Evans v Bruce's Brush Painting Service Pty Ltd [2001] NSWCC 112

Compensation Court of New South Wales

CITATION : Evans v Bruce's Brush Painting Service Pty Ltd [2001] NSWCC 112 PARTIES : Darryl Evans Bruce's Brush Painting Service Pty LTd MATTER NUMBER(S) : 43203 of 2000 JUDGMENT OF: Campbell CJ at 1 CATCHWORDS: Assessment of Compensation - Proceedings to Obtain Compensation - Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: Department of Public Works v Morrow (1986) 2 NSWCRR 8 DATES OF HEARING: 03/04/01, 05/06/01 DATE OF JUDGMENT: 06/05/2001

FOR APPLICANT: Mr M L Snell instructed by Firths Solicitors LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr D Stanton instructed by Hunt & Hunt

JUDGMENT: 1. The applicant claims lump sums under the Workers Compensation Acts in respect of injuries to his back and legs which he suffered on 26 November 1997 arising out of and in the course of his employment with the respondent. 2. Mr Snell of Counsel appeared for the applicant and Mr D Stanton of Counsel appeared for the respondent. Counsels' addresses have been recorded and, in the main, transcribed and it is therefore unnecessary for me to refer to each submission merely to ensure that it is noted. 3. The applicant is a 29 year old man who left school after the School Certificate and usually worked in labouring type work with periods of unemployment. 4. On 26 November 1997 the applicant was working as a painter's brush hand for the respondent when he fell from a roof two stories up landing on his feet on pavers. He felt pain in the right foot and ribs on the left side extending around towards the back. 5. The applicant was treated at Wollongong Hospital and then at Port Kembla Hospital. Both legs were in plaster until about Christmas 1997 and he used a wheel chair until about then, then crutches and later walking sticks until about the middle of 1998. 6. The applicant has not worked since that time and is being paid weekly payments. 7. It is convenient to deal at this point with the applicant's credit. Mr Stanton put to me that I should accept that the applicant had exaggerated any complaints that he may have had. 8. He relied, in particular, upon an apparent conflict between the applicant's assertion that he was so depressed that he tried to take his own life and the account given to Dr Lee on the one hand and the contemporaneous reports on the other. He also relied upon the absence of a report from Dr Wijesinge, a psychiatrist who saw the applicant at Port Kembla Hospital and it would appear treated him with medication for about six months for depression. 9. Mr Stanton also relied upon an apparent unwillingness on the part of the applicant to follow-up the rehabilitation assistance offered. 10. Whilst these matters do raise a question as to the applicant's motivation and, perhaps, his credit I find them overborne by other material. 11. There is medical material to support the applicant's claims, but more importantly he gave a number of answers which lead me to accept that he was correctly describing his symptoms and complaints in evidence. 12. For example:- Q. How about the left foot, is that as much of a problem as the right or not? A. No, only in bare feet. . . . Q. Again, so far as the left foot is concerned, if you are on your feet for any period of time does that effect the symptoms. A. No, not really, no. . . . Q. You described some symptoms also in your back, those have continued? A. Yes . . . Q. If you are bending does that have effect on how your back feels? A. Not bending over, no. . . . Q. How about lifting, does that effect it? A. Yes . . . Q. How a about twisting activities, do they have any effect on your back? A. Only if I'm weight bending. If I've got something in my arms it will hurt, but I'm pretty flexible. 13. These are not the answers of an applicant seeking to exaggerated his claims. The Right Leg 14. The applicant suffered a fracture of the right calcaneum. I also think it probable that he suffered as a result of the fall a ligamentous strain at the right knee. 15. Dr Wallace considered that the applicant was left with a 15 per cent loss of efficient use of the right leg at or above the knee. Dr Lewington's assessment was a 20 per cent loss of efficient use of the right leg at or above the knee. 16. Dr Bray, who examined the applicant for the respondent's insurer, assessed the loss at 15 per cent below the knee. He did not consider that there was any ongoing problems with the right knee but does not appear to exclude the possibility of a hyperextensory injury to the knee in the fall. 17. Dr Moore, who examined the applicant for the respondent's insurer, considers that there is no present loss of efficient use of the right leg as he does in respect of the left leg and the back. Dr Moore's reports are seriously at odds with the reports of all the other doctors and the evidence of the applicant. I am quite unpersuaded by it. 18. Having regard to the applicant's evidence that the right knee has continued to cause symptoms and, at times, to swell I prefer the view of Dr Wallace and Dr Lewington on the issue of a permanent problem in respect of the right knee. 19. Bearing in mind that the applicant bears the onus I am satisfied that more probably than not the applicant has suffered a 15 per cent permanent loss of the efficient use of the right leg at or above the knee. 20. It was not put to me that there should be a 68A deduction. Dr Moore does refer to the applicant having a slight Genu Recurvatum of both knees, which he considered to be congenital, however, there is nothing to suggest that this condition played a causal role in the permanent loss I have found. The Left Leg 21. There was a fracture of the left calcaneum in the fall, however, it healed better than the right. The applicant is left with a feeling of a tiny ball at the back of his heel. 22. Dr Wallace assessed a 5 per cent permanent loss of the efficient use of the left foot. Dr Lewington assessed a 5 per cent permanent loss of the efficient use of the left leg at or above the knee. Dr Bray's view was that any impairment of the left leg was much less than 5 per cent of the left lower limb below the knee. 23. Mr Snell pressed upon me that I should accept an assessment below the knee rather than of the foot. He referred to the principles in Department of Public Works v Morrow (1986) 2NSWCRR 8. It seems to me, however, that the appropriate table item considering all the evidence is the foot. I accept that the appropriate percentage is 5 per cent. The back: 24. Apart from Dr Moore all relevant doctors agree that the applicant has been left with permanent impairment of the back as a result of the fall. There is, however, a wide divergence between Dr Wallace and Dr Lewington with assessments of a 25% loss and Dr Bray with an assessment as follows: I would assess this man's likely impairment of his thoracic spine to be negligible. It is certainly no more that 50% of the thoracic spine. 25. It will be noted that Dr Bray refers to the thoracic spine rather than the back and that the three doctors do not expressly refer to comparison with a most extreme case. In the absence of cross examination or submissions on the point I consider that these experienced doctors would, however, have been speaking of such a comparison. That view is somewhat less convincing in respect of Dr Bray as he has not identified a table item. 26. The applicant said that although he had injuries to his hands and arms and right foot in the past he had not previously suffered an injury to his back. 27. I have earlier referred to the description of pain involving his ribs which he experienced at the time of the fall. Dr Bray identified a right side bump in the mid back. He said: ...that is there is prominence of the chest cage on the right hand side when is standing erect...It is not impossible that it was caused by some distortion of his rib cage in the significant fall, but it has no great significance as regards function. 28. The applicant gave the following evidence: Q How were you getting around when you were first sent home A In a wheelchair Q While you were in hospital did you start - I withdraw that. You have described having some symptoms in the left rib region extending around to the back region on your left side at the time you hit the ground A Yes Q Did those problems continue when you were in hospital A Yes, but I thought they were just from pulling the A-frame, just on my weight , and then when I got home I realised that it wasn't Q The symptoms you were having in hospital that you thought came from pulling the A-frame, where were those symptoms A In my back Q Which part of your back A Through my shoulder blades Q In the central part of your back between the shoulder blades A Yes ... Q So far as the back is concerned, you have described having some symptoms in your back in the rib area extending around to the back and then also when you were using the A-frame in hospital. A Did those back symptoms continue into 1998 or not A Yes, they did Q In the same place A In the same place, yes Q As time went on running into 1998, were those back symptoms improving or not A No, it was getting worse Q Eventually did your GP refer you for some x-rays of your back A Yes Q That was in 1998 A Yes Q Was there any active treatment ever carries out towards your back after the x- rays were carried out A Some physiotherapy with a TENS machine and stretching exercised, that was all Q Did that help or not A The TENS machine helped while the machine was on, but afterwards, no, it didn't Q How about the physiotherapy, did that seem to help the problem in your back or not A Just kept me flexible Q How long were you having the physiotherapy A About 3 months ... Q You described some symptoms also in your back, those have continued A Yes Q Have they continued always to be in the same place A Yes Q If you are bending, does that have any effect on how the back feels A Not bending over, no Q How about lifting, does that affect it A Yes Q In what way A Pain in front of my chest and through the middle of my back Q How about twisting activities, do they have any effect on your back A Only if I'm weight bearing. If I've got something in my arms it will hurt, but I'm pretty flexible Q I want to ask you some questions about how these problems affect you in your day to day life. Do you live on your own or with other people A I live with a mate's family at the moment Q Do you try to carry out some domestic activities around the house, domestic chores A Yes Q Do you have any problems so far as those are concerned A Some of them, yes Q Which ones cause you a problem A Hanging washing on the line, making beds, mowing lawns Q You mentioned making beds, what is the problem so far as that is concerned A Stretching too far horizontal, I've got to put a lot of weight on one arm and then stretch across, across a bed Q What symptoms cause that problem A Sorry? Q What symptoms cause that problem, is that your back or your knee A It's my back, yes 29. The applicant also referred to pain in his right hip. 30. In cross-examination the applicant said: Q You told us earlier in your evidence that so far as your back is concerned you do not have any difficulty bending with your back A No Q A number of the doctors have examined your back movements from time to time A Yes Q You have always been able to bend freely and twist freely A Yes 31. The notes of Dr Puri who saw the applicant on 10 December 1997 contain the entry has pain in back on prolonged sitting. 32. A CT scan of the lumbar spine in April 1998 showed no abnormality, however, a bone scan in May 1998 showed increased uptake at the T9 and T10 vertebral .bodies. Plain films of the thoracic spine showed anterior wedge fractures at the T10 and T11 vertebral bodies with less than 20 per cent of vertical height reduction. 33. CT examination of the thoracic spine showed an old fracture involving the left side of the T10 vertebral body. The old fracture was consistent with injury on 26 November 1997. 34. Dr Wallace considered that the applicant had suffered fractures involving the thoracic vertebral bodies T9 and T10 and a musculoligamentous strain of the lumbar spine. I think it may be inferred that the doctor took injuries to both areas into account in his assessment of permanent loss. 35. Dr Lewington expressed the opinion that investigations revealed some wedging or a compression fracture involving the vertebral bodies of T9, T10 and possibly T11 in the thoracic spine. He also commented that the applicant had features of a lower lumbar spine injury of disc or facet joint origin. 36. The restrictions the doctor placed upon the applicant's work capacity on a long term basis included nil heavy lifting and nil recurrent bending and lead clearly enough to the inference that the doctor considered that there was some continuing problem in the lumbar area which he took into account in his assessment. 37. Dr Bray thought that the compression fractures of the applicant's spine were of a very minor nature and that it was probable that the impairment as a result of the fractures would be minimal or negligible. 38. Dr Bray noted that the applicant complained that his right hip had a grinding sensation in the groin and buttock and that he cannot lie on the left hand side without getting pain in his right hip. The doctor said:- ...which would suggest that the pain in the right hip region is referred from his low back rather than intrinsic to the hip joint 39. He also noted a complaint that the low back ached when the applicant is sitting and it is in the low back region and not at the site of the fractures of his thoracic spine which were at a higher level. 40. Despite these matters Dr Bray does not deal in his diagnosis and opinion, which is quite detailed, with the issue of a lumbar injury beyond saying in giving his assessment I would not assess further impairment of his low back...as a result of this accident. 41. Dr Stewart, a specialist in Anaesthesia and Chronic Pain Management examined the applicant for his general practitioner on 27 August 1998. 42. Amongst other matters the doctor noted: He's had pain in his back which was about T9 and T10. He also had pain over the facet joint L4/5 on the left side. 43. In proposing a course of treatment the doctor said:- He will need some help with his facet joint on the left side of L4/5. 44. On the whole of the evidence it is probable that the applicant did suffer an injury to the lumbar spine and that he has suffered a minor degree of permanent impairment as a result. 45. Determination of the percentage impairment as compared with a most extreme case is not easy. 46. A complicating factor is that, while I accept the applicant as giving a truthful account of his subjective symptoms, Dr Lewington did say:- He has developed some features of a chronic pain syndrome. A chronic pain syndrome is characterised by an exacerbation and perpetuation of symptoms and disability due to a complex interplay of physical, psychological and social factors. Commonly there is distress or depressed mood together with unhelpful cognitive and behavioural responses which serve to increase pain perception and undermine pain coping. Physical tolerances are reduced. 47. The doctor considered that the applicant would be likely to continue to experience and associated restrictions "as described"; however, he did think that the amount of disability might be reduced by a pain management program. 48. I do not consider that the applicant has established that more probably than not he has suffered the level of impairment supported by Dr Wallace and Dr Lewington. However, I am satisfied that the level is considerable higher than that assessed by Dr Bray which would not explain the applicant's symptoms approached on a conservative basis. 49. Doing the best I can I find that the applicant has more probably than not suffered permanent impairment at the back being 15 per cent of a most extreme case as a result of the fall of 26 November 1997. 50. The awards I shall make cross the threshold provided in section 67(2) and the applicant is entitled to an award under section 67. 51. $50,000 is the sum provided for a most extreme case and the task of the Court is to arrive at a sum duly proportional to that amount. There is no one most extreme case, however, the Court tends to think in terms of young quadriplegics or paraplegics or cases of severe brain damage. This case is far removed from such a matter, however, the applicant has suffered and will suffer significant pain and discomfort. He has undergone a considerable amount of medical treatment. 52. Clearly enough the applicant's general activities were physical ones and he feels deeply the inability to engage in such activities as he used to do. 53. It is also clear that the applicant was significantly depressed for a considerable time and underwent treatment by Mr Wenzel, a psychologist, and some treatment by Dr Wijesinge or at least the Mobile Treatment Team of the Illawarra Health Service. 54. Mr Wenzel said in his report of 24 February 1999. His psychometric test data and the patient's presentation on examination indicated that he was having a great deal of difficulty coping with his physical problems as well as his emotional distress. 55. Mr Stanton correctly submitted that section 67 did not extend to the event of the injury itself. He put that the difficulty that the applicant suffered from nightmares and waking up with sweats was a result of a post traumatic stress disorder upon which the applicant, expressly, did not rely. Mr Snell did not contend to the contrary. 56. Mr Stanton also put that a causal factor in the applicant's distress was his difficulty with his de-facto wife. Mr Wenzel said:- Unfortunately owing to his significant emotional distress and difficulties in coping with his problems Mr Evans and his de facto wife of many years have separated at present. 57. I think that more probably than not the separation resulted from the injury and its consequences and that his distress was illustrated rather than caused by the family problems. 58. Doing the best I can I consider that an award under section 67 of $12,500 maintains an appropriate proportionality to a most extreme case. 59. My findings may be summarised as follows: (a) The applicant suffered injury to his back and feet on 26 November 1997 arising out of and in the course of his employment with the respondent. (b) As a result of the said injury the applicant has suffered permanent impairment of the back being 15 per cent of a most extreme case. (c) As a result of the said injury the applicant has suffered 15 per cent permanent loss of the efficient use of the right leg at or above the knee. (d) As a result of the said injury the applicant has suffered 5 per cent permanent loss of the efficient use of the left foot. 60. I make an award for the applicant: Under section 66: In the sum of $9,000 in respect of permanent impairment of the back. In the sum of $11,250 in respect of 15 per cent permanent loss of the efficient use of the right leg at or above the knee. In the sum of $3,250 in respect of 5 per cent permanent loss of the efficient use of the left foot. Under section 67 in the sum of $12,500 Medical and hospital expenses - section 60. The respondent is to pay the applicants costs. Mr M L Snell instructed by Firths appeared for the applicant Mr D Stanton instructed by Hunt & Hunt appeared for the respondent