Bourke v State of New South Wales (Ambulance Service of NSW)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bourke v State of New South Wales (Ambulance Service of NSW) [2022] NSWPIC 332
APPLICANT:	Brent Bourke
RESPONDENT:	State of New South Wales (Ambulance Service of NSW)
MEMBER:	Rachel Homan
DATE OF DECISION:	28 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for compensation for pain and suffering; exempt worker; dispute as to quantum of lump sum payable; permanent impairment of the lumbar spine assessed at 11% Whole Person Impairment; applicant returned to full-time suitable work but remained unfit to perform pre-injury work as a paramedic causing distress; successful outcome from lumbar surgery; minimal interference with activities of daily living and recreational pursuits; ongoing subtle radiculopathy with intermittent flare ups; relatively young age at time of injury; possibility of accelerated degenerative changes in the future; Held – Tyler v Marsden Industries applied; respondent to pay $18,500 representing 37% of a most extreme case; orders as to costs.
DETERMINATIONS MADE:	1. The respondent to pay the applicant lump sum compensation pursuant to s 67 of the Workers Compensation Act 1987 in the amount of $18,500. 2. Liberty to the respondent to apply within seven days should it wish to make further submissions as to the appropriate costs order. 3. In lieu of further submissions, the respondent to pay the applicant’s costs as agreed or assessed.

STATEMENT OF REASONS

BACKGROUND

Mr Brent Bourke (the applicant) was in the course of his employment with State of New South Wales (Ambulance Service of NSW) (the respondent) as a paramedic when he sustained an injury to his lumbar spine on 7 July 2012.
The applicant was awarded lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 11% whole person impairment (WPI) of the lumbar spine as a result of that injury in accordance with a Medical Assessment Certificate (MAC) issued by Dr Frank Machart on 21 December 2021.
The applicant made a claim for lump sum compensation pursuant to s 67 of the 1987 Act on 21 February 2022. In response, various offers were exchanged but the parties were unable to agree as to the amount of compensation to be paid.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 29 April 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) the quantum of compensation to be paid to the applicant pursuant to s 67 of the 1987 Act, and
(b) orders as to costs.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 27 June 2022. The proceedings were conducted on the Microsoft Teams platform. The applicant was represented by Mr Timothy Abbott. The respondent was represented by Mr Simon Hunt of counsel, instructed by Ms Miriam Browne. A representative from the insurer was also present.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    documents attached to an Application to Resolve a Dispute lodged by the respondent on 20 June 2022.
Neither party applied to adduce oral evidence or written submissions.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by him on 18 February 2022.
The applicant stated that he gained employment with the respondent as a paramedic in 2008.
Prior to the injury on 7 July 2012, the applicant was in good health and able to perform the physical work required of a paramedic. The applicant had previously worked as an officer of the National Parks and Wildlife Service and as a ski patroller.
The applicant had previously undergone surgery to his back following an injury whilst playing rugby union at university in 1996. The surgery achieved a good result and the applicant was able to carry on with life as normal until the work injury.
The work injury occurred when the applicant was sitting on a footstool at a hospital. As the applicant stood up. He felt something go in his back and a popping sensation. This caused severe pain, which spread down into the applicant’s left leg and ankle.
The applicant was referred to neurosurgeon, Dr Richard Parkinson, and underwent a CT scan and MRI scan. Dr Parkinson diagnosed a herniated disc impinging on the sciatic nerve. Dr Parkinson initially recommended conservative non-invasive treatment. The applicant’s condition did not improve and on one occasion he experienced an acute exacerbation of his pain whilst tucking sheets into a bed.
Dr Parkinson recommended surgery, but approval was declined by the insurer in reliance on an opinion by Dr Vidyasagar Casikar. The applicant said:
“This delayed any further surgical treatment for about a year. That year was terrible for me - I continued to experience pain and loss of mobility. At first, I could only walk halfway down my driveway before the pain became too much.”
The applicant underwent a hemi laminectomy and discectomy on 13 August 2013. The applicant responded well to the surgery and subsequently underwent extensive physiotherapy and hydrotherapy. The applicant did lots of walking.
After completing rehabilitation, the applicant was certified as having capacity to return to work with a permanent 15 kg lifting restriction. This meant that the applicant was unable to continue working as a paramedic. The applicant left the ambulance service in 2014.
The applicant subsequently obtained employment as an agricultural soil analyst for two years. Thereafter, the applicant worked for the Department of Agriculture as a technical officer.
On 3 April 2017, the applicant commenced work as a sales manager covering the southern New South Wales and north-eastern Victorian regions. This role required extensive driving of approximately 80,000 km per year. The driving aggravated the applicant’s back and caused chronic pain and numbness down his left leg into his ankle. The applicant tried to manage his pain with Panadol and Nurofen but this was not sustainable. The applicant resigned and commenced his current employment as an environmental coordinator on 21 January 2019.
The applicant’s current role combined working in the field and office work. The applicant was not required to lift heavy weights. The applicant did not experience the same problems as he did in his sales manager role due to sitting in a flexed position for long periods of time.
The applicant described his current symptoms:
“My back condition is now stable. I am less mobile now compared to before the accident. I have limited ability to flex and rotate my back. My left leg is stiff and has lost strength.
I have a scar across my back where the surgery was performed, about 10cm long.
I continue to have tenderness and muscle tightness in this region. I have a constant dull ache in my left leg. The ache extends from my upper-hamstring down into the ankle, and sometimes into the top of my foot. The pain flares up intermittently, particularly when sitting for long periods of time or jerky/unexpected movements. I try to avoid or manage the pain though home physiotherapy, hydrotherapy, and walking. When the pain becomes intolerable, I use Panadol and Nurofen.”
The applicant said he was limited with what he could do at work and had to be mindful of his movements to avoid aggravating his back, particularly with lifting, pulling or pushing activities. The applicant was able to do most things at home but to a different extent. The tasks were slower and the applicant lifted small quantities. The applicant avoided rotating and lifting objects off the ground.
The applicant described the psychological impact of his symptoms:
“The accident affects me emotionally. It has affected my wife and children. It is tough to know that the job I was passionate about has been taken away from me. I sought treatment from a psychologist named Karen Myers to cope. It is still tough to talk about it now. Helping people as a paramedic is what I want to do, but I can't do it anymore. I thought it was job I would be doing until I retired.”

Treating medical evidence

Attached to the Reply are clinical records from Blamey Street Surgery dating from 12 July 2012.
Clinical notes recorded in July 2012 describe the work injury. The applicant was prescribed Voltaren, Endone, OxyContin and Valium.
On 3 August 2012, it was noted that the applicant was very limited functionally by pain and had spent the night in the Emergency Department the previous Wednesday.
In September and October 2012, the notes record that the applicant was “going well” and showed “steady improvement”.
On 19 November 2012, Dr Charles Oliver recorded:
“Has reached a plateau working 6 hrs/day He spoke to Dr Parkinson who thinks surgery indicated partial discectomy.”
On 27 February 2013, it was recorded that the applicant’s work had suggested counselling. The applicant was given a referral to Karen Myers.
On 16 May 2013, Dr Oliver recorded:
“going well full Hrs just on panadol and voltaren RV by Dr Parkinson soon”
On 9 September 2013. It was noted that the applicant was three weeks post operation.
Dr Oliver recorded:
“going well less pain down leg sitting more comfortably”
On 28 January 2014, Dr Oliver noted:
“going well nil pain relief needed still seeing R Turnbull. Dr Parkinson happy. Starting new work in Ag, lifting limit 15kg”
On 27 August 2014, it was recorded:
“New business going well and he seems happy and fitter getting out and about W/C cert the same hopefully can close case next Yr”
On 27 November 2014, similar observations were recorded.
On 26 August 2015, Dr Oliver noted:
“is well working full time occ slight pain but is careful with back”
A year later, on 24 August 2016, Dr Oliver noted,
“15kg lift working full time in his own Ag business Home physio walking Cycling , looks well”
On 30 July 2018, Dr Oliver recorded at a six monthly check:
“doing well, active, nil treatment for back not fit to go back to paramedic work but full time in current position no dramas”
On 31 August 2018, it was noted:
“Has job lined up as field officer Based Jindabyne area
Letter to state he is fit to Undertake the role
Mostly controlled environment
Can lift 20 KG and carry pack for 45 mins some dry fire fighting roles.
Has made remarkable recovery from original back injury”
On 23 February 2019, general practitioner, Dr Rachel Glasson recorded:
“started work at Thredbo recently and loves it no issues, back pain entirely settled but remains under restrictions as per Dr Parkinson”
The applicant continued to be issued with WorkCover certificates until 19 October 2020.

Dr Anderson

The applicant relies on a medicolegal report prepared by occupational physician,
Dr Tim Anderson, dated 29 September 2020.
Dr Anderson took a history of an injury to the applicant’s lower lumbar spine resulting in discogenic pathology. This was managed by surgery giving a very good result. Dr Anderson said that at the time of his assessment there were no significant clinical findings.
With regard to activities of daily living, Dr Anderson noted:
“He keeps physically very active with a lot of walking and swimming.
He has no difficulty with driving and can manage a couple of hours quite comfortably. He is also able to help around the house and can cut the grass.”
With regard to the applicant’s present complaints, Dr Anderson recorded:
“He finds that holding himself in a fixed postural position for long periods of time causes irritation of his lower back. With his current job, this rarely occurs, and he is able to do most activities.”
Upon physical examination of the lumbar spine, Dr Anderson recorded,
“There was no complaint of pain, nor was there any tenderness.”
Upon examination of the lower limbs it was noted that the applicant was able to walk normally as well as on heel and toe and could carry out a full squat. The legs were equivalent in length and circumference. Straight leg raising was to 60° bilaterally. The applicant was able to fully extend each knee. Sensation to pin prick was normal and equivalent. Reflexes were present and equivalent at the knees and ankles.
With regard to future treatment, Dr Anderson gave the opinion:
“For the future, it is most important that he should continue with his own self-managed stretch, exercise and aquatics work. A lot of his job now necessitates walking bush trails and this is excellent. I would just urge that he should watch his weight.”
With regard to prognosis, Dr Anderson advised:
“There is always the possibility of accelerated degenerative change in the lower lumbar spine. Nevertheless, if he keeps himself physically active with these different activities, this should retard and minimise such further development.”
Dr Anderson considered the applicant was easily fit to continue with his current occupation but was unfit to return to work as a paramedic or other work involving heavy lifting, carrying, pulling, pushing and twisting.

Dr Casikar

The respondent relies on medicolegal reports prepared by consultant neurosurgeon,
Dr Vidyasagar Casikar, dated 22 March 2013 and 22 February 2021.
In his first report, Dr Casikar took a history of the injury and noted that the applicant subsequently underwent physiotherapy for five days. As his symptoms continued, the applicant contacted his family physician, Dr Oliver, who advised to take time off work for two weeks and continue with physiotherapy. The applicant subsequently returned to light duties and was still performing light duties. As at the date of Dr Casikar’s assessment, the applicant reported that he felt he was getting better.
Dr Casikar took a history of the recurrence of sciatic pain on 31 July 2012 whilst making a bed at home. The applicant was subsequently diagnosed as having a disc prolapse and advised to take OxyContin and Tramal. The applicant was referred to Dr Parkinson who, on 31 October 2012, suggested surgery. The applicant refused this because he found he was already improving. Dr Casikar recorded:
“Mr Bourke has been doing light duties from 14 August 2012. He does five days a week, six hours a day. At this stage, Mr Bourke indicated that the sciatic pain is distinctly better (‘quite a lot’). The back pain has ceased. He takes Voltaren only when required. He also indicated that he is rapidly decreasing his pain medication as he feels that this is not necessary. Mr Bourke seems to indicate that his problem is getting better.”
Dr Casikar did not consider that the proposed surgery was reasonably necessary as the applicant was improving significantly, his neurological problems had resolved and a recent MRI scan showed significant regression of the disc prolapse.
In his subsequent report, Dr Casikar noted that the microdiscectomy had been performed, following which the applicant’s left leg sciatic pain had improved significantly. The applicant experienced some numbness in the ankle, when sitting for a long time. Dr Casikar noted that the applicant had worked as a sales representative in 2017 for two years during which time he had to drive long distances. Dr Casikar recorded:
“Mr Bourke feels that his surgery has done him good. He has remained well. He takes Nurofen only when necessary.
…
He does all the recreational activities as before. He can drive. He walks and he is quite comfortable.”
Dr Casikar recorded that the applicant did not have any great symptoms except occasional back pain and only took medication when necessary. The applicant was not having any active treatment for his back pain at that stage. The applicant had no trouble with personal, domestic care or garden maintenance. The applicant’s recreational activities had not been curtailed.
Asked for an opinion on prognosis, Dr Casikar commented:
“The prognosis of his condition is good. He had a very specific reoccurrence of this prolapse at L5/S1 space, the microdiscectomy has provided him a good outcome. The neurological examination is completely normal except for an absent ankle jerk, this is a common feature after the disc surgery.”

Medical Assessment Certificate

In proceedings W3350/21, the applicant was assessed by Medical Assessor,
Dr Frank Machart, who issued a MAC on 10 December 2021.
The applicant’s present treatment was described as:
“Exercise, which includes swimming/hydrowork, and walking.”
The applicant’s present symptoms were described as:
“Left leg pain and numbness, extending from the hamstrings into the outer aspect of the left foot, constant background ache, usually tolerable. Intermittent flare-ups, aggravated by lengthy sitting. He does not experience back pain as a rule. He is able to do all the necessary day to day activities, including housework. He is unable to run. He cuts the lawn and does the gardening. Although he is careful about how he does things. He continues full-time employment.”
Dr Machart summarise the injury as follows:
“Mr Bourke sustained a lumbosacral disc protrusion which caused radiculopathy. Symptoms severity alleviated by surgical evacuation of the L5/S1 disc. Signs of radiculopathy persist, subtle but nevertheless present.”
Dr Machart assist the applicant as having 14% WPI at the lumbar spine but made a deduction of one quarter pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998, leaving 11% WPI.

Submissions

The parties made oral submissions at the arbitration hearing on 27 June 2022.
In summary, the applicant’s submissions noted the applicant’s relatively young age, being 36 at the time of injury on 7 July 2012. It was noted that the applicant had previously been in good health despite the prior injury in 1996.
The applicant submitted that, following the injury, surgery had been recommended by
Dr Parkinson but delayed for about a year due to the opinion of Dr Casikar. During this period, the applicant described significant pain and loss of mobility.
The applicant noted that he was forced to give up work as a paramedic, a career he found personally rewarding and enjoyable. During the period in which the applicant was employed as a salesrepresentative, he was required to perform extensive driving which aggravated his pain. The applicant found he was unable to sustain that work and resigned.
The applicant’s statement evidence as to his current symptoms was noted. The applicant was less mobile, had limited ability to flex and rotate, was stiff and had constant dull, aching.
The applicant was limited in what he could do and had to be mindful when performing physical activities. Although the applicant was able to do many things, he had to do these in a slow fashion.
The applicant noted that Dr Anderson had given an opinion that his condition would degenerate over time, suggesting his pain and suffering may get worse. The applicant described being affected emotionally, particularly due to the job he was passionate about being taken away from him.
The applicant referred to relevant arbitral and presidential decisions and submitted that compensation in the range of 40 to 50% of a most severe case was appropriate.
The respondent agreed on the principles to be applied but submitted that the clinical records gave a different picture to that painted in the applicant’s statement as to the impact of the injury. The respondent referred to the clinical records noted above and submitted, for example, that the applicant’s evidence as to the difficulties experienced during the period he was working as a sales representative were not reflected in the contemporaneous clinical records. For most of the period covered by the clinical records, the applicant was not complaining of pain and not being prescribed pain medication. The clinical records suggested a good recovery from the surgery. The applicant was getting on with life, happy and fit.

The respondent referred to Dr Casikar’s first report and noted that the applicant reported that his sciatic pain was distinctly better and his back pain had ceased. At the time of Dr Casikar’s second report, the applicant reported that the surgery was successful and he was taking only Nurofen when necessary.
The respondent referred to a number of comparable arbitral decisions and submitted that 30% of a most extreme case would be the ceiling.
With respect to costs, the respondent submitted that a costs order should be reserved and an order made for further submissions or agreement following the Commission’s determination. The respondent submitted that the claim for compensation under s 67 should have been brought with the s 66 claim. The respondent’s submissions on cost would depend on the amount of compensation awarded, noting the offers that had been made previously.
In response to the respondent’s submissions with respect to costs, the applicant submitted that a claim for compensation under s 67 was not made at the same time as the claim for lump sum compensation for permanent impairment as the respondent’s case had been that the applicant would receive less than 10% WPI based on Dr Casikar’s opinion. The applicant saw no basis to withhold orders as to costs on the basis of the previous offers made.

FINDINGS AND REASONS

There is no dispute in these proceedings that the applicant is an exempt worker and entitled to receive compensation pursuant to s 67 of the 1987 Act, having exceeded the 10% permanent impairment threshold, as assessed by Dr Machart.
Section 67 relevantly provides:
“67    Compensation for pain and suffering
(1)    A worker who receives an injury that results in a degree of permanent impairment of 10% or more is entitled to receive from the worker’s employer as compensation for pain and suffering resulting from the permanent impairment an amount not exceeding $50,000. Pain and suffering compensation is in addition to any other compensation under this Act.
…
(2)    Because there is a distinction between injury and impairment resulting from an injury (and compensation is payable under this section only for pain and suffering resulting from impairment), the pain and suffering for which compensation is payable does not include pain and suffering that results from the injury but not from the impairment.
(3)    The maximum amount of compensation under this section is payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity of the permanent impairment.
…
(4)    The amount of compensation payable under this section in any particular case shall, in default of agreement, be determined by the Commission.
…
(7)    In this section:
pain and suffering means:
(a)  actual pain, or
(b)  distress or anxiety,
suffered or likely to be suffered by the injured worker, whether resulting from the permanent impairment concerned or from any necessary treatment.”
In Jones Bros Bus Co Pty Ltd v Baker[1] Kirby P said:
“There is no necessary proportion, or even relationship, between awards for permanent impairment or loss (on the one hand) and for pain and suffering (on the other). It is by no means unusual for a high percentage impairment or loss of a limb to have consequences for pain and suffering which are less significant; and vice versa.”
[1] (1992) 8 NSWCCR 30.
Section 67(3) does, however, require that the amount of compensation payable under s 67 should be reasonably proportionate having regard to the severity of the permanent impairment.
In Alvorac General Engineering Pty Ltd v Arlotta[2], the Court of Appeal said that the definition in s 67(7) of pain and suffering, being ‘actual pain’ or ‘distress and anxiety’ was narrower than the matters conventionally included in an award of general damages in common law proceedings.
[2] (1993) 9 NSWCCR 177.
In Tyler v Marsden Industries[3] (Tyler) at [14], Wright C noted the factors and principles to taken into account in determining an appropriate amount under s 67:
[3] [2001] NSWCC 194.
“· Pain and suffering awards under s 67, unlike the objective criteria in s 66 awards for physical loss and impairment, must take into consideration the actual individual experiences of the claimant, as to his or her past and future pain and suffering.
· The measure of the extreme case must be compared with the measure of a most extreme case and does not need to make a comparison with the most extreme case.
· The pain and suffering must result from the loss/impairment and not merely the injury (s 67(1A); Scrimshaw v SAR Wood Pty Ltd (1997) 14 NSWCCR 335).
· Pain may be compensated even if the extent of the loss and its effects are not assessable until a later date (Selimovic v Airfoil Registers Pty Ltd ( [1999] NSWCC 29; 1999) 18 NSWCCR 143).
· Pain and suffering is compensable from the date of the compensable injury and not merely from the date on which the loss/impairment is crystallised (Rico v Roads and Traffic Authority (1992) 8 NSWCCR 515; Corporate Ventures Pty Ltd v Borovac (1995) 12 NSWCCR 84; Bohanna & Appleton t/as Anscot Partnership v Bohanna (1996) NSWCCR 724).
· There is no necessary relationship between the impairment/loss and the intensity and duration of the pain and suffering. If an award is excessive upon a review of all the circumstances, an award may be overturned on the basis of falling outside the range of a sound discretionary judgment (Ainsworth Nominees Pty Ltd v Crouch (1995) 11 NSWCCR 640).
· The age of the claimant is relevant. In Regal Paints Pty Ltd v Wasson (1993) 9 NSWCCR 301, the Court of Appeal observed (Priestley JA at 306C) that the younger a person is at the time of injury (loss) the greater is the chance that the worker would get into an extreme case category, but each case has to be looked at on its own merits due to the potential for the same injury to affect different workers differently. The Court of Appeal reiterated in Ainsworth Nominees Pty Ltd v Crouch (Kirby A-CJ at 652F) that age was a relevant consideration because age at injury had implications for the expected duration of any pain and suffering.
· Distress caused by interference with social activities (Department of School Education v Boyd (1996) 13 NSWCCR 289) or by the effects of the compensable injury on a worker’s relationships including marriage (Pacific Dunlop Ltd v Krivec (1996) 13 NSWCCR 353) can be relevant.
· Objective factors may include the type of surgical procedures undergone, the nature of the convalescent process and any complications flowing therefrom, as well as the need for medication and difficulty with sleeping (Dubbo Base Hospital v Harvey (1996) 13 NSWCCR 545).”
In the present case, I accept the applicant’s submission that due to his relatively young age as at the date of injury, the duration of his pain and suffering is likely to be lengthy. This is a factor weighing in favour of an award at a higher amount.
It is necessary, however, to look at the applicant’s particular experience and circumstances. There is no doubt that following the work injury, the applicant experienced a significant onset of pain. This is reflected in the clinical records, which confirm that the applicant was rendered unfit to perform his pre-injury duties and treated with prescriptions of Voltaren, Endone and OxyContin. Although the applicant’s injury was initially managed conservatively through medication, physiotherapy and regular reviews by the applicant’s general practitioner, he ultimately came to surgery which was performed in August 2013.
The respondent’s submissions draw attention to the opinion of Dr Casikar, given in his first report in March 2013. At that time, Dr Casikar recorded that the applicant reported feeling better, the applicant’s back pain had ceased and the applicant was rapidly decreasing his pain medication as he felt it was not necessary.
Nonetheless, the surgery was performed and the applicant underwent period of rehabilitation.
The treating medical evidence that followed the surgery is notable for recording a good result from the surgery. The prescription of medication had ceased, although the applicant was noted to continue using physiotherapy and Nurofen as required. The applicant returned to full-time work, although the applicant’s evidence confirms that he has remained unfit for his pre-injury work as a paramedic.
The clinical records note that in the period before the surgery, counselling had been suggested for the respondent. Consistently with this evidence, the applicant confirmed that he was referred to a psychologist, Karen Myers, for treatment. There is no further evidence of treatment by a counsellor, psychologist or psychiatrist. The applicant has, however, given evidence as to the emotional impact of the injury. The applicant identified the inability to perform his previous work as a paramedic as a source of particular distress.
About a year after the surgery, the applicant was recorded to be happy, fitter and getting out and about. The applicant’s new business was reported to be going well, although the applicant continued to be issued with certificates of capacity, presumably recording that he was unfit for his pre-injury duties. On a number of occasions, it was noted that no pain relief was required although the applicant continued to access physiotherapy.
The applicant’s statement describes a period in which his pain and suffering were exacerbated by his role as a sales manager, requiring significant driving. The respondent has noted that the increase in the applicant’s symptoms is not reflected in the clinical records.
I note, however, that at the relevant time, the applicant was only being reviewed by Dr Oliver on a six monthly basis. I am not satisfied that the clinical records give a complete picture of the applicant’s actual experience. Given that the medical evidence consistently records that the applicant’s symptoms were exacerbated by prolonged sitting and driving, I accept that the applicant did experience an increase in symptoms during this period, and that this prompted him to seek alternative employment.
The clinical records demonstrate that the applicant was fit to undertake his current role and that this involved lifting 20 kg and carrying a pack for 45 minutes at a time. Elsewhere in the evidence, the applicant’s current role is described as involving walking bush trails and dry firefighting.
In terms of the applicant’s activities of daily living, the evidence is consistent in suggesting that the applicant was able to perform most activities including household chores and lawnmowing. I accept, however, that the applicant approaches such activities with caution and continues to experience some restrictions as a result of his permanent impairment. The applicant is unable to run.
The most recent account of the applicant’s symptoms is set out in the MAC. Consistently with Dr Anderson’s report, this confirms that the applicant experiences pain as a constant dull ache in the left leg representing subtle ongoing radiculopathy. This is usually tolerable although the applicant experiences intermittent flareups. Generally speaking, the applicant does not experience back pain. The applicant’s treatment has consisted of swimming/hydrotherapy and walking.
I have noted Dr Anderson’s opinion on prognosis that there is a possibility of accelerated degenerative change in the lower lumbar spine. I accept that there is the prospect of increased pain and suffering as a result of the permanent impairment in the future.
Dr Anderson has, however, noted that if the applicant continues to keep himself physically active, this should retard and minimise such further development.
It is relevant to note that the degree of permanent impairment was assessed at 11% WPI, being at the lower end of the scale. I do, however, accept that there is no necessary correlation between the degree of permanent impairment and the degree of pain and suffering.
A determination as to the appropriate sum to be awarded pursuant to s 67 involves questions of fact and degree, matters of opinion, impression, speculation and estimation. It is not possible to determine with precision an amount representing the “correct” figure. The respondent has submitted that the applicant’s case would not exceed 30% of a most extreme case, whereas the applicant suggests a figure in the range of 40 to 50% of a most extreme case is more appropriate.
On one hand, the nature of the applicant’s permanent impairment and his relatively young age suggest the duration of pain and suffering which can be expected will be lengthy. There have been periods of increased pain immediately following the injury, associated with the significant surgery and a period of work during which the applicant was undertaking considerable driving. There is evidence of ongoing albeit subtle radiculopathy manifesting as a constant dull ache with intermittent flareups. There is evidence of an ongoing incapacity to perform pre-injury duties, which is a source of particular distress. There is a possibility of increased symptoms in the future associated with accelerated degenerative change due to the injury.
On the other hand, the applicant has been able to return to full-time suitable employment and the clinical records suggest that the applicant has been happy and well performing that work. The impact of the permanent impairment on the applicant’s activities of daily living and recreational activities is relatively limited, although restrictions remain. The applicant’s pain is generally tolerable and controlled with Panadol and Nurofen. At present, the applicant’s only other treatment is exercise consisting of walking and hydrotherapy. There is no evidence of recent or ongoing treatment for psychological symptoms.
Weighing all of the relevant considerations and having regard to the comparable cases to which the parties have referred, I am satisfied that a figure representing 37% of a most extreme case or $18,500 is appropriate.
I have also considered the parties’ submissions as to costs. I will give liberty to the respondent to apply within seven days should it wish to make further submissions as to the appropriate costs order. In lieu of further submissions, the usual order will apply such that the respondent is to pay the applicant’s costs as agreed or assessed.

[2022] NSWPIC 332

28 June 2022