Mark Edward Passey v The Registrar of Workers Compensation Commission of NSW & Ors [2005] NSWSC 1032

New South Wales Supreme Court

CITATION : Mark Edward Passey v The Registrar of Workers Compensation Commission of NSW & Ors [2005] NSWSC 1032

HEARING DATE(S) : 01/09/05

JUDGMENT DATE : 14 September 2005

JUDGMENT OF : Patten AJ at 1

DECISION : See paragraph 22

Workplace Injury Management and Workers Compensation Act 1988 Workers Compensation Act 1987 LEGISLATION CITED : Supreme Court Act 1970 Migration Act 1958

Campbelltown City Council v Vegan (2004) NSWSC 1129 CASES CITED : Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Trent Nathan Pty Ltd - Second Defendant John Wynyard, Gregory Watters and Ross Mellick (being the Medical Appeal Panel appointed by the First Defendant - Third Defendant) PARTIES :

FILE NUMBER(S) : SC 30014/05

Mr C Jackson - Plaintiff COUNSEL : Mr D Nock SC - Second Defendant

P K Simpson - Plaintiff SOLICITORS : Vandervord - Second Defendant

LOWER COURT JURISDICTION :

- 21 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Common Law LIST

Patten AJ

14 October 2005

No:30014 0f 2005 Mark Edward Passey v The Registrar of The Workers Compensation Commission of NSW & Ors

JUDGMENT: 1 The First Amended Summons before the Court filed on behalf of the Plaintiff (Mr Passey) seeks the following orders: "1. That the First Defendant's endorsement of and the decision of the Third Defendants (the Medical Appeal Panel) made on 8 November 2004 be quashed. 2. That the First Defendant instruct the Third Defendants (the Medical Appeal Panel) to decide the question of the extent of the permanent loss of the efficient use of the Plaintiff's sexual organs in accordance with the law. 3. That the First Defendant and/or Second Defendant and/or Third Defendants pay the Plaintiff's costs. 2 The summons joined as Defendants, the Registrar of the Workers Compensation Commission of NSW (the Registrar); Trent Nathan Pty Ltd (Trent Nathan); and three individuals who constituted an Appeal Panel constituted by the Registrar (the Panel). Both the Registrar and the Panel filed appearances submitting to the orders of the Court save as to costs. Trent Nathan appeared by counsel, Mr D Nock SC, to oppose the making of the orders sought by Mr Passey. 3 The relevant facts were uncontroversial and may be shortly stated. Mr Passey commenced employment with Trent Nathan as a storeman on or about 26 October 2000. On or about 14 November 2000, in the course of his employment with Trent Nathan, he lifted a roll of fabric which weighed about 40 kilograms. As he did so he suffered an injury to his low back in the nature of a left postero-disc protrusion at L5/S1 that impinged upon the left nerve root. 4 He made a claim for permanent impairment compensation pursuant to s66 of the Workers Compensation Act, such claim being governed by the provisions of the Workplace Injury Management and Workers Compensation Act (the Act). The claim as it related to the frank injury to his back resulted in an award, in December 2004, that he be paid lump sum compensation of $7,500, in respect of a 12.5% back impairment. 5 Mr Passey also made a claim for sexual impairment, related to his back injury. He was referred by the Workers Compensation Commission for examination by Dr E I Korbel, an approved medical specialist within the meaning of s320 of the Act. Subsequently, Dr Korbel issued a medical assessment certificate of permanent impairment, pursuant to s325 of the Act. It is relevant to note some parts of Dr Korbel's certificate, which I do as under: "Workers Compensation Commission Medical Assessment Certificate of Permanent Impairment 1. The details of the matters referred for assessment are: To assess the worker for all other body parts (sexual organs). I note that Dr Edward Bates is to assess the worker for the back. 2. ………………………………….. 3. ………………………………………. A brief history of the incident and of the subsequent related events, including treatment: This gentleman was on a work trial at Trent Nathan Pty Ltd. On the date in question he picked up a bolt of fabric weighing 40-50 kilograms and threw it over his left shoulder. During this episode, he stooped and twisted. He had no immediate problem. He drove back to the warehouse, felt a tightness around his back and abdomen. He states that he drove home in pain. …………………………………………. Present treatment: Mr Passey's present treatment consists of analgesics when needed. 4. Clinical history including:- Present symptoms: This gentleman states that he has lower back pain, which is present most of the time. It is a dull pain and it does get worse every now and again. He tells me that on the 21st August 2002 he got out of bed and bent down to pick up his car keys. The pain returned quite severely and he had to go to bed for 3 days. His flat mate took him to Prince of Wales Accident and Emergency where he was kept in over night and given Valium and Voltaren. He had a week off work and then returned to work. He now has a dull lower back pain still. He states that he has no permanent sexual partner and is single. He does have sex when the opportunity arises and states that he gets pain in his lower back after 10minutes in the male superior position but that he can last 30 minutes in the female superior position with no problems. ………………………………………. He states that as far as his physical activities are concerned he used to surf 4 or 5 days a week and he can only surf 2 or 3 days a week now because of his lower back pain. Findings on physical examination: On examination I could find no abnormality in his abdomen. His external genitalia were normal. He has normal sensation and reflexes in the area of his genital organs. He has no bladder or bowel symptoms. Detail and dates of clinical investigations: The only investigation he brought with him was a CT scan dated the 29th 2002. This x-ray suggested that he had a minor disc bulge at L4/5 and at L5/S1 there was postero-lateral herniation of the disc centrally and to the left side and that this involved the left side of the thecal sac compressing on the left nerve root. This was reported on by Dr Bass. 5. Summary Including:- Summary of injuries and diagnoses: Lower back injury with alleged sexual dysfunction related to the lower back pain. ………………………………….. The worker was consistent on presentation and did not embellish his symptoms or signs. He was quite co-operative and was noted to be able to walk and move quite comfortably today. 6. ………………………………. 7. My answers to the following questions regarding the assessment of the percentage of permanent loss of efficient use or permanent impairment with respect to the injuries suffered before the 1 January 2002 in accordance with the Table of Disabilities are:- a) Is the worker claiming for any body part outside your field of expertise? If so, please indicate which body part. Yes – back. b) Has the worker's injury resulted in loss of efficient use or impairment? Yes. c) Is the worker claiming that he/she suffered more than one injury to any body part? Yes. d) Is the loss of efficient use or impairment related to the accident or accidents? Yes. e) Is apportionment between the several accidents necessary? No. f) Is the worker's injury stable as at the date of the examination? Yes. g) Is there any injury related to the accident/s that has not yet stabilised? No. ………………………….. j) Is the loss of efficient use or impairment permanent? Yes. …………………………… k) What is the percentage of the total permanent loss of efficient use or impairment? I have indicated the total % loss in column 3 in the Table below. l) Is any proportion of the permanent loss of efficient use or impairment due to any pre-existing injury, abnormality or condition? No.