Walker v Uniting Church in Australia, NSW Synod t/as Pymble Ladies' College and Ascham School Ltd [2001] NSWCC 4 (9 March 2001)

Last Updated: 5 September 2001

NEW SOUTH WALES COMPENSATION COURT

CITATION: Walker v Uniting Church in Australia, NSW Synod t/as Pymble Ladies' College and Ascham School Ltd [2001] NSWCC 4


PARTIES:
Valerie M Walker
v
Uniting Church in Australia, NSW Synod t/as Pymble Ladies' College and Ascham School Ltd


CASE NUMBER: 30243 of 2000 of 2001.00


CATCH WORDS: Elements of Workers Compensation


LEGISLATION CITED:


CORAM: Neilson J

DATES OF HEARING: 09/03/01

EX TEMPORE DATE: 09/03/2001


LEGAL REPRESENTATIVES

FOR APPLICANT:
Mr V Jurisich instructed by P K Simpson & Co appeared for the applicant.
FOR RESPONDENT:
Mr W J Roche instructed by Grahame Goldberg Partners appeared for the respondents.


JUDGMENT:

1. Mrs Valerie May Walker of Hawkes Bay in the Dominion of New Zealand, claims weekly payments of compensation from May 1999 to date and continuing pursuant to s 40. She also claims lump sums under s 66 for 20 per cent impairment of her back and 5 per cent loss of efficient use of the left leg at or above the knee and a consequential lump sum for pain and suffering pursuant to s 67.

2. According to the Application for Determination, the applicant worked at Pymble Ladies' College from 1991 to 1992 as a house mistress. It is also alleged that she worked between 1992 and 1993 in the same role for Ascham School. No frank injury is relied upon. What is relied upon is the type of work that the applicant performed for each respondent, making beds and lifting and carrying groceries and linen for approximately 52 teenage students at the Pymble Ladies' College but only for 50 students at Ascham School.

3. The applicant has not elected to call any evidence. The evidence does disclose that the applicant worked for Pymble Ladies' College from 22 February 1992 to 17 July 1992 as an acting house mistress. The applicant then commenced working for the Ascham School on 20 July 1992, and it is agreed that she last worked for the Ascham School until 25 June 1993.

4. The applicant first presented to Dr Warwick Stenning, a consultant neurosurgeon, on 1 April 1996. The applicant gave Dr Stenning a history of having pain in the left leg when she walked radiating from her knee to her foot and also pain in the upper leg radiating from the hip to the knee. The applicant told the doctor that she had had those symptoms "for some years". A CT scan was performed which showed a moderate degree of lumbar canal stenosis at the L4 to S1 level with a broad-based disc protrusion. Dr Stenning thought that it was a moderately severe lumbar canal stenosis at the L4/5 level. He recommend decompressive laminectomy; as I understand it, that has been performed.

5. In a short report of 10 August 1998, Dr Stenning pointed out that the applicant did not give the doctor history of any work-related injury during the period that he treated her, that is between 1 April 1996 and 14 October 1996 and as a result he was unable to provide any WorkCover medical certificate. Also tendered is a letter from Dr S Bransgrove bearing date 30 June 1998, which will be Exhibit 4. Dr Bransgrove first saw the applicant on 15 September 1995 and gave that doctor a positive history that the complaint was not work-related. The applicant gave the doctor a history of left-sided sciatica present for some three years, but that it had recently worsened. There was no complaint, clearly, to treating doctors prior to laminectomy of any work-related injury or work-related problem.

6. Tendered in the respondent's case are statements of her duties. I have closely read those and there is nothing to suggest that the applicant's duties which were supervisory and clerical involved any major physical exertion. Furthermore, there is no record of any injury with either respondent nor any complaint of pain nor any claim for compensation prior to the applicant's leaving each employment.

7. In those circumstances, I am not persuaded on the balance of probabilities that the applicant suffered any injury arising out of or in the course of her employment with either the first or the second respondents.

8. I make an award for the first and second respondents.

9. Each party will bear her or its own costs.
Mr V Jurisich instructed by P K Simpson & Co appeared for the applicant.
Mr W J Roche instructed by Grahame Goldberg Partners appeared for the respondents.