WRIGHT v WHITE INDUSTRIES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SHELLER and CRIPPS JJA 6 July 1993, 18 August 1993 [1993] NSWCA 296 JUDGES — reasons — obligation to state — rejection of claim for worker's compensation — finding that worker failed to discharge onus of establishing causal nexus between alleged incapacity and work accidents — failure to deal specifically with worker's alternative case of earlier incapacity — held: (by Sheller JA; Kirby P and Cripps JA concurring): The judge of the Compensation Court failed to give adequate, or any reasons, for dismissing the alternative claim — dismissal of principal claim did not necessarily resolve alternative claim — reasons required — award set aside — proceedings remitted for determination. WORKERS' COMPENSATION — incapacity — rejection of claim — alternative claim of partial incapacity during past closed period — failure to explain rejection — duty to provide reasons Soulemezis v Dudley (Holdings) Pty Ltd 1987 NSWLR 247 (CA) applied. Held: Award set aside - matter remitted for redetermination. Workers Compensation Act 1987. Kirby P I agree with Sheller JA. Sheller JA WORKERS COMPENSATION CLAIM The appellant, Glen Wright, by application dated 7 November 1989, claimed from the respondent, White Industries Pty Ltd, compensation under the Workers' Compensation Act 1987 from 29 April 1988 and continuing. In substance his claim was that he was partially incapacitated as the result of injury to his neck suffered in two work place incidents, one on 6 April 1987 and the other in March 1988. The applications came on for hearing before Moroney CCJ who, in a reserved judgment given on 10 December 1990, made an award in favour of the respondent. The appeal is against this award. The parties were agreed that the appeal was at large and not limited to a point of law. BACKGROUND FACTS Until 29 April 1988 the appellant worked as a coal miner. He had been employed by the respondent since about 1980. Both injuries occurred during the course of that employment. On the occasion in 1987 the appellant was working as a machine man at the coal face. The driver of a personnel carrier on which he was travelling out of the mine took steps to avoid a burst water pipe and the vehicle collided with some obtrusion. The appellant was thrown against the backing plate and felt his neck go "crunch" and then stiff. He continued work for a few days and was then off for a period of some weeks, perhaps three, perhaps as many as six or seven. He returned to work on the belts. On the occasion in March 1988, while hosing water underneath the belts he struck his head against a water pipe and, he said, put his neck out once again. He was off work for about two weeks. When he returned he was sacked, he believes because he was an industrial agitator. 2 UNREPORTED JUDGMENTS JUDGMENT In order to understand the judgment and the appellant's complaint about it, it is necessary to precis its contents. At the commencement his Honour said of the appellant's claim: "He alleges that since 29 April 1988 he has been partially incapacitated for work as a result of two injuries to his neck, one of 6 April 1987 and the second in March of 1988. These are the two injuries relied upon, although there is reference to a third injury which is alleged to have occurred between the two above mentioned." There was no dispute that the appellant received the two injuries. As his Honour said the live issue was whether or not as a result he had been partially incapacitated during the period for which he claimed compensation. His Honour seemed to consider that this issue was resolved by the medical evidence. His Honour referred first to an x ray report of the appellant's cervical spine given after an injury which occurred in 1982. The report read: "The cervical vertebrae are normally aligned. The disc spaces are maintained - no obvious fracture seen. Pre vertebral space appears normal." His Honour observed that the appellant had said that he had had problems with the left side of his neck following the 1982 injury but they resolved. He went back to full normal work. When asked: "Did your neck bother you after that?" he replied: "Not that I recall. That's a long time ago, though." His Honour referred to a medical report dated 17 September 1990 of Mr Eagleton, a consultant surgeon, and observed that there was no past history recorded. Mr Eagleton, who saw the appellant on 6 September 1990, said that the appellant complained of tenderness over the spinal process of C7. He referred to x rays of the cervical spine done on 31 May 1989 which showed "an abnormality at C6 and C7 which may represent old fractures of the bodies of C6 and C7." He expressed his opinion as follows: "Tn a work incident in 1988, Mr Wright sustained an injury to the cervical spine. The mechanism of the injury, being a forced flexion, could have produced compression fractures. In view of the x ray findings described above, it seems likely that this is indeed what happened, Mr Wright sustaining compression fractures of bodies of C6 and C7. Disability persists to the present time. It can be attributed by way of cause to the work incident." Mr Eagleton said that the appellant was not fit for work which involved heavy physical activity and that he should not be required to work with the neck extended or flexed for prolonged periods. The prognosis, over two years after the injury, was that it was unlikely that further improvement would occur. In the long term, degenerative changes were likely to occur and could lead to an increased degree of disability. His Honour next referred to a report of Dr Higginbotham of 25 August 1989. He quoted from this report: "He denied any previous or subsequent injuries to the neck other than outlined above and never had any prior symptoms before January 1987. " The only injuries recorded were those in 1987 and 1988. The report said that the x rays done on 31 May 1989 had been reviewed. "There was [sic] old crush fractures of C6 and C7 with degenerative changes commencing at that level. There were no other abnormalities in the cervical spine." His Honour quoted the opinion of Dr Higginbotham: URJ WRIGHT v WHITE INDUSTRIES PTY LTD (Sheller JA) 3 "This man has suffered a significant neck injury in January 1987 and I think that the fractures have likely resulted from that fairly forceful injury. This is of course without the benefit of early x rays having been taken. There seems to be no other injuries which might account for these radiological findings. He has further aggravated the problem with a subsequent injury in April 1988. He would be fit for selected work not involving a lot of neck movement or prolonged positioning of the neck and avoiding highly repeated activities with the upper limbs elevated as this would likely also cause his symptoms. He could carry out activities lifting as long as this was not extreme and may have to consider further training. " One can infer that his Honour considered, as seemed to be the case, that Dr Higginbotham's opinion was in part based upon the absence of other injuries which might have accounted for the radiological findings. His Honour referred to the appellant's concession, in cross examination, that he had been injured in two motor vehicle accidents, one involving a broken leg and the other a bruised stomach. The judgement continued: "He conceded the period of incapacity after the first injury may have been three weeks, not six. He asserted he had sought medical treatment from a Dr Heron between the second injury and gave details of same. In relation to his dismissal, he agreed that he had appeared before the local Coal Authority; that the appeal failed; that as a result he was ineligible to work in the coal industry. He said he was put on the belts between the injuries, an easier job than face work. He denied that he could work on the face now. He conceded that he did not raise an allegation that he had been sacked because of his neck before the local Coal Authority. " His Honour then turned to the medical evidence called on behalf of the respondent. Dr Millons examined the appellant on 7 September 1990 and made a report on 10 September 1990. He also gave oral evidence. His Honour observed that Dr Millons had obtained the past history of one of the motor vehicle accidents and of the 1982 injury. He also had the general history of the injuries in 1987 and 1988, and the complaints and history up to the time of examination. His Honour quoted the following from Dr Millons' report: "X rays of the cervical spine taken on 31. 5.89 reveal deformity at the C6 - 7 level with irregular end plates on the lower border of C6 and the upper border of C7 consistent with a possible old fracture. A bone scan performed on 8.6.89 notes an absence of diffuse activity in the lower cervical region excluding a recent crush fracture. Degenerative changes are noted over the lower cervical vertebrae, on the right at C4 - 5 - 6, and on the left at C4 - 5 and C6 - 7. OPINION Mr Wright clearly has radiological evidence of an abnormality of C6 - 7 which suggests trauma at some stage in the past. The absence of increased uptake of nuclide in the bone scan on 8.6.89 would suggest that the fracture is very old, certainly more than 12 months and probably a lot older than that. One wonders whether he might have injured his neck in the motor bike accident years ago although he denies that. He remembers sustaining a head injury somewhere along the way and it would be interesting to know whether his neck was x rayed at that time especially if he was off work for one or two months. There was an injury to the neck in April 1987 which had him off work for a few weeks but he then went back to work at the face on normal duties and I cannot believe he would have done anything major in that incident nor indeed in the incidents in late 1987 or April 1988. 4 UNREPORTED JUDGMENTS I note that he was only off work for two weeks after the last aggravation and it was only when he attempted to go back to work that he found he had been laid off. Clinically Mr Wright does have a neck that is stiff and irritable. It would need a study of his day to day activities to know whether that stiffness was genuine or not. On balance, I would accept that he could have some basis for some irritable in the neck but by the same token I would have thought that he would be capable of going back to work as a deputy were the opportunity there to him, believing that any aggravation occasioned by the incident in April 1988 to have settled. With a potential for trouble in the neck there would likely be a further increase in symptoms with minor knocks. That should not however be a reason for him to stay out of the work force indefinitely. One can perhaps understand his frustration at trying to obtain alternative employment although one wonders how seriously he is attempting to find alternative employment at this stage, living on a remote property. I would see no indication for any further investigation. The only treatment that is required is for him to keep his neck as active as he can to the limits of his discomfort. I get the impression he will continue to complain." Dr Millons was the only doctor who gave oral evidence. His Honour quoted from the transcript of his evidence in chief which included this answer about the 1987 and 1988 injuries: "A. Well, I think it's most unlikely that either of the incidents would have caused a fracture of a cervical vertebra. " His Honour said: "Under cross examination Dr Millons said he thought that the applicant's condition was mild. He conceded the possibility of a stress fracture at the time of the first injury. Dr Millons was then asked questions relating to the 1982 x ray report. In re examination, Dr Millons' evidence was: 'Q. Doctor, the x rays my friend asked you to assume that were reported on in June 82 - of course, that would have been taken when the patient was 20 years of age. Now, given the extent of degeneration appearing in 1989, it's still your view, is it, that on the description of the symptoms following the events in 87 and 88 they could not account for that level of degeneration. A. Yes. Q. And the explanation for that level of degeneration lies in the areas of history that we're entirely dependent on other sources for. A. That's correct'." The respondent also tendered a report of Dr Silva dated 17 October 1989 made after an examination on the same day. His Honour observed that Dr Silva recorded under past illnesses "No neck injuries before 1987," but did obtain the history that on an occasion in 1983 there was a roof fall in the mine and the appellant fell on all fours and sustained grazes over the right arm and had a sore head. It seems likely that this was the work place incident which resulted in the neck problem of which the appellant gave evidence and for which he had an x ray of the cervical spine. His Honour proceeded on this basis and quoted the following passage from Dr Silva's report observing that this was based upon the history obtained, Dr Silva's examination and the consideration of the x rays and the CT scan of 8.6.89: URJ WRIGHT v WHITE INDUSTRIES PTY LTD (Sheller JA) 5 "The x ray changes seen in the pictures of 31.5.89 are old and almost certainly existed at the time of the alleged incident on 15.4.87 which could have strained an already degenerate neck. It is advisable for you to investigate those two motor bicycle accidents and the Landrover accident and it is probable that those two accidents may have been responsible for the deformities of the sixth and seventh cervical vertebrae seen in the pictures. Your liability is therefore for an aggravation of a pre existing condition. That aggravation could be considered to have largely resolved and I think he could be considered for his pre injury occupation. He is unlikely to require surgery or further supervised physiotherapy and he is attempting to train himself as an accountant. I did not see any clinical evidence of cervical radiculopathy today." Having made this review of medical evidence interspersed with other pieces of evidence his Honour concluded his judgment as follows: "Tm left to determine whether the applicant's medical case is so persuasive that it prevails, despite the views of Dr Millons, and to a lesser extent, the views of Dr Silver [sic]. 'm not so persuaded. I'm left in the situation where I cannot find the applicant's case more probable, and that being the case, his onus is not discharged, hence, there will be an award for the respondent." His Honour approached the case on this basis. The appellant called medical evidence that he had sustained compression fractures of the bodies of C6 and C7 which were caused either by the incident of April 1987 or by the incident of March 1988 and which explained the incapacity for which the appellant claimed compensation. Dr Millons and Dr Silva were of a different opinion. Dr Silva does not mention the March 1988 incident in his report but he considered the x ray changes almost certainly existed at the time of the incident on 15 April 1987. Dr Millons was of opinion that it was most unlikely that either of the incidents would have caused a fracture of a cervical vertebrae. As his Honour observed he conceded the possibility of a stress fracture at the time of the first injury. In cross examination he said in an interchange not quoted by his Honour: "Q. So that what's happened to his neck has happened between those x rays taken in June 1982 and the x rays you see in May 1989. A. Yes. Q. And in the absence of any other explanation the most likely proposition is, is it not, that this degeneration of fracture - whichever - has been caused or materially contributed to by the two incidents which he has described to you. A. Well, Pll accept that there's been two incidents of neck problems which could well have aggravated some degenerate changes in his neck. I still can't come at a fracture with either of them for the reasons I've explained, but I will accept there have certainly been aggravating episodes along the way - only causing a relatively short period of incapacity which is the thing I find Q. Well, what would you say, doctor, has caused the degeneration to go from no degeneration seen in June 1982 to the degenerate changes that are noted at C4 5 - 6 and C4 - 5 and C6 - 7 on the left side. A. Well, the degenerative changes were well in train in the x rays in 1989 suggesting they had been there for some time. If there was a history of a neck injury in 1982 then it's quite likely that something might have been set in train at that time that could be accountable for symptoms seven years later - just as easily as any of the years along the way. The changes are certainly of long standing and would certainly be pre 1988 and go back some years in time." 6 UNREPORTED JUDGMENTS His Honour said that in light of the views of Dr Millons and to a lesser extent of Dr Silva he was not satisfied that the appellant's medical case was made out. It is plain from his reasons that a factor which weighed heavily was the reliance placed by the appellant's medical experts on the absence of a history of previous neck problems. Neither Mr Eagleton nor Dr Higginbotham were asked to reconsider their opinions taking account of the history of past injuries revealed during the hearing. WERE THE REASONS ADEQUATE? Central to the appellant's appeal was the alleged failure of the trial judge to give any or any adequate reasons for not accepting the evidence of the appellant or his medical witnesses. The appellant argued, to adapt the language of McHugh JA, as he then was, in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280, that Moroney CCJ did not articulate the essential ground or grounds upon which the decision rested or give the reasons for preferring one conclusion to another. I have found the resolution of this appeal difficult. The contest between the medical experts focused on whether the injuries suffered by the appellant in 1987 and 1988 caused crush fractures of the vertebrae. This contest was resolved in favour of the respondent. His Honour plainly preferred Dr Millons' opinion, which took account not only of the history of earlier accidents but also of the fact that after a short time off work the appellant returned to normal duties in 1987 and was prepared to do so in 1988, to the opinions of the appellant's medical witnesses which were based in part upon there being no previous injury which might account for the radiological findings. I am of opinion that his Honour's reasons for this conclusion are sufficiently exposed in his judgment. But the resolution of that contest did not entirely decide the live issue of whether as a result of either of the two injuries the appellant had been partially incapacitated during the period for which he claimed compensation. The appellant's medical case was in the main based upon one or other of the injuries in 1987 and 1988 as the cause of the fractures. But the appellant put an alternative case that although the observed change in the condition of the cervical spine had to do with some previous trauma and was explained otherwise than by the injuries in 1987 and 1988, those injuries aggravated a pre existing condition and resulted in partial incapacity after 29 April 1988. Such aggravation was accepted by Dr Silva who, in the passage from his report quoted by his Honour, described the employer's liability as being for an aggravation of the pre existing condition, although he said, speaking in October 1989, that such aggravation could be considered to have largely resolved. Dr Millons, speaking in September 1990, said he believed any aggravation to have settled. In his oral evidence the appellant said that in June 1989 he had consulted the family doctor, Dr Mahmud, because his neck was not any better "and after all the physio treatment they gave me, that didn't do anything for it, so I thought when I was down here I would go and see the family doctor". The appellant's alternative case was resolved by his Honour's making an award in favour of the respondent. But his Honour gave no reason for rejecting it. He could not do so by determining that the appellant's medical case was not persuasive. To reject the alternative case his Honour had to reject the evidence of the appellant and the expressed views of the respondent's medical witnesses who, it seems to me, accepted that there was some aggravation caused by the 1987 and 1988 injuries which resulted in pain and discomfort after April 1988. I am inclined to think that his Honour proceeded on the basis that the live issue he URJ WRIGHT v WHITE INDUSTRIES PTY LTD (Cripps JA) 7 posed was resolved by the conclusion that the 1987 and 1988 injuries did not cause the fractures of the vertebrae. If he did so he misunderstood the appellant's alternative case. But whether this is so or not his Honour gave no reasons for rejecting the alternative case and in my opinion he was bound to do so. I do not think he articulated the essential ground or grounds upon which his decision rested. Accordingly the appeal should be upheld and the matter remitted to the Compensation Court for determination in accordance with this decision. My conclusion on the appellant's central argument makes it unnecessary to consider the other grounds of appeal raised in the appellant's written submissions. ORDERS In my opinion the appeal should be allowed. The matter should be remitted to the Compensation Court for determination in accordance with this decision. The respondent should pay the appellant's costs of the appeal. The costs of the first hearing should be left for determination by the judge re hearing the matter. I propose the following orders: 1. Appeal allowed; 2. The award in favour of the respondent set aside; 3. Proceedings remitted to the Compensation Court for determination in accordance with this decision; 4. The respondent to pay the appellant's costs of the appeal; 5. The costs of the first hearing to be determined by the judge re hearing the proceedings. Cripps JA The only ground of appeal was whether sufficient reasons were given by Moroney CCJ for his conclusion that the appellant had failed to discharge the onus of establishing any causal nexus between the accidents in April 1987 and/or March 1988. I agree with Sheller JA that Moroney CCJ gave sufficient reasons for his conclusion that neither episode caused crushed fractures of his vertebra. However, like Sheller JA, I do not think he gave sufficient reasons for what must have been his conclusion on the appellant's alternative case, viz that his injuries did not aggravate a pre existing condition resulting in partial incapacity after April 1988. It is clear, I think, that Moroney CCJ reached the conclusion that any effects ie compensable effects, of the episodes in April 1987 and March 1988 were spent by November 1989. However, I do not think he dealt with the appellant's claim for compensation for the period between April 1988 and November 1989. Accordingly, I agree with the reasons and orders proposed by Sheller JA. Appeal allowed; . The award in favour of the respondent set aside; 3. Proceedings remitted to the Compensation Court for determination in accordance with this decision; 4. The respondent to pay the appellant's costs of the appeal; The costs of the first hearing to be determined by the judge re hearing the proceedings. Nr wm Counsel for the Appellant: G Little Instructed by: McGuire and McInerney 8 UNREPORTED JUDGMENTS Counsel for the Respondent: C O'Connor QC / S Flett Instructed by: Sparke Helmore and Withycombe