Dempsey v Home Care Service of New South Wales [2001] NSWCC 97

Compensation Court of New South Wales

CITATION : Dempsey v Home Care Service of New South Wales [2001] NSWCC 97 PARTIES : Margaret A Dempsey Home Care Service of New South Wales MATTER NUMBER(S) : 32648 of 2000 JUDGMENT OF: Burke J CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 15/02/01 EX TEMPORE JUDGMENT DATE : 02/16/2001

FOR APPLICANT: Mr M Perry LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr P Sweeney

JUDGMENT: 1. Mrs Dempsey seeks compensation by way of weekly payments in respect of the period from 27 December 1999 to date and continuing. She seeks an appropriate lump sum in respect of a 30 per cent impairment of the back and a rather large lump sum under s 67 in respect of consequent pain and suffering. The applicant is now 56 and she worked for about 24, 25 years for the respondent doing the usual sort of home care work, mostly geriatric or people with disability and do a bit of housework, a bit of bathing, a bit of dressing, a bit of general tender loving care for those who are having difficulty doing it themselves. The applicant seems to have worked on in that for 20-plus years without too much problem. 2. The first major complaint appears to arise on 21 April 1998 standing behind a patient who appeared to lose balance, the applicant grabbed for her, did not make a big deal about symptoms. The patient managed to hang on to the bath which I think saved a real problem. The applicant said her back was discomforting and a month later on 21 May 1998 she went along to her usual general practitioner Dr Chung complaining of thoracic back pain, telling him about the incident the prior month. He thought obviously that she should be a bit careful about the work she does. The applicant says her superior was fairly caring in that the clients to whom she was despatched were selected not to have any substantial disabilities. The applicant appears to have gradually gone from that selected-type operation to fairly normal work. 3. Dr Chung notes that by 29 October 1998 she was doing full normal work again probably for the full hours though it gets a bit questionable at times and she went along doing that then until 30 June 1999. The applicant in evidence said this was the occasion when she had the real pain, to use her phrase. All she appeared to be doing was a female patient with a leg problem sitting on the end of the bed. The applicant squatted down on a - sitting on her heels actually massaging the client's legs when she had what she describes as quite marked thoracic back pain, sufficiently marked for her to go along and see Dr Chung the following day. She was then, he notes, complaining of severe thoracic back pain. She had a bit of conservative treatment. Obviously, Dr Chung suggested she try light duty on 12 July 1999. I think the applicant said she did and she did not last a day. 4. She was off work in September 1999, she goes back and she is doing two hours per day. Just which times, what hours, she is working does get a bit confusing. The work was fairly selective. It was virtually monitoring the patient; in other words, patients without any substantial disability. You just had to be there to make sure that they were all right. While doing that in November 1999 her services were terminated by the respondent. She had been paid any entitlements up to that time and indeed continued to be paid, apparently at the maximum rate up till 26 December 1999 and it is in respect of the period after that the claim for weekly payment arises. It is unusual. Obviously it is a thoracic back problem that the applicant has. There are a number of specialists whose opinions are in evidence - gets a bit tricky because some of them are before the second incident in June 1999 so have to do a little bit of variation here and there. 5. She saw Dr Isaacs, for instance, in August 1999 which is after both and indeed the applicant told him of both. He is certainly the most generous assessor of disability in the sense of he gives the greatest assessment finding a 30 per cent impairment of the back which is the claim. He thinks there was soft-tissue injury to the back in the original incident in April 1998 and further aggravated by the June 1999 - she was seen by Dr Mathers referred by her general practitioner Dr Chung on three occasions; 22 November 1999, 21 February 2000 and 6 March, had various investigations done. Actually, the history seems to concentrate clearly on the first incident in April 1998 catching the falling patient. He has initiated a deal of investigations, bone scan, x-rays et cetera. Certainly, he thinks the applicant has degenerative osteoarthritis of the spine which itself has been aggravated by the incident of which he was told and the superimposed soft-tissue element. He thought that the applicant was unlikely to ever get back to her former occupation. 6. Dr Patrick saw the applicant in December last year. He got the history of both events, thought the original incident in April 1998 was injury to the facet joints and costovertebral articulation in the spine and that the incident in June 1999 further aggravated that condition, certainly thought she was limited in the physical work she could do and he thought unable to resume the type of occupation that she followed with Home Care for the prior 24-odd years. He assessed a 22 per cent impairment of the back which he says is entirely work-related. It is difficult to know whether he says that there is more impairment and this is the element that relates to work or whether he is saying there is no pre-existing condition or abnormality which there certainly was. 7. Dr Dalton saw the applicant just after the first incident. He saw her in August 1998, four months after he had the account of course - only involved that incident. He in his examination thought the applicant had deconditioned. The applicant, virtually working through there, she had not really lost any great time in that period off. He certainly thought there was underlying degenerative changes, he certainly thought that she had limitations on what she should do. She was fit for light to moderate manual work at the time he saw her. Certainly, it was too early to assess permanent losses but he thought it was unlikely that there would be any such loss. 8. Dr Sage saw the applicant in October 1998 and that of course is in between the two injuries so he only has the history of the incident in April 1998. He, like most, diagnosed underlying degenerative changes plus a strain resulting from the incident with the patient in the bathroom, thought she was fit for most forms of work with some sort of limitations, assessed a 5 per cent impairment of the back at that stage, six months post first injury, and he thought it was a 50-50 split between the injury and the underlying degenerative condition. 9. Dr O'Keefe saw the applicant in August 1999, it is a couple of months after the last incident on 30 June. He has the history fairly clearly of April 1998 event and a mere note that she hurt her back again in June 1999. He thinks there has been an exacerbation of the underlying spinal disease. He, like, Dr Patrick, assesses there is a 5 per cent loss as the result of the injuries and the rest, whatever that may be, is due to degenerative changes. He thought it was unwise that she attempt to do the work that she had formerly done for Home Care. 10. Dr Jackson saw her in October 1999, it is four months after the second event of massaging the legs, has a clear history of both incidents actually and doubts if the incident of 30 June 1999 massaging legs could constitute an injury. He notes that she is still working at that time doing five hours a week. He diagnoses a soft-tissue injury aggravating the underlying degenerative change, does not think there is any loss. He said the applicant would be advised not to essay any heavy forms of work, suggesting some limitation though probably not in his view resulting from any injury. 11. Dr Billett saw the applicant on 29 June 2000. He gets the account of both the incidents now relied on, certainly accepted that each for its own part would aggravate the underlying degenerative condition. He thought indeed initially that the injuries were substantial contributing factors to that aggravation but in his view both had produced transient aggravation which had ceased. He thought there was a 10 per cent impairment of the back that was entirely due to the underlying condition. Amongst those views I probably fall somewhere in between. I accept certainly that the applicant had the two incidents to which she deposed. I accept that she had symptoms following the incident in April 1998 and more marked symptoms following the event of June 1999. It would appear that the respondent probably equally accepted that paying the applicant, as they did, up to Boxing Day 1999. 12. There is a general view amongst the specialists for one reason or another that the applicant has a limitation on the type of work that she can do. The type of work that she did over many years for Home Care is certainly not work with which she could now adequately cope, having regard to the condition of her thoracic spine. The parties have agreed the probable earnings are $240 per week. The applicant said the hourly rate under which she last worked was $12.05. So that is round about 20 hours a week which is fairly compatible with the general trend of the evidence. 13. The real question then becomes, " the applicant, having a partial incapacity - what is she able to earn?" The parties have taken somewhat different views on that, the respondent feeling that there is no residual effects of the injuries, as largely suggested by Dr Billett - would think any incapacity she has is unrelated. However, I am satisfied that there was a relevant aggravation in both incidents and it does limit the type of work the applicant can do. She could not successfully undertake the type of work that she had previously done for Home Care. Indeed, the applicant, I think, was working five - well, it depends on which history you take. One doctor says she was working five hours a week in that last - I think she did say two hours a day so it is probably 10. 14. At the finish she was doing that, virtually monitoring the patients. The employer at that stage was obviously providing her with suitable work. It did not unduly stress her spine, she managed to do it. She indicated she was quite happy to do it, that she was coping with it and she would have continued to do it but for the respondent terminating her services. 15. By and large, I think that is as good an indicator as I can get of her capacity to earn. Since she appears to be working half the time that she did before it would seem that she could probably earn half the money. It has been agreed that the probable earnings are 240 I would think her ability to earn then was about $120 a week. There is no reason suggested for the exercise of the discretion to abate the difference revealed by those figures. On the lump-sum claims I have the rather high assessments of Dr Isaacs and Dr Patrick, 30 per cent and 22 per cent : Dr Dalton, nil. Dr O'Keefe is in the 5 per cent range which is where Dr Sage is too. Dr Billett goes to 10 per cent though he does not think it related. 16. On the assessment of the impairment taking into account the doctors' findings when they see her; the pathology then revealed; the applicant's account of the symptoms and limitations that she experiences and to some degree the figures suggested by a variety of specialists I would think that the applicant has a 15 per cent permanent impairment of the back. On 68A the applicant has a substantial underlying degenerative condition. Neither of the events constituting injury were markedly traumatic. That would suggest that the underlying condition played a not insubstantial part in the evolution of her subsequent loss. All in all I would think it is a 50-50 split, that the deductible proportion in terms of s 68A is 50 per cent. It leaves a residual 7.5 per cent which is not very much. 17. For those reasons I find: 1. On 21 April 1998 and 30 June 1999 the applicant received injury to her back. 2. The applicant incapacitated thereby varying periods in varying degree and paid all entitlements up to and including 26 December 1999; 3. The applicant partially incapacitated thereby 27 December 1999 to date and continuing. 4. Probable earnings uninjured $240. 5. The applicant's ability to earn the same period $120. 6. As a result of such injury the applicant suffers a 15 per cent permanent impairment of the back. 7. The deductible proportion in terms of s 68A is 50 per cent. 18. I hereby order an award that the respondent pay the applicant: 1. A weekly payment pursuant to s 40 of $120 per week from 27 December 1999 to date and continuing. 2. lump-sum payment pursuant to s 66 of $4,500 in respect of the residual 7.5 per cent permanent impairment of the back. 3. Medical, hospital and other expenses of treatment pursuant to s 60. 4. Costs.