Compensation Court of New South Wales CITATION : Lonnen v TG & JA Williams. [2001] NSWCC 34 revised - 24/05/2001 Paul E. Lonnen PARTIES : TG Williams JA Williams MATTER NUMBER(S) : 48760 of 2000 JUDGMENT OF: Hughes J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 28/0301, 02/04/01. DATE OF JUDGMENT: 04/05/2001 FOR APPLICANT: Mr J Dodd instructed by McCabe Partners. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr K O'Grady instructed by Sparke Helmore. JUDGMENT: 1. Mr Lonnen is a tall 6 foot 2 inch man. He had an education that only suits him for manual work. He is a single parent of a 10-year-old child. All his life he has worked as a manual labourer, particularly as a shearer. Mr Lonnen was born and still lives in a small hamlet about 100 kilometres from Narrabri. There are about 150 people in the village. Mr Lonnen, as I said, worked as a shearer. He was more than that, he was a very good shearer and was the best man in his shed. He was, it was submitted, the gun shearer whilst working for the various sheds and in fact became so interested in this speed shearing and careful shearing, that is non-injury of the sheep, that he began to demonstrate shearing at exhibitions and shearing contests. 2. About 12 years ago, according to Dr Richter- which makes it about 1988 - he injured his wrist and this caused him not to be able to hold a sheep as well as he had previously done. This caused him inconvenience but did not prevent him from maintaining his gun shearer skills and work throughput. He also developed some back problems fairly early in his shearing life but he put this down to the lot of a shearer which requires constant bending, especially in the case of a tall fellow. However, this back problem fluctuated and it was not until he developed severe problems in his right arm that he became disabled for his work. In fact, in the 1987 period or slightly after 1987 he was demonstrating the speed shearing. 3. Having read the medical evidence I am the opinion that the injury that Mr Lonnen has suffered to his right arm, his left arm and his neck and his back are a result of diseases of gradual onset and therefore enliven the provisions of s 15 of the Act. The right arm incident developed and finally became such that he could not continue to work and the last day of his work was in June 1998, 30 June 1998. Therefore, since I agree particularly with Dr Bodel and Dr Richter that all body parts affected are the results of disease of gradual onset the applicable rate to be applied when the incapacity resulted is s 15(a)(i), "Diseases of gradual onset: employer liable .......... of injury et cetera". S 15(1): If an injury is a disease which is of a nature to be contracted by a gradual process (a) the injury shall, for the purpose of the Act, be deemed to have happened (i) at the time of the worker's death or incapacity or (ii) - and that is not applicable and then little Roman numeral (b), "compensation is payable by the employer who employed the worker in employment to the nature of which the disease was due". 4. As I said, I find the applicable date to be 30 June 1998. He was paid weekly compensation until 25 March 1999 and thereafter weekly compensation payments ceased. Dr Richter and Dr Bodel's - who are, incidentally, experts for the respondent and not for the applicant - Dr Richter in a facsimile to Sparke and Helmore dated 9 March 2001 says "Mr Lonnen has suffered from the gradual onset of pain in his back and both arms. His employment had been the cause of pain in both arms and in the lumbar spine." He also says on another report on the same date, "There is no permanent impairment of the neck, he has permanent loss of efficient use of the right arm at or above the elbow of 15 per cent. There are no pre-existing conditions." 5. Also and insofar as his left was concerned Dr Richter also said there are no pre-existing conditions. Dr Bodel's diagnosis says, "The patient's condition in regard to the neck and back is indeed a disease of a process of gradual onset. The lateral epicondylitis in each elbow is also a similar disease of gradual onset". I accept Dr Bodel's diagnosis as being the diagnosis of Mr Lonnen. 6. Moving in on consideration to s 40 Mr Lonnen had put to me by Mr Dodd has gone from being a gun shearer to a person who is solely dependent on a single parent's income which is much less. With regard to s 40 I find there is not much chance for the kind of work that Mr Lonnen is suited for in the area which he has reasonable access to and if there was such work Mr Lonnen would be capable of working for a couple of hours day earning - him - doing the best I can something in the region of $200 a week. 7. His agreed pre-injury earnings were $676 a week which leaves a difference of $476 a week which exceeds the statutory maximum for a man with a dependent child. Therefore there will be award pursuant to s 40 of the statutory maximum for the applicant with one dependent child. 8. Coming now to s 66 I have found Mr Lonnen to be a truthful witness. He gave his evidence in a straightforward if not laconic manner. I have found that he has a 20 per cent loss of his use of his right dominant arm at or above the elbow, 10 per cent permanent impairment of the back, 10 per cent loss of use of the left arm at or above the elbow, 10 per cent permanent impairment of the back. I am not convinced by any of the evidence before me that there is any permanent loss of use of his left or right leg. I find there is no applicable deduction pursuant to s 68A or s 68B. 9. Turning now to s 67, taking into account all relative matters put to me by the parties, I find that the proper portion of a most extreme case is 30 per cent. In the medical reports those doctors that did make assessments; Dr Bodel on the 8.3.1 said 10 per cent of the back, 5 per cent of the neck, 10 per cent of the right arm above, 5 per cent of the left arm above; Dr Richter on 9/3/01 said 10 per cent of the back, no neck, 15 per cent of the right arm above and 10 per cent of the left. Dr Roebuck was not asked to assess the back but found 15 per cent of the neck, 25 per cent of the right arm above and 15 per cent of the left arm above. Dr Patrick on 31.1.01 found a 25 per cent back, a 15 per cent neck, a 22 per cent right arm above and a 18 per cent left arm above. 10. I therefore hereby order an award that the respondent pay the applicant on the basis of partial incapacity the maximum statutory rate for 26.3.99 to date and continuing for a man with one dependent child, such weekly payments to continue in accordance with the provisions of the Act; the respondent to pay the applicant as lump-sum compensation under s 66 $16,000 in respect of 20 per cent loss of use of the applicant's right arm at or above the elbow, $7,500 in respect of 10 per cent loss of use of the applicant's left arm at or above the elbow, $6,000 in respect of 10 per cent permanent impairment of the applicant's back, $4,000 in respect of 10 per cent permanent impairment of the applicant's neck. 11. The respondent is to pay the applicant's lump-sum compensation under s 67, $15,000 in respect of pain and suffering being 30 per cent of a most extreme case. 12. The respondent to pay the applicant's s 60 expenses. 13. The respondent is to pay the applicant's costs. Mr J Dodd instructed by McCabe Partners appeared for the applicant Mr K O'Grady instructed by Sparke Helmore 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.