Velecky v SC Australia Pty Ltd t/as The Regent Hotel [2001] NSWCC 43

Compensation Court of New South Wales

CITATION : Velecky v SC Australia Pty Ltd t/as The Regent Hotel [2001] NSWCC 43 PARTIES : Patrick Velecky v SC Australia Pty Ltd t/as The Regent Hotel MATTER NUMBER(S) : 38767 of 2000 JUDGMENT OF: Ashford J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 19/02/01 EX TEMPORE JUDGMENT DATE : 02/19/2001

FOR APPLICANT: Ms H Wall instructed by Boyd House and Partners. LEGAL REPRESENTATIVES: FOR RESPONDENT:Mr J W Catsanos instructed by Blake Dawson Waldron.

JUDGMENT: 1. In these proceedings the applicant seeks payment of compensation for the period between 3 January 1997 to 31 October 1998, and pursuant to the provisions of s 66 in respect of alleged permanent impairment of his back and of his neck, loss of use of his right leg at or above the knee and loss of the right arm at or above the elbow. A consequential claim is made pursuant to the provisions of s 67. S 60 expenses are also claimed. 2. Injury is in issue, as is the question of any incapacity of a physical or economic kind, the nexus between the alleged injuries, and losses particularly of the neck and right arm, and the provisions of s 68A are raised, as is the quantum of any loss pursuant to s 66 and s 67. 3. The applicant was born 2 January, 1971. He is a married man who has a dependent wife at the present time, although during the period of the claim she was not a dependant. Having left school in year 10 the applicant commenced an electrical apprenticeship which he did not complete. In 1992 he commenced employment with the respondent at the Regent Hotel where he was initially employed as a bellhop, and later as a porter. At the time of commencing employment he said he suffered no back, neck, arm or leg problem. He is left-hand dominant. 4. He initially worked as a bellhop for about one year, and was then given the position of porter. This involved duties including lifting luggage, which he estimated at times to weigh 30 kilograms. He was required to lift luggage above his head at times. He carried this luggage to and from motor vehicles, loaded on and off trolleys and performed work which I am satisfied did involve him in constant lifting and bending. He worked on shift work and said on evening shifts less help was available to do this work. In about November 1995 he said he had soreness in his neck and low back. He continued working. In about November 1995 he attended his general practitioner Dr Muller and x-rays were performed. He continued with his employment until about June 1996 when he said his symptoms became worse. He again attended his general practitioner. He was off work for a few days and said that after resuming work pain increased in his low back, in his right leg and in his neck. 5. He was thereafter off work from about 16 July 1996 to 18 November 1996. During that period he attended physiotherapy. He was also seen by a Dr Pollock. CT scans were performed and he was provided with medication. He was referred to Dr J Sheehy for opinion. At about that time he said he was experiencing right-hand pins and needles which he described as being in his little and ring fingers. This extended along his hand to his arm and he thought those symptoms started in about August 1996. 6. On resuming work in November 1996 he was provided with lighter duties through a rehabilitation provider. This work involved delivering mail, putting away small bags and coats and opening and closing the front door. He worked varying hours on the rehabilitation programme but said this depended to some extent on his level of pain. He resigned his employment on 20 December 1996. His resignation letter was tendered. This indicated he was willing to work out his notice if this was required. He was paid until 3 January 1997. X-rays and scans were taken in 1996 and again in 1998. In February 2000, after attending upon Dr Weiss, an MRI of the lumbar spine was undertaken. 7. He next commenced employment on 28 January 1997. This was as an apprentice electrician through the auspices of a friend. He continued his apprenticeship until ceasing on 31 October 1998. Since that time he is a qualified electrician and has been working in that occupation. He continues to see his general practitioner. He continues to have physiotherapy at times. Medical expenses were paid until March 2000 by the insurer. It was his evidence he continues to have low back pain, and some pain in his right leg of an intermittent nature. He also complains of some neck soreness and intermittent tingling of his right hand. 8. In cross-examination the applicant agreed he had performed his normal recreational and social activities for most of the time during his employment with the respondent and has continued those activities. He agreed that any onset of neck pain had probably occurred during the period of an absence from work in 1996 although it appears that at a prior time there had been a complaint to his general practitioner. This did not, at that stage, result in any notation by Dr Muller of this having occurred as a result of any matter at work. The applicant agreed that in his work either as an apprentice electrician or as an electrician it had been necessary for him to work at times in confined spaces and there was a requirement to use both arms and bend and stretch in the performance of those duties, and any complaint of pain had not stopped him from so doing. 9. He also agreed he had attended lectures on one day and three nights per week during that apprenticeship. He continues to drive a motor vehicle and continues to engage in some sporting activity. It appears that from time to time there has been some increase in back and neck problems but whilst it was his evidence that these continue, it appears the neck and arm symptoms are of an intermittent nature. 10. Medical reporting has been tendered of the applicant's treating doctors together with x-rays which have been performed and reports of medico-legal consultations. 11. Dr Muller is the applicant's general practitioner. He has provided a report of 25 September 1996 addressed to the insurer, and his clinical notes have been tendered. These clinical notes refer to an attendance in November 1995 with a complaint of back pain. The notes are not of particular assistance as they are very hard to read, however, it appears that x-rays were undertaken. Those x-ray reports were tendered. On 29 November 1995 an x-ray of the spine does not show any particular abnormality. By August 1996 x-ray of the lumbosacral spine shows some scoliosis of the thoracolumbar junction towards the right side. On 2 December 1996 x-ray of the cervical spine shows no evidence of disc-space narrowing and is basically reported as normal. The CT scan of the cervical spine at that time shows no abnormality. 12. On 27 August 1996 a lumbar CT scan shows evidence of discal protrusion at L3/4 with some reduction in the spinal canal diameter, osteophyte formation at L4/5 and a possibility of discal protrusion at L5-S1. By the MRI scan performed on 22 February 2000 it is reported this shows posterior disc protrusion at L5-S1 to the right of mid-line directly adjacent to the right S1 nerve root, possibly representing a disc fragment with a small broad-based posterior protrusion at L3/4 with mild indentation of the thecal sac with minimal protrusion at L2/3. 13. Dr Sheehy was the neurosurgeon who provided a report relating to his assessment of the applicant on 6 September 1996 and again on 15 January 1998. On initial consultation he noted there to be a complaint of low back pain after carrying heavy luggage repeatedly whilst in the course of his duties with the Regent Hotel. He recorded there had been some sporting activity but that he continued to suffer significant pain in the buttock and thigh radiating to the right calf. On later consultation he thought there had been considerable improvement with conservative management. He thought there to be evidence of discal disruption. He was prepared to assess there to be 20 per cent loss of function of the lumbar spine as a consequence of injury at work and this was of a permanent nature. He found there to be 10 per cent loss of function of the right leg as well. 14. Dr Pollock examined him providing a report of 21 August 1996 at the request of the applicant's general practitioner. He noted a complaint of lower back pain for a period of two months at the time of consultation, and occasional low back pain in the past, not of a major kind. He did not record any particular incident of injury but noted the work involved heavy lifting of luggage all day and that low back pain had come on over a number of weeks. He also recorded there was pain in the right leg. It was his view there was a right sciatica with loss of right ankle reflex consistent with a possible right-sided L5-S1 disc protrusion or other nerve-root impingement. He thought his symptoms and signs consistent with the history of heavy lifting. He organised a CT scan to be performed. 15. Dr Conrad and Dr Weiss provided medico-legal opinions relating to their examinations. At Dr Weiss's request an MRI was performed. He obtained a history of employment with the respondent as a porter and bellman. He noted there had been a return to work in electricians' duties. He recorded a history of onset of neck, right arm, right leg and low back pain by 1997 which had been treated conservatively. He perused the x-rays which had been taken and compared these to the MRI which had been performed. He thought there was evidence of continuity of symptoms since 1996 and repeated objective documentation of a precise diagnosis and thus accepted the conditions of work were a substantial contributing factor to disability. He noted there had been a diagnosis of lumbar disc protrusion in 1996 which explained the gradual development of low back pain and that neck strain of a soft-tissue type had also been suspected as a result of the heavy duties performed as a porter. He assessed 35 per cent permanent impairment of the back in comparison to a most extreme case, 15 per cent loss of use of the right leg at or above the knee, 5 per cent loss of use of the left leg at or above the knee. On clinical grounds he considered there to be a soft-tissue chronic strain of the cervical spine and assessed a 5 per cent permanent impairment of the neck. He thought there was no evidence of pre-existing constitutional or degenerative change. 16. Dr Conrad examined him on 2 April 1997. He obtained a history of employment as a porter at the Regent Hotel and that he had been required to do a lot of lifting, manoeuvring and pushing of baggage and trolleys as part of his work and with an onset of back pain at the end of 1995 which had progressively worsened. He had the benefit of perusing x-rays and CTs which had been performed. He noted complaint of pain in the lumbosacral spine which occasionally radiated down the back of the right leg to the thigh and calf, worse when bending or lifting or working in confined spaces. He also noted a complaint of pain in the neck and tingling in the right arm. He thought that as the applicant had been involved in a lot of heavy repetitive lifting at work he had sustained a back strain and some degree of right-sided sciatica. He thought investigation should be further undertaken, however, on the basis of his examination and the investigations which he had sighted he thought there to be a 25 per cent permanent impairment of the back, 10 per cent permanent impairment of the neck, 10 per cent permanent loss of use of the right leg at or above the knee, 10 per cent permanent loss of use of the right arm at or above the elbow. 17. The respondent has tendered medico-legal assessments of Dr Bornstein, Dr Lloyd Hughes, Dr Aroney and Dr Bodel together with a certificate of the medical panel which was undertaken in May 1998. That medical panel is not binding. This certifies permanent impairment of the back of 15 per cent. 18. Dr Bornstein provided a report relating to examination in June 1997. He noted the applicant had been working as an apprentice electrician since the end of January 1997 and that he continued in that employment. He recorded he had been employed by the respondent as a porter and bellman for three years and had reported injury to his back on 8 July 1996 although his problems had been building up for a period of time prior to that date with pain in the right buttock area and down the right leg from the lower back. He also noted a complaint of sore neck leading to headaches and some paraesthesia to the right arm. He sighted x-rays taken in 1996. He thought he appeared to have suffered from a disc protrusion, and thought that at the time of consultation this had settled. He found nothing to suggest any injury to the neck or arm in the course of employment. He assessed a 5 per cent impairment of function of the back. He thought the injury work-related. He found no loss of use of the arms, legs or neck. 19. Dr Lloyd Hughes examined him, providing a report relating to his examinations in September 1996 and February 1997. At first examination he thought there to be clinical and radiological evidence of right-sided L5-S1 intervertebral disc protrusion which was of a spontaneous nature in a degenerate disc and not the result of any injury at work. At the time of that examination the applicant was aged 25 years. I assume his comments in relation to the degeneration of the disc relate to his observation of narrowing of the L5-S1 disc space. At that examination he did not believe there to be any permanent impairment of any part of the body. Following second examination he thought that despite some minor residual symptoms the applicant had made a complete recovery from the disc protrusion and any continuing symptoms were due to the degenerative process in the disc which caused the protrusion. Again, he did not find any permanent impairment of any part of the body as a result of injury. 20. Dr Aroney provided a report 3 July 1997. He recorded the applicant to have symptoms in the low back and right leg but since January 1997 there was an onset of neck pain and pain in the right upper limb. By way of history he recorded that in the employ of the respondent as a bellman the applicant had noticed a lot of pain in the back which became more persistent. Based on his clinical examination and examination of x-rays in his possession he thought there was some degree of impairment of function of the lower lumbar spine. He thought the applicant should be careful in relation to lifting duties but fit to work as an apprentice electrician. He thought there had been spontaneous resolution of the prolapsed disc. He thought there was an 8 per cent impairment of the lumbosacral spine although he did not believe at that stage this was permanent. He thought this should be re-assessed. No reporting has been tendered indicating this has been done. 21. Dr Bodel has examined him providing a report of 5 February 2001 relating to examination on 18 January 2001. He had the benefit of perusing the MRI scan of the back which had been performed. He recorded a history of gradual onset of low back pain towards the end of 1995 with no particular accident or injury related to the onset of symptoms but rather to the nature of the work in general, particularly carrying heavy suitcases. He noted the applicant had been seen by a number of practitioners and various investigations had been performed. He also noted the applicant had then undertaken an apprenticeship as an electrician and had subsequently worked as an electrical contractor. In his view the applicant suffered injury to his back in the employ of the respondent as a result of the nature and conditions of work in late 1995 and early 1996 and thought there was definite disc pathology at L5-S1 but only minor nerve-root irritation on the right-hand side. 22. He thought the applicant has 12 per cent overall permanent impairment of function of the back and thought 2/3 of this was due to the nature and conditions of employment with the respondent, and the remaining 1/3 due to constitutional factors unrelated to that work or any other period of work. He found 5 per cent overall permanent impairment of function of the neck due to constitutional factors temporarily aggravated by work at the hotel. He found no clinical evidence of any permanent loss of efficient use of either arm at or above the elbow but a 5 per cent permanent loss of efficient use of the right leg at or above the knee as a result of the back injury. 23. A wages schedule has been tendered indicating the earnings of the applicant from 3 January 1997 to 31 October 1998, and the earnings of comparable employees in the employ of the respondent. 24. During the entirety of the period claimed comparable employees are said to earn the sum of $591.17 per week. The applicant's actual earnings in his apprenticeship from 28 January 1997 to 31 October 1998 were the sum of $484.87 per week up to 30 June 1997, $429.21 per week for the period to 30 June 1998, and $529.51 per week up to 31 October 1998. It is not obvious to me why in the second year of apprenticeship the earnings are a lesser amount than in the first. 25. The applicant, in my view, gave his evidence in a straightforward manner and I accept his evidence in relation to the work performed by him in the employ of the respondent as a bellman and porter. I accept that in such duties he was required to perform heavy lifting and bending duties. 26. In dealing with his complaints of onset of pain I am satisfied I should accept he did sustain injury to his back and neck in the course of such duties, particularly during 1995 and 1996 prior to the time he went off work and sought attention of Dr Muller. 27. I accept there is pathology demonstrated on x-ray which would lead me to accept there has been some discal damage at least at L5-S1 level. This also apparently impinges on the thecal sac and gives rise to some irritation of the S1 nerve root. Accordingly, the applicant's complaint in relation to leg symptoms can be explained on the basis of injury to his back and the discal protrusion. 28. The applicant has continued working since January 1997 and has performed work which does involve him lifting and bending and working in confined spaces. However, it appears he has attempted to maintain a level of fitness and has continued in his employment although accepting at times he needs to attend for physiotherapy. 29. In looking to the applicant's complaints in relation to his right arm and neck medical opinions before me are to the effect that there has been no discal injury to his cervical spine. There is some medical opinion, to which I have referred, which is of the belief there is some soft-tissue injury to his neck or some neck strain. The radiological material tendered does not disclose any pathology, as I have said, nor is there any explanation as to why there should be the right-arm symptoms of which he complains. It is not suggested there was any particular frank injury to his right arm and from the radiological findings it does not appear that any nerve-root compression explains such symptoms. Whilst I accept the applicant may have complained of some neck pain at times as a result of and during the course of his employment and that such pain was as a result of his employment and there was some investigation undertaken, on the balance of probabilities I am not satisfied he has demonstrated there to be any permanent impairment of his neck nor of his right arm at or above the elbow as a result of any injury sustained in the employ of the respondent. 30. In looking to the assessments for his back and right leg I have set these out in full. Clearly, there is pathology demonstrated. There is a wide divergence of opinion as to the degree of impairment. It seems to me there has been some resolution of the applicant's symptoms and he has been able to perform work as an electrical apprentice and as an electrician, albeit noting his evidence that during the time of his apprenticeship he was afforded some assistance by his employer who is a personal friend. Nevertheless, he has been able to undertake some sporting activities and has been able to work and attend lectures without a particular need for continuing treatment. In looking to the assessments which are before me I am of the opinion the applicant has15 per cent permanent impairment of the back in comparison to a most extreme case as a result of injury. I am also satisfied there is 7.5 per cent loss of the right leg at or above the knee as a result of injury to his back. 31. It has been suggested a deduction should be made pursuant to the provisions of s 68A. In looking to the various radiological material which has been tendered, to the applicant's evidence, and noting the applicant's young age, it is my view that none of the permanent impairment is as a result of any prior condition. I am satisfied there should not be any deduction pursuant to the provisions of s 68A. 32. In looking to the claim pursuant to the provisions of s 67 the applicant has been leading a relatively normal life. I am satisfied I should accept his evidence in relation to actual pain. He has taken medication at times, and he has required physiotherapy. In looking to his claim in comparison to a most extreme case I assess this in the order of 1:5 of that most extreme case. 33. Turning to the claim for the closed period between 3 January 1997 and 31 October 1998 it is my view that the applicant had an ability to earn on an open and available labour market during that period. Indeed, his actual earnings demonstrate a capacity to earn which is of a moderate degree. It is my view, however, that they are not a true reflection of his earning capacity on an open and available labour market, whilst accepting the applicant to have had a partial incapacity by way of his back injury and to a minor degree from his neck complaints. 34. In looking to the evidence before me in relation to actual and comparable earnings it is my view that during the tenure of this claim the applicant had an ability to earn in the order of $529.51 pw, being his actual earnings in the period July 1998 to 31 October 1998. In that regard I make a mathematical calculation of the difference between that amount and the earnings of comparable employees in the employ of the respondent. 35. Accordingly, there will be an award for the applicant in the sum of : $61.66 per week for the period from 3 January 1997 to 31 October 1998 pursuant to the provisions of s 40; $9,000 in respect of 15 per cent permanent impairment of the back in comparison to a most extreme case; $5,625 in respect of 7.5 per loss of the right leg at or above the knee, both pursuant to s 66. 36. S 60 expenses. 37. $10,000 in respect of s 67. 38. Costs pt 29. 39. Second conference at $200. Ms H Wall instructed by Boyd House and Partners appeared for the applicant Mr J W Catsanos instructed by Blake Dawson Waldron appeared for the respondent