Compensation Court of New South Wales CITATION : Metz v Mid North Coast Area Health Service [2001] NSWCC 23 revised - 04/09/2001 Maria Metz PARTIES : v Mid North Coast Area Health Service MATTER NUMBER(S) : 46744 of 1999 JUDGMENT OF: Moran J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 05/02/01, 09/03/01 DATE OF JUDGMENT: 03/09/2001 FOR APPLICANT:MR. F.D. CURRAN instructed by RL Whyburn & Associates LEGAL REPRESENTATIVES: FOR RESPONDENT:MR. P. BARBER instructed by Hickson Wisewoulds JUDGMENT: 1. In this case the applicant who is now aged 48 was employed by the respondent as a nurse and at the time of her injury was a theatre nurse. She had commenced her employment as a trainee-nurse back in 1974 and continued in her nursing career until 1999. In the meantime she claims that on 23 May 1997 she was with an elderly patient, the patient fell. In trying to save the patient she says she injured her neck, right arm, back and left hip. She also claims that on 31 May 1998 while moving a patient from a coronary care bed she sustained further injury to her back and neck. As her counsel, Mr Curran, has said she had a good work record, she enjoyed her work, and having had the benefit of hearing the applicant and seeing her in the witness box in Coffs Harbour I accept her as a witness of truth. She impressed me. She has since her injuries obtained part-time work at Coffs Harbour TAFE and was in the Bellingen ACE (Adult Community Education) as a lecturer. The opportunities, however, are not available throughout the whole year for that type of work. 2. The applicant's claim for benefits was accepted by the respondent up until August of 1999. In the meantime after the first injury the applicant returned to work from about August 1997 until December 1997 when she said she had a flare-up of back pain and was off again until January 1998 and then later suffered an injury on 31 May 1998. It was submitted to me by counsel for the respondent that because of the absence of an injury relating to the low back in her general practitioner's first record of 16 September 1997 - that she had an injury three weeks ago, and in that record he referred only to straining her right arm and right neck - however, the report of injury, Exhibit G, which is dated 23 May 1997, refers to the applicant's neck and back. 3. I accept the applicant's evidence that she did tell Dr Adams about her back at the first consultation after the injury. True it is, it is not recorded in his notes, like I said, but in his second report of January 1999 he said: The history obtained from Maria relates to firstly their original presentation on 16.6.97 when she presented with a 3 weeks history of neck and right arm pain in association with her low back pain. 4. The applicant shortly before further compensation payments were declined had obtained part-time work at Coffs Harbour TAFE. The applicant had obtained a certificate from Dr Adams which she presented to her employer for administration type duties. She was prepared to carry out those duties and Mr Harper at the respondent's hospital was arranging for her to start as a ward clerk when the liability was declined. I accept the applicant's medical evidence that the applicant had been since 5 August 1999 partially incapacitated for work and that she was unfit for full nursing duties as she had done for some years before injury. 5. She has been earning in her part-time work at TAFE and ACE. The amount set out in the applicant's second amended wage schedule from 5 August 1999 to 4 May 2000 - $418 per week; and from 5 May 2000 to 6 December 2000 - $561.16 per week. It is not disputed that the applicant's probable earnings had she not been injured were $1,150 per week. That amount is slightly less than the maximum amount provided for in s 35 of the Act which at that stage was about $1,159 per week. On the one hand the applicant's earnings when averaged out over a whole year would be less than the amounts to which I have referred because TAFE, for instance, closes down in December and does not open again until March. However, the respondent submits that as a qualified nurse with 20 years and more experience there are other avenues of employment such as in a doctor's surgery. 6. I find that since liability was declined on 5 August 1999 to date the applicant has been able to earn in some suitable employment or business approximately $600 per week. In the exercise of my discretion under s 40 of the Act: I determine the proper sum to award the applicant for her partial incapacity from 5 August 1999 to be the maximum rates provided in the Act after the first 26 weeks of incapacity - namely, $272.60 per week from 5 August 1999 rising to $284.60 per week at the present time. 7. In respect of the applicant's claim for lump sum compensation under s 66 of the Act, again, I accept the applicant's evidence of her symptoms. In relation to those parts of her anatomy that she claims to have impairments or losses, she did give evidence of some low back pain from time to time and in respect of the provisions of s 68A I am satisfied that there should be some deduction because of a pre-existing condition or abnormality but I am not persuaded that any such deduction should be more than 10 per cent as suggested in s 68A(6). That deduction would also apply to the loss of use of the applicant's left leg which emanate from her back as a secondary injury. 8. I will deal, firstly, with the applicant's claim for loss of use and impairment of the neck and right arm. The assessments on behalf of the applicant come from her general practitioner, Dr Adams, Dr Hefner and Dr Clyde-Page. Dr Adams does not use the words of the Act in his description of her loss of use, firstly, in respect of the applicant's neck. He says that she has continued to demonstrate a 15 to 20 per loss of function in relation to her left knee and the second area of injury relating to her low back he said the predominantly left lumbar pain et cetera varies from 10 to 30 per cent. He makes no reference in his report to the loss of use of her right arm. It would seem that he would include any restriction to her right arm to come from the injury to her neck. 9. So coming then to the two specialists, Dr Hefner, considered on 27 October 1998 that she had a 15 per cent impairment of her neck and a 15 per cent loss of use of her right arm at or above the elbow. Dr Clyde-Page thought that she had a 10 per cent impairment of her neck and 5 per cent loss of use of her right arm at or above the elbow. The doctors relied upon by the applicant, generally speaking, considered that any loss of use or impairment are not related to work injuries. The only doctor prepared to say that she had any neck impairment was Dr Opie who thought any impairment was 2 per cent but she did not think there was any loss of use of the right arm. 10. In assessing compensation for lump sum for impairment of the neck I am obliged to assess such loss in proportion to a most extreme case. I find that the applicant as a result of both injuries of 23 May 1997 and 31 May 1998 had a 10 per cent impairment of her neck. I find that the applicant has a 5 per cent permanent loss of efficient use of her right arm at or above the elbow as a result of both injuries. 11. In respect of the applicant's claim for the back and left leg I have already referred to Dr Adams's opinion. Dr Hefner thought in October 1998 the condition was not stable enough to assess and in May of 1999 he noted that she was still suffering pain in her back - but, again, did not offer any assessment of permanent loss. Dr Clyde-Page considered in September 1999 she had a 20 per cent impairment of her back. The respondent's doctors did not think she had any impairment in her back at all but after hearing the applicant's evidence and taking into account the opinions expressed by Dr Clyde-Page and Dr Adams - and also Dr Hefner's opinion - I find that in proportion to a most extreme case the applicant has a 10 per cent impairment of her back. 12. Dr Opie for the respondent conceded that she has probably got a 3 per cent loss of use of her left leg at or above the knee and in respect of that claim I find that the applicant has 10 per cent permanent loss of efficient use of her left leg at or above the knee resulting from the injuries. I have already indicated earlier in my decision that the provisions of s 68A will apply to the back and left leg and I find the deductable proportion in each case to be 10 per cent. 13. The assessments that I have reached as for impairment to her back and neck and loss of use of leg and loss of use of her right arm entitle the applicant to compensation for permanent suffering under s 67. The maximum amount payable is $50,000 and the amount payable in any other case shall be reasonably proportionate to that maximum sum. Having regard to the degree and duration of pain and suffering and the severity of the loss or losses, I have heard the applicant's evidence of her symptoms, the pain and suffering that she has, the ability to enjoy the life that she did before, her inability to enjoy her nursing career and the need to take tablets to relieve the pain. 14. Having regard to her age, I find that in proportion to a most extreme case I should award compensation based on 20 per cent of a most extreme case. 15. For those reasons, I make an award in favour of the applicant under s 40 as follows: The sum of $272.60 per week from 5 August 1999 to 30 September 1999. The sum of $277.10 per week from 1 October 1999 to 31 March 2000. The sum of $281.60 per week from 1 April 2000 to 30 September 2000. The sum of $284.60 per week as adjusted from 1 October 2000 to date and continuing. I make an award in favour the applicant for s60 expenses. I made an award in favour of the applicant under s 66 of the Act: In the sum of $5,400 in respect of 10 per cent permanent impairment of her back, less the deductable proportion of 10 per cent pursuant to s 68A of the Act which equals compensation for 9 per cent. I make an award in favour of the applicant under s 66: For the sum of $4,000 for 10 per cent permanent impairment of her neck, and For the sum of $6,750 in respect of 10 per cent permanent loss of efficient use of her left leg at or above the knee. Less the deductable proportion pursuant to s 68A of 10 per cent which equals 9 per cent compensation. I make an award in her favour: For the sum of $4,000 under s 66 for 5 per cent permanent loss of use of her right arm at or above the elbow. Under s 67: In the sum of $10,000 I order the respondent to pay the applicant's costs including qualifying fees for Dr Clyde-Page and Dr Hefner. I give liberty to apply to the applicant for the interest. Additional conference at $250. MR CURRAN of counsel appeared for the applicant MR BARBER of counsel 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.