PLASTIC PROCESSORS PTY LTD v THOMAS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY ACJ, MAHONEY and CLARKE JJA 11 July 1995, 11 July 1995 [1995] NSWCA 371 WORKERS' COMPENSATION — incapacity — causation of — back injury whether permanent aggravation by subsequent employment — whether merely temporary aggravation of disc pathology caused by injury with first employer — Judge of Compensation Court (Geraghty CCJ) finds no permanent effects of supervening aggravation with second employer — enters continuing award against first employer — on appeal to the Court of Appeal by first employer — HELD: The interpretation of the facts was open to the primary judge and no error was shown warranting disturbance of his award by the Court of Appeal. PRACTICE AND PROCEDURE — adjournment — Compensation Court — giving closing address counsel for worker applies for adjournment to permit joinder of second employer — application refused by primary judge — application not joined in or supported by employer before Compensation Court — when award of compensation entered against employer, it relies on appeal upon the failure of the judge to grant the worker an adjournment — the worker makes no complaint — HELD: The Court of Appeal will rarely disturb a decision by a trial judge to grant or withhold an adjournment. See Sydney City Council v Ke Su Investments Pty Ltd (1985) 1 NSWLR 246 (CA); CSA Industries Pty Ltd vy NT Gas Ltd (1990) 24 NSWLR 710 (CA) applied. (2) No injustice was done to the employer by the refusal to the worker of the adjournment having regard to the fact that the employer neither joined in nor supported the application. (3) Appeal upon this ground dismissed. Workers Compensation Act 1987, s22, s38, s40, s66, s67. Kirby ACJ The Court is sitting in a series of workers' compensation appeals and this is one of them. AWARD FOR WORKERS IN BACK CASE On 1 October 1993 Geraghty CCJ, in the Compensation Court of New South Wales, awarded compensation in favour of Mrs Lorraine Thomas, (the worker). She had previously been known as Mrs Lorraine Annetts, the name by which she was described in the Compensation Court. The record was changed in this Court today. Mrs Thomas was born in 1956 which, I remind myself, was the first year in which I ever took part in proceedings in the predecessor to the Compensation Court. She was thirty-four at the date of injury. She is now thirty-nine years of age. The award entered by Geraghty CCJ reflected findings which his Honour made in his reasons for decision. Those findings relevantly were that: 1. On 3 August 1990 the worker had suffered an injury in the course of her employment with Plastic Processors Pty Ltd (the appellant) namely an injury to her lower back; 2. The worker was partially incapacitated as a result and had been so from September 1990; 3. The probable weekly earnings of the worker but for the injury with the appellant, would have been $340 per week; 2 UNREPORTED JUDGMENTS 4. The average weekly amount which the worker was able to earn in some suitable employment following injury was $200 per week; and 5. The appropriate amount of weekly compensation was $150. l observe that the award of weekly compensation is greater than the difference between the pre-injury earnings and the findings as to post injury economic capacity. However no point has been raised in this appeal on that point. I shall therefore pass it by. Geraghty CCJ awarded the worker weekly compensation as above pursuant to s40 of the Workers Compensation Act 1987 (the Act). He also awarded her $55,470 under s66 of the Act in respect of a 25 per cent permanent impairment of the lower back. Thirdly, he awarded her $8,000 in respect of past pain and suffering pursuant to s67 of the Act. Fourthly, interest and medical expenses were awarded. His Honour rejected a claim which had been put on behalf of the worker under s38 of the Act. THE GROUNDS OF APPEAL The appellant has appealed to this Court from his Honour's award. It contends that Geraghty CCJ erred in three respects. I will take them in logical order. 1. In not granting a request for adjournment made at the trial by the worker for an adjournment to permit the worker to join Yamaha Motor Australia Pty Ltd (Yamaha) as a respondent to the claim; 2. In finding that the aggravation to the worker's back which had occurred in the course of her employment with the appellant was other than temporary; and 3. In entering an award which was based upon findings which were against the weight of the evidence, ie factually wrong. Earlier challenges in the original notice of appeal to the awards under s67 and to the admission of certain medical reports were abandoned. In this case, an appeal to this court. Essentially it was the appellant's case that any injury from which the worker suffered whilst in its employ was in the nature of a muscle injury or some temporary aggravation of an underlying back weakness, and that its liability to compensation was, therefore, temporary only. The appellant submitted that this view of the facts was borne out by the medical evidence, and also by the factual evidence given by the worker herself as to her employment activities. It was suggested that the worker had suffered aggravation whilst employed by 'Yamaha, and that on that basis, Geraghty CCJ ought to have denied any continuing award against the appellant, leaving the worker to recover any award to which she was entitled to subsequent proceedings against Yamaha. Reference was made to s27 of the Act and to decisions of the Court such as Maritime Service Board of New South Wales in the Interests of Government Insurance Office of New South Wales v Moore and Anor New South Wales Court of Appeal, unreported 26 May 1995. 'Yamaha was not a party to the proceedings in the Compensation Court, a matter to which I will return. The ordinary principles of procedural fairness would have forbidden the application of s22 of th Act in its own terms. No finding of liability against Yamaha could have been made for it was not before the Compensation Court to be heard in resistance. ORIGINAL INJURY SUPERVENING EMPLOYMENT AND AGGRAVATION The circumstances in which the worker received her injury with the appellant were found by Geraghty CCJ to have been as follows: URJ PLASTIC PROCESSORS PTY LTD v THOMAS (Kirby ACJ) 3 "On 3 August 1990 Mrs Thomas injured her lower back. She was operating a toothbrush production machine. She had started work at about 7.30 in the morning, putting brushes into boxes and removing rejects. When the boxes were full, she would place them on a weighing machine and then put them into a larger box on the floor. She did not remember the weight of the larger box, but she told one doctor it was not very heavy. Four smaller boxes of toothbrushes were placed into a larger box which was sealed with a tape and put on a pallet. The operator lifted the box from the floor on to the pallet. Mrs Thomas had worked at these duties for about two hours on 3 August 1990, keeping an eye on one other machine. Just before morning tea time, at 10am, she was sorting the brushes from the conveyor belt on the weighing machine, putting a bigger box on to the pallet, when she experienced a sharp pain in her lower back. She sited the pain as right of centre, just under the belt-line. She put the box down and tried to stand up. The pain increased. Mrs Thomas approached the supervisor, a Patricia White she thought. She lay down on a bed in the ladies' room, her legs bent up under her. She asked to see a doctor. No treatment was given by the first aid man who attended her. She was not taken to the company doctor, but informed she should see her own doctor if she wanted to. She was there for about three hours and had been offered Panadol. Her husband was contacted. Mrs Thomas went to the 24-Hour Medical Centre at Blacktown and on the same day was treated by her general practitioner, Dr G Morris." The worker was initially off work for three weeks. When she returned to work with the appellant she did not return to her pre-injury work which had involved packing, lifting, much bending and working under pressure. Instead, she returned to lighter duties, but even these she could not cope with. As found by Geraghty CCJ, she received little support from her co-workers in the employ of the appellant. In the face of this, when she found she could not cope, she resigned. According to the evidence, she received words of sympathy from the appellant's manager, according to her evidence. She was paid workers' compensation benefits until 8 October 1990 by the appellant. The worker did not remain unemployed. She started work with Yamaha in January 1991. Her evidence described the kind of work which she was doing on about two days a week. It involved work which was generally consonant with her continuing complaints of pain in the back. It involved sitting. But even this she found aggravated her back pun from time to time. Through 1991 and also 1992 the worker additionally worked as a sandwich maker for the Australian Jockey Club. She had much motivation to work. She had three children, one of whom had an intellectual handicap. The case must be approached on the footing that Geraghty CCJ was impressed by the worker. He accepted the truth of her testimony. Of this he said: "T was in the position of observing Mrs Thomas, while she was in court for two days. It was my opinion she was a real trier. She was a worker - a good mother who wanted to feed her family and, despite some inconvenience and discomfort with her pain, needed to go out and find work with Yamaha, even after she was still suffering from an injury she had sustained with the respondent. I observed her in the court and I concluded her complaints were genuine. She was showing obvious signs of pain, she was uncomfortable, unable to settle. A lady of very slight build who seemed to want to move around, to sit down, to stand up, to try to ease some of the ache. It may be that the days she spent in court were particularly bad and she does have relief during other days. However, I 4 UNREPORTED JUDGMENTS found her to be a witness I accepted. I accept she had no treatment from her general practitioner, whatever about her physiotherapist, between October 1990 and July 1991 because firstly, she could not afford it, and secondly, she was looking after an intellectually handicapped son. She had a family of three children to care for which was occupying her time." When the case came to trial in the Compensation Court, the potential forensic importance of the supervening employment with Yamaha and the Australian Jockey Club was not immediately realised by the parties. Certainly, as I say, neither the Australian Jockey Club nor Yamaha had been joined as respondents to the worker's application or as parties whom the appellant contended were liable to the worker in its stead. CIRCUMSTANCES OF SUPERVENING AGGRAVATION During the conduct of the case, evidence was led, or taken under cross-examination, from the worker concerning the work which she had been doing with Yamaha. Cross-examination was directed to suggesting that this work had amounted to an aggravation and, hence, an injury causing incapacity on the part of the worker. The key passages in this respect are three. The first appears in examination in chief: "Q. When you say consistent with the work that you are doing, what is currently happening now at Yamaha A---Well, when you sit you mark off the parts at Yamaha. Like I said, it's a period of a sitting job. Well, because I find it very difficult to sit for a period of time, then you sort of have to put these parts away in sections into the warehouse and it consists of a consistent amount of walking into the warehouse and I find that if I walk for a period of time putting these parts away that my leg starts to ache. Then I've got to go back to sitting for a period of time, and it's basically just a lot of walking, sitting, and I find that if I do do the walking and putting the parts away, my leg starts to sort of play up and ache and - - - Q. On the last occasion, you also said that you worked approximately 2 days a week at Yamaha; has that changed. A---Yes, the work at Yamaha is getting more consistent. They're running it into sometimes 3, maybe 4 days a week, but I find that very difficult." And later under cross-examination: "Q. Do you think that is why you went to see the doctor, because - - - A---No, because my back was giving me lots of problems and I went to see him and the work increased load was starting to irritate it. Q. Did you tell the doctor that you had low back pain and that it was worse recently on that occasion. A---Yes. Q. Did you tell him there were no new injuries. A---I don't understand the question. Q. It is just the entry here says 'no new injuries", did you tell him there were no new injuries." And further: "Q. And 7 August 1992, you say your back was again bad. A--- Yes. Q. Is it fair to say that your work with Yamaha does stir your back up. A---If the hours are more consistent and the work becomes more consistent, because the more consistent work I do, the more it seems to cause it a problem. Q. You saw Dr Norris just recently again, did you not. A-Yes. Q. You also saw Dr Rivett. A---Yes. Q. Did you tell Dr Rivett, this on 19 August this year. A---Yes. say your back pain had improved. A---If I don't work on a regular basis, yes. URJ PLASTIC PROCESSORS PTY LTD v THOMAS (Kirby ACJ) 5 Q. You no longer have any leg pain. A---No, I do have right leg pain. Q. When you saw Dr Rivett on 19 August, did you say you no longer had any leg pain. A---I said that I - I told him that I had had leg pain but the leg pain comes and goes and at the particular time when I probably seen him, I might - it mightn't have been there at the time and I don't - it's not - the leg pain comes in both legs, right and left but at the time when I seen Dr Rivett, he said - if he asked the question did | have leg pain I probably answered no at that particular time because it was not bothering me then. Q. Did you tell that you, due to work pressures, you were required to work 25 hours in the last week. A---Over the last 12 months the work at Yamaha has become very - a lot more constant and over the last few months it's got even more constant and calling you in more and doing more work and I find that over the last period of the last few months, I've had lots of problems coping with it because the work increase has become more demanding." From the foregoing it will be seen that this case, both at trial and on appeal, presented the familiar questions common in many cases of back injury: Was the incapacity of the worker attributable to - (a) the undoubted incident which happened in the employ of the appellant and consequent pathology? (b) the aggravation caused by whatever happened in the course of the employment with Yamaha? (c) a combination of (a) and (b)? or (d) a combination of work aggravation and the consequences of a congenital weakness of the back of the worker to which successive work incidents had caused merely temporary aggravation of finite and short duration? Geraghty CCJ formed the view that the correct interpretation was (a), that is, that the injury which the appellant had caused was an undefined disc pathology which left a residue of on-going partial incapacity for which the appellant was obliged to pay compensation to the worker. It is this finding which the appellant challenges in its appeal to this Court. Refusal of adjournment caused no injustice I turn first to the challenge related to the refusal of the adjournment. A decision on whether to grant or withhold an adjournment upon application during the course of a trial is one which is reserved by law to the primary decision-maker. It is one with which this Court will rarely interfere. The reasons for this course of action have been stated in many cases. Those cases are usefully collected in the opinions of Mahoney JA and myself in Sydney City Council v Ke Su Investments Pty Ltd (1985) 1 NSWLR 246 (CA) at 252-258. They are also referred to in a decision of the court in CSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 at 712. The circumstances giving rise to the application for the adjournment in this case arose after evidence was given by Dr HM Rivett, a rehabilitation specialist who had been retained for the worker. He gave evidence of a history of the events at Yamaha. He expressed an opinion. This led to a very late application by counsel then appearing in the interests of the worker. Her application was made during her closing address. Indeed, it occurred near the very end of it. The following exchange then took place: "HIS HONOUR: Yamaha is not involved, if they are temporary aggravations, they are not involved but if they are aggravations that affect her present condition, they have got to be here. You can not get findings about that without them being here. If I accept what Rivett says then some of the cause perhaps goes to the earlier employer and some of the cause goes to Yamaha. MS HOEBEN: 6 UNREPORTED JUDGMENTS 'Your Honour, the way in which I was looking at it was that you have the injury as it occurs in August 1990, you have the major injury then, I see it as continuing all the way along, what you have are aggravations, we would say, which started in August 1990, continued during that period of time - - - HIS HONOUR: Injury is defined in the Act in s4, it means personal injury arising out of or in the course of employment, includes a disease, at two, an aggravation, acceleration, exacerbation or deterioration of any disease where the employment has a contributing factor to the aggravation, exacerbation, acceleration and deterioration. That is what the point of all that cross-examination was with Rivett, the injury includes an aggravation, acceleration, exacerbation and deterioration. MS HOEBEN: Your Honour, if you are not ready to accept what we have is the injury which starts in August 1990 which was the way that I had assessed the matter as being a continuing one all the way through and all you had are these aggravations as not being part and parcel of the original one, I would - and given what you have just said in terms of the onus, I would have to say at this point in time, I know it is very late in the day, to ask to make an application of the Court and to seek your indulgence, that we join, in fact, Yamaha at this point in time. I do apologise but that was how I reviewed the case originally and that was how certainly we were arguing and preparing it. Your Honour, I can not say anything else and in fact had this been put to me in fact by my friend at some stage earlier or in any of the communication we certainly would have done it, but there has not been any indication as to that and I apologise for the inconvenience to the Court. HIS HONOUR: You do not have to worry about that at the moment. That was the point of all that cross-examination from Rivett. MS HOEBEN: I can see that point of view now, your Honour and I am in a difficult position and I feel bound in terms of the interest of my client to make that application if that is the view that you take at this point in time. HIS HONOUR: I did not say that was my view, I am saying that was the point of the cross-examination. That was really why I was confronting Mr Wynyard about whether it was a permanent or just a temporary aggravation. I do not see any need for you to make an application and I reject any application that you make. MS HOEBEN: I will proceed on the address." It is notable, I think, that counsel for the appellant, whose address had preceded that of counsel for the worker, did not himself at any stage in the proceedings seek an adjournment on behalf of the appellant. Nor did the appellant's counsel seek, in reply or by leave, to support the application for adjournment made on behalf of the worker. Neither in the conduct of the case, nor in the addresses to his Honour, was any such application made or supported. Nor was any application made on behalf of the appellant to join Yamaha as an additional party to the proceedings. One possible view of the way in which the case was conducted at trial on behalf of the appellant is that a decision was taken, for forensic reasons of a tactical and entirely understandable nature, not to press or support the application for adjournment. In this Court, naturally enough, the worker in her written submissions did not support the challenge to his Honour's exercise of the discretion to refuse the adjournment, being the beneficiary of the award which his Honour then proceeded to enter. So we have the spectacle of a challenge to an order made against a party who is not complaining, and advanced by a party who did not URJ PLASTIC PROCESSORS PTY LTD v THOMAS (Kirby ACJ) 7 seek, or even support, that order at the trial. The party seeking to challenge the order took no steps of its own to involve Yamaha. The order made was purely discretionary and procedural. Consistent with the established authority of the Court, I can see no proper basis on which this Court could disturb his Honour's refusal to provide the adjournment sought by the other party. In particular, I see no serious injustice which arose which requires the intervention of this Court. It is not irrelevant to say that, had there been any hint of injustice at the time, one might have expected it to have been advanced before the trial judge by counsel for the appellant. It was not. CONCLUSION ON SUPERVISING AGGRAVATION WAS OPEN The appellant then submits that Geraghty CCJ misunderstood the evidence of Dr Rivett as to the significance of the incidents which had occurred whilst the worker was working for Yamaha. It suggests that this misunderstanding caused his Honour's decision to provide the award to the worker to miscarry. The complaint is that his Honour misunderstood the extent of the aggravations which had occurred in the course of employment with Yamaha, to which, it is said, Dr Rivett adverted in his evidence. The appellant submitted that, contrary to Geraghty CCJ's findings, Dr Rivett postulated permanent or long term aggravation which was, in fact, the (or a) governing cause of the incapacity in the worker. It is relevant in this regard to keep in mind the descriptions by the worker herself, who was accepted by his Honour, which I have set out above. But it is critical to have regard to the passage in the evidence of Dr Rivett. He said: "Q. We will start again. Assume that she started work in January 1991, she did not complain to any doctor at all until July of that year, and she complained of those two things I mentioned to you, she had back pain over the last few days. In September, back worse again, last few days, did settle and from then on in there's a history of continued complaints about her back pain, would that indicate to you that her work with Yamaha has got a part to play in causing her present symptomatology. A. I would call it probably an aggravation of her existing problem because the nature of - again, this is hypothetical, the nature of disc pathology which we have not yet ---, is such that it tends to be intermittent, it could be right for a while and then not so, if you are asking me would Yamaha's work be the cause of it, I would say it could be an aggravation of the problems she has had since 1990. Q. It would certainly exacerbate her problems. A---Yes. Q. Accelerate her problems. A---Not necessarily accelerate but exacerbate. Q. If she is giving continued insults to them, if she is continually having problems to the extent that she has had to go off for three weeks - - - A. Well, there is a point - - - Q. Would not continued insults tend to exacerbate the problem. A. Yes." I do not read this passage in Dr Rivett's evidence to indicate any opinion of permanent aggravation with Yamaha. The key to this case was an assessment of whether the incident which happened at work when the respondent was working for the appellant on 3 August 1990 was simply itself a temporary aggravation, providing no more than evidence of a fundamental back disability, or whether it was the initiation of some kind of disc pathology, the effects of which were continuing. 8 UNREPORTED JUDGMENTS The event of August 1990, as described by the worker, was certainly one of a kind which could cause a disc pathology. Dr Spigelman, Dr Slezak and Dr Burke for the appellant postulated the former thesis. However Geraghty CCJ, who had the advantage of being the trial judge, did not accept their evidence. Indeed, he rejected the evidence of Dr Slezak and Dr Burke in terms. He, therefore, rejected the thesis that all that happened in the course of employment with the appellant was a mild aggravation of an underlying condition. He seemed, instead, to favour Dr Rivett's thesis that there was nerve root irritation dating back to the incident in the employ of the appellant. When I reflect upon the evidence of the worker as to her condition after her injury, both whilst working for the appellant and whilst working for Yamaha, this interpretation of events is, in my view, supportable. I see no error in the view which Geraghty CCJ took of the evidence. His Honour had the obligation to decide the case between the parties before him on the facts which were put before him and on the issues before him. Allowing for the advantages which his Honour had as the trial judge, I do not believe that this Court would be justified in reaching a different view, or giving effect to a contrary opinion. The award was correctly entered against the appellant The third ground of appeal argued was that the award entered by Geraghty CCJ was against the weight of the evidence. This requires the Court to review the evidence for itself. But it follows from what I have already said that the same result is reached. In my opinion not only was the decision open to Geraghty CCJ. It was a preferable decision in the facts proved at the trial. I would propose that the appeal be dismissed with costs. Mahoney JA I agree with the judgment of the Acting Chief Justice. In deference to the persistent submissions of Mr Wynyard, I shall add some observations of my own. The essential problem in the present case arose from the difficulty in diagnosing what precisely was the nature of the condition from which the worker suffered prior to commencing work with Plastic Processors Pty Ltd. In about April 1989 she seems to have been, so far as her back was concerned, in a reasonable condition, at least relevant symptoms had not been displayed. On about 3 August 1990 she suffered difficulty with her back in the course of employment in a typical lifting situation. From then on symptoms appeared from her back condition. A number of doctors saw her and examined her and, as the President has pointed out, differed as to what was the precise cause of the symptoms from which undoubtedly she was suffering. In September 1990 she resigned from employment with Plastic Processors Pty Ltd and this is notwithstanding that she endeavoured to work for some time. She was not able to work for some time, but in January 1991 started casual work with, as I shall describe it, the Yamaha company and she worked with that company for a considerable period of time. She also did some casual work with the Australian Jockey Club. She made an application for compensation on 14 August 1991. It is relevant to note the incapacity upon the basis of which that application was made. It was described in the application as resulting from an injury described as "Severe musculo-ligamentous strain of the lower back and spondylolisthesis". The incapacity for which the claim was made included total incapacity from 3 August 1990 to 30 August 1990 and thereafter partial incapacity to the date of the application and continuing. The incapacity on which her claim was based was not limited to incapacity during the period of her employment with the Yamaha URJ PLASTIC PROCESSORS PTY LTD v THOMAS (Mahoney JA) 9 company. Reference was made in the application to the claims for loss of economic reward from work and wages in the normal way. SubJect to what I shall say, one would have thought that her incapacity clearly resulted from the injury suffered during employment with Plastic Processors Pty Ltd. As I have indicated, the incapacity that she had claimed for started from 30 August 1990 - that is well before employment with the Yamaha company commenced. What happened during her employment with the Yamaha company happened in or after January 1991. But, the suggestion was, what then happened relieved the Plastic Processor or liability both for the incapacity and periods of loss which as I have said, occurred before January 1991 and for what happened thereafter to the date of trial. When the matter came before the trial judge, his Honour, having reviewed the various views which had been taken of the worker's condition, accepted that she was at the relevant times totally and then partially incapacitated. The fact of such periods of incapacity is, I think, not now seriously in contest. The present problem - I put aside the adjournment matter in respect of which I merely express agreement with what the President has said - arises from the claim now made by the appellants that because of what happened during her employment with the Yamaha company, or for some reason related to it, the Plastic Processor company could not be held liable to pay the s40 weekly compensation payments which the judge ordered it to pay. The precise suggestion made in the course of these submissions is one which I have had some difficulty in understanding. It appears to involve a contest as to the nature of the trauma which was suffered by her (if trauma was, indeed, suffered) when she was working with the Yamaha company. Something happened whilst she was working with the Yamaha company, that is clear. She described it in her evidence in a way which one might have thought was typical of a back injury case. As she worked harder, pain increased and she had difficulty continuing work. The extent of the pain depended upon the amount of the work she did and the extent to which she could work was conditioned by that pain. However, it was suggested that the difficulties which had arisen - I put the matter in a neutral sense - with the Yamaha company, in some way relieved the Plastic Processor company of liability. The underlying condition which gave rise to the pain which the worker suffered remained the same. The incapacity to work resulted from that pain. The pain she suffered was the result of the operation upon her underlying condition of the exigencies of the work she was doing, the lifting and the like. In my opinion the judge was, in principle, faced with the following possibilities: 1. It could have been contended that the work with the Yamaha company had created a completely new incapacity, different from that from which the worker had suffered as a result of her 1990 injury. 2. He might have concluded that the work with the Yamaha company did not create a new incapacity, but increased the quantum or degree of incapacity caused by the 1990 injury; and 3. He might have concluded that although there was no new incapacity or no increase in the quantum of the incapacity, the work from time to time brought on symptoms of the kind which her underlying condition was apt to produce and which made it difficult for her to work either in part or in whole. In my opinion the judge, having reviewed the evidence, concluded that what had happened with the Yamaha company was of the nature of the third possibility to which I have referred. He dealt with the evidence of the various doctors and, in particular, that of Dr Rivett. It is sufficient in my opinion to come to the 10 UNREPORTED JUDGMENTS conclusion that, in this regard, his Honour was right. As to the first possibility, the completely new incapacity possibility to which I have referred, I do not think that the evidence supported that view. The judge's findings did not completely clarify the worker's condition, in the sense of explaining what was her underlying pathology and the efforts produced upon it by the work which she did. The views of the doctors differed as to those matters. She had bulging of a disc or discs in her back. There was not a complete consensus to the significance of the bulging. As to the second matter, that is, the increased incapacity, it is proper to note that this was not a case which was set up the Plastic Processor company in its pleadings, in its response to the application. The relevant paragraph, para7, is contested in a quite different way. This may, of course, have been because the existence of the Yamaha company had not then emerged. But it does not seem to me that such a case was really set up in the trial before the learned judge. If it had been, then a question would have arisen as to the effect of s22(7) of the Workers Compensation Act 1987. Summarised, that subsection provides that a worker is not to be deprived of an order for compensation against an employer merely because the person against whom the order would be made can point to the existence of some other person who was also liable to pay part of that compensation unless that other person is a party to the proceedings. I do not pursue s22 further because in an appropriate case it may be necessary to consider whether for example the provisions of s22(1) are mandatory or merely indicate what may happen if an appropriate application for apportionment is made, for example, by one of the respondents to an application for compensation. I refer to the existence of that section in relation to the second possibility to which I have referred. But, as I have said, in my opinion his Honour was correct in concluding that the position was as he indicated. The view taken by Dr Rivett was that although the worker had some bulging in one of the discs in her spine, her essential condition was what he described as "piriformis", in terms referred to in his report of 16 June 1993. But in my opinion, assuming that was the condition from which she suffered, it was quite proper and correct for the judge to find that what happened when, as she described it, she worked harder or less hard with the Yamaha company, that condition increased the symptoms which flowed from the underlying condition which first had been made symptomatic, which his Honour found had been caused by the injury in 1990. In those circumstances I do not think that the decision of the learned judge was wrong. I think it was correct for him to find that the incapacity for which the claim was made resulted from the 1990 injury. It is important - a matter assumed for the purposes of argument in this case - to observe that there is a fundamental discretion in the Workers Compensation legislation between the concepts of injury, incapacity and work or wage loss caused by a particular incapacity. These distinctions are referred to in the cases: see Arnotts Snack Products Pty Ltd v Yacob (1984) 155 CLR 171, 175f; (1982) 1 NSWLR 632, 634f. The claim that was made in the present case was for a continuing condition described as incapacity arising from what had happened to the worker in 1990. The claims for economic loss were claims for periods during which the worker would otherwise have worked, and during with she did not work because of that underlying incapacity. Considered against the interplay of those three concepts, what the learned judge in the present case is, in my opinion, clear. I believe that he was right. I agree with the orders proposed by the Acting Chief Justice. Clarke JA I agree with the learned Acting Chief Justice. URJ PLASTIC PROCESSORS PTY LTD v THOMAS (Clarke JA) 11 Kirby ACJ: The order of the Court, accordingly, is that the appeal is dismissed. The appellant must pay the respondent's costs. Appeal dismissed with costs. COUNSEL: Appellant: GM Hoeben 10 Respondent: CJ Wynyard SOLICITORS: Appellant: Heath Workers' Compensation 15 Respondent: Low and Associates253545