Harisson v Bathurst City Council [1991] NSWCC 3; (1992) 8 NSWCCR 1 (17 December 1991)

[1991] NSWCC 3; (1992) 8 NSWCCR 1 (8762-90)

HARISSON v. BATHURST CITY COUNCIL

Compensation Court of New South Wales: McGrath CJ

17 DECEMBER 1991

SAVINGS AND TRANSITIONAL PROVISIONS OF WORKERS COMPENSATION ACT 1987 - SCHEDULE 6, PART 6, CLAUSES 5 AND 6 - ENTITLEMENT TO LUMP SUM COMPENSATION FOR BACK INJURY SUSTAINED BEFORE AND AFTER 30 JUNE 1987.

S.G. Campbell for the applicant

J.P. Gleeson for the respondent

McGRATH CJ: The applicant in this case was paid all weekly compensation to which he was entitled until 6 December 1989, on the basis of back disability resulting from certain specific injuries. The present claim is for a continuation of the weekly payments on the basis of partial incapacity deemed total incapacity from 7 December 1989 until 30 May 1990 when the applicant reached the age of 66 years. He also makes a claim under section 66 of the 1987 Act in respect of the permanent loss of the efficient use of his right leg, coupled with a claim under that Act in respect of permanent impairment of his back.

It is not disputed that the incapacity from, and after,

7 December 1989 until 30 May 1990, is a continuation of the incapacity which resulted from a specific injury on 22 February 1989, superimposed upon the then state of the applicant's back. It is also not contested that any permanent loss of the efficient use of the applicant's right leg can be compensated under section 66 of the 1987 Act.

The real dispute is whether, or not, any permanent impairment of the applicant's back can be compensated under that Act.

To elucidate the nature of the dispute it is necessary to summarise the facts of the case.

Apart from the specific injuries mentioned, the applicant seeks to rely upon the general nature and conditions of his employment throughout the whole period of his employ until 22 February 1989, as being the injury which produced each and every head of incapacity and loss. On this matter it is sufficient to say that, on the whole of the evidence and in the light of the major conflict of evidence between the various medical witnesses called personally, or in their reports, I am not persuaded that the disabilities giving rise to the applicant's claim can be laid at the door generally of the nature of his employment.

The weight of the evidence suggests that the applicant suffers from degenerative changes in his back, and that his back has been subjected to specific assaults, by way of injuries, which have resulted in significant aggravation of the effects of the degenerative changes. As a result of this aggravation, the applicant underwent major surgery on 8 October 1987. He made a good recovery from this surgery to the point where he returned to work driving an automatic truck, under restrictions against heavy lifting or any activity which would place strain upon his back.

He carried on with this work successfully until he experienced further trouble with his back, when he suffered a jarring injury to his back on 17 August 1988, as he stepped into a pothole at work. For the first time, after this incident, he suffered right-sided sciatica. All previous sciatica had been left-sided. This attack subsided after treatment by way of injection. As a result of a further fall on 26 September 1988, he injured his hip and suffered a sore back with some sciatica. He carried on at work on selected duties until 22 February 1989, when he tripped over a hose at work, falling onto his buttocks. He had a resurgence of back pain and right-sided sciatica which has incapacitated him ever since. It is this last injury which has given rise to the disability in his right leg, upon which the claim under section 66 is based. The evidence clearly justifies an award under this section in respect of 10 per cent loss of the efficient use of the applicant's right leg at or above the knee.

The applicant's doctors have assessed the results of his back injuries as causing a 25 per cent impairment of the applicant's back. This assessment is an assessment of the total effect of all injuries up to, and including the last injury on 22 February 1989. The problem raised in relation to this issue results from the fact that some of the injuries occurred before the 1987 Act, and some occurred after that Act came into force. There has been no attempt to separate the degree of impairment caused by the pre-1987 injuries from the degree of additional impairment resulting from the post-1987 injuries. It is submitted on behalf of the applicant that it is unnecessary to do so because of the transitional provisions of the 1987 Act set out in Schedule 6 of that Act.

It is clear that the condition which led to the need for the operation on 8 October 1987 resulted from the injuries which were suffered before 30 June 1987. The last of those injuries occurred on 28 November 1986. At this time the applicant was engaged in suitable restricted duties, and nothing in the nature of those duties themselves in any way contributed to the state of his back. The surgery enabled the applicant to return to restricted duties driving an automatic truck. These were the duties upon which he was engaged at the time of the specific injury on 28 November 1986. By 11 April 1988, his medical adviser considered that he had made a 90 per cent recovery from the effects the previous injuries.

No estimate was made by any of the doctors as to the degree of permanent impairment of the applicant's back resulting from the pre-1987 injuries, after the effects of those injuries had been treated by surgery on 8 October 1987. The only difference between the applicant's condition after the post-1987 injuries and what it was before those injuries, is that the applicant now suffers from right-sided sciatica. The effect of this sciatica has been estimated to result in a 10 per cent loss of use of the applicant's right leg. There has been no assessment of the degree of impairment of the back, if any, resulting from the post-1987 injuries as distinct from the loss of use of the right leg.

Clause 6 of Part 6 of Schedule 6 of the 1987 Act provides:

6 If a loss mentioned in the Table to Division 4 of Part 3 of this Act resulted both from an injury received before the commencement of that Division and an injury received after that commencement, the loss shall, for the purposes of determining the amount of compensation payable in accordance with this Part and this Schedule, be treated as having resulted from the injury received after that commencement.

The applicant argues that the 25 per cent permanent impairment of his back results from the pre-1987 injuries together with the injury of 22 February 1989, and, consequently, he is entitled to the whole of the amount appropriate to this percentage because of the provisions of clause 6 of Part 6 of Schedule 6.

This argument would succeed if this were the only provision which was relevant to this consideration. There are, however, other provisions.

Clause 5 of Part 6 of Schedule 6 provides:

5 Compensation is not payable to a worker who has suffered a loss or impairment of a thing mentioned in the Table to Division 4 of Part 3 of this Act if-

(a) it resulted from an injury received before the commencement of that Division; and

(b) it is not a loss or impairment for which compensation was payable under section 16 of the former Act.

The impairment of the back which resulted from the pre-1987 injuries in this case, and which was assessable after the surgery on 8 October 1987, was not an impairment for which compensation was payable under section 16 of the 1926 Act.

It was argued that clause 6 avoided the effect of this clause by enabling a loss, which resulted from pre- and post-1987 injuries, to be treated as having resulted from the injury received after the commencement of the 1987 Act.

On behalf of the respondent it was stressed that clause 6 carried the headnote "Interpretation", and could not be regarded as conferring a substantive right, when read together with the strong positive wording of clause 5.

Reference was also made to the provisions of Note (g) to the Table under section 73 of the principal Act. This provides as follows:

(g) In the case of the impairment of the back, neck or pelvis, compensation is payable only in respect of the degree of permanent impairment suffered as a result of the injury concerned and as if any impairment existing before that injury did not exist.

It would seem that this section was inserted to exclude the principle in RODIOS V.TREFFLE, [1937] WCR 285. It does, however, seem to reinforce the argument that compensation is payable only in respect of the precise amount of impairment which can be shown to have resulted from the injury itself. In the context of the present case, it has not been shown whether, or not, the effect of the injury of 22 February 1989 was to increase the degree of impairment of the applicant's back and, if so, to what extent. All that has been shown is that the injury of 22 February 1989 has resulted in a 10 per cent loss of the efficient use of the applicant's right leg.

Unless the applicant can show that clause 6 of Schedule 6 overrides the provisions of clause 5 of that Schedule, it would seem that the only item under section 66 for which he can receive compensation under the 1987 Act is the compensation appropriate to the loss of 10 per cent of the efficient use of his right leg.

Clause 5 makes a positive statement that compensation shall not be payable under the 1987 Act for a specified loss or impairment, if the loss or impairment resulted from a pre-1987 injury, and such loss or impairment was not compensable under the Table to section 16 of the 1926 Act. If clause 5 had contained words such as: "subject to the provisions of clause 6", the position would be otherwise.

It appears to me that the provisions of clause 6 are restricted to the cases where the type of loss resulting from two injuries is the type of loss which was also compensable under the 1926 Act. Any loss which resulted from a pre-1987 injury, and which was not compensable under the 1926 Act, cannot be lifted into the provisions of the 1987 Act by means of clause 6.

Against this proposition, it is submitted that the impairment in the present case is an undivided loss, which results from the combination of both pre- and post-1987 injuries. On this basis it is submitted that, if the impairment itself, which is said to result from the two types of injury, did not occur until after the commencement of the 1987 Act, clause 6 would apply.

I do not consider that this follows from the relevant provisions.

Without specific statutory provision, the benefits payable are those applicable as at the date of injury.

Clause 1 of Part 6 of Schedule 6:

(1) Subject to this Schedule, Division 4 of Part 3 of this Act applies whether the injury was received before or after the commencement of that Division.

The words: "Subject to this Schedule", incorporate the provisions of clause 5 and clause 6 of Part 6. Apart from the two clauses, losses not previously compensated would come under the new Table.

Clause 5 then goes on to exclude cases where there was no similar provision in the 1926 Act.

The question, then, is whether clause 6 has the effect of making an exclusion from the effect of clause 5.

Reference can be made to the provisions of Part 4 of Schedule 6. Clause 4 of that Part makes specific provision for the rate of compensation to be paid in respect of periods of incapacity which result from pre-1987 injuries. Broadly, these accord with the headnote which indicates that the 1926 Act applies to weekly payments continuing after the 1987 Act in respect of injuries received before that Act. Subclause (3) of Clause 4 provides that:

(3) If a period of incapacity for work resulted both from injury received before the commencement of Division 2 of Part 3 of this Act and an injury received after that commencement, the incapacity shall, for the purposes of determining the amount of compensation payable in accordance with this clause and for the purposes of clause 6, be treated as having resulted from the injury received after that commencement.

It is true that an incapacity, when occurring, cannot be a divided incapacity. A person is either incapacitated or not. It is true that an incapacity can result from more than one cause. What brings subclause (3) of clause 4 into operation is the happening of the incapacity for which compensation is claimed. If an incapacity results from a pre-1987 injury, but does not occur until after 1987, it is only compensable under the 1926 Act. It needs a post-1987 injury to bring these provisions into operation. A person can clearly have a major disability resulting from a pre-1987 injury which has not resulted in incapacity until the occurrence of a post-1987 injury. Where there was an existing incapacity from the earlier injury which was increased by the later injury, that increased incapacity would be compensated under the later Act.

These provisions cannot really assist the interpretation of Part 6 because the incapacities dealt with would be compensable under both Acts. The problem in Part 6 is raised where there was no right to compensation for the type of loss under the 1926 Act.

It is notable that the new entitlement to compensation for pain and suffering is specifically limited to pain and suffering resulting from injuries received after 1987.

Clause 3 excludes compensation for losses covered by the Table where compensation was paid under the 1926 Act in respect of the loss. The headnote to clause 5 then reads:

Compensation not payable in respect of new item if it resulted from existing injury.

The problem of interpretation would more clearly arise in the present case, if it had been shown that the 1989 injury had increased the degree of impairment of the applicant's back. As already pointed out, the only increase of disability covered by the Table, which has been shown as resulting from the 1989 injury, is the loss of the efficient use of the applicant's right leg, which is clearly compensable under that item in the Table to the 1987 Act.

The problem of interpretation which I have mentioned would clearly arise if, for instance, as a result of the earlier injuries, the applicant had suffered, say, a 30 per cent impairment of his back and then, as a result of the 1989 injury, the degree of impairment had been increased to a 50 per cent impairment. This would raise the two contentions sharply. On the applicant's argument, he would be entitled to the 50 per cent impairment because it resulted from both injuries, and because he had not been paid any compensation under the previous Act. On the other hand, it could be contended that the exclusion provision of clause 5 is so clear and positive that it would preclude any suggestion that clause 6 raises an exception to the matter otherwise covered by clause 5.

If it were necessary to decide the question, it would appear to me that, where an impairment existed in fact before the 1987 Act, such impairment would not be compensable under the 1987 Act by virtue of clause 5. If such impairment were merely added to by a post-1987 injury, the two losses could not be added together and brought under the 1987 Act by the use of clause 6.

In the present case, in fact, the impairment of the applicant's back, in existence up to the time of the injury on 22 February 1989, resulted from the pre-1987 injuries. No increased impairment of the back has been shown to result from the 1989 injury, except the right-sided sciatica which has been quantified in terms of a 10 per cent loss of the efficient use of the right leg.

Accordingly I do not consider that the applicant is entitled to be compensated under the 1987 Act for the impairment of his back which resulted from the pre-1987 injuries.

I find that:

1. As a result of an employment injury to his back on 22 February 1989, the applicant was incapacitated and paid compensation until 6 December 1989.

2. The applicant was partially incapacitated from 7 December 1989 to 30 May 1990.

3. The respondent failed to provide suitable employment during partial incapacity.

4. The applicant's wife was totally dependent.

5. As a result of the said injury, the applicant suffers a 10 per cent loss of the efficient use of his right leg.

I also make an award in favour of the applicant under section 66 in the sum of $6,390 in respect of 10 per cent loss of the efficient use of the right leg at or above the knee.

I award the applicant weekly compensation at the rate of $227.30 per week from 7 December 1989 to 30 May 1989 as adjusted by section 37. I award interest thereon at the rate prescribed by the Supreme Court Rules from 30 May 1989.

I award the applicant medical expenses under section 60.

I award costs under Part 29 of the Rules.

I certify one qualifying fee, an advice on evidence and a fee for counsel to take judgment.

Solicitors for the applicant: Kenny Spring

Solicitors for the respondent: Moray & Agnew