Buckwell v Andre Porebski & Associates Pty Ltd [2003] NSWCC 13

Compensation Court of New South Wales

CITATION : Buckwell v Andre Porebski & Associates Pty Ltd [2003] NSWCC 13 Pauline S Buckwell PARTIES : v Andre Porebski & Associates Pty Ltd MATTER NUMBER(S) : 1099 of 2002 JUDGMENT OF: Neilson J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 26/02/03 EX TEMPORE JUDGMENT DATE : 02/26/2003

FOR APPLICANT: Mr B A Batchelor instructed by Shaw McDonald Pty Ltd appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr D I Talintyre instructed by Church & Grace appeared for the respondent.

JUDGMENT: 1. Mrs Pauline Sinclair Buckwell of Potts Point, claims weekly payments of compensation between 22 February 2001 and 22 April 2001 and lump sum compensation under s 66 for 18 per cent impairment of her back, 5 per cent loss of efficient use of her left leg at or above the knee and 5 per cent loss of efficient use of her right leg at or above the knee and a consequential lump sum for pain and suffering, anxiety and distress resulting from that impairment and those losses. However, as the case has been presented and argued, the claim for the loss of efficient use of the applicant's right leg at or above the knee is not pressed, and rightly so, in the light of the oral evidence of the applicant herself. 2. The applicant has been married for many years to an architect and has worked for many years in architectural practices essentially doing clerical and administrative work. Her husband had an architectural practice at Mount Victoria where the applicant and her husband lived full-time until some time in late 1995 or early 1996. At that time, the applicant and her husband moved to Sydney where they live part-time and part of each week, perhaps at weekends, the applicant and her husband return to their property at Mount Victoria. 3. When the couple moved to Sydney, the applicant initially worked for one and a half years for the Royal Australian Institute of Architects and in February 1998, commenced working for the current respondent which also conducts an architectural practice. The applicant worked for the respondent 3 days during each week, which is the same number of days that she used to work with the Royal Australian Institute of Architects. The applicant was classified in the respondent's employ as both a personal assistant and office manageress. The applicant would do all forms of secretarial work and receptionist work as well as managing the respondent's accounts and payroll. 4. The applicant worked at a desk. Immediately in front of her was a keyboard and a Commander telephone, which she used to operate the telephone system for the respondent's office. The computer monitor was on the applicant's right hand side but only slightly off centre. Immediately to the applicant's left she kept the office register and on the left of that was kept the day message book. In the day message book, the applicant would record incoming telephone calls which had to be returned by other personnel in the respondent's practice and any other form of message which some other person had to attend to. 5. On 20 February 2001, an event occurred at work. There is no doubt that the event arose in the course of the applicant's employment. At issue in this case is whether the applicant's employment was a substantial contributing factor to the event. At the relevant time, the applicant was standing up behind her desk on the left side of where she normally sat. She needed to fetch the day book and stretch right over her desk in order to grasp the day book. In the process of bending over whilst attempting to grasp the day book, the applicant coughed and felt a tearing sensation on the left side of her back and felt that her left shoulder was somehow forced down. 6. It is clear the applicant in that event injured her low back. The applicant sat down and took some Panadol and waited for a period of time, approximately half an hour before leaving her employer's premises and going home. The applicant was absent from work between 22 February 2001 and 22 March 2001 and it is common ground that she was totally incapacitated during that period. The applicant returned to work on restricted duties between 23 March 2001 and 24 April 2001. It is agreed that the difference between her probable weekly earnings but for injury and what she actually earned during that period is the sum of $272 per week. 7. The medical evidence persuades me that the applicant had antecedent to the event on 20 February 2001 degenerative disc disease affecting her lumbar spine. At the time of the event now in question, the applicant was 63 years of age. The medical evidence also persuades me that on 20 February 2001, the applicant tore the annulus fibrosis of the L4/5 disc. 8. Dr John Stephen, an orthopaedic surgeon, qualified by the respondent, accepted the applicant had sustained low lumbar disc damage and pointed out in a supplementary report of 24 January 2002 that what happened to the applicant was that she sustained a tear of the annulus of the low lumbar disc as a result of bending forward and "sneezing". Dr Stephen thought that the applicant had sneezed, because a sneeze is recorded in a report of the applicant's general practitioner which has made its way into evidence and a copy of which seems to have been before him. 9. However, the applicant's undoubted evidence to me is that she coughed. In my view, nothing turns on the distinction between coughing and sneezing. What is clear from the opinion of Dr Stephen is that the tear of the annulus of probably the L4/5 disc was a result of bending forward and coughing. I have identified the L4/5 lumbar disc as CT scan of the lumbar spine indicates gas in that disc typical of chronic degeneration and also mild bulging of the disc at that level. It seems highly likely to me that the annulus fibrosis of the L4/5 disc was torn in the event of the applicant's leaning forward and coughing on 20 February 2001. 10. The causal factors which I identify in the occurrence of the event of 20 February 2001 are firstly the presence of pre-existing asymptomatic degenerative disc disease. Secondly, the act of bending forward and thirdly, the coughing event. The presence of the pre-existing condition cannot be a factor for which the employer is liable. There is no suggestion that the factor of coughing was causally related to the applicant's work. However, the bending forward, the forward flexion to the left which the applicant described was an activity which her employment required her to do. 11. I have a number of opinions, some of which are of assistance and some of which are not on the question of substantial contributing factor. Dr Raymond Wallace, an orthopaedic surgeon qualified by the applicant's solicitors, says this: The worker's employment was a substantial contributing factor to her injury. She describes no pre-existing injury at her lumbar spine. 12. The doctor's ipse dixit that the worker's employment was a substantial contributing factor to the injury is of no assistance to me whatever. It is his duty to outline his reasoning so I can test his reasoning against the facts proven in evidence. See Davie v The Edinburgh Magistrates. The second sentence from the quotation which I have just made seems to indicate to me that as the applicant had not previously sustained an injury to her lumbar spine that by that very fact the employment was a substantial contributing factor. The doctor seems to conflate the provisions of s 9A and s 68A. It is to be borne in mind that in s 68A, the Court must deduct any proportion of the loss that is due to any previous injury or that is due to any pre-existing condition or abnormality. 13. In Dr Stephen's primary report, that is that of 11 January 2002, Dr Stephen says this: In my opinion, there are no pre-existing problems which might have contributed to Mrs Buckwell's back problems. 14. I am unable to accept that because, as I have already pointed out, there is clearly pre-existing degenerative disc disease. It is clear, however, that Dr Stephen did not in that opinion, turn his mind to the current issues. There is before me a supplementary report from Dr Stephen bearing date 24 January 2002. In that report, Dr Stephen says this: What happened to Mrs Buckwell was that she sustained a tear of the annulus of a low lumbar disc as the result of bending forward and sneezing. This is what happened at work. It could easily have happened at home but it happened to happen at work. She then had discogenic back pain. Discogenic back pain is frequently exacerbated by carrying heavy objects such as shopping bags. It is true that everybody aged 64 has some pre-existing degenerative change. In other words, this would be much less likely to have occurred to her if she were 30 years old than if she were 64 years old. 15. I think it important to note at this stage that Dr Stephen was clearly of the view that the tearing of the annulus of the L4/5 disc resulted from the act of bending forward and then coughing. In other words, it was not merely fortuitous that at the time that she did, the applicant felt low lumbar back pain. However, that is the opinion expressed in the respondent's case by Dr Neil McGill, a consultant rheumatologist. Dr McGill said this: The acute exacerbation which occurred in February 2001 was typical of the natural history of degenerative lumbar disc disease. Although the exacerbation commenced while she was at work, it was not caused by her work duties and would have occurred regardless of whether or not she had been at work. There is no injury or event that one could connect to her work duties. The cough (or sneeze was described in a report by her general practitioner in an undated letter provided with the documentation) may have slightly altered the timing of the onset of the exacerbation but neither the cough/sneeze nor the fact that she was bending over her desk at the time, were significant causative factors. 16. The applicant's solicitors also qualified Dr Richard Evans, a specialist physician who does a large amount of work in orthopaedics. In his report of 17 February 2003, Dr Evans said this: It is difficult to determine the probability that the injury, or a similar one, would have occurred in any event, at the same time or stage of her life if she had not been engaged in that employment. It was not simply that she coughed, but that she coughed as she was leaning forwards, a combination that would place a significant strain on her back. Had she not coughed as she leant forward, the protrusion may not have occurred. Many people have degenerative intervertebral discs, but are not unfortunate in suffering this sort of protrusion. A degenerative disc can gradually settle, and may cause minimal or no symptoms. Thus I do not think it can be stated that it is more likely than not that this event would have occurred had she not been engaged in that employment. As you state, the employment does not create any `special danger' , but it was an unfortunate conjunction of circumstances combined with the presence of a degenerative disc. Thus, although I do not know whether the event would have occurred anyway, I do not consider that it is more likely than not that it would have. I confirm that her employment was a substantial contributing factor to the event. 17. What is clear from the opinions of Dr Stephen and Dr Evans is that the annular tear of the pre-existing degenerative disc was the result of a combination of two factors, the act of leaning forwarding and coughing. If the applicant had not coughed whilst leaning forward, the disc would not have torn. This activity of bending forward over her desk to reach the book is probably an activity that the applicant would have performed a number of times a day for almost 3 years of her employment. 18. However, what is also clear to me is that the mere act of coughing might not have caused the tearing. If the applicant had been lying down whilst she coughed, the tear would not have occurred. If she had been merely seated upright in her chair, the tearing would not have occurred. It appears to me that both the bending forward, the forward flexion and the cough were necessary but each in itself was insufficient to cause the damage to the L4/5 disc. 19. The existence of the pre-existing degenerative disc disease clearly weakened the disc and made it vulnerable or prone to tearing. However, the disc could have been degenerate for a long time prior to the event of 20 February 2001. It is to be recalled on the evidence before me, that the applicant was a keen tennis player before moving to Sydney in late 1995, early 1996 and did not have any problems playing tennis with degenerative disc disease. Equally the applicant was a keen gardener up until the event now in question, one might hazard the observation that a keen gardener at Mount Victoria would probably in the course of gardening perform more strenuous activities than the clerical work in an architect's office. However, that strenuous activity had not caused a problem in the applicant's back before. 20. Therefore I conclude that both the event of leaning forward and the cough were necessary for the occurrence of the tearing of the applicant's lumbar disc. It must be borne in mind that the applicant's work required her to lean forward over the desk to grasp the book. That factor arose out of the employment. It therefore appears to me that the applicant's injury both arose out and in the course of her employment. The theories of causation in law have changed over the years. Once upon a time, it could be seen that the immediate precipitating event was the cough and therefore that causation was not established at all. However, here it appears to me that both the bending forward and the cough were necessary and as the applicant's bending forward was required for the damage to be done, the injury arose out of the employment. 21. To put it in other terms, the incapacity and the loss resulted from an event that the applicant was required to do in the course of her work. The respondent has pressed its contention that the applicant's employment was not a substantial contributing factor to the injury. Mr Talintyre, for the respondent, points out that in the judgment of Mason P in Mercer v ANZ Banking Group Ltd (2000) 20 NSWCCR 70 at par (15) that s 9A(3), "mentions two matters that are nondeterminative". He points out that the non-determinative nature of the provisions of s 9A(3) was adopted by Meagher JA in Supair Pty Ltd v Sweeney (2000) 20 NSWCCR 514. S 9A(3) provides that a worker's employment is not to be regarded as a substantial contributing factor merely because the injury arose out of or in the course of the employment or arose both out of and in the course of the employment. As I have stated in previous judgments, the provision is not felicitously expressed. Clearly, it is intended to mean that a substantial contributing factor does not exist merely if injury: (i) arose in the course of the employment; (ii) arose out of the employment or (iii) arose out of and in the course of the employment. 22. Mr Talintyre submitted that as both Mason P and Meagher J A have said that those matters are non-determinative. Decisions such as mine in Muscat v Woolworths Ltd (2000) 20 NSWCCR 283 and Healey v Delta Electricity (2000) 20 NSWCCR 491 and the decision of Burke J in Jadoul v Qantas Airways Ltd (2001) 22 NSWCCR 229 at paragraph 16 where findings have been made that where the injury arose out of the employment, a substantial contributing factor was established by that very fact are incorrect. I am able to accede to that submission. That is because it is abundantly clear from what fell from Mason P in Mercer in 31 to 37 under the heading, "A substantial contributing factor is not equivalent to an injury arising out of the employment", that, in his Honour's view, which was a view concurred in by Meagher and Beazley JJA, that the requirement was a substantial contributing factor is established by a lesser causal test than that arising out of the employment. 23. Therefore, when, in the same judgment, Mason P says that whether injury arises out of the employment is not determinative is really indicating that it does not determine that it is not a substantial contribution factor rather than it is determinative that it is a substantial contributing factor. In the alternative, Mr Talintyre argued that Mercer is incorrectly decided and essentially adopted and expanded the criticisms of Mercer recorded by me in Muscat in 12 to 17. 24. Of course, the correctness of Mercer itself is now open to some doubt, when one considers the inherent criticism of it involved in the judgments of Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 46. As in my view, the tearing of the applicant's L4/5 disc on 20 February 2001 was a result of injury which both arose out of and in the course of the applicant's employment, a substantial contributing factor is, by that finding, established. 25. If I be wrong in that, I should consider the various matters referred to in s 9A(2). S 9A(2) gives examples of matters to be taken into account for determining whether the worker's employment was a substantial contributing factor to an injury but does not limit the matters to be taken into account in determining whether the employment was a substantial contributing factor. The specific matters referred to in s 9A(2) I shall itemise and deal with separately. The first is the time and place of the injury. Here, the injury happened at work during working hours and is clearly in the worker's favour. The second matter to be taken into account is the nature of the work performed and a particular task of that work. The applicant's work was clerical work and the particular task that she performed at the time of the injury was one that her employment required her to do. However, the work was not inherently dangerous or one which, one might think, was liable to cause a back injury like, for example, shearing, bricklaying or heavy labouring. 26. This second consideration does not particularly assist me because it is not clear to me whether that Parliament intended that one merely analyse whether when the injury happened the applicant was doing something that was required of her in the course of her employment, or whether Parliament intended that one take into account the particular risks or hazards of a particular employment. 27. The third matter to be taken into account is duration of the employment. That may be a very important consideration, where, for example, somebody has developed degenerative disc disease and the argument is whether the work caused the degenerative disc disease, is more likely that, for example, labouring work over 20 years is more likely to cause degenerative disc disease than labouring work for a mere 2 or 3 months. It is not clear to me that the third consideration is an applicable one in the current matter. 28. However, it is to be borne in mind that the applicant had worked for the respondent for 3 years and would have performed this task many, many times over that period and had not previously suffered any symptoms whilst doing it. 29. The fourth matter to be taken into account is the probability that the injury or a similar injury would have happened anyway at about the same time or the same stage in the worker's life if he or she had not been at work or had not worked in that employment. The question here I suppose is whether the applicant's degenerative disc disease was going to become symptomatic at some stage inevitably, where the applicant's case could be described as an injury waiting to occur. I have already quoted the medical practitioners' views on that issue. Many people die and after death are x-rayed and it is ascertained that they have degenerative disc disease. However, those who have died were asymptomatic throughout their lives. It is impossible really to state on the evidence whether the applicant would have become symptomatic or not at the time that she did, or whether she may have remained symptom-free for many years into the future. 30. The fifth matter to be taken into account is the worker's state of health before the injury and the existence of any hereditary risks. Here the only relevant factor to take into account is the pre-existing degenerative disc disease, due not doubt either to some constitutional propensity or the mere attrition caused by daily life or perhaps by the process of degeneration which starts in the late third decade as I understand it. However, in this case it is clear that the applicant had been asymptomatic for her whole life antecedent to the event when she was 63 years of age. Again, whether she would have become asymptomatic in the future is a question for speculation and one that cannot now be ascertained. 31. The sixth matter to be taken into account is the worker's lifestyle and his or her activities outside the workplace. Here the applicant had activities outside the workplace which would be thought to be more strenuous. They are gardening at Mount Victoria and prior to her move to Sydney, late 1995 or early 1996, the playing of tennis. However, those activities did not cause the applicant any symptoms, making more significant in my view, the event of 20 February 2001, the event when the applicant was leaning over to reach for the day book and coughed. That consideration appears to me to be in the worker's favour. All told, such matters as are mentioned in s 9A(2) tend, in my view slightly in favour of the proposition that the applicant's employment was a substantial contributing factor. 32. During the course of argument with counsel for the respondent, I raised the proposition that s 68A and s 9A(2) had similar considerations and S 9A requires causality between the employment injury and the employment itself. S 68A requires me in assessing compensation under s 66 to deduct any proportion of a loss that is due to any previous injury or due to any previous pre-existing condition or abnormality. In other words, it was looking at causation of the loss relevant to the injury. Both provisions tend towards causation. I am much heartened to have had referred to me the decision of his Honour Judge Burke in Hoskin v Western Area Health Service (2001) 22 NSWCCR 1. At paragraph 14 his Honour said: Secondly, the degree to which an employment activity was a substantial contributing factor to a particular injury can be indicated by medical assessments as to the causation of the injury. The injury in this matter was a marked aggravation of a degenerative back condition and resulted in a L4/5 protrusion. Both parties have submitted that Dr Collins correctly assessed the degree of loss and a deduction under s 68A of the Act. He assessed a 20 per cent impairment of the back and a s 68A deduction of one-third. The fall was responsible for two-thirds of the consequent impairment. If it was an `employment' fall then it obviously contributed substantially to the consequential back disability which constituted the injury. 33. In the current matter we have similar facts to those in Hoskin. There there was an injury which could be categorised as an aggravation of a degenerative back condition, resulting in the current case in the tearing of the L4/5 disc, rather than a frank protrusion of the disc. The facts are similar. 34. Here, I have a number of assessments of a deductible proportion under s 68A. Dr Evans says the deductible proportion is only 10 per cent. Dr Stephen's reports are silent on the issue and Dr McGill tells me that no part of the impairment results from any employment injury, that he would not accept that the applicant had any employment injury, which is contrary to my finding. More significant is the fact that the report of Dr Evans of 17 February 2003 refers to a report of Dr Frank Machart, an orthopaedist, of 20 May 2002, who felt that half the applicant's impairment and loss was due to degeneration and half to the injury. At Common Law that would not be evidence of that opinion of Dr Machart. Under the Evidence Act, it is evidence of that opinion of Dr Machart. It is common ground between the parties that Dr Machart was qualified by the respondent. 35. I am able, as I said, to accept the opinion of Dr McGill. I am then faced with the assessment of Dr Evans of a 10 per cent deductible proportion and of Dr Machart of a 50 per cent deductible proportion. If either of those deductible proportions be accepted, then the applicant's employment was clearly a substantial contributing factor. However, the presence of pre-existing degenerative disc disease is merely a predisposing factor. The act of bending forward that is forward flexion and the act of coughing were both needed to cause the tearing of the disc as I have previously stated, each is necessary but in itself insufficient. 36. It appears to me that the opinion of Dr Evans that the deductible proportion is only 10 per cent is insufficient weight to the presence of the pre-existing condition and the necessity of the cough. However, it appears to me that the opinion of Dr Machart is closer to the mark and accordingly, I have no hesitation in accepting that the extent of the deductible proportion is 50 per cent of any loss or impairment that I find. 37. My finding that the applicant sustained injury arising out of and in the course of her employment and in the alternative, that the employment was a substantial contributing factor to the occurrence of the injury indicates that the applicant is entitled to the awards shown on the wages schedule, Exhibit A. The only remaining question is the extent of the impairment of the applicant's back and the loss of efficient use of her left leg at or above the knee. 38. The applicant is still incommoded by symptoms which she had not had in the past. Those symptoms have persisted now for some 2 years. I accept that there is some permanent impairment of the applicant's back. Dr Wallace and Dr Stephen both say the applicant has a 12 per cent impairment of her back. Dr Evans put the impairment at 20 per cent. Because of the great variations in assessments of impairment of the back, one necessarily needs to provide some rules of thumb as a gauge for weighing the evidence. 39. I have just been reminded that Dr McGill has made an assessment of impairment of the back of 10 per cent. As I said, it is necessary to develop some rules of thumb which I have set out in numerous judgments since 1994 - apparently no-one ever reads them - where there is pre-existing spinal degenerative disease or an abnormality such as spondylosis or spondylolisthesis, impairment is generally in the order of 15 per cent. Where there is a low lumbar disc protrusion not requiring surgery, the impairment is generally in the order of 20 per cent. Where it is necessary to practise laminectomy with a good result, the impairment is generally in the order of 25 per cent. Where is it necessary to practise laminectomy and fusion, depending on the result, the impairment is between 30 per cent and one-third of a most extreme case. 40. Bearing in mind the symptoms which the applicant told me, I accept that she has a 15 per cent permanent impairment of the back. The applicant also complains of symptoms affecting her left leg. The assessments I have of the loss of efficient use of her left leg are of 5 per cent from each of Dr Wallace and Dr Evans. 41. Dr McGill did not think that there was any loss of efficient use of the applicant's left leg at or above the knee. There has never been any neurological deficit and I am unable to accept the applicant has true sciatica. Her left thigh is affected and it appears to me that the appropriate finding is of some referred pain affecting the applicant's left leg. In those circumstances, I have no hesitation in accepting the applicant has a 5 per cent loss of efficient use of the left leg at or above the knee. 42. My findings under s 66 must be reduced by the deductible proportion of 50 per cent, so that the applicant is entitled to awards of 7.5 per cent for permanent impairment of her back and 2.5 per cent loss of efficient use of her left leg at or above the knee. 43. I am told from the Bar table that my findings under s 66 do not entitle the applicant to lump sum compensation under s 67 for pain and suffering, anxiety and distress resulting from that impairment and that loss. 44. I have inquired of counsel for the parties whether any further reasons for judgment are required and I am told that none are so required. 45. For those reasons, I make an award for the applicant for $544 per week from 22 February 2001 to 22 March 2001 pursuant to s 36. I make an award for the applicant of $272 per week from 23 March 2001 to 24 April 2001 pursuant to s 40. I make an award for the applicant for $4,500 for 7.5 per cent permanent impairment of the back (15 per cent before s 68A). I make an award for the applicant of $1,875 for 2.5 per cent loss of efficient use of the left leg at or above the knee (5 per cent before s 68A). 46. I make a general order under s 60. 47. I order the respondent to pay the applicant's costs 48. I certify an additional conference - $200. 49. The respondent applies for a stay of proceedings. There is no evidence to support the submission put that the proceeds of judgment may be frittered away by the applicant. The inference I draw from the applicant's background and circumstances is that she is not impecunious or that she is in any way liable to waste the proceeds of the current litigation. In view of the lack of evidence, the application for a stay of proceedings is refused. Mr B A Batchelor instructed by Shaw McDonald Pty Ltd appeared for the applicant. Mr D I Talintyre instructed by Church & Grace appeared for the respondent.