Bonora v E & E Refrigeration P/L [2001] NSWCC 78

Compensation Court of New South Wales

CITATION : Bonora v E & E Refrigeration P/L [2001] NSWCC 78 PARTIES : Edgardo Bonora E & E Refrigeration Pty Ltd MATTER NUMBER(S) : 33164 of 2000 JUDGMENT OF: Truss J CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 6 April 2001 EX TEMPORE JUDGMENT DATE : 04/06/2001

FOR APPLICANT:Mr J Lichtenberger instructed by Luis Porto LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr L Morgan instructed by Moray and Agnew

JUDGMENT: 1. The applicant claims lump sum compensation under s 66 and s 67 for permanent loss of the efficient use of the left non-dominant arm. The principal issues in the case were quantification of his entitlement, including the operation of s 68A, and whether he is entitled to pain and suffering under s 67. 2. The applicant was born on 16 August 1948 and since 1991 has been the principal of the respondent. Before he injured his right shoulder in March 1995 the respondent's business had been installation and servicing of commercial refrigeration such as cool rooms. There was no issue about the fact that this was physically demanding work which required extensive use of both arms including a lot of lifting and working with his arms above shoulder height. 3. In March 1995 the applicant suffered a significant injury to the right shoulder when a heavy motor which was being manhandled through a manhole suddenly jerked. At a conciliation on 9 June 1999 the respondent agreed to pay lump sum compensation under s 66 for a 17 per cent permanent loss of use of the right arm as well as $7500 for pain and suffering which represents a proportion to a most extreme case of 15:100. 4. The applicant gave evidence that prior to 1998 his left shoulder had been asymptomatic but that he then started to suffer pain and restriction of movement to the point that by 1999 he was unable to raise his left arm which by then had become worse than his right in terms of symptoms. Prior to this he had ceased the installation work because of the problems with his right shoulder and then did servicing and handyman work Pfizer apart from a short period when he operated a takeaway food business which was unsuccessful. He gave evidence that as he continued to do the servicing and maintenance work he suffered increased problems with his left shoulder and there is no issue about the fact that at the time when his right shoulder claim was conciliated in the middle of 1999 he was suffering significant problems with the left shoulder for which he was being treated by Dr Bokor who had originally been treating him for the right shoulder. 5. On 19 August 1999 the applicant underwent an MRI scan which revealed inter alia a full thickness tear of the entire supraspinatus. On 11 May 2000 Dr Bokor performed an arthroscopic rotator cuff repair and acromioplasty. The surgery does not appear to have been particularly successful. The applicant was off work altogether for about six weeks. He then resumed the work with Pfizer and had assistance for about two months. He continues to perform that work but as I understand his evidence he avoids activities which impose a strain on the shoulder. 6. I have no hesitation accepting the applicant as a witness of truth. All of the doctors accept his complaints as genuine and there was no challenge to his credit. He is clearly a man who is well-motivated. The evidence establishes overwhelmingly and I am satisfied that the applicant has sustained a permanent loss of the efficient use of the left arm as a consequence of the nature of the work he performed which included in particular after 1995 favouring his right arm after it had become injured. 7. I am also satisfied that the applicant's shoulder is restricted in abduction and rotation and I accept his evidence that the level of pain he suffers depends upon the activities he performs during the day. In particular any activity involving the arm above shoulder height or lifting with the arm extended causes him increased pain. Although he has been prescribed anti-inflammatory medication he tries to minimise its use as it upsets his stomach. The applicant gave evidence that he has difficult gardening, in particular digging and moving pots and he is now able to manage to drive a car as he purchased one with automatic transmission. 8. The Court does not have the benefit of an assessment from Dr Bokor the treating specialist and the applicant relies upon reports from Dr Weisz who first examined him in August 1999 before the surgery and gave an assessment of 30 per cent before allowing for s 68A. He re-examined the applicant on 7 February 2001 post surgery and adhered to the previous assessment. Dr Bodel examined the applicant on the respondent's behalf in March and December 1999 again before surgery and gave an assessment of 20 per cent with the possibility of improvement on the first occasion and 15 per cent on the second when he recommended subacromial decompression and repair. Dr Wilding who examined the applicant at the respondent's request on 19 March 2001 gave an assessment of 20 per cent. Having regard to these assessments and to the totality of the evidence and before considering s 68A I consider the proper finding to be 25 per cent. 9. As to s 68A, according to Dr Weisz the MRI revealed tendonitis and degeneration of the labrum of the shoulder as well as tendonitis of the biceps tendon and degeneration of the bony surface. In the operation report Dr Bokor reported that there was minor fraying of the superior labrum and obvious evidence of scuffing and chaffing of the subacromial bursa. Dr Weisz considered that there should be a deduction of 10 per cent due to the evidence of pre-existing degenerative changes. However Dr Wilding attributes all of the loss to the applicant's work. As to s 68A the respondent bears the onus. In view of the multitude of findings in relation to the shoulder none of the doctors have really properly addressed the issue which arises under s 68A. 10. The opinion of Dr Weisz to which I have referred is expressed on the basis of the MRI findings and before the surgery and I infer that his second report was prepared without the benefit of the operative findings. Whilst I am satisfied that there were pre-existing degenerative changes present in the shoulder the principal damage was the rotator cuff tear and on the evidence before me, I am not persuaded that any part of the loss results from any pre-existing condition or abnormality. Accordingly, there is to be no deduction pursuant to s 68A. 11. Prima facie my finding entitles the applicant to an award under s 67 for pain and suffering. I have referred already to the consent award under s 67 in the applicant's favour entered in June 1999 in respect of the right arm. The respondent submitted that because the applicant was suffering from significant problems in the left shoulder at that time and that there was ample evidence to suggest that this was due at least in part to the favouring of the right shoulder the consent award for pain and suffering at that time also included pain and suffering in respect of the left shoulder. This submission overlooks the effect of s 67(1A) which limits awards under that section to pain and suffering for the loss resulting from the injury, not pain and suffering resulting from the injury itself. At that time the applicant's only quantifiable loss and in fact the loss for which he was compensated was in respect of the right arm. I reject the respondent's submission. 12. As to the applicant's entitlement under s 67 I take into account the left shoulder pain which he has suffered since 1998 including in particular the pain associated with the surgery and the fact that the medical evidence suggests that in the future he is likely to continue to suffer pain in his shoulder particularly when he engages in those daily activities of which he gave evidence which cause an increase in symptoms. I take into account his age, now 52 and the lengthy period of pain and suffering ahead of him. 13. I have regard for the need for medication although the applicant stated that this was in respect of both shoulders and also the interference with sleep due to pain and again the applicant said it depended upon which of the injured shoulders he happens to be sleeping on. It is abundantly clear that there has been a significant interference with the applicant's daily activities as a consequence of the problems with both shoulders. Accordingly in relation to these matters the Court needs to be careful to allow only for those which result from the loss in respect of the left shoulder. 14. It was submitted on behalf of the applicant that the fact that the right shoulder was also injured should be reflected in a greater award under s 67 than would otherwise be appropriate. I do not accept that submission. The Court is required only to have regard to pain and suffering resulting from the particular loss for which he has been awarded and the applicant has already been compensated for pain and suffering in respect of the right arm. 15. There was no evidence of any specific distress or anxiety. In fact the applicant presented as a very uncomplaining individual. Taking all of these matters into account and determining where the applicant's case rests proportionate to a most extreme case having regard to the degree and duration of pain and suffering and the severity of the loss for which I have awarded him, in my view the appropriate proportion is 1:5. I therefore award him $10000 for pain and suffering. 16. It was submitted by the respondent that the applicant was not entitled to any costs as these present claims should also have been determined at the time of the conciliation in relation to the right arm in June 1999. As I have already stated there is no issue about the fact that the applicant was suffering significant symptoms with his left arm at that time. However at that point no claim had been duly made in relation to the left arm and furthermore it would have been premature to do so in view of the fact that at that time he had not undergone the investigatory MRI let alone the subsequent surgery. For these reasons I reject that submission. The findings are: 1. The applicant suffered injury to his left shoulder by virtue of the nature and conditions of his employment with the respondent between March 1995 and 6 March 2000. 2. As a result he has suffered permanent loss of the efficient use of the left (non-dominant) arm at or above the elbow equivalent to 25 per cent of the total loss thereof. 3. As a result of the said loss, the applicant has does and will continue to experience pain and suffering which represents in proportion to a most extreme case of 1:5. I make the following awards and orders in the applicant's favour: 4. Award for lump sum compensation pursuant to s 66 for permanent loss of the efficient use of the left arm at or above the elbow for $18750. 5. Award pursuant to s 67 for $10000. 6. I order the respondent to pay the applicant's costs. Mr J H Lichtenberger instructed by Luis Porto appeared for the applicant Mr L Morgan instructed by Moray and Agnew appeared for the respondent