ANI KOMATSU (A Division of ANI CORPORATION) v GODOY [1995] NSWCA 18

ANI KOMATSU (A Division of ANI CORPORATION) v GODOY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and MEAGHER JJA 15 June 1995, 15 June 1995

[1995] NSWCA 18

Worker suffering cancer of the bone previously unknown to him — Work injury causing crush fractures of vertebrae — Subsequent further crush fractures due to bone cancer — Degree of permanent impairment to back.

Appeal from Compensation Court — Worker suffering from cancer of the bone which previously unknown to him — Crush fractures of vertebrae suffered in injury at work — Subsequent crush fractures of vertebrae due to bone cancer — Applications under s66 and s67 of Workers Compensation Act 1987 — Degree of permanent impairment of back.

Meagher JA In this matter at the hearing of the application of Mr Godoy against ANI Komatsu, her Honour Judge O'Toole was confronted by a situation where the worker, Mr Godoy, had at all relevant times a disease of cancer of the bone which previously had been unknown to him. He suffered an injury at work on 17 March 1990 before which his bone cancer was asymptomatic.

The work injury caused various crush fractures of his vertebrae and subsequently there were further crush fractures of his vertebrae due to his bone cancer.

The question her Honour had to cope with in the application under s66, and another application under s67, concerned the degree of his permanent impairment.

The conclusion to which her Honour arrived is summarised by her Honour in the following words:

"T have done the best that I can with the evidence. On the whole of that evidence, I think it probable that on 17 March 1990, the applicant suffered multiple injuries producing marked thoracic kyphosis and a fifty per cent permanent impairment of the back. In order to evaluate the applicant's claim pursuant to s67, I disregard, of course, symptoms and suffering associated with and caused by systemic disease."