Dumas v Covenant Players Incorporated [2003] NSWCC 18

Compensation Court of New South Wales

CITATION : Dumas v Covenant Players Incorporated [2003] NSWCC 18 PARTIES : Jennifer Marie Dumas Covenant Players Incorporated MATTER NUMBER(S) : 11418 of 2002 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 23/07/03 EX TEMPORE JUDGMENT DATE : 07/23/2003

FOR APPLICANT:Ms S Walsh instructed by Kells the Lawyers. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr C Callaway instructed by PricewaterhouseCoopers Legal.

JUDGMENT: 1. This is an application by Jennifer Marie Dumas against Covenant Players Incorporated in which she claims injury to her back, left and right legs on 26 July 2000 when in transit from the United States of America to Australia, as part of what is said in the Application for Determination to be the duties of her employment with the respondent, she was sitting for extended periods for work-related continual travel by bus and aeroplane. In consequence she claims the appropriate s 66 lump sums for 18 per cent permanent impairment of the back and 4.5 per cent permanent loss of use the left leg at or above the knee, together with a lump sum under s 67 for pain and suffering in a maximum of $15,000 representing 30 per cent of a most extreme case. She abandoned, through her counsel, any claim to weekly payments of compensation or to a s 66 lump sum in respect of permanent loss of use of the right leg. S 60 expenses are also claimed, but no evidence was led that any such remain outstanding. It seems appropriate, if the applicant succeeds, to reserve liberty to apply in that regard. 1. The issues were indicated kindly by Mr Callaway for the respondent at the commencement of proceedings as being injury, worker, incapacity, impairment or loss, nexus between injury and incapacity, impairment or loss, s 68A and s 9A, but of course the incapacity issue does not arise in view of the abandonment of any claim to weekly payments. 2. The principal though by no means the only issue in the case is whether or not the applicant is a "worker" within the meaning of the definition contained in the Workplace Injury Management and Workers' Compensation Act 1998, which for reasons it is unnecessary to trace, applies to the Workers' Compensation Act 1987 ("the Act"). 3. The applicant impressed me as a witness of truth, and indeed Mr Callaway for the respondent did not dispute this, as opposed to the proper interpretation to be placed on her evidence. I accept it on all relevant issues. 4. The applicant was born on 2 December 1969 and is therefore 33 years of age and is married. After a short period of temporary work in a supermarket she worked as a nursing sister until she joined the respondent. I use the term "joined" neutrally in view of the issue in this case. 5. In 1991 it seems that the applicant attended a performance by a group known as the Covenant Players at a church of which she was a member, the Apostolic Church, and developed an interest in joining the company she saw performing. She spoke there to two people named Paul and Michelle Grant as well as to a Tony Blomstein. In consequence she had a conversation with Paul and Michelle Grant at her home and then wrote, apparently at their suggestion, to the respondent's head office and said that she was interested, as she put it, in applying for employment with them. I take the expression "employment" to be used there neutrally, in view of the applicant's lack of legal training. 6. The respondent's head office was in the Sydney area, in Penrith. The applicant applied in writing. She said she understood that she was applying for a position of a full-time nature with the respondent, touring around Australia performing at churches, schools and other groups. She said there was a discussion concerning payment with Paul and Michelle Grant. She did not identify the positions they held with the respondent, but it is uncontroversial that in fact she received payments to which I shall refer later. 7. The applicant could not recall which of Paul and Michelle Grant spoke to her on the subject of payment, but she said that she was told by one or other of them that she would receive food and accommodation together with a stipend, varying according to the amount earned by the company each week. She said her application was accepted and that she worked initially in Sydney, commencing in January 1992. She was there for two weeks and received training in drama and other matters. After her initial training in Sydney she was placed in a troupe touring the North Island of New Zealand. 8. In New Zealand the applicant performed office duties, including filing and typing, as well as, after a time, public relations work, approaching various persons and organisations who may have wished to engage the respondent for performances, in addition to the actual acting work which she was primarily engaged to perform. She said that there were well over 100 performances over a four and half month tour in New Zealand. She received a stipend whilst there. She was not informed as to exactly how it was calculated, but she was told by the team leader, a Lee Twaddle, before the troupe left for New Zealand, that because the company had quite a lot of bookings, its members should receive a full stipend. As I have indicated, she received a stipend in New Zealand but, according to the evidence, not every week. 9. After New Zealand the applicant was on continuous tours for the remainder of 1996 in Western Australia and Victoria. Generally, without going into agonising detail about the performance of her work, it is fair to say that until the subject tour of the USA she received stipend whenever she performed touring and acting work for the respondent, as well as food and accommodation. 10. There was, however, a brief period during which the applicant ceased to receive a stipend and worked voluntarily for the respondent. This was while she was working concurrently at Nepean Hospital in Sydney as a nursing sister. During that time, which immediately preceded her trip to the USA, during her return from which she alleges she received the subject injuries, she had flexible hours with the respondent while performing full-time concurrent employment as a nursing sister and did not receive any stipend. I do not think for that period of time that she was performing work for the respondent pursuant to a contract of employment, because for that short period when she performed office duties and the like, rather than acting work on the tour, she was not paid by the respondent. 11. The applicant's evidence was then that she was engaged to go to the United States of America on tour with the respondent, to use again a neutral expression. She left for the USA in January 1998. She was based in Toledo, Ohio, the head office of the respondent, but in fact she seems to have been associated initially with its training arm in Los Angeles and then with the touring part of its organisation in New York. She was in the USA for 18 months. She went to Canada after 18 months and remained there until mid 1999. 12. While in the USA the applicant saw a chiropractor because her back was a little stiff. Also during her period in Canada she saw a chiropractor, but she said this occurred on this occasion because the family with whom she was staying had a family chiropractor with discount rates and she therefore went to that chiropractor, apparently for more abundant caution, because she said she had no particular back problem at that time. During her time in Canada and the USA she received a stipend from the respondent, as well having her food and accommodation provided by it. 13. On 26 July 2000 the applicant returned to Australia. Her plane tickets had been booked earlier and she had to wait until her husband, whom she had married in Canada, obtained a visa before making arrangements to return to Australia, he not being apparently an Australian citizen. 14. Exhibit D in the applicant's case was a letter from the respondent to the applicant's solicitors dated 1 December 2000. Omitting formal parts, it being signed by "Mike Floyd for Mike and Fiona Floyd, Australasian Directors, Covenant Players", it reads: This is to certify that the airline ticket to fly Jen (De Haan) Dumas to Australia on July 21 was purchased under an agreement between Covenant Players Australasia in Australia and Covenant Players World Headquarters in the United States. Prior to Ms Dumas' flight to Australasia, the Covenant Players office in Windsor, in Australia, contributed funds to the Covenant Players office in Oxnard, California that were used to purchase Mrs Dumas' ticket for her return flight to Australia. Covenant Players Australasia understands that the purchase of the ticket was part of our arrangement to have Mrs Dumas return to Australia to serve with our organisation. 15. The last paragraph of that letter was objected to by Mr Callaway for the respondent when the letter was tendered and he asked that it be struck out. I declined this application because it seemed to me that this was a statement which fell within s 87 of the Evidence Act 1995, in that it appeared to fall within the apparent scope of Mr Floyd's employment as described by him at the end of the letter to make such a statement. Be that as it may, the preceding two paragraphs in any event establish that the applicant's airline ticket to return to Australia was paid for by the respondent, she having undertaken, according to her evidence, to work for the respondent for another year in Australia in return for their sending her to the USA (I again use the expression "work for" neutrally). 16. In any event, it has not been submitted that if the applicant were a "worker" within the meaning of the Act, she did not receive injury arising out of or in the course of her employment with the respondent, although s 9A of the Act is raised as a defence, but only in relation to the medical connection between the applicant's current back problem and the alleged injury, as I understood Mr Callaway's argument in addresses. 17. On the flight between America and Australia, which took about 14 hours, the applicant gradually developed back stiffness, which increased, and which was considerable at the time she disembarked from the plane. She had luggage. She did not experience back pain, she said, at the time she disembarked from the plane but only back stiffness, actual back pain only occurring the following morning. She said during the flight she was particularly cramped because her husband, who is 6 foot 7 inches tall, was beside her, and although she had an aisle seat she was sitting in economy class and had comparatively little room in which to move because she is fairly tall, as indeed she appeared to be in the witness box, she being by no means of petite build. She said that she attempted to move about during the flight to alleviate her back stiffness but to little avail. 18. The applicant said that she went to a Dr Sheehan in Windsor for treatment, primarily for referral to a chiropractor, and indeed that doctor's report was tendered by the respondent and I shall come to it later. 19. The applicant did not cease working for the respondent (again I use the expression "working for" neutrally) after she returned to Australia, and indeed continued with it in much the same capacity in which she had worked in the United States of America until on or about 12 June 2001, at which time she resigned, intending to return to her former occupation as a nurse. This she did about 5 to 6 weeks later. 20. Initially she claimed weekly payments of compensation for this period, though after she frankly admitted to me in a question I asked that during this period she could have done work as a nurse in an intensive care unit, such as she is now performing in Hobart, during that period, her counsel obtained instructions to abandon any claim for weekly payments of compensation, and it seems to me rightly so. 21. The applicant is, as I have said, engaged in her usual profession as a nurse and indeed has performed it successfully, apart from a few days off this year, ever since she left the respondent after the short period of unemployment referred to above. It is intensive care work and it means that she does not perform as much physical work as she would if she were on a ward where she would have had, for example, to lift patients in and out of bed. She receives help with lifting and other heavy work, and her main job is to monitor patients and take observations at regular intervals in the usual way these things are done in an intensive care unit. 22. The applicant still has back pain and episodic leg pain, much more rarely in the right leg than the left. She did not, I think, give convincing evidence indicating that the use of either leg was deleteriously affected by her injuries. As I have said, she abandoned any claim to a s 66 lump sum for the right leg, but even in relation to the left leg, in which she has more frequent episodic pain than in the right, I was not convinced on her evidence that she is able to advance any particular respect in which the use of her left leg is affected by her pain. I do not therefore think that her claim to s 66 compensation for the permanent loss of use of the left leg succeeds, despite some support for it in the medical evidence. 23. The applicant had been treated by a chiropractor, a Ms Lyell, who practices with her husband, with manipulation of her back together with the application of a hot pack, as well as by prescription of analgesics by Dr Sheehan, referred to above. It does not seem that she has received specialist treatment. She has seen a number of general practitioners in different places where she has performed, as well as in Hobart from time to time, for back pain. 24. I hope I will be excused if I do not refer to every aspect of Mr Callaway's able cross-examination for the respondent, but only to those parts which particularly concern my determination of the applicant's rights. 25. The first part of Mr Callaway's cross-examination related to the applicant's condition. She readily conceded that her leg pain was episodic, although she said that her back pain was more consistently present but by no means always there. It was my impression from this cross-examination that her back pain was of moderate degree and that her leg pain was, as I have indicated above, distinctly episodic in nature. 26. The applicant was then cross-examined as to the circumstances of her engagement, if I may so put it, by the respondent. It was put to her that her stipend was very low compared to what she could earn as a nurse and indeed generally, and she agreed that this was so. It was put to her that she worked for the love of it and because she had a religious commitment and she agreed with this also. She was shown a document which subsequently became Exhibit 2, which was her original application form for engagement, if I may so put it, by the respondent and specifically admitted that when she was asked why she wanted to join Covenant Players, she wrote in the document: I believe it is the Lord's will and I find the idea of ' faith in action' while on a mission very exciting - depending on God for all my needs. I also will love reaching people with the gospel message. 27. I am satisfied that the applicant's main motivation in undertaking work with the respondent, if again I may so put it, was to serve God rather than to earn money. The question is that whether that means of itself that she has not engaged in a contract of service with it. I shall deal with that question shortly, after considering the remainder of the evidence on the subject and the authorities. 28. A statement taken over the telephone from the applicant by a woman investigator was also tendered without objection and became Exhibit 3. The applicant conceded that in the statement, Exhibit 3, she said in par (4) on the first page that: As my work is voluntary I do not receive a set weekly wage. I receive a small living allowance when it is available. When touring I reside with other families or church groups which do not incur any living expenses. 29. The applicant said that she meant in saying this that the payments were very small. I took her to concede here that the main motivation for performing her work was not monetary gain. In various ways this same proposition was put to the applicant repeatedly, and she conceded whenever it was put to her that her main motivation for performing the work was not monetary gain, and indeed I do not think that she thought much about the subject at all when she performed the work, nor indeed when she proposed to engage in it by signing the application form referred to above, and its terms are consistent with that attitude. 30. Various payments to the applicant were put to her from records in the respondent's possession relating to her stipend and she agreed with them. Exhibit B, a list of the applicant's stipend payments by the respondent, was tendered and it shows the weekly stipend received by the applicant on different occasions. Counsel did not average these payments for me and I have not myself undertaken that exercise, but it is sufficient to say that in not one single week did the applicant receive what to my mind could reasonably be described as a living wage. The highest payment I can see in the schedule of payments in respect of any one week is $160 in respect of the week from 17 to 24 September 1994. A payment of $240 is recorded on 12 November, but the preceding payment is on 15 October and I take that payment of $240 most likely to represent three weeks' rather than one week's work. There are payments of $180 in November 1995 on three separate occasions and likewise in October 1995, though I do not know precisely how they were calculated. 31. Group certificates were produced for the applicant by the respondent and submitted for taxation purposes, I gather both in the United States of America and in this country, and those certificates became Exhibit C. They disclose total "gross salary, wages, bonus et cetera" in an Australian group certificate in the 1991/1992 financial year as $346.25; likewise for the 1994/1995 financial year as $3250; likewise for the 1995/1996 financial year as $2578; likewise for the 1996/1997 financial year as $1835; likewise for the 1997/1998 financial year as $2196.23 (that being a US group certificate); likewise for the 1998/1999 financial year as $2994.76 (again a US group certificate), and likewise for the 2000/2001 financial year as $2762 (this being an Australian group certificate, as were those mentioned above except where otherwise indicated). 32. As I have already said there is no doubt that these payments do not constitute what I would describe as a living wage, such as one would expect to be provided by an industrial award or agreement or such like. It does not, however, end the question of whether the applicant worked pursuant to a contract of service for the respondent or not. I should add that it was no part of Mr Callaway's case to suggest that the applicant's contract with the respondent was other than a contract of service, for example a contract for services or a contract of some other kind. He simply urged that there was no contract at all. The basis on which Mr Callaway said this is set out in a number of authorities he cited to me. 33. The first is Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197. That was a case where the alleged worker was injured while working as a volunteer with an employer, a non-profit Christian organisation which conducted camps for teenagers, and he received accommodation, meals and the use of camp facilities but no wages. His cross-examination was referred to by Handley JA at 201. There his Honour referred to the fact that the alleged worker in cross-examination conceded that there was a moral but not a legal obligation to attend once he had told the camp that he was coming for a particular week or weekend, and that when he volunteered for a particular week or weekend there was no intention in his mind to enter legal relations. His Honour pointed out that these answers were clearly admissible, though of mixed fact and law, and although not conclusive, were entitled to considerable weight, Pitcher v Langford (1991) 23 NSWLR 142 being referred to. 34. What was said to the contrary by Gleeson CJ in Connelley v Wells (1994) 10 NSWCCR 396 at 399 is not to be forgotten in this regard, but there is no doubt that the questions put to the applicant by Mr Callaway in cross-examination regarding her intention to enter legal relations and the spirit in which she performed the work were admissible and entitled to some weight. 35. At one stage the applicant, when I asked her during Mr Callaway's cross-examination what she would have done if her stipend in the United States of America ceased, no reason being given to suggest that the respondent could not afford to pay it any more, said that she would have reconsidered the matter and very likely gone to Canada with her fiance and then returned to Australia, rather than continuing her work with the respondent. Mr Callaway then asked her what she would have done if the respondent had indicated that it could no longer afford the stipend, and she still said that she did not think that she would have kept working, but then said that she regarded it as a theoretical consideration because it would not have stopped the stipend. 36. These answers seem to me to contrast somewhat with the answers to which Handley JA referred in Teen Ranch. Be that as it may, the result in Teen Ranch was that the appeal against the trial judge's decision that the alleged worker was not working with the respondent pursuant to a contract of service at the time of injury was dismissed. 37. Mr Callaway relied also on some English decisions referred to by Handley JA in Teen Ranch, namely Rogers v Booth (1937) 2 All ER 751, Davies v Presbyterian Church of Wales (1986) 1 WLR 323 and President of the Methodist Conference v Parfitt (1984) 1 QB 368. 38. In Rogers the evidence was that the alleged worker, who was claiming under the United Kingdom Workman's Compensation Act for an injury in the course of his alleged employment with the Salvation Army, had signed a questionnaire administered by the Army at the time of commencement of the alleged employment in which an affirmative answer was given to this question appearing at 754 of the report: Do you understand and agree that, as an intending officer, you are giving yourself to the work of the Salvation Army, that you are not 'employed', that you have no right to any 'wages', that there is no contract of service and that whatever your future rank or service may be, your position, so long as you remain in the Army, will be that of a voluntary co-operator in the Army's work for God, without claim to any other reward than the approval of God and the doing of the work itself will bring to you? 39. This, in the opinion of Greene MR at 755, disposed of any doubt as to the nature of the relationship between the parties in that case. 40. In Daviesthere was a series of promises set out at 326 in the speech of Lord Templeman, which I shall not set out for reasons of space, but which were of an exclusively religious kind. This was held to mean (see Lord Templeman at 329) that the duties owed by the alleged worker, a Presbyterian minister, were religious in nature, as a servant of God, not of his church. In consequence he was not able to rely on the Employment Protection (Consolidation) Act 1978 of the United Kingdom to seek relief from his dismissal from his pastorate. 41. The same decision was made in Parfitt'scase and again it is apparent from the reasons of Dillon LJ at 376 that the position of the alleged worker, again in holy orders, this time as a Methodist minister, was of a spiritual kind, so that again he could not seek relief under the Employment Protection (Consolidation) Act 1978 against dismissal by his church. 42. As both parties conceded, the way to approach this case and determine whether there was a contract or not is to balance the indicia said to constitute a contract of employment, according to Ms Walsh's argument for the applicant, in the manner prescribed in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, often regarded as the locus classicus in this regard. There the indicia listed by Mason J (as he then was) at 24 were the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and the provision for holidays, the deduction of income tax and delegation of work by the putative employee. 43. Wilson J and Dawson J at 37 referred to similar matters, including payment of remuneration without deduction of income tax as indicating a contract for services and not of employment. In that case of course no contract of service was found, but rather a contract for services. Nevertheless the statements in it are of great assistance in determining the present case. 44. The indicia I find in the evidence in this case favouring the existence of a contract of service are firstly the fact that the applicant was, according to her evidence, subject to direction as to where she performed, and that in the case of the allied clerical public relations work she did while in the United States of America, she received specific directions as to how she was to perform that work. 45. Secondly, she was paid a stipend which varied according to the amount of money earned by the company, and therefore indirectly according to the amount of work she and other persons did. 46. Thirdly she had, it seems to me, an obligation to work for the respondent, no suggestion being made that she was free not to perform and to go her own way on any particular day while in the United States of America or Canada, subject of course to breaks for ordinary recreation, which I assume took place although they were not mentioned. 47. Fourthly, she was provided by the respondent per medium of its arrangements with others with the premises which she was to perform work. 48. Fifthly, she was provided with group certificates both before and during her trip to the United States of America and Canada by the respondent, the originals of which were submitted to the taxation authorities. That is not conclusive of course, because it may have been done for more abundant caution by the respondent, but it reflects I think a view on the part of the respondent that there was at least an available argument that the applicant was an employee within the meaning of the relevant taxation legislation, and even if this was not the case, it is one of the usual indicia of a contract of service. 49. Finally, her hours at work were set, as it seems to me, in the sense that performances were put on at particular times and she was required to attend and perform in them. I do not know whether the hours of her performance of public relations and clerical work were set in the same way because the evidence does not reveal it. 50. The matters which Mr Callaway would have me place in the balance against those indicia firstly relate to the applicant's answers in cross-examination whereby she admitted that, as indeed she represented in her original application, she did the work primarily because of her love of God and her desire to spread His gospel and do His work rather than because of any stipend she may have been paid. Secondly, he suggested that the stipend was so low that it was simply reimbursement for minor living expenses, rather than a true wage. 51. Mr Callaway says that for that reason the applicant's employment is exactly analogous to that referred to in the English cases referred to above. I think there are ways in which those cases can be distinguished, as I have already suggested. They all relate not to lay persons working for a church but to clergy to whom ecclesiastical law has traditionally attached the label of persons holding a spiritual rather than a temporal office, even in churches outside the main Anglican and Catholic denominations in which there is a sacrament of ordination, and indeed in Rogers a contract of service was specifically excluded in the document signed by the appellant. 52. The applicant here was a lay person working for a stipend, admittedly a name often given to clerical remuneration, but her evidence, the veracity of which was not attacked in any way by Mr Callaway in addresses and sensibly so, was that had the stipend been discontinued, she would have reconsidered her position and more than likely left the respondent. This seems to me to suggest that she herself intended to enter into legal relations with the respondent. When a question asking that very thing was directly put to her, she said she did not know what it meant. I am not surprised, but I think it should be inferred from what she did say that she intended to enter into a legal relationship with the respondent, and that this relationship was that of master and servant or, to put it in more modern language, worker and employer, the circumstances of her engagement and the regular payment of a stipend suggesting an intention also on the respondent's part to enter such a relationship, to my mind. For these reasons she was in my view a "worker" within the meaning of the Act when she suffered the subject injuries, and she is entitled to succeed in her application if she demonstrates an entitlement to s 66 compensation. 53. The evidence on that subject can be summarised briefly. In the applicant's medical reports there is some evidence as to her treatment by a Mr Hobbs, chiropractor, in a short note from him, together with some notes from Hawkesbury Chiropractic Centre which simply corroborate the applicant's evidence in that respect, and then a CT report from Dr Philippa Taplin, dated 22 October 2002, which reveals moderate central canal stenosis at L4/5 and L5-S1, together with other findings which are said to be due to a combination of generalised disc bulge and facet hypertrophy with ligamentous thickening. 54. On the strength of that CT scan, which apparently he examined, together with the applicant's history, Dr Max Wearne, orthopaedic surgeon, wrote a report to the applicant's solicitors dated 19 March 2003, in which he said that the applicant suffered from an aggravation of pre-existing degenerative changes in her lumbar spine caused by the conditions she experienced during her prolonged flight on 26 July 2000, as set out above in her evidence. In an annexure to that report, Dr Wearne expressed the view that there was permanent loss of use of the left leg at or above the knee of 5 per cent, of which half was attributable to the incident of 26 July 2000 and half to pre-existing degenerative changes. He thought likewise that there was a 5 per cent permanent impairment of the back, divided in the same manner between the incident referred to and pre-existing degenerative changes. 55. Dr Mario Benanzio in a report of 14 May 2003 with annexures, written on a qualified basis, had a somewhat more generous view, again considering that the applicant suffered an aggravation of pre-existing degenerative changes on her flight, but opining that she had a 20 per cent permanent impairment of the back and 5 per cent permanent loss of both legs at or above the knee. The 20 per cent permanent back impairment was divided between the effects of the flight referred to and pre-existing asymptomatic pathology by attributing 18 per cent to the aggravation on the flight and 2 per cent to the pre-existing pathology. Division of the 5 per cent permanent loss of use of each leg at or above the knee between the aggravation and the pre-existing pathology also occurred, but I do not propose to examine that, in view of my decision made for reasons set out above that the applicant had not proved a permanent loss of use of the left leg at or above the knee, she having abandoned any claim for s 66 compensation for permanent loss of use of the right leg at or above the knee. 56. Exhibits E, F and G are the subpoenaed records of various doctors indicating that the applicant was treated by them at times referred to in her evidence, and they do not otherwise assist. 57. Exhibit 1 is the respondent's medical evidence, and the first documents in it are a report and annexure of Dr Michael Long, general surgeon, dated 2 December 2002 prepared on a qualified basis. Dr Long did not think in his longer report that the applicant had any ongoing impairment of her back as a result of the subject injury, considering that any ongoing problem was the result purely and simply of pre-existing degenerative change, but in his annexure he estimated a total body impairment, which need not concern me for present purposes, but which he divided between pre-existing disease and the injury as to 50 per cent each, rather contradicting what he said in his report about pre-existing degenerative change being entirely responsible for the applicant's condition. 58. Dr Robert Sheehan, general practitioner of North Richmond, wrote a report of 26 September 2000 which was also part of the exhibit. He thought the applicant may return to normal, but was otherwise prepared to say that the most likely cause of the applicant's back pain was the plane flight from the USA to Australia on the way to her employment here with the respondent, which he said could have been caused by luggage carrying or awkward positioning during the flight. I am inclined to accept his opinion, coming as it does from the treating general practitioner, although it was tendered in the respondent's case. It was agreed in by Dr Benanzio and Dr Wearne, who were qualified by the applicant's solicitors, and it seems a sensible explanation of the applicant's problems in view of the fact that she was essentially, though not entirely, asymptomatic (as witness the visits to chiropractors in the United States and Canada on two occasions) before the subject flight. It disposes also of Mr Callaway's s 9A point, because it means that the flight was a substantial contributing factor, indeed the contributing factor, to the applicant's injury, which was an aggravation of pre-existing degenerative changes in her lumbar spine. 59. I think Dr Long's opinion is inconsistent in the way to which I have pointed, and I am more convinced by what would appear to be the opinion in the annexure to his report that the applicant's problems are to some extent caused by the subject injury as well as by pre-existing degenerative change. I do not think his and Dr Wearne's apportionments are correct, however, from the point of view of s 68A of the Act because the applicant, as I have said, was essentially, though not absolutely, asymptomatic before her pain erupted following the aggravation of degenerative changes in the lumbar spine on the subject flight, which as I have said I regard as being her injury within the meaning of the Act. 60. I think that comparing it with the applicant's evidence which I accept, the appropriate assessment in respect of back impairment is in fact that of Dr Benanzio, and I think his deduction of 2 per cent from his 20 per cent assessment of permanent back impairment is appropriate under s 68A in the circumstances in respect of pre-existing degenerative change disclosed on the CT scan to which I have referred and said by Dr Benanzio, as well as the other doctors, to contribute to the impairment. In consequence, the applicant will be entitled to a s 66 award in respect of 18 per cent permanent impairment of the back in proportion to a most extreme case. 61. In consequence, she narrowly passes the s 67 threshold. Counsel did not assist me as to quantum in this regard, but I think the applicant's pain and suffering is very moderate in view of the fact that she is well able to engage in her current employment as a nursing sister which, while it is not in the heaviest class of nursing work and does not involve heavy lifting, nevertheless in my opinion places some strain on her back, and in view of the medical evidence generally, and her own. In my opinion her pain and suffering in proportion to a most extreme case, taking into account her evidence as well as all the medical evidence, lies at a proportion of 3:20 or 15 per cent of a most extreme case and there will be an award under s 67 accordingly. 62. I make the following findings:- 1. Injury to applicant arising out of and in the course of employment of the respondent on 26 July 2000. 2. Applicant at the time of the above injury was a worker within the meaning of the Act, employed by the respondent pursuant to a contract of employment. 3. Resulting from such injury applicant has permanent impairment of her back of a proportion of 1:5 or 20 per cent of a most extreme case of which one-tenth or 2 per cent is the result of pre-existing non work-related degenerative change in the lumbar spine. 4. Resulting from net impairment after deduction as above, applicant has experienced and does and will experience pain and suffering of a proportion of 3:20 or 15 per cent of a most extreme case. 63. I make the following award in the applicant's favour:- 1. $10,800 for permanent impairment of the back under s 66. 2. $7500 under s 67 for pain and suffering.