COUNCIL OF THE SHIRE OF GUNNEDAH v MORGAN-MOFFATT [1995] NSWCA 104

COUNCIL OF THE SHIRE OF GUNNEDAH v MORGAN-MOFFATT

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, CLARKE JA and MEAGHER JA 8 August 1995

[1995] NSWCA 104

WORKERS COMPENSATION — worker undergoes operation — following operation she is awarded compensation for partial incapacity — employer appeals arguing that two separate procedures carried out upon worker only one of which is work related and partial incapacity caused by non work related procedure — Held: the evidence before the trial judge supports the view that the necessity for the operation arose at least partly from a condition which had arisen in the course of the worker's employment and sufficiently related to that employment to be properly described as a work related condition: Lindeman Limited v Coleman (1946) 74 CLR 313 at 321 per Dixon J referred to.

Priestley JA. This is an appeal by an employer against orders made in favour of a worker in the Compensation Court.

There is one principal point in the appeal. To explain this I will begin by referring to a report of Dr John Clery, dated 13 December 1993 and tendered in evidence. In it he said that he had seen the worker on 4 March 1993. She then complained of a lump in her right forearm. She also then said that she had developed pain in the palms of both hands and the ulna side of the left forearm. The report continued that the worker had mentioned other symptoms which led Dr Clery to refer her to Professor Holland in Newcastle for nerve conduction studies; Professor Holland had reported to Dr Clery that studies on the right upper limb showed evidence of a median nerve lesion at the wrist and an ulnar nerve lesion in the forearm; in view of this the worker was admitted to hospital where Dr Clery operated on her on 2 June 1993; in the operation he first carried out a carpal tunnel decompression andthen explored the ulnar nerve (of the right forearm); the ulnar nerve exploration showed a small cyst within the nerve which he enucleated; he also explored the mass in her forearm (which clearly enough appears to have been what was referred to in the evidence and in the argument today as the lump); he removed both the small cyst and the other mass; both lumps turned out to be benign neurilemomas.