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. Her Honour clearly enough did not accept the appellant as to the severity of his complaints. She did, as it seems to me, accept that he did have an injury on 13 June and that he had had problems from it continuing to the date of trial. What she did not accept was that the problems were nearly as severe as he said. Secondly, and perhaps more importantly for the present case, her Honour rejected the diagnosis of a disc lesion. Her Honour accepted the medical evidence and concluded that there had been a soft tissue injury. Notwithstanding that acceptance her Honour concluded that because the appellant's problems had continued for the period of nearly 4 years to the date of trial she should treat them as permanent albeit that they were not as severe as the appellant asserted. She 2 UNREPORTED JUDGMENTS accordingly found the 10 percent impairment of which I have spoken. Having rejected the notion of a disc lesion and the full extent of the appellant's complaints she was not satisfied that there was any permanent injury in the leg. Mr Cummins of Queens Counsel who presented the appellant's arguments with admirable clarity and conciseness fastened on a formal finding made by her Honour that on 13 June 1990 the appellant suffered injury to his back and right leg. This, he submitted, was quite inconsistent with the rejection of the diagnosis of a disc lesion. In his submission her Honour had throughout her judgment linked the leg pain with the question of disc lesion and her rejection of the latter necessarily involved her rejection of any complaint of leg pain. Accordingly, there was an internal inconsistency of some moment between her Honour's reasoning process and her ultimate conclusion that he had sustained an injury to his right leg. The submission has a superficial attraction but its validity seems to me to depend on the proposition that assuming that on 13 June 1990 the appellant suffered only from soft tissue injuries and, perhaps, a complicating aggravation of degenerative changes, he could not have suffered any injury at that time to his right leg. If the evidence established that the injury to his right leg was consistent with and only consistent with a disc lesion, then I would think there was real weight in Mr Cummins submission. If, however, the evidence disclosed that the right leg injury was consistent also with a soft tissue injury, then the submission should, in my opinion, be rejected. Ihave considered each of those aspects of the evidence to which our attention has been directed and, in particular, those portions of the judgment where her Honour discussed the issue concerning the disc lesion and the problems in the right leg but I can find nothing in the evidence, or her Honour's discussion, which justifies the view that a finding that on 13 June 1990 the appellant suffered from a leg injury was inconsistent with him having suffered from a soft tissue injury to the back at the same time. As it seems to me the doctors who rejected the diagnosis of a disc lesion were - or at least some of them were - aware of the appellant's complaints of leg pain shortly after 13 June and notwithstanding they adhered to their diagnoses. It seems to me that on the evidence in this case there is no inherent inconsistency between the finding of soft tissue injury and an associated finding of leg injury and Mr Cummins' submission should be rejected. There is also in the notice of appeal a challenge to the assessment of 10 percent impairment but our attention has not been directed to any material which would justify this Court in reversing her Honour's assessment which was based in part at least upon her view of the appellant as a witness. In my opinion the appeal should be dismissed with costs. Meagher JA I agree. Handley JA I also agree. Clarke JA: The appeal is dismissed with costs. Counsel for the appellant: J CUMMINS QC AND N MAYELL Solicitors for the appellant: MILNE, BERRY AND BERGER Counsel for the respondent: M CRANITCH Solicitors for the respondent: ABBOTT TOUT RUSSELL KENNEDY