Masters v Baiada Farms Pty Limited [2001] NSWCC 14 (17 April 2001)

Last Updated: 5 September 2001

NEW SOUTH WALES COMPENSATION COURT

CITATION: Masters v Baiada Farms Pty Limited [2001] NSWCC 14


PARTIES:
Mavis Masters
Baiada Farms Pty Limited


CASE NUMBER: 31522 of 2000 of 2001.00


CATCH WORDS: Statutes & Delegated Legislation


LEGISLATION CITED:


CORAM: Campbell CJ

DATES OF HEARING: 23/10/00,16/02/01,17/04/01

DECISION DATE: 17/04/2001


LEGAL REPRESENTATIVES

FOR APPLICANT:Mr J P Deggens instructed by Emery Partners
FOR RESPONDENT: Mr T Rowles instructed by Hicksons Wisewould


JUDGMENT:

1. The applicant claims lump sums, medical expenses and a declaration as to the provision of a spa in respect of injuries alleged to have arisen out of and in the course of her employment with the respondent.

2. Mr J P Deggens of Counsel appeared for the applicant and Mr T Rowles of Counsel appeared for the respondent. Counsels’ addresses have been recorded and it is therefore unnecessary for me to deal with each submission, merely to ensure that it is noted.

3. The applicant is a 65 year old widow who worked for the respondent as a farm assistant from September 1987 to 14 July 1998. She ceased active work on 19 December 1997.

4. The applicant was involved in the well known work of being in sole charge of a shed of some 6,800 hens and 680 roosters. I accept that the work is arduous and repetitive and involves much bending picking up eggs and engaging in related tasks. The applicant worked between 6 and one half hours and 7 and one half hours on a six day on 2 day off rotating roster.

5. The applicant gave evidence that the conditions underfoot were such that she would slip and fall about once a day. There was no challenge to this evidence or the applicant’s description of her general working conditions.

6. The applicant relies upon the nature and conditions of her employment with the respondent and upon certain frank injuries to which I shall come.

7. She gave evidence that she was in good health when she commenced working for the respondent, indeed she could have hardly carried out her strenuous work over a considerable number of years if that were not so. The applicant does suffer form a hiatus hernia which limits the medication she can take.

8. The applicant had suffered earlier injuries and I should refer to them briefly.

9. In 1975 the applicant was driving a car which rolled over three times. She was aching form head to toe after that but did not take time off from her work.

10. The applicant worked as a caterer in her own business from 1971 to 1978.During that time she experienced pain in her back from time to time which she attributed to repeated bending and standing. She consulted doctors at that time in relation to her back.

11. From about 1982 to 1986 the applicant cared for her elderly grandmother. The applicant gave evidence in cross examination that between 1982 and 1984 she suffered pain in her back after helping her grandmother in the course of caring for her.

12. In 1986 the applicant was involved in a car accident when a car struck the rear of the vehicle she was driving. She suffered a fractured sternum and had pain in the chest and stiffness in the neck and back.

13. In 1989 the applicant suffered back pain after putting up a fence. In chief she placed this incident before she commenced work with the respondent, however, it would seem probable that it was after she commenced that work although not connected with it.

14. The applicant consulted her general practitioner, Dr Peters, in 1990 in respect of back pain and x-rays were taken at that time.

15. Before turning to deal with the specific incidents relied upon it is convenient to say that I formed an impression that the applicant was putting her case at its highest in all respects. She believes, I accept, that all of her physical problems resulted from her work and was at pains to so point out whenever given an opportunity. The contrast in a significant number of incidents between her account of events and the contemporaneous notes of the doctors, after allowing for a measure of unreliability in those notes, suggest to me that her recollection has been coloured by the belief I have referred to and her desire to support it.

16. The first incident relied upon occurred about 1990. The applicant was coming down a ladder from a medicine tank when she slipped on the last rung and landed on her tailbone. The applicant said in chief that she thought that she saw Dr Peters, however, in cross examination said that she did not see a doctor. She did not report that incident and did not lose any time.

17. However in cross examination the applicant gave the following evidence in chief:

Q Now you tell the court about the fall from the ladder in the early piece about 1990 where you had some problems with your low back, remember telling the court about that

A Yes

...

Q Did you notice any difference in the pain in your low back after the fall from the ladder, as you were continuing with your duties at Baiada

A While I was working, yes

Q What did you notice as you were carrying out your duties

A Aching, stiffness, taking my breath

18. It is convenient to say that I do not consider that the evidence establishes that more probably than not that injury caused any permanent impairment

19. I should mention that it was established in cross-examination that the applicant’s car had been struck from behind on 17 October 1988 when she was on her way home form work. This incident was not relied upon, no doubt because the applicant agreed that any problem resulting from it settled down in a fairly short period of time.

20. The next incident of which the applicant gave evidence occurred on 16 January 1996. Conditions in the shed were very oppressive and the applicant had, what she described as, a dizzy spell. She fell down across the feed lines and the left side of her body, from the waist to the shoulder, struck the line. The applicant said that her ribs were grazed and that her left shoulder was very painful.

21. The applicant named a witness and said that she reported the matter to work after her rostered days off to the Manager, whom she named.

22. The applicant said that the pain in the left shoulder was a sharp pain that settled to a dull ache. In chief she said that, as her general practitioner was hard to see, she went to see Dr Bosler the next day. She had, apparently been seeing Dr Bosler for treatment for a hip condition that had commenced whilst she had been having chiropractic treatment. She gave the following evidence:

Q Did you tell Dr Bosler about this fall

A Yes

Q What treatment if any did Dr Bosler give you when he saw you

A He gave me a cortisone injection into my left shoulder

Q Did he send you away for any

A He sent me away for an ultrasound

Q Did you lose any time or did you take any time off work following this fall in 1996

A No

23. The applicant said that thereafter her left shoulder caused her discomfort as she worked.

24. A difficulty with this account is that Dr Bosler asserted very firmly in reports tendered that the applicant told him on 17 January 1996 that she had trouble with her left shoulder and neck, but did not tell him of any incident at work. He noted that he treated her then and later as a Medicare patient.

25. Although this discrepancy raises the possibility that the applicant did not fall down as she asserts, I consider the probability to be that she did. A report of injury was made, no doubt with reference to the named witness. My doubts as to the applicant’s recollection do not go so far as to conclude that she would either fabricate of imagine an incident such as that alleged.

26. Dr Bosler ordered x-rays which were normal and an ultrasound of the left shoulder which was reported as normal except that there was reference to a click when the arm was at 80 - 90 degrees abduction. The significance of this was said to be uncertain. The doctor treated the applicant on a number of occasions with modified ultrasound therapy

27. On 28 June 1996 the applicant was cleaning an air conditioning duct when the ladder she was standing on slipped and she fell off grabbing the top rung with my right arm.

28. The applicant gave evidence that her left leg went through the ladder onto the ground and that she felt a tearing sensation in her right shoulder. She could not remember if there was any effect on her left shoulder. The applicant also said she had pain in the left foot. She saw Dr Peters and Dr Bosler, who gave her a cortisone injection into the right shoulder. She did not lose any time from work.

29. Dr Peters was seen by the applicant on 2 July 1996 with a history of the fall and a complaint of injury to the right shoulder. The doctor noted a contusion to the right knee. On examination of the shoulder there was tenderness and restricted movement. The Doctor had no note in her clinical notes of an injury to the left foot, although the applicant insisted that she mentioned that matter to the doctor. The doctor did have a note which may have been only history as to the left shoulder. She did not refer to either the left foot or the left shoulder in her report of 27 August 1996 to the respondent’s insurer.

30. An x-ray was normal, however, ultrasound showed disruption of some of the anterior fibres of the biceps tendon and possible traumatic tendonitis of the anterior aspect of the supraspinatus tendon.

31. Dr Peters diagnosed injury to the right shoulder as a result of the fall, this injury including injury to the biceps tendon and part of the supraspinatus tendon.

32. Dr Bosler saw the applicant on 4 July 1996, 8 July 1996 and 27 August 1996 giving her treatment including injections of Procaine and Depo- medrol into the right supraspinatus tendon.

33. The doctor diagnosed supraspinatus tendonitis with some disruption of the anterior fibres of the biceps tendon. He observed that if it could be established that the applicant injured her right shoulder at work liability existed.

34. On 16 March 1997 the applicant had another incident which she described as follows:

Yes, I got my foot caught under a ledge that the birds had dug out while I was rushing through the sheds and I was propelled forward and I grabbed the hopper and did a 360 degree turn and landed on my tailbone.

35. The applicant said that she grabbed the hopper with her right arm and that when she landed it caused her a lot of pain.

36. The applicant went to Dr Peters on the same day. The account was somewhat different. The history recorded by the doctor as set out in her report to the insurer of 9 October 1997 is relevantly as follows:

As her foot caught she spun around clockwise injuring her left foot, right shoulder and left shoulder. She did not fall to the ground but managed to save herself.

37. The doctor recorded a complaint of pain over the upper back and that the left foot was extremely painful. There was some soft tissue swelling of the foot and x-rays showed minor degenerative changes.

38. Clearly enough the injured foot is the injury the applicant ascribed to the incident on 28 June 1996. I am persuaded by the note and other references that the applicant more probably than not injured her left shoulder as well as her right in saving herself. However, having regard to the positive account recorded in the report of not falling I an not satisfied that the applicant fell to the ground on that occasion.

39. The applicant worked on, however, I accept that she was having pain in her shoulders. It is relevant to note that I accept a comment by Dr Peters, who obviously knew the applicant well as a long term patient, my prediction is that Mrs Masters will continue at work for as long as she is able. She also described the applicant as very genuine and industrious.

40. Those comments appeared in the report of 9 October 1997. Dr Peters noted in that report that the applicant returned to see her on 4 July 1997 owing to continuing pain in the right and left shoulder. She continued:

On examination I noted that the left foot was still painful. The left and right shoulder had an abduction of 90 degrees only with reduced extension. Her neck movements were restricted and both shoulders demonstrated crepitus on movement. I referred Mrs Masters for an ultrasound and x-ray on both shoulders and her cervical spine. The x-ray was done on the 26/8/1997, a copy of which is enclosed. The cervical spine shows a number of degenerative changes as outlined in the report. Her shoulder showed significant partial thickness tear of the right supraspinatus of the right side and on the left side a small surface tear possibly chronic within the supraspinatus.

41. Dr Peters referred the applicant to a consultant neurologist, Dr Hughes. That doctor said:

It seems quite clear that Mrs Masters has bilateral rotator cuff tears and also has some mild degenerative disease of the cervical spine.

42. The doctor also said:

No doubt Mrs Master’s occupation where frequent lifting is involved is exacerbating her problems with her shoulders. This is quite likely to be leading to an exacerbation of her unsteadiness.

43. The doctor referred to the applicant’s bad posture which he, it may be inferred, considered a major factor in her unsteadiness because of consequent cervical paraspinal muscular contraction.

44. Dr Hughes considered that the applicant’s major problem was with her shoulders and he thought that they should be attended to. He recommended an orthopaedic surgeon Dr Creer as having an interest in rotator cuff tears.

45. The applicant was examined by Dr Creer in December 1997. The doctor had a history of the injury to the left shoulder in January 1996, to the right shoulder later in 1996 and to both shoulders on 16 March 1997. The doctor considered that the applicant had bilateral partial thickness rotator cuff tears. The doctor put the applicant off work and she has not worked since.

46. It is convenient to note at this point that it was the difficulty with her shoulders that caused the applicant to give up work.

47. An MRI of the left shoulder was normal, however, for reasons he gave, Dr Creer proceeded to an arthroscopic acromioplasty of the left shoulder on 16 November 1998. There was found to be an articular surface partial thickness tear of the supraspinatus portion of the rotator cuff, there was also some fraying in the subacromial space over the supraspinatus portion and the CA ligament.

48. The applicant continued to have trouble with the shoulder. She had physiotherapy, massage and cortisone injections into the gleno-humeral joint. In his last report of 30 September 1999 Dr Creer noted that an ultrasound done on 30 September 1999 showed a rotator cuff tear of the supraspinatus segment. An x-ray showed that there was still prominence of the lateral portion of the acromium. He recommended an acromioplasty and rotator cuff repair to the left shoulder.

49. The applicant had not undergone that surgery. She gave evidence, which I accept, that she has a dull ache all the time and that it becomes worse on increased activity.

50. The applicant did not have the same treatment in respect of the right shoulder. She has pain, she says, in that shoulder all the time but it is not as bad as the left. She does have limited movement and the pain is aggravated by normal household duties.

51. It is convenient to deal at this point with the claim for lump sums in respect of the left and right arms.

52. The only assessments proffered on behalf of the applicant where those of Dr Hopcroft. That doctor examined the applicant for her solicitors on 23 February 1999, 10 February 2000 and 14 July 2000. The doctor had also seen the applicant on referral from Dr Peters on 29 April 1999.

53. Dr Hopcroft had a history of the injury to the left shoulder on 16 January 1996 and to the right shoulder on 28 June 1996. He did not have a history of the March 1997 incident.

54. In his report of 23 February 1999 the doctor said:

This patient is obviously suffering from changes in her right shoulder proven arthroscopically with symptoms dating in that left shoulder from 16/1/96. She is yet to have an arthroscopy of her right shoulder where symptoms date from a fall of 28/6/96.

55. The doctor also noted pain at the level T1 and over the lumbosacral spine and as yet x-rays have not been performed in that area either.

56. On the examination of 29 April 1999 the doctor found that the applicant had marked reduction in range of movement of the left shoulder in terminal flexion and abduction of approximately 40 per cent with tenderness over the anterior capsule of the left gleno-humeral joint. There was a freer range of movement and the applicant was more pain free on the right side, but there was still restriction on the terminal part of flexion and extension.

57. On 10 May 1999 Dr Hopcroft provided a series of assessments. As Mr Rowles correctly commented the doctor does not assign the causation of any particular impairment or loss to an identifiable injury or event.

58. Nonetheless, he does express the view that the applicant has a permanent loss of efficient use of the left arm at or above the elbow of 20 per cent and a similar loss in respect of the right arm at 10 per cent.

59. The doctor was not cross-examined.

60. In his report of 10 February 2000 the doctor increased his assessment in respect of the right arm to the same as the left arm, that is 20 per cent.

61. The doctor said:

This patient is suffering from advancing cervical and lumbar spondylosis and advancing problems of both shoulders where rotator cuff tears and underlying osteoarthritis is also in evidence.

62. I think it is to be inferred form the doctor’s reports to that date that he considered that the rotator cuff tears were caused by the employment incidents of which he was aware. In this report he refers to the March 1997 incident and to the applicant catching a wire hopper, however, he does not refer to further injury at that time to the shoulders, appearing to be concentrating on the back. Clearly from Dr Peter’s reports and notes the shoulders were injured at that time.

63. Dr Hopcroft does not make any allowance for a deductible proportion under s68A. He does, however, refer to underlying osteoarthritis apparently in relation to the shoulder.

64. Whilst Dr Hopcroft does assess 10 per cent permanent impairment of the neck he does not expressly allow for any radiation or other effect from the neck, in relation to his assessment of the losses in the arms. In the absence of cross-examination I accept the doctor’s assessments as relating to the injuries to the shoulders.

65. In his report of 14 July 2000, following a further examination of that day, the doctor adhered to his assessments and observed:

I believe that it is without doubt that the nature and conditions of this patient’s arduous work has contributed significantly to her current significant physical incapacity and has both significantly caused and exacerbated those pervious changes in her spine and shoulders.

66. Dr Kwok, a neurosurgeon, examined the applicant for Dr Peters on 27 May 1998. He had a history of damage to the left shoulder and neck in January 1996 and to the right shoulder in June 1996. The doctor also had a history of funny sensation in the occipital area the applicant suffered in 1996 when she was seen by Dr Hughes. He noted that a test for Meniere’s disease was negative. He also noted a period in Intensive Care following a crushing sensation in the left chest. Relevant tests at that time were negative.

67. At that examination the doctor noted that the range of movement of the cervical spine was full and free with a bit of tenderness on palpation of the lower mid line cervical area. The doctor noted severe reduction of range of movement of the shoulder bilaterally.

68. Dr Kwok said:

Clinically, her problem is mainly coming from shoulder joint dysfunction as I did not find a lot of evidence of cervical restriction or evidence of radiculopathy or myelopathy.

69. Dr Cant examined the applicant for the respondent on 20 October 1999. Dr Cant, it is apparent, was supplied with reports from Dr Hopcroft, Dr Bosler, Dr Creer and other material.

70. The doctor had a history of injury to the left shoulder in January 1996 and to the right shoulder in June 1996. He had a history of the March 1997 fall but does not refer to shoulder injury at that time. The doctor appears to attach some significance to Dr Bosler’s note that the applicant did not tell him of a work injury on 16 January 1996. I have already stated my conclusion as to that.

71. Dr Cant is of the view that the applicant has symptoms and signs of degenerative disease in both shoulders, particularly the left, degenerative disease in her cervical spine and lumbar spine and entrapment of the lateral cutaneous nerve of the thigh on the right.

72. The doctor considers that all the applicant’s disorders are due to age-related degenerative disease of a constitutional type. He said:

It is my opinion that Mrs Masters’ retrospective attempt to relate these disabilities to her employment is not supported by the nature of the pathology.

73. Dr Cant considered there to be no evidence that the applicant had any disability as a result of her employment with the respondent. The doctor makes an assessment of permanent loss of function in the right arm at or above the elbow of not more than 5 per cent and in the order of 10 per cent of the left, entirely due to age-related degenerative disease of a constitutional type.

74. Dr Limbers examined the applicant for the respondent’s solicitors on 20 October 1999. The doctor had a history of the injuries to left and right shoulders and of a fall in March 1997.

75. In respect of that incident, the history Dr Limbers was given was that:

She went into a 360 spin, landing on her bottom. She had severe pain in the coccygeal area

76. I have already referred to the conclusion I have reached in respect of the claimed fall. Dr Limbers does not refer to the shoulder at that time.

77. Dr Limbers did not find any obvious wasting in the shoulders. Abduction of the left shoulder was restricted by 40 degrees with a complaint of pain. Internal rotation was limited by 10 degrees. Other movements were reasonably full. Abduction of the right shoulder was limited by 30 degrees. Internal rotation was limited by 10 degrees. Pain was noted at the extreme range of these movements. Other movements were full.

78. Dr Limbers diagnosed rotator cuff tears of both shoulders. He considered that the symptoms would continue with restrictions in movement. He thought the applicant’s complaints were reasonable and were caused by the injuries claimed.

79. Dr Limbers gave other assessments but it would appear not one for the shoulder. Counsel agree that no adverse inference should be drawn from the absence of the tender of such an assessment.

80. Dr Chan examined the applicant for the respondent on 3 April 2000. The doctor had a history of the injury to the left shoulder and to the right shoulder. As to the incident of March 1997 his history was:

One day when she was doing that her leg got caught among the chickens and she did a full turn down in her bottom and used her left arm to protect herself.

81. Dr Chan found abduction and forward flexion of the shoulders to be around 70 degrees and extension 20 degrees. The applicant could touch the back of her head only if she turns the head to that side and bends her head. She can touch her upper lumbar spine.

82. Dr Chan did not think that any of the applicant’s complaints were due to her work. Amongst other things he considered that she had widespread osteoarthritis which usually indicates a genetic predisposition.

83. In respect of the shoulders the doctor said:

Tears in the supraspinatus tendon around her age are usually degenerative in origin. The fact that the MRI test done on her shoulder in March 1998 showed that there was no tear in the supraspinatus tendon will confirm this fact.

84. The doctor did not consider that the applicant’s work with the respondent had accelerated the degenerative changes.

85. As to the MRI it is relevant to note that Dr Creer, who decided to operate despite the normal MRI, found, on operation, a partial thickness tear of the supraspinatus portion of the rotator cuff. Presumably Dr Chan had the MRI but not the operation findings.

86. Particularly the evidence of the applicant, the notes and reports of Dr Peters, the reports of Dr Kwok and Dr Creer, supported by the view of Dr Limbers, lead me to conclude that, more probably than not, the applicant did injure her left shoulder on 16 January 1996, her right shoulder on 28 June 1996 and both shoulders on 16 March 1997.

87. I also think it more probable than not that as a result of the injuries of 16 January 1996 and 16 March 1997 the applicant has suffered 15 per cent permanent loss of the efficient use of her left arm at or above the elbow. And that as a result of the injuries of 28 June 1996 and 16 March 1997 she has suffered 10 per cent loss of the efficient use of her right arm at or above the elbow.

88. There is evidence to support the fixing of a deductible proportion under s68A on the basis of age related degeneration of the rotator cuff and osteoarthritis of the shoulder. Dr Hopcroft , it is agreed, does not deal with the matter at all. The respondent’s doctors, in the main, attribute the whole problem to age related degeneration. For the issue to be properly dealt with several of the doctors would need to be called and cross-examined as to the basis for their views. This is an appropriate situation to apply s68A(6) and fix a deductible proportion of one tenth. Such an approach is not at odds with the evidence I accept.

89. The award I shall make crosses the threshold under s67(2) and the applicant is entitled to an award under s67. Because of the involvement of the events of 16 March 1997 and the injury to both shoulders on that day the losses to be taken into account relate to both arms. (See Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12NSWCCR 716).

90. The amount provided for a most extreme case is $50,000 and the task of the Court is to determine a figure appropriately proportional to that sum. Whilst there is no one most extreme case the Court tends to think of young paraplegics or massive brain damage cases.

91. This case is very far from that. However, the applicant has undergone and will undergo considerable pain and discomfort from the condition of her arms. It is they that stopped her working and it is clear that the inability to continue at work caused and will continue to cause her distress and anxiety. Her personal grooming and household activities have been interfered with and made uncomfortable. It is relevant to note that she is now 65 years of age.

92. Doing the best I can, I consider that an appropriate proportionality is maintained by an award under s67 of $10,000.

93. I turn now to the other table items claimed.

94. A claim is made in respect of 10 per cent permanent impairment of the neck. Dr Hopcroft’s assessment is 10 per cent, Dr Cant’s 5 per cent and Dr Chan’s 5 per cent. The helpful schedule of assessments handed up by Mr Deggens states that Dr Limbers made no assessments, however, one of the reports from him which was tendered stated:

She has no permanent impairment of the cervical spine when compared to a most extreme case.

95. Dr Cant and Dr Chan are of the view that any problem with the applicant’s cervical spine is age related. I note also the view of Dr Kwok as to the condition of the applicant’s neck when he examined her in May 1998, which I set out above.

96. I am not satisfied that, more probably than not,, the applicant has permanent injury of her neck resulting from the injuries alleged.

97. A claim is made in respect of 15 per cent permanent impairment of the back. Dr Hopcroft’s assessment is 15 per cent, Dr Cant’s 5 per cent. Dr Chan’s 10 per cent. Dr Limbers said:

With regard to coccydynia, she has a probable 5% permanent impairment of her back when compared to a most extreme case.

98. Dr Cant and Dr Chan consider the back condition to be purely the result of age related changes. Dr Limbers diagnosed in respect of the back no more that some minor discomfort in the lumbo-sacral spine due to early degenerative changes, other than for coccydynia. As to that he said:

There was quite marked tenderness over the low sacro-coccygeal area, especially over the coccyx, with obvious coccydynia being present. There is tenderness in the tailbone.

99. Apart for his reference to the conditions of employment to which I have referred earlier, Dr Hopcroft considered that the applicant’s back had been injured by the rotational strain of the fall of March 1997. Dr Hopcroft considered that this view was supported by the x-ray report of 24 February 1999 which referred for the first time to a unilateral right sided pars interarticularis defect of L5. Dr Chan said of this:

The radiologist had labelled an area on the right pars interarticularis indicating it as a defect. It does not exactly look like one and the films taken in 1993 look similar.

100. The conclusion to be drawn is still further complicated by the circumstance that I do not accept that the applicant fell. Whether and how much that view would alter Dr Hopcroft’s view is not clear. Dr Chan observed that the applicant had a rotational scoliosis which had been present for many years, well before she commenced with the respondent.

101. Dr Limbers accepted that the applicant had coccydynia. He clearly considered that it resulted form the claimed fall in March 1997. However, the evidence does not establish that the applicant fell on that occasion. However, the evidence does establish that the applicant frequently fell and it follows from Dr Limbers view that a fall or falls can cause coccydynia. No other cause for the condition was suggested.

102. In assessing Dr Hopcroft’s view as to injury on 16 March 1997 it has to be taken into account that the applicant did not lose work and indeed ultimately only stopped working because of her shoulders.

103. No doubt a relevant factor in considering this circumstance is the applicant’s very strong work ethic and her resort to alternative treatments. Nonetheless, in seeking to resolve the conflict between medical views, especially in the absence of oral evidence from the doctors, it is to my mind significant that the applicant was able to work on as she did.

104. Whilst I do not find it established that the applicant suffered a back injury of continuing significance on 14 May 1997, I do consider that I should accept that, more probably than not, the degenerative changes in the applicant’s back were, and have remained, aggravated by the nature of the work she did including the falls she suffered and also that she suffered coccydynia as a result of those falls.

105. The applicant bearing the onus I am of the view that, more probably than not, the degree of permanent impairment resulting form the matters referred to is 10 per cent.

106. Having regard to the evidence, in particular, of Dr Cant and Dr Chan and the degenerative changes shown in the investigations I consider that there should be a deductible proportion of one half. I do not adopt the s65A(6) provision because I consider that it would be at odds with the evidence including the applicant’s history of back problems.

107. A claim is made in respect of 15 per cent permanent loss of the efficient use of each leg at or above the knee. Dr Hopcroft’s assessment is 15 per cent for each leg, Dr Cant had no complaint of leg problems, Dr Chan’s assessment was 10 per cent for each leg. Dr Limbers did not have any complaints as to the legs except as to some discomfort over the left foot area. No claim as to the left foot was pressed before me. Dr Chan considers the condition of the legs as due to age related changes.

108. The applicant seems to relate radiating pain in her legs as a bit after the 1996 fall and becoming more prominent after the 1997 fall. There is, however, no reference I can find in the medical material of such symptoms until the report of Dr Hopcroft of 29 April 1999 (his second report) where there is reference to some numbness down the anterolateral aspect of her right thigh and pain in her lumbosacral area radiating to the left side and down the posterior aspect of the left thigh. The applicant had not worked since December 1997.

109. In that report the doctor expressed the view that the rotation strain, of which I have referred earlier, significantly affected the lumbosacral spine and is responsible for not only the pain there but the changes which are occurring into her legs.

110. As I have indicated I am not satisfied, more probably than not, that an injury such as postulated occurred and it follows that I do not accept that explanation for the pain in the legs.

111. I do not consider that the applicant’s recollection of the onset of symptoms and of events is good enough for me to be satisfied on that alone that she commenced to have trouble with her legs earlier. Indeed Dr Hopcroft’s detailed and careful report of 23 February 1999 made no mention of such symptoms and he speaks of changes occurring.

112. The applicant gave the following evidence in cross-examination:

Q Dr Peters was your main treating doctor

A Yes

Q Do you say you told Dr Peters at any time about this radiating leg pain either in your right arm and left leg

A I don’t know whether I mentioned it or not Mr Rowles

Q Might the situation have been that you have never told Dr Peters anything about radiating leg pain in either of your legs

A I don’t know Mr Rowles, I haven’t got a report in front of me so I don’t know whether I have or I haven’t but I feel sure that I would have mentioned it

Q You have been attending on Dr Peters on a fairly regular basis for a fairly long period of time, do you agree

A Mmm. Since 19982.

Q What I am suggesting is that you do not appear to have told Dr Peters anything about your radiating leg pain. Can I just stand corrected there if I may. What I am suggesting to you is that on the occasions that you saw Dr Peters you have not told Dr Peters anything about radiating leg pain. Might that be the position.

A I feel sure I would have if I had been experiencing it at the time

Q You see what I am suggesting to you is certainly that the leg pain that you have been having if you have been having any leg pain at all has not been something that has been causing you a lot of difficulty.

A I can still walk around, I’m still mobile, just causes me a lot of discomfort to sit.

113. With the ageing process continuing to occur I do not consider that the applicant, who bears the onus, has established that there has been any permanent loss of efficient use of her legs resulting from the injuries relied upon.

114. I should mention that Dr Bosler refers to first seeing the applicant on 22 December 1993 on reference from Dr Peters. At that time she told him that a chiropractor jumped on her and she experienced a tearing sensation. The doctor diagnosed a chronic sacro-iliac ligament strain with hypermobility of the left sacro-iliac joint. He treated the applicant then and later on 8 July 1986. The applicant’s experience with that doctor, she explained, took her to him in January 1996, rather than waiting to obtain an appointment with Dr Peters.

115. In her report of 9 October 1997 Dr Peters says:

I have seen Mrs Masters since that time in July and September 1997, with continuing pain in the left leg, for which I have referred her to Dr Hughes, neurologist. This left lateral neck pain radiating to her ear may be radiation from her cervical spine.

116. It is clear from the doctor’s clinical notes and Dr Hugh’s report that the word leg is in error for ear.

117. The applicant has claimed a general order for hospital and medical expenses which I shall make. The applicant has also claimed a declaration that as a result of her injuries it is necessary for her to be provided with a spa bath.

118. Mr Rowles submitted that the Court had no jurisdiction to make such a declaration. As I indicated when the point was raised the Court has been making such declarations for a very long time and, were I minded to make such a declaration in this case, I would follow the established precedent.

119. However, there are other difficulties. The only evidence of the point is that of Dr Hopcroft. He said in his report of 10 July 2000:

With regard to long term management of this patient’s multiple problems I believe that the installation of a spa bath in her home would be economically and practically the most appropriate direction for her to take. She would with such an appliance be able to undertake daily treatment herself and I believe in the longer term this would significantly reduce the costs of ongoing medical management although I believe from time to time physiotherapy and deep tissue massage will still be useful as adjunctive therapy.

120. Although Dr Hopcroft did an one occasion, so far as appears, see the applicant at the request of Dr Peters his general involvement does not appear to be that of a treating doctor.

121. His view relates to the applicant’s multiple problems and I have not accepted that all these complaints result from the injuries alleged.

122. The applicant did not give evidence that a trial of a spa had proved beneficial. There is no evidence , let alone evidence from the principal treating doctor, Dr Peters, that a regime had or could be developed that would replace some of the alternative remedies pursued by the applicant. There is no evidence that the applicant is prepared to undertake daily treatment herself in lieu of the course of treatment she presently pursues.

123. The principles relating to what is reasonably necessary medical treatment are conveniently discussed in Rose v Health Commission of New South Wales [1986] NSWCC 2; (1986) 2 NSWCCR 32.

124. I am not persuaded that the evidence before me would justify the making of a declaration as sought. It may be that the parties can agree upon an appropriate regime of treatment which may include the provision of a spa, perhaps instead of other more expensive modalities. To avoid unnecessary expense I will grant liberty to apply should there be a further contest on this issue. I should mention, however, that a matter to be taken into account in relation to the costs of any further application would be that the claim was presented with very limited evidence on this occasion.

125. My findings may be summarised as follows:
(a) The applicant suffered injury to her left shoulder on 16 January 1996 and on 16 March 1997 arising out of and in the course of her employment with the respodent
(b) The applicant suffered injury to her right shoulder on 28 June 1996 and 16 March 1997 arising out of and in the course of her employment with the respondent
(c) As a result of the injuries of 16 January 1996 and 16 March 1997 the applicant suffered 15 per cent permanent loss of the efficient use of her left arm at or above the elbow with a deductible proportion of one tenth
(d) As a result of the injury of 26 June 1996 and 16 March 1997 the applicant suffered 10 per cent permanent loss of the efficient use of her right arm at or above the elbow witha deductible proportion of one tenth
(e) The applicant suffered injury to her back between 7 September 1987 and 19 December 1997 arising out of and in the course of her employment with the respondent
(f) As a result of the said injury to her back the applicant has suffered permanent impairment of the back being 10 per cent of a most extreme case with a deductible proportion of one half

126. I make an award for the applicant:

Under s 66 in the sum of $10,125 in respect of 15 per cent permanent loss of efficient use of the left arm at or above the elbow after allowing for the deductible proportion

In the sum of $7,200 in respect of 10 per cent of permanent loss of efficient use of the right arm at or above the elbow aftere allowing for the deductible proportion

In the sum of $3,000 in respect of permanent impairment of the back after allowing for the deductible proportion

Under s67 in the sum of $10,000

Medical expenses - s60

I expect the parties to agree upon any claim for interest but grant liberty to apply if they are unable to do so

Respondent to pay the applicant’s costs
Mr J P Deggens instructed by Emery Partners appeared for the applicant
MR T Rowles instructed by Hicksons Wisewould appeared for the respondent