Thompson v Our Lady of Grace Nursing Home (formerly Phillip George Judd thence The Reorganised Church of Jesus Christ of the Latter Day Saints) trading as Castle Hill Nursing Home [2001] NSWCC 38

Compensation Court of New South Wales

CITATION : Thompson v Our Lady of Grace Nursing Home (formerly Phillip George Judd thence The Reorganised Church of Jesus Christ of the Latter Day Saints) trading as Castle Hill Nursing Home [2001] NSWCC 38 PARTIES : Susan Thompson v Our Lady of Grace Nursing Home (formerly Phillip George Judd thence The Reorganised Church of Jesus Christ of the Latter Day Saints) trading as Castle Hill Nursing Home MATTER NUMBER(S) : 4703 of 1996/1 JUDGMENT OF: Ashford J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 05/03/01 EX TEMPORE JUDGMENT DATE : 03/05/2001

FOR APPLICANT: Mr W B Nicholson instructed by McDonnell Schroder. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr B W Kops instructed by P W Turk and Associates.

JUDGMENT: 1. The applicant in these proceedings has been before the Court on two previous occasions. On 22 June 1995, Judge Duck awarded her compensation payments in respect of 30 per cent loss of the efficient use of the right arm at or above the elbow, severe facial disfigurement equivalent to 10 per cent of a most of extreme case, 10 per cent permanent impairment of the neck in comparison to a most extreme case, and in relation to the provisions of s 67. 2. When the matter came before me on 20 November 1996, I awarded her payments pursuant to the provisions of s 40, initially at the rate of $95 per week from 1 September 1994 to 15 December 1995, rising to the amount of $150 per week for the period from 18 October 1996 to date and continuing. The applicant now returns to this Court seeking an increase in those payments, together with an increase in the payment awarded to her pursuant to the provisions of s 66 in respect of loss of use of her right arm at or above the elbow, and additionally seeking a payment pursuant to the provisions of s 66 in respect of alleged loss of use of the left arm at or above the elbow, with a consequential further payment pursuant to the provisions of s 67. 3. The respondent denies there has been any increase in right arm symptoms and additionally says there has been no injury to her left arm sustained as a result of the injuries for which she has been awarded compensation on prior occasions. Additionally, it is contended there is no material reason to increase the payment pursuant to the s 40 award because of those matters. 4. The applicant again gave evidence. She has been in employment now since April 2000 and gave evidence she earns $12.76 per hour, at the St Bernadette's Primary School in her local area. She is employed to provide some cleaning services for six hours per week which is worked over two days. This work involves dusting, emptying bins, cleaning offices and is work which she performed to about the end of January 2001. At that stage because of the absence of another staff member, her hours were increased to two hours per day on 5 days to a total of 10 hours per week. In that increased period of hours, she is expected to do the fuller cleaning duties including vacuuming, dusting, emptying bins and the like. It is her evidence she has difficulties in managing such tasks and has assistance from her daughter in doing so. 5. It was the applicant's evidence that since the time of the last award in November 1996, there has been an increase in pain in her right arm and shoulder, together with a symptom of pins and needles. Additionally, she said that about two years ago, she noticed an onset of left shoulder and arm symptoms for which she attended her general practitioner. She said she had difficulty in moving her left arm properly, that she has difficulty in lifting her left arm at or above her head and pain extends from her shoulders to her fingers, with aching all the time unrelieved by medication. 6. Dr Dayton sent her to Dr Giblin for specialist opinion. An ultrasound was taken of her left shoulder. She has been prescribed various medications. In relation to the work she presently performs at the primary school she said her daughter goes with her and does the heavier aspects of the work. Her daughter resides nearby and is able to give her assistance with her household activities. 7. She gave evidence that prior to onset of left arm pain, she had difficulty sleeping on her right side, and with the onset of left arm symptoms she has more difficulty in sleeping and in fact has to lie on her back. She was of the view that she is unable to increase her activities by way of paid employment and indeed said she has difficulties in performing the 10 hours per week she is presently doing. However, she continues in this job for the time being until the return of the absent staff member, albeit with the assistance of her daughter. 8. Medical reporting has been tendered in relation to the left arm symptoms. Dr Dayton is her general practitioner. He has provided reporting relating to her attendances upon him and the treatment provided. By reporting of 6 November 2000, he notes that during her rehabilitation and attempted return to work, the applicant had begun to experience increasing pain and disability of the left shoulder. It was his opinion that those symptoms result from overuse caused by the necessity to protect her injured right shoulder. He records that the level of pain prompted him to arrange specialist appointment with Dr Giblin. In his view, the applicant is totally and permanently incapacitated. 9. Dr Giblin provided medical reporting relating to his review of the applicant. As at 18 January 2000, he records a definite impression of some early rotator cuff disease and possibly an early frozen shoulder on the left side. He agreed this was associated with the right shoulder injury. His reporting of 20 April 2000 expands upon his reporting to the general practitioner. He thought it reasonable that the left shoulder symptoms were directly related to the right shoulder symptoms. At that time, he was prepared to assess there to be 20 per cent permanent loss of the efficient use of the left arm at or above the elbow, and believed her left arm should not be used in heavy or repetitive fashion at or above shoulder height. 10. Dr Adler provided medico-legal report relating to his examination of 22 February 2000. He obtained a history of a number of injuries to the right arm and shoulder which were the subject of the previous award. He noted there was an onset of left sided shoulder and upper arm pain about some six months prior to consultation, without any clear precipitant. Following examination, he found evidence of a left adhesive capsulitis and felt the left shoulder demonstrated clear evidence of capsular contracture which limited movement by the contracture and not simply by pain. He thought some treatment may be warranted for that condition. 11. Dr Conrad has also provided medico-legal opinion relating to his examination of the applicant. In relation to her complaints of pain in the left shoulder, he thought these had arisen as a result of favouring her right shoulder, noting the onset of similar symptoms in that shoulder and thought this should be investigated. He thought her unfit for work as an assistant nurse but able to do light part-time cleaning work. At that time, he assessed there to be 35 per cent permanent loss of use of the right arm at or above the right elbow and 25 per cent loss of use of the left arm at or above the elbow as a result of favouring the right arm. He provided supplementary reporting of 11 December 2000 following sighting an ultrasound taken 7 November 2000. He noted this showed no tear in the rotator cuff, but thought it significant that movements were shown to be limited with a maximum abduction of 60 degrees. He thought this confirmed his diagnosis of an adhesive capsulitits restricting the range of movement. 12. Ultrasound of the left shoulder done on 3 May 1999 showed no ultrasound evidence of impingement of the left shoulder. X-rays apparently showed there to be no degenerative changes at that time. There was further ultrasound taken on 7 November 2000. This showed no partial tear or degeneration in the cuff. It was noted that movements were limited with a maximum abduction of 60 degrees and on that assessment, the appearance was suggestive of a frozen shoulder. 13. The respondent has tendered medico-legal reporting of Dr McGill relating to his assessment on 9 October 2000. He had the benefit of perusal of reporting of the applicant's treating doctors. He also sighted x-rays, ultrasounds and arthrograms which had been performed. He thought the cause of any left shoulder pain to be unclear noting that plain x-rays and ultrasound had not demonstrated abnormality. He thought there may be some minor degenerative change in the rotator cuff or in the AC joint not evident on plain x-ray. He did not believe it could be explained on the basis of excessive use of the left upper limb because of the right shoulder problem. He thought it likely to relate to constitutional degenerative change in one of the structures of the shoulder girdle. On the basis of his examination, he thought it premature to assess any loss of use of the left arm at or above the elbow. 14. I thought the applicant to give her evidence in a straightforward manner, as indeed she did on the prior occasion. I have no hesitation in accepting her evidence in relation to the problems and difficulties she experiences as a result of pain not only in her right arm and shoulder but also in her left arm and shoulder. I accept the medical opinion which finds her to have a disability of her left arm as a result of her right arm and shoulder injury and I am satisfied any disability she has of her left arm relates to that prior right arm injury. More probably than not, it appears there is some adhesive capsulitis of the left arm and shoulder, or injury of a soft tissued type. I accept the applicant's evidence that she has difficulty in performing duties using her left arm and shoulder at or above shoulder height or in activities which require repetitive use of her left arm. 15. In dealing with the claims which are present made, firstly I note there has been a claim made in relation to an increase pursuant to the provisions of s 66 in respect of the right arm for which there has previously been a payment made for 30 per cent loss of use of the right arm at or above the elbow. 16. The applicant's evidence was of an increase in pain of her right arm and shoulder since the prior award. In looking to the medical evidence before me, the only assessment which provides an increase in loss is that of Dr Conrad, who finds there to be a 35 per cent loss of that limb. I am not satisfied on the evidence before me there has been demonstrated to be any increase in pathology which would warrant an increase pursuant to the provisions of s 66 in respect of the right upper limb. 17. In dealing with the left arm at or above the elbow, as I have said, I am satisfied the applicant has some loss of use of that limb as a result of injury to her right arm. In that regard, I have set out the assessments which are before me. It is clear there is little by way of objective pathology. Nevertheless, as I have said, I accept the applicant's complaints in relation to onset of pain and in relation to her difficulties in the use of her left arm. I find her to have 15 per cent loss of the left arm at or above the elbow as a result of the injury to her right arm in the employ of the respondent. 18. That amount crosses the threshold pursuant to the provisions of s 66. The applicant has given evidence of actual pain and suffering, of her difficulties in using her left arm in extended movement or in heavy use, or activities which require her to use her arms at or above her head. I am of the view her claim falls within the lower range pursuant to the provisions of s 67. In that regard, I find 15 per cent in comparison to a most extreme case. 19. In looking to the claim made pursuant to the provisions of s 40, at the time of the prior award earnings of comparable employees were $430 per week from 18 October 1996. I found the applicant to have a capacity to earn at that time in the sum of $280 per week and exercised a mathematical calculation of the difference between those amounts in relation to the continuing claim pursuant to s 40. Wages material has been tendered by the parties. It is alleged by the respondent that the earnings of comparable employees in the employ of the respondent from 9 September 1998 to date and continuing are the sum of $480.21 per week. The applicant's wage schedule records the earnings of comparable employees to be the sum of $483 per week from 9 September 1998 to 9 September 1999, with an incremental increase to the sum of $511.98 per week from 9 September 1999 to 17 April 2000, and the sum of $542.70 per week from 17 April 2000 to date and continuing. 20. A letter from the respondent addressed to the respondent's solicitors dated 4 August 2000, notes the award rate for a 40 hour week and the earnings of comparable employees to be the sum of $480.21 per week. This indicates no change in the wages position from September 1998. 21. The applicant's actual earnings between 7 April 2000 and about the end of January 2001 are the sum of $76.56 per week rising to the sum of $127.60 per week for the period from 1 February 2001 to the present time. This is a period of employment filling in for another employee who is presently on leave. The applicant maintains she is only able to perform those hours with the assistance of her daughter, who performs the heavier work. That evidence was not challenged. Her evidence also was that she feels unable to continue in the light cleaning duties, were she to perform such tasks for 10 hours per week. 22. I previously found the applicant's ability to earn to be the sum of $280 per week. At that time, she had a 30 per cent loss of use of her right arm at or above the elbow. I have now determined she has 15 per cent loss of use of her left arm at or above the elbow as a result of injury in the employ of the respondent. It seems to me I should review her ability to earn based upon her evidence of actual earnings and based upon the degree of difficulty she presently experiences in performing many activities. To that end, it is my view that since 9 September 1998 her ability to earn has been reduced. I do not believe her actual earnings to be a true reflection of her earning capacity on the open and available labour market. It is my view her earning capacity on that labour market is the sum of $250 per week from 9 September 1998 to date and continuing. 23. I find the earnings of comparable employees in the employ of the respondent to be the sum of $480 per week as set out in the material provided by the respondent. I am satisfied I should exercise a mathematical calculation of the difference between those two amounts. 24. Accordingly, there will be an award for the applicant in the sum of : $233 per week from 9 September 1998 to date and continuing, pursuant to the provisions of s 40. 25. $11,250 in respect of 15 per cent loss of the left arm at or above the elbow pursuant to the provisions of s 66. 26. $7,500 in accordance with the provisions of s 67. 27. S 60 expenses. 28. Costs Pt 29. 29. Second conference $200. Mr W B Nicholson instructed by McDonnell Schroder appeared for the applicant Mr B W Kops instructed by P W Turk and Associates appeared for the respondent