Lowe v Lutheran Aged Care Hostel [2001] NSWCC 18

Compensation Court of New South Wales

CITATION : Lowe v Lutheran Aged Care Hostel [2001] NSWCC 18 PARTIES : Robert Lowe Lutheran Aged Care Hostel MATTER NUMBER(S) : 35992 of 2000 JUDGMENT OF: Johns J at 1 CATCHWORDS: Proceedings to Obtain Compensation :- LEGISLATION CITED: Workers Compensation Act 1987 CASES CITED: DATES OF HEARING: 6 February 2000 DATE OF JUDGMENT: 02/06/2001

FOR APPLICANT:Mr. I.S. Judd instructed by Nevin, Lenne & Gross LEGAL REPRESENTATIVES: FOR RESPONDENT:Mr. P.A. Rickard instructed by Bartier Perry

JUDGMENT: 1. The applicant in these proceedings makes a claim for lump sum entitlements as a consequence of an injury he alleges he suffered whilst in the employ of the respondent. The applicant is a 36 year old married man with a dependent wife and three dependent children. He was educated to Year 11, and in more recent times has engaged in a three year theological course in Christian ministries at the theological college of the Assemblies of God Church. 2. After leaving school, he was in a Bank for while. He was then a cleaner for four or five years and then a taxi driver. He then became, for all intents and purposes a gardener and landscaper in his own business. He came to Albury in February 1994 and became a gardener/landscaper with the respondent. It was mostly landscaping work during which he was building rock walls, planting turf annuals and shrubs. He was on his knees doing a great deal weeding and also painting which required him at times to be on his knees. It was physically demanding work. The building of the rock walls was such that he engaged in some heavy lifting which placed particular stresses upon his knees, the relevance of which will manifest itself during the course of this judgment. 3. He had to squat and bend and he did this for a considerable time in his work. In 1996, he noticed that he was getting pain in the right knee. In fact it began to swell and he said it would be sore for a few days and he then had consistently, dull pain. He noticed that later on he started to get jabbing pains when he squatted or he was on his knees. He saw Dr Francis in March 1996. He was sent for physiotherapy, which did not improve his symptoms. He returned to his work as a landscape gardener in April 1996, and then he stopped work and went to Bible College for some two and a half years. Not surprisingly he noticed, during this period of time that his right knee was a lot better. It was slightly sore. But he did notice that physical activity caused it to swell. 4. In November 1998, he saw Dr Kerwin. There was an MRI scan, there was an arthroscopy procedure in May 1999. After the arthroscopic procedure, the jabbing pain he said had gone but other symptoms subsequently returned. He had a second MRI, all of which is commented on by the medical practitioners. The knee always has and consistently has some pain, but it only worries him he says when he engages in physical things. He says that if he walks or squats it becomes swollen. It is worse when he is kneeling, he avoids these activities but otherwise he leads a relatively normal life within those limits. 5. I had the benefit of many medical reports of what is, in this case, a complex medical picture. The medical complexity of this case is the consequence of what was observed by the first MRI relating to a cyst. The evidence of Dr Kim Brearley, a very experienced general and traumatic surgeon, who has had for many years senior hospital posts dealing in trauma, assists in clarifying this evidence. When Dr Kerwin engaged in an arthroscopic examination, the cyst was not observable. However, what was observable, as Dr Brearley points out in his second report, was the chondral splits on the lateral tibial plateau of his knee, which indicated an irregularity of the articular surface and the strong possibility of developing arthritis in the knee joint. He also gave oral evidence that squatting and kneeling and taking weight, such as I have described in this evidence, whilst engaging in landscaping and rock work, was consistent with the effect of a chondral split as found in the operative examination by Dr Kerwin. 6. It seems to me that the two reports of Dr Brearley reflect the difference in the medical opinions. Dr Brearley's first report without the benefit of Dr Kerwin's operative findings, was not dissimilar to a number of medical reports tendered by the respondent, and indicated that the applicant did have a disability of the knee, but it related to the cyst that was to be found on the MRI. Those doctors had not had the benefit of the operative findings of Dr Kerwin and to that extent, their opinions are deficient and therefore the extent to which one can rely upon them seems to me to be severely limited. 7. I was impressed by the evidence of Dr Brearley. I thought he was rightly understated. In cross-examination, he was quietly straightforward. He was not equivocal; he was very firm in his opinions without in any way engaging in any combative argument with counsel. When pressed upon the question of the degree of disability, in cross-examination by the able examination of Mr Rickard, he would not confirm what was put to him in terms of the much lesser disability than he himself had found. He gave what I describe as a reasonable explanation as to why he came to the conclusion, that he did, in relation to the Applicant's degree of disability. When one compares that with the evidence of the applicant, which I accept, it seems to me it indicates that the evidence of both the doctor and the applicant is more consistent with what I would describe as an 80 per cent knee rather than an 90 or a 95 per cent knee. 8. I therefore have no hesitation in concluding that the applicant has a permanent loss at or above the knee in his right leg of 20 per cent. I might add that the applicant has given a particular account of the degree to which his activities are affected in a general sense and the effect of activities when he engages in them. The description of the particular employment he had reading gas meters seemed to me to aptly illustrate the degree of disability which I have concluded. 9. I therefore find that the applicant has suffered a permanent loss of his right leg at or above the knee to the extent of 20 per cent. 10. The applicant makes a claim pursuant to the provisions of s 67. He is entitled to such compensation as he has suffered more than 10 per cent of the maximum and from time to time referred to s 66(1). I am to determine therefore what is a reasonable in proportion to a most extreme case. I have regard to the duration and degree of pain and suffering and the severity of his loss. I not only depend upon the severity of the physical injury, but the consequences upon the applicant himself. I take therefore cognisance of the impact of this particular injury upon him. I engage in an exercise, the resolution of which involves questions of fact and degree and matters of opinion, impression and estimation. In the end, it is an exercise of commonsense and judgment. It is not an allowable exercise to make a comparison of like cases in some systematic way. I look for my judgment to conform with current general ideas of fairness and moderation. I look to the standards which general prevail and the reasonable conception of what is adequate to the occasion. In the end, it rests upon my findings, and my reaction upon those findings drawing upon what is said to be my general experience. It seems to me that in this regard, the appropriate proportion to a most extreme case is 1:5 and the applicant is to be awarded the appropriate sum. 11. I therefore make the following formal findings: That the applicant suffered an employment injury to his right leg at or above the knee. That the applicant has suffered a permanent loss of 20 per cent of his right leg at or above the knee. That the applicant suffered and will suffered, suffers and will suffer pain and suffering in accordance with the provisions of s 67. 12. I hereby order and award that the respondent pay the applicant the sum of $15,000 pursuant to the provisions of s 66 in respect to 20 per cent permanent loss of the right leg at or above the knee; The sum of $10,000 pursuant to the provisions of s 67 for pain and suffering. 13. I order the respondent to pay the applicant's costs. Mr I S Judd instructed by Nevin Lenne & Gross appeared for the applicant Mr P A Rickard instructed by Bartier Perry appeared for the respondent