McMEEKIN v PROGRAMMED MAINTENANCE SERVICES PTY LTD [1995] NSWCA 288

McMEEKIN v PROGRAMMED MAINTENANCE SERVICES PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 10 May 1995, 10 May 1995

[1995] NSWCA 288

WORKERS COMPENSATION — ONUS OF PROOF OF INJURY — FINDING OF FACT BASED ON EVIDENCE.

FACTS Appellant/worker sought to appeal finding of fact made by trial judge against appellant/worker.

HELD The finding of the trial judge was based on the evidence before him and cannot be disturbed.

Clarke JA I will ask Meagher JA to give the first judgment.

Meagher JA In this matter the worker/applicant, Mr McMeekin, suffered an injury at work when he was working for the respondent, Programmed Maintenance Services Pty Ltd, during a fortnight of June 1992. At the time of the injury there was a pre-existing condition of spondylosis and rotor cuff injury. The existence of the injury, it is not in dispute, exacerbated the existing condition of the worker and produced an incapacity to carry on his employment. That was recognised by the employer who paid him until 26 October 1992. The worker was not satisfied with this and asked, as he was entitled to, for a larger award. His Honour declined to give him an award and in my view his Honour was justified in doing so.

Perhaps the starting point is to read his Honour's conclusion. It is this:

"The applicant was suffering from a disease, that is to say pre- existing condition spondylosis and rotor cuff injury. There was an exacerbation of that injury by reason of the work which he was doing and that exacerbation produced incapacity to carry out his employment until 26 October 1992, the date to which he was paid. I am not satisfied it continued beyond that point."

His Honour was entitled to come to that conclusion. He seemed to do so for a number of reasons. In the first place, he found the applicant was evasive and not just in his demeanour, that is a matter which Mr Joseph SC for the appellant concedes was a conclusion that his Honour was entitled to come to. The next reason his Honour gave was that there was no contemporaneous medical evidence. When the injury first occurred he saw Dr Satchwell who was not called, who has furnished no report and from whom there are no notes. Dr Satchwell referred the worker to Dr Vano who was not called and from whom there is no report and who did not produce any clinical notes. Dr Vano referred him to Dr Arnold. There are also no clinical notes from another doctor who is of some importance, that is Dr Sommabend.