O'NEILL v DYSON AND POLLACK PTY LTD [1995] NSWCA 341

O'NEILL v DYSON AND POLLACK PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 8 May 1995, 8 May 1995 [1995] NSWCA 341

WORKERS COMPENSATION ACT — APPEAL — NO QUESTION OF PRINCIPLE

Clarke JA This is an appeal by a worker against an award made in an application which he brought pursuant to s66 and s67 of the Workers Compensation Act 1987 for permanent impairment of the back and for loss of use of the right leg. Her Honour accepted that there was a permanent impairment of the back which she assessed at 10 percent. Her Honour rejected the claim of permanent leg impairment.

The notice of appeal seeks orders that the appeal be upheld, that the rejection of the leg claim be set aside and that the finding of a 10 percent impairment of the back be set aside and that the matter be referred back to the Compensation Court for determination in accordance with the law.

The judgment under appeal was both comprehensive and careful. In it Judge Truss records the history of the appellant's complaints from 13 June 1990 when the injury occurred up to the date of trial. Her Honour also analysed in some depth the contentions of the various medical practitioners some of whom treated the appellant and others of whom were qualified to provide expert opinions.

The appellant himself said that shortly after 13 June he had noticed pain in his back and extending into his right leg. He described the latter pain as being inside his leg in the area of the bone and extending from the groin to the knee.

He also said that within a few days of sustaining the injuries he was very badly incapacitated.

There were, as I see it, two fundamental issues which the Judge was required to resolve. The first was whether the appellant could be accepted in his complaints and particularly as to the severity of those continuing complaints. The second was a medical issue and that was whether the appellant had suffered from a soft tissue or muscular injury to his back on 13 June perhaps associated with an aggravation of an underlying degenerative condition or whether he had suffered from a disc lesion. There was an abundance of medical evidence in support of either view.