certificate conclusive. In my view that subsection depends for its operation on an order for referral to a panel being lawfully made. Therefore I must consider for myself what is the applicant's s 66 entitlement as well as her s 67 entitlement, which by common consent I must determine, whatever the result of the preliminary point just discussed. 26. The applicant gave evidence and I found her presentation florid. She did not concede any point in cross-examination and maximised her disability. There may have been cultural factors at work and I do not wish to be insensitive about this. She is after all a person of non English-speaking background whose English skills are poor. This is no doubt because although she has been in this country for many years she was not educated at all in Italy, her home country. It is not surprising I think that she put her best foot forward, to say the least when describing her disability. That said, she denied certain things which she must have known about. I do not accept in that respect that she was truthful. I shall come to those matters later. 27. Nevertheless, as the medical evidence discloses, she has a disability which is objectively demonstrated by appropriate investigations. This the respondent recognises by conceding that the only dispute about the applicant's s 67 entitlement is its quantum, and that if the medical panel is not binding the applicant is entitled to a lump sum under s 66, although not as great as she claims. 28. The applicant was born in Italy on 25 October 1937. She is 63 years of age. She came here in 1951. She was employed by the respondent as a kitchen hand. She did not say precisely when this occurred. She said she had no problems with her right hand or shoulder before the date of her injury on 22 March 2000. That injury is undisputed. It happened exactly as I described at the beginning of these reasons when I quoted from the Application for Determination, when she was lifting a garbage bag into a garbage bin. She felt acute pain in her right shoulder at the time that she did it. She has not been back to work at any time since. 29. She was treated by a general practitioner, Dr Singh initially. He sent her for x-rays and an ultrasound. After he received the ultrasound he referred her to Dr Strokon, an orthopaedic surgeon. She said Dr Strokon put her in hospital and did an "operation" on the shoulder on 25 May 2000. In fact as Dr Strokon's report reveals, and I will discuss it later, she had an arthrogram. After this she had physiotherapy. This she said was no help. She was also placed on medication. This has continued more or less until the present time. It consists of the familiar painkillers and anti-inflammatories. It helps to some degree because when she takes it she says she is able to move her shoulder and arm. Without it she says she cannot move it at all. She also was referred for hydrotherapy. Apparently she undertakes this herself at the present time at a local pool. Her physiotherapy has been discontinued recently because the respondent's insurer will not pay for it. Until that discontinuance physiotherapy was more or less continuous after the injury. 30. The applicant says that she has lost strength in her right arm more or less entirely. She says in domestic tasks and in shopping she is helped by others, mainly her daughter. She says indeed that her daughter has to dress her when garments have to be placed over her arms. This was the position, she said in cross-examination, with a cardigan she was wearing in the witness box. She says her sleep is disturbed, in that she has to use her left side to get in and out of bed and has to place her right arm on a pillow. She says she only sleeps at night with the aid of medication which she takes during the day. She says she still has pain and at times tingling extending down the right arm from the shoulder. 31. The applicant was cross-examined about a number of matters very skilfully by Mr Sweeney. I hope I do no disrespect to him by not relating the whole of his cross-examination, but only those parts which have particularly assisted me. 32. The applicant's presentation in cross-examination was much as in her evidence in chief. She did not concede that she was able to do anything much at all. She said her arm was more or less immobile most of the time, except immediately after she took medication when there was some mobility in it. 33. The cross-examination then moved to more serious matters. The applicant was asked whether she has told Dr Collins, whose report was tendered in her case (see later) that "she has had no previous accidents to her right shoulder or anywhere else". These words appear under "Past Health" on p 2 of Dr Collins' report of 31 August 2001, Exhibit A. There is no reason to believe that they do not accurately represent what the applicant told Dr Collins. She indeed did not assert otherwise, although she could not really recall the examination. I am satisfied that she was truthful in so saying. It fits with her general demeanour, which with due respect is that of an uncomplicated person of little education who is unlikely to have recalled precise details of medical examinations, whenever they occurred. Nevertheless I am also satisfied that she told Dr Collins that she had no previous accidents to her right shoulder or anywhere else. 34. The applicant was then taken to a previous back injury. It was suggested to her that in the 1980s she hurt her back with another employer and was off work for many years because of it. She said initially that she could not remember this. Eventually she said that she might have had a back injury in the 1980s. However she said that she went back to work six months after it. It was put to her that she went to court, indeed this Court, in respect of that injury. As I understood her, she initially said she could not recall this, but eventually agreed that it happened. It was put to her that she was off work for many years as a result of this injury. She adhered to her story that she was only off work for six months with that injury and then returned to part time work. 35. It was the put to her that she told Dr Conrad, an orthopaedic surgeon whom she saw for her back injury in 1988, that she finally stopped work in March 1986 and had not been able to work since then. That history is contained in Exhibit 3, Dr Conrad's report to her then solicitors, dated 29 March 1988. I have no reason to believe it is not an accurate record of what she told Dr Conrad. She could not remember what she told Dr Conrad. 36. Likewise it was put to her that when Dr Conrad examined her for his report of 19 March 1989, part of Exhibit 3, she said she remained unemployed, and had been certified fit for light duties but none were available. These words occur in that report and I have no reason to believe that they are not an accurate record of what she told Dr Conrad at that time. Nevertheless she could not recall this. 37. The applicant was also asked whether when she saw Dr Strokon in the previous claim for his report of 20 March 1991, part of Exhibit 4, she told him that she had not worked for six years because of chronic disability produced by back pain. Those words occur in the report of Dr Strokon just mentioned and I have no reason to believe they are not a correct record of what she told him. Nevertheless she could not recall telling Dr Strokon that. She stuck at all times to her story that she had only been off work for six months following her back injury in the 1980s and had then returned to light duties. On what she told Dr Conrad and Dr Strokon, that just cannot be right. I believe that when she was seeing Dr Conrad and Dr Strokon for the purposes of her then case, she most likely told the truth. I therefore do not believe that she was only off work for six months following her back injury in the 1980s, and I believe that in fact she was off work with it for at least six years as at the date of Dr Strokon's report of 20 March 1991 just mentioned. 38. I do not believe that the applicant had forgotten being off work for six years following her back injury in the 1980s when she gave evidence before me. I think she was consciously misrepresenting the situation. Her purpose no doubt was minimise the effect of the earlier back injury, so as to maximise the pain and suffering brought about by the current injury. That must and does affect her credibility, and therefore my assessment of her permanent loss and pain and suffering. 39. The medical reports present the usual divide. Dr Ian Collins, a specialist physician, in Exhibit A, a report of 31 August 2001 thinks that the applicant has a permanent loss of use of the right arm at or above the elbow of 30 per cent. He thinks this partly on the basis of a partial thickness tear of the rotator cuff. As I shall reveal, Dr Strokon, the applicant's treating doctor, agrees that there is such a tear, and I think there is. 40. Dr Collins also thinks that there is a frozen shoulder due to capsulitis. No other doctor thinks this. There is no investigation or other objective finding proving it. If anything the radiological evidence is against it (see later). I think Dr Collins formed that view based on the applicant's presentation to him. I have little doubt that it was exaggerated, as it was when the applicant gave evidence in the witness box before me. I do not accept Dr Collin's opinion that the applicant has capsulitis in addition to a partial thickness tear of the rotator cuff in the right shoulder. I do, as I have said, accept that there is a partial tear of the rotator cuff, because Dr Strokon found it (see later) on arthrogram. 41. Dr W.G. Taylor, orthopaedic surgeon, in Exhibit B, a report of 13 June 2000 with an annexure, thinks that the applicant has 25 per cent permanent loss of use of the right arm at or above the elbow. He thinks there is a partial rupture of the supraspinatus tendon as a result of the subject injury. I gather the pathology can equally be described as a tear of the rotator cuff, which is what Dr Strokon says it is. I think Dr Taylor's assessment is based at least partly on the applicant's presentation to him. I have little doubt also that it was exaggerated to some extent. I think his assessment, as with that of Dr Collins, is therefore to some extent over-generous. 42. Exhibit C is the reports of Dr Strokon, dated 23 June and 30 November 2000. They are addressed to Dr Singh, the applicant's treating general practitioner, and are not medico-legal. Consequently they do not contain as much detail as would be the case in a medico-legal report. They do not clearly indicate that the applicant's troubles are the result of the current injury. That is however not disputed by the respondent here. 43. Dr Strokon mentions in his first report a double contrast arthrogram of the right shoulder on 25 May 2000. He says that a small hole was visualised at arthrogram in the rotator cuff. There was no evidence of capsulitis. This rather discounts Dr Collins' theory that it is present. He was unsure whether the defect in the rotator cuff was a recently acquired lesion or something that developed as a process of attrition over many years. That the applicant's rotator cuff tear and her consequent disability is the result of the subject injury is, as I have said, not disputed by the respondent, however. 44. In his second report Dr Strokon remarks on improvement in the right shoulder over recent months and physiotherapy being worthwhile. He remarks nevertheless on still diminished power in elevation and in the grip of the hand. He is confident there that improvement will continue with physiotherapy. 45. These reports from the treating doctor establish that the applicant had a lesion of the rotator cuff and also that there was no evidence on arthrogram of capsulitis. I think the diagnosis of a rotator cuff tear as a result of the subject injury (which the respondent concedes) is correct. 46. This is confirmed by Exhibit D. That consists of two reports of Dr Roger Head, a radiologist. That of 23 March 2000 is on an x-ray of the right shoulder, and it says relevantly that widening of the subacromial space in the context of recent injury may be due to a joint collection, subacromial bursitis or inflammation of the rotator cuff. However, Dr Head's report of 23 November 2000 on an ultrasound of the right shoulder finds subscapular tendonitis and chronic partial thickness tear of the supraspinatus. That appears to confirm Dr Strokon's diagnosis. 47. Likewise Exhibit D, which is an ultrasound report of a Dr P Sharma, a radiologist, dated 28 March 2000, says that the appearances likely represent a partial thickness tear of the supraspinatus tendon. That too seems to confirm Dr Strokon's diagnosis. 48. Exhibit 1 tendered by the respondent is a report of Dr Anthony Smith of 19 September 2000 with an annexure of the same date. Dr Smith agrees that the applicant had had in the subject injury a tear of the supaspinatus tendon and he thinks it sounds only in 10 per cent permanent loss of use of the right arm at or above the elbow. He thinks her presentation is exaggerated. I agree with him to a certain extent. 49. In all of the circumstances I agree with the medical panel that the applicant has a 15 per cent permanent loss of use of the right arm at or above the elbow. As I have said, I think Dr Collins and Dr Taylor relied to an extent on the applicant's presentation, which was exaggerated. Dr Smith, unlike those doctors, thought that the applicant was exaggerating, and I think assessed her disability unduly conservatively. It is my function to compare the medical evidence with the applicant's presentation in the witness box to determine her s 66 entitlement in the manner required of me by Department of Public Works v Morrow (1986) 5 NSWLR 166 and the cases which have followed it. 50. Doing that, and allowing for exaggeration, I think the best assessment is that of the medical panel. As I have said, this means that the applicant will receive a s 66 award for 15 per cent permanent loss of use of the right arm at or above the elbow. This may appear convenient, as that is what the medical panel says, but after determining that its finding is not binding for reasons already expressed, I have undertaken the independent task of comparing it with the various medical assessments. It so happens that after doing this I have nevertheless come to agree with the medical panel. 51. The result is that the applicant passes the s 67 threshold. Mr Sweeney for the respondent submitted that that the applicant's entitlement is very moderate indeed in view of her exaggeration. He was not precise about quantum. I assume however from what he was submitting that he was suggesting that the applicant's entitlement was somewhat less than one-fifth of a most extreme case. Mr Daley, nothing daunted, suggested that the applicant's entitlement was a quarter of a most extreme case, at least, under s 67. As often happens, my view is somewhat between the two expressed by counsel. I think that had I accepted the applicant's presentation as truthful and unexaggerated in all respects, I would have found her to be entitled to s 67 compensation as Mr Daley suggests. As it is, I think some discount must be allowed for exaggeration. 52. I think a proper finding is that the applicant's pain and suffering is of a proportion of 20 per cent or 1:5 to a most extreme case. That compares best with the objective nature of the applicant's disability, as shown on arthrogram and ultrasound, which would inevitably impede her in many aspects of her daily life, whatever she says. I also think it would create considerable ongoing pain, though not to the extent that she claims. I also believe that it would impede her in household tasks to a degree, though not as much as she claims. The pain and suffering resulting from her loss, as I have said, is best assessed in my view at one-fifth of a most extreme case for these reasons. There will be an award accordingly. 53. S 68A was not relied on by Mr Sweeney and rightly so. The medical evidence did not suggest any previous disability in the right shoulder contributing to the applicant's ongoing pain and suffering. Dr Strokon, it is true, expressed uncertainty as to how long the changes he found on arthrogram had been present in her right shoulder. Nevertheless Dr Smith conceded that her right rotator cuff tear or supraspinatus tendon tear (whatever one calls it) was the result of the subject injury. Thus Mr Sweeney's concession that quantum was the only issue is correct. 54. Next I must deal with the applicant's claim for s 60 expenses. Apart from evidence from the applicant that her physiotherapy had discontinued as a result of the respondent's insurer's refusal to pay, there was no relevant evidence. None of the medical reports addressed the need for ongoing physiotherapy. As counsel eventually agreed, the appropriate course is not to make a continuing s 60 order. It is to give liberty to both parties to apply on seven days notice as to medical expenses in the event of a dispute breaking out. I shall take that course. 55. I was not addressed by either counsel as to interest. It is, as I understand it, precluded by legislative amendment in relation to s 66 and s 67 sums. However, in case the applicant thinks there is some basis for an award of interest, I will include that matter in my reservation of liberty to apply. 56. I make the following findings: 1. Injury to applicant arising out of and in the course of employment of respondent on 22 March 2000. 2. Resulting from such injury applicant has 15 per cent permanent loss of use of right arm at or above elbow. 3. Resulting from such loss applicant has experienced and does and will experience pain and suffering of a proportion of 1:5 or 20 per cent of a most extreme case. 57. I make the following award in the applicant's favour: 1. $12,000 under s 66 for 15 per cent permanent loss of use of dominant right arm at or above elbow. 2. $10,000 under s 67 for pain and suffering. 3. Liberty to either party to apply on seven days notice as to s 60 expenses or interest. 4. Respondent to pay applicant's costs. Recommend such costs include fees for counsel for advice on evidence and for taking judgment. Mr M A J Daley instructed by Evan A Kontoulas & Associates appeared for the applicant. Mr P C Sweeney instructed by P W Turk & Associates appeared for the respondent.