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." Her Honour's finding of the fifty per cent impairment of the back is the matter substantially under challenge in the present case. Various doctors have given opinions which either deal with that question or came close to dealing with that question. I put it that way because in many cases the language employed by the doctors is clothed with an extraordinary ambiguity. Nonetheless, in my view her Honour was entitled to come to the conclusion that there was indeed a fifty per cent permanent impairment of the back. In my view that was the opinion of Dr Sloane and was also the opinion of Dr Benson. There are, as Mr Perry pointed out, a number of weighty reasons which could have led her Honour to come to a different conclusion. However, I would propose that we do not disturb her Honour's findings and that we should dismiss the appeal with costs. 2 UNREPORTED JUDGMENTS Mahoney JA The issue that the judge posed for herself as "the real issue" in the proceedings which concluded with her judgment of 24 June 1994 was, as she said, "the extent of impairment and its cause". In her approach to that issue her Honour said that there was no challenge to the applicant's credit as a witness. It is literally true, as Mr Perry pointed out, that there was a cross-examination of the applicant plaintiff in relation to one of the matters which suggested to him that his evidence was not accurate, or perhaps not true. However, I think it is proper to conclude that apart from that matter, there was no direct challenge, that is, no challenge in terms, to the applicant's credit. Having said that I put credit to one side because I do not think that that is of a determinative character in relation to the issue here in question. I appreciate that the evidence of the applicant is relevant in determining what happened, but the matter of credit to which I have referred is not, I think, in the end a matter which determines "the real issue"; that is not determined by whether or not his credit was in issue beyond the matter to which I have referred. I come then to "the real issue". I would have put the issue in slightly different terms from those used by her Honour. The table and the provisions of the Act require the Court to determine what was the "permanent impairment of the back" which the applicant suffered. The notes provided for the interpretation of the statutory provisions provide that, in the case of impairment of the back, "compensation is payable only in respect of the degree of permanent impairment suffered as a result of the injury concerned...". The real issue with which we are mainly concerned is the degree of impairment suffered as the result of the injury to the back which took place on the date of the suggested injury, 17 March 1990. The main point made by Mr Perry for the appellant employer is to the following effect. The injury took place on 17 March 1990. On 22 March 1990 x-rays were taken which show the compression of some only of the relevant vertebrae. It is not necessary to determine precisely which. The vertebrae at T9 and T 11 were said to be involved directly. It may be, having regard to the report of Dr Trevitt, that it could be said that the vertebrae at T9 and T10, and possibly also at T8, were involved. But however this be, his point is that the impairment of the back derived from not merely the compression of those vertebrae, whatever they be, but the collapse of those and other vertebrae and that the collapse of the other vertebrae occurred because of the cancerous condition to which reference was made in the medical reports. His submission, again inadequately summarised, is to the effect that the degree of impairment due to the accident is less than the total degree of impairment and that the balance of the impairment other than that caused by the accident was the result of the disease. I have not attempted to cover all the variations of what was put but I have put, I think. the nub of the matter as it was submitted. My mind has wavered in the course of argument in relation to the matter. It is clear, I think, that there has been a very great degree of impairment of the applicant's back. The real issue to be determined, as I have said, is the extent to which that is the result of the injury. I think attention was not directed precisely to this question in the medical reports. Mr Perry in his painstaking analysis of the medical evidence has referred to some statements in the medical reports. It is not necessary for me to detail them, but I doubt that the medical witnesses were attempting to come to grips with the particular point which, as I have said, was the real issue in this part of URJ ANI KOMATSU (A Division of AN| CORPORATION) v GODOY (Mahoney JA) 3 the case. However, opinions were expressed which suggested that the accident itself resulted in a degree of impairment equal to fifty per cent of the total impairment. As I have indicated, I have had doubt as to whether the evidence supports that opinion and whether, apart from the evidence, the opinion is expressed as clearly as it could have been. But her Honour came to that conclusion and I do not feel sufficiently strongly about the matter to dissent. On balance, I am inclined to the view which has been expressed by Mr Justice Meagher. On that basis, I agree with the orders which he has proposed. Clarke JA The respondent's treating doctor was Dr Warwick Benson who in his report of 2 November 1993 attributed fifty per cent of the respondent's current permanent and total incapacity to the crush fractures at work. Upon the basis that it was open to her Honour to conclude that, as he was at the date of trial, the respondent was a most extreme case, it would have been open to her Honour to conclude that fifty per cent was the correct assessment arising from the injury at work. I rather think that during argument Mr Perry of counsel conceded that had that been her Honour's approach it might have been difficult to displace it. The thrust of his submission was that her Honour did not deal with it in that way at all. Notwithstanding, looking at the assessment as on a rehearing, it seems to me both that it was open to accept Dr Benson's view and that in the light of the devastated condition in which the respondent was, it was open to her Honour to take the second step as well. Even if that be an extreme view, it seems to me that it would not be correct for me to conclude that an assessment of fifty per cent in the circumstances, and in the light of Dr Benson's evidence, was an erroneous one. For those reasons, I agree with what has passed from the other judges. Mahoney JA The order of the court is appeal dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: PL PERRY/R SERGI Instructed by: VANDERVORDS Counsel for the Respondent: RM SWEET Instructed by: TURNER FREEMAN