Moran v Thomson Adsett & Partners Pty Ltd [1996] NSWCC 29; (1996) 13 NSWCCR 484 (17 September 1996)

[1996] NSWCC 29; (1996) 13 NSWCCR 484

MORAN v. THOMSON ADSETT & PARTNERS PTY LTD

Compensation Court of New South Wales: Neilson J

17 September 1996

Assessment and amount of compensation - Amount of compensation during incapacity - Lump sum payments for specific injuries - Amount awarded - Permanent impairment of the neck - Pre-existing asymptomatic degenerative condition of cervical spine - Injury being aggravation or exacerbation of disease - Absence of symptoms not necessarily determinative of deductible proportion of loss due to pre-existing condition - Workers Compensation Act 1987, section 68A

For what injuries compensation is payable - Diseases - Aggravation or exacerbation of pre-existing condition - Pre-existing asymptomatic degenerative condition of cervical spine - Workers Compensation Act 1987, section 16

Words, phrases and maxims - "Pre-existing condition" - Workers Compensation Act 1987, section 68A(1)(b)

M.B. Inglis, for the applicant

S.G. Campbell, for the respondent

Ex tempore

NEILSON J: Mrs Patricia Florence Mary Moran of Grafton claims lump sum compensation pursuant to the Workers Compensation Act 1987 (the Act), section 66 in respect of 30 per cent permanent impairment of her neck and 30 per cent loss of efficient use of her right arm at or above the elbow and a consequential lump sum under section 67 of the Act. Mrs Moran is in receipt of voluntary payments of workers compensation from the respondent.

Mrs Moran was born on 7 May 1943 and is currently 53 years of age. She left school at the age of 15, and then commenced working as a secretary for a solicitor here at Grafton. She performed such duties for nine and a half years until leaving the workforce to bear her children and to raise them.

She returned to the workforce in 1978 and started working for a firm of architects, the successors of whom are the current respondent. It appears that she actually started working for the current respondent at the beginning of July 1994.

Both with the respondent and its predecessors the applicant was the sole secretarial worker performing all secretarial work for the architects, namely typing, banking, clerical assistance and the like.

When the current respondent started trading in July 1994 arrangements were made to computerise the office. The applicant was provided with a computer which she started using in early September 1994. Previously she had used a word processor which did not require her to work with her neck flexed forward. However, working on this new computer did. A proper computer desk was not provided to her until after the onset of the symptoms with which I am currently dealing. The provision of the new desk, which may have obviated the need for her to work with her neck forward flexed, was not until December 1994. Within a few weeks of starting work on the computer in September 1994, the applicant noticed symptoms in her shoulders, neck and right forearm. She was most particularly concerned with symptoms in her right forearm as they involved pins and needles affecting her hand and forearm up to the elbow.

She eventually sought medical attention from her general practitioner, Dr Harding of Grafton, whom she first consulted on 1 November 1994. That doctor obtained a history of the applicant having a two-month history of shoulder, neck, and right upper limb pain with associated stiffness. The applicant also gave the doctor a history of paraesthesia in her right hand and forearm.

The applicant described to Dr Harding the pain in her neck and shoulders as being heavy and aching in nature. Cervical spine x-ray was taken at the time which showed evidence of disc degeneration at the C5-6 level. A cervical CT scan was eventually performed on 29 December 1994, after the applicant had stopped working.

She stopped working for the respondent at the close down for the Christmas New Year holiday period and did not attempt to return to work until February 1995 when it appears that she was working intermittently, trying to moderate her work in some form of suitable employment.

[His Honour then considered certain medical evidence and continued - Ed]

The applicant was referred by Dr Harding to Dr Ian Maxwell, consultant neurologist, practising inter alia at Lismore. He accepted the diagnosis of brachial neuralgia and also provided a diagnosis of a "local cervical pain syndrome".

He pointed out that the cervical radiology showed evidence of degenerative changes and he thought that the applicant's present symptoms could be considered to be an exacerbation of the pre-existing problem.

On 4 May 1995, the applicant saw Dr Boyd Leigh for the respondent. He pointed out that the applicant had degenerative changes throughout her neck, and he was sure that those were causing her aches and pains in the right shoulder girdle and the right limb.

The doctor thought that the effects of using the computer for the respondent had caused pins and needles in her forearm and that they had passed away since the applicant had stopped using the computer. The applicant's evidence is that the pins and needles in her forearm did pass away, but she was left with symptoms radiating from her neck into her right shoulder and down towards her right forearm.

Dr Leigh expressed the view that he thought most of the applicant's aches and pains were due to degenerative changes in the applicant's neck and were not related to her work using the computer for the respondent. His opinion suggests that any aggravation caused to the underlying degenerative condition in the applicant's neck had subsided by that time. Nevertheless, the respondent continued to pay compensation to the applicant and still does.

In May 1995, the applicant sought to return to work on a selected duties program through the intervention of the Coffs Harbour Rehabilitation Service. Unfortunately the applicant was unable to return to work as a breast cancer had been diagnosed and that required lumpectomy and subsequent radiation therapy.

The applicant herself felt that she was fit to return to light duty work as far as the problem in her neck and right upper limb were concerned, in May of this year, but at that time it appears her services were terminated by the respondent.

On 22 July 1996, the applicant was seen by Dr Hopcroft at the request of her own solicitors for a medico-legal opinion. Dr Hopcroft expressed this view:

"This patient is obviously suffering from a significant pre-existent cervical spondylitic condition (and incidentally also suffers from some mild lumbar spondylosis which is asymptomatic), and I believe that her current symptoms are due to the nature of her working conditions which have almost certainly unmasked her underlying cervical arthritic problem, rendering it symptomatic, but only on the right side."

The doctor went on to diagnose a 30 per cent "permanent loss of efficient use" of the applicant's neck, and a loss of efficient use of her right upper limb at or above the elbow of 25 per cent.

The applicant's solicitors have also qualified Dr G.A. Miller, a specialist surgeon practising at Southport. Dr Miller saw the applicant on 23 January 1996. He thought that the applicant's working activities had aggravated a previously asymptomatic degenerative process in the cervical spine.

He thought the applicant had a 20 per cent impairment of her neck and a 20 per cent loss of efficient use of her right upper limb at or above the elbow.

The evidence discloses that the respondent for medico-legal purposes has qualified Dr James Bodel, a respected orthopaedic surgeon practising in Sydney, and Professor Murray Phiels, an Emeritus Professor of Surgery.

Dr Bodel's report has not been tendered, nor has he been called, nor has his absence been explained. However, the only inference I can draw from that is that his being called or his report being tendered would not advance the respondent's case.

The respondent's case is essentially argued by Professor Phiels, who thought that the applicant's condition was essentially a constitutional one, but that it was reasonable to accept that it would have been aggravated by the nature of the work which the applicant performed for the respondent.

However, Professor Phiels thought that any such aggravation ceased by the time he saw her on 4 December 1995.

The first thing to say about this case is that I have no hesitation at all in accepting everything that the applicant has told me. I accept her as a witness of truth. There was no suggestion of any attack on her credit, and the applicant was perfectly straightforward at telling me things which indeed may not have advanced her case, such as the small amount of time between the commencement of the new work on the computer with her neck forward flexed, and the onset of symptoms.

It is clear that the applicant had a pre-existing degenerative condition throughout her cervical spine. There is no evidence that that was caused by the work which the applicant performed as a secretary for many years. The degenerative process obviously affects almost all levels of the applicant's cervical spine.

I accept that the new activity working at the computer with her neck forward flexed triggered off the symptoms of the cervical spondylosis.

I accept that those symptoms have continued ever since September 1995. There has been amelioration in her condition in that she has lost the pins and needles affecting her right hand and forearm but is still left with pain radiating from the neck into the right upper limb as far as the elbow.

I accept the diagnosis of exacerbation of a pre-existing asymptomatic cervical spondylosis causing a cervical brachialgia.

The respondent argued that the applicant did not sustain any injury because all that happened was that the symptoms of the underlying condition were unmasked by the work which the applicant did, and this was a mere demonstration of the underlying pathology and did not constitute "an injury" within the meaning of the Act.

I reject that submission. I take the view, and I have set it out in many judgments which I can insert if required, that degenerative disease of the neck or the low back is a disease within the meanings of sections 15 and 16 of the Workers Compensation Act 1987, based largely on the dictum of Windeyer J in Commissioner for Railways v. Bain [1965] HCA 5; (1965) 112 CLR 246 at 272.

Here there has been at least an exacerbation, if not an aggravation, of such a disease. Therefore this case is within section 16.

For the purposes of determining quantum, I take the cessation of work by the applicant on a permanent basis in December 1994 as the deemed date of injury, as the work which she did thereafter appears to me not to have advanced the condition further, but rather have been an attempt to provide the applicant with suitable employment.

I turn now to the question of quantum. The assessments for the impairment of the applicant's neck range between 30 per cent advanced by Dr Hopcroft and 10 per cent advanced by Professor Phiels.

Bearing in mind the widespread degenerative process in the applicant's neck, and bearing in mind the nerve root entrapment, this appears to be a case greatly in excess of the 10 per cent diagnosed by Professor Phiels.

Dr Miller diagnoses a 20 per cent impairment of the applicant's neck, but that appears to me to be an assessment which I would allow for someone who, for example, had a simple cervical disc protrusion at one level with impingement on the theca or nerve root. Here there is impingement on the nerve root at the C6-7 level but also widespread degenerative changes at higher levels which may be causing part of the applicant's symptomatology.

I therefore accept the assessment made by Dr Hopcroft that the applicant has a 30 per cent permanent impairment of her neck. Since the applicant has permanent impairment of her neck, with compression of the nerve root at the C6-7 level and symptoms of cervical brachialgia, it appears to me that the applicant does have a loss of efficient use of her right arm at or above the elbow consequent upon the pathology in the neck. Since the pathology in the neck is in my view permanent, so there will be permanent interference with the efficient use of the applicant's right arm at or above the elbow.

Dr Miller diagnoses a 20 per cent loss of efficient use of the applicant's right arm at or above the elbow. Dr Hopcroft puts it at 25 per cent.

Having listened closely to the applicant's evidence I believe that the assessment of Dr Miller is the more accurate in this case.

I therefore accept that the applicant has a 20 per cent loss of efficient use of her right arm at or above the elbow.

The respondent, however, argues that I should apply the provisions of section 68A.

The applicant argues that there is no part of the impairment of the neck resulting from the pre-existing condition of degeneration of the cervical spine because prior to September of 1994 the condition was asymptomatic, but now it is symptomatic. Therefore, the impairment results from the symptoms rather than from the pathology which is causing the symptoms, and since there were no symptoms prior to September 1994 there was no pre-existing impairment.

Superficially, that is an attractive argument but unfortunately is one that I cannot accept. However, it has to be borne in mind that each case must be decided on its own merits and I do not propose, nor have I done so previously, to lay down any hard and fast rules. However, the following considerations appear to be pertinent.

Firstly, I find it difficult as a matter of logic to accept that, where the only diagnosis is of exacerbation or aggravation of a pre-existing condition_such as degeneration of cervical spine, that no part of the impairment of the whole of the neck can be laid at the door of the underlying condition.

Secondly, impairments often are not caused by symptoms. For example, some workers have told me in evidence that following upon laminectomy and fusion of the neck or the low back they have been rendered completely asymptomatic and are able to do all the activities which they previously did. However, most medical practitioners will accept that once laminectomy and fusion have been practised that there was some permanent impairment of the back, albeit there being no symptoms. Therefore it appears to me that it is superficial to say that impairment is measured solely by symptoms.

The third consideration is, and is particular to this case but to others as well, that if a radiological test were performed in August, for example, of 1994, it would have shown exactly what was shown by the plain radiology of November 1994 and probably the CT scan of December 1994.

Armed with such radiological appearances, no medical practitioner would certify the applicant as fit for unrestricted activities involving the cervical spine. They would advise that as a prophylactic measure the applicant not engage in work which threw stress or strain on her cervical spine lest the painful symptoms of the cervical spondylosis be provoked. However, once one says that, as a prophylactic measure, one should not do certain things that one previously did, one can easily infer that there is some impairment.

The other problem, of course, is what is the extent of the pre-existing impairment of the neck resulting from the pre-existing degenerative condition of the cervical spine? The applicant's doctors do not give me any guidance in this. Dr Boyd Leigh tells me that he thinks most of the applicant's problems are due to the degenerative changes in her neck rather than the effects of work.

Professor Phiels says that all of those problems are due to the underlying degenerative condition. However, I do not accept Professor Phiels' opinion because it is inconsistent with the applicant's evidence that the effects of the exacerbation or aggravation of her condition by her work between September and December 1994 have not gone away.

Also, this is not a case where, in my view, I should apply what is referred to as a rule of thumb in section 68A(8). Here there is not an absence of medical evidence, there is medical evidence directly on the point from Professor Phiels and Dr Boyd Leigh. Secondly, there is not an assumption to be made for the purpose of avoiding litigation because it is litigation that we are currently engaged in.

Furthermore, the assumption is that the deductible proportion be 10 per cent unless the assumption is at odds with the evidence available. In my view, such an assumption would be at odds with the evidence available.

I take into account here the period of time that the applicant did the work which provoked the symptoms, that is working with her neck forward flexed using a computer was relatively short, indicating that the applicant was quite vulnerable to the development of symptoms in her cervical spine. The shorter the period of time for the symptoms to appear, the more it to me indicates that the extent of the pre-existing impairment due to the underlying condition is the greater.

Doing the best I can it appears to me that half of the impairment of the applicant's neck which she currently has results from the underlying condition of cervical spondylosis.

I have found that she has a 30 per cent permanent impairment of her neck and therefore she is entitled to an award in respect of a 15 per cent permanent impairment of her neck.

Pursuant to the provisions of section 68A(6) the permanent loss of efficient use of the applicant's right arm at or above the elbow must also be reduced by 50 per cent. Accordingly the applicant is entitled to an award in respect of a 10 per cent loss of efficient use of her right arm at or above the elbow.

I have been advised by counsel for each party that my findings under section 66 entitle the applicant to lump sum compensation under section 67.

I accept that the applicant had no symptoms due to her cervical spondylosis or the impairment of her neck or the loss of efficient use of her right arm at or above the elbow prior to performing computer work for the respondent between September and December 1994.

I accept everything the applicant has told me as to the extent and severity of her symptoms and the effect they have had on her ability to work and her ability to perform her domestic duties and do the normal things that a 53-year-old lady would now be doing.

However, I have to compare Mrs Moran's experience of pain and suffering against "a most extreme case" of pain and suffering. "A most extreme case" of pain and suffering includes quadriplegia, paraplegia, and I have held it to include partial paraplegia and a young man with organic brain damage who had paresis of an arm and a leg on one side and partial loss of sense of taste, smell and hearing, who had intellectual dysfunction and social dysinhibition but was acutely aware of all the problems resulting from his organic brain damage.

There is no suggestion that Mrs Moran is such "a most extreme case." However, I accept that with ongoing symptoms in her neck and her right arm she is experiencing quite considerable pain. I would describe her experience of pain as moderate.

The authorities also make it clear that I should award more to a younger person than to an older person. Theoretically I should award more to a 20-year-old than to a 60-year-old. Here Mrs Moran is in middle age. I accept that she has had symptoms for two years in the past, and that she will experience symptoms indefinitely into the future. If she has a normal life expectancy, and there is nothing to say otherwise in this case, one could expect her to live for 25 years.

I should point out that the medical evidence suggests that there has been no metastatic spread of her breast cancer, so that she should have a good outcome therefrom.

Doing the best I can on the evidence, it appears to me that Mrs Moran's experience of pain and suffering stands in proportion to "a most extreme case" of pain and suffering in the ratio of 1:3. That entitles the applicant to a lump sum under section 67 of $21,900. Of that sum I apportion $6,000 to the past.

I have inquired of counsel for each party whether any further reasons for judgment are required, and I am advised that none is so required.

[His Honour then made an award not calling for report - Ed]

Solicitors for the applicant: Pollack Greening & Hampshire

Solicitors for the respondent: Hunt & Hunt