Compensation Court of New South Wales CITATION : Paul v Club Phoenix [2001] NSWCC 122 PARTIES : Wendy Robinson Paul v Club Phoenix Limited MATTER NUMBER(S) : 31107of 1991 JUDGMENT OF: Bishop J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 19 May 1994 EX TEMPORE JUDGMENT DATE : 05/18/1994 FOR APPLICANT:Mr R Driver instructed by O'Sullivan Saddington LEGAL REPRESENTATIVES: FOR RESPONDENT:Mr C Wynyard instructed by Gadens Ridgeway JUDGMENT: 1. This claim is brought by a 41-year-old bar attendant based upon an injury alleged to have occurred in the course of her employment in October 1987 resulting in an injury to her back. She claims weekly compensation from 3 April 1988 together with lump sums under s 66 for permanent impairment of the back and loss of the efficient use of the left leg at or above the knee. A claim was also brought under s 67 and also under s 60. 2. The applicant has described in evidence her previous industrial history which was since she left school in year ten essentially of an unskilled type of activity in the liquor trade and in various shop assistant types of jobs. At the relevant time she was with the respondent she was a part-time bar attendant and she indicated that her hours of employment would vary but would possibly average out at something in the area of 25 hours per week. She gave evidence as to the fall that she had on a wet section of the floor and indicated in evidence that she reported it to her supervisor. There is no evidence called from the respondent with regard to this injury and I have no difficulty in accepting that the incident occurred as alleged. 3. The applicant's medical history is a little bit complicated. It has been indicated that probably in 1978 or 1979 she had an incident involving her back with an episode whilst getting out of a dinghy. The evidence was that this was a self-contained sort of episode and was quite minor but there appears no doubt from the applicant's own evidence and from the medical and other material put before the Court that immediately prior to this incident in October 1987 her back was troubling her and indeed the report from the physiotherapist, Mr Shakespeare, indicates that he had been giving her some treatment for the back condition a matter of weeks before the incident in October 1987. However, it seems to me that even if these back symptoms were there and causing problems to the applicant there is nothing really before me to indicate that these pre-existing symptoms were in fact adversely affecting her employment capacity. I am satisfied, on the totality of the medical evidence, that this injury in October 1987 significantly worsened the applicant's back condition. 4. What happens subsequent to this is that she seems to have continued on with the respondent until about April 1988 when her uncontested evidence is that she left the respondent because she was having difficulty due to her back and to her leg in coping with the job. It then seems that she took on another form of part-time activity selling jewellery in a system that is known as a party plan. This particular activity seems to have involved her in about 16 hours a week and she gave evidence that she kept going on this until she found also that she could not cope with this activity. It then seems that she got more concentrated medical advice and this led to her coming under the care of Dr Ghabrial who treated her conservatively for a period then arranged a discogram which was reported as showing ruptured lumbar discs at two levels. He then proceeded to surgery which appears to have been a two-level laminectomy together with a fusion from L4 to S1. 5. Subsequent to this, the applicant has indicated that her back and leg pain has been continuing. She indicates that her back is painful most of the time but her left leg all of the time. She has stated to the Court that her only post-operative activity has been one where she got some qualifications from an American organisation to teach ceramic techniques and she apparently runs classes in this sort of activity at her own home, I think the evidence indicates, four times a week, about three hours per class. However, she stated that at this stage at least she receives no income from this particular source. At all events, I am satisfied on the overall evidence that is before the Court that the injury in October 1987 has made the applicant incapacitated and brought about the need for the surgery that was carried out by Dr Ghabrial the following year. 6. I now turn to the question of assessing the applicant's entitlement to weekly compensation. It seems to me that this has to be addressed in three different chronological periods. The first of these is from the commencement for a claim for weekly payments which is 3 April 1988 up to 5 February 1990 which is the day before she initially consulted Dr Ghabrial and started undergoing some concentrated medical treatment. It seems to me that there is no real doubt that during this period she was partially incapacitated as a result of the injury in October 1987. She was, during this period, engaged in the party plan activities to which I have referred. Her actual earnings in this particular activity are not before the Court but for this relevant period it has been agreed that her probable earnings but for the injury would have been $175 per week. There is little that I can do other than to arrive at a fairly arbitrary assessment of her ability to earn during this period which I place at $125 per week. Accordingly, for this period the applicant has, in my view, an entitlement to $50 a week in compensation. 7. The second period relates to the period from 6 February 1990 to 19 March 1992 which can broadly be described as the period during which she was under the treatment of Dr Ghabrial. He has certified her as being, in his opinion, totally unfit for any form of employment during this period. It was submitted to me on the part of the respondent that with the surgery being carried out on 30 July 1990 I should take the view that any period of total incapacity should run from some date immediately prior to the operation to which I have referred. I do not think that this submission is appropriate. When one reads the report of Dr Ghabrial following her initial consultation he had her under active treatment leading to CT scans and then to a discogram and then to surgery. 8. I think it is appropriate to accept the assessment of Dr Ghabrial that between 6 February 1990 and 19 March 1992 the applicant was totally incapacitated for her employment. The earning figures on a probable basis, which would guide the entitlement to weekly compensation, have been agreed at $175 per week to 9 April 1990, $185 per week from 10 April to 9 April 1991, $195 per week from 10 April 1991 to 19 March 1992 and it seems to me that these figures represent the weekly amounts to which the applicant is entitled for that period. 9. I turn now to the third period with regard to the entitlement to weekly compensation which is from 20 March 1992 to the present date. The probable earning figures for this particular period have been agreed in Exhibit H. They amount to $195 per week to 9 April 1992, $205 per week from 10 April 1992 to 9 April 1993, $215 per week from 10 April 1993 to 9 April 1994 and $230 per week thereafter. I am satisfied that the applicant has been partially incapacitated during this period. It seems to me that the measure of her earnings has to be judged on the basis that she manages, albeit with difficulty, to carry out the ceramic classes to which I have made reference earlier in this judgment. Dr Ghabrial, at the time of his last examination, only placed a restriction on her employment as not involving excessive lifting but the report from the rehabilitation centre restricts the applicant a little bit further than that. It seems to me, making allowances for gradual post-operative recovery and the like, that the applicant has had a capacity for limited employment probably on a part-time basis where prolonged standing, sitting or lifting of heavy weights is not involved. 10. Doing the best I can, for the first of the periods to which I made reference above I find an ability to earn of $125 per week, for the second period $150 per week, for the third period $160 per week and from 10 April 1994 to date $180 per week. Accordingly, with regard to the claim for weekly compensation, the award which I make in the applicant's favour is in the following terms: $50 per week from 3 April 1988 to 5 February 1990 under s 40; $175 per week from 6 February 1990 to 9 April 1990, $185 per week from 10 April 1990 to 9 April 1991, $195 per week from 10 April 1991 to 19 March 1992; $70 per week from 20 March 1992 to 9 April 1992, $55 per week from 10 April 1992 to 9 April 1994 $50 per week 10 April 1994 to date and continuing. These last-mentioned rates are under s 40 and in the exercise of my discretion I do not consider there are any grounds to warrant making any deduction with regard to the ingredients of the award under s 40. I order that the respondent pay interest on 50 per cent of the arrears of compensation at the rates prescribed for the relevant periods under the Supreme Court Act. 11. I turn now to the applicant's entitlement under s 66. With regard to the assessment of permanent impairment of the back there have been assessments from Dr Chapman of 20 per cent, from Dr Ghabrial of 25 per cent and from Dr Smythe at 40 per cent. It seems to me that in exercising the proportinality task that I am required to address under the Court of Appeal decisions I should take into account the fact that the assessments of Dr Chapman and Dr Ghabrial are reasonably close and significantly below those of Dr Smythe. I propose to make a finding that the applicant's impairment to her back is in the ratio of 1:4 of a most extreme case and she is entitled under s 66 to the sum of $12,345 under this heading. 12. A claim has also been brought for assessment of the permanent loss of the efficient use of the left leg at or above the knee. Dr Ghabrial has assessed a ten per cent loss of the left leg. In my view, there is adequate evidence that there is a degree of impairment of the function of the applicant's left leg and I propose making the award that is sought of a ten per cent permanent loss of the efficient use of that leg at or above the knee. This entitles the applicant to $6,172.50. The applicant has claimed and is entitled to interest on this award under s 66. To give the precise date from which interest should be calculated is a little difficult in that the evidence simply indicates that the incident at work took place in October 1987. I propose to somewhat arbitrarily fix the starting date for interest in the middle of the month; namely, 15 October 1987 and I order that the respondent pay interest on the award under s 66 from that date at the rate of eight per cent. 13. I turn now to the applicant's claim under s 67 as she has exceeded the relevant threshold. I have taken into account her age, the interference in her social activities, I have noted the medical evidence given from Dr Lambeth, I have also taken into account the surgical procedures by way of the quite distressing procedure of a discogram and the surgery that has been undertaken by the applicant. I accept also that she gets constant interference with her day-to-day lifestyle as a result of what has occurred and suffers ongoing discomfort as a result of her back problem. I think the relationship to a most extreme case is more or less the same as the proportionality with regard to the impairment to the back and the appropriate figure to which I think she is entitled under s 67 is the sum of $10,000. I apportion $5,000 of that to past pain and suffering and order that the respondent pay interest on that component at the rate of 4 per cent from 15 October 1987. 14. I make a general order in the applicant's favour under s 60, costs Pt XXIV. I will certify the advice on evidence and one special conference at $200. Mr R Driver instructed by O'Sullivan Saddington appeared for the applicant Mr C Wynyard instructed by Gadens Ridgeway 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.