Tysoe v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tysoe v State of New South Wales (NSW Police Force) [2024] NSWPIC 265
APPLICANT:	James Tysoe
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	John Turner
DATE OF DECISION:	22 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 67; injury to the cervical spine and left shoulder; dispute limited to the quantum of pain and suffering compensation payable pursuant to section 67; Government Supply Department v Abbott, Tyler v Marsden Industries, Jones Bros Bus Co Pty Ltd v Baker, Staker v North Broken Hill Pty Ltd, O’Neill v Star City Pty Ltd, Ainsworth Nominees Pty Ltd v Crouch, Rico Pty Ltd v Road Traffic Authority, Corporate Ventures Pty Ltd v Borovac, and Bohanna & Appleton v Bohanna cited; Held – award in favour of the applicant for pain and suffering compensation pursuant to section 67 in the amount of $12,000.
DETERMINATIONS MADE:	The Commission determines: 1. That there is an award in favour of the applicant for pain and suffering compensation pursuant to s 67 of the Workers Compensation Act 1987. The Commission orders: 2. The respondent is to pay the applicant $12,000 for pain and suffering compensation pursuant to s 67 of the Workers Compensation Act 1987. 3. The respondent to pay the applicant’s costs as agreed or assessed.

STATEMENT OF REASONS

BACKGROUND

Mr James Tysoe, the applicant, was at all relevant times employed by the State of New South Wales (NSW Police Force), the respondent, as a Senior Constable.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which he pleads that he sustained injury to his cervical spine and left shoulder on 10 April 2019 whilst undertaking a defence tactics training course in the course of his employment.
The applicant pleads that he was required to undergo an intense, high pressure, two minute, individual, defence tactics test which involved the use of all tactical options including striking, hitting, wrestling, handcuffing, as well as the use of all weapons such as batons and firearms. The applicant alleges that shortly after completing the test he experienced pain in his left shoulder and as his left shoulder condition worsened, he also noticed pain and stiffness in his cervical spine.
It is not in dispute that the applicant sustained injury to his cervical spine and left shoulder and the parties have agreed that the applicant suffers a 10% whole person impairment (WPI) as a result of the injuries sustained to his cervical spine and left shoulder on 10 April 2019.
The applicant claims in these proceedings’ compensation pursuant to s 67 of the Workers Compensation Act 1987 (the 1987 Act) for pain and suffering.
In addition to the neck and left shoulder injuries the subject of these proceedings the applicant has sustained injury to his back as well as a psychological injury.
In respect to his back injury the applicant underwent a microdiscectomy at L4/5 in 2016 and a fusion at the L4/5 level in July 2019.
The applicant has made a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act for a 24% WPI plus pain and suffering compensation at 60% of the most extreme case in the amount of $30,000. That claim has not as yet been resolved.
In respect to the psychological injury the applicant has been compensated for 17% WPI for psychological injury sustained on the deemed date of 29 January 2020 plus pain and suffering pursuant to s 67 of the 1987 Act in the amount of $22,500.

ISSUES FOR DETERMINATION

The following issue remains in dispute:
(a) the quantum of compensation payable for pain and suffering pursuant to s 67 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The parties at a preliminary conference agreed to the determination of the matter on the papers without a conciliation conference/arbitration hearing.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    respondent’s Application to Admit Late Documents dated 21 February 2024 with attachments.
The respondent’s Application to Admit Late Documents dated 21 February 2024 was admitted into evidence by consent, at the initial conference held on 27 February 2024.

SUBMISSIONS

The parties have submitted the following written submissions:
(a) applicant’s submissions dated 6 March 2024, and
(b) respondent’s submissions dated13 March 2024.
The applicant has not lodged submissions in reply to the respondent’s submissions.

FINDINGS AND REASONS

Consideration and findings

There is no dispute that the applicant is entitled to pain and suffering compensation pursuant to s 67 of the 1987 Act.
Pursuant to s 67(2) pain and suffering compensation is only payable for pain and suffering resulting from impairment. Pain and suffering compensation is not payable for pain and suffering that results from the injury but not from the impairment.
Section 67(7) defines pain and suffering as follows:
“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.”
The parties correctly agree that the maximum amount of compensation potentially payable to the applicant for pain and suffering pursuant to s 67 of the 1987 Act is capped at $50,000. The applicant claims pain and suffering compensation in the amount of $15,000. The respondent submits that at the most the applicant’s pain and suffering equates to 10% of “a most extreme case” which translates to a monetary amount of no more than $5,000.
Section 67(3) provides that the maximum amount of pain and suffering compensation is payable only in “a most extreme case”. In Government Supply Department v Abbott (1993) 9 NSWCCR 276 the NSW Court of Appeal used quadriplegia as an example of a most extreme case.
The amount of pain and suffering compensation payable in any other case other than a most extreme 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.”[1]
[1] Section 67(3) 1987 Act.
The amount of the pain and suffering compensation is not tied to the assessment of permanent impairment or loss.[2]
[2] See: Jones Bros Bus Co Pty Ltd v Baker (1992) 8 NSWCCR 30; Staker v North Broken Hill Pty Ltd [1992] NSWCC 18; (1992) 8 NSWCCR 332; O’Neill v Star City Pty Ltd [2006] NSWWCCPD 259.
Wright C in Tyler v Marsden Industries [2001] NSWCC 194 (Tyler) at [14] provides the following useful summary of the law in respect to the factors and principles to take into account in determining an appropriate amount under s 67:
“· 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).”
It is submitted on behalf of the applicant that the applicant is relatively young. As previously noted, age is a relevant consideration when assessing pain and suffering compensation. The age of a worker at the time of injury has implications in respect to the expected duration of any pain and suffering.[3] The applicant is currently 49 years of age and was 44 years of age at the time of injury.
[3] Ainsworth Nominees Pty Ltd v Crouch (1995) 11 NSWCCR 640.
I accept the respondent’s submission that the applicant could not be considered a youth however whilst the applicant was not a young man at the time of injury, being what would be generally considered middle aged, the applicant will have to live with the pain and suffering resulting from his impairments for a substantial and not inconsiderable portion of his life based on current life expectancies.
It is submitted on behalf of the applicant that he should be compensated for the pain and suffering that he has suffered since the injuries were sustained.
It is settled law that pain and suffering is compensable from the date of the compensable injury and not merely from the date on which the loss or impairment is crystallised.[4]
[4] Rico Pty Ltd v Road Traffic Authority (1992) 8 NSWCCR 515; Corporate Ventures Pty Ltd v Borovac (1995) 12 NSWCCR 84; Bohanna & Appleton v Bohanna (1996) 13 NSWCCR 724.
The actual incident in which injury was sustained on 10 April 2019 does not appear to have been distressing to the applicant as it is the applicant’s evidence that he did not begin to experience pain in his left shoulder until shortly after completing the test[5] and that his neck became stiff and sore with the deterioration of his left shoulder symptoms.[6] The applicant did subsequently however experience significant levels of pain.
[5] ARD p 2.
[6] ARD p 3.
It is the applicant’s evidence, which I accept, that the pain in his left shoulder gradually became worse, to the point that he could not move his shoulder and at this time his neck also became stiff and sore.[7]
[7] ARD p 3.
The applicant’s evidence is consistent with the histories recorded by the orthopaedic surgeon, Dr Peter Giblin, who provided a forensic report to the applicant dated 8 March 2022 and by the sports physician, Dr Paul Annett.
Dr Giblin records that shortly after the training session the applicant noticed that his left shoulder was aching and that the left shoulder quickly deteriorated to the point where it locked up and then his neck became stiff and sore.[8]
[8] ARD p 24.
The applicant’s submissions drew attention to a report of Dr Annett dated 12 February 2020 who also recorded that the applicant reported that the “pain got so bad that he was really unable to use or move his arm for a period of time…”[9]
[9] ARD p 64.
The applicant’s pain did however improve. Dr Frank Stein, a specialist in orthopaedics and trauma, reported to Dr Jacman Yu on 11 December 2019 that the applicant presented complaining of left shoulder pain which radiated down his arm as well as neck pain but with no restriction of movement. Dr Stein noted that the pain came most of the time in a static position such as driving a car. Dr Annett in his report of 12 February 2020 described the applicant’s pain as “constant and low grade” but which worsened with driving, putting arms over his head and repetitive activities.
The injury management consultant, Dr Mark Jones, reported to the respondent on 4 March 2021 that the applicant reported constant pain in his left lateral neck radiating to the superior shoulder and down the left arm to the left little and ring fingers mainly, left thumb pain, broad aching in his biceps and scapular region, a constant ache in his left temporal region which radiated pain to his eye, shooting pains on the top of his head to his eye.
Dr Jones recorded that elevating the left upper limb aggravated the pain with activities such as cleaning the pool, gardening, driving and using a computer causing aggravation. The applicant reported to Dr Jones that he drove local distances only. He did not attempt lifting with his left upper limb. He required a neck support whilst sitting. The applicant’s hobbies included gardening.
Dr Jones reported to the respondent on 22 December 2021 that the applicant reported constant neck pain radiating into his left upper limb and shoulder. There was aching in the neck radiating to the left side of his head and shooting pain into his left eyeball. The applicant reported intermittent anterolateral generalised shoulder pain, a driving tolerance of up to 45 minutes with pain in his left shoulder when his arm is outstretched whilst driving and that overhead movement increased his pain.
The applicant reported to Dr Jones a significant recent increase in his left shoulder pain which he described as “excruciating” after performing edging.
The applicant reported to Dr Jones that his sleep was uncomfortable due to his neck and shoulder pain.
Dr Giblin in his report dated 8 March 2022 recorded that the applicant’s shoulder symptoms were associated with pins and needles and a burning sensation down his left arm and into the ulnar border of his hand.[10]
[10] ARD p 24.
It is the applicant’s evidence that as a result of the injuries sustained to his neck and left shoulder he suffers from daily headaches, constant neck pain, constant left shoulder and left arm pain, that he often experiences shooting pain over his head to his left eye as well as pain around the left side of his head and through his temple to his left eye.[11]
[11] ARD p 4.
It is the applicant’s evidence that simple things such as looking down when he is washing his hands or looking at his phone causes increased neck pain. That he has difficulty putting on his shoes and socks as these activities can cause pain in his shoulders. That, as Dr Jones recorded, he has difficulty cleaning his pool as the activity causes increased neck pain and headaches. That at times his neck spasms when he turns his head which causes him to call out in pain. That at times he suffers from cramping in his neck. The applicant claims that his neck and left shoulder pain is “exhausting”.[12]
[12] ARD p 5.
It is the applicant’s evidence that he has difficulty getting to sleep because of the pain in his neck and left shoulder, and the nerve pain radiating down his left arm to his hand.[13] Dr Jones had reported on 22 December 2021 that his sleep was uncomfortable due to his neck and shoulder pain. A/Prof Courtenay, orthopaedic surgeon, who provided a forensic report to the respondent dated 6 October 2022 recorded that the applicant reported that sleeping was generally difficult. He could not sleep on his left side.
[13] ARD p 5.

It is the applicant’s evidence that he was medically retried by the respondent and that he lost a career that he loved. That he misses the comradery and social aspect of attending work, talking with colleagues and the general public and that he misses having a purpose and helping to protect people.[14]
[14] ARD p 6.
The respondent submits that the evidence supports that notwithstanding the left shoulder and cervical spine injuries the applicant could work pre-injury hours on modified duties, as he did for the period up to November 2021 prior to ceasing duties as a result of the primary psychological injury.
Whilst the applicant’s left shoulder and cervical spine impairments did impact on his capacity to perform his work duties, those impairments were not the only factor affecting the applicant’s work capacity and on the evidence were not the cause of the applicant’s ceasing work duties.
It is the applicant’s evidence that he had been deskbound working on numerous operations, strike forces and other office duties since injuring his neck and left shoulder in April 2019.
The applicant continued to perform duties with the respondent until on or about 22 November 2021.
It is the applicant’s evidence in his statement made 6 February 2022 that he had been diagnosed with post-traumatic stress disorder, anxiety and depression and that he had not worked since 22 November 2021 due to his psychological condition.
Consistent with the applicant’s evidence Dr Jones reported to the respondent on 22 December 2021 that the applicant had been certified unfit for work for the previous three weeks due to psychological symptoms. Prior to that he had been performing selected duties at pre-injury hours. Dr Jones reported that the applicant had reported that he had been coping but did suffer occasional flare ups of his neck and shoulder pain which made him unfit for work for a day or two.
It is the applicant’s evidence that what he misses about his work with the respondent is the since of purpose, the camaraderie and talking to his colleagues and the general public. There is no evidence that the applicant suffered any such losses whilst performing the alternate duties prior to ceasing those duties due to his psychological injury.
It is the applicant’s evidence that the pain and impairment from the injuries to his left shoulder and cervical spine interferes with his social and recreational activities which causes him distress. It is the applicant’s evidence that the ongoing symptoms he experiences in his neck and shoulder restrict him and he feels as though he struggles to find joy in his life as a result.[15]
[15] ARD p 4.
It is the applicant’s evidence that he experiences increased pain in his neck and left shoulder when seated for periods of about an hour. This includes sitting at home watching television on the lounge. That he experiences neck pain and headaches when driving for prolonged periods. That when he goes out to dinner, he experiences increased neck, shoulder and arm pain from having to sit upright for prolonged periods. As a result, he does not go out as often as he used. When he does go out, he does not enjoy it as much as he used to which he finds upsetting as he feels that at his age going out for a meal with his family and friends should be something he could enjoy.[16]
[16] ARD p 4.

It is the applicant’s evidence that his elderly parents and his siblings live on the upper north shore and northern beaches of Sydney and that if he drives to visit them, he has to take a long break before making the return trip otherwise his neck pain and headaches become so severe that he needs to lie down and take medication. It is the applicant’s evidence that he finds it deeply upsetting that he struggles to find joy in even visiting his family due to his neck and left shoulder pain.[17]
[17] ARD p 4.
It is the applicant’s evidence that prior to his injuries he was a very keen gardener. That he used to “love” making his garden look beautiful. That there are things that he can no longer do, or which he finds very difficult to do as a result of his neck and left shoulder injuries. It is the applicant’s evidence that he struggles bending over to pull weeds from the garden, and that bending or kneeling with his head down and neck looking down at the ground is very difficult. It is the applicant’s evidence that gardening used to give him great pleasure, but he now feels as though it has become more like a chore because it can be very difficult, and he cannot maintain everything the way he used to. It is also the applicant’s evidence that if he overexerts himself then he needs to lie down to give either his neck, left shoulder or back a rest.[18]
[18] ARD p. 5.
However, it is not just the applicant’s left shoulder and cervical spine injuries that impact on his ability to engage in gardening. Dr Giblin in his report of 8 March 2022 observed that the applicant had been very restricted in terms of his gardening since undergoing spinal fusion surgery.[19]
[19] ARD p. 24.
In respect to the treatment of his left shoulder and neck injuries the applicant has not undergone any surgical procedures. Whilst consideration was given to surgical options the applicant was not keen and there is no evidence that surgical options are currently being considered. Whilst Dr Giblin in his report of 8 March 2022 predicts that the applicant’s injuries will deteriorate and future surgical considerations will arise the doctor does not provide any opinion as to when these surgical considerations are likely to arise, the likely magnitude of the need for the surgery or the nature and likely effect of any potential future surgery or even whether those surgical consideration will be in respect to the left shoulder and cervical spine.
It is the applicant’s evidence that following the injury he took Nurofen for pain relief and as an anti-inflammatory, as well as Endone, Pregabalin and Paracetamol/codeine. He also underwent physiotherapy as well as treatment under an exercise physiologist.[20] The applicant has had multiple Cortisone and PRP injections into his left shoulder as well as having a Cortisone injection to his cervical spine. The injections to his left shoulder appear to have been of little or transient benefit.
[20] ARD p. 3.
It is the applicant’s evidence that he found the injection to his cervical spine very traumatic and caused him to suffer a vasovagal attack with nausea and dizziness.[21]
[21] ARD P. 3.
In my view the injections which the applicant has had to his left shoulder and in particular to his cervical spine are invasive procedures, albeit at the lesser end of such procedures, and therefore I do not accept the respondent’s submission that the applicant has not undergone any form of invasive treatment as a result of the injuries sustained to his cervical spine and left shoulder on 10 April 2019.
It is the applicant’s evidence that he continues to consult his general practitioner (GP) regularly and takes Nurofen as needed. That he attends weekly physiotherapy for his shoulder which can be uncomfortable. He also attends a headache and migraine specialist physiotherapist for his headaches.[22]
[22] ARD p. 3.
I accept the applicant’s statement evidence. The respondent does not make any significant challenges in respect to the applicant’s credit and the applicant’s statement evidence is generally consistent with the contemporaneous histories recorded over time by the medical practitioners who have examined the applicant.
The evidence, in summary, supports that after initially experiencing a fairly intense onset of pain the applicant’s symptoms improved with the applicant being left with constant ongoing pain of a lower grade which is however subject to exacerbation by common activities and movements. The applicant has not undergone surgery however his treatment has included injections into his left shoulder and his cervical spine with the applicant finding the injection into his cervical spine particularly distressing. The impairments have impacted on the applicant’s social and recreation activities which the applicant finds distressing including his ability to garden, attend social outings with friends and family and visit his parents and siblings at their homes.
The respondent submits that in circumstances where there is a single loss related to multiple injuries the applicant should not be compensated for any such loss in the present claim for pain and suffering in relation to the date of injury of 10 April 2019. I do not accept this submission. The applicant is entitled to compensation for his pain and suffering resulting from the impairment of his left shoulder and neck. He is however not entitled to be compensated twice for the same pain and suffering. When there are multiple contributors to the same source of pain and suffering the exercise is to determine what the contribution is from the impairment in question.
The respondent submits that it is the applicant’s evidence in his statement made 6 February 2022 that he has minimal sleep and suffers from interrupted sleep patterns necessitating the use of medication to assist him in sleeping as a result of his psychological injury and the applicant should not be compensated twice for the same pain and suffering.
I accept the applicant’s evidence that his sleep has been negatively impacted by the psychological injury. I also accept that the applicant’s sleep has been negatively impacted by the injury to his left shoulder and cervical spine. It is the applicant’s evidence that he has difficulty getting to sleep because of the pain in his neck and left shoulder, and the nerve pain radiating down his left arm to his hand. This evidence is consistent with the earlier reports taken by the Dr Jones and A/Prof Courtenay. Dr Jones reported on 22 December 2021 that his sleep was uncomfortable due to his neck and shoulder pain. A/Prof Courtenay on 6 October 2022 recorded that the applicant reported that sleeping was generally difficult and that he could not sleep on his left side.
The applicant’s left shoulder and neck impairments have added to the applicant’s sleep difficulties by including pain as well as physical restrictions in respect to sleeping positions.
The respondent submits that it is the applicant’s evidence from his statement dated 6 February 2022 that his psychological injury has caused the following impairments:
(a)    reduced levels and tolerance, easily frustrated;
(b)    applicant struggles with concentration which has affected his ability to conduct daily tasks and engage in activities that he once enjoyed;
(c)    struggles to get motivated to go out, and
(d)    cannot work.
It is not the applicant’s evidence that his left shoulder and cervical spine injuries have negatively impacted on his frustration and tolerance levels, concentration or motivation to go out (except in respect to the impact of his pain). I have previously dealt with the issue of the impact of the applicant’s impairments on his work noting that he ceased work as a result of his psychological injury and not the injury to his neck and left shoulder.
The respondent submits that Dr Lim took a history that as a result of the psychological injury the applicant relies on his wife to do all the household chores and that he was also disinclined to travel to unfamiliar places.
The applicant has not given any evidence that he has developed any disinclination to travel to unfamiliar places as a result of the impairments of his neck and left shoulder. In respect to the performance of household chores the applicant has not put on evidence that he suffers any distress as a result of not performing those duties as result of the neck and left shoulder injury rather it is the applicant’s evidence that simple duties such as putting away cups, looking down at his phone, driving or cleaning the pool can aggravate his pain.
The respondent submits that the applicant’s evidence that he finds it difficult to do gardening and cleaning of the pool due to his cervical spine and left shoulder injury is inconsistent with the history recorded by Dr Lim in his report date 5 April 2022 that he relied on his wife to do all the household chores.
I do not accept the respondent’s submission. It does not appear that the applicant was referring to gardening when referring to household chores as Dr Lim noted that those chores included cooking and cleaning. The clinical notes of Ms Hooper which have been served by the respondent in support of the Reply clearly support that the applicant continued to perform gardening. The clinical notes record for example:
(a)    On 30 October 2020 – gardening/hedging last week which flared up slightly. Main symptoms being headache c/spine tightness. C/spine rotation stiff and painful.[23]
(b)    On 7 January 2022 – has been gardening, mowing, whipper snipping, all pain free. Needs to have break with edging – re shoulder discomfort.
(c)    On 3 March 2022 – rolling up garden hose – aching in shoulder had to stop and have a break. Bad neck/head pain.
[23] Reply p 442.
The applicant has made no secret of the fact that he was continuing to garden with the applicant advising the respondent’s injury management consultant, Dr Jones, in December 2021 of a significant recent increase in left shoulder pain following edging. A/Prof Courtenay in his report to the respondent dated 6 October 2022 recorded that the applicant had reported that the swinging motion using a whipper snipper had stirred up his back and his shoulder.
The respondent submits that the applicant does not distinguish between the incapacity that arises as from the cervical spine and the left shoulder impairments and that which arises for the separate injury to the lumbar spine.
I do not accept this submission. Whilst the impairments to the cervical spine and the left shoulder as well as the lumbar spine have both negatively impacted on the applicant for example in respect to his ability to garden, the impact from the separate injuries is not the same and is distinguishable with the applicant suffering pain and restriction in different parts of his body. However, even if it was the same body parts that were impacted, if the impairment caused increased pain and increased distress that would entitle the applicant to pain and suffering compensation.
Having regard to a reasonable proportion of the maximum amount of pain and suffering compensation payable in respect to a most extreme case I find that the applicant is entitled to $12,000 for pain and suffering compensation pursuant to s 67 of the 1987 Act.

[2024] NSWPIC 265

22 May 2024