Vuong v Waverley Council [2001] NSWCC 115

Compensation Court of New South Wales

CITATION : Vuong v Waverley Council [2001] NSWCC 115 PARTIES : Yuen Sen Vuong Waverley Council MATTER NUMBER(S) : 55142 of 1999 JUDGMENT OF: Hughes J at 1 CATCHWORDS: Proceedings to Obtain Compensation - Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 03/07/00, 05/02/01, 08/02/01 DATE OF JUDGMENT: 02/08/2001

FOR APPLICANT: Mr P M Barahm instucted by Somerville and Co. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr H N Kelly instructed by Sparke Helmore.

JUDGMENT: 1. In this matter, the applicant suffered two motor vehicle accidents. The occurrence of those accidents were not disputed, or not seriously disputed in any event, and they occurred on 2 May 1997 and 29 July 1998. The applicant was coming home from work from her employment with the respondent, the Waverley Council. 2. The applicant gave her evidence in a manner which I find to be truthful; she was hesitant and had an interpreter present who helped her with the more difficult translations. Mrs Vuong freely admitted that her memory was not the best. I accept however, as I said, that she was a witness of truth. I accept that the complaints of the pain she had and that she did not exaggerate her symptoms and was a genuine witness. 3. The question of her leg troubled me most. She gave no evidence in-chief of it and was not cross-examined on it. It has been mentioned in most of the doctors' reports. There is radiological evidence from an MRI scan from both contained in Dr Chapman and Dr Carr's reports of impingement from her back on the thecal sac. Since this is almost a classic pathway of pain associated in the leg, I find that she does have from time to time trouble with her leg, even though it may only be a small amount. There is no doctor directly saying that the sciatic nerve causes the pain. However, I am going to infer it from both the complaints of pain and the radiological evidence. 4. Dr Scarf says under "Investigations" in his report of 31 August 2000: An MRI of the lumbar spine showed a small posterior lateral left-sided protrusion at L3/4 with an annular tear. At L4/5 there was minor bulging. At L5/6 there was a small posterior lateral right-sided protrusion with a slight enfacement of the thecal sac. Dr Oates, again for the respondent, says even though he had not the benefit of the MRI, the MRI being taken in June 2000 on 31 May 2000, says: At the time of examination on 13.12.99, Mrs Vuong made no complaints regarding her right leg when she was asked specifically if she had any problems........... her back and headache. I did not feel that there was any genuine physiological abnormality of the right leg on examination such as reflex changes, wasting or genuine weakness and sensory loss. Her complaint of right leg pain on heel and toe walking could be explained on the basis of referred pain from the back and this has been included in the impairment for the back. Dr Champion for the applicant in his report of 27 June 2000, after viewing the MRI scan reported by Dr Dunn on 6 June 2000, says: The main pathology identified by the MRI scan was a small (paracentral to the left) disc protrusion L3/4, with a small annular tear impacting on thecal sac. Mild annular bulging at L4/5, small wide posterior paracentral disc protrusion at L5-S1 impacting on the thecal sac. I am satisfied therefore, as I have said, that there is an injury to the leg as a result of the injury to the applicant's back. 5. It was submitted to me that the applicant had had no treating specialist. These medical reports that I allude to are of a medico-legal matter. There was no explanation as to why a specialist was not referred to by the applicant. I accept her evidence also that certain movements of her left and right arm affect her neck and cause her not to be able to use her arms efficiently as she otherwise would have but for the neck pain. This is particularly highlighted, and the applicant gave evidence that she could not do swimming overarm, but had to use breast stroke because the lifting of her arms caused her pain in her neck. 6. As to the proportions - and this is at the request of the benefit - I find that Dr Matheson's assessment agrees with mine that the injury to her neck and arm is 60 per cent attributable to the first motor vehicle accident and 40 per cent for the second motor vehicle accident and for the whole of her back and her legs, the second motor vehicle accident. She suffered no economic incapacity immediately before the second accident and any s 40 claim should be borne by insurer of the second motor vehicle accident. 7. Moving then to the assessments, Dr Wallace on 30 July 1999 finds a 12 per cent permanent impairment of the applicant's back, a 15 per cent permanent impairment of the applicant's neck, an 8 per cent loss of use of the applicant's left arm above the elbow. On 16 May 2000, he found a similar amount for the back 12 per cent, a similar amount for the neck, and again, a similar amount for the left arm above the elbow. 8. Dr Champion on 18 May 2000 finds a 22.50 per cent permanent impairment of the applicant's back, a 25 per cent permanent impairment of the applicant's neck, a 15 per cent loss of use of the applicant's right leg above the knee, a 7.50 per cent loss of use of the applicant's right arm above the elbow and a 7.5 per cent loss of use of the applicant's left arm above the elbow. 9. Dr Oates on 13 December 1999 finds a 10 per cent permanent impairment of the back, a 10 per cent permanent impairment of the neck. 10. Dr Scarf on 6 April 2000 finds a 15 per cent permanent impairment of the back and a 15 per cent impairment of the neck, and a 15 per cent permanent impairment of the left arm above the elbow. On 22 June 2000, this is post the MRI scan I believe, he finds an additional 5 per cent loss of use of the right leg above the knee. Then on 31 August 2000, when Dr Scarf has had the benefit of viewing the results of the MRI, he finds a 15 per cent permanent impairment of the back, 15 per cent permanent impairment of the neck, a 5 per cent loss of use of the right leg and no other impairments. 11. I am more persuaded by the assessments of those doctors who have seen the MRI of the lumbar spine and noted the pathology shown thereto. The MRI of the lumbar spine and the cervical spine were taken by Dr Gunn on 6 June 2000. 12. Dr Scarf confirmed after looking at the MRI his assessments he made earlier excepting for the left arm above. 13. Dr Champion and Dr Matheson also had the benefit of viewing the MRI. Dr Matheson's report seems to be far below that of the other doctors, in that he makes no assessments, or makes assessments of nil. 14. Dr Chapman's reports also seem to be higher than the other doctors, perhaps a little bit too high. 15. On the whole, I accept that the applicant has the injuries she seeks to be compensated for under s 66 and including the right leg which, as I said earlier, which she did not give any direct evidence about. Therefore, I am going to find that the applicant has a 15 per cent permanent impairment of her back, a 5 per cent loss of efficient use of the right leg at or above the knee, a 15 per cent impairment of her neck, a small impairment of the left and right arms of 7.5 per cent. 16. Turning to s 68, there is some evidence of degenerative changes and I am going to deduct 10 per cent pursuant to s 68A for her neck and back. As to s 40, I am satisfied that the applicant had an economic incapacity. She has applied for many jobs. I believe that there are many jobs she can do. Mrs Vuong has a commendable work history and I am satisfied doing the best I can that the applicant could earn somewhere in the region of $350 a week. 17. I find that the comparable persons in both the respondent and the applicant's wages schedule, the respondent says $548.34 a week, and the applicant says $550. There is not much difference in both parties' assessment of the comparables. I will take the figure of $550. I find that she is capable of earning as I said at some suitable occupation as a waitress working in retail or a console operator. She applied for a job in Copper Art in one of the shopping centres, somewhere in the region of $350 a week. 18. There will be an award for the applicant pursuant to s 40 of the mathematical difference between those two figures, that is to say, $200 a week from the period of 17 July to date and continuing. 19. There will be no other deductions for me to exercise any discretion . Therefore I hereby order and award: 20. That the respondent pay the applicant $200 per week from 17 July 2000 pursuant to s 40; 21. That the respondent pay the applicant as lump sum compensation under s 66 $8,100 for 15 per cent permanent impairment of the applicant's back, less 10 per cent deduction pursuant to s 68A; 22. $5,400 in respect of 15 per cent permanent impairment of the applicant's neck, less 10 per cent deduction pursuant to s 68A; 23. $3,750 in respect of 5 per cent loss of use of the applicant's right leg at or above the knee; 24. $6,000 in respect of 7.5 per cent loss of use of the applicant's right arm at or above the elbow. The evidence was that the applicant is right arm dominant and 25. $5,625 in respect of 7.5 per cent loss of use of the applicant's left arm at or above the elbow. 26. The respondent is to pay the applicant as lump sum compensation under s 67, $7,500 in respect of pain and suffering, being 15 per cent of a most extreme case. 27. The respondent is to pay the applicant's s 60 expenses. 28. The respondent is to pay the applicant's costs. 29. I certify a second conference in the sum of $250. Mr Hennessey instructed by Somerville &Co appeared for the applicant. Mr Miller instructed by Sparke Helmore appeared for the respondent.