Compensation Court of New South Wales CITATION : Lord v Lincraft [2001] NSWCC 85 PARTIES : Julia M Lord Lincraft Pty Ltd. MATTER NUMBER(S) : 36285 of 1999 JUDGMENT OF: Johns J CATCHWORDS: Proceedings to Obtain Compensation :- LEGISLATION CITED: Workers Compensation Act 1987 CASES CITED: DATES OF HEARING: 07/02/01 DATE OF JUDGMENT: 02/07/2001 FOR APPLICANT:Mr. I.S. Judd instructed by Gibney & Gunson LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr. S.L.Flett instructed by Abbott Tout JUDGMENT: 1. The applicant in these proceedings makes a claim for lump-sum entitlements as a consequence of her work with the respondent. The applicant is a 57 year-old lady, with a retired husband, who left school at 15 and worked at Coles till she was married and had a family. However, at the time that she was working she was waitressing at night or engaging in what other work she could. She has had a long and successful work history and has shown herself to be a person who has a good work ethic, she continues working till the present time with the respondent. She has spent some 18 years in real estate and came into the employment of the respondent in 1981 where, she is still employed as a shop assistant. 2. The nature of the work the respondent has to do is in the handling of merchandise and fabrics. It is essentially what one would describe, as a large-scale haberdashery which was more known perhaps in times past. The applicant described the nature of her work, there is obviously a lot of lifting, a lot of reaching up to the shelves, of handling and manoeuvring rolls of fabric, it could be described as quite heavy work. The nature of the work that is now required has increased because of the extent to which the available or intended staff has been diminished. In particular, the applicant has over the years noticed that stock-taking time is particularly difficult. 3. The actual stock-take takes three months to complete, it involves constant and heavy lifting and bending and reaching and in addition to the normal work it is a period in which work is obviously extensive. She has had pain after a stock-take in the past, particularly, she recalls, 1986 when she had the pain in the neck and across the right shoulder which, after a period of time, did resolve. But each year she has had some effect in a not dissimilar way from each stock-take which seems to me to suggest that there is obviously some underlying problem which has continued to be repetitive and ultimately which has ended in some chronic condition. 4. The applicant has a complicated medical picture. She had a cerebral vascular event in June 1994, which was commonly known as a stroke. She has made a good recovery. There are some slight problems with her foot, but that is of no relevance to the matters with which I have to deal. More particularly, in 1996 she did a stock-take in the usual way. Whilst she experienced symptoms in the same way I have described, on this occasion the symptoms have not resolved. In fact, she has consulted her general practitioner Dr Mosenthal whose written evidence corroborates that in 1986 after a three-month stock-take the applicant was having pain in her shoulder. The history given to Dr Mosenthal, was not dissimilar to that which I have elaborated, except the emphasis seems to have been on the back of the shoulder, which at that time, looked like some sort of a rotator cuff syndrome although it was not apparent. 5. During 1996, she continually reported to Dr Mosenthal, in relation to pain, and in his report of 1999 there is the manifestation of the medical picture that is, at present complained of. She continually had symptoms which waxed and waned over the period of time that she was working. There was a period where there was some rehabilitation in order to overcome her problem but it did not prove successful. She chose to stay on and tried to work through the pain rather than retrain herself. She has the disadvantage of not being able to take medications which would relieve the pain that she has, because of medication she takes as a consequence of a vascular cerebral event. She is also a diabetic and therefore she is restricted in anti-inflammatory medication that might otherwise be available to her. She has had physiotherapy with little or no success. She suffers pain both in the neck and an ache in her arm. 6. This picture of complaint is confirmed in the medical evidence as, fairly put by the respondent's counsel, and in particular by Dr Mosenthal in Exhibit RX4, which seems to me to summarise the great weight of the medical evidence in this case. She experiences pain in the back of the neck and down into her right shoulder. The nature of the radiological evidence does not confirm, in any objective way, the condition that the applicant has. There is no abnormality to be detected radiologically either in the neck, or indeed in the shoulder, but the applicant does have, and has had, consistent pain which has been diagnosed as a fibrositis and a neuritis by Dr Mosenthal. 7. I think it is important to confirm that the applicant presented as an acceptable witness. So much is confirmed, by Dr Bornstein, whose evidence was tendered on behalf of the respondent, who in fact says that the patient presented in a genuine fashion and he had no reason to doubt that she did have some real neck discomfort and he then went on to suggest some form of other investigation. I would confirm what Dr Bornstein's view, in that regard. He has indicated that there ought to be a restriction on what lifting she does. Although he does not confirm that there is a direct relationship between the injury and the condition he does confirm that there is an impairment of the function of the neck to the extent of 8 per cent. 8. The applicant's further medical evidence involved, in part, the report of Dr Pike who indicated that he thought the symptoms were muscular relateing to the activity at her work and suggested, in 1997, that her work be restricted. The situation is that the worker has not been restricted and there has been a consequent continuance of symptoms the neck and the shoulder. The applicant also has had the benefit of medical evidence from Dr Coombe who indicates that the neck symptoms are musculoligamentous in origin and he leans towards the view of Dr Mosenthal, that of a right shoulder rotator cuff tendonitis, both of these would explain the pain of which the applicant complains. He makes an assessment of impairment of 15 per cent in both the neck and the upper right arm. 9. The respondent has tendered the evidence of Dr Van der Rijt. Dr Van der Rijt does not accept the applicant has any disability, because he cannot find any objective basis, for the symptoms of pain. He is not prepared to accept, that the applicant either has pain or has any disability. The difficulty I have with that is that if I accept that the applicant does have the symptoms of which she complains, Dr Van der Rijt does not give me an explanation for it. 10. The other matter which diminishes the weight of Dr Van der Rijt's evidence is that the nature of his reports, and the manner in which, in particular, the second report has been written, suggest that he has entered the adversary arena and sought to draw his conclusions founded upon the function of what really is left to the trier of fact. Nonetheless, one can understand that he looks at some other practitioner's report and says, "I do not understand how, on those findings, such a conclusion can be drawn". In the medical sense, if one accepts that that is the basis upon which it has been put, then that is evidence which is entirely acceptable. I will err in that regard in favour of the doctor. I think I have given adequate reasons why I think his evidence ought not to be preferred particularly when, on behalf of the respondent, Dr Davis has indicated that the applicant has a repetitive musculoligamentous strain as indeed Dr Coombe has also indicated. 11. Dr Davis says that this particularly affects the right shoulder and he indicates that there is a 5 per cent impairment of the cervical spine and 5 per cent permanent loss of the right arm. In his report of 10 November he confirmed what Dr Coombe had said about musculoligamentous strain, he is of the view that the symptoms in the future may settle. That is not the case at present, and indeed in my view the symptoms have gone on for such a period of time that it is unlikely that the applicant will improve in the future and I do not accept that they are, as Dr Davis says, limiting. 12. Dr Bornstein, as I have already said, has indicated that there is no relationship between the injury and the condition. In a conflict of this nature the question of causation in the face of conflicting expert opinions one is able to accept portions of the evidence of one expert and portions of the evidence of another in order to produce a synthesis which perhaps neither of the witnesses would assent to although that is not the situation in this case. What I am not entitled to do however is to produce a finding which is not derived from any combination of parts of the medical evidence. In other words, I am to form my own original opinion taking such assistance as I can from the opinions of the evidence of experts to which I am not bound nor am I to defer to the opinions of the experts in the sense of permitting the experts to take over the fundamental fact-finding obligation of the Court and Kelly Holdings P/L v Dalrymple Holdings P/L & Or's. 45 FCR 145 is ample authority for that. 13. The Court is entitled to have regard to the simple and temporal facts in cases such as this. The Court in these circumstances is entitled to act on the probabilities and look to what has often been repeated, to take a robust and pragmatic commonsense approach to the evidence. In doing so it seems to me that there is ample evidence from which to conclude that the applicant does suffer from what I think is now a chronic musculoligamentous strain as a consequence of the work that she has performed and is still performing with the respondent both in relation to the neck and in relation to what I would loosely describe as the upper right arm and in those circumstances the applicant is entitled to an award for permanent impairment both of the neck and the right arm at or above the elbow. The difficulty in this case is to determine accurately what is the appropriate level of disability. 14. In relation to the right arm I have assessments which vary between 5 and 15 per cent. In looking at the medical evidence it seems to me that the greatest of the problems has in fact occurred in the right upper arm especially in and around the trapezius muscle and around the area of the rotator cuff. Indeed, in 1996 the major complaint was the shoulder. In fact, there was no earlier complaint in relation to the neck which has, obviously, developed subsequently due to the conditions of the applicant's employment. It seems to me, therefore, in particular from the description of the applicant in relation to the pain, that what she is able to do and what she is not able to do, that there is a disability at the level of 10 per cent of the right arm at or above the elbow. 15. In regard to the neck, there is some limitation, that has been described. That limitation has been present at times without pain, at other times with pain. As I have described, the nature of the condition is musculoligamentous in its origin. Objective evidence, in regard to examination, does not seem to me to show anything in the way of a lack of ability, at times, up to full movements. There have been, as I have described, limitations but that has been, at times. Radiologically there is no abnormality to be seen by way of degenerative changes or other abnormalities in relation to the applicant's cervical spine. I am aware that in regard to an assessment for the applicant's neck I am to evaluate or make a determination of the level of disability by comparing the relationship of the magnitude of the applicant's injury to what is described in the notes as a most extreme case. 16. I am not concerned with the particular impact of the loss of function of the applicant, having regard to particular employment activities, however, subjective considerations which might bear upon the degree of the loss is a matter that is relevant in making such an assessment. The fixing of a percentage of impairment by medical practitioners, which in this case do not define the standard against which the percentage is measured, is of limited value for the assessment by the medical practitioner and the assessment that I have to make is not the same. As a consequence the medical evidence, at least in part, is of limited value for that reason. It is nonetheless an objective assessment and it seems to me that in the circumstances the level of the applicant's disability in the neck is in my view 5 per cent and the applicant is to be compensated accordingly. 17. The applicant also makes a claim pursuant to the provisions of s 67. She has suffered the sufficient proportion of disability to entitle her to receive compensation for pain and suffering pursuant to the provisions of s 67 because she suffered more than 10 per cent of the maximum from time to time referred to in s 66(1), as has been indicated to by counsel. There is a maximum payable in such an assessment for a most extreme case. In all other cases I am also to engage in an exercise of what is reasonably proportional to this maximum having regard to the duration, the degree of pain and suffering and the severity of the applicant's loss. I am to review what pain and suffering there has been in the past, the present and the future and if any - and certainly it would appear to be of much significance in this case - pain or distress or anxiety suffered resulting from the loss. 18. However, it not only depends upon the severity of the physical injury but of the consequences of the physical injury upon the applicant. I am therefore to take into consideration the impact of this particular injury upon the applicant. There is no necessary proportion between the award of permanent impairment on the one hand and pain and suffering on the other. I am engaged in an exercise that requires or involves questions of fact and degree, matters of opinion, impression and estimation. In the end it calls of the exercise of common sense and judgment and my judgment is to conform with current general ideas of fairness and moderation. I look therefore to the standards which generally prevail and a reasonable conception of what is adequate to the occasion without engaging in an exercise which allows a comparison of like cases in any systematic way. In doing so it seems to me that the appropriate proportion in this case is 1:5. The applicant is to be compensated accordingly. 19. I therefore make the following formal findings: That the applicant suffered employment injury to her neck and to her upper right arm; I find that the applicant suffers from a 10 per cent permanent loss of the right arm at or above the elbow; That the applicant suffers a 5 per cent permanent impairment of her cervical spine; I find the applicant suffered, suffers and will suffer pain and suffering. 20. I hereby order an award that the respondent pay the applicant the sum of: $2,000 in respect of 5 per cent permanent impairment of the cervical spine; The sum of $8,000 in respect to 10 per cent permanent loss of the applicant's right arm at or above the elbow; The sum of $10,000 pursuant to the provisions of s 67 for pain and suffering. 21. I order the respondent to pay the applicant's costs. 22. I recommend a second conference with counsel in the sum of $225. 23. The applicant has also made a claim in respect of her back. The applicant's oral evidence in regard thereto is obscure and indeed does not amount to any detail which I would be prepared to accept. If she does have some symptomatology in her back then, in my view, it cannot be the consequence of anything to do with her employment. When I said the applicant's evidence was obscure I have no idea in relation to the locality of the pain. At one stage in her evidence she mentioned the low back, the medical evidence seems to indicate some complaint quite laterally in between the shoulder-blades or at the top of the lower thoracic area. I am not prepared to accept on the basis of the evidence presented that there is any liability in respect of the respondent. Mr I S Judd instructed by Gibney & Gunson appeared for the applicant Mr S L Flett instructed by Abbott Tout 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.