Compensation Court of New South Wales CITATION : Costa v P B Foods Limited [2001] NSWCC 159 PARTIES : Diane M Costa P B Foods Limited MATTER NUMBER(S) : 49535 of 2000 JUDGMENT OF: Hogg C at 1 CATCHWORDS: Assessment of Compensation :- Section 68A LEGISLATION CITED: CASES CITED: DATES OF HEARING: 17th October 2001 EX TEMPORE JUDGMENT DATE : 10/17/2001 FOR APPLICANT: Mr M Bleasel instructed by Bell & Partners Solicitors appeared for the applicant LEGAL REPRESENTATIVES: RESPONDENT: Mr P O'Rourke instructed by William K Chambers appeared for the respondent JUDGMENT: 1. The worker in these proceedings is presently 32 years of age and she became employed by the respondent in May 1998 in the capacity of a sales manager. On 14 October 1998 the applicant was involved in a motor vehicle collision and that collision took place when she was driving on the central coast to a work conference. It was a rear-end collision. The applicant's head hit the steering wheel. She was unaware as to whether she lost consciousness but certainly was hazy and dazy for a couple of minutes but nevertheless, the motor vehicle was able to be driven and after a short period of time the worker in fact continued on her way to the conference and attended the work conference. 2. When she got there she spoke to a couple of her superiors within the respondent's organisation, Mr Boling and Mr Wagner, and advised them of the events that took place as she was driving to the conference. The applicant gives evidence that the impression that she gleaned from the responses of her two superiors was that for all intents and purposes - that she should sweep the incident under the carpet, to use the vernacular, and there does not seem to be any evidence to the contrary on this aspect even though it is not of particular importance to my considerations in the matter. She did not get any medical treatment whilst she was at the conference. Indeed, she says she saw a doctor when she got back to Sydney. She saw her general practitioner Dr Chambers. It appears as though that attendance took place a few weeks after the accident. 3. I am satisfied however that the applicant was suffering some pain during this period of time to the body parts effected in the motor vehicle accident because she gives evidence that she was taking some Panadeine during this time. Thereafter the applicant entered into a regime of attendances upon Dr Chambers as well as partaking in courses of physiotherapy, manipulative therapy, massage therapy, some chiropractry and some acupuncture. The applicant was experiencing throughout this time pain in the neck with some referral into the right arm and it is of relevance to note at this point that at a conciliation conference the applicant settled her entitlements in relation to neck impairment in the sum of $6,000 being 15 per cent permanent impairment of the neck and $4,000 being 5 per cent permanent loss of efficient use of the right dominant arm at or above the elbow. 4. This leaves the Court, as presently constituted, to determine the issue of the assessment of the applicant's back impairment and any compensation that should be awarded pursuant to s 66 in relation to that body part as well as to determine the overall entitlement that the applicant has pursuant to s 67 for all losses for which she has and/or will be compensated. In short form, the applicant says that her neck is constantly very painful, sometimes it is worse than others. She has periods of acute attacks of pain each couple of months. This is evidence that she mirrors in relation to her complaints concerning her lower back. Indeed, the pain in her lower back is something that she experiences every day. 5. The level of pain varies depending upon activity. Activities which cause pain include driving for extended periods, sitting for more than 30 minutes, social pastimes such as tenpin bowling and certain sexual pursuits. She gave this evidence: "Anything that's not walking or sleeping aggravates the pain". Indeed, consistent with that statement in her evidence was mention that she made later during cross-examination that she had given up a number of her pre-injury sporting pursuits and had replaced them with walking. She presently is having an episode of acute lower back pain and that has been effecting her for the past 10 days or so. She experiences these types of episodes each couple of months and I reiterate that that is a consistent and similar reporting of symptoms to those she makes to her neck pain. There are other episodes where she might experience an increase of back pain for a day or so but generally it is a constant pain varying in intensity depending upon activity. 6. To counter this pain the applicant takes medication. She takes Panadeine Forte, Brufen, Nurofen and Prothiaden. Brufen she takes each couple of days and the Panadeine Forte, for example, has been taken once per day for the past nine or 10 days during the episode of acute pain that she is presently experiencing. 7. I have previously mentioned the pre-injury sporting pursuits of the applicant being baseball, bowling and playing in a band. I am not sure how much importance I should place on the fact that she no longer plays baseball when assessing the effects of these injuries because in fact she only played one season in 1996, it appears, and for all intents and purposes had probably given up the sport before the incident which is the subject of this claim. However, she was a league tenpin bowler and she has not done that since the accident. She says that she does not play any sports now and gave this evidence, "I don't want to bend over". The inference that I take from all of that evidence is that whilst not too much importance should be placed on the loss of her baseball career it is a fair assumption to make that the applicant was involved in a reasonably sporting and active life prior to these injuries and as a result of these injuries that sporting life has been to some extent, in any event, curtailed. 8. Another interest that she had was playing in a band. It had been formed in April 1998, originally playing some social gigs and later playing a couple of shows per week for, presumably, pay. She had been involved in bands prior to the formation of the band that she was in at the time of the accident in October 1998. She played both guitar and keyboards. She says now that she cannot be involved in the band in an active way because playing a guitar and standing for more than 15 minutes causes pain and similar complaints are made in relation to playing the keyboards for periods over 15 minutes. She was cross-examined in relation to this aspect of her evidence and Mr O'Rourke put to the applicant that perhaps she was able to play in a seated position and the like but the applicant, consistent with the earlier evidence that she gave, said that also sitting for any extended periods caused her difficulties. 9. I tend to accept this applicant's evidence as being the evidence of a truthful witness. I do not think she embellished the way she gave evidence; on the contrary, I thought she attempted as best she could to be straightforward and frank with the Court. The other aspect of the evidence that she gave in relation to why she no longer played in a band was the fact that she was not able to do what could be colloquially termed "roadie's work", loading and unloading equipment and the like prior to and after the completion of shows. That type of evidence will be seen to be consistent with the evidence of the applicant's doctors in this case who talk about limitations in her ability to bend and lift consistently or bend and lift heavy things because of the effects of the back injury. 10. She, on the household front, now employs a cleaner and says that the rest of the work around the house is performed 90 per cent by her flatmate. There is some limitation in the applicant's back in that she gives evidence that she becomes sufficiently stiff during the night to be unable to get out of bed in the mornings and that is happening recently during this episode of acute pain. The general stiffness that she experiences causes problems with her mobility. In recent times she has left the employment of the respondent and commenced her own marketing business which requires her to be at the home office 20 per cent of the time and out and about seeing clients for 80 per cent of the time. She is able to drive to those clients. She is able to do whatever is required of her at home on the computer but she is limited to the amount of time that she can sit at the computer without pain and interestingly one of the more important parts of her evidence was given when she, at the end of one of her answers in relation to her ability to perform her work, said that she had not been able to get out and about for the last couple of days. 11. The inference that I took from that was that there were times when she would have to adjust her working hours so as to be able to work when she was capable and other times when, as a result of pain and the like, she would not be able to. Such is the joy of running your own business. It is nothing that the Court can see complaint in, that someone has chosen a lifestyle by way of the work they choose to perform, that allows them the flexibility to be able to work in their own business when they are able but to have some time off when they are experiencing pain. All this is reasonable for someone who does have some ongoing problems with their back. 12. It has been three years since the accident. The primary submission of the respondent was that, based on their medical evidence, and the view that the respondent's doctors take as to the nature of the injury, (that is, soft-tissue musculoligamentous strain) it is too early to assess any permanent impairment and indeed to take the respondent's submission to its fullest that perhaps by virtue of the nature of the injury there could be expected to be no permanent impairment even though the respondent would say it is too early to assess that as well. I will turn to the medical opinions in due course and it is fair to say that there is a fairly different view taken by the doctors that see the applicant in the interests of the respondent and those that see her as part of the preparation of her own case. 13. I should say I am not going to go into the specific objective evidence dealing with the neck and right arm so far as x-ray evidence and the like. The parties have already agreed as to the level of impairment in the neck and the loss of use of the right arm. I have already indicated that I accept the evidence of the worker as being the evidence of a truthful witness and I have already detailed her complaints in relation to her neck, in particular for the purposes of any ongoing assessment that I need to make in relation to s 67. 14. That having been said, I turn to the report of Dr Stevenson of 14 November 2000 and Dr Stevenson says in his opinion: The history is consistent with some soft-tissue strain occurring to the neck, back and right shoulder region as a result of the motor vehicle accident in October 1998. He then, later in that same opinion, says: There were no clinical findings of permanent impairment of the musculoskeletal system when she attended; that is, there were no findings of permanent impairment of the neck, back or upper limbs as a result of the motor vehicle accident in 1998. 15. So much for Dr Stevenson's report because the respondent later settled this woman's claim for neck impairment in the sum of $6,000 representing 15 per cent neck impairment. So whilst perhaps it is not of particular relevance to my assessment of the back claim it is interesting that Dr Stevenson found no permanent impairment in any of the relevant body parts and yet the respondent later agreed to a settlement based on 15 per cent impairment of the neck and some loss of use of the arm. For present purposes however the bottom line with Dr Stevenson is that he does not think there is a permanent impairment of the back. 16. Dr Bodel, in his report of 15 May 2000, talked about the applicant suffering a soft-tissue injury to the back and he says: Clinically, I suspect that her soft-tissue injury has improved over time but she has a vulnerable neck and back which is easily aggravated. 17. Dr Bodel, in a subsequent report of 19 May 2000, does say that the: The patient has no clinical evidence of any permanent impairment of function in the back. Any temporary soft-tissue injury to the back has now recovered. 18. That is inconsistent with the applicant's evidence and I prefer the applicant's evidence on that point. The applicant clearly has ongoing problems with her back and I accept that to be the case. So it is interesting that Dr Bodel, as I have earlier quoted, suspected - and I emphasise the word "suspected" - that her soft-tissue injury had improved over time and it was on the basis of that suspicion, one would assume, that he eventually opines that any temporary soft-tissue injury to the back had recovered. These diagnoses of soft-tissue injury have to be considered in the context of all of the evidence and a very important part of that evidence is the fact that there was an MRI taken of the applicant's lumbar spine and the MRI disclosed that there was a minimal diffuse bulging of the L5-S1 disc. 19. How that is described by Dr Deveridge and later by Dr Wallace is that the MRI of the lumbar spine showed mild disc degeneration at L5-S1 where there is a minimal diffuse bulge of the annulus fibrosis. However, there was no annular tear or disc protrusion. The other levels studied were normal. That led Dr Deveridge to say this: That the applicant suffered musculoligamentous injury to the lumbar spine with possible involvement of the L5-S1 disc and that as a result of that she has ongoing low back pain and stiffness - 20. Dr Wallace says that the applicant suffered musculoligamentous strain to her lumbar spine and considered that she would not be fit for activities requiring repetitive bending and twisting movements in the cervical or lumbar spine, sitting or standing in one position for prolonged periods, repetitive lifting above five kilograms, working in confined spaces, prolonged driving of a motor vehicle, repetitive bending or twisting movements with the right arm, repetitive elevation of her right arm above shoulder level, repetitive fine motor movements of her right arm, activities requiring normal grip strength of the right hand, prolonged periods of reading, writing and typing. 21. Whilst a lot of those activities relate to the applicant's arm and neck there is clearly reference in there to the limitations that the applicant will experience as a result of the injury to her lower back. Dr Wallace went on to say: I believe she has suffered a permanent impairment of her back of 12 per cent with 2 per cent being due to pre-existing spondylosis and 10 per cent being due to injuries sustained as a result of the motor vehicle accident in 1998. 22. Dr Deveridge says that he did not identify any pre-existing conditions or abnormalities so no deductions were required from his assessment of 13 per cent back impairment but it is interesting that Dr Deveridge did note in the report of the MRI that there was disc degeneration at L5-S1. 23. There was some evidence of an earlier motor vehicle accident where the back may have been involved but on the balance of probabilities I really am uncertain at which level of the spine that the applicant had any ongoing symptoms from the earlier motor vehicle accident which she sustained when she was only 15 or so years of age. Dr Deveridge specifically says that the applicant is unfit for repetitive bending, heavy lifting, carrying and twisting, pushing and dragging actions. That is, in my view, in keeping with the type of complaint that the applicant made. She has got, in my view, permanent problems with her back. In all likelihood there is musculoligamentous damage to the area of the lumbar spine and in all likelihood there has been some permanent aggravation of the degenerative process at L5-S1. Because of the degenerative process at L5-S1 and because of the evidence of Dr Wallace I do intend to make the statutory deduction pursuant to s 68A in relation to her back. 24. The assessments before me are 0 from the respondent's doctors and 12 and 13 per cent from the applicant's doctors. I think she probably does suffer about a 1/8 lessening of function of the back impairment of the back when compared to a most extreme case. That equates to 12.5 per cent. When there is a statutory deduction made pursuant to s 68A she will be compensated for 11.25 per cent impairment of the back. As mentioned previously, the applicant has already been awarded moneys pursuant to s 66 for neck impairment and loss of efficient use of the right arm. The three entitlements in relation to s 66 for nominated body parts, being the back, neck and right arm, entitle her to an award pursuant to s 67 for pain and suffering. The pain and suffering that I am to assess is in relation to the losses of all three body parts. 25. I have detailed the applicant's complaint of pain in particular relating to her neck and to her lower back. They are complaints of constant pain and pain that is aggravated by activities and I have nominated which activities cause her those problems. They are what could be generally described as day-to-day activities. So she has the possibility with reasonable regularity of having to go through these periods of acute pain that she is presently experiencing but the evidence that she gives about that is that she can identify a degree of regularity about that sort of acute pain, each couple of months she has episodes of acute pain. It is pain that she will have to experience now for some period into the future. She is only a young woman and of course the fact that she will have to experience that pain for a number of years is of relevance to my considerations. 26. However, as I am obliged to do, I need to compare this case to a most extreme case of pain and suffering; that is, a most extreme case of pain and suffering. We have a woman who, despite having certain day-to-day activities interfered with, is able to go about her work. She does it with the modifications and the freedom to modify, as I have discussed earlier in these reasons, the hours that she works and the amount of driving that she does and the like but nevertheless she still does it. She presents as someone who will get on with life in a positive and optimistic way and in those circumstances one could expect her to be active in her business pursuits and the like and to have a full and relatively enjoyable life into the future. She still plays guitar and keyboards and she has bought some sound-recording material. Her time of being able to play is limited but she clearly has an interest in the music industry which is something that she wants to continue to pursue. There are certainly some "down sides" to this woman's case in that she will suffer pain for some significant episodes and into the future on a, what I consider to be, permanent basis but she also will live, I would expect, a fairly gainful and full life. 27. In the circumstances, I consider this to be 1:5 of a most extreme case and she will be compensated for $10,000 for pain and suffering. I think the figure for s 66 entitlement for the back is $6,750, general order pursuant to s 60, respondent to pay the applicant's costs as agreed or assessed. Mr M Bleasel instructed by Bell & Partners Solicitors appeared for the applicant Mr P O'Rourke 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.