Compensation Court of New South Wales CITATION : Churchill v Fine Meats Pty Limited [2001] NSWCC 50 PARTIES : Robert Colin Churchill Fine Meats Pty Limited MATTER NUMBER(S) : 36768 of 2000 JUDGMENT OF: Walker J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 20/10/00, 20/4/01 EX TEMPORE JUDGMENT DATE : 04/23/2001 FOR APPLICANT: Mr A Cooley instructed by Daly Bussoletti & Co Solicitors LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr B Odling instructed by Moray & Agnew Solicitors JUDGMENT: THE CLAIM 1. Robert Colin Churchill claims lump sums compensation for injury to his back, both legs and loss of sexual function. 2. The basis of his claim is that arising out of and in the course of his employment with the respondent as a labourer from 26 November 1998 he slipped on some fat, twisted his back and sustained a permanent back impairment and secondary losses in the form of a permanent loss of the efficient use of both legs and the permanent loss of efficient use of his sex organs. THE ISSUES 3. Injury of the back and both leg losses was admitted. Basically, the case was an assessment of the quantum of the s 66 and s 67 claims. However, Mr Odling, for the respondent put in issue injury so far as the loss of sexual function was concerned and permanency with regard to the left leg loss and loss of sexual organs. He also put in issue the application of s 68A in respect of the back and secondary disabilities. MATTERS FOR DETERMINATION 1. Was the applicant injured arising out of or in the course of his employment with the respondent? 2. If so, did he sustain (a) A permanent back impairment (b) A permanent loss of efficient use of both legs (c) A permanent loss of the efficient use of his sex organs. 3. If so, what is his appropriate entitlement pursuant to s 66 for his (a) Back impairment (b) Left leg loss (c) Right leg loss (d) Loss of sexual function. 4. Does s 68A apply to reduce any of the applicant's s 66 entitlements? 5. If the s 66 entitlement exceeds the s 67 threshold, what is the applicant's entitlement to lump sum compensation for his pain and suffering? THE EVIDENCE THE APPLICANT 4. Robert Colin Churchill gave evidence that he is 52 years of age, married with four dependent children. He commenced work for the respondent as a labourer in March of 1988. Prior to 26 November 1998 he had no problems with his back, legs or sexual function. Indeed, the only problem affecting any of the bodily parts claimed was a left ankle injury in 1985 which has not interfered with the use of his leg. 5. Mr Churchill told the Court that on 26 November 1998 he was trimming meat when he slipped on some fat and twisted his back in a jerking motion. He noticed immediate pain in his low back and referred pain into his right leg and right shoulder blade. Soon afterwards he noticed pain in his left leg. The following day the applicant saw his general practitioner and - with the exception of two abortive attempts to perform light work - has not worked since. 6. He was given a lengthy course of physiotherapy and hydrotherapy. He was also given strong pain-killers - but he declines to use drugs that are addictive. The worker then described his pain and restrictions over the first 9 months of his injury. He said his back pain was shocking and would be set off by the slightest movement. He often found it difficult to walk. He also had pain in both his groins and pain referring down both legs. The right leg pain was the worst and extended to his mid-calf. The left leg pain only extended to the back of his knee. He also had pain in the right shoulder blade. Mr Churchill said that sex was not an option for the first three months. He tried to have sex after that but the back pain hurt, "like bloody hell". On later attempts he found he could not sustain an erection and could not effect penetration. He and his wife gave up after that. 7. Mr Churchill said he had been referred for treatment to the orthopaedic specialist, Dr McGrowder, Dr Stevens and Dr Griffiths. He also developed bad emotional problems of anger and moodiness about July 1999 and was referred to the psychologist, Alexander Gilroy, who treated him at his pain management clinic for three months in pain management techniques and techniques to manage his anxiety and anger. He found these sessions helped him get on with life and improved his back pain problems. 8. Mr Churchill then described the nature and extent of his current problems. He said his back is constantly sore. The smallest movements can trigger sharp stabbing pains. He continues to suffer pain in his right shoulder blade. His back problem prevents him from bending or twisting. He cannot lift weights. He has problems sitting for any length of time. Mr Churchill said his right leg problem had improved slightly after the pain management clinic. The referred pain now only extended to the knee and was not as frequent. He still had burning pain in the groin and right hip. The hip locks when the pain is sharp. The leg has lost its strength. He has problems walking more than short distances. For example, he finds he has problems negotiating the distance around the supermarket shelves. Steps and stairs, "give [him] hell". He said that severe hip pain develops two to three times a week. His right leg pain was a constant dull ache that intermittently flared to severe pain that could last for up to a week. He cannot run. Mr Churchill said that while the left leg was not as bad as the right the symptoms were much the same as the right and he suffered bad pain for up to a week at a time on occasions. He has the same restrictions with walking, running, and negotiating stairs. 9. Mr Churchill told the Court that he no longer attended physiotherapy. He wears a back brace, used a TENS machine and takes six to eight Paracetamol tablets a day. He has problems sleeping because he wakes up often and spends half the night pacing. 10. Mr Churchill told the Court that he had led a very active life prior to his injuries. He was a keen saltwater fisherman - frequently taking out his boat in the lake to fish. He loved bushwalking and used to take day trips as well as weekend camping trips. He used to gather firewood for his family and others, using a chainsaw to cut fallen timber along the roads. He loved to play games with his children such as soccer and cricket. He was also a bike rider and liked to work in his rose garden nurturing about a hundred plants. He also went dancing with his wife once a month. Mr Churchill said he could no longer participate in any of these activities. His inability to move is the main problem. He still keeps about ten rose bushes but only spends about an hour a week on them. On one occasion that he recalls he went to collect firewood and used a chainsaw. He was not able to load the wood and has not tried to do that task again. 11. Mr Churchill said that using techniques taught to him by Mr Gilroy he does things like mow the lawn in small bits over several days. However, he finds he cannot vacuum the house and drops plates when he tries to wash up. Mr Churchill said that his pain was particularly bad in winter. He is emotionally unhappy, angry and frustrated at the impact his injury has had on his working, sporting, social and family life. CROSS-EXAMINATION 12. Mr Churchill agreed with Mr Odling that his condition had improved after the pain management course. He agreed his left leg problem could have been made worse by favouring the right leg. He said he only recalls getting one load of firewood after his injury. Mr Churchill said his nails were usually dirty and his fingers always had a hard appearance. I found Mr Churchill to be a truthful witness who in no way sought to embellish or to exaggerate. THE MEDICAL EVIDENCE THE APPLICANT'S MEDICAL CASE Dr G Griffith 13. The applicant saw Dr Griffith, a consultant surgeon, for assessment on 10 February of 1999. His opinion was that the applicant had a musculoligamentous strain of the lumbar spine. At that stage there were no MRI investigations. Dr Kevin Bleasel 14. The applicant saw Dr Bleasel, a neuro-surgeon, for assessment on 7 December 1999. He had the advantage of the MRI and said it revealed a midline annular tear at L4/5 and also a prolapse at L5-S1. He assessed the permanent back impairment at 40 per cent and the permanent loss of efficient use of the legs at 20 per cent in the right and 15 per cent in the left. Dr Nicholas Kringas 15. X-rays and a CT scan were taken by Dr Kringas, a radiologist, on 14 December 1998 and 20 January 1999. He found the posterior margins of L4/5 and L5-S1 disc showed minor annulus bulging. Dr J Price 16. Dr Price, a radiologist, reported on the MRI scan of the lumbar spine conducted on 21 May of 1999. He concluded there was a midline annular tear at L4/5 and probably L5-S1. He found a right bilateral disc osteophyte encroaching at L3. Dr J M Burgess 17. The applicant was treated by Dr Burgess after the injury. He thought that he had a back strain. Dr William H Wolfenden 18. The applicant saw Dr Wolfendon, a consultant neurologist, for assessment on 18 July 2000. His opinion was the applicant had a discal problem in the lumbar spine with nerve root irritation radiating pain into the right leg. He assessed a permanent back impairment at 35 per cent. The right leg loss at 15 per cent. He did not consider or assess the left leg. He found there was a 100 per cent permanent loss of the use of sex organs. Dr John M Harrison 19. The applicant saw Dr Harrison, an orthopaedic surgeon, for assessment on 31 August 2000. His opinion was when the applicant jarred his back at work he injured, and I quote, "presumed pre-existing degenerate changes in his back and perhaps caused incremental further damage on the right side, possibly at L3/4 and L4/5". His diagnosis was degenerate disc disease of the back with facet joint wear and referred symptoms into the legs. He assessed the permanent back impairment at 20 per cent but made a 2 per cent deduction for pre-existing degenerate changes. He assessed both leg losses at 8 per cent each. Alexander Gilroy 20. Alexander Gilroy, who treated the applicant at his pain management clinic from 12 July 1999 to 7 December 1999, is a qualified psychologist. He advised in his report of 5 July 2000 that Mr Churchill received instruction in: · Pain pathways. · Stress-management techniques. · Anxiety management techniques. · Anger and aggression-management techniques. · Relaxation training. · Thought stopping techniques. · Methods of behavioural change. · Techniques to improve sleep. · Relapse prevention techniques. 21. He noted that at the end of the course Mr Churchill stated that the clinic had been, and I quote, "a positive step forward for him". He felt he had been successful in adapting his thought processes from fatalistic and quite negative to goal-oriented and more positive. He believed the skills he had learned will help him cope better. THE RESPONDENT'S MEDICAL CASE Dr James G Bodel 22. The applicant saw Dr Bodel, an orthopaedic surgeon for assessment on behalf of the respondent on 8 June 2000. His opinion was that the applicant had suffered a disc rupture at L4/5 and to a lesser extent at L5-S1. He assessed the permanent back impairment at 15 per cent. He found 20 per cent of that was due to a pre-existing constitutional condition. He assessed the right leg loss at 5 per cent and found no permanent left leg loss. Dr Phillip M. Katelaris 23. The applicant saw Dr Katelaris, a urological surgeon, for assessment on behalf of the respondent on 10 August 2000. His opinion was the applicant's condition was not consistent with the diagnosis of neurogenic erectile dysfunction. He did not feel that his sexual difficulty relates in any way to the back injury. He suggests smoking was the major risk factor. He suggested that Mr Churchill give up smoking and try Viagra. Dr G. J. McGroder 24. The applicant was referred to Dr McGroder, an occupational physician by Dr Falk. He saw him on 29 March 1999. He found some inconsistencies and exaggeration in the applicant's presentation. He felt he had a musculoligamentous strain. Dr John P Stephen 25. The applicant was referred by Dr Hutcheons to Dr Stephen, a spine surgeon, for assessment on 29 July 1999. He felt the annular tear at L4/5 did not correspond with the applicant's pain. ANALYSIS OF THE MEDICAL EVIDENCE 26. The matters requiring my determination with the assistance of the medical evidence are: · Causation of the loss of sexual function. · Permanency of the left leg loss and the loss of sexual function. · S 66 entitlements. · Application of s 68A. · Application of s 67 - if relevant. 1. Causation Of Loss of Sexual Function 27. Before I consider the evidence I should first review the relevant law applicable in such cases. In Roads & Traffic Authority v Malcolm 1996 13 NSWCCR 273 the Court of Appeal considered the case of a worker who, owing to consequential pain in his back, could no longer have sexual intercourse. There was no physical damage to his penis. The Court of Appeal found that Mr Malcolm had suffered a compensible loss and upheld the trial Judge's award of an 80 per cent loss of use of the organ. Justice Mahoney in reaching that conclusion applied the principle in Morrow's case to the situation where the loss of the efficient use of the thing derives not from any injury or deficiency in the thing itself but from the pain which is produced in the back when the thing was used. Justice Mahoney raised the question at p 273 G of his judgment of whether because a penis was used for other functions, such as urination, a 100 per cent loss would be appropriate - given that all that was lost was the loss of sexual function. He thought there was some merit in that argument but chose not to disturb Judge Neilson's assessment of 80 per cent. 28. The respondent's case relies on Dr Katelaris's opinion, that the history and clinical examination was not consistent with the diagnosis of neurogenic erectile dysfunction and was not related to the back injury. He suggested smoking was the most likely cause. The applicant's case relies on Dr Wolfendon's opinion that Mr Churchill has 100 per cent loss of efficient use to his sexual organs resulting from his back condition. The Court of Appeal recommends that this Court resolve such conflicts of medical opinion by applying common sense to the chain of causation and asking the question whether the loss is the result of the injury impugned. 29. The chain of causation as I read the evidence is as follows: 1. The applicant prior to 26 November 1998 had a normal sex life having intercourse with his wife three times a week. He had no problems with penile flaccidity or inability to penetrate. 2. On 26 November 1998 he sustained a work-related back injury that has left him with a constantly painful back which can become extremely painful with the slightest movement. 3. When he first tried to have sex some three months after his injury he was able to effect an erection but could not sustain it or effect penetration because his back hurt "like bloody hell". 4. Further attempts at sexual intercourse some six months after the injury were a failure because penile flaccidity prevented penetration. After that time Mr Churchill and his wife have given up trying to have sexual intercourse. 5. Mr Churchill smokes between 20 and 25 cigarettes a day. Dr Katelaris opines that smoking is the major cause of erectile dysfunction in 50 year old males. 6. Mr Churchill has not sought further medical treatment for his erectile dysfunction. 30. There is a powerful line of authority that asserts the principle that an inference of causation can be drawn from the circumstances of the case - even where the stated medical evidence is such that it merely admits of the possibility of causation. (see Adelaide Stevedoring Company Pty Ltd v Forst 1964 CLR 538 at 563-4 ; Tubemakers of Australia Limited v Fernandez 1976 10 ALR 303; and EMI (Australia) Ltd v Bes 1972 NSWLR 238 at 242 and Ramsay v Watson 108 CLR 642 at 645). 31. In Ramsay v Watson at p 645 the High Court said: A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause or probable cause of any ailment but it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence but they are not simply to transfer the task to the witness. They must ask themselves 'are we, on the whole of the evidence, satisfied on the probabilities of the fact?' 32. The Law acknowledges that a painful low back condition can make sexual intercourse impossible. Mr Churchill's evidence is that is precisely what happened in his case. Moreover he is a worker who has sustained a very considerable psychological problem with his injury. 33. I formed the impression on reading Dr Katelaris's report that he had missed the obvious point in focusing on Mr Churchill's erectile complaints and trying to link that problem to pain travelling through the neural pathways. The evidence is that Mr Churchill found sex impossible after his injury because it produced extreme back pain - not because he had anything physically wrong with his penis or his sexual organs generally. The evidence that his back pain has improved marginally since he was treated by Alexander Gilroy. However, that treatment did nothing for his disc prolapses and nerve rot compromises that were causing his severe pain. What Mr Gilroy did for Mr Churchill was teach him how to avoid using his back in a way that caused him pain. 34. One does not need to have medical training to agree with Mr Odling's proposition that by adopting a passive position in sexual congress a male may avoid pain. Indeed, this is, in my view, one of those situations where the Courts can apply Nicolia v The Commissioner for Railways and safely reach a conclusion on causation in the absence of medical evidence because the effect of sex on a bad back is within the common knowledge of most adult Australians. 35. However, Mr Churchill's evidence is not only that his pain has improved because of avoidance techniques, he further asserts that even the slightest movement can set off severe back pain. Mr Churchill says that he has tried to take a passive role in having sex with his wife, but his back still hurts "like bloody hell". Putting aside the flaccidity problem, the fact of life is that Mr Churchill cannot engage in sex because the sexual act causes him extreme back pain. Again, it is common knowledge that there is a strong psychological element in the male libido and erectile problems are often experienced by males for many emotional reasons, including fear of pain - or even feelings of guilt. Common sense suggests that a male who has experienced extreme pain from a bad back and still has that bad back is most likely to have problems maintaining an erection. 36. Mr Churchill's major difficulty in establishing causation has been the 'terseness' of Dr Wolfendon's assertion that he is entitled to be compensated for his loss of sexual organs. Medical specialists, unlike trial judges, are not required to give reasons. However, even Judges in situations where the conclusion is obvious can be excused for jumping to it. Taking all the evidence into consideration on the balance of probabilities I determine that arising out of and in the course of his employment with the respondent the applicant has sustained an injury to his organs of sex secondary to the injury to his back and compensible under the principle in Malcolm's case. 2. Permanency Loss of use of Sexual Organs. 37. The only doctor whose evidence I accept on this issue, Dr Wolfendon, has expressed in his report of 25 July 2000 that the loss is permanent. Given that I have found the loss as secondary to the back impairment, which is admitted to be permanent, I can only agree that on the balance of probabilities the loss is permanent. The Left Leg 38. The respondent bases its case that the left leg loss is not permanent on the report of Dr Bodel of 14 June 2000 where he states, and I quote: The patient has no clinical evidence of any permanent loss of efficient use of the left leg. 39. Dr Wolfendon also fails to make a finding of permanency concerning the left leg - but that is because he took no history of it and made no clinical examination. Dr Harrison and Dr Bleasel from the applicant's camp expressed the opinion that the left leg loss is permanent. The applicant gives evidence, which I accept as truthful, that his left leg problems are not as great as his right but from time to time it can be struck down with severe pain in the left leg for as long as a week. He also gave evidence about difficulties with running, walking and climbing stairs. 40. Taking all this evidence into consideration on the balance of probabilities I determine that the applicant has a permanent loss of the efficient use of his left leg. 3. S 66 Assessments 41. I have found work-related injury and permanent impairment and losses of the efficient use of the applicant's back, both legs and sex organs. He is therefore entitled to receive lump sum compensation pursuant to s 66. 42. The range of assessments are: Doctor Back Right Leg Left Leg Sex Organs Dr Bodel 15 per cent 5 per cent Nil Not assessed Dr Harrison 20 per cent 18 per cent 8 per cent Not assessed Dr Wolfendon 35 per cent 15 per cent Not assessed 100 per cent Dr. Bleasel 40 per cent 20 per cent 15 per cent Not assessed 43. I am not obliged to accept any particular assessment and can take all the evidence into consideration - including that of the applicant. The Back 44. The applicant in addition to his low back pain endures referred pain into his right shoulder blade which affects the use of his back. I propose to take that into consideration in this assessment. An applicant with two discal prolapses frequently secures an award under s 66 in the range of 40 per cent. In this case the L5-S1 injury is not as significant but needs to be offset by the pain in the thoracic region. The applicant's evidence is that his back is of little use to him at all. He cannot lift with it, has great problems bending or twisting it - and the smallest movement can set off extreme pain. He has pain after sitting for just a short period. 45. Taking all this evidence into consideration and comparing Mr Churchill's permanent back impairment to a most extreme case I determine that it represents 40 per cent of such a case. The Right Leg 46. Again, the applicant's evidence is most persuasive here. He tells the Court that he cannot run and only walk on it for a very short distance. Intermittently the pain becomes extremely severe and that his hip locks - making use of the leg difficult. 47. Taking all the evidence into consideration I determine that the applicant's permanent loss of efficient use of his right leg represents a proportion equal to 20 per cent of the amount payable for the total loss thereof. The Left Leg 48. Taking all the evidence into consideration, I determine that the applicant's permanent loss of efficient use of his left leg represents a proportion equal to 12 per cent of the amount payable for the total loss thereof. The Sex Organs 49. Keeping in mind Justice Mahoney's views about the other non-sexual use of organs of sex - and, indeed, noting Mr Odling's comments about considering alternative techniques and aids that might reduce the loss of sexual function - I find I cannot agree with Dr Wolfendon's 100 per cent assessment. 50. Accordingly, taking all the evidence into consideration concerning the applicant's permanent loss of efficient use of his organs of sex, I determine that it represents a proportion equal to 80 per cent of the amount payable of the total loss thereof. 4. S 68 A The Back 51. Mr Odling relies on the evidence of Dr Bodel and Dr Harrison to submit that I should find that the applicant has a pre-existing back condition to which s 68 A applies. To reach that conclusion I need to take two steps. Firstly, identify that the pre-existing condition and, secondly, determine the proportion that it has contributed to the permanent back impairment. Dr Bodel opines that the applicant suffers from constitutional factors at work in his back. Dr Harrison, relying on x-rays, finds pre-existing degenerative changes in his back. The objective radiological evidence is: 1. Dr Kringas' x-rays of the lumbosacral spine on 14 December 1998 finds no abnormalities including no disc narrowing which is normally indicative of a degenerative condition. 2. His CT scan of 20 July 1999 shows a bulging disc - again, no evidence of degenerative condition. 3. The MRI scan by Dr Price on 21 May 1999 regarding the disc prolapses at L4/5 and L5-S1 finds no degenerative condition in relation to those prolapses or the facet joints. Dr Bleasel at p 3 of his report of 9 December 1999 says of the radiology, and I quote: The disc heights are preserved indicating that there was no pre-existing problem. 52. Taking all the evidence into consideration, on the balance of probabilities I find that the applicant was suffering from no pre-existing condition or abnormality that has contributed to his permanent back impairment. The Sex Organs 53. I have not accepted Dr Katelaris's view that smoking could be the cause of the applicant's penile flaccidity. Accordingly, there is no evidence that I accept that would suggest a pre-existing condition or abnormality. 6. S 66 and s 67 Assessment 54. I found a most significant impairment of the back and very significant losses in the legs and the organs of sex entitling the applicant to lump sum compensation for his pain and suffering. The applicant has given evidence of the very considerable pain he has endured in the past with his back and leg conditions. That pain has improved since he attended the pain management clinic but only marginally. He still has serious exacerbations of his pain in the back and both legs which can disable him for up to a week at a time. He needs eight painkillers a day and uses a brace and a TENS machine. His sleep is greatly affected. The applicant has given evidence of the stress he has suffered and the strong effect his injuries have had on his psyche. He has explained the many ways in which his life has changed for the worse - so far as work, recreation, social, sporting and domestic activities are concerned - and particularly in so far as his family life with his children is concerned. He has given evidence of his anger and his frustration and his depression. He has given evidence of how his sex life has been taken away from him. Finally, he is a man who in the normal course of events would have some 30 years of pain and suffering ahead of him. 55. Taking all this evidence into consideration and comparing the applicant's pain and suffering to a most extreme case, I determine that it represents 60 per cent of such a case. FINDINGS 56. I summarise my findings as follows: 1. Arising out of and in the course of the employment with the respondent, the applicant has sustained the following injuries: a) A permanent impairment of his back. b) A permanent loss of the efficient use of both legs, and c) A permanent loss of the efficient use of his sex organs. 2. The applicant is entitled to the following lump sum compensation pursuant to s 66 for: a) A 40 per cent back impairment. b) A 20 per cent right leg loss. c) A 12 per cent left leg loss. d) An 80 per cent loss of sexual organs. 4. S 68A does not apply to reduce the applicant's s 66 entitlements. 5. The applicant is entitled to lump sum compensation pursuant to s 67, representing 60 per cent of a most extreme case. AWARDS 57. I make the following awards: 1. The respondent pay to the applicant pursuant to s 66: a) For his back impairment $24,000 b) For his right leg loss $15,000 c) For his left leg loss $9,000 d) For his 80 per cent loss of sex organs $37,600 2. Respondent pay to the applicant pursuant to s 67: $30,000 3. The respondent pay the applicant's medical expenses pursuant to s 60, and 4. The respondent pay the applicant's costs. 5. I certify a second conference in the sum of $300. Mr A Cooley instructed by Daly Bussoletti & Co Solicitors appeared for the applicant Mr B Odling instructed by Moray & Agnew Solicitors appeared for the 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.