Lump sum compensation for non-economic loss - worker with permanent spinal disability - exempt employer not attending final hearing but tendering documents - credibility of worker - medical evidence - impact on ability to lead a normal life - decision to award 5% of prescribed sum varied to 10%.

RE: HAWKES AND LOCAL GOVERNMENT ASSOCIATION (CORPORATION OF THE CITY OF WEST TORRENS)

Determination of Review Officer made on 3rd December, 1992

This is the determination of an application for review dated 8th May, 1992 by Karen Lee Hawkes as worker under a contract of service with the Corporation of the City of West Torrens as employer. The application seeks a review pursuant to the Workers' Rehabilitation and Compensation Act, 1986 ("the Act"), of a decision made on 26th March, 1992 by the exempt employer assessing the worker's lump sum compensation entitlement at 5% of the prescribed sum.

At the hearings the worker was represented initially by Mr T Bourne and subsequently by Ms P Kaempf of counsel of Stanley and Partners. The worker was in attendance and gave sworn evidence at the final hearing. The employer was represented at the initial hearing by Ms G Gabriel, Senior Claims Administrator. The exempt employer was not represented at the final hearing. I note on file a notice of hearing dated 17th September, 1992 addressed to the Local Government Association outlining the date, time and location of the hearing. There being no indication from the employer on the unsuitability or otherwise of the time set aside for the hearing I decided to proceed to hear the case before me in the absence of the decision-maker. It was not until the completion of the hearing that I received a bundle of documents from the exempt employer which acknowledged the hearing time and date and included a brief letter and three doctors reports, which were already on file, and a status report on the worker compiled by the employer. Although the issue of written submissions was not raised by either party at the previous hearing I have interpreted the recent documentation sent by the exempt employer as constituting some form of written submission by the employer on this case.

In reaching my determination I take into account the oral evidence of the worker, the submissions of the parties and the contents of various medical reports tendered by counsel at the hearings. These include reports from Mr P A Humble, Orthopaedic Surgeon, dated 12th March, 24th March and 22nd July, 1992, Dr D J Shakes, the worker's initial treating general practitioner, dated 11th July, 1989, and Dr C M Bollen, the worker's subsequent treating general practitioner, dated 18th October, 1991 and 12th October, 1992, and Ms W Sinclair, Chiropractor, dated 18th September, 1989.

The issue in dispute before me is the quantum of assessment determined by the employer pursuant to Section 43(3) of the Act. In their decision of 26th March, 1992 the employer assessed the worker's lump sum compensation entitlement in the following terms:

"Pursuant to Section 43(3) of the Worker's Rehabilitation and Compensation Act 1986, on behalf of the Local Government Association of South Australia as the nominated Exempt Employer and the location being the Corporation of the Corporation (sic) of the City of West Torrens, we have determined with respect to the disability to your cervical spine sustained by you on the 8th of January 1988 which disability arose from your employment that;

(a) The disability is permanent and is compensable under the Worker's Rehabilitation and Compensation Act, 1986;

(b) As a result of the disability you have lost 5% of full and efficient use of your cervical spine;

(c) Pursuant to Section 43 of the above Act you are entitled to Compensation for non-economic loss by way of lump sum in the amount of $3,505.00.

We have, in fixing the above percentage, taken into account the opinion expressed as follows:

By Dr Peter Humble in his reports dated the 12th of March 1992 and the 24th March 1992 copies of which are attached, wherein he states that you have suffered a 5% loss of efficient use of the cervical spine, and where he expressly takes into account in that percentage the effect, of the disability upon your ability to lead a normal life. He has agreed that your condition has now stabilised."

The exempt employer reaffirmed its assessment of a 5% permanent disability in its letter dated 7th October, 1992 relying upon and referring to the medical reports of Dr Shakes, Ms Sinclair and Mr Humble. Further on the basis of their own internal documentation the employer argued:

"As can be seen from the Status Report enclosed the worker only lost 10 days from work for the period 11 January to 22 January 1988. Medical expenses incurred were also very minimal, which would indicate that the worker originally sustained a very minor disability."

On the other hand, it was counsel for the worker's submission that the worker's condition may with time deteriorate further as evidenced by the worker's increasing difficulties in tolerating her condition with the passage of time. Ms Kaempf argued that more weight should be attached to the medical opinions expressed in the reports of Dr Bollen as opposed to the medical opinion expressed by Mr Humble in his reports who had "been asked to do a Phillips decision (and was) underestimating the extent of the problems". Finally it was counsel for the worker's submission that Ms Hawkes' disability should be more appropriately assessed at 20% of the prescribed sum.

The history of this case is as follows. The worker was involved in a car accident whilst on her way home from work on Friday, 8th January, 1988. Ms Hawkes was a front seat passenger in a car driven by her spouse at the time of the accident. As a consequence of the accident the worker sustained an injury to her spine and in particular to her neck and lower back, which originally manifested itself as soreness and stiffness of the neck region. Since the car accident the worker has continued to experience ongoing problems with both her neck and lower back. Ms Hawkes consulted a chiropractor on the day of the accident who referred her for x-rays and advised relaxation and hot showers. The worker has been seeing her chiropractor on a fortnightly basis which continued up until approximately a year ago and now consults her chiropractor for treatment on an as needs basis and specifically when she experiences a "flare up".

It was the worker's evidence that anything requiring backwards or forwards movements or holding her neck in the same position caused difficulties. Further, as a consequence of her injuries the worker experiences headaches approximately three to four times a week which last between two to three hours duration and sometimes for the whole day. According to Ms Hawkes she had never experienced any problems prior to the accident in relation to headaches, although she did indicate that she did experience the occasional sinus headache usually in spring time. To relieve her headaches the worker takes Panadol applies cold compresses and rests. According to Ms Hawkes she experiences difficulties on a day to day basis in relation to her work activities and also social and recreational activities as a consequence of her disability. In relation to her work duties Ms Hawkes has adapted her working environment which has assisted in reducing the effects of the difficulties she experiences with her neck and lower back. Although the worker indicated that she is now slower in undertaking and completing tasks as a receptionist the use of a head set to deal with incoming phone calls and stopping and changing her duties when encountering difficulties meant that she was able to continue and complete her working day. In relation to domestic duties, Ms Hawkes indicated that she experienced problems with vacuuming (which had been alleviated by the purchase of a new vacuum cleaner), hanging out washing and cleaning the shower. She also avoided any lifting, for example shopping, and stated that her husband was most helpful in assisting with domestic chores at home. Ms Hawkes indicated that although not very active she used to attend intermediate aerobic classes on a weekly basis. Since her injury she had attempted on three occasions to resume those classes but has been unsuccessful as she found she was unable to keep up and she experienced headaches and neck problems after the classes.

I will now turn to the medical evidence and specifically that of Mr Humble and Dr Bollen, both of which express a medical opinion in percentage terms in relation to the worker's permanent disability. Mr Humble examined the worker on one occasion and prepared three reports in relation to the worker's condition. Mr Humble diagnosed "mild soft tissue injury" to the worker's neck, which in his report dated 24th March, 1992 he assessed:

". . . . . the permanent residual disability in percentage terms will represent about 5% loss of efficient use of her neck or the cervical part of her spine."

Dr Bollen, in his report dated 18th October, 1991 diagnosed that the worker was suffering from:

". . . . . an initial cervical spine soft tissue tear/sprain which initially improved then plateaued over the past two years where there has been no real change. She has probably been left with residual scarring of the muscles/ligaments of cervical spine with no evidence of a disc lesion."

In his subsequent report dated 12th October, 1992 Dr Bollen expressed his medical opinion in the following terms:

"From a physical point of view, her neck pain and headaches are a result of chronic ligamentous strain, initiated by the acute injury in the motor vehicle accident, but aggravated by poor posture.

I find it difficult to quantify these problems into percentage terms but will endeavour to do so. I also must take into account her posture and her need to address this in the future, to give symptomatic relief.

I believe she has lost 5% of her neck function, and about 2% of her lower back function.

However, in terms of pain and suffering, the total percentage based on her complaint of pain and inability to lead a normal life is 7%."

In reviewing all of the evidence before me I am satisfied that the worker suffers a compensable disability. In her oral evidence the worker outlined how her life has been affected by the disability. She has given her evidence in a truthful and straightforward manner and I accept her as a credible witness. In reaching my determination I rely principally on the evidence of the worker as to the effect her disability has had on her ability to lead a normal life and I also have regard to the reports of Drs Bollen and Humble. Although a minor disability, I find the worker's ability to lead a normal life has been impaired by her disability. I find the worker has developed a no-fuss approach to her disability which is reflected in terms of her acceptance of her disability and her attempts to work around those difficulties experienced to the extent that she is able to significantly reduce the impact and effects of her condition.

I accept the employer's submission that the worker's disability is minor, I do not accept the submission as is indicated in their letter dated 7th October, 1992 that the severity of an injury can be properly assessed in terms of the amount of medical treatment and expenses incurred. As is indicated by the worker's evidence, Ms Hawkes has sought medical attention and treatment on an as needs basis and has, in the main, attempted to deal with her condition and in particular her pain experience and headaches in a practical manner which is based on her knowledge of her limitations and pain experience.

Applying the principles enunciated in the Full Supreme Court in the matter of the Workers Rehabilitation and Compensation Corporation v. Phillips, (1991) 160 LSJS 251; [1991] SASC 2863, and taking into account the requirements of Section 43(3) and the evidence before me, I find that the worker has a permanent compensable disability for non-economic loss amounting to 10% of the prescribed sum for 1988.

Accordingly, pursuant to Section 96 of the Act, I set aside the decision of the exempt employer and decide in substitution for that decision that the worker is entitled to a lump sum of compensation for a permanent compensable disability assessed and fixed at 10% of the prescribed sum for 1988.

I certify that the applicant was represented at the hearings by legal counsel and is entitled to reimbursement of costs of representation and reasonable disbursements appropriate to this application for review.

Any appeal against this determination must be lodged with the Workers' Compensation Appeal Tribunal within one month of the receipt of this determination. Enquiries about appeals may be directed to the Registrar of the Tribunal, Eighth Floor, Riverside Centre, North Terrace, Adelaide Phone: 207 0999), and forms for appeal are available from the same address.