Ellul v Government Cleaning Service_ [1996] NSWCC 3; (1996) 12 NSWCCR 631 (15 February 1996)

[1996] NSWCC 3; (1996) 12 NSWCCR 631 (6774/95)

ELLUL v. GOVERNMENT CLEANING SERVICE_

Compensation Court of New South Wales: Armitage J

12 February 1966 (H)

15 February 1996 (J)

Assessment and amount of compensation - Amount of compensation during incapacity - Lump sum payments for specific injuries - Amount awarded - Permanent impairment of back - Portion of loss due to pre-existing condition - Deductible proportion - Workers Compensation Act 1987, section 68A(1), (2)

Assessment and amount of compensation - Amount of compensation during incapacity - Lump sum payments for specific injuries - Amount awarded - Permanent impairment of back - Portion of loss due to pre-existing condition - Deductible proportion - Extent of proportion difficult or costly to determine - Workers Compensation Act 1987, section 68A(8)

Assessment and amount of compensation - Amount of compensation during incapacity - Lump sum payments for specific injuries - Amount awarded - Permanent impairment of back - Another loss suffered as consequence of impairment - Both losses resulted from same injury - Deductible proportion for impairment applied to other loss - Workers Compensation Act 1987, section 68A(6)

Words, phrases and maxims - "difficult or costly to determine" - Workers Compensation Act 1987, section 68A(8)

B.H. Hughes, for the applicant

P.C. Barber, for the respondent

Cur adv vult

ARMITAGE J: This is an application for compensation by Lena Ellul against her former employer, the Government Cleaning Service, in respect of injuries said to have occurred to her right shoulder and hand and lower back in circumstances arising out of and, I apprehend, in the course of her employment with the Service as a cleaner. As the injuries themselves, as distinct from their circumstances, are not in dispute, I shall not set out the precise dates when they are alleged to have occurred but will deal with them in the course of my discussion of the applicant's evidence.

The claim is for section 66 lump sums in respect of a permanent loss of use of the right arm at or above, or in the alternative below, the elbow, for permanent impairment of the back and (by amendment made at the end of the proceedings by consent) for permanent loss of use of the right leg at or above the knee. A section 67 lump sum is also claimed for pain and suffering resulting from these losses and appropriate interest is also claimed.

The issues were helpfully defined at the commencement of proceedings by Mr Barber, counsel for the respondent, and they were the existence and quantum of the applicant's section 66 and section 67 entitlements as above and the nexus or causal connection between any injury to the applicant in the employ of the respondent and any loss or impairment found to exist. It will be noted that the occurrence of the injuries alleged by the applicant, as distinct from their consequences, was not in issue.

The applicant gave evidence and I indicate at the outset that she struck me as a truthful and sincere woman, who gave as accurate and honest an account as she could of her various injuries and disabilities and indeed, as I apprehended, her credit was not attacked in cross-examination. Indeed, Mr Barber of counsel for the respondent conceded in addresses that his own medical evidence accepted the applicant as truthful. In the circumstances, I accept her evidence on all relevant issues.

The applicant gave evidence that she was born on 26 December 1939 and joined the respondent in 1969 and, after a year of working at various schools, became permanently employed in 1970 at Busby High School in October of that year. She remained in that employment until 1994, 24 years later. It is a testament to her reliability as an employee to my mind that she had this length of service with the respondent and it is consistent with the impression of her I gained in the witness box as set out above, and this work record as well as that impression have assisted me in determining her entitlements in this case.

She said that before her first injury at work, which is related below, her duties as a cleaner involved her in the use of polishers as well as scrubbing and polishing walls, carrying buckets of water and other heavy materials and other activity which I infer was strenuous from the point of view of strain on her back, leg and arms. She said that she carried heavy weights of the type indicated for distances of l00 feet and more. She said that repetitive activity in the course of scrubbing was necessary and that she was accustomed to using her right arm for this activity being right handed. She said that when polishing floors, she frequently had to use two coats of undercoat on the floor and then three coats of polish interspersed with washing of the floors, and it appeared that the washing activity in particular involved expending many buckets of water, which had to be carried to the work site. She said that that in her earlier employ with the respondent, 11 cleaners were appointed to the school where she worked but that this number had decreased to five by 1990.

The applicant gave evidence that, on 24 June 1987, she became aware of aching in her right shoulder over time when she had been "buffing" floors, which activity involves the application of several coats of undercoat and polish in the way that I have indicated. She sought medical attention from her local general practitioner, Dr Chan, on this date and went off work from then until 13 July 1987 for about three weeks under the care of Dr Chan. She then returned to her former duties as described above.

The applicant then described how, on 31 July 1987, she became aware of low back pain and, after initial hesitation, said that she was hosing in a shower block when this pain occurred. She said that she was obliged to hose down "big cement corridors" in the shower block and also "sweep water", by which I gather she means moving water from places where it had pooled by means of a broom or similar device. I infer that this activity was reasonably strenuous in point of the amount of strain it imposed on the applicant's low back.

At all events, she was off work for three weeks from 3 August 1987, this being, I gather, the date from which she sought medical attention for this condition and then returned to her former employment.

She continued in that until December 1988 when, in the girls toilets of the High School, she was hosing again, this time using wellington boots, which she thought in some way caused her to slip and fall and land on her buttocks. She was unable to get up and sat for a few minutes until she was assisted to her feet by one of the other ladies with whom she was employed. Again she experienced the onset of low back pain at this time.

She attended in January 1989 a Dr Mukherjee, another general practitioner whom she was accustomed to see from time to time, and complained of numbness down the right leg as well as, I gather, back pain and of being unable to walk very far. She received treatment in the form of physiotherapy and had some three weeks off work for which she was paid compensation and then returned to her ordinary employment.

Then on 9 November 1990 she was sweeping and had to bend and pick up rubbish in the course of this activity and when she straightened up again, suffered low back pain. This was an activity of course which she had performed daily during her employment. As a result, on 12 November 1990 she went to Dr Chan, who initially commissioned x-rays and then put her off work for three to four weeks and, after that, she returned to her former employment although her back was still sore.

On 18 March 1993 she was "wet stripping", an activity which involved stripping back a tiled floor with a polisher by removing any forms of polish or other substances from the floor. This activity was interspersed with the use of a mop and bucket to wash the floor and involved carrying 15 to 16 buckets of water. She complained that, as she performed this activity, she experienced the onset of pain in her right shoulder. She continued work for a few days and then went off work again on the certificate of Dr Chan for three weeks and then returned to work in her former employment.

On 21 July 1993 she was "buffing" the floor with a polisher in a fashion similar to that described above when she again experienced pain in her right shoulder and this time in her lower back as well. She said that while buffing it was necessary to move the buffer from side to side to keep it moving, which I infer involved some rotational movement of her lumbar spine. She said the polisher was quite heavy and that again this was an activity which she performed daily. She also said that she was required to wheel the "buffer" a distance of 100 feet or so from the position where it was at the commencement of the activity to the position where it finished. She went, she said, to Dr Chan on 22 July 1993, but this time rather than being given simply a certificate to be off work, she was referred to a specialist orthopaedic surgeon, a Dr Peter Giblin, whose report is in evidence and to which I shall later refer.

She said that when seen by Dr Giblin, she was suffering from pain in her right shoulder, low back and hand and identified this as being the right hand and complained also of numbness in it. She was sent for a CT scan by Dr Giblin and subsequently, in September 1993, for an EMG test and after that for a bone scan and was given time off work, initially by Dr Chan from 22 July 1993 and subsequently on the certificate of Dr Giblin, which has continued until the present time, as have payments of weekly compensation.

[His Honour then set out the medical evidence and other factual material. His Honour then continued:]

It seems clear therefore that Dr Benanzio thought that the applicant's low back problem was the result of trauma in the form of injuries at work described to him and related by the applicant in the witness box, and apparently also a result of the nature and conditions of the applicant's employment involving stress and strain to her low back acting on pre-existing degenerative changes in the applicant's low back, which had remained asymptomatic until the various traumata at work occurred.

Exhibit 1 was two reports, both dated 25 September 1995, of Professor Richard Gye, a neurosurgeon, and the first such report tendered in the respondent's case commented by way of causation that:

"... there are a number of radiological reports in addition to the films performed in November 1994, which were available to me, and it is clear that she has constitutional degeneration of the lower lumbro-sacral spine giving rise to advanced spinal canal stenosis. It is probable that this underlying constitutional condition aggravated her episodes of muscular and ligamentous strain."

It is clear that Professor Gye is of the same view substantially as Dr Benanzio in relation to the interaction of the applicant's various work injuries and the nature and conditions of her employment with the pre-existent constitutional degenerative condition of her lumbar spine.

As to the causation of her other problems in her right shoulder and right arm, Professor Gye appears essentially in agreement with the applicant's doctors as to causation and he appears to consider the right leg pain to be secondary to the back condition in the way indicated by Dr Giblin in particular as described above.

In his second and shorter report of 25 September 1995, Professor Gye opines as to a 20 per cent permanent impairment of the low back and 10 per cent loss of use of the right leg at and above the knee and a 2 per cent loss of function of the right upper limb above and below the elbow.

Finally Dr Ian Bryan gave two reports, both dated 10 May 1995, which became Exhibit 2 in the respondent's case. He too thought, in the first report mentioned, in relation to the back injury the following:

"The patient has a history of injury to her back in course of her work. I believe that the injury together with increasing age and degenerative changes in the spine have combined to cause continuing problem [sic] in the back for which she had an operation in May 1994."

This to my mind accords with the view expressed by Dr Benanzio and Professor Gye regarding the causation of the applicant's low back and right leg problems and I shall implement it in the views to which I shall come to in relation to section 68A discussed below.

Dr Bryan in his second and shorter report of 10 May 1995 opined as to a 20 per cent impairment of the low back which he (unlike all of the other doctors in the case) thought may improve as a result of the applicant losing weight (a view which I do not share, particularly as Dr Giblin the applicant's treating doctor, who was in the best position to assess the applicant's problems to my mind, does not hold it) and a 15 per cent loss of use of the right leg at or above the knee and (unlike the other doctors) a 10 per cent permanent loss of use of the left leg at or above the knee. The applicant does not claim this in her application and this finding does not appear in any of the other doctors' reports and I do not propose to make any particular finding about it, except to observe that this decision does not involve an issue estoppel to the effect that the applicant has not suffered any effects of her injuries in her left leg - to the contrary, she has - and it may be that at some stage she will be able to convince a future court that she has some section 66 entitlement in relation to loss of use of the left leg. Apart from that observation, I make no further comment.

Dr Bryan, as to apportionment of the applicant's low back problems in his second and shorter report of 10 May 1995, said the following:

"The problem in her low back is probably 50 per cent due to the degenerative changes and constitutional degenerative changes [sic] in the lumbar spine and to her excessive weight. The remainder due [sic] to the injury and the failure to relieve or reverse the problem completely following operation on the back."

I am quite unconvinced that this view should be implemented in the findings which I make in relation to impairment of the applicant's back, firstly because it is not apparently shared by the other doctors in the case, and in particular by Professor Gye, whose reports were tendered in the respondent's case and who could have been asked about it, and by Dr Benanzio, and secondly because, if the applicant did have any significant problem by way of degeneration in her low back predating the first of her work injuries as related above, it was silent and asymptomatic, whereas the applicant now has florid symptoms both in her low back and right leg, and at an earlier time in her left leg, following the various traumata at work described by her. It thus appears to me that the role of the pre-existing degenerative changes in the production of the applicant's low back and right leg symptoms is minor and I shall reflect this in the findings I make in relation to section 68A to which I shall shortly come.

Before considering section 68A, it is my view that the proper finding is that the total impairment of the applicant's back at the present time, on a permanent basis, is 25 per cent or 1:4 as a proportion of a most extreme case in accordance with the "one step" principles prescribed by the Court of Appeal in Jones Bros Bus Co Pty Ltd v. Baker (1992) 8 NSWCCR 30. As I have said, I accept the opinion of Dr Benanzio as set out above, coming as it does after an examination in 1995, substantially after the laminectomy performed by Dr Giblin in May 1994, noting that Dr Giblin's assessment of 30 per cent permanent impairment of the back was formed following examination in November 1994, only some six months after the surgery. Dr Benanzio's examination on the other hand was on 5 June 1995. This view of course also takes into account the applicant's own evidence in relation to improvement in her pain and restriction of movement in her back after the 1994 surgery, as well as the other medical opinions which have been expressed as to back impairment in the case.

I think again, before considering section 68A, that the proper finding in relation to total permanent loss of use of the applicant's right leg is 15 per cent at or above the knee, again in accordance with Dr Benanzio's findings, implementing as they do the applicant's evidence as to some improvement in her right leg pain and back pain after surgery and having regard to the relatively recent date of Dr Benanzio's examination. Again I have of course considered all of the other medical evidence in the case, as well as the applicant's evidence as to the day by day use of her leg as well as the symptoms in it, in accordance with the principles set out by the Court of Appeal in Department of Public Works v. Morrow (1985) 5 NSWLR 166.

As to the loss claimed in the right hand and arm, it is my view that the proper finding is 5 per cent permanent loss of use of the right hand. Dr Benanzio's report speaks of a 5 per cent permanent loss of use of the "left hand" but this appears with respect to be a clear misprint because it is apparent from the earlier part of Dr Benanzio's report that he obtained a history of right carpal tunnel release at the hands of Dr Giblin in accordance with the applicant's evidence and the report of Dr Giblin and that at no stage did Dr Benanzio receive any history of problems in the left hand from the applicant, nor did she give evidence of any such problems. In the circumstances, assuming that Dr Benanzio meant to write that the applicant had a 5 per cent permanent loss of use of the right hand, I propose to implement that finding, having regard particularly to the improvement to which the applicant confessed in the right hand following carpal tunnel surgery by Dr Giblin as described above.

This brings me to a discussion of section 68A. This has been inserted in the Workers Compensation Act 1987 by item [29] of Schedule 1 to the WorkCover Legislation Amendment Act 1995 (the amending Act). Item [29] thereof was proclaimed, along with a large number of other items in the amending Act, to commence on 1 January 1996.

Before considering section 68A, it should be noted that Schedule 6, Part 6, clause 17 was inserted in the transitional provisions of the Act by item [106] of the amending Act and reads:

"Section 68A (which was inserted by the WorkCover Legislation Amendment Act 1995) is inserted for the avoidance of doubt and accordingly is taken to have had effect from the commencement of this Act, but not so as to affect:

(a) any award of compensation made before the date of commencement of this section, or

(b) any compensation that a worker has received or agreed to receive before that date, or

(c) any award of, or compromise or settlement of the claim for, damages made before the commencement of the section, or

(d) any court proceedings commenced by a worker for damages from the worker's employer (or other person referred to in section 150) before the commencement of the section."

None of the situations in paragraphs (a) to (d) set out above appears to apply to the present case, so it is in my view clear, from clause 17 set out above, that section 68A is intended to have retrospective effect.

Passing therefore to section 68A itself, subsections (1) and (2) read:

" (1) If a loss suffered by a worker as a result of an injury is permanent impairment of the back, neck or pelvis, no compensation is payable under this Division, by the employer who is liable in respect of the injury, for any proportion of the loss that is due to:

(a) a previous injury for which compensation is being paid or is payable under this Division, or

(b) any other previous injury or any pre-existing condition or abnormality.

(2) The proportion of a loss for which no compensation is payable because of subsection (1) is the 'deductible proportion' for that loss."

Mr Barber of counsel for the respondent argues a number of propositions in relation to these two subsections. Although he told me that ex tempore judgments have been given by other members of the Court on these questions, he was unable to obtain any of them and my own enquires suggest that none have been transcribed as yet. The first is that the Parliamentary intention is obviously to overcome the effect of the decision of the Court of Appeal in NSW Department of TAFE v. Pitt (1993) 9 NSWCCR 309, in which I appeared, and the subsequent line of authority in the Court of Appeal which has followed Pitt in relation to the proper interpretation of note (g) to the Table to Division 4 of Part 3 of the Act and, to an extent, Schedule 6, Part 6, clause 6 (the transitional provisions) to the Act.

With this submission I agree. The effect of Pitt is to enjoin a court, in accordance with the words of note (g) abovementioned, to treat a previous impairment of the back, neck or pelvis existing before the subject injury as if it did not exist (see particularly Cripps JA in Pitt at 318). The unmistakable effect of subsection (1) of section 68A quoted above is to require to a court, by contrast, to treat such a previous impairment as if it did exist. In fact, as argued by Mr Barber, the language of the subsection requires a court to decline to award compensation for any "proportion of the loss" (i.e. the loss mentioned in the Table) that is "due to" either "a previous injury for which compensation is being paid ..." or "any other previous injury or any pre-existing condition or abnormality".

It is notable that the statutory language requires that a "deductible proportion" in accordance with subsection (2) above quoted be formulated, not in relation to a preexisting impairment, but in relation to a "previous injury" (whether or not compensation is being paid or is payable for it under the Division) or a "pre-existing condition or abnormality". Thus, as argued by Mr Barber, no pre-existing impairment need be established to trigger the operation of the subsection; all that is needed is a previous injury or pre-existing condition or abnormality to which a proportion of a present loss is "due".

Mr Barber secondly argues that an employer claiming to be entitled to the benefit of the "deductible proportion" does not carry the onus of proving the existence and extent of the "deductible proportion" and that the worker seeking compensation in respect of the loss carries the onus of negativing any "deductible proportion" within the meaning of subsection (2) quoted above.

The fault with this argument seems to me to be that section 68A is a qualification of the prima facie liability created by section 66 of the Act. It will be remembered that section 66(1) reads:

"A worker who has suffered the loss of a thing mentioned in the Table to this Division as a result of an injury is entitled to receive from the worker's employer by way of compensation for the loss, in addition to any other compensation under this Act, the amount equal to the percentage of $123,400 set out opposite to that loss in that Table."

The monetary maximum of course is adjusted from time to time by amending legislation.

The effect of section 68A(1) and (2) quoted above is, in my view, to qualify the prima facie liability created by section 66(1) by providing a defence to an employer. This is clear from the opening words of section 68A(1) reading, "If a loss suffered by a worker as a result of an injury is permanent impairment of the back, neck or pelvis ...". In other words, a precondition of the operation of section 68A is that a worker first establish on a prima facie basis the elements of section 66(1) quoted above, i.e. that he or she has suffered " the loss of a thing mentioned in the Table ... as a result of an injury" being a permanent impairment of the back, neck or pelvis. Section 68A(1) and (2) then operate if, and only if, a "proportion of the loss" is "due to" either a previous injury for which compensation is paid or payable under the Division or any other previous injury or pre-existing condition or abnormality.

An analogous provision is section 10 of the Act which in subsection (1) provides a prima facie liability in an employer in respect of "a personal injury received by a worker on any journey". Subsection (1A) then qualifies this liability by providing that subsection (1) "does not apply if the personal injury was caused, partly or wholly, by the fault of the worker". "Fault" is of course then defined in subsection (6). It has been held on numerous occasions in the Court of Appeal - first I think in Aardvark Securities Services Pty Ltd v. Ruszkowski, Court of Appeal, No. 40353/90, 19 March 1993, unreported - that the onus of proof of the operation of subsection (1A) lies on the employer asserting it as a defence.

The same seems to me to apply to section 68A(1) and (2), because they are a qualification of the prima facie liability of the employer under section 66(1) in exactly the same way as section 10(1A) is a qualification of the prima facie liability of the employer under section 10(1) quoted above.

I am of the view on the facts of this case, as indicated in my discussion of the applicant's evidence and that of the various medical witnesses in report form, that the respondent has carried the onus of proving that there is a "deductible proportion" within the meaning of section 68A(2) of the "loss" - in this case impairment of the back - suffered by the applicant which is "due to" a "pre-existing condition or abnormality" namely the degenerative condition of the applicant's spine, demonstrated radiologically as indicated in the reports of Dr Benanzio tendered in the applicant's case and Professor Gye in the respondent's case, upon which the various traumata which I have found occurred in the applicant's employment with the respondent acted to produce the resulting impairment.

I am, as I have said, not inclined to accept the view of Dr Bryan that one half of such impairment is "due to" (to quote the words of section 68A(1)) these pre-existing constitutional degenerative changes because of the total absence of any complaint on the applicant's evidence, which I accept, of symptomatology of any kind before the first of the subject injuries in the employ of the respondent.

I am rather of the view, in the absence of any other estimate given by any other doctor in the case as to the proportion of the applicant's back impairment which is due to constitutional degenerative changes, that it is not possible on the medical evidence to determine the extent of the "deductible proportion" of the loss which is due to constitutional degenerative changes in accordance with section 68A(1) and (2).

This invokes section 68A(8) which reads:

"If there is a deductible proportion for a loss but the extent of the deductible proportion will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding litigation) that the deductible proportion is 10 per cent, unless this assumption is at odds with the available evidence"

The submission of Mr Barber is, of course, that the opinion of Dr Bryan that half of the applicant's loss is due to pre-existing constitutional degenerative changes is the only "available evidence" and that, because the 10 per cent "assumption" prescribed by the section only operates if the "extent of the deductible proportion will be difficult or costly to determine", the assumption that the deductible proportion is 10 per cent ought not to be made in this case in the face of Dr Bryan's evidence in report form that the "deductible proportion" is one half of the loss suffered by the applicant.

I do not accept this submission, firstly because I do not consider that I am obliged to accept the evidence of one doctor, in this case Dr Bryan, who addresses himself to the extent of the "deductible proportion" where no other does, if there are reasons for non- acceptance of the opinion of the doctor who so addresses himself. In this case, there are such reasons in the case of Dr Bryan's evidence, in my view, namely the absence of any symptomatology in the applicant's back according to her evidence, which I accept, before the first of the subject injuries.

Secondly, I do not accept Mr Barber's submission set out above because of the language of section 68A(8) itself where it uses the bracketed words, "(because, for example, of the absence of medical evidence)". This contemplates to my mind that there will on occasion be reasons other than the absence of medical evidence why the "extent of the deductible proportion will be difficult or costly to determine"; the section merely gives by way of example the absence of medical evidence as one of the possible reasons for such difficulty or cost. It seems to me that another such reason might be, as in this case, the fact that only one part of the medical evidence, which for one reason or another the Court is unable to accept, addresses itself to the extent of the "deductible proportion", and that other parts of the medical evidence, which are accepted by the Court in other respects, do not address themselves to the extent of the "deductible proportion".

Thus I must say that, had subsection (8) not existed, I would in any event have been inclined, doing the best I could on such medical evidence as I do accept, and in particular the views of Dr Benanzio and Professor Gye as quoted above, to determine that the "deductible proportion" of the applicant's back impairment was in fact 10 per cent or thereabouts, having regard to the absence of symptomatology in the applicant's back before the subject injuries, to which I have drawn attention above. In the presence of section 68A(8), I am of the view that the absence of any other medical evidence apart from the view of Dr Bryan, which I do not accept as to the extent of the "deductible proportion", means that it is "difficult or costly to determine" and that a "deductible proportion" of 10 per cent assumed in accordance with the subsection is not "at odds with the available evidence" because the parts of the medical evidence which I do accept, in particular the views of Dr Benanzio and Professor Gye do not, as I have said, address the extent of the "deductible proportion".

The proper finding appears therefore to be that, the applicant having in my view proved on a prima facie basis a permanent impairment of her back of a proportion of 1:4 to a most extreme case, i.e. 25 per cent in accordance with the views of Dr Benanzio as quoted above, the "deductible proportion" of such loss which is due to a "pre-existing condition or abnormality", namely constitutional degenerative changes, should be found to be 2.5 per cent, i.e. 10 per cent of the prima facie loss established by the applicant of 25 per cent.

It was argued by Mr Barber that the proper course in these circumstances was to find a 10 per cent impairment of the back which is due to a pre-existing condition or abnormality and then deduct that impairment from the found impairment of 25 per cent so as to arrive at a net impairment, after the operation of section 68A(l) and (2), of 15 per cent.

It seems to me that the wording of section 68A(l) prevents this approach because what is required by the words "proportion of the loss that is due to ... [in this case] any pre-existing condition or abnormality" is that the Court first find the "permanent impairment of the back, neck or pelvis" for which compensation is prima facie payable under section 66(1) and then determine what proportion of that loss is due to any pre-existing abnormality, so as to avoid the operation of note (g) to the Table as interpreted in Pitt (supra).

Mr Barber's suggested approach would also involve a major anomaly, as he himself recognised in submissions, in that any impairment of 1:10 or 10 per cent, or less, would be totally eliminated by the deduction of an "assumed" 10 per cent of the total sum in the Table for such impairment. Statutes should not be interpreted so as to produce anomalous or absurd results, unless their language compels it: Australasian Temperance & General Assurance Society Ltd v. Howe [1922] HCA 50; (1922) 31 CLR 290; Cooper Brookes v. Commissioner of Taxation [1981] HCA 26; (1980) 147 CLR 297; see especially Mason J (as he then was) and Wilson J at 320.

For these reasons, I have determined in accordance with section 68A(8), which applies for the reasons I have set out above, that the "deductible proportion" of the applicant's permanent back impairment in accordance with subsections (1) and (2) is 10 per cent of the "loss" or impairment previously found, namely 2.5 per cent.

This results in a net compensable back impairment of 1:4 of a most extreme case, or 25 per cent, minus 2.5 per cent, namely 22.5 per cent, as a percentage or proportion of a most extreme case and I propose to find accordingly.

Mr Barber then argued that section 68A(6) applied to the permanent loss of the use of the right leg of 15 per cent, which I indicated to him in discussions that I was inclined, subject to persuasion to the contrary, to find on a prima facie basis. Subsection (6) reads:

"If another loss was suffered by the worker as a consequence of the permanent impairment of the back, neck or pelvis for which there is a deductible proportion under subsection (1) and that other loss and the impairment both resulted from the same injury, no compensation is payable under this Division for the proportion of that other loss that equals the deductible proportion for the impairment."

Mr Barber argues, and I agree, that the clear intent of the provision is that, where there is a "deductible proportion" found in respect of a permanent impairment of the back (as in this case) or neck or pelvis, and "another loss", in this case a loss of use of the right leg, "resulted from the same injury" as the back impairment, the same proportion or percentage of the "other loss" of the right leg must be deducted as was deducted from the applicant's back impairment.

Mr Barber again argues however that the proper approach is firstly to find a 15 per cent permanent loss of use of the applicant's right leg at or above the knee and then to find a 10 per cent loss of use of the same area of the same limb resulting from a "pre-existing condition or abnormality", namely the constitutional degenerative changes of the applicant's lumbar spine, and to deduct that 10 per cent from the previously found 15 per cent so as to find a net 5 per cent permanent loss of use of the applicant's right leg at or above the knee resulting from the subject injuries.

I reject this approach for the same reasons as I rejected the same approach to the interpretation of subsection (1). It seems to me that the words "no compensation is payable ... for the proportion of the other loss that equals the deductible proportion for the impairment" in subsection (6) mirror the words "proportion of the loss" in subsection (1), and that this wording enjoins the Court firstly to determine the "other loss" which "resulted from the same injury" as the back impairment, in this case a loss of use of the right leg at or above the knee, and then to deduct the same proportion of that loss as was deducted in respect of pre-existing degeneration in the case of the back impairment, namely 10 per cent thereof, i.e. in this case a deduction of 1.5 per cent from the found loss of 15 per cent yielding a net loss of 13.5 per cent resulting from the subject injuries and I propose to find accordingly.

Mr Hughes of counsel for the applicant did not attempt to dissuade me from the views set out above as to the proper interpretation of section 68A(1), (2), (6) and (8) and, as I understood him, embraced my suggested interpretations of the subsections in his own submission.

I should interpolate that it was agreed by both counsel that section 68 of the Act had no application to this case because of section 68A(7), which specifically excludes it in cases of impairment of the back, neck or pelvis, and it is unnecessary to discuss this question further in view of that agreement.

[His Honour then dealt with the question of interest in a manner not calling for report-Ed]

As to section 67, the applicant is entitled to compensation under the section for pain and suffering resulting only from the permanent impairment of her back and the loss of use of the right leg at or above the knee found to result from the same injuries, as this impairment and loss each separately pass the section 67(2) threshold and may, in any event, be aggregated under the subsection because they result from the same injury. She is not entitled to section 67 compensation for pain and suffering resulting from the loss of use of the right hand which I propose to find because this loss, which does not separately pass the section 67(2) threshold, may not be aggregated with the permanent impairment of the back and loss of use of the right leg because these deficits result from different injuries from those causing the loss of use of the right hand.

I have described above in my summary of the evidence of the applicant and of the medical evidence the ways in which the applicant's back impairment and loss of use of the right leg have affected her day-to-day living and I do not propose to repeat again what I said there but it seems to me that, in proportion to a most extreme case, the applicant's pain and suffering stands at 4:10. I note in this connection the submission of Mr Barber of counsel that whilst he did not care to nominate the specific proportion, the above proportion, which I suggested to him in submissions, was excessive, and the contrary submission of Mr Hughes for the applicant that 1:2 was the appropriate proportion which defined the applicant's pain and suffering as compared to a most extreme case.

I therefore make the following findings:

1. Injury to the applicant arising out and in the course of her employment with the respondent on 24 June 1987 and 31 July 1987 and in December 1988 and on 9 November 1990 and 18 March 1993 and on 21 July 1993 and as a result of the nature and conditions of such employment between October 1969 and 21 July 1993 involving bending and lifting and strenuous use of the applicant's back arms and legs.

2. Resulting from the nature and conditions of her employment as above, the applicant has 5 per cent permanent loss of use of the right hand.

3. The applicant has permanent impairment of her back of a proportion of 1:4 to a most extreme case or 25 per cent and permanent loss of use of the right leg at or above the knee of 15 per cent.

4. Such impairment and loss results from injuries suffered by the applicant as above on 31 July 1987, in December 1988 and on 9 November 1990 and 21 July 1993 and from the nature and conditions of the applicant's employment as above, with the exception of the "deductible proportion" of such impairment and loss as found in accordance with section 68A, namely 10 per cent thereof, or 2.5 per cent in the case of the permanent impairment of the applicant's back and 1.5 per cent thereof in the case of the permanent loss of use of the applicant's right leg at or above the knee, resulting in a net permanent impairment of the applicant's back resulting from the above injuries of 22.5 per cent and a net permanent loss of use of the applicant's right leg at or above the knee resulting from the above injuries of 13.5 per cent.

5. Resulting from such net impairment and loss, the applicant has, does and will experience pain and suffering of a proportion of 4:10 of a most extreme case.

I therefore make the following award in the applicant's favour:

1. $17,442 in respect of 22.5 per cent permanent impairment of the applicant's back and $13,081.50 in respect of 13.5 per cent loss of use of the right leg at or above the knee and $4,522 in respect of 5 per cent loss of use of the right hand, all pursuant to section 66.

2. $25,860 for pain and suffering under section 67.

3. Interest on the above section 66 sums at 6 per cent and at 3 per cent on half of the above section 67 sum apportioned as to past pain and suffering from 21 July 1993 to date.

4. Respondent to pay applicant's costs.

Orders accordingly

Solicitors for the applicant: Doherty Partners

Solicitors for the respondent: Rankin & Nathan