Compensation Court of New South Wales CITATION : Fitzpatrick v Epwood [2001] NSWCC 106 revised - 5/09/2001 Geoffrey T Fitzpatrick PARTIES : v Epwood Trading Company MATTER NUMBER(S) : 39028 of 2000 JUDGMENT OF: Moran J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 14/05/01 DATE OF JUDGMENT: 05/14/2001 FOR APPLICANT: Mr P Menary, Barrister instructed by Smythe & Mallam Solicitors LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J Catsanos, Barrister instructed by Moray & Agnew Solicitors JUDGMENT: 1. The applicant was employed by the respondent as a storeman and packer and on 19 October 1998 he suffered pain his back whilst lifting cartons. He said he consulted his doctor, local doctor, Dr McLean. He was referred to a Dr Compton who discussed surgery and he has also seen the pain management doctors, including Dr Gronow for the Government Insurance Office, and on a later occasion some months after the injury in early 2000 it was he saw Dr Dexter whose report I have before me. He noted that the applicant had a period when his low back pain and left-sided sciatica improved for a few months but however he has been left with constant low back pain and that his primary improvement was in the left-sided sciatica. However, since then the applicant says that he has had a number of falls. He uses a Canadian crutch to mobilise and he presented here today at court using that Canadian crutch in his right hand. 2. He has had a number of tests, CT scan and an MRI scan. They did not disclose any major pathology in fact. However, the doctors that he relies on for the case before me for lump sums under s 66 and s 67 say that he has a loss of lumbar lordosis and that there is evidence in their opinion that he has a pre-existing lumbar spondylosis says Dr Wallace. Dr Deveridge describes it as early degenerative spondylosis with marginal osteophytes and minor facet joints arthropathy. I accept the applicant's evidence that despite the pre-existing pathology, he did not have any symptoms prior to this injury on 19 October 1998. The applicant has given evidence that there has been little or no improvement. In fact, he considers his conditions are worsened and he has tried acupuncture, physiotherapy and hydrotherapy and now he relies upon painkilling tablets and avoids movements which produce pain such as bending and lifting. 3. In support of the applicant's claim the two doctors relied upon; namely, Dr Wallace and Dr Deveridge, both of whom have been qualified by his solicitors, (both of whom are well known to me through their reports as being on the generous side), in their estimates of permanent disablement and Dr Wallace considered he has a 30 per cent impairment of his back, less 10 per cent for a pre-existing pathology and Dr Deveridge considered he had a 20 per cent impairment of his back less 10 per cent for the pre-existing pathology. Dr Deveridge's estimate or assessment was made on 15 December 1999, Dr Wallace was on 23 March 2001. The reports of Dr McLean and Dr Dexter do not embark on any assessment of permanent loss. 4. On the other hand, the respondent relies on the medical evidence of three doctors; Dr Wilding on 16 November 2000 thought he had a 10 per cent impairment of his back due to the effects of the injury but no loss of use of either leg, Dr Bodel on 1 February 2000 considered he had a 12 per cent permanent impairment of his back but only 2/3 of that was due to injury and no loss of use of either leg and Dr Bates on 18 August 1999 considered he had an 8 per cent permanent impairment of his back and no loss of use of either leg. I should point out at this stage that the applicant in his application for determination claimed that as a result of the sciatica from his back injury in his legs he has a loss of use of 12 per cent of his left leg at or above the knee and a loss of 4 per cent of his right leg at or above the knee. 5. During the course of the hearing the claim in respect of any loss of use of his right leg was withdrawn by his counsel. Dr Deveridge thought he had a 9 per cent loss of use of his left leg at or above the knee but Dr Wallace thought he had a loss of 14 per cent of use of his left leg at or above the knee. After considering all the evidence, I am satisfied that the applicant has a 15 per cent impairment of his back in proportion to a most extreme case but that there should be a deduction for the pre-existing spondylosis even though it was not producing any symptoms and in accordance with the decision of the Court of Appeal in D' Aleo v the New South Wales Ambulance Service I deduct 10 per cent from that 15 per cent in accordance with the provisions of s 68A of the Act. 6. S 68A also provides for a deduction of a secondary loss and there is no dispute that the symptoms the applicant suffers in his left leg emanate from the injury to his back. I find that on the evidence before me that the applicant has suffered a loss of 7 and 1/2 per cent permanent loss of use of his left leg at or above the knee and that there should be a deduction under s 68A of the Act of 10 per cent which means he will be compensated for 6.75 per cent of his left leg. Those findings entitle the applicant to compensation under s 67 of the Act. The maximum amount payable is $50,000 and the amount payable in any other case. It shall be reasonable and proportionate to the injury suffered by the worker. Having regard to his age, he is aged 53. 7. He has given evidence of the pain he has on a daily basis when he wants to do household chores, even vacuuming or trying to mow the lawn or standing at the sink. He does not drive as much as he used to. He is not able to lift and bend as he did before and in all the circumstances I find the appropriate amount to award the applicant for pain and suffering to be 20 per cent of a most extreme case which equals $10,000. 8. For those reasons I make an award in favour of the applicant under s 66 in the sum of $8,100 in respect of 15 per cent permanent impairment of his back less 10 per cent pursuant to s 68A of the Act of 10 per cent which means he is compensated for 13 and 1/2 per cent impairment of his back. I make an award in his favour also under s 66 in the sum of $5,062.50 in respect of 7 and 1/2 per cent permanent loss of use of his left leg at or above the knee less 10 per cent pursuant to s 68A of the Act which equals compensation for 6.75 per cent. I make an award in his favour under s 67 in the sum of $10,000 for pain and suffering. I make an order that the respondent pay the applicant's medical and other expenses under s 60 and I order the respondent to pay the applicant's costs including two qualifying fees - Dr Wallace and Dr Deveridge. 9. Second conference for Mr Menary at $250. Mr P J Menary of counsel appeared for the applicant Mr J W Catsanos of counsel 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.