DAMCEVSKA v GAZAL INDUSTRIES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and HANDLEY JJA 12 May 1995, 12 May 1995 [1995] NSWCA 114 WORKERS COMPENSATION — FACT — FINDING — APPEAL — NO QUESTION OF PRINCIPLE The trial judge dismissed a clothing workers' claim for compensation because she was not satisfied that her disabilities were caused by her employment, or any incident in her employment. Held: On appeal. The findings of the trial judge could not be disturbed. Priestley JA I will ask Mr Justice Handley to give his reasons first. Handley JA This is an appeal by a worker from the judgment of her Honour Judge O'Toole. The appellant worked in the clothing industry for one after another of the corporate respondents between 1973 and 1987 with interruptions for child bearing, child rearing, and injuries. She worked at a sewing machine using her right foot to help operate it. On 26 February 1985 she saw Dr Verma with a complaint of right leg pain and was off duty for a week. She then returned to work and continued without any interruption disclosed in the evidence until November 1987. In the meantime however she saw a number of medical practitioners with complaints of pain. She first saw Dr Puri on 27 June 1986 and Dr Marinovic in June 1987 and the latter referred her to an orthopaedic specialist Dr Vial. She ceased working, as she said, because of pain in her right foot and leg early in November 1987. Following further medical attendances she returned to work on 25 November but only remained for one day. She remained off work thereafter being paid compensation until 25 December 1987. It appears that she has not worked since. In February 1993 she made an application for determination to the Compensation Court which was heard and dismissed by O'Toole CCJ on 25 October that year. Her Honour's concise reasons included a statement that the applicant complained of injuries to her right foot or leg caused by repetitive use of pedals on her sewing machine, of other symptoms in her right and left lower limbs, back, neck and abnormal and distressing sensations in her head. The Judge concluded that the appellant was an unreliable historian and said she would give greater weight to symptoms and histories recorded about the time that she ceased work. She also concluded that the doctors who saw the worker years after the events of which she complained were only of limited assistance and I would infer that this was because the worker was an unreliable historian. Dr Vial diagnosed the appellant as suffering from a collapse of the medial longitudinal arch in her right foot and her Honour said that there was no evidence which persuaded her that this had been caused by repeated use of her right lower limb or by any other feature of her employment. She was also not persuaded that the psychiatric condition from which the worker had suffered intermittently since 1987 had been caused or aggravated by the nature of her employment. 2 UNREPORTED JUDGMENTS She concluded that the worker had suffered an injury to her right lower limb but was not persuaded that any incapacity which resulted from that injury had persisted after the 25 December 1987 when compensation ceased. The case is not altogether a satisfactory one because the only oral evidence was that given by the worker herself. The medical evidence was given by means of medical reports; reports by ten doctors being tendered on behalf of the worker and reports by a further five on behalf of the employer. This documentary evidence was not internally consistent and much of it even from the doctors who were qualified on behalf of the worker did not support her case. Dr Davies, a psychiatrist, provided three reports and by November 1988 had already seen the appellant on eleven occasions. He noted that she was a poor historian and refers in his report to a number of mental problems that she then had but he offered no opinion as to whether those conditions were caused or aggravated by her employment or any incident in the course of her employment. Dr Mahoney, an orthopaedic surgeon, also saw the appellant on a number of occasions from March 1990 onwards and thoroughly investigated her medical condition. His report of 22 September 1992 discloses that he arranged for x-rays, CT scans, thermograms, electromyographs and MRI investigations. A CT scan of the worker's spinal cord indicated that there were problems at L4/LS level but, according to the CT scan report, these were due to a combination of osteoarthritis and ligamental hypertrophy of the facet joints and bulging discs. The MRI investigation confirmed posterior bulging of L3/L4 and L5/S1 and L4/LS. The doctor's ultimate conclusion was that the appellant's complaints were referable to a degree of nerve root irritation affecting her right and left lower limbs related to low lumbar disc lesions. However, he did not express any opinion as to whether the condition he described was caused or aggravated by her employment or any incident during her employment. Indeed the opinion in the CT scan report would indicate that the condition was constitutional and degenerative rather than trauma or employment related. Mr Conomos who appeared for the appellant, and presented a clear and succinct argument, saying all that could be said on her behalf, challenged the adequacy of the Judge's reasons. He submitted that the trial Judge offered no basis for the statement that the worker was an unreliable historian and that there was no adequate support in the evidence for her statement that the Judge had not been favoured with reports from all the medical practitioners who had seen the worker. However there is no substance in these complaints as the written submissions for the respondent demonstrate. There remains only the submission that her Honour's reasons were insufficient. In my opinion this complaint is not established. Her Honour, confronted with a mass of conflicting medical evidence in the reports, assisted only with the evidence of the worker who admitted herself that she was a poor historian, ultimately concluded that the worker had failed to discharge the onus of proof and that she was not satisfied that the worker had been incapacitated at any point after 25 December 1987 as a result of any injury sustained in the course of her employment. In my opinion her Honour's reasons were adequate and the substantial challenge in the appeal fails. I therefore propose that the appeal be dismissed with the usual consequences. Priestley JA: I agree. Clarke JA I also agree. Priestley JA: The appeal is dismissed with costs. URJ DAMCEVSKA v GAZAL INDUSTRIES PTY LTD (Clarke JA) Appeal dismissed with costs. Counsel for the appellant: JW CONOMOS Solicitors for the appellant: KELL, HEARD and McEWAN Counsel for the respondent: PC SWEENEY Solicitors for the respondent: BRUCE AND STEWART TURTON