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. In the case of a witness whose veracity is subject to doubt it is obviously of critical importance to know exactly what the medical practitioners who saw him at the time of the injury thought. His Honour was denied this opportunity and found that as one reason why the applicant should fail. The third reason his Honour found was a total absence of complaints by the worker to his employers or workmates and finally, in the case of the employer's medical evidence, which his Honour seemed to accept, Dr Clark and Dr Nash, 2 UNREPORTED JUDGMENTS there was a positive assertion that the worker's complaints after 26 October 1992 were not work related. For these reasons his Honour was, in my opinion, entitled to come to the conclusion which he did. In these circumstances, I would propose that the appeal should be dismissed with costs. Clarke JA: I agree and I would add only this observation. Mr Joseph SC, for the appellant, referred the Court's attention to a passage in the judgment where his Honour said that: "While I have no doubt that the applicant does have some pain and discomfort in his neck and shoulders the state of the evidence leads me into the situation where I have to rely entirely upon the applicant's evidence in order to be satisfied there is appropriate connection between those complaints and the fortnight's work." The context in which his Honour made that statement was that the appellant saw an orthopaedic surgeon, Dr Briet on 29 September 1992 and had then been unfit for work for a further four weeks. The doctor had a reason for saying that he could not comment on any incapacity beyond that date and also referred to the importance of attitude in cases of which the present is one. Following the September visit, the appellant did not see another doctor until he saw Dr Vano in Sydney some time in 1993. But, there was no evidence from that doctor, either a report or otherwise. The first consultation which led to report was on 27 May 1993, about eight months after Dr Briet's last consultation. His Honour was, as he said in his judgment, concerned about this gap in the evidence, particularly in view of his reaction to the evidence of the appellant. Notwithstanding, Mr Joseph submitted his Honour was wrong to say that he had to rely entirely on the appellant's evidence and he was wrong in rejecting the appellant's evidence. I am afraid I cannot agree. The basis upon which Mr Joseph laid his first submission was that the appellant was corroborated or supported by the evidence of Dr Farey. Indeed his Honour himself said that that doctor had given some support to the appellant. Notwithstanding that support I think his Honour was right to say it all boiled down to an acceptance of the appellant's evidence for, obviously enough, Dr Farey was acting on a history which included the period from the accident to the time he first saw the appellant. If the history could not be accepted, the support essentially disappeared. As it seems to me, the case really did depend upon whether the trial judge accepted the appellant and I do not think the point made by Mr Joseph is a good one. The second basis upon which he said his Honour was wrong was in rejecting the appellant's evidence. The reasons given in the judgment under appeal and by Meagher JA satisfy me that there is no substance in this submission. I agree that the appeal should be dismissed. Handley JA I agree with the preceding judgments. Clarke JA: The order of the Court will be the appeal is dismissed with costs. COUNSEL: Appellant: MJ JOSEPH SC Respondent: JW CATSANOS SOLICITORS: URJcMEEKIN v PROGRAMMED MAINTENANCE SERVICES PTY LTD (Handley JA) 3 Appellant: RL WHYBURN AND ASSOCIATES Respondent: HEATH INSURANCE