Bhanji v Richard Keogh trading as Bridge Hotel [2001] NSWCC 39

Compensation Court of New South Wales

CITATION : Bhanji v Richard Keogh trading as Bridge Hotel [2001] NSWCC 39 revised - 4/09/2001 Reeshma Bhanji PARTIES : v Richard Keogh trading as Bridge Hotel MATTER NUMBER(S) : 36593 of 2000 JUDGMENT OF: Ashford J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 15/03/01 EX TEMPORE JUDGMENT DATE : 03/15/2001

FOR APPLICANT: Mr A R Reoch instructed by Teakle Ormsby Conn. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M J McAuley instructed by John Sharpe, Solicitor for HIH Worker Compensation.

JUDGMENT: 1. The applicant claims payment of compensation pursuant to the provisions of s 66 in respect of alleged permanent impairment of the back, loss of the right leg at or above the knee and also the left leg at or above the knee, with a consequential claim pursuant to the provisions of s 67. 2. The quantum of the claim is the sole matter in issue. 3. The applicant was born 20 January 1976. She gave evidence that on 3 August 1996, she was working at the Bridge Hotel in Rozelle doing bar work. She had been in that employment since about November 1995, coincidental with her attendance at a university course. It was her evidence that on 3 August 1996, she fell onto her back whilst in the course of her duties. She was taken to the Concord Hospital where she was treated. She came under the care of her general practitioner. She was afforded bed rest for a period of about two weeks and then slowly mobilised. She was off work for a total of about eight months and payments of compensation and medical expenses were made. She also attended physiotherapy. 4. Thereafter she engaged in some other bar work in various locations. She said she had some difficulty in performing such work, particularly in standing for long periods, but was provided with assistance in many of those duties and was able to work within her restrictions. She is presently engaged in employment as a freelance graphic designer. 5. It was her evidence that she initially experienced severe pain in her back as a result of the fall. She also gave evidence of some leg symptoms which she described as being worse in the right leg and situated at the back of the right thigh. These problems have apparently lessened with time, although she gave evidence of some occasional symptoms which give her leg problems. She has been afforded pain medication and the use of a TENS machine. There has been some treatment afforded her by her general practitioner and also by Dr Lewington to whom she was referred. It appears that she continues to experience back symptoms, particularly after heavy use instancing an occasion of worsening pain after attending an exercise class. 6. Medical reporting has been tendered of the applicant's treating doctors and of those who have performed medico-legal examinations on her behalf and on behalf of the insurer. There is a variety of assessment of any percentage impairment or loss of use provided by those medical reports. It seems the consensus of medical opinion is to the effect the applicant has suffered some injury to her coccyx and probably some injury of a soft tissue or musculo ligamentous type to her back. She has not been subjected to specialist x-rays, and it appears that the consensus of medical opinion is that there is no neurological symptom arising as a result of any back injury. 7. Dr Conrad, who undertook a medico-legal assessment, is at odds with other medical reporting in that he assesses 15 per cent loss of the right leg at or above the knee, and 10 per cent loss of the left leg at or above the knee as a result of the back injury. He bases that opinion upon his comment that this is a sciatic type pain. However, he specifically notes there to be no neurological signs in either leg. No other medical reporter appears to find any neurological deficit which would give rise to sciatic type problems. It is however evident that no investigation which would provide a definitive answer in relation to any nerve root impingement has been done. 8. However, the assessments which are before me in relation to permanent impairment of the back range from the opinion of Dr Conrad of 25 per cent permanent impairment of the back, to the opinion of Dr Lewington, her treating specialist, who opines there to be 15 per cent permanent impairment of the back. That is also the finding of the medical panel. The medical panel specifically finds there to be no loss of use of either leg as a result of injury. Dr Lewington does not comment in relation to such a matter. 9. The respondent's medical reporting finds there to be no permanent impairment of the back or loss of use of either leg, except Dr Evans who was of the view there was a 5 per cent permanent impairment of the back with no loss of use of either leg as a result of injury. 10. The applicant, in my view, gave her evidence in a straightforward manner and I accept her evidence. I am satisfied she sustained injury to her back in the manner described by her in the course of her employment with the respondent on 3 August 1996. Having reviewed the medical reporting which is before me, having heard the evidence of the applicant, it is my view the applicant does have a permanent impairment of her back as a result of injury. In that regard, I am persuaded she has15 per cent permanent impairment of the back pursuant to the provisions of s 66 in comparison to a most extreme case. I am not persuaded on the evidence before me that there is any loss of use of either leg at or above the knee of a permanent kind as a result of any injury to her back. 11. Accordingly, there will be an award for the applicant in the sum of : $9,000 in respect of 15 per cent permanent impairment of the back pursuant to the provisions of s 66. 12. Costs Pt 29. 13. S 60 expenses. 14. Second conference $200. Mr A R Reoch instructed by Teakle Ormsby Conn appeared for the applicant Mr M J McAuley instructed by John Sharpe, Solicitor for HIH Workers Compensation appeared for the respondent