Compensation Court of New South Wales CITATION : Smith v Attorney Generals Department [2001] NSWCC 144 PARTIES : Jennifer Smith Attorney Generals Department MATTER NUMBER(S) : 53656 of 1999 JUDGMENT OF: Campbell CJ at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 14/03/01 EX TEMPORE JUDGMENT DATE : 03/14/2001 FOR APPLICANT: Mr C Egan instructed by Nevill & Edwards LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr P Sweeney instructed by P W Turk 7 Associates JUDGMENT: 1. The applicant in this matter claims lump sums under the Workers Compensation Acts in respect of an injury which she suffered on 6 November 1998 arising out of and in the course of her employment with the respondent. Mr Egan of counsel appeared for the applicant and Mr Sweeney of counsel for the respondent. Counsel's submissions have been recorded and it is therefore unnecessary for me to refer to each submission, merely to ensure that it is noted. Counsel have conducted the matter with a relevance to the issues for which I am grateful and which allows me to deal with this judgment in relatively short form. 2. The applicant is a 33 year old single woman and an experienced sheriff's officer, working in the Supreme Court. On 6 November 1998 she was seated in a toilet at the Court when it collapsed and she fell straight down to the floor. The applicant is a large lady and I have no difficulty in accepting that the impact was a heavy one. There is no dispute that she injured her spine and it seems more probable than not her coccyx. The applicant suffered from pars interarticularis defect in her spine which I accept had never presented with symptoms and it is clear that this impact aggravated that condition and the mild spondylolisthesis that went with it. 3. The applicant has lost little time from work. She has been treated by her local doctor, Dr Hardy and by Dr Drummond, an orthopaedic specialist on one occasion and by some physiotherapy. Nonetheless it is clear that she has continued to suffer pain and incapacity ever since that time. Her continued working has been assisted by the efforts made by the Court to provide her with lighter type work and for some considerable time she has been working with a registrar doing work which is lighter than previously she had done. She has given evidence that while she is doing that lighter work she has less pain but nonetheless she takes medication on a regular basis and many of her ordinary activities have been restricted. 4. The issues to be dealt with have come to be decided within a relatively short compass. The first question is the degree of permanent impairment of the applicant's back. Dr Evans who examined her for her solicitors is of the view that there is a permanent impairment of the back being 20 per cent of most extreme case. The doctor examined her in June of 1999 and again in September of 2000. He noted that there was an increase in her back pain as she reported it to him but did not think it appropriate to increase the percentage of permanent impairment. The doctor also thought that there was a 5 per cent permanent loss of efficient use of each leg at or above the knee. 5. Dr Endrey-Walder, who examined the applicant for her solicitors in June 1999, was at that time of the view that the applicant sustained a compacting injury to her lower back and a likely subluxation of the sacrococcygeal joint when she fell squarely on her bottom. He thought that her injury was superimposed on a pre-existing hitherto completely asymptomatic spondylolisthesis, and an L5 pars defect in her back. He did not think it likely that she had a malalignment in her sacrococcygeal joint prior to the fall. He believed she was left with a 20 per cent permanent impairment of the back and a 5 per cent permanent loss of efficient use of both legs. The doctor examined the applicant again in September 2000 and at that time considered that her condition had worsened and that an appropriate assessment of the permanent impairment was 22.5 per cent, her legs remaining the same. 6. Dr Rushworth, for the respondent, formed quite a different view - as to the degree of permanent impairment, considering that it was 10 per cent. Dr Chapman, also for the respondent, was of a view that matched that of Dr Evans and the first of Dr Endrey-Walder in that he thought that 20 per cent was the appropriate level of impairment. 7. In my view, I should accept what is clearly the majority view of the doctors, that is that there is a 20 per cent permanent impairment of the applicant's back resulting from the injury, to put it more correctly that she has a permanent impairment being 20 per cent of a most extreme case. The more difficult question is what is the appropriate deduction under s 68A. There is no dispute that there should be such a deduction. Dr Chapman and Dr Rushworth, both are of the view that the appropriate deduction would be one-half, Dr Endrey-Walder, one-quarter, and Dr Evans considered that one-tenth would be a reasonable deduction. From the doctor's report I think that he reaches that conclusion on the evidence - rather than simply applying the statutory provision in s 68A(6). 8. In my view, the opinions of Dr Chapman and Dr Rushworth can be set to one side. The applicant is 33 years of age. I accept that she has never had any previous problem. There were symptoms in her back, she is quite a large lady and she suffered a quite dramatic impact. The notion that half of her continuing problems should be attributed to the pre-existing condition seems to me to be, in light of all the evidence, unacceptable, and I reject that view. I am then left with two opinions. I have not had the advantage of the doctors being cross-examined or giving oral evidence and it is tempting perhaps to rely upon the statute, but on the other hand to do so is I think at odds with the view of Dr Endrey-Walder which was tendered in the applicant's case. Doing the best I can, I think that the proper conclusion is that the respondent has established that there should be a deductable proportion of one-fifth. 9. The claim in respect of the legs is also not completely straightforward. The applicant had had a previous injury to the right knee which caused her some little continuing problem. She had also had an earlier injury to her left knee in respect of which she had recovered a 15 per cent permanent loss of use payment on an earlier occasion. Her evidence as to the restriction in walking that she had was, as Mr Sweeney put, somewhat ambivalent. Nonetheless, I was left with a clear picture that, particularly when the applicant was, as I accept she did and does from time to time, having a bad day in pain with her back, her walking was restricted. I accept that following the examination she had had with Dr Smith for the respondent's insurer in relation to her left knee, there had been a measure of improvement in that knee. 10. It is also to be borne in mind that one simply does not measure what a person is able to do by reference to one particular condition when they have more than one. It seems to me that the general effect of her evidence is that her knee gives her a problem from time to time, her back gives her a problem from time to time, and both of them interfere with the efficient use of her legs in respect of walking. The assessments made by both the doctors of 5 per cent are moderate. They seem to me to be in accordance with the evidence. 11. There is an issue as to whether or not the right leg is worse than the left in that the applicant has given evidence, which I accept, that from time to time she has a tingling sensation in the right leg - only very occasionally does she have that in the left leg and in the right leg when she has what she refers to as a bad back day she may also get pain in that leg. However, pain and sensation do not necessarily equate directly with loss of efficient use and it seems to me that applying the principles in Department of Public Works v Morrow (1997) 2 NSWCCR 8, the correct conclusion is that the applicant has lost 5 per cent of the efficient use of each leg at or above the knee. 12. Mr Egan did not argue other than that there should be the same deductable proportion, namely one-fifth. The awards I shall make cross the threshold under s 67(2) and the applicant is entitled to an award under s 67. The amount provided for a most extreme case is $50,000. Whilst there is no one example of a most extreme case the Court tends to think in terms of young quadriplegics or paraplegics or massive brain damage cases. This case is very far from that. 13. On the other hand the applicant is only 33 years of age. It is apparent that she has ongoing back pain and to some extent leg tingling and pain and that that will probably continue to be the situation. She gave what I thought was some most impressive evidence when asked by Mr Egan as to how she felt about this continuing pain in her back which she said she wished would stop and go away. On the evidence, it is not going to do that. It is clear that her activities are restricted. She is a very heavy lady. She is undergoing treatment, part of which is exercise, to reduce that problem and one can readily accept that she becomes anxious and upset because of the restriction imposed on her ability to exercise by the loss of which she has suffered as a result of the injury. 14. In my view a sum duly proportional to the sum provided for a most extreme case is $12,000 and I propose to make an award in that sum. I should mention that Dr Endrey-Walder did raise the possibility of an operation at some future time. None of the other doctors seem to think that that was likely. Mr Sweeney suggested that the appropriate way to deal with that possibility was to leave it as a matter which would justify a return to the Court for a re-assessment should surgery ever take place. Mr Egan did not in his address join issue with that approach to that particular matter and accordingly I have adopted it. I should record that I have made no allowance for the possibility at some time in the future of the applicant undergoing surgery to her spine. 15. For those shortly stated reasons I find: (a)That the applicant on 6 November 1998 suffered injury to her back arising out of and in the course of her employment with the respondent. (b)As a result of the said injury the applicant has suffered permanent impairment of the back being 20 per cent of a most extreme case with a deductable proportion of one-fifth. (c)As a result of the said injury the applicant has suffered 5 per cent permanent loss of the efficient use of each leg at or above the knee with the deductable proportion of one-fifth. 16. I make an award for the applicant: (a)Under s 66 in the sum of $9,600 in respect of permanent impairment of the back after allowing for the deductable proportion. (b)In the sum of $3,000 in respect of 5 per cent permanent loss of the efficient use of the right leg at or above the knee after allowing for the deductable proportion. (c)In the sum of $3,000 in respect of 5 per cent permanent loss of the efficient use of the left leg at or above the knee after allowing for the deductable proportion. (d)Under s 67 in the sum of $12,000. (e)The respondent is to pay the applicant's costs. Certify a second conference at $150. Mr C Egan instructed by .Nevill & Edwards appeared for the applicant Mr P Sweeny instructed by P W Turk & Associates 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.