ST LUKE'S PRIVATE HOSPITAL v KEHOE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and MEAGHER JJA 13 June 1995, 26 October 1995 [1995] NSWCA 443 WORKERS COMPENSATION — CONFLICTING MEDICAL EVIDENCE WORKER'S EARNINGS — POINT NOT TAKEN IN COURT BELOW FACTS: An employee of the appellant suffered an injury to her low back when trying to move an obese patient. The worker's contention that she had also suffered a neck injury was not supported by the employer's doctors. The trial judge made an award under s40 of the Workers Compensation Act 1987, awards in respect of the back and neck injuries under s66 of that Act, and an award under s67. On appeal, the employer challenged the trial judge's finding of the existence of a neck injury; and contended that the worker's earnings were in excess of $900.00 per week. HELD: (1) (By Meagher JA, Mahoney and Clarke JJA agreeing) The trial judge having believed the worker's evidence as to the neck injury, it is no use the employer's doctors saying that the worker could not have hurt her neck. It follows that insofar as the grounds of appeal attempt to controvert the findings of the trial judge, the appellant must fail. (2) (By Meagher JA, Mahoney and Clarke JJA agreeing) The point regarding the worker's earnings was never taken below, and therefore cannot be dealt with on appeal. Mahoney JA I agree with the judgment of Meagher JA. Clarke JA I agree with the judgment of Meagher JA. Meagher JA This is an employer's appeal against an award made by Duck CCJ in favour of the respondent worker, who was a nurse, in respect of an injury caused by an accident which occurred in the course of the respondent's employment with the appellant. Her back gave way when trying to move an obese patient. His Honour made an award of $246.20 per week from 14 April 1993 to date and continuing, under s40 of the Act, two other awards under s66 for $22,878 (in respect of the back), and $10,168 (in respect of the neck), and yet another award for $25,000 under s67. The medical evidence was more than usually diverse, many doctors favouring the worker, and many being adverse to her. She herself gave extensive evidence and his Honour expressly and emphatically believed what she said. In these circumstances it is hardly surprising that he believed the doctors who supported her case. In particular there was controversy about her injuries. She said, and everyone agreed, she suffered a low back injury. She also said she suffered a neck injury; she was supported by her doctors in this respect but not by the employer's doctors. She gave evidence she did have a neck injury; if his Honour believed her, it is no use the employer's doctors saying she could not have hurt her neck. It follows that insofar as the grounds of appeal attempt to controvert his Honour's findings of fact the appellant must fail. 2 UNREPORTED JUDGMENTS The other grounds of appeal centred around a submission that the worker's earnings were in excess of $900.00 per week. The employer's contention is that this $900.00 figure is only achieved by aggregating the worker's wages with earnings from contracts for services and self-employment, whereas the Act only deals with moneys payable under contracts of service. This is a most interesting submission, but one with which, unhappily, we must deprive ourselves of the opportunity of dealing. That is because the contentions of Mr Gross QC, learned senior counsel for the worker, seem to be correct, that the point was never taken below. Although this was denied by the appellant's counsel, it is supported both by the fact that his Honour did not deal with it in the course of his careful reasons, and by the fact that his Honour said "No real issue in the case has arisen about the figures". This is all the more telling when the worker claimed the $900.00 figure in her application. The appeal should be dismissed with costs. Appeal dismissed with costs. COUNSEL: Appellant: J SHARPE Respondent: BJ GROSS QC / T BOY SOLICITORS: Appellant: CARROLL AND O'DEA Respondent: PV McCULLOCH AND BUGGY