Dimitrovski v Rac Hayes Investments [2001] NSWCC 17

Compensation Court of New South Wales

CITATION : Dimitrovski v Rac Hayes Investments [2001] NSWCC 17 PARTIES : Lorraine Dimitrovski Rac Hayes Investments Pty Ltd MATTER NUMBER(S) : 36922 of 2000 JUDGMENT OF: Johns J at 1 CATCHWORDS: Proceedings to Obtain Compensation :- LEGISLATION CITED: Workers Compensation Act 1987 CASES CITED: Dell v Dalton (1991) 23 NSWLR 528 DATES OF HEARING: 6 February 2001 DATE OF JUDGMENT: 02/06/2001

FOR APPLICANT:Mr. I.S Judd instructed by Gibney & Gunson LEGAL REPRESENTATIVES: For Respondent: Mr. Stanton instructed by W.K. Chambers

JUDGMENT: 1. The applicant in these proceedings makes a claim for lump sum entitlements as a consequence of injuries that the applicant alleges to have occurred to her neck and to her upper left arm whilst in the employ of the respondent. 2. There are many unusual features about this case. Some of those unusual features relate to the question of injury. There is a degree of evidence, in the history taken by Dr Palmer and Dr Ring, which supported the suggestion that the applicant had suffered a continuing disability from an injury that she had to her neck in 1994. There is some additional evidence in relation to history by the physiotherapist. 3. It seems to me however, that there are more than reasonable explanations for what occurred. Firstly the applicant herself was unsure, and it struck me she was unsure from the medical point of view as to whether or not the neck condition and the arm condition that she was suffering in 1998, was a repeat of the injury that she had in 1994. Therefore in her own mind she was unsure of whether or not there was a relationship with her employer of 1994 or not. 4. It seems to me that as events transposed it became increasingly obvious that this was not the case. Firstly the applicant herself said in evidence that she had a rye neck in 1994 and the symptoms were in the right arm, not the left. That seems to be confirmed and corroborated by at least the best contemporaneous evidence that there is available before the Court. 5. Secondly, the applicant I found to be a credible witness. She gave her evidence in a straight forward manner without hesitation and, did not at all endeavour to evade the questions. She was direct, and from my point of view and observation, I found her to be honest. She showed no sign of an anxiety and depressive state that one often encounters in this Court, which seems to me to be confirmed by Dr Cornin, who says that the nature of any anxiety or depression was mild in nature. Dr Coombe also, in his report of more latter times, confirms the fact that the applicant on the last occasion that he saw her, did not present with what he had previously described as anxiety and depression.What seems to be consistent between Dr Cornin and Dr Coombe is a reference to conversion hysteria which is an anxiety state of a different kind, about which I will deal with later in this judgment. 6. The applicant says that for all intents and purposes, as far as she was concerned, she recovered from the incident of 1994. That it also confirmed by what is contained in the medical notes of her general practitioner, for more than three years before April, May 1998. That confirms that whatever may have occurred in 1994, it was not a continuing problem, it necessitated no treatment or indeed mention to her general practitioner. Moreover the nature of the work that the applicant undertook at the time she first began her work with the respondent, did not seem to indicate at all that she was suffering from any disability. The radiological picture is simply that the applicant has some degenerative disease at the C5/C6 level. Such disease, in my view would, be susceptible to symptomatology as a consequence of trauma. That seems to me to be confirmed by the fact that she did suffer the event of 1994. 7. The applicant has given clear evidence of the incident that took place in 1994 and as I indicated has given, as far as I am concerned from her own evidence and documentary evidence, a clear explanation of the confusion that did take place in relation to her symptoms relating to the present situation. 8. The applicant started with the respondent, who has a dry cleaning shop, and trained to became a qualified dry cleaner. It is work that involved significant lifting big rolls of plastic and the necessity to lift repetitively ones arms above the head in order to both clean and prepare for return items of clothing that had been dry cleaned. Those items not only related to personal clothing of people, but also to curtains and to blankets. The nature of the work struck me as being very heavy and quite physical. There was a certain degree also of repetitive work involved in the processes that took place. There was a use constantly of a pressing machine, which was a long machine that involved a lid and pedals. In this process there was repetitive physical movements as a consequence of using the lid with the left hand. 9. The applicant says that in May 1998, the applicant started to feel pain through the arm from the shoulder into the fingers, the pain coming down from the neck into the shoulder and down to the left elbow. She continued to work but consulted Dr Palmer on 10 June 1996. Dr Palmer in his report of 10 December 1999 gives an explanation that the applicant first thought that the injury was due to an incident in 1994, but had recalled that her symptoms began while working with the dry cleaners in May 1998, which occurred while lifting and pressing curtains. There is corroboration of this evidence from a fellow employee whose statement is in evidence (Exhibit AX1), which confirms that the applicant complained of pains in the upper left arm, although there is a reference there to April 1998. The important thing to me is that the complaint was made in circumstances that are consistent with the applicant's evidence. The applicant went on to say that she took time off work, which commenced in mid-May 1998, and Mrs Ryan or Miss Ryan explains that she left the employment in early June 1998 and that the applicant had been off for two or three weeks before she had left the employment. 10. In this statement the history of her complaints were that the pains came on, in the left arm, and gradually became worse. She confirmed the nature of the work that the applicant described, which I have concluded was heavy, at times repetitive and at times necessitated work above shoulder level. 11. Dr Palmer gives a long history of referrals to other specialists and indeed to the pain management clinic in Wodonga. He concluded that the employment with the respondent was a substantial contributing factor to her condition. He also confirmed that there was a significant psychological component. 12. The applicant gave a history of returning to work thereafter with symptoms increasing. She engaged in light duties or endeavoured to engage in light duties, but it was obvious that her employer was not prepared to meet the physical limitations she had and it was an unsatisfactory situation to him. The applicant was faced with the prospect of either working her normal duties full-time, and endeavouring to work through the pain, or simply leaving her employment. She chose to return to full-time employment, with the inevitable consequences of a lot of pain and cramps and she became quite distressed. She attended on Dr Palmer in November 1998 and she stopped work. She has not worked since. 13. She was referred to Dr Darby, whose report is in evidence, who thought that the applicant had a lot of secondary fears and anxieties relating to her fears on malingering and others thinking she was lying, and gave an opinion to Dr Palmer that the applicant should be sent to a psychiatrist who specialised in what he obviously saw as the nature of the psychiatric disorder that the applicant was suffering. 14. The applicant has continued with constant and continuing pain from her prospective. She now carries the arm on her chest, although says that the arm is quite normal from the elbow to the fingers, that the disability is in her arm from the elbow. There is constant and consistent pain from her neck and into her arm to the elbow that necessitates her to carry the arm on her chest. She readily admits that she uses the arm below the elbow without any difficulty, which would account for the fact, as submitted by counsel for the applicant, that there is no wasting. Dr Todd Hunter says that this is an inadvisable course on the part of the applicant and had endeavoured to persuade the applicant to engage in physiotherapy and to move her arm. However when one considers the evidence of Dr Cornin and his conclusions relating to a conversion of hysteria, it is difficult to see how the applicant would reasonably perceive that the advice of Dr Todd Hunter could be implemented. 15. It seems to me that the applicant has from her work aggravated the underlying degenerative condition that she has, which has had an effect on her neck a continuing effect in her neck, with the consequence of a disability and pain in the arm. The nature and the extent of the pain that she has is not explained by the orthopaedic picture in this case. It seems to me that the nature of the extent of the disability that the applicant exhibits is explained in part by the orthopaedic injury and also by the conversion of hysteria that she suffers as a consequence. I had the benefit of the oral evidence of Dr Cornin, who was a psychiatrist who specialised in this type of hysteria and who gave clear and congent evidence. Dr Cornin was of the view that the applicant did have a major conversion hysteria which was unlikely to improve in the future, that for all intents and purposes was in his view, permanent. It is of some significance to me that the doctor has said that the applicant had an underlying persona that was susceptible to such a traumatic event happening and such a psychiatric reaction. I think it is clear that the applicant does suffer from a conversion hysteria which adds to the degree of disability that the applicant experiences. 16. Although counsel for the respondent has articulately put that this is not a situation where permanency should be considered. He submits although treatment would be difficult, there is every prospect that it might be successful. I find that difficult to accept because of the period of time that has elapsed and the fact that Dr Cornin says that any treatment is not likely to have any effect. Therefore I conclude that the applicant has suffered a traumatic injury to her neck with consequent injury and disability to both her neck and to her left upper arm. I also conclude that the degree of disability that the applicant has in regard to her neck and upper left arm, is compounded and worsened by, a major conversion hysteria. It therefore remains for me to determine the extent to which the applicant is to be compensated in relation to her entitlements pursuant to s 66. 17. The applicant makes a claim in regard to her neck which calls for an assessment in respect of an item of the table in which there is a range of percentages. I am therefore to determine what is reasonably proportionate to the maximum allowed. In that regard I engage in an exercise which involves a comparative relationship between the magnitude of the applicant's injury and a most extreme case. It depends upon my evaluation of the severity of the impairment and its proportional relationship with an extreme case. I am not concerned with the particular impact of the loss of function of a particular worker, or indeed this applicant, having regard to her particular employment activities. It is an objective assessment of impairment as it rests proportionality against a most extreme case, which in part is founded upon the medical evidence and also founded upon the evidence of the applicant in regard to her general activities, as far as they reflect upon her loss. There is a deal of medical evidence in this case, not surprisingly given that it has such unusual circumstances. 18. The fixed percent by Dr Coombe does not necessarily define the standard against which the percentage is measured. In some ways it could be considered to be of little persuasive value, as he does not engage in the same exercise I am called upon to make. Nonetheless one at least takes such evidence into account. 19. As has been expressed in a number of authorities, I think that people respond differently to disability and while it is relatively simple to measure a loss where the portion of limb is amputated, it is obviously much more difficult to determine the particular impact of a disability, such as permanent damage upon a person's use of a limb, or the impairment of a back or neck, and therefore it is necessary in cases, such as these, to take into account the subjective symptoms of which the worker complains. It seems to me therefore that the appropriate proportion, that is comparing where the case rests proportionally against a most extreme case, I think it is at the level of 1:4, and that the applicant ought to be awarded the sum accordingly. With regard to the applicant's left arm, Dr Coombe assesses 30 per cent. The nature of the applicant's complaints in terms of how she is able to use or how she is unable to use her left arm seems to me to be consistent with the expression by Dr Coombe. In those circumstances I propose to conclude that the applicant suffers from a 30 per cent disability or permanent loss of her arm at or above the elbow. 20. The applicant has had a degree of degeneration in her cervical spine. In those circumstances it seems to me that an appropriate application of s 68A is to be made and that the appropriate deduction is to be as contained in the statute of 10 per cent. I then turn to the applicant's claim pursuant to the provisions of s 67 for pain and suffering Having found that the applicant has suffered that proportion of her disability, she is entitled to receive compensation for pain and suffering because the loss that she has suffered is more than 10 per cent of the maximum from time to time referred to in s 67(i). 21. The maximum payable is only payable in a most extreme case. I am to determine therefore again once more what is reasonably proportionate to the maximum, but in this instance, having regard to the duration, the degree of pain and suffering and the severity of the loss. It means in my view past, present and future pain or distress or anxiety suffered or likely to be suffered by the applicant resulting from the loss. It depends not only upon the severity of the physical injury but the consequences of the physical injury upon the applicant. In this instance this is important. In Dell v Dalton (1991) 23 NSWLR 528 it has been stated that we are not to reduce all human beings to some common denominator and require the impact of particular injuries on a given individual to be ignored. 22. There is no necessary proportion between the award of permanent impairment on the one hand, and pain and suffering on the other. This resolution is not unlike that which is involved in determining pain and suffering in an award of damages, both require or both involve questions of fact and degree, matters of opinion, impression and estimation, both of which call for the exercise of commonsense and judgment. I do not engage in an exercise which allows a comparison of like cases in any systematic way. My judgment is conformed with current general ideas of fairness and moderation in judgments generally. Standards which generally prevail and are a reasonable conception of what is adequate for the occasion is necessary. 23. The applicant had given detail of a particular suffering that she has experienced and its degree and it seems to me that the appropriate proportion is against a most extreme case. In this instance is to be 35 per cent of a most extreme case. 24. I therefore make the following formal findings: That the applicant as a consequence of the nature and conditions of her work suffered an injury, a traumatic injury to her neck and her upper left arm. I find also that the applicant as a consequence of this injury suffers a major conversion hysteria. I find that the applicant has suffered the equivalent of 25 per cent permanent impairment of her neck and 30 per cent permanent loss of her left upper arm. If I have made any reference to the right, it should be the left. I do not know whether I have. That the entitlements in respect of these lump sums is to be reduced by the equivalent of 10 per cent pursuant to the provisions of s 68(A). I find that the applicant suffered, suffers and will suffer pain and suffering pursuant to the provisions to the provisions of s 67, to the degree of 35 per cent of a most extreme case. 25. I hereby order and award that the respondent pay the applicant the sum of $9,000 in respect of 25 per cent permanent impairment of the neck after a reduction of pursuant of s 68(A). The sum of $20,250 in respect of 30 per cent permanent loss of the left arm at or above the elbow after the provisions of s 68(A) has been applied. The sum of $17,500 pursuant to the provisions of s 67 26. I order the respondent to pay the applicant's costs. 27. An order pursuant to the provisions of s 60. MR I S JUDD instructed by Gibney & Gunson appeared fir the applicant MR STANTON instructed by W.K. Chambers appeared for the respondent