Monk v Spotlight Stores Pty Limited [2001] NSWCC 118

Compensation Court of New South Wales

CITATION : Monk v Spotlight Stores Pty Limited [2001] NSWCC 118 revised - 04/09/2001 Geoffrey Allen Monk PARTIES : v Spotlight Stores Pty Limited MATTER NUMBER(S) : 41921 of 2000 JUDGMENT OF: Hughes J at 1 CATCHWORDS: Proceedings to Obtain Compensation - Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 16/02/01 EX TEMPORE JUDGMENT DATE : 02/16/2001

FOR APPLICANT: Mr G Giargios insructed by Attwood Marshall. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr G Hickey instructed by Leitch Hasson Dent.

JUDGMENT: 1. In this case Mr Monk worked from 1993 as a storeman and told the Court that he was the sole storeman. Spotlight is a well known store that sells fabrics that come in a big rolls. Mr Monk also informed us that at that time, that is the time of the injury, they were also selling furniture. He also had to climb ladders to place the stock in various shelves whilst he was doing that one day he fell flat on his back, he said, and felt pain in what is now identified as his lumbothoracic spine. The next morning it was bruised. 2. He states, as he did to me, that he felt numb and he got up and continued to dust himself off and get back to work. He lost no time at work due to the incident. He saw a doctor within a couple of days but he also gave evidence that whilst he has had what he calls strains in the past - (and I notice in the doctor's report that some say he had strains when he was riding a bobcat but they did not seem to result in permanent problems) Mr Hickey mentioned an earlier x-ray in March 1996 prior to this fall in October 1996 where he had x-rays in the same part of his back. 3. In the end, the case is going to depend on how I accept the witness and his complaints of pain. Mr Monk says that he continued working although he guarded his back. He asked the delivery men to help him unload the heavier items. He was not able to do the same type of work as he did before. He was able to do the same work as he did before but he said he needed some assistance with heavier items. He says he guarded his back. I accept him as a witness of truth. I accept when he says that he had some disability from October 1996 onward. 4. As Mr Giagios said, both Dr Ashwell and Dr Klein assessed this permanent impairment as 10 per cent. None have suggested there is a deduction pursuant to s 68A. Indeed, whilst I was not addressed on it, I think and Mr Monk also said,that this fall resulted in pain that was different from what he had had in the past. I said I accepted Mr Monk as a witness of truth. I accept and I said that it had sounded in permanent impairment and I accept what Dr Ashwell has said. If this disability persisted for a period of three years that in his opinion, that is the doctor's opinion, they are permanent, he says. His discomfort, and I do not put any higher than that - his discomfort has persisted longer than expected and it is now over three years since the date of injury. I would expect his symptoms to be permanent. 5. The medicine from Dr Blue and Professor Ehrlich and Dr Thompson are to the contrary and it s clear there is no radiological evidence to support Mr Monk. It is clear that it is likely to be a musculoligamentous injury and in the circumstances, I find - the applicant has on the balance of probabilities a permanent impairment of his back at 10 per cent. ORDERS 6. There will be an award for the applicant in the sum of $6,000, being 10 per cent of a most extreme case. 7. Since this matter does not get to the threshold there will be no order pursuant to s 67. 8. The respondent to pay the applicant's s 60 expenses. 9. the respondent to pay the applicant's costs. 10. I certify a second conference in the sum of $250. Mr G Giagios instructed by Attwood Marshall appeared for the applicant . Mr G Hickey instructed by Messers Leitch Hasson Dent appeared for the respondent .