CAVALLO V UNI OF NSW [2001] NSWCC 107

Compensation Court of New South Wales

CITATION : CAVALLO V UNI OF NSW [2001] NSWCC 107 PARTIES : FILOMENA CAVALLO UNIVERSITY OF NEW SOUTH WALES MATTER NUMBER(S) : 42378 of 2000 JUDGMENT OF: Moran J CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 17/5/01 DATE OF JUDGMENT: 05/17/2001

FOR APPLICANT: MR. G. RICH - BARRISTER LEGAL REPRESENTATIVES: FOR RESPONDENT: MS D. MOORE - BARRISTER

JUDGMENT: 1. In this matter the applicant who is now aged 64 suffered injury to her left leg in the course of her employment on 3 February 1992. Unfortunately, after that accident although she had specialist attention and the best of care she developed sympathetic dystrophy. She has been unable to work since the incident and has been in receipt of weekly payments. She brought proceedings before the Court which were settled in 1995. By consent she was awarded compensation equivalent to 40 per cent permanent loss of use of her right leg at or above the knee plus an amount for pain and suffering under s 67 in the sum of $8,000. 2. The applicant claims that since that award her condition has deteriorated but she is suffering a further 5 per cent loss of use of her left leg at or above the knee and she also suffers as a result of her gait and her need to use a walking stick, (although she stopped using that walking stick 18 months ago) that she also suffered a 10 per cent permanent loss of efficient use of her right leg at or above the knee, a 15 per cent permanent loss of use of her right arm at or above the elbow and a 15 per cent permanent impairment of her back. Her case is supported by a number of doctors. 3. Dr Tinning saw the applicant both before and after the 1995 settlement and he reached the conclusion in February 1995 that she had a 45 per cent loss of use of her left leg and at the same time Dr Conrad considered she had a 35 per cent loss of use of her left leg at or above the knee and 20 per cent loss of use of her left leg below the knee. Dr Goldberg saw her in 1994 and he thought that she had a 50 per cent loss of use of her left leg at or above the knee, taking into account the whole leg, and that she had a disability of her lumbosacral spine but this should be temporary and that was about 15 per cent. In addition to those doctors she also relies upon an assessment by Dr Neil Berry of 15 February 2001 (and Dr Berry is known to the Court to be reasonably generous with his assessment) and he considered that in 2001 the applicant had a 40 per cent loss of use of her left leg at or above the knee and 5 per cent loss of use of her right leg at or above the knee, 10 per cent loss of use of her right arm at or above the elbow and 10 per cent impairment of the back. 4. Despite the fact that the applicant had medical reports from the doctors to whom I have referred to earlier in 1995 the settlement of her claim was done by consent and she accepted an amount equivalent to 40 per cent loss of use of her left leg at or above the knee. Counsel for the applicant says that despite that agreement to which the respondent was a part the respondent now tenders Dr Bodel's report that she only suffers 20 per cent loss of use of her left leg at or above the knee. I agree that Dr Bodel's assessment is inconsistent with the other doctors' reports that I have mentioned in my reasons, however, I am not satisfied on the whole of the evidence that there has been any deterioration in the loss of use of the applicant's left leg at or above the knee and that her loss, in accordance with the provisions of s 66, remains at 40 per cent. 5. Nevertheless, I am satisfied that as a result of the injury which she suffered to her left leg and the continuing disability since 1995 which is mainly brought about by her gait and the pain and suffering she has in the left leg that she does have a 5 per cent loss of use of her right leg at or above the knee. I note that Dr Tinning considers that the loss is 10 per cent but I have before me medical reports from Dr Berry and Dr Bodel who both agree that it is 5 per cent and I find on the evidence that she has since the 1995 award suffered a 5 per cent loss of use of her right leg at or above the knee. The applicant did have a back problem in 1995. Dr Goldberg thought it would be temporary and probably because of that decision no claim was made for it at that time but I accept that as a result of the injury she does have an impairment of her back. I am obliged to assess impairment of back in proportion to a most extreme case. 6. I find that in proportion to a most extreme case the applicant has a 5 per cent impairment of her back. I am satisfied that the applicant has suffered symptoms in her right shoulder, right hand and right arm as a result of using crutches for some years but she ceased using those crutches 18 months ago. I accept her evidence that she still suffers symptoms in her right arm which prevent her from doing all the activities with her right arm that she did before the accident and I find that as a result of the injury of 3 February 1992 she has a 10 per cent permanent loss of efficient use of her right arm at or above the elbow. 7. As I mentioned earlier, she has already had an award under s 66 and - but without that previous award the amounts I have awarded would still entitle the applicant to an additional sum for pain and suffering. 8. I think the proper approach to make to the assessment of her entitlement under s 67 is to take all the losses into account including the losses that she has received compensation payment in the past and then assess the degree of pain and suffering; and then to deduct the amount previously awarded in 1995. The maximum amount payable for pain and suffering in both 1995 and today was $50,000. That amount is payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity or the loss of the loss and losses and pain and suffering is defined as actual pain or distress or anxiety suffered or likely to be suffered by the injured worker whether resulting from the loss concerned or from any necessary treatment and the section also states that the compensation payable in the section is payable in respect of the loss or losses and not in respect of the injury itself. 9. I find that the appropriate amount to award the applicant for pain and suffering for the additional losses to which I have referred including the 40 per cent loss of the left leg previously awarded to be a total sum equivalent to 30 per cent of a most extreme case. 30 per cent of a most extreme case is $15,000. She has already been awarded $8,000 which I calculate to be 16 per cent of a most extreme case. 10. Accordingly, I propose to award the applicant compensation under s67, an additional $7,000 for the additional 14 per cent For those reasons I make an award in favour of the applicant as follows: under s 66 in the sum of $3,750 in respect of 5 per cent permanent loss of efficient use of her right leg at or above the knee; $8,000 in respect of 10 per cent permanent loss of efficient use of her right arm at or above the elbow; $3,000 in respect of 5 per cent permanent impairment of her back, I make an award in her favour under s 67 for pain and suffering for an additional sum of $7,000. I order the respondent to pay the applicant's costs including qualifying fees for Dr Tinning and Dr Conrad and Dr Berry. Additional conference will be at $250. Mr G A Rich of counsel appeared for the applicant Ms D R Moore of counsel appeared for the respondent