Wigfield v Penrith Air Services [2001] NSWCC 134

Compensation Court of New South Wales

CITATION : Wigfield v Penrith Air Services [2001] NSWCC 134 revised - 04/09/2001 John C Wigfield PARTIES : v Penrith Air Services Pty Ltd MATTER NUMBER(S) : 40575 of 1999 JUDGMENT OF: Moran J CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 05/06/01 DATE OF JUDGMENT: 06/05/2001

FOR APPLICANT: Mr Smith of counsel instructed by Baker Ryrie Rickards solicitors LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr T Wardell of counsel instructed by Nevill and Edwards solicitors

JUDGMENT: 1. In this matter the applicant who is now aged 33, was employed by the respondent in its air-conditioning business and whilst assisting to move some heavy equipment into the back of the company's van (he was in a kneeling position while two others were pushing it towards the van) he felt "quite sick all over", as he described it. He said that he felt very weak and he was a little bit sore in the back, and it was not until a few days later that he woke up during the night with severe pain in his stomach. He had attended work for a couple of days in between. He then continued working with these symptoms but eventually took himself, firstly, to Dr Cameron about two weeks after the incident and then later to the man who became his general practitioner, Dr Sitsma on about 20 April 1995. I accept the applicant as a witness of truth and I accept the medical evidence that he did suffer an L5-S1 disc herniation in that incident as claimed on 30 January 1995. 2. The applicant was referred by Dr Sitsma to a specialist, Dr Liew. He arranged for physiotherapy. He had already had a CT scan. The applicant at this stage, which is about May 1995, went off work and underwent treatment. He made a claim for weekly compensation and those payments were made until February of 1997. Whilst he was on workers compensation the Commonwealth Rehabilitation Scheme put him on a workplace trial in or about December 1996 with Hawkesbury Air-Conditioning and he also rehabilitated himself by going to technical college to do a refrigeration/ air-conditioning course three nights a week. The applicant continued working at Hawkesbury Air-Conditioning for a while. He worked as a supervisor for another air-conditioning company and he was a quality control person in that job. Later when he went to Queensland he worked for a company called "Daco". 3. His main job was to clean the filters in air-conditioners in a number of hospitals. It did involve some lifting, but he said the air filters weighed about a kilo or two at the most. He does not deny that he can lift weights up to 5 kg. He continued with painful symptoms in his stomach for some time until he had an injection. He said that his back pain is there every day at some level but it is worse at night - particularly because it increases after sitting down, at rest, at home and then the pain increases and wakes him up a number of times during the night. 4. I accept the applicant's evidence of the symptoms that he has suffered in his back and also the symptoms that he has had in his left leg. He did have some symptoms in his right buttock and also in his left buttock but I am not satisfied that he has satisfied me on the balance of probabilities that he has a permanent loss of use of his right leg - as opined by Dr Richard Evans. However, he does have symptoms in his left leg. There was a flare-up a few weeks ago which he described in evidence. I am satisfied there is a 2 per cent loss of use of his left leg at or above the knee as Dr Evans has described. 5. Although I have reports from Dr Liew, I do not have any assessments from him in relation to any permanent impairment of his back or loss of use of either of his legs. Dr Evans is of the opinion that the applicant has a 20 per cent permanent impairment of his back as a result of the injury in proportion to a most extreme case. 6. I have always found Dr Evans to be on the generous side and it surprised me to hear Mr Smith say that Dr Evans was conservative when he was talking about the loss of use of the leg. However, the respondent relies on medical opinions by Dr Wilding and Dr Terenty. Both doctors saw the applicant in September 1999. Dr Wilding considered he had an 8 per cent permanent impairment of his back when compared to a most extreme case and no loss of use of either leg and Dr Terenty says he has a 10 per cent impairment of his back and no loss of use of either leg. 7. I am obliged to assess impairments of the back in proportion to a most extreme case. I find that in proportion to a most extreme case the applicant has suffered a 15 per cent permanent impairment of his back. That finding plus the finding of 2 per cent permanent loss of efficient use of his left leg at or above the knee entitles the applicant to consideration for pain and suffering under s 67 of the Act. The maximum amount payable is $50,000 and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity of the loss or losses. 8. As I said earlier, the applicant is only 33 years of age. He has given evidence of the depression that he suffered in the early recovery from this injury, that he is unable to play with his children as he would like to, he was unable to carry children when they were young. The pain that he suffers, has suffered over the last five years has interfered with his employment possibilities. He is able to carry out the type of work that he has described in his evidence with air-conditioning units and their maintenance and selling of same. I accept the evidence he gave as to his pain, particularly at night, and the interference with his home life and also any intimate relations with his wife. 9. Having regard to his age and the evidence he has given I find that the appropriate amount to award the applicant for pain and suffering is the amount equivocable to 20 per cent. For those reasons I make an award in favour of the applicant under s 66 in the sum of $9,000 in respect of 15 per cent permanent impairment of his back, in the sum of $1,500 in respect of 2 per cent permanent loss of efficient use of his left leg at or above the knee, under s 67 in the sum of $10,000 for pain and suffering. 10. I make an award in his favour under s 60 for medical and hospital expenses, the respondent to pay the applicant's costs including qualifying fee for Dr Evans. I certify for an advice on evidence and additional conference at $250. Mr Smith of counsel appeared for the applicant Mr T M Wardell of counsel appeared for the respondent