INTERNATIONAL HOTELS CORPORATION PTY LIMITED v JAZAIRY SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL GLEESON CJ, MAHONEY AP and SHELLER JA 15 August 1995 [1995] NSWCA 210 WORKERS COMPENSATION — partial incapacity — causation — s40 (1) discretion Gleeson CJ. In this matter I will ask Mr Justice Sheller to give the first judgment. Sheller JA. The appellant, International Hotels Corporation Pty Limited, appeals from the decision of his Honour Judge Burke of the Compensation Court on 18 August 1992. By his award his Honour ordered the appellant to pay the respondent worker, on the basis of partial incapacity, weekly compensation at the rate of $60 from 16 May 1991, such weekly payment to continue in accordance with the provisions of the Workers Compensation Act 1987. The appellant first employed the respondent worker in March 1986. The worker suffered two work-related injuries while employed by the appellant, the first on 11 September 1987, the second on 30 June 1990. In his reasons for judgment his Honour described the incident which gave rise to the injury of 11 September 1987 as a minor physical encounter with a fellow worker. His Honour did not think that the incident played any long-term part in what followed thereafter, with the possible exception of a psychiatric problem. Later in his reasons for judgment his Honour said: The applicant worked on fairly consistently thereafter for a considerable period. It seems to me that if the applicant's symptoms after the resumption of work in October 1987, prior to the second incident at work on 30 June 1990, if her symptoms had a psychological basis it does not seem to me that that basis can be found in the incident of 11 September 1987. It may be that there was something in the interpersonal relationships at work. There may be that there were a variety of things at home. It could be anything but it just seems to me that the incident was not one that played any real part or contributed anything to the evolution of either the physical symptoms thereafter nor the psychological problem. In respect of that work-related injury his Honour found that the applicant suffered injury to her neck and some minor psychological upset, was incapacitated for about a month, was paid compensation and suffered no incapacity thereafter as a result of that injury. Neither of the parties challenges those findings. This left the incident of 30 June 1990. In respect of that injury the worker received compensation until 15 May 1991. After it she suffered injuries as a result of two serious motor vehicle accidents which were not work related, one on 2 November 1990, the other on 1 May 1991. These accidents complicated his Honour's task of assessing what, if any, compensation should be paid for the period after 15 May 1991. 2 UNREPORTED JUDGMENTS The respondent said that on 30 June 1990 she was walking across the kitchen in the appellant's premises where she worked as a chef, slipped, fell forward into the framework of a door, striking the right side of her face and forehead area on the door jamb, reeled back and fell backwards, apparently in the sitting position. She presented two days later to Dr Guirgis, who had been treating her before 30 June 1990 in respect of the injuries that she suffered and for other matters. Dr Guirgis issued a contemporaneous certificate on 11 July 1990 stating that the respondent was unfit and itemising her injuries as including a head injury, particularly to the right orbit and zygoma area with post-traumatic headache and dizziness. There was bruising to the right breast and chest area. There was a musculo-ligamentous strain of the dorsal and lumbar spines. His Honour accepted that on 30 June 1990 the respondent worker suffered an injury which caused some aggravation to underlying degenerative changes, both cervical and dorso-lumbar. He said that it was after that that the picture became highly confused, referring in that regard to the two subsequent traffic accidents. Having reviewed the material he held that, on the totality of the evidence, the applicant had a modicum of physiologically determined symptoms, being aggravation of the cervical degenerative changes and those in the dorso-lumbar spine, probably a degree of post-concussional syndrome, tension headaches or, as his Honour put it, 'whatever you care to call it', a referred pain from the neck, all of which could be attributed to the incident of 30 June 1990. His Honour then went on to say: However I would think that that contribution is a minor part of the total presentation of the applicant at the present time. I think basically her problem stems from the consequences of the two motor vehicle accidents. In that diathesis it is a very difficult situation. The applicant, had she continued at work, would have been earning $430-odd a week. Had she not had the two motor vehicle accidents, what would be the likely situation? In my view the lack of emphasis on the neck, shoulder problem, particularly by Dr Guirgis prior to the May 1991 incident tends to suggest that there had been a goodly measure of resolution, though I would accept a modicum of ongoing symptoms. She was still having and complaining of the lumbar symptoms and Dr Guirgis and to a degree Dr Hanna, or Dr Makarie was still dealing with that. So I have a lady whom I am prepared to accept has a degree of tension or psychogenic upset, some fairly minor neck/shoulder problems and a degree of back pain and probably referred pain to the legs. The combined effects of that would seem to me to be an incapacity. In other words it would impede the lady in functioning in a reasonably accessible labour market. Whether it would preclude her from doing her former job with the respondent is perhaps a moot question. The applicant had by then been promoted to second chef. The detail of the job as it was then done is fairly scanty. There is certainly a suggestion that there was some lifting and carrying involved. One would imagine probably without evidence that a chief in a major hotel is going to necessary be engaged in a degree of lifting and carrying in the preparation of the salads and sweets and getting the produce et cetera to make them. I think her neck and back symptoms and to a degree the headache would have impinged upon her capacity to do that but I must confess on the totality of the evidence I think that was probably in a fairly minor way. URJNTERNATIONAL HOTELS CORPORATION PTY LIMITED v JAZAIRY (Sheller JA) 3 I therefore think there is an incapacity in the period from 16 May 1991 onwards resulting from the injury of 30 June 1990, but that it is fairly minor and is assessable in terms of section 40 as a fairly small payment'. The significant matters in what I have quoted is that his Honour concluded that resulting from the injury suffered on 30 June were some physiologically determined symptoms, that the contribution made by those was a minor part of the total presentation of the worker at the time of the trial, that there was a degree of tension or psychogenic upset and that the combined effects of that seemed to his Honour to be an incapacity, that is to say something that would impede the worker in functioning in a reasonably accessible labour market. His Honour found that on 30 June 1990 the worker suffered injury to her head, neck and back, that she was incapacitated thereby and paid compensation to 15 May 1991, that she was partially incapacitated thereby from 16 May 1991 to date and continuing, that her probable earnings were about $430 a week and her ability to earn about $370 a week. The respondent had ceased working after 30 June 1990. The first ground argued by the appellant was that the evidence before his Honour did not support his conclusion that there was a partial incapacity after 16 May 1991 resulting from the June 1990 injury. The appellant referred to the fact that although a very large number of medical reports were tendered in evidence, many, perhaps most of the doctors, were not fully informed of the respondent's history at the time they expressed the opinions they did in their reports. Reference was made to the evidence of Dr Teychenne and it was said by the appellant that the reports that he gave, before and after 30 June 1990, did not indicate any change in the respondent's symptoms. However, it seems to me that central to a consideration of the question whether there was evidence upon which his Honour could come to the conclusion he did about ongoingincapacity, are the reports of Dr Guirgis, who was the respondent's treating doctor, both before and after 30 June. There are in evidence a number of Dr Guirgis" reports. For present purposes it seems to me sufficient to refer to his report of 4 May 1992. In that report Dr Guirgis reviewed the history and referred to both the work related injuries and both the motor vehicle accidents. Speaking of the 30 June injury Dr Guirgis said that since that accident the respondent had complained of severe pain and stiffness involving the interscapular area of the spine and lumbo-sacral area of the spine; this agreed with the terms of an earlier report that he had given on 13 July 1990, shortly after the accident. In his report of 4 May 1992 Dr Guirgis went on to say: As a result of the 30 June 1990 accident she sustained: 1. Musculo-ligamentus sprain/strain of the cervical, dorsal and lumbar spines, aggravating underlying degenerative changes. Trauma upon a normal spine is adequately handled by elastic discs, resilient ligaments, elastic capsule tissue and openings for nerve and blood vessels that have a good margin of safety. Trauma to a degenerated spine finds less compressibility in the disc, less reversible distortion of the disk, ligaments much less resilient and foramen already narrow to the point of a smaller margin of safety. The pre-existence of degeneration have been quiescent in that no symptoms were noted, but now trauma may decompensate the safety margin and symptoms occur. 4 UNREPORTED JUDGMENTS Degenerative changes are slow which undoubtedly permits the nerves to adjust to entrapment and deformation without symptoms. Trauma intervenes in the form of mechanical injury, and the adaptation is overwhelmed, the defence is overcome and symptoms result. A good compensation equilibrium requires amoderate to large stress to be overcome; if the equilibrium is tenuous, a traumatic stress will have great repercussions. 2. Post traumatic headache and dizziness syndrome'. Dr Guirgis then turned to the first of the motor vehicle accidents in November 1990 and in describing the injuries sustained as a result said that the respondent had suffered a further musculo-ligamentous strain to the cervical and lumbar spines, causing further aggravation of the underlying pathology there. He referred also to further aggravation of the post traumatic head syndrome. A little later he said, speaking of the May 1991 accident, that the respondent suffered further aggravation of all the injuries he had previously described. He said the respondent's prognosis was very poor in her condition due to the multiplicity of the traumatic stresses. The appellant argued that the doctor did not, in terms, express an opinion about any ongoing incapacity resulting from 30 June 1990 accident. However, I am quite satisfied that in the context of his Honour's findings about the injuries that the respondent suffered on 30 June 1990, it was open to his Honour to infer, based upon what Dr Guirgis said, that those injuries would have given rise to some ongoing incapacity after 30 June 1990. Accordingly, in my opinion the first ground upon which the appellant appeals should be rejected. The second ground of appeal is said to be based upon the decisions of this Court in MSB v Moore (unreported) 26 May 1995 and Insurers Guarantee Fund, NEM General Insurance Assurance Limited (In Liquidation) v GIO General Limited (unreported) 15 March 1994. The submission is that as a matter of law his Honour was bound to find that such incapacity as the worker suffered after May 1991 resulted from the latest injury-causing accident in point of time, namely the second of the motor vehicle accidents. On this basis it is said that the respondent suffered from total incapacity and it must be held that this resulted from this May 1991 accident. In my opinion this argument is, with all respect, without substance. The question for his Honour was whether, under s 33 of the Workers Compensation Act partial incapacity for work resulted from the injury of 30 June 1990. As his Honour recognised, the resolution of this question was complicated by the later non work related incident. However, his Honour set about the task of extricating the degree to which it could be said that partial incapacity resulted from that work related injury and, as I have said, in my opinion there was evidence upon which his Honour could come to the conclusion he did. I would reject the second ground of appeal. The third ground of appeal is that his Honour did not exercise the discretion which is discussed by this Court in Boston Clothing Company Pty Limited v Margeronis (1992) 27 NSWLR 580 at 590. It is correct to say that pursuant to the terms of s 40 (1) of the Workers Compensation Act, as then in force, having determined the difference between the amounts set out in paras (a) and (b) of that subsection, his Honour was bound to consider what amount bore such relation to the amount of the difference as appeared proper in the circumstances of the case. URWNTERNATIONAL HOTELS CORPORATION PTY LIMITED v JAZAIRY (Gleeson CJ) 5 However, as has been said more than once, this is a matter which is now well recognised in the jurisdiction and it can be expected that an experienced judge such as the trial judge in this case, would not have overlooked that part of s 40 (1). In my opinion there is nothing in his Honour's judgment to suggest that he did not take due account of the discretion that he was required to exercise under s 40 (1). Accordingly, I would also reject this ground of appeal. I propose therefore that the appeal be dismissed with costs. Gleeson CJ. I agree. Mahoney JA. I also agree. Gleeson CJ. The order of the Court is that the appeal is dismissed with costs. Orders accordingly. Counsel for the appellant: GB Beachamp Solicitors for the appellant: Bruce and Stewart Turton Counsel for the respondent: MJ Maxwell Solicitors for the respondent: Muggletons