Schweinsberg v Tolnet Pty Limited [2001] NSWCC 37

Compensation Court of New South Wales

CITATION : Schweinsberg v Tolnet Pty Limited [2001] NSWCC 37 PARTIES : Anne Schweinsberg v Tolnet Pty Limited trading as Berkeley Vale Private Hospital MATTER NUMBER(S) : 39700 of 2000 JUDGMENT OF: Ashford J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 08/03/01 EX TEMPORE JUDGMENT DATE : 03/08/2001

FOR APPLICANT: Mr PJ Menary instructed by Firths. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr P Adams instructed by Malcolm Jones and Co appeared for the respondent in the interest of Zurich Insurance. Mr JW Catsanos instructed by John Sharpe, Solicitor for HIH Workers Co. appeared for the respondent in the interest of HIH Winterthur Workers Compensation.

JUDGMENT: 1. In this matter the applicant seeks payment of compensation from 16 December 1999 to date and continuing pursuant to the provisions of s 40 in respect of injury to her right arm and shoulder received in the employ of the respondent. Two injuries are alleged: firstly, on 5 December 1993; and secondly, on 20 June 1996. A prior payment has been made pursuant to the provisions of s 66 and s 67 whereby the applicant received a payment in respect of 20 per cent loss of the right arm at or above the elbow with consequential payments being made for s 67. This award, I am told, was paid in equal proportions by the two insurers on risk. 2. The issue in the present claim is basically one of which insurer should be responsible for any payment pursuant to the provisions of s 40 and if there is such an entitlement the question of the quantum of that amount. 3. The applicant was born on 8 May 1955. She is married woman with three children. She is right-hand dominant. She worked as a enrolled nurse up to 1996, having engaged in that occupation from age 17. She commenced employment with the respondent in 1990 and performed normal duties in that establishment moving and assisting patients who were in the main disabled. I have no hesitation in finding such duties to be heavy work and requiring full use of all limbs. 4. She gave evidence that on 5 December 1993 she sustained injury to her right shoulder whilst in the course of lifting a patient. She received medical treatment and was referred to Dr Blaise and also to Dr Morton in July 1994. She was afforded physiotherapy and hydrotherapy. She was off work and was paid worker's compensation. An operation was performed to her right shoulder on 14 December 1994. She was thereafter off work until March 1995 and then resumed her employment with the respondent. She said she had been advised not to perform lifting duties using her right shoulder subsequent to the operation. 5. On 20 June 1996 she sustained further injury to her right shoulder, again whilst lifting a patient. She again experienced pain. She was given lighter work for a period, but her services with the respondent were terminated in December 1996. Prior to that time the applicant said she had received assistance from her co-workers in that she was not required to perform lifting using her right shoulder, although she did endeavour to perform her full duties. Following the second injury her duties changed to an extent in that she worked in escort duties for patients attending medical appointments or going to theatre. She also made beds and performed other nursing duties. 6. It was her view there had been good result from the initial operation. It was suggested that further operation to her right shoulder should be performed after the second injury. This was not ultimately done until March 1998, again by Dr Morton. Payments of compensation were made to her up to 16 December 1999. 7. Since leaving the employ of the respondent the applicant attended an executive secretarial course during 1999. She gave evidence of applying for jobs, estimating about 150 applications in all, but with no success. It was her view that she would try any employment which was offered to her which utilised those skills. She also agreed that were she able to obtain jobs in retail or receptionist work or the like, then she would try such employment and thought she could probably do such jobs were there not any heavy use of her right arm. 8. She gave evidence of some difficulties which continue in performing tasks such as vacuuming or sweeping or in activities requiring use of the hands above her head. She continues to experience pain and symptoms in her right shoulder. 9. The only wages material before me is the applicant's schedule which notes earnings of comparable employees in the employ of the respondent in the sum of $480.67 per week. It appears the applicant at the time of initial injury had been working varying hours according to the shift, she worked and her hours were somewhere in the vicinity of 24 to 30 hours per week. 10. There has been medical opinion tendered relating to the applicant's condition. As a starting point there is a consent award that the applicant has 20 per cent loss of the right arm at or above the elbow as a result of the injuries pleaded. It is also agreed that the payment pursuant to s 66 and s 67 was met in equal parts by the insurers. It is clear the applicant has a partial incapacity as a result of her injuries. 11. Dr Morton has provided reports relating to his treatment of the applicant. He clearly found pathology at operation. He performed an acromioplasty of the right shoulder. He thought there had been a good result from that operative treatment. He performed the second surgery, being right shoulder arthroscopy and a lateral acromioplasty with re section of the os and the acromoclavicular joint. His reporting as of 9 September 1998 discloses there to be a full range of active and passive movement with little or no impingement but complaint of pain on movement. He thought her symptoms and the need for operation were as a result of the injuries described. 12. Dr Millar has provided a series of reports relating to his examinations of the applicant. He thought her permanently unfit for heavy work, or work requiring frequent lifting, bending, carrying or work overhead and best suited in light jobs which were alternately sedentary and ambulatory. He attributed her loss of use of the right arm at or above the elbow to the injuries described. 13. Dr Blake has also provided an opinion. He was aware of the mechanics of injury and the treatment performed. He had the opportunity of sighting x-rays and other examinations which had been undertaken. From the history and examination it was his view her incapacity was as a result of the second injury at work. 14. Medical reporting has been tendered by the respondent of Dr Bodel and Dr Sutherland. Dr Bodel was in agreement there was a 20 per cent loss of use of the right arm at or above the elbow. He thought half of that impairment due to each injury. He thought her prognosis long-term to be guarded and that she would have difficulty in returning to nursing duties. 15. Dr Sutherland has provided lengthy reporting relating to his examinations. He noted she had undergone re-training, that she continued to have some limitation of movement of the right arm and shoulder and that she was obliged to observe restrictions on lifting and use of her hands at or above her head. 16. The applicant in my view was a very straightforward witness who made admissions against her own interest in relation to the sorts of employment she thought she could undertake. She has clearly been well motivated in her attempts to find alternative employment. She has undergone some retraining. Unfortunately this has not resulted in any employment. 17. Had the applicant remained in the employ of the respondent, comparable employees are said to earn the sum of $480.67 per week. The applicant clearly has some restrictions in relation to the sort of work she could undertake. She was frank in her estimate of her ability to perform work on a full-time basis were she not required to use her right arm in lifting or in work overhead. It is clear that she does have some disability on a open labour market. 18. She has qualified by retraining to do other forms of employment. However, none of her searches have been fruitful and indeed, it has been suggested by a rehabilitation consultant that a period of work experience may well be required. I bear in mind the fact that the applicant has always worked in the nursing profession and that this work is work for which she is presently unfit, and will remain unfit to engage in because of her injuries. It seems to me she is disadvantaged on an open labour market. I am satisfied the applicant has a partial incapacity for employment. I accept the opinions which are to the view that her partial incapacity is equally as a result of each injury in the employ of the respondent. 19. I am of the view the applicant is able to perform some work not involving heavy lifting or use of her arm at or above her head, but she has a disability in competing with others on the open labour market. In looking to such employment it is my view that the applicant has a capacity to earn on that open and available labour market in the sum of $350 per week. I see no reason to make other than a mathematical calculation of the difference between that amount and the earnings of comparable employees in the employ of the respondent. 20. Accordingly, there will be an award for the applicant in the sum of: $130 per week from 16 December 1999 to date and continuing pursuant to the provisions of s 40, payable in equal amounts by each insurer. 21. Costs, Pt 29. Mr P J Menary instructed by Firths appeared for the applicant. Mr P Adams instructed by Malcolm Jones and Co appeared for the respondent in the interest of Zurich Insurance. Mr J W Catsanos instructed by John Sharpe, Solicitor for HIH Workers Co. appeared for the respondent in the interest of HIH Winterthur Workers Compensation.