Compensation Court of New South Wales CITATION : Grzechnik v Algraz. [2001] NSWCC 58 PARTIES : Alan Grzechnik Algraz Pty Ltd MATTER NUMBER(S) : 35087 of 2000 JUDGMENT OF: Burke J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 27 February 2001 DATE OF JUDGMENT: 02/27/2001 FOR APPLICANT: Mr D Talintyre instructed by Beilby Poulden Costello LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J Martin instructed by William K Chambers JUDGMENT: 1. The applicant seeks compensation pursuant to s 66 and s 67. The s 66 in respect of 20 per cent impairment of the back and a 4 per cent permanent loss of efficient use of each leg at or above the knee. S 67 after some re-consideration reduced from the original claim of 100 per cent to 30 per cent. 2. The applicant worked for his own company, he being the only employee. He has done that since about 1993/1994 I think it is. He has been an electrician, worked as an electrician for some 20 years, I gather from most of the doctors, but I do not think it is in evidence as a fact per se - but I would accept that that is so. He now being 47, I would think it could possibly be even longer, but that is by the board. The applicant makes no specific complaints - he might have had the odd back ache here and there. He does recall there was an event of some occasion in the indefinite past when he did have a bit of back problem temporarily, but by and large he managed all right with a working back. 3. Then on 6 March 1997 he had one of these electrical jobs where you spend your time under the floor. You did not have to crawl on your belly but it was certainly restricted and he is crouching and working overhead for the best part of the day. While it may not have been comfortable, he certainly had no great disability or discomfort doing it. He went home that night with slight back pain - not enough to worry. He went to sleep but when he went to get out of bed the next morning he could not. He really had marked back pain. He obviously not being the greatest worrier, went to a physiotherapist who very sensibly said "I think you better see a doctor first". So he went up and saw Dr Norrie, referred him off for a CT which was done the following day, 7 March; a slight bulge in L4/5, reasonably marked bulge at L5-S1 broadly based, some marked osteoarthritis at the L4/5 facet joint, enough changes to justify having a pain in the back. He was off work for a couple of weeks, has resumed since, continues to work, said, "I've got to be a bit selective in the jobs I'll take", given a bit of care. 4. Basically, the problem seems to be - has pain in the morning right enough but it leaves off once he tends to mobilise a bit and provided he does not do anything that is too drastic. There is almost universal agreement that he has a back problem. The degree of that is always a bit problematical. Dr O'Sullivan, chronologically, is the first doctor on 6 August 1998, 15 months or so after the event. His examination is pretty normal in all the range of movements et cetera. Notwithstanding Dr O'Sullivan seeing him at the GIO assesses a 10 per cent permanent impairment as a result of injury. He does not do any of these nice dissections about Sch 6 Pt 6 cl 6 or s 68A. He just says: Well look, I know intuitively how much of the loss is due to injury. You figure out the rest yourself. 5. He was seen by Richard Evans on 28 July 1999 and a range of movements is markedly decreased. Rotation was all right but lateral bending, flexion, extension all a bit limited and there was a bit of flattening of the lumbar lordosis. Dr Evans diagnosed damage and degenerative changes. The L4/5, L5-S1, principally the L5-S1, was the source of his problem, he thought. He assessed a 20 per cent impairment of the back, 4 per cent loss of each leg which is the subject of the claim. He did not go too much for the Sch 6 Pt 6 cl 6 and s 68A either. Of that loss he said 20 per cent was due to the nature and conditions of his employment from 1993, from whenever he formed his company and started to work for it. The work that he had done for the prior 12 or whatever years it was obviously - did not contribute and the balance was just the incident. That is an analysis that I do not think could possibly be acceptable. 6. He was seen by Dr Hession for the respondent on 29 November 1999, normal lordosis, fairly normal range of movements; in fact, normal to all intents and purposes. He diagnosed a musculoligamentous strain aggravating underlying degenerative spondylosis. He certainly thought the work that he did on 6 March 1997 was a substantial contributing factor to the man's problem. Being after the 12 January I guess that counted, thought the condition was stable and had been for some time, assessed a 5 per cent impairment of the back with a 50-50 due to the incident and due to underlying changes. He was seen by Dr J K Evans, also for the respondent, on 8 August 2000. He does not really come to any specific diagnosis as such but he certainly agrees that work has contributed to his current condition. He assesses the loss at 5 per cent as far as the back is concerned and throws in 5 per cent of the left leg and he makes a similar allocation; 50-50 between the effects of work and injury and other intercurrent causes. 7. He was seen again by Richard Evans on 17 August and he still finds - in fact, he finds much as he found before; bit of reduction in range of movements, still thought the diagnosis was the same, thought the losses had remained static and that is where we end up. Nobody has addressed the 666 issue, it has all been compendiously incorporated in the s 68A deductible proportion and that is probably not a bad way to do it. Prima facie, when Mr Martin was addressing for the respondent, I thought it sounded like the standard s 68A(6) 10 per cent if it is too hard otherwise. There are a number of doctors who assess the contribution of the extraneous factors as considerably higher. There is no doubt that when he had that CT the following day there was discernible low lumbar pathology both by way of spondylosis, arthritis and disc bulging, particularly at L5-S1, less so at L4/5. 8. While one would well accept that a day of working in such an awkward position et cetera could well accentuate particularly the bulge at L5-S1 it seems difficult to conceive that it was the sole factor in producing that. In other words, I think there was a relevant underlying condition or abnormality antedating 6 March 1997. As has been submitted for the applicant, it is probably all due to the nature and conditions of his work from 1993, whenever he started up the respondent. I think that is a bit difficult to logically accept. If you have been doing the same sort of work for 20 years the last 10 or a bit less et cetera for this employer to say that it is only that that contributes, not the other and of course almost half the time antedates 30 June 1987 when Sch 666 says: Any loss resulting from injury prior to 30 June 1987 - includes the nature and conditions of general employment is not to be taken into account. 9. While I accept that there is substantial trauma - and often that is the discriminating factor - the man with fairly marked radiological changes who has not done much more than a postural change tends to think, "Well, at best it's a 50-50 split", but I accept that those hours of work in a very awkward and difficult position is a fairly substantial trauma to a back, particularly if it has an underlying condition, so sort of amalgamating, as the parties have, the Sch 6 and s 68A deductions I would think the deductible proportion is 33 and 1/3 per cent. That is actually higher than was submitted by the respondent though the respondent's evidence of course supports an even higher assessment but by and large I think it tends to reflect the long period of work prior to 1987 and the existing condition but allowing for the work that he did for the respondent over those years up to and including 6 March 1997. 10. Coming to the degree of losses, on that I think Dr Richard Evans probably got it right. The applicant has a real back problem. He has had a couple of games of tennis since and he was fairly keen on that before and in effect he says it is not worth the hassle. Squash of course is a bit rough for him and golf is no good any more, jogging is not really. His basic activity now apart from work is walking so he has given up a few of his - in fact, most of his other interest outlets and activities. So I would think that the assessment of Dr Richard Evans reflects (a) the applicant's complaints; (b) the way in which his back functions in the types of activities that he used to do before but now forgoes. Therefore I think he has 20 per cent permanent impairment of the back. 11. On the legs I was a bit doubtful originally but there is no doubt, having given up the tennis and/or the squash and/or the jogging and/or the golf it does suggest it is given up because of back pain. If you cannot do those things because of back pain it implies necessarily a restriction on the use of your legs. So I think the applicant probably has a permanent loss of efficient use of each leg. Indeed, since he only claims 4 per cent I do not have much problem in accepting that he has a 4 per cent permanent loss of efficient use of each leg at or above the knee. 12. If I have done the mathematics correctly the net sum is past the threshold of s 67(2), $10,000, reasonably comfortably - pain and suffering, the severity of the losses. When you get down to the severity of the losses - it is the compensible loss not those that do not result from injury. If you do the fancy mathematics I think it is 13-something per cent and 2.7 per cent of the legs or something of that order, not great, obviously. The degree of physical pain: moderate, not great. You see many other workers et cetera who are much more affected by back injuries than Mr Grzechnik though he is a fairly stoical gentleman not given to complaining about his problems but by and large I think he has moderate physical pain. I think, as he said, he is not real happy that he cannot do all the things he used to do before - that is a bit of distress. Duration: I think what is he now, 44. He was round about 40 at the time of this injury. The duration is moderate taking a guide through those sort of indicators I would think that relative to a most extreme case of pain and suffering the applicant's represents 12.5 per cent. 13. For those reasons I find: probably on and before 6 March 1997 the applicant received injury to his back; 2. As a result thereof the applicant suffers 20 per cent permanent impairment of the back and 4 per cent permanent loss of efficient use of each leg at or above the knee. 3. The deductible proportion in terms of s 68A and including relevant elements under Sch 6 Pt 6 cl 6 is 33 and 1/3 per cent. 4. As a result of such losses the applicant has, does, will experience pain and suffering equivalent to 12 and 1/2 per cent of a most extreme case. 14. I hereby order an award that the respondent pay the applicant: 1. A lump-sum payment pursuant to s 66 of $8,000 in respect of the residual 13.33 per cent permanent impairment of the back; 2 A lump-sum payment pursuant to s 66 of $2,000 in respect of the residual 2.7 per cent - 2.67 per cent, I guess, if you want to be technical - of the left leg at or above the knee and a lump-sum payment pursuant to s 66 of a similar amount, $2,000, in respect of the same loss of the right leg at or above the knee and 5. A lump-sum payment pursuant to s 67 of $6,250 in respect of pain and suffering resulting from such losses; 6. Costs. Mr D Talintyre instructed by Beilby Poulden Costello appeared for the applicant. Mr J Martin instructed by William K Chambers 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.