Compensation Court of New South Wales CITATION : Ladas v Broadlex [2001] NSWCC 9 revised - 5/09/2001 Katrina Ladas PARTIES : v Broadlex Cleaning Services Pty Limited and Berkeley Challenge Pty Limited MATTER NUMBER(S) : 41509 of 1999 JUDGMENT OF: Moran J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 05/03/01 EX TEMPORE JUDGMENT DATE : 03/05/2001 FOR APPLICANT: M Perry instructed by Steve Masselos Solicitors LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr L Stone instructed by Moray and Agnew Solicitors for the First Respondent. Mr D Hall instructed by John Sharpe Solicitor for the Second Respondent JUDGMENT: 1. In this case the applicant sues two previous employers: the first respondent is Broadlex Cleaning Services Pty Limited and the second respondent is Berkeley Challenge Pty Limited. The applicant claims that she suffered injuries in the course of employment with the 1st respondent. Unfortunately, the respondents named are not in the order of which the injuries are alleged to have occurred. In fact the first injury claimed on 1 March 1996 occurred in the employ of the 2nd respondent when she said that she suffered a strain to her back while using a polishing machine when she said she lifted the machine by pressing on the handle but unfortunately the wheels gave way and she fell and felt some pain in her back. She was off work for about 2 weeks and from time to time between then and the second injury on 8 March 1999 she had symptoms in her back, particularly the morning. However, she was able after a short period on light duties, following her two weeks off work, she resumed her normal duties. 2. She then commenced employment with the 1st respondent in January of 1999 and had her second injury on 8 March 1999. She said that whilst pulling a mop through a bucket she suffered more severe pain in her back than she had on the first occasion and that when leaving work and throwing a plastic bag of papers in to a rubbish bin she was obliged to put her right arm up when her left hand slipped off the lid to protect the head and she suffered a strain to her right shoulder. The applicant has been paid weekly compensation by the insurer of the 1st respondent up until the present time and her medical and other treatment and expenses. 3. In these proceedings she claims lump sum compensation for 20 per cent permanent impairment of her back, 5 per cent permanent loss of use of her right leg at or above the knee and 25 per cent loss of use of her right arm at or above the elbow. 4. I am presented with quite a number of medical reports - both by the applicant and both respondents. The claim as framed by the applicant is the assessment made by Dr Endrey-Walder, firstly, on 18 October 1999 and confirmed by him again on another examination on 24 July 2000. The applicant had been examined by Dr Stephenson, an orthopaedic surgeon, on behalf of the 1st respondent. He considered she probably had a rotator cuff lesion, tendonitis and bursitis of the right shoulder and considered she had a 25 per cent permanent loss of use of her right arm at or above the elbow. He did not think there was any permanent impairment of the back as a result of either injury - 1996 or 1999. 5. Dr Jamieson examined the applicant on behalf of the 1st respondent. He thought that any effects of either injury - particularly what he thought might have been capsulitis of the right shoulder - would not persist and he made no assessment of any permanent disability. The applicant was examined by a physician, Dr Richard Evans, qualified by her solicitors on 29 July 1999. He thought it was a bit early to make a definite assessment of the back but he thought at that stage there was a projected impairment of her back of 15 per cent, a projected loss of efficient use of her right leg at or above the knee of 5 per cent. He thought that similarly a projected permanent loss of efficient use of the right arm at or above the elbow of 15 per cent. 6. The medical evidence presented on behalf of the respondent is as follows: Dr Khan on 15 October 1999 considered she had a 5 per cent impairment of her back and a 15 per cent loss of use of her right arm at or above the elbow. Dr Daymond agreed in respect of the 5 per cent of the back on 13 October 1999 and thought that she had a 10 per cent loss of use of her right arm at or above the elbow. Both doctors thought that the back condition had been contributed to by the first injury in 1996 and Dr Khan thought that there should be a third contribution and Dr Daymond - 50/50. 7. Another doctor relied on by the respondent, Dr Vote, on 27 February 2001 - so his assessment was the more recent of anybody's - and his report is Exhibit 3. He thought she had a 10 per cent impairment of her back, a 5 per cent loss of use of her right leg at or above the knee and a 15 per cent impairment of the right arm at or above the elbow - perhaps due to capsulitis of the shoulder. He thought she had a degenerative problem but there was a degree of degenerative change in her low lumbar spine which was causing her intermittent symptomatology. However, he noted that she first had symptoms in the back as far as 1996. 8. Finally, Dr Nash, on 1 November 2000 thought she had a 10 per cent impairment of her back but 50 per cent of it was due to degenerative changes. He thought the incident she had whilst with the Berkeley Challenge was an aggravation of pre-existing constitutional change but she expected to resolve it in 10 to 12 weeks. 9. I accept the applicant as a witness of truth. She said that she had no problems before the first injury in 1996. She was cross-examined about attendances on her general practitioner, Dr Dracos. She was asked whether she saw him in 1992 for an x-ray - she could not remember. It is convenient now if I turn to Dr Dracos' report. There was another entry in Dr Dracos' clinical notes which were tendered which stated she saw him in July 1996 for a painful right shoulder. The doctor refers to that visit in his report of 24 April 1999 and said that she was prescribed Voltaren tablets and the condition settled and she did not require any time of work. The applicant said that at the time of the second injury in 1999 her shoulder was perfectly alright. She did not remember the treatment for her shoulder in 1996. 10. I am satisfied that the first injury in the employ of the 2nd respondent did cause some part of the permanent impairment of the back which I find results mainly from the injury in the employ of the 1st respondent in March of 1999. Whilst I am pressed to find that the provisions of s 68A should apply - particularly to the claim in respect of the applicant's back, I am not satisfied that I should reduce any impairment of the applicant's back pursuant to the provisions of s 68A . The applicant, I accept, was able to carry out her busy and often heavy work for many years. I am obliged to assess impairment to the back in proportion to a most extreme case. 11. I find that in proportion to a most extreme case the applicant has a 15 per cent permanent impairment of her back. Of all the doctors' reports I have read, I feel that I should accept Dr Evans' opinion - as distinct from Dr Khan's and Dr Daymond's opinions - in relation to the blame to be placed on the earlier injury, and I find that as a result of the injury of 1 March 1996 one-fifth of the 15 per cent impairment of the applicant's back results from that injury in the second respondent's employ on 1 March 1996. It is clear from the evidence that the 2nd respondent is not liable for any contribution for any claim in respect of the applicant's loss of use of her right arm at or above the elbow. It is also clear that any the right leg symptoms did not occur until after the injury of 8 March 1999, so that the only award that should be made against the 2nd respondent is in respect of 3 per cent permanent impairment of the applicant's back. 12. I find that the balance of the 12 percent was the liability of the 1st respondent in respect of the injury of 8 March 1999. I am also persuaded to accept the medical opinions from Dr Evans, Dr Endrey-Walder and Dr Vote that the applicant has a 5 per cent permanent loss of efficient use of her right leg at or above the knee in respect of the pain she suffers in respect of the injury to her back on 8 March 1999. 13. That brings me finally to the claim in respect of the applicant's right arm. The two doctors who consider the applicant has a 25 per cent loss are Dr Stephenson and Dr Endrey-Walder. Dr Evans thought it was too early to assess when he examined her in July 1999 and thought at that stage it was a 15 per cent loss. I note that Dr Vote in February of this year considered it was a 15 per cent loss - as did Dr Khan back in October 1999. After listening to the applicant's evidence of the painful symptoms she has in her right arm and has had since that injury in March of 1999 I find on the whole of the medical evidence that the applicant has a 20 per cent loss of use of her right arm at or above the elbow in respect of the injury of 8 March 1999. 14. Again, I am not persuaded that the provisions of s 68A apply. The findings I have made as against the 1st respondent entitle the applicant to an award for pain and suffering. Firstly, the amount of compensation awarded for the 12 per cent impairment of the applicant's back and the 5 per cent loss of use of the leg - they are the losses resulting from the injury on 8 March 1999 - just in excess of $10,000 - $10,950 and the applicant is entitled to a s 67 award in respect of the claim for 20 per cent loss of use of the right arm at or above the elbow. Because the applicant's symptoms continued on from that day and persist until the present day I will deal with both claims now. 15. I accept the applicant's evidence of the need to take painkilling tablets on a daily basis but the problems she has at home trying to do her housework and general pain and suffering that she gave in evidence and which I do not need outline in detail. I take into account her age. She is 53. 16. I find that in proportion to a most extreme case I should award compensation for pain and suffering in respect of the injury to her back and right leg at 5 per cent of a most extreme case and at 15 per cent in respect of her 20 per cent loss of use of her right arm at or above the elbow. 17. For those reasons, I make an award in favour of the applicant against the 2nd respondent: In the sum of $1,800 in respect of 3 per cent permanent impairment of the applicant's back. I make an award in favour of the applicant against the 1st respondent: In the sum of $7,200 in respect of 12 per cent permanent impairment of the back. In the sum of $3,750 in respect of 5 per cent loss of use of the applicant's right leg at or above the knee. In the sum of $16,000 in respect of 20 per cent loss of use of the applicant's right arm at or above the elbow. Under s 67: For a total of $10,000 I order the 1st and 2nd respondent to pay the applicant's costs in proportion to the amounts awarded against them and those costs are to include qualifying fees for Dr Evans and Dr Endrey-Walder. I certify an advice on evidence. MR M J PERRY of counsel appeared for the applicant MR L G STONE of counsel appeared for the 1st respondent MR D J HALL appeared for the 2nd respondent DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.