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. There is no dispute but that Dr Clery's report accurately described the operation and what happened at it. Following the operation, the worker developed what was called in the evidence, in slightly varying forms, reflex sympathetic dystrophy. This condition led to her partial incapacity for work. She claimed compensation for the partial incapacity. Her case was heard by her Honour Judge Truss. An issue was whether the dystrophy could properly be attributed to the worker's work. It was argued that the evidence led to the conclusion, if dystrophy was the result of the operation described by Dr Clery, then it was so only to the extent that that operation related to his exploration of the ulnar nerve, his excision of the small cyst and his exploration of the other mass. Therefore it was argued that there had been two separate procedures carried out at the same time upon the worker, the one 2 UNREPORTED JUDGMENTS directed to the carpal tunnel being concededly work related, and the one relating to the ulnar nerve, cyst etc having nothing to do with work, that the partial incapacity was caused only by the non work related operation and was not compensable. The Judge found otherwise. She went in some detail through the evidence of which I have only given a sufficient summary to enable understanding of the point argued in the appeal. The critical conclusion in the Judge's reasoning was that the removal of the neurilemomas was a reasonableand necessary part of the operation which consisted of the two aspects, the carpal tunnel aspect and the ulnar nerve aspect. The principal submission in this court was that that finding of the Judge could not be supported on the evidence, or to be slightly more accurate, that upon the Judge's findings on the evidence she could not consistently arrive at that conclusion. Had counsel's submission been accepted, then the Court would have had to choose between one of three courses. One, agreeing with the submission and then coming to the conclusion that on the evidence the Judge should have found as counsel contended that what caused the partial incapacity was not related to work. On this approach the partial incapacity would have had to be set aside. Two, the Court, coming to the conclusion on the materials that although the Judge, according to the appellant's counsel, had adopted a mistaken line of reasoning to her conclusion, nevertheless the conclusion was the right one, upon the Court's consideration of the evidence. Three, if the court agreed with counsel's first submission but felt on the materials it was not safe to embark upon a decision of the substantive matter, the matter should be remitted to the Compensation Court. Had the criticised finding been expressed somewhat differently, I do not think it would have been possible to criticise the Judge's reasoning process. Had she said, for example, basing herself on Dr Clery's report, that the doctor who decided to operate on the right arm had been faced with two conditions in the right hand and arm, one of which on what he then knew was clearly work related and the other on what he then knew may or may not have been work related, and decided that it was necessary to operate to deal with both conditions and then in the course of the operation discovered what he did discover, with the result being the occurrence of the sympatheticdystrophy, that in my opinion would have been both a proper finding and one sufficient to support the orders made by the trial Judge. Although it is debatable whether the criticised sentence fairly bears the meaning which I just outlined or a meaning along those lines, it seems to me that probably the better answer is that when the whole of the Judge's reasons are read, it is fair to ascribe some such enlarged meaning to what she said in that sentence. But it does not seem to me to be necessary to decide this. Even if it is not proper to ascribe that sort of meaning to the critical sentence, then the evidence before the trial judge seems to me to be clear enough to support a view of the necessity for the operation of the kind which I have described. Put shortly, it was an operation made desirable and recommended by competent medical advice for reasons at least partly directly flowing 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. URJCOUNCIL OF THE SHIRE OF GUNNEDAH v MORGAN-MOFFATT (Priestley JA) 3 Directly flowing from the proper advice to have the operation to deal with the two lesions which Professor Holland's report had described, were the procedures directed to those two lesions. Accepting for the purpose of these reasons, that the sympathetic dystrophy was the result of the ulnar nerve lesion, nevertheless this came about from the proper decision to have the two conditions looked at on the one occasion. To my mind, this means that to the question whether the resulting partial incapacity was sufficiently work related to justify the finding favourable to the worker made by her Honour, the answer is plainly 'yes'. The Court was referred to a passage in Lindeman Limited v Coleman (1946) 74 CLR 313 at 321 where there is a statement made by Dixon J typical of a number of statements in the reports dealing with situations of this kind which indicate that where a worker reasonably undergoes treatment orsurgery for a work related condition, which treatment or surgery results in a further condition affecting the worker's ability to work, then the Court should treat that further condition as attributable to the work related injury. This case seems to me to fall within that category. I would therefore not accept the submission for the appellant on the first, and as I said earlier, principal point in the appeal. Had I thought the submission should be accepted, I would in any event have adopted the second of the three courses I earlier mentioned. The second point raised concerned the way in which the trial Judge calculated the amount of the award for partial incapacity. The submission was that she had not complied with the various steps necessary to be complied with pursuant to s 40 in order to work out the appropriate amount. It seems quite clear on examination that all the elements necessary for the calculation were dealt with by her Honour in the course of arriving at the figure which she determined. I do not think there is anything in this point. There was a third point which complained about the way in which the trial judge dealt with medical evidence. I think this is sufficiently answered by saying that on my reading of the materials and her reasons, she dealt quite carefully and properly with the medical evidence. I would therefore be in favour of dismissing the appeal with costs. Clarke JA. I agree. Meagher JA. I also agree. Priestley JA. That is the order of the Court. Appeal dismissed with costs. Counsel for the appellant: M CRANITCH / S DEVINE Solicitors for the appellant: SPARKE HELMORE Counsel for the respondent: JW DODD Solicitors for the respondent: P LONG