Hamdan v Central Sydney Area Health Service in respect of Rozelle Hospital [2001] NSWCC 36

Compensation Court of New South Wales

CITATION : Hamdan v Central Sydney Area Health Service in respect of Rozelle Hospital [2001] NSWCC 36 PARTIES : Lina Hamdan v Central Sydney Area Health Service in respect of Rozelle Hospital MATTER NUMBER(S) : 51886 of 1999 JUDGMENT OF: Ashford J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 22 /02/01 EX TEMPORE JUDGMENT DATE : 02/22/2001

FOR APPLICANT: Mr ML Snell instructed by Carroll and O'Dea LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr T Wardell instructed by PW Turk and Associates

JUDGMENT: 1. In these proceedings the applicant claims payment of compensation from 28 October 1999 to date and continuing as a result of injury in the employ of the respondent. A claim is also made pursuant to the provisions of s 66 in respect of alleged permanent impairment of the back, and loss of the left leg at or above the knee, with a consequential payment pursuant to the provisions of s 67. 2. The respondent places in issue the extent of any incapacity, any degree of impairment and the extent thereof. 3. The applicant was born on 27 April 1963. She is a single woman with no dependants. She came to Australia at age 12. She undertook the Higher School Certificate and thereafter attended the University of New South Wales where she obtained a Bachelor of Arts degree and a Diploma in Education. She taught at the Cronulla High School for a period of about three-and-a-half years, specialising in languages. She is fluent in Arabic, French, German, Spanish and English. 4. She commenced employment with the respondent in 1990 working initially at the Canterbury Hospital on a full-time basis. Her employment involved psychological counselling. This also included some in-service training. She lived with the Arabic community and initially performed 38 hours per week in that employment. At that stage she said she was in good health. She underwent a variety of courses in furthering her expertise and obtained certificates in many quarters. 5. In 1992 she obtained a second job, working at that time in the Royal Prince Alfred Hospital. She worked in a multi-cultural area, specialising in counselling and teaching in HIV and AIDS. She worked varying hours, estimating that she worked 13 to 14 hours on average with such duties. This work involved after hours and weekend work in the main, apart from her main employment. In mid-1996 the Central Sydney Area Health Service amalgamated and whilst she continued in her employment, in effect both her employments became one employment. She therefore worked two jobs performing her main employment during the day but continuing the other duties with AIDS patients as before. She said that she enjoyed her employment. 6. On 29 August 1997 whilst at work at the Canterbury Hospital, and as she was leaving work, the applicant slipped on stairs, falling and twisting to the left side to break her fall. She attended her second employment that evening but said that she was feeling very sore, experiencing pain in her lower body and in her knees. The next day she continued in employment but said that she had worsening back pain which was more to the left side. She worked on the Saturday and Sunday on the AIDS employment but experienced pain. She attended her general practitioner and was provided with a certificate off work. At that stage she said she was very sore in her back and could barely walk. 7. After about one week she said she experienced numbness in her left leg, which was also painful. X-rays were undertaken. She was afforded physiotherapy. She was referred for a CT scan. She was also referred to Dr Wilding for a specialist opinion.She was provided with medication and physiotherapy. She also attended upon Dr Edmund Graham for a further opinion. In January 1998 MRI investigation was undertaken. 8. She resumed work on a part-time basis under the auspices of the CRS on about 13 March 1998. This was in her primary employment but not in her second counselling job. Initially, she worked restricted hours 2 hours per day on 3 days per week. This gradually increased over a period of time, until she was eventually working 32 hours per week in the counselling job, working 4 days per week, these being Monday and Tuesday, Thursday and Friday, with Wednesday off work. For those 4 days she worked an 8 hour a day. 9. In November 1998 it was suggested that she increase her hours which she did. At that stage she said she had increasing back and leg pain. This was exacerbated, in her view, by sitting for long periods. It is apparent her work as a counsellor involves her sitting for long periods in such sessions and it was her evidence that should she interrupt such sessions, there was a detriment to her client in doing so and thus she felt that she was required to sit for long periods at various times. Having trialled the 5 days per week employment she was certified unfit for such employment by her general practitioner and thus was provided with medical certificates which returned her to working 4 days per week, 8 hours per day with Wednesdays off work. She has not resumed her second employment as it is her view, supported by the medical certification, that she is unable to do more hours per week. 10. It was her evidence that she continues to experience numbness in her left leg, although this has improved since 1999. She was referred to Dr Kwok in late 1998 and still sees him on occasions. She gave evidence of continuation of back pain, saying that whilst her back pain varies it is of a continuous nature and she has problems in walking for long periods, sitting for long periods, standing or bending. She described the pain in her left leg as extending from her buttock at times to the toes, but of a varying nature. She does not feel her left leg to be as strong as before. She gave evidence that it was her intention to marry in about November 1997. This plan was put on hold and was eventually called off in 1998. Her evidence was to the effect that after marriage she would have been required to live in the United States and this was not something she could contemplate, having regard to the degree of back and leg pain she was experiencing, and her potential difficulty of losing the support of her family in doing so. 11. Prior to injury she gave evidence of engaging in recreational activities of flamenco and belly dancing. She also coached in the latter activity. This was something she enjoyed. She described herself as previously being of a sociable nature and very active but that since injury she has become restricted in her activities, those restrictions being occasioned by pain and some loss of confidence. She has some difficulty in sleeping and takes medication at times. At the present time she lives with her parents. She has an intellectually disabled brother. It was her evidence that in engaging in family activities she is less involved than before, describing those restrictions as being because of back and leg pain. She described a prior enjoyment of sporting and recreational activities which she has not been able to engage in to the extent she previously enjoyed. 12. Much medical evidence has been tendered in relation to her treatment and the examinations which have been conducted. CT scans performed in 1997 disclose there to be a tiny postero-central disc herniation at L5-S1 which did not compromise the nerve root. In January 1998 MRI examination also discloses there to be a tiny L5-S1 disc protrusion, with no nerve root compression. 13. Dr Wilding examined the applicant at the request of her general practitioner. Following examination and noting a history of a fall at work on 29 August 1997, in his view the applicant has a small postero-central disc herniation at L5-S1 with degenerative changes at L5-S1 as well. He noted treatment which had been performed. He thought as at October 1997 she should return to work on a restricted basis. He continued to review the applicant and from his reporting up to March 1998 noted her to have returned to work on a restricted basis for increasing hours. He thought at that time she was managing reasonably and should continue with those current hours which could be increased should her symptoms decrease. 14. Dr Edmund Graham saw her at the request of her general practitioner. At the time of his examination in January 1998 he noted some slight wasting of the left thigh in comparison to the right. He thought some treatment may be warranted but this had been declined by the applicant. He thought MRI examination should be performed. At the time of examination he thought her unfit for work. 15. Dr Kwok has continued to see the applicant over a period of time. His initial reporting is of January 1999. At that time he noted a report of numbness in the anterior thigh on the left side and some restriction of exertion in the left leg due to pain. He thought she should continue with restricted working hours and that perhaps a new CT scan should be undertaken. In May 1999 he noted a continuation of pain in the left leg and in the back. He thought CT scanning should be undertaken. This was duly done but did not apparently disclose any striking new features. He thought the hours which she was at that stage working were about the limit of her tolerance. In reporting of 27 October 2000 he thought there had not been much change in her condition and noted she was continuing her original job four days per week. He found no change in her condition but thought there should be no objection to her plan to try and increase her working hours. 16. Dr Davis reported on 13 November 1997 following his examination of the applicant. At examination he did not find any wasting of either limb nor neurological compromise. He thought her history consistent with his findings on examination. He was of the view she had sustained an acute lower back syndrome with referred symptoms to the lower limbs particularly on the left side. He noted CT scan to have disclosed a small disc protrusion at L4/5. He thought this would impinge on the right S1 nerve root. He thought it most likely she was suffering some minor fascial damage as well as internal disc derangement at L4/5 consistent with the history obtained. He thought there were also some facet joint degenerative changes and that these pre-dated her injury and may have been aggravated to some extent, although he thought only 5 per cent of any total impairment related to such pre-existing condition. He thought MRI scan should be obtained. His reporting takes me no further. 17. Dr Grey performed medico-legal assessment, reporting on 15 May 1998. Following his examination and noting a history in accordance with the applicant's evidence he thought her to have a 30 per cent impairment of the back and 10 per cent loss of efficient use of the left lower limb at or above the knee. He thought it too early to describe a particular prognosis. He was of the view that x-rays confirmed some disruption at L5-S1 in keeping with the clinical presentation. On re-examination and reporting of 8 February 2000 he noted there had been further CT scan which disclosed her disc lesion to be unchanged. Following examination he thought there had been disruption of the L5-S1 disc. He thought her condition to be a direct consequence of the fall described. He thought her permanently unfit for activities involving heavy lifting, repetitive bending and prolonged crouching and stooping. In his view at that time there was a 30 per cent permanent impairment of the back and a 10 per cent permanent loss of efficient use of the left leg at or above the knee. 18. Dr Kai-Lee has also performed an examination of the applicant for the purposes of medico-legal examination. His reporting of 3 January 2001 was tendered. He had the benefit of examining a CT scan taken September1997 and an MRI scan. The former examination he thought disclosed L5-S1 disc protrusion with the MRI showing L4/5 disc protrusion. He thought her fit to perform her job as a counsellor. It was his view, however, that she could not increase the hours she was presently performing, noting that she also performed work as an AIDS counsellor at night and previously also worked 5 days a week in her primary job. He thought her prognosis guarded. In his view as a result of injuries sustained in the course of her employment there was 25 per cent permanent impairment of the back, and 20 per cent permanent loss of efficient use of the left leg at or above the knee. He was also of the view there was some right leg impairment to the extent of 10 per cent permanent loss of efficient use of the right leg at or above the knee. 19. The respondent has tendered a number of reports relating to examinations of the applicant. EMG testing performed 15 July 1998 does not disclose there to be any electrical evidence of peripheral femoral nerve root lesion affecting the left lower limb. 20. Dr Evans provided a report of 29 July 1999. He obtained a history of a fall in the course of employment on 29 August 1997 and an onset of back and left leg pain. He had the benefit of perusing x-rays and CT and MRI scans which had been performed. In his view the applicant has no more than a 5 per cent permanent impairment of the back in comparison to a most extreme case. He thought there was no permanent loss of use of the left leg. 21. On re-examination on 13 October 2000 he thought there was an over-reaction on examination. He found no objective abnormality. He noted there had been a minor prolapse at L5-S1 but thought this was not the cause of significant symptoms. In his view the applicant was fit for normal work from the point of view of physical disability and found no permanent impairment as a result of any physical damage to the back. In a supplementary report it was his opinion that the applicant has no more than 5 per cent permanent impairment of the back in comparison to a most extreme case and no loss of use of her left leg. 22. Dr Matheson is a consultant neuro-surgeon. He provided reporting following his examinations of the applicant. He obtained a history of a fall at work on 22 August 1997. He thought following examination and perusing of x-rays which had been undertaken that whilst the applicant may have had a fall which caused some twisting to her legs, there had been recovery from such an incident and this had not caused any back problem. He found no evidence of a significant disc lesion and plenty of evidence of ingenuine features, finding her presentation to be inconsistent. In his view there was no injury to the back sustained in the manner described, and he believed she had fully recovered from such an event and was fit for full duties. He found no permanent impairment of the back nor loss of use of either leg. On subsequent examination his opinion was unchanged. He remained of the view there was no disability from the incident described. 23. Dr Diamond also performed a medico-legal examination. His report is dated 24 March 1999. He obtained a history in accordance with the applicant's evidence. He had the benefit of obtaining an overall viewing of x-rays which had been undertaken. In his view the applicant has a minor disc problem which could have followed from the fall as described. He did not believe her symptoms and signs severe enough to warrant any further treatment. He thought her fit to continue her present job, noting she was presently performing such work four days per week. He noted there had been a second employment which the applicant stated she was unable to perform. He made no comment in relation to those statements. In his view the applicant has 5 per cent permanent impairment of her back and a 5 per cent loss of use of the left leg at or above the knee as a result of that injury. 24. Wages material has been tendered. I will come to that evidence in a moment. 25. The applicant, in my view, was an impressive witness who gave her evidence in a straightforward manner. I accept her evidence of injury in the course of her employment with the respondent on 29 August 1997 in a fall down stairs. I am satisfied she has experienced pain in her back and also her left leg since that fall. There is clinical evidence of some disc disruption at L5/S1. Whilst this is described as being of a fairly minor kind, I am satisfied nevertheless the applicant continues to experience symptoms in her back and also in her left leg. Whilst there is no evidence on the x-rays of any nerve root impingement, I accept the applicants complaints of left leg pain and some sensations of numbness and on the evidence before me I accept her to have some loss of use of her left leg at or above the knee as a result of injury to her back. 26. The discal protrusion as described on x-ray and by medical reporters is of a relatively minor kind. Nevertheless, I am satisfied it is of sufficient severity to cause her continuing symptoms and that she continues to experience pain in her back and in her left leg. 27. In looking to the evidence in relation to any degree of permanent impairment of her back which she suffers as a result of such discal injury, I have set out the assessments which are before me. I am of the view the applicant has 15 per cent permanent impairment of the back in comparison to a most extreme case. I also find there to be 7.5 per cent loss of use of the left leg at or above the knee as a result of injury to her back. 28. Those amounts cross the threshold pursuant to the provisions of s 67. The applicant has given evidence of actual pain and suffering, of pain in her leg and in her back which continues in varying degrees. She has given evidence in relation to her distress in relation to such matters. In considering her evidence overall I am of the view I should assess her claim pursuant to the provisions of s 67 in the order of 1:5 of a most extreme case. 29. In relation to the claim pursuant to the provisions of s 40, the applicant has given evidence of her employment in what I shall describe as her primary job, which was previously 38 hours per week. She presently works 32 hours per week and says she is unable to continue that employment on a 5 day per week basis because of her difficulties in sitting for long periods or standing for long periods in performing her employment as a bilingual mental health counsellor. I accept her evidence in relation to the difficulties she experiences in performing such duties on a 5 day per week basis. I note she previously trialled such employment but was unable to continue. I am satisfied I should accept the medical evidence from her treating doctors in relation to her inability to perform such duties on a 5 day per week basis. 30. Additionally she has been unable to perform what was an extra employment of 13 to 15 hours per week on average, which involved her in counselling or attending to the needs of those with AIDS or HIV conditions. I accept her evidence, and that of her treating general practitioner in particular, in relation to her inability to perform such additional employment. 31. The applicant's wages schedule is in evidence. Had the applicant remained in the employ of the respondent performing both jobs on the basis she previously performed, her comparable earnings in the employ of the respondent from 28 October 1999 were in the sum of $1,509.33 per week. Her actual earnings at that time were the sum of $860.62 per week. From 3 January 2000 to date, her actual earnings are the sum of $877.84 per week, with probable earnings in both employments in the sum of $1,531.37 per week. I am satisfied I should accept her earnings as her actual earning capacity, and note the earnings of comparable employees had she continued in both employments. 32. As at 1 October 1999 the s 35 cap was the sum of $1,178.10 per week rising to the sum of $1,197.20 per week from 1 April 2000 and $1,210.20 per week from 1 October 2000. 33. This establishes a differential sufficient to attract an award pursuant to the provisions of s 40 for a single worker with no dependants from 28 October 1999 and continuing. 34. Accordingly, there will be an award for the applicant. $277.10 per week (as adjusted) from 28 October 1999 to date and continuing pursuant to the provisions of s 40. 35. $9,000 in respect of a 15 per cent permanent impairment of the back, and 36. $5,625 in respect of a 7.5 per cent loss of the left leg at or above the knee, both pursuant to s 66. 37. $10,000, s67. 38. S 60 expenses. 39. Costs, Pt 29. 40. Second conference - $200. Mr ML Snell instructed by Carroll and O'Dea appeared for the applicant Mr T Wardell instructed by PW Turk and Associates appeared for the respondent