COLES MYER LTD (TRADING AS K-MART) v HELLEGERS [1995] NSWCA 84

COLES MYER LTD (TRADING AS K-MART) v HELLEGERS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and CLARKE JJA 16 June 1995, 16 June 1995 [1995] NSWCA 84

WORKERS COMPENSATION ACT — APPEAL FROM LUMP SUM AWARDS UNDER s66 and s67 — INSUFFICIENT REASONS PROVIDED BY TRIAL JUDGE

Clarke JA This is an appeal from the decision of Judge Burke given on 23 November 1994. The respondent worker was employed with the appellant as a service manager. On 6 May 1991 she was injured when she fell over at work. Thereafter she was paid compensation and those payments were still being made at the time of the trial. She brought an application in the Compensation Court claiming lump sum payments pursuant to s66 and s67 of the Workers' Compensation Act 1978.

She gave evidence that she had had constant pain in her back and legs since the accident. She was manipulated upon and submitted to traction on 14 February 1992 and had another bout of traction on 26 February 1992. On 24 March 1993 a Dr Smith, a surgeon, carried out a spinal fusion operation that was followed by complaints of thrombosis in the legs. At the end of May 1994 the screws used for fixing her spine were removed and the respondent complained that following the operation she suffered from painful disabilities in both her legs whereas prior to the operation she had had only sciatic troubles in one of her legs. She also complained of depression and a stammer which had followed the operative treatment.

The medical evidence in support of her claim was provided to the Court in the form of written reports. No doctor gave oral evidence and, of course, none was cross-examined. An example of the problems suffered by the respondent can be taken from the report of Dr Michael Aroni dated 17 August 1994. He said that she got a constant burning pain in her lower back which is made worse by excessive activity such as prolonged walking, bending, stretching, prolonged sitting or standing, change in weather, particularly in cold weather, and coughing and sneezing. She also had a very sensitive area around her left hip. In her right lower limb she had referred pain down the back of the thigh, the back of the calf, and suffered from pins and needles in her foot. The operative procedure did not improve her leg problems in the right lower limb. Following the operation she developed pains in her left lower limb. They were referred from back of the thigh down into the calf, and again there were pins and needles suffered in her left foot. She also had numb feelings on the inside of her left thigh.