Getajanc v Australian Corrugated Box Co Pty Limited [2001] NSWCC 29

Compensation Court of New South Wales

CITATION : Getajanc v Australian Corrugated Box Co Pty Limited [2001] NSWCC 29 PARTIES : Dragan Getajanc Australian Corrugated Box Co Pty Limited MATTER NUMBER(S) : 43926 of 2000 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 4/9/00, 8/9/00, 7/3/01, 4/4/01, 2/5/01. EX TEMPORE JUDGMENT DATE : 04/04/2001

FOR APPLICANT: Mr Gary Swinton instructed by Martin Bell & Co LEGAL REPRESENTATIVES: FOR RESPONDENT: Miss D Moore instructed by A O Ellison & Co.

JUDGMENT: 1. This is an application by Dragan Getajanc against his former employer, Australian Corrugated Box Co Pty Limited, in which he claims injury in the course of that employment and arising out of it on 17 March 1998 when he slipped on a slippery floor and, it turned out, in the toilet, according to his evidence, suffering injuries to his back and left leg, right leg, right arm and neck, and he also suffered an injury to his sexual organ, anxiety and depression according to his allegations in the Application for Determination. Consequently, he claims the appropriate s 66 lump sums for 20 per cent permanent impairment of the back, 10 per cent permanent loss of use of the left leg at or above the knee and 50 per cent permanent loss of use of the sexual organ, as it was put in the Application for Determination, although the corresponding item under s 66 of the Workers Compensation Act 1987 ("The Act") is loss of sexual organs in the plural. He claims also s 60 expenses, but there is no evidence that any such remain outstanding, so I make no particular order in that respect, nor do I reserve liberty to apply formally, but if any dispute breaks out on that front, the parties can always approach me on notice of motion. He claims also a s 67 lump sum for pain and suffering together with interest. As to the latter, that would appear to be precluded by recent legislative amendment and again I shall not reserve liberty to apply formally in that respect, but again if a dispute breaks out in relation to a possible interest entitlement, the parties may again approach me on notice of motion. 2. The issues were not formally defined at the commencement of proceedings, owing to my inadvertent failure to ask the respondent's counsel what they were, but in the manner in which the matter was conducted, they would appear to be the existence of any permanent impairment or loss as claimed or at all, the nexus or causal connection between such impairment or loss and any injury the applicant may have suffered, and the application of s 68A of the Act, there being no dispute in the way the applicant was cross-examined by Ms Moore or in the evidence which she called for the respondent as to the happening of the injury alleged in the Application for Determination, as distinct from its consequences. 3. The applicant gave evidence, and although it is always difficult to assess a person who gives evidence through an interpreter compared to somebody who does so in the English language, it was my impression of him that was an honest man doing his best to relate his injuries and disabilities. I thought he put his best foot forward in the time-honoured manner of plaintiffs and applicants everywhere and did not minimise his complaints, but neither to my mind did he consciously exaggerate them in any way. 4. The applicant was born in Serbia in what was then the former Yugoslavia on 30 June 1955, so that he is 45 years of age. He is married and has two children who live with him. In Serbia he worked as a precision mechanic on large industrial knitting machines and came to Australia in 1982. Until he joined the respondent on 7 August 1994 he did a number of other jobs in Australia, one with Adams' Pies as a process worker, and as a machine operator immediately before joining the respondent at BTR Engineering as a first class machinist, that employment coming to an end because he was retrenched. When he joined the respondent he was given employment as a general factory hand, and his work seems to have involved principally taking boxes and placing them together on a pallet. It was my impression of that work that, as the applicant himself said, it was very physical and very fast and I gather it involved some degree of reasonably frequent flexion and load bearing so far as his back was concerned. 5. He seems to have done that work without trouble, and I accept that this is so, there being no evidence to the contrary, until 17 March 1998 when the subject accident occurred much as related in the Application for Determination. The applicant appears to have been seen by a Dr Mohammad whose report is in evidence (and to which I shall come later) on behalf of his employer more or less immediately after the accident, or at least on the day following, after which he was subjected to a CT scan and plain x-rays of his back and then more or less immediately was given light duties by his employer in a highly commendable fashion. This work seems to have been at his own pace and simply involved checking goods, a chair being provided when necessary. The applicant was able to do this work initially it would appear for six hours per day, but his performance of it seems to have dropped back to a rate of four hours per day after a time. One way or the other, the applicant continued doing this work until eventually his employment was terminated by the respondent in August 1999, at which time or shortly before it he seems to have been told that no further light duties were available to him. 6. Intercurrently with his performance of light duties, the applicant was seen initially by Dr Mohammad by whom he was referred to a Dr Rosenberg, an orthopaedic surgeon, whose report is again in evidence and to which I shall come later, after which the applicant saw his own local doctor, a Dr Nikolic, who referred him to a Dr Peter Bentivoglio, another orthopaedic surgeon, whose report is also in evidence, as is that of Dr Nikolic. I shall come to those reports also after dealing with the applicant's evidence. 7. Dr Rosenberg subjected the applicant to an MRI scan, which he had on 12 June 1998, but Dr Bentivoglio does not seem to have suggested any further investigations. Dr Nikolic continued to treat the applicant after he was seen by Dr Bentivoglio with tablets and physiotherapy as required, together with the use of a TENS machine. The applicant was also referred to a Dr Zipinic who appears to be a clinical psychologist, whom he has seen on a number of occasions to discuss his problems and continues to do so. He says he was also provided with tablets by Dr Zipinic. This may be so, as Dr Zipinic appears also to have medical qualifications, at least according to his letterhead, although I do not find in his report any particular reference to prescription of medication as I read it. The applicant may be mistaken as to who prescribed the medication to which I have just referred, but I accept that he has taken it and continues to do so. He described it as medication for sleeping and for his nerves, but the only medication he recalled was digesics. 8. The applicant claims continuing and unremitting pain in his low back, extending into his left leg, causing difficulty in walking. He complains also of considerable interference with his sex life, particularly, as I understand his evidence, in the last year or so. That does not surprise me, as the applicant was retrenched in 1999, as I have said, and it was my impression of his evidence that he has grown a little worse psychologically since that time, although his retrenchment of course did not mark any particular deterioration in his physical condition. He sought to explain, as I understood his evidence, that he was presently better in some ways but not in others. He essentially appeared to say, as I understood him, although it was difficult to understand precisely what he meant, that physically, so far as his pain was concerned, he was a bit better, but psychologically he was worse. That again does not surprise me as the main objective event in his life, to my mind, since the accident was his retrenchment by the respondent, indicating that his "efforts" to keep his job, as he described them, had failed. 9. The applicant has made a number of attempts to obtain suitable employment with other employers since the accident, according to his answers in cross-examination, including applications to firms such as Aeropack, Tip Top Bakery and Visi Pack. He said that he was looking for any light duty job which did not subject his back to strain. It seems to me until the present time he has made appropriate and reasonable efforts to find suitable employment, although that is of course not an issue that I must determine. It nevertheless provides some evidence of the applicant's bone fides to my mind and therefore assists me in determining his credit. 10. The applicant was skilfully and extensively cross-examined by Ms Moore, counsel for the respondent. I have already referred to some of the answers he gave, and I trust I do no disservice to Ms Moore's capable and helpful cross-examination if I do not refer to every aspect of it. It is sufficient to say that the applicant professed little improvement in his condition except to a small degree from a physical, as opposed to a psychological, point of view. In cross-examination he admitted that he was able to water his garden and perform some household tasks. He still takes a lot of tablets for his back pain. Nevertheless he admitted it had got better. He was prepared to say that he told Mr Cole, a psychologist whom he had seen for the respondent, that his wife was supportive. The applicant had earlier said in his examination in chief that he had been advised to move out to a separate bedroom because he got up during the night and woke his wife up, which caused fights. This is not necessarily in conflict with his later admission that he had told Dr Cole that his wife was supportive, and that this is so. Generally, it is my impression that despite some conflict with his wife from time to time, the applicant continues to be happily married to a person who has attempted to the best of her ability to support him in his distress, although I am limited in the means of arriving at that conclusion, not having heard from the applicant's wife, although I hasten to add that I do not in any way comment unfavourably upon her absence because in this case there was no significant challenge to the applicant's credit, as opposed to his recollection and the degree of his complaints. 11. Passing to the medical evidence, Exhibit A is a report of Dr Nikolic, dated 17 March 1999. Initially it annexed two radiological reports from Dr Cooke and Dr Gale but they were separately tended and I shall deal with them later. Dr Nikolic related how it was that he saw the applicant on 3 March 1998, some time after the accident. The delay is however accounted for by the fact that the applicant was being treated by a company doctor before then, Dr Mohammad. Dr Nikolic relates treatment of the applicant, much as related in his evidence, and is of the opinion that the applicant has a disc protrusion at the L4/5 level compressing the L5 nerve root, leaving him with significant disability as a result of the accident. That view appears to be shared with the views by most, if not all, of the other doctors in the case. 12. Exhibit B is some clinical notes from Liverpool District Hospital relating to an admission the applicant had at a later time to that hospital on 4 November 1998, as related in his evidence, because at that time he was suffering from particularly significant pain. The main matters I draw from those notes are in a document in the bundle which is Exhibit B headed "Liverpool Health Service Emergency Department Clinical Records". The applicant is recorded as suffering from an "L4/5 disc herniation affecting the left side with", as I understand the notes, "reduced sensation in the L4/5 dermatome distribution to pinprick" and on the page following that document it is recorded that the applicant was suffering from an "absent left ankle jerk". Those matters provide objective evidence, as Mr Swinton in his capable address of the applicant pointed out, of nerve root affectation on the left hand side, very likely causing the pain and disability of which the applicant complains in his left leg. 13. Exhibit C is some reports of Dr Peter Bentivoglio, orthopaedic surgeon, three in number. The first dated 16 July 1998 is addressed to Dr Nikolic and is not particularly detailed. It offers the opinion that there is a posterolateral disc protrusion at L4/5 jamming and compressing the L5 nerve root and it records a complaint of low back pain radiating into the left leg, which is consistent with the applicant's evidence. Dr Bentivoglio finds mild weakness of dorsiflexion of the left great toe, which again appears to provide objective evidence of nerve root affectation on the left hand side. This finding is repeated in Dr Bentivoglio's medicolegal report of 13 August 1999 where the opinion that the applicant has a disc injury at L4/5 remains the same, Dr Bentivoglio at that time making it clear that it was consistent with and totally related to the injury described, which is of course that upon which the applicant presently brings application. Dr Bentivoglio thought that there was permanent impairment of the back of 15 to 20 per cent permanent impairment, as he put it, of left leg function of the order of 10 to 15 per cent. 14. Dr Rosenberg, orthopaedic surgeon, wrote a report to the respondent's insurer, dated 1 June 1998, which was Exhibit D and he commented on the existence of the left side of a L4/5 disc prolapse on CT scan and slight decrease in the left ankle jerk. He regarded an MRI scan as worthwhile. As I shall relate,one was undertaken and it supports Dr Rosenberg's diagnosis. Dr Rosenberg does not specifically say so, but it appears from the wording in his report that he most likely thought that the subject accident was the cause of the pathology found. 15. Exhibit E was an MRI scan report of Dr Adrian Gale dated 12 June 1998 and he appears to confirm the existence of a posterior and left posterolateral rupture of the disc annulus at L4/5 with a moderate sized broad based posterior and left posterolateral disc protrusion encroaching upon the anterior aspect of the left L5 nerve root. That confirms to my mind absolutely the existence of nerve root affectation on the left hand side, as indeed I gather it appeared to Dr Bentivoglio, which explains the applicant's left leg symptoms. 16. Exhibit F is a CT scan report of Dr Kenneth Cooke dated 18 March 1998 which likewise finds at L4/5 a broad herniation of the intervertebral disc posteriorly and laterally. He comments that this may compromise the left fourth lumbar nerve root,and possibly also the left fifth lumbar nerve root, which comment again appears to provide some objective explanation for the applicant's left leg symptoms. 17. Exhibit H is a medicolegal report to the applicant's solicitors of Dr James Vote, orthopaedic surgeon, dated 18 October 1999. Dr Vote comments that the applicant has all the hallmarks of a chronic disc rupture with left sciatica and appears to attribute that to the subject accident, thinking that it results in 20 per cent permanent impairment of the back and 10 per cent permanent impairment of the left leg at or above the knee including below the knee. 18. Exhibit G is a number of reports of Dr V Zepinic, dated 1 May 1999, and relates how Dr Zepinic, a psychologist, as well as, apparently, a medical practitioner, saw the applicant on referral from Dr Nikolic for psychological treatment and obtained a history of the applicant's problems from him, and treated him by way of discussion of them in an expert way. In his report of 1 May 1999 he refers inter alia to the interference with the applicant's sex life as a result of the subject injury. This complaint appears as a complaint of loss of libido in Dr Zepinic's second report of 2 December 1999, although it does not appear in his latest report of 25 January 2000. Apart from establishing that the applicant has genuine psychological problems as a result of the subject injury and its sequelae, including no doubt his retrenchment by the respondent, necessary though it may arguably have been from an economic point of view, Dr Zepinic's reports also establish that the applicant made, in clinical appraisal in a medicolegal context, complaints in relation to his sex life, which will have some consequences in relation to his complaint of loss of use of sexual organs. 19. Exhibit J is a report of Dr Michael Lowy of the Australian Centre for Sexual Health, dated 22 May 2000. Dr Lowy is a sexual health physician according to the letterhead on his report. Having seen the applicant through his solicitors, Dr Lowy thought the applicant had no damage to the erectile mechanism, but inability to achieve and maintain an erection arising from his psychiatric state which Dr Lowy seems to have thought, as did Dr Zepinic, to involve anxiety and depression as a result of the subject injuries. Dr Lowy assessed a 50 per cent permanent loss of use of the applicant's sexual organ which, as I have commented above, does not correspond precisely to the s 66 table item in the Act, which refers to loss of sexual organs. 20. Exhibit 1 is a report of Dr Kuo, occupational physician, to the respondent's insurer on an examination of 13 October 1998, and Dr Kuo seems to agree that the applicant has an L4/5 lumbar disc protrusion with pressure on the L5 nerve root, which appears to be everybody else's diagnosis so far as a result of the subject accident. He makes no s 66 assessments. 21. Exhibit 2 is two reports, both of 17 May 1999 from Dr Andrew Chan, general surgeon, addressed to the respondent's insurer in which Dr Chan agrees that there is a L4/5 disc injury as a result of the subject accident, sounding in his view in 15 per cent loss of "usage", as it is put, of the back and 10 per cent loss of usage of the left leg. 22. Exhibit 3 is a report of Mr Anthony Cole, clinical and forensic psychologist, dated 31 May 1999 to the respondent's insurer, in which Dr Cole comments on the possibility of exaggeration and an abnormal pain reaction, although he was prepared to concede an adjustment disorder. It is my impression of Dr Cole's report that he does not directly say that there is nothing wrong with the applicant psychologically, but he thinks there may have been a degree of exaggeration. That was not my impression of the applicant in the witness box, although I did think, as I said earlier, that he put his best foot forward in the time-honoured manner of plaintiffs and applicants everywhere in the witness box, and I have little doubt that he did so when he saw medical and other practitioners for the purposes of his case and for treatment. 23. Exhibit 4 is two reports of Dr Robert Cameron, both dated 21 September 1999, and Dr Cameron comments on the absence of the left ankle jerk, again providing objective evidence of the applicant's left sided problems extending into his left leg, and diagnoses also a disc rupture at L4/5. He thought that this sounded in 7 per cent permanent impairment of the back and no permanent loss of use of the left leg at or above the knee. 24. Finally, Dr A Mohammad, apparently a general practitioner, provided a report of 7 April 1998 to the respondent's insurer which was Exhibit 5. It related treatment in his hands as the applicant related, and revealed a diagnosis of L4/5 intervertebral disc herniation, which Dr Mohammad thought may compromise the left fourth lumbar nerve root and possibly also the left fifth lumbar nerve root. This diagnosis appears to be based on the CT scan to which I have already referred. Thus it is that all the doctors think in varying words that the applicant has an L4/5 disc lesion resulting in left sided symptoms, resulting in an opinion of most but not all doctors, in a loss of use of the left leg at or above the knee. 25. Doing the best I can, the appropriate assessment of that situation appears to be that the applicant has 20 per cent or 1:5 permanent impairment of the back in proportion to a most extreme case and a 15 per cent permanent loss of use of the left leg at or above the knee. The latter finding in particular I make because of the extremely objective nature of the applicant's left leg problems, demonstrated as they are by positive radiological findings indicating left nerve root affectation at L4/5 as well as loss of ankle jerks on a number of examinations (though not, it must be remarked, on that of Dr Chan, to whose report I have already referred). 26. So far as loss of sexual function is concerned, I think Dr Lowy's assessment is somewhat high. I also think it is based to a considerable degree, if not entirely, on the applicant's psychological problems which have undoubtedly affected him since the subject accident, in particular since his retrenchment by the respondent. The addresses of counsel were to the effect that the loss of sexual function on a permanent basis is at a level of 10 per cent to 20 per cent, the respondent of course submitting the former and indeed the applicant the latter. Ms Moore rightly makes much of the fact that no complaint of loss of sexual function, as she (and I) read the medical evidence, was made to most practitioners, particularly Dr Nicolic, the applicant's treating general practitioner, who might be expected to have received such a complaint. Nevertheless, this complaint does occur in the reports of Dr Zepinic, he being, as I have said, the treating psychologist, precisely the sort of practitioner whom one would expect to have explored such a matter. The applicant also said in his evidence that he was ashamed of his sexual inability and it does not surprise me that he did not volunteer it to every doctor he saw. Doing the best I can, and implementing only the objective effects of the subject injury and not the subjective ones, which will be reflected in my s 67 award for pain and suffering, I think the correct assessment of the applicant's loss of sexual organs is on the basis of 15 per cent or 3:20 in proportion to a most extreme case. 27. In consequence of my s 66 findings the applicant passes the s 67 threshold. There is little argument between counsel as to the appropriate level of s 67 compensation, and appropriately so. I shall not repeat what I said in my summary of the applicant's evidence about how his day by day life is affected by the impairment and losses he suffers. The applicant's psychological problems are to my mind genuine "distressing" within the meaning of s 67 where that term is referred to, and they seem to me to be the appropriate subject of s 67 compensation, as well as the applicant's physical problems. I think the appropriate assessment of the applicant's pain and suffering is in a proportion of 3:10 or 30 per cent of a most extreme case. 28. S 68A of the Act was flagged as an issue by the respondent at the commencement of proceedings, but there does not seem to me to be any particular evidence that there is any pre-existing injury, condition or abnormality within the meaning of the section which contributes to the applicant's ongoing problems. He may possibly have had some degree of degenerative change in his low back before the subject injury, and his age would suggest it, but there is no particular effort on the part of the respondent's doctors in particular to blame any pre-existing condition for the applicant's ongoing problems, as is so often the case. I do not think that s 68A has any application in this case on the predominance of the evidence, both medical and lay. 29. I make the following findings: 1. Injury to applicant arising out of and in the course of employment of respondent on 17 March 1998. 2. Resulting from such injury applicant has permanent impairment of his back of a proportion of 1:5 or 20 per cent of a most extreme case, 15 per cent permanent loss of use of left leg at or above knee and permanent loss of use of sexual organs of 15 per cent or 3:20 in proportion to a most extreme case. 3. Resulting from such impairment and losses applicant has experienced and does and will experience pain and suffering of a proportion of 3:10 or 30 per cent of a most extreme case. 30. I make the following award in the applicant's favour: 1. $12,000 for permanent impairment of the back and $11,250 for 15 per cent permanent loss of use of the left leg at or above the knee and $7,050 for 15 per cent permanent loss of use of sexual organs. 2. $15,000 under s 67 for pain and suffering. 3. Respondent to pay applicant's costs. 4. Recommend applicant's costs include second conference for counsel at $250. Mr Swinton instructed by Martin Bell & Co. appeared for the applicant Ms Moore instructed by A O Ellison & Co. appeared for the respondent