Compensation Court of New South Wales CITATION : Pyne v Tukilo Pty Ltd [2001] NSWCC 113 revised - 04/09/2001 Irene L Pyne PARTIES : v Tujilo Pty Ltd t/as Kirkton Park Country House Hotel MATTER NUMBER(S) : 41344 of 2000 JUDGMENT OF: Truss J CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 30/05/01 EX TEMPORE JUDGMENT DATE : 05/30/2001 FOR APPLICANT: Mr P Stockley instructed by Hallam & Littlewood LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr T Wardell instructed by A O Ellison JUDGMENT: 1. The applicant claims lump sum compensation under s 66 and s 67 for permanent impairment of the back and loss of the efficient use the left leg. There is no issue about the fact that she injured her back in the circumstances alleged on 15 June 1998 nor that as a consequence she has suffered a permanent impairment thereof. The issue in that regard was quantification. The respondent did not concede that there was any permanent loss of the efficient use of the left leg. 2. The applicant was born on 11 September 1959 and commenced with the respondent in 1991 as a housemaid working around 20 hours per week. On 15 June 1998 while stepping into a bathtub to clean it she suffered an onset of severe low back pain. She consulted her general practitioner Dr Wakatama who referred her for physiotherapy and an x-ray and she had a week off. Thereafter her duties were modified in that she worked less hours with assistance and avoided heavy work. However her back continued to be symptomatic and she ceased work in October 1998 by which time her symptoms had become quite severe. She had a CT scan and was referred by her general practitioner to Dr Spitaler who recommended conservative treatment. She was also referred to Hunter Rehabilitation where she underwent the extensive three-month exercise program referred to in the reports which comprise Exhibit D. She was taught exercises to perform at home and she underwent vocational and functional assessments as well as work-ready and back-care programs. The applicant said that there was some improvement in her condition in particular as a consequence of the exercise programs. She also gave evidence that by mid 2000 her condition had stabilised and has continued in more or less the same state since then. 3. In June 2000 she commenced employment at a sandwich shop. Her duties involve making sandwiches and serving customers. Initially she worked nine hours per week but now works only three hours on Fridays. This is due to lack of available work and admitted that she would be able to work more hours if the work were available. She is not required to do any bending or lifting. She gave evidence for the six months before June 2000 there was considerable improvement in her condition in that the pain was not as bad as when she first had the accident. She said that the exercise program assisted considerably and there was also some improvement in her left leg symptoms. 4. As to the present state of the applicant's back, she continues to suffer low back pain which she said comes and goes. She said that she wakes up with back pain virtually every morning and is usually pain-free by the afternoon. Generally speaking she can do less in the morning than in the afternoon and that the back pain eases as the day goes on. She performs her normal domestic activities but said that vacuuming is a problem and she normally spreads this out over a week. In relation to washing she found she was unable to bend down into the basket and now uses the trolley and leaves the pegs on the line. She also has difficulty standing for lengthy periods to do the ironing. 5. As to her left leg she gave evidence of occasions when sharp pain radiates from her back to her buttock to the back of her knee although when she saw Dr O'Neill in February he only recorded pain extending as far as the buttock. She said she suffers this pain about three or four times per month and that it lasts two or three days. She does some stretching and rests when this occurs. In addition she suffers from numbness in the middle two toes which comes and goes. Sometimes this is associated with leg pain and sometimes not. The numbness can last for between half a day and two days. She also gave evidence that if she sits for too long, for example for more than 45 minutes in a car she suffers back and leg pain and has to stop and walk around to relieve the pain. She also had difficulty driving the family car which was a manual due to left leg pain and has recently purchased an automatic car. 6. Her exercise program requires her to walk for an hour per day. She said that she does this at her own pace but often is unable to walk for more than 20 or 30 minutes because she develops numbness in the toes and pain in her low back. She also gave evidence that she has difficulty bending at the vanity to clean her teeth and bending at the sink to wash dishes, that her ability to walk is less if the ground is uneven and that when using stairs she always uses the handrail. The applicant did not engage in any sporting activities before injury although she did dance on social occasions. Since then she has danced less and has modified her dancing to avoid twisting and turning. 7. She also gave evidence that sometimes when she turns in bed she wakes up in pain. She uses voltaren gel on her back which assists. At one time she was prescribed Indocid which upset her stomach. She presently takes celebrex if needed and nurofen. There was no serious attack on the applicant's credit by the respondent although she was cross-examined about activities observed in February this year when at about 9.30 in the morning she was seen to bend up to about 12 times to pick up carpet squares on her front verandah. The applicant had already given evidence that she is able to bend but not constantly and generally does so in the manner taught to her by the rehabilitation provider namely by keeping her back straight and extending her right leg. She did however accept that she may not have bent in this fashion when observed. The respondent submitted that her evidence in relation to this issue suggested an element of exaggeration. That perhaps may be so, but by and large I accept the applicant as a witness of truth and all of the doctors accept her complaints as genuine. 8. CT investigation of the applicant's lumbar spine revealed a left lateral protrusion at L5-S1 which appears to be impinging on the L5 nerve root. Dr Ghabrial for the applicant and Drs O'Neill and Bornstein for the respondent all directly attribute the protrusion to the incident in June 1998 although Dr O'Neill considered it also to be a consequence of the subsequent work as a housemaid which she performed for the respondent up till when she left in October 1998. All three doctors are of the view that as a consequence the applicant has sustained a permanent impairment of the back and I am similarly satisfied that she has. 9. Having regard to the totality of the evidence I consider that the permanent impairment should be determined at a proportion greater than the assessments of Dr O'Neill and Dr Bornstein of 10:100 and 12:100 respectively. However I do not consider that a finding in accordance with Dr Ghabrial's assessment of 1:4 is appropriate principally because his assessment was given in October 1999 and I have referred already to the applicant's evidence of significant improvement since then. I consider that a finding of 1:5 properly reflects the evidence in this case. There was no evidence to support any deduction under s 68A. 10. The applicant also claims lump sum compensation for permanent loss of the efficient use of her left leg. The symptoms which she describes are credible and in my view explicable by the radiological findings. Dr Ghabrial gave an assessment of 10 per cent and Dr Bornstein an assessment of 5 per cent on the basis of radiating discomfort. Although Dr O'Neill recorded leg symptoms similar to those of which the applicant gave evidence in his view there was no loss. I have referred already to the applicant's evidence as to the symptoms and restrictions in the leg. Although intermittent they do affect her ability to drive a manual car, walk especially on uneven ground, use stairs and sit for lengthy periods. For these reasons I consider that an assessment of 10 per cent more properly reflects clinical findings and the interference with the ability to use her leg in normal daily activities. 11. These findings entitle the applicant to an award under s 67 for pain and suffering. I take into account the pain she has suffered since injury particularly in the period up to the middle of last year and the fact that the medical evidence suggests that in the future she is likely to suffer pain in her back primarily and to a lesser extent her leg particularly when she engages in those activities which cause increased pain. I take into account her age, presently 41, and the very long period of pain and suffering ahead of her, more than four decades according to the life tables, and I also have regard to the need for medication when the pain is sufficiently severe to warrant it. There was no evidence of any distress or anxiety. The applicant presented as a fairly uncomplaining lady who has done her best to adapt her life to the problems with her back and leg. 12. Taking all of these matters into account and determining where the applicant's case rests proportionate to a most extreme case having regard to the degree and duration of pain and suffering and the severity of the losses for which I have awarded her in my view the appropriate proportion is 1:4. I therefore award her $12,500 for pain and suffering. The findings are: 1. On 15 June 1998 the applicant suffered injury to her back in the course of her employment with the respondent and her employment was a substantial contributing factor to the injury. 2. As a result she has suffered:- (a) permanent impairment of the back equivalent to a most extreme case of back impairment in a proportion of 1:5. (b) permanent loss of the efficient use of the left leg at or above the knee equivalent to 10 per cent of the total loss thereof. 3. As a result of the said losses the applicant has - does and will continue to experience pain and suffering which represents a proportion to a most extreme case of 1:4. I make the following awards and orders in her favour: 4. Award for lump-sum compensation pursuant to s 66 in respect of (a) permanent impairment of the back for $12,000. (b) permanent loss of the efficient use of the left leg at or above the knee for $7,500. 5. Award pursuant to s 67 for $12,500; 6. I order the respondent to pay the applicant's costs. Mr P Stockley instructed by Hallam & Littlewood appeared for the applicant Mr T Wardell instructed by A O Ellison 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. 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