ARDSLEY PTY LIMITED v BUTLER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, PRIESTLEY and MCHUGH JJA 3 February 1988 [1988] NSWCA 7 APPEAL — point not taken at trial — history given to medical expert not proven — no objection at trial to tender of report after applicant had completed his evidence — in appeals from Compensation Court, Court of Appeal will not allow objections to opinions based on unproved history unless point taken at trial. EVIDENCE — statement as to contents of CT Scan — CT Scan not tendered — no objection to statement — point waived. WORKERS COMPENSATION — error of law — (1) whether evidence to support finding of total incapacity — (2) failure to prove history and CT Scans — no objection at trial — (3) whether judge entitled to find remission of complaints at time when examined by doctor. ORDERS Appeal dismissed with costs. McHugh JA The award the subject of this appeal ordered the appellant/employer to pay compensation to the respondent worker on the basis of total incapacity from 16 February 1985 to 12 July 1985 and thereafter compensation on the basis of notional total incapacity pursuant to the provisions of s11(2) of the Worker's Compensation Act. The incident which gave rise to the making of the award occurred on 15 December 1984 when the worker, who was employed as a station hand, fell off a motorbike while rounding up cattle. In the Compensation Court Judge Davidson held that as a result he suffered a lower lumbar back injury. The worker was paid compensation until 16 February 1985. Compensation was then cut off. He commenced proceedings in the Compensation Court on 26 March 1985 seeking awards under s9, s11(1) and s11(2) of the Act. The proceedings commenced before Judge Davidson on 5 February 1986 at Bathurst. On that occasion the worker and Dr Mileshkin and Dr Burgess gave evidence. The proceedings were adjourned to Sydney on 27 March 1986 when the worker again gave evidence, but none of it touched his medical condition. Proceedings resumed again, after an adjournment, in March 1987 when reports by Dr Segelov dated 22 September 1986 and 3 November 1986 were tendered on behalf of the worker and the report of another doctor was tendered on behalf of the appellant employer. In this Court Mr. Hall has alleged that the award should be set aside on the basis of three errors of law made by the learned trial judge. The first is that there was no evidence to support his Honour's finding of total incapacity between 16 February 1985 and 12 July 1985. The appellant submitted that, even if there was evidence which would support that conclusion, nevertheless the way his Honour approached the matter depended upon the conclusion that the evidence of Dr Mileshkin and Dr Burgess established a finding of total incapacity. The passage in his Honour's judgment is as follows: 2 UNREPORTED JUDGMENTS "T also find that the medical evidence at that time, particularly of Dr Mileshkin and the earlier evidence of Dr Burgess, leads to the conclusions that he was totally incapacitated between 16 February 1985, to which date compensation was paid, and 12 July 1985, at which time he apparently expressed the view to his solicitors that he felt capable of performing some work..." I do not think that this passage means any more than that the evidence of Dr Mileshkin and that of Dr Burgess assisted his Honour to come to the conclusion that the worker was totally incapacitated between February 1985 and 12 July 1985. There was, I think, a good deal of evidence which would support that conclusion. In the first place his Honour found that the applicant suffered the back injury on 15 December 1984; then there was abundant evidence that the applicant was totally incapacitated until 16 February 1985, the date upon which worker's compensation payments ceased. Dr Mileshkin saw the applicant on 1 March 1985 and some unspecified date thereafter. Dr Burgess also saw the plaintiff on 19 February 1985. Although his report of that date indicates that he thought the plaintiffs complaints were worse than they ought to have been, nevertheless it seems a fair inference from Dr Burgess' evidence that, at that time, the plaintiff was still incapacitated. But over and above this evidence was the evidence of the applicant worker himself that his condition did not really improve between February and August 1985 when he commenced to look for work. In these circumstances in my opinion there was evidence which would support a finding of total incapacity between 16 February 1985 and 12 July 1985. I do not think that his Honour was saying that the evidence of Dr Mileshkin or Dr Burgess itself established total incapacity during that period. Accordingly in my opinion the first ground of appeal fails. The second ground was that his Honour erred in law in accepting a medical opinion given to Dr Segelov without proof of the facts of that medical history being independently proved. As I have indicated Dr Segelov's reports were tendered in 1987, a year or more after the hearing had commenced and the worker had given evidence. Two of his reports were tendered, but the important one for present purposes is the report of 3 November 1986. It provided: "This patient attended for further neuro surgical consultation as arranged on 27/10/86, having last been examined on 26/5/86. Since that time the patient has had further back pain for which he has continued to take Naprosyn and Dolobid and to wear a surgical brace. Although his pain was better than it was immediately after his injury it is still causing a good deal of discomfort especially when he bends repeatedly. Clinical examination revealed the patient to be well built, sitting and standing freely but bending forwards to reach only eight inches from his toes. The reflexes and straight leg raising were normal and there was no muscular wasting or sensory impairment. A repeat CT scan dated 28/5/86 was inspected and revealed some central and right lateral disc protrusion at the lumbo-sacral level but without thecal or nerve root compression. It is apparent this patient suffered an injury to the lumbo-sacral disc in 1984, with the onset several days later of significant sensory loss in the lower limbs which required admission to hospital. It was fortunate that the patient was not paralysed at that time. He has since demonstrated on scans that the disc protrusion which was no doubt severe at that time has undergone some degree of spontaneous resolution, but there is still sufficient abnormality in the recent scan to suggest that this patient is URJ ARDSLEY PTY LIMITED v BUTLER (McHugh JA) 3 permanently unfit for lifting or repeated bending, or for mustering cattle on a motorcycle. It is possible he will need surgery to his lumbar spine in the future. I trust this information will be of assistance to you." No objection was taken to the tender of this report. Now we have what has become a very common occurrence in appeals from the Compensation Court of a claim that a medical opinion is to be disregarded because the facts set out in the history were not properly proved. In my opinion the time has come for this Court to make it clear that it will only be in exceptional circumstances, if ever, that the Court will allow a medical opinion to be challenged upon the basis that the history has not been formally proved when no objection was taken at the hearing before the Compensation Court. Nevertheless, looking at the merits of this case I do not think that failure to prove the whole history given to Dr Segelov made any real difference to the validity of the opinion. Dr Segelov's opinion was based, in my view principally on his own clinical examination of the patient, together with his observation that CAT scans showed that the disc protrusion which "was no doubt severe at that time has undergone some degree of spontaneous resolution". I do not think that the failure of the worker to prove the entire oral history in this case has the significance which counsel for the appellant sought to attach to it. The fact that the plaintiff had complaints of pain in his back was proved in evidence. What was not proved in evidence was the fact that he was still suffering pain between May and October 1986 when Dr Segelov saw him. But it is established by the decisions in Paric v John Holland Constructions Pty Ltd 59 ALJR 544 and Malleys Ltd v Kinkela (Court of Appeal unreported) that it is always a question of degree whether the failure to prove the history of a matter brings about the destruction of an expert opinion based on that history. More relevant was the failure to put the CAT scans in evidence. Technically speaking the CAT scans should have been put into evidence. They were the primary evidence. But it is commonplace, both in the compensation jurisdiction and in other jurisdictions, for primary material, such as x-rays and CAT scans not to be put into evidence although a doctor gives his opinion as to what they show. If counsel does not insist on the primary documents being tendered, he waives his objection. In this case counsel for the respondent must be taken to have waived any objection which he might have had in respect of the CAT scans going into evidence. He neither insisted on their tender nor cross-examined Dr Segelov. I do not think in these circumstances that the opinion expressed by Dr Segelov is destroyed by reason of the failure either to put the CAT scans into evidence or to prove the whole of the oral history which was given to the doctor in May and October 1986. The third point which was relied on by counsel for the appellant was that there was no evidence to support his Honour's statement that there was a remission of the worker's complaints at the time when he was seen by Dr Burgess in February 1986. The trial judge thought that Dr Burgess was saying that as at 5 February 1986 there were no restrictions of any sort to be placed upon the applicant's ability to do work. A careful reading of the doctor's evidence and his reports indicates to my mind that the learned judge may have read too much into what Dr Burgess said. Nevertheless, accepting the literalness of an answer of Dr. Burgess that the worker had no complaints in February 1986, or at all events no complaints of any significance, I do not think that the point upon which reliance is now placed 4 UNREPORTED JUDGMENTS ought to be upheld. The particular passage of which complaint is made has to be understood in the context of a prior finding that Dr Segelov found a HOPE JA: The order of the court is that proposed by McHugh JA. COUNSEL: APPELLANT- GB HALL QC/RA VINCENT 10 RESPONDENT- HN KELLY SOLICITORS: APPELLANT- HUNT & HUNT 15 RESPONDENT- JH KING CAIN RICHARDSON & CONNELLY253545