ZIZZATI PTY LTD v ADEMOSKI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, SHELLER and POWELL JJA 7 April 1995, 18 December 1995 [1995] NSWCA 537 Workers Compensation — For what injuries compensation is payable — "Injury" — Disease — Malignant chondrosarcoma — Whether progress of disease accelerated by employment related incident or by nature of employment — Whether point reached when contribution of any trauma had been overreached by natural progress of disease — Award — For closed period or continuing weekly payments. Handley JA I agree with Powell JA. Sheller JA I agree with Powell JA. Powell JA Two questions arise for determination on this appeal, which is brought from an Award made by Johns CCJ in the Compensation Court on the 6th August 1992, which Award provided for payment to the Respondent of weekly compensation, s60 expenses and costs arising from an injury which the Respondent claimed to have sustained in December 1987 while working in the Appellant's employ. The injury in respect of which the Respondent sought compensation was, however, not limited to the frank injury which he had sustained to his back, right hip and pelvis while in the course of loading a truck, but, in addition, extended to a "deemed injury" under the provisions of s16(1) of the Workers Compensation Act 1987 ("the Act'), that is, the acceleration of the progress of a chondrosarcoma from which he was then suffering together with the formation of a higher grade chondrosarcoma. Those questions which were argued at the trial below and which call for a determination on this Appeal are: - 1. whether the Respondent had established any causal relationship between the frank injury and the acceleration of the progress of the chondrosarcoma: and 2. whether, even if such a causal relationship had been established, the Appellant had established that, whether prior to, or at the time of, the hearing below, the chondrosarcoma had reached a stage which it would have reached in any event even if there had been no frank injury, in which event, any award for the Respondent should have been for a closed period rather than for continuing weekly compensation. As will be apparent, each of those questions was answered in a manner adverse to the Appellant at the trial. As will also be apparent, each of those questions, in reality, involves only a question of fact. The nature of the appeal was, at first, a cause of some concern when the appeal was called on for hearing, as the appeal papers, while containing a copy of what was described as "proposed Amended Application for Determination" - that document being dated 19th March 1991 - did not disclose the date on which the original Application for Determination had been filed. However, after counsel who appeared on the hearing of the appeal had been given an opportunity to peruse the Compensation Court file, it was agreed that the Application was dated Ist December 1989, and that it was filed in the 2 UNREPORTED JUDGMENTS Compensation Court on 18th December 1989 (see Transcript at 1), it following that, in the present case, the appeal was competent and was a full appeal (Compensation Court Act 1984 s32 Schedule 4 Pt2 R5(1)). In attempting to provide in an accurate, and reasonably succinct, way a history of the events which led up to and what are said to have flowed from the frank injury, one is met with the difficulty that the tapes upon which was recorded the evidence given by the Respondent on 2nd December 1991 - the first hearing day - have apparently been stolen, so that the only record of the Respondent's evidence in chief is that contained in Johns CCJ's Bench Book. However, while it seems to be accepted that the evidence which was in fact given was far more extensive than the information contained in the his Honour's notes, it does not seem to be suggested that the substance of his Honour's notes is not accurate. The record which I set out below is, thus, based on his Honour's notes of the first day of hearing, the transcript of the evidence given on 15th April 1992 - the second day of hearing - and such material as can be derived from the various histories which have been recorded in the reports of the various medical practitioners by whom the Respondent was seen over the period between December 1987 and the hearing. The Respondent appears to have been born in what was once known as Yugoslavia in May 1944, so that, at the date of the occurrence of the frank injury, he was aged 43 years, and at the date of the hearing before Johns CCJ he was aged 47 years, while by the time Johns CCJ delivered his Judgment and made his Award he had attained the age of 48 years. The Respondent is said to have married in 1961 and to have had two children of his marriage they apparently having been born in about 1962 and 1968. The Respondent emigrated to Australia with his wife and such of his children as may then have been born in about May 1968. Following his arrival in Australia, the Respondent obtained employment as a steel worker in Port Kemba, which employment he followed for about 2 1/2 years, following which he and his wife operated a delicatessen business for a period of some years. In 1973, the Respondent moved with his family to South Australia where he obtained employment as a process worker. During the course of that employment, the Respondent sustained a work related back injury, which led to him being admitted to the Royal Adelaide Hospital for a period of some weeks for treatment for a slipped disc, and thereafter required a prolonged period of rehabilitation. His Honour's notes would indicate that it was at about this time when the Respondent noticed a lump in the right sacro-iliac area that lump being walnut size". In the event, so it would seem, the Respondent was assessed as being unfit for work for an extended period, as the result of which he was subsequently awarded some form of lump sum compensation payment. Late in 1976, the Respondent and his family returned to the Wollongong region, where he commenced to carry on on his own behalf a carrying business, seemingly as a sub-contractor carting gravel, sand, soil etc. In 1977, or thereabouts, the Respondent was involved in a motor vehicle accident in which he sustained multiple head and neck injuries. Although the Respondent is said to have made a complete recovery, it would seem that he was advised against returning to his former occupation as a sub-contract carrier. Thereafter, as it would seem, he undertook various odd jobs until, in about 1987, URJ ZIZZAT| PTY LTD v ADEMOSKI (Powell JA) 3 he obtained employment with the Appellant - which seemingly carries on business as a concrete formwork constructor - as a truck driver and formworker. In the course of that employment - which employment seems to have required, on the part of the Respondent, bending and lifting onto, and from, the truck, timber used for formwork - the Respondent was accustomed to work for periods of up to 10 hours a day and was called upon to undertake overtime every second Saturday. The Respondent has, at various times, given a history which suggests that, although, over the years since he first became aware of the lump to which I have earlier referred, he was accustomed from time to time to touch it or to feel it, and although it had over those years grown a little larger - to a size of 2-2.5 cms in diameter - it had remained completely asymptomatic. The incident which gave rise to the frank injury to which I have earlier referred occurred on Ist December 1987, at which time the Respondent and a fellow worker were loading a truck with timber formwork. During the course of that being done, the Respondent lost his balance, causing him to jump off the truck backwards although, when he did so, the Respondent's right foot was, in some way, caught on the tray of the truck while his left foot struck the ground - thus causing an extreme "splits" position of his legs - the Respondent did not fall, nor did any part of his body, other than his left foot, hit the ground. Although the Respondent, at the time, felt severe pain in his right buttock and groin, that pain gradually subsided to the extent that he was able to drive home. On the following day, the Respondent returned to his work. When he did so, his employer insisted that he seek medical advice as the result of which he was examined by a Dr L Both of Leichhardt, who, upon examination, found a lump measuring 8.0 x 6.0 cms in the sacro-iliac area, and tenderness in the right sacral area. Because there was some residual restriction on straight leg raising of the right leg, the Respondent was given analgesics, and because of the lump, he was referred for X-Ray. The report by Dr Victor Roseverne on the X-Ray of the lumbo sacral spine and pelvis taken on 2nd December 1987 indicated that there was a large, partly calcified, mass arising from the posterior aspect of the right ilium adjacent to the sacro iliac joint suggestive of a malignant bone tumour, and, that, although there were minor spondylotic changes in the lower three lumbar vertebrae, there was no gross bone pathology in that area. In the light of Dr Roseverne's X-Ray report, Dr Both referred the Respondent to an orthopaedic surgeon - seemingly a Dr Kohan - for consultation and opinion. However, the Respondent did not follow Dr Both's advice and - seemingly for domestic and personal reasons - on 13th December 1987, accompanied by his wife, left by air for a holiday in the United States. While in the United States, the Respondent continued to have mild discomfort in the right buttocks, to counter which he appears to have been accustomed to take an analgesic, but at night only. In at least one of the histories given by him, the Respondent has said that he thought that, during this time, the lump in the sacro- iliac area was getting bigger. On his return to Australia - which appears to have been at about the end of February 1988 - the Respondent found that his employment had been terminated - payments of weekly compensation appear to have been terminated as from the date on which the Respondent and his wife had left for the United States. Although some of the material in the Appeal book would suggest that, by no later than April 1988, the Respondent realised that the lump was about the size of his clenched fist - 10 cms - he does not seem to have sought medical attention until the 2nd June 1988 when he consulted a local medical practitioner, Dr Iqbal. 4 UNREPORTED JUDGMENTS Dr Iqbal then referred the Respondent to a Dr Ho, who appears to have been a specialist radiologist, for X-Rays of the lumbar spine, pelvis and right hip. In his report dated 3rd June 1988, Dr Ho reported: "Lumbar vertebrae are normally aligned. The disc spaces are maintained. There is a little reduction of the L5 and 51 disc space. There appears to be an area of bony expansion with irregular bony densities seen in the right sacro-iliac region posteriorly. It is probably from the upper sacrum in the right side. Further examination is recommended such as tomograms, radioisotope nuclear bone scan and CT examination. No other abnormality is seen in the pelvis and the right hip." On 7th June 1988, the Respondent was again seen by Dr Iqbal who, on this occasion, referred him to Dr Puri, an orthopaedic surgeon. On examination, Dr Puri found a large bony lump in the back of the right sacro-iliac joint region which was non-tender on palpitation. At the time, Dr Puri formed the view that the Respondent had a malignant tumour arising from the posterior aspect of his pelvis, but, as the X-Rays, which had earlier been taken by Dr Ho, did not show the swelling satisfactorily, he referred to the Respondent for further X-Ray examination with oblique views and a CAT scan of the pelvic region. Dr Ho's report on the X-Rays which he had taken on 16th June 1988 was in the following terms: "An extensive tumour with calcifications with a significant soft-tissue component with relatively little bony erosion at the posterior part of the right ilium. It could be a chondro sarcoma arising from the right ilium or a chondro sarcoma from the soft tissue. The other likely possibility is a rhadomyosarcoma." The Respondent was seen again by Dr Puri, who, believing that the further X-Rays had confirmed his earlier opinion, referred him to a Dr Marsden - who appears as if he may be a general surgeon - carrying on his practice from rooms in the Royal Prince Alfred Hospital Medical Centre. The Respondent was first seen by Dr Marsden on 26th June 1988, at which time, Dr Marsden, upon examination, found a large bone tumour arising from the posterior aspect of the right buttock region related to the sacral iliac joint in the medial part of his sacrum. Dr Marsden appears then, or later, to have operated for the purpose of obtaining a sample for biopsy. In a report dated 6th October 1988. Dr Marsden reported (inter alia): "This tumour proved at biopsy to be a Grade II chondro sarcoma and accordingly resection of this mass was performed on the 20th June 1988." the resection having been carried out by Dr Marsden. In the same report Dr Marsden also recorded: "Further histological studies of this tumour have confirmed that this is a high grade chondro sarcoma which extended across his sacrum as far as the sacral canal. In view of the high grade nature of this tumour and the close proximity of the resection margin to his sacral canal, adjuvant chemotherapy for this tumour has been given to him under the supervision of Professor Martin Tattersall" [seemingly then the Professor of Cancer Medicine in the Faculty of Medicine within the University of Sydney] "on an inpatient basis at Royal Prince Alfred Hospital. This commenced in August of 1988 and the course of treatment is planned to last for approximately 41/2 months." Other evidence would tend to indicate that the chemotherapy was administered every 14 days - the Respondent spending 3 days as an inpatient and 10 or 11 days at home - and was completed in late November 1988. Although the material which was before the Compensation Court is not entirely clear, it would seem URJ ZIZZAT| PTY LTD v ADEMOSKI (Powell JA) 5 that histological findings based on the tumour which had been excised tended to indicate that there had not been a complete excision of the tumour mass, and that the programme of chemotherapy which had been carried out by Professor Tattersall was undertaken in the knowledge of that fact, and with a view to there being later a planned re-excision of the residual tumour. On 4th January 1989, the residual tumour was re-excised by Dr Marsden, the Respondent remaining in hospital on this occasion for a period of about 3 weeks. A report on the tumour specimen and histopathology by a Dr EJ Wills, would indicate that there were two main specimens, one called "parasacral chondrosarcoma", which appeared to be 9.0 x 5.0 x 5.0 cms on measurement, and the other called "right lateral sacral mass". So far as the first specimen was concerned the report was to the effect that "local excision appears complete". However, so far as the second specimen was concerned, the report records "chondrosarcoma (Grade II) with foci of abnormal osteoid similar to that seen in the previous specimen. Tumour invades bone and appears incompletely excised at both the bony and soft tissue margins." On 17th November 1989, the Respondent was examined - no doubt for medico legal purposes - by Dr Freedman - who appears to be a specialist oncologist - who was the only doctor called on behalf of the Respondent to give evidence on the hearing before Johns CCJ. It should be noted that the history which was given to Dr Freedman by the Respondent led Dr Freedman to believe that, prior to the Respondent's accident in December 1987, the "lump" was only about 2 cms in diameter, while, at the time of his return from the United States, it was about 14 cms in diameter - this history - which, as will shortly be apparent, played a significant part in the opinion which Dr Freedman was then to form - differed significantly from the observations of Dr Both and the X-Ray report of Dr Roseverne in December 1987 as also does the suggestion in Dr Freedman's report of 21st November 1989 that, on his return from the United States, the Respondent sought medical advice - unless this is meant to indicate that the seeking of medical advice did not occur for some months after the Respondent returned from the United States - which medical advice led to the biopsy and, then, the resection of the chondrosarcoma. Be all this as it may, Dr Freedman in his report dated 21st November 1989 concluded as follows (Appeal Book at 46): "DISCUSSION. Chondrosarcoma is the most common malignant cartilage tumour, 10% of all chondrosarcomas are secondary, arising from an underlying benign lesion, which is low grade and very slowly growing. He had either a benign chondroma or a low grade very slowly growing tumour - a small part of which only was palpable to the patient. There was no apparent change in size for 13 years. The injury on 1.12.87 was not a trivial but a significant injury causing features of syncope (sweating, pallor and dizziness), and severe local pain requiring strong analgesics. After that there was progression of nerve involvement as evidenced by pain radiating down the leg and confirmed by operative findings of extension of tumour into the spinal canal. The tumour increased from 2 cm. to 14 cm. in about 26 weeks. This represents a doubling time of about 8 weeks - a very rapid progression of the tumour. The histological report indicates that the tumour arose from a benign chondroma, and that it was mainly cellular. There were no features of fluid, cyst formation or other factors that might falsely cause enlargement of the mass. Therefore a very rapid acceleration of tumour substance only had occurred since a severe trauma. This was a progression quite in excess of the usual progression of low grade 6 UNREPORTED JUDGMENTS chondrosarcoma. A grade 11 (many dividing cells) chondrosarcoma could not have remained relatively unchanged for years. It is my opinion that the injury to the underlying slowly growing (?chondroma,?chondrosarcoma) accelerated its natural evolution with formation of a higher grade chondrosarcoma. In spite of excellent surgery and adjuvant chemotherapy, prognosis for this grade of bone tumour is very worrying and uncertain." Notwithstanding this report, the Respondent does not appear again to have sought medical advice until about the beginning of June 1990, when, having consulted his local medical practitioner, he was once again referred to Dr Puri. Having noted restriction of spinal movements with local tenderness in the right sacral-iliac joint region, Dr Puri arranged for the Respondent, once more, to have X-Rays of the lumbo sacral spine and the pelvis, which X-Rays appeared to indicate erosion on the right sacral-iliac joint region. Accordingly, Dr Puri seems to have referred the Respondent to a Dr Clingan, an oncologist practising in the Wollongong area, who, after further investigation, referred the Respondent once more to Dr Marsden. It would appear that, as part of the further investigation carried out by him, Dr Clingan had referred the Respondent for a CT scan of the pelvis, the report on which scan. which was made by Dr J Hallinan, being in the following terms: "Recurrent tumour is present in the inferior portion of the right side of the sacrum. There is extensive soft tissue calcification consistent with the known previous histology (chondrosarcoma). A tumour mass extends to the interior sacral foramina but not the vertebral canal. Further tumour extends anterior to the sacrum on the right side. Tumour tissue is also noted to extend across the sacral iliac joint and involve the more medial portion of the right ilium". The recurrent tumour was excised by Dr Marsden on 27th June 1990, the report on the tumour specimen and histopathology by Dr S Macarthy being as follows: "Macroscopic. The main specimen is in two parts. 'Distal recurrent tumour right pelvis'. An irregular mass of firm cartilaginous tumour measuring 8.0 x 5.5 x 7.0 cm. The cut surface of the tumour has a grey and white lobulated appearance consistent with a cartilaginous tumour. The tumour mass is almost totally surrounded by fascia, muscle and connective tissue except on the roughened medial surface where it extends to the margin. 'Proximal recurrent tumour right side'. A roughly oval mass of tissue measuring 8.5 x 3.0 x 3.5 cm. The cut surface reveals a chondroid tumour nodule 2.7 cm across almost totally surrounded by muscle and fascia. Microscopic. Chondrosarcoma (grade 11))" Radiotherapy was advised, and carried out by a Dr Stevens over a period of some 6 weeks from 19th July to 30 August 1990. Before the Respondent had returned to see Dr Puri in June 1990, the Respondent had been examined on behalf of the Appellant by a Dr James Nield and a Dr Richard Opie, each of whom appears to be a general surgeon, the examination, in the case of Dr Nield, taking place on 17th April 1990, and the examination, in the case of Dr Opie taking place on 24th April 1990. So far as is relevant, Dr Nield's report contained the following: "OPINION: This man's pathology is a chondrosarcoma which has been excised. This is a malignant lesion, the aeteology of which is unknown. His work related accident has no aeteological significance and no appreciable effect on the growth rate, as the mass was present on the immediate x-ray." while Dr Opie's report contained the following (inter alia): URJ ZIZZAT| PTY LTD v ADEMOSKI (Powell JA) 7 "OPINION - It could be argued that Mr Ademoski was lucky when he fell on 1/12/1987, for his minor mishap drew his doctors (sic) attention to the malignant tumour in his right buttock region and initiated treatment. which to date has been most successful. The chondrosarcoma, which had been present prior to 1974, had increased greatly in size by the time of his accident but its presence was ignored by Mr Ademoski. It is certain it would have become inoperable but for his accident in 1987. The tumour was not a work related lesion nor was it aggravated nor accelerated by his fall. As far as his lower back is concerned, no permanent damage resulted from his fall as his current back and right lower limb complaints are related to his tumour surgery and not to his accident." In October 1990, Dr Nield, having had an opportunity to consider both Dr Freedman's report of 21st November 1989 and Dr Opie's report, reported as follows (Appeal Book 71-72): "First of all the facts are: 1. The patient had an incident on December 1, 1987 in which he would have strained the ligaments of his hip joints. There was no definite trauma to his sacro-iliac region. 2. The patient had a long history, since 1974 of a lump in the region of the sacro-iliac joint. The patient consulted his local medical officer the day after the incident and it was recorded that he had a lump 8.0 cm x 6.0 cm. He was referred to an orthopaedic surgeon but went overseas. 3. Six months later the patient presented to another local doctor with a lump the size of his clenched first, my clenched first is 10.0 cm in greatest diameter. 3. The lump was found to be a chondrosarcoma, probably arising in a previously benign osteochondroma. OPINION: There is no doubt the incident had no place in the malignant change of the previously benign osteochondroma. Dr Freedman in his report dated November 21, 1989 states that the tumour has gone from 2.0 cm to 14.0 cm in 26 weeks. It was measured by Dr Yohendran at 8.0 cm in December 1987 and the size of his clenched first 6 months later. The doubling time as stated in Dr Freedman's report of 8 weeks is therefore false. Dr Freedman gives the impression that the tumour could have been benign '? chondroma,? chondrosarcoma'. However, the x-ray report the day after the accident states that there is 'an osteogenic mitotic lesion bearing in mind its rapid growth'. Comparison of the x-ray with x-ray in mid 1988 would be of interest. Dr Opie has made a very valid point that but for the accident the patient may not have been aware of the tumour as soon as he was. It is important to realise that a small lesion can double with much less appreciable change than a large lesion. In summary the incident has not had any place in malignant change and in my opinion has not affected the outcome other than favourably." The Respondent appears to have been seen again by Dr Freedman in January 1991. In his report dated 18th January 1991, Dr Freedman concluded (Appeal Book 48): "IMPRESSION: The poor prognosis and likelihood of recurrence of a rapidly expanding chondro-sarcoma which was given in November 1989 unfortunately turned out to be true with clinical recurrence and extension within less than one year of his major surgery. He has further disability in spite of excellent healing 8 UNREPORTED JUDGMENTS and has suffered further nerve damage - a necessary consequence of surgical control of further tumour recurrence. Prognosis of further recurrence is still high and his present disabilities have increased. OPINION: All these symptoms are the result of progressive extension and activity of a chondro-sarcoma which has become active in spite of excellent treatment since his initial accident in December 1987." The Respondent appears to have been examined - one assumes, for medico legal purposes - by Dr David Green, a consultant radiation oncologist, in September 1991. In his report dated 2nd October 1991, Dr Green. who was the only doctor called on behalf of the Appellant to give evidence at the trial, concluded (Appeal Book 63-64): "CONCLUSION A chondrosarcoma is a malignant tumour originating from cartilage cells and tends to maintain its essentially cartilaginous nature throughout its evolution. 'Primary' and 'secondary' chondrosarcoma are terms which are intended to distinguish between a chondrosarcoma which has apparently originated de novo at a given bone site (primary chondrosarcoma) and one which has apparently developed out of a pre-existing benign cartilaginous bone lesion (secondary chondrosarcoma}. Malignant transformation of a solitary osteocartilaginous exostosis is rather rare which is in contrast to cases of hereditary multiple exostosis where the emergence of a secondary chondrosarcoma in relation to one of the affected bones is a common occurrence. A chondrosarcoma which begins its development in relation to the surface of a bone is frequently designated as a peripheral chondrosarcoma. The most common site of peripheral chondrosarcoma is some part of the pelvis and particularly the iliac part. Characteristically, they grow slowly and often are of large size before the patient presents for treatment. In fact, much more often than not, the patient has been aware for a long time of a slowly enlarging local tumour mass, but paid little attention to it. Antecedent trauma is commonly mentioned in connection with the emergence of peripheral chondrosarcoma and as they may attain a fairly large size without producing significant complaint, it may well be that the local trauma merely directed attention to a lesion which was already present. Probably the largest role that one can attribute to trauma is that of exacerbating the course of the lesion, and that only if local trauma has been severe. The accident that occurred on December 1, 1987 causing Mr Ademoski's legs to do the 'splits', while causing stress to the muscle and ligamentous attachments in the right groin and buttock, resulted in only minor injury. The rapid resolution of his symptoms, his presentation for work as usual the next morning and, when examined medically, the lack of clinical and radiological signs of injury is evidence that he sustained only minor trauma. In careful analysis of the anatomical parts that possibly could have been injured by the accident there is no evidence to suggest that the tumour itself sustained any trauma whatsoever. As Mr Ademoski does not suffer from hereditary multiple exostosis it is unlikely that his tumour is a secondary chondrosarcoma but was, ab initio, primary peripheral chondrosarcoma and as such he first became aware of it in 1977 (sic). When its true nature was determined in 1989 (sic) it had more than quadrupled in size and it had developed some highly malignant characteristics. As this relatively late stage in its evolution it can be reasonably assumed that, as a consequence of its inexorable progression, its increase in size would be associated with the onset of symptoms and that this would have happened URJ ZIZZAT| PTY LTD v ADEMOSKI (Powell JA) 9 whether or not he had had the accident. His persisting symptoms after an accident that had caused relatively minor injury were to be expected and were part of the natural history of the tumour and not the result of the accident. A causal relationship between the accident and the malignancy is excluded by the known presence of the tumour for the prior 10 years and the radiological demonstration of a large, suspected malignant tumour within 24 hours of the accident happening. The lack of any evidence to suggest the possibility that the tumour itself was directly struck or in any other way severely traumatised is significant and, in my opinion, excludes the likelihood of the accident causing aggravation or acceleration of the growth of the tumour." Quite what happened next is difficult to discern, since, for this part of the history, one is dependent upon the notes made by Johns CCJ in his Bench Book, which notes are, in some respects, difficult to reconcile with other matters, as, for example, the Respondent's examination by Dr Green and the latter's report, which report contains nothing as to the matters revealed by his Honour's notes. Be that as it may, his Honour's notes were in the following form (Appeal Book 9): "Further surgery 10191. Regular consultation by Dr Iqbal. Lost 3 stone, weak, on morphine every three to five hours, no energy, now had headaches. Referred back to Royal Prince Alfred Hospital for last operation by Dr Marsden on pelvis. Not yet discharged from his care. Having bowel problems. Bowel operation by Dr Ayres, 51 days in hospital altogether. Discharged four weeks ago, feels weak and sick, since accident he has not been able to do any work." The hearing before Johns CCJ appears to have commenced on 2nd December 1991 at Wollongong, at which time Mr AR Cooley appeared for the Respondent, while Mr CJ Wynyard appeared for the Appellant. So far as one can judge, the only evidence given on that day was that of the Respondent, following which the matter was adjourned until 15th April 1992. On the latter day, on which day both Mr Cooley and Mr Wynyard appeared as before, the Respondent gave some short further evidence which appeared to indicate, first, that, after the further operation by Dr Marsden he had had further chemotherapy, as a result of which his condition had improved a little, and, second, that the bowel surgery, to which reference was made in the notes which his Honour had taken in December 1991, had not then taken place but was to take place in the foreseeable future. Thereafter, each of Dr Freedman and Dr Green gave oral evidence in which, despite cross-examination, each adhered to the opinion which he had earlier expressed in his report. So far as Dr Freeman was concerned, it should be noted that, although he still laid stress on what he described as the very rapid progress of the lesion between December 1987 and June 1988, he also laid stress on the fact that, as he would have had it, prior to the accident in December 1987, the tumour was apparently symptomless. So far as Dr Green was concerned, he appears to have been of the view that, as the history which he had been given did not indicate that there had been a direct and severe blow to the affected area, the accident would not have accelerated the progress of the tumour. His view - which he said was based upon empirical knowledge (Appeal Book 34) - was that, in the absence of a direct and severe blow, that it was highly improbable that the accident had accelerated the progress of the tumour. 10 UNREPORTED JUDGMENTS In addition to the reports and oral evidence of Drs Freedman and Green, there were also tendered the reports of Drs Iqbal, Puri, Marsden, Nield, Opie, Tattersall and a Dr Yohendran, the last of which reports - apparently based on the practice notes - recorded the observations of Dr Both when he had seen the Respondent in December 1987. At the conclusion of the hearing on 15th April 1992, the matter appears to have been adjourned, for submissions, to a date in June 1992, following which his Honour reserved his Judgement which was delivered on 6th August 1992. When he came to deliver his Judgment, Johns CCJ recorded the issues as follows: "THE ISSUES: The contention between the parties relates to the question of injury. The applicant alleges that the injury suffered caused an acceleration of a chondrosarcoma which the applicant is suffering. Additionally the respondent contends that whatever the result against it in regard to the question of injury the period of incapacity must be limited and cannot on the authorities for a continuing period." Then, having recorded the general history of the matter and dealt in some detail with the evidence of both Dr Freedman and Dr Green, his Honour continued: "REASONS FOR JUDGMENT: It would seem to me therefore that the right conclusion to be reached in this matter is dependent upon the implications that are to be drawn on from the trauma itself. Whether the nature and extent of the trauma had an effect upon the existing tumour in the form of either accelerating or aggravating it. It would seem to me probable from the evidence that the size of the tumour in December 1987 indicated that the applicant at that time had a sarcoma What therefore is to be determined in reviewing the medical evidence in this case is the question of whether the nature of the injury was such as it either aggravated or accelerated the tumour." Having done so, his Honour continued (Appeal Book 87-89): "The applicant before me gave his evidence in a straightforward manner. Although there was opportunity to do so no evidence has been tendered before me that would suggest that the applicant should not be believed. The evidence by the respondent to establish that the particular condition which the applicant suffers has no connection with the injury is dependant it would seem to me upon my not accepting that the applicant had consistent pain from the time of the injury and that the particular injury suffered was not of such severity as to have had a effect on the tumour. I accept the applicant in his complaints and in their consistency and the evidence of the opinion expressed by Dr Freedman in regard to the basis upon which such an acceleration has taken place. It seems to me on the evidence that in the presence of consistent pain and a rapid growth of the tumour the condition has progressed consequent upon the injury from what was a slowly growing sarcoma to a rapid growing sarcoma. To put it in the terms of the medical evidence from a Grade 1 to a Grade 2. The acceptance of that history it seems to me is the determining factor when considering the significance of the medical evidence of the respondent. URJ ZIZZAT| PTY LTD v ADEMOSKI (Powell JA) 11 lam of the view that Dr Freedman provides the necessary scientific criteria for the accuracy of this conclusion in forming my own judgment as to the facts proved in the evidence. I am at liberty in my view to synthesize the evidence of all experts to provide me with the relevant medical principles which I can apply to the facts found and determine the nature of the condition, its ateology and its consequences. In doing so I am at liberty even to perhaps arrive at a position to which none of the individual experts have assented. (Stankovic v Goodyear Tyre and Rubber Aust Ltd 1974 WCR 110). I have recited a deal of the medical evidence because I regard it as important to the resolution of the problems presented and because I regard the evidence of Dr Freedman of particular weight. He is a specialist oncologist who gave his evidence also in an accurate and straightforward manner. I think he is correct when he affirms that given the history of continuing pain and rapid growth there are the required ingredients upon which to conclude that there was an acceleration of the applicant's tumour consequent upon his injury at work. In addition Dr Green on the basis of those assumptions of on-going pain increasing in intensity together with an increase in the growth of the tumour agreed that something occurred in that incident on those assumptions to produce those symptoms and the growth. On that basis it would seem to me that the spread of the cells did not arise merely from the fact that he had a malignant carcoma and for no other reason but rather that the very spread that brought the applicant to operation can be attributed to the effect upon the tumour of the trauma. It seems to me my interpretation of Dr Freedman's evidence is in accordance with that conclusion. For those reasons I think the applicant suffered employment injury by way of an acceleration of his underlying tumour on the 1 December 1987." Later, having referred to the Judgment of Hill J in the Federal Court in Casarotto v Australian Postal Commission! in which his Honour had been called upon to deal with a submission that in a case of aggravation there will always be a finite period of compensable incapacity while in a case of acceleration the period will always be open-ended, a submission which his Honour felt unable to accept, Johns CCJ continued: "The question arises as to whether there is some principle which requires the conclusion that in the case of acceleration of a progressive disease the period of incapacity must be an open period. In my view there is not. An open or closed period of incapacity may be found to apply in a case of either aggravation or acceleration, depending upon the medical evidence." and later: "The medical evidence clearly establishes that the need for operation was the disease in its accelerated state. There is no evidence which indicates at what later time the operation and subsequent incapacity would have occurred. It would seem to me that in this case the consequences of the acceleration of this pre-existing progressive disease had not ceased to matter and have resulted in the total incapacity of the applicant. The mere fact that at some stage total incapacity would have arisen in (sic) (QUAERE: is not) 'a reason for discontinuing compensation." 1. (1989) 86 ALR 399 12 UNREPORTED JUDGMENTS When the Appeal came on for hearing, Mr PJ Deakin QC appeared with Mr Wynyard for the Appellant while Mr MJ Joseph SC appeared with Mr Cooley for the Respondent. The argument which was advanced on behalf of the Appellant upon the question of whether or not there was any causal relationship between the accident in December 1987 and the progress of the tumour to the stage when surgical intervention was required, proceeded upon the following lines: 1. the Respondent's case depending upon the evidence of Dr Freedman, it following that, if the basis upon which Dr Freedman founded his opinion was demonstrated to be insupportable, that opinion, and, accordingly, the Respondent's case, fell to the ground; 2. contrary to Dr Freedman's opinion, and his Honour's finding based thereon, that there was a rapid growth in the size of the tumour, the X-Ray picture did not significantly change between December 1987 and the first operation in June 1988; 3. all of the Respondent's doctors were unanimously of the opinion that, whatever increase in size may have occurred to the tumour between December 1987 and June 1988, it was not related to any work incident and was more consistent with the normal development of such tumours; 4. accordingly, there was no basis for his Honour concluding that any increase in the size post-December 1987 could be attributed to the work incident, and there was no basis for his Honour's conclusion that any alteration in the size of the growth was a rapid one, which could be related back to the work incident. Although it was sought to demonstrate, in the course of cross-examination, that there had been no significant change in the size of the tumour, it seems to me, with respect, that neither the cross-examination, nor the documents relied upon in support of the submission to that effect, bear out the submission. Thus, the passage in the cross-examination of Dr Freedman (Appeal Book 21 D) is no more than the following: "Q. If you assume that x-rays taken on 3 June by Dr Ho prior to the operation show the changes similar to those observed in December 1987, in other words the x-ray picture had not changed very much. A. The x-ray picture hadn't changed." which, with respect to those who seem to place great stress of the matter, seems to me to be no more than an assent to the proposition that, if those assumptions were made, there had been no significant change. The passage in Dr Marsden's report (Appeal Book 55J) when read with the sentence immediately following it, does not support the submission either. That passage, and the sentence following, are to the following effect: "T first saw him on the 26th June, 1988 and at that time I found a large bone tumour arising from the posterior aspect of the right buttock region related to the sacral iliac joint in the medial part of his sacrum. There was evidence that this mass was present on x-rays taken on the 2nd December 1987. The tumour mass continued to grow in size and become painful over the months following, culminating in his referral to me for treatment of this tumour." Nor is the passage in Dr Green's report (Appeal Book 58L), which was to the following effect: "..Further x-rays of the lumbar spine and pelvis which were reported by Dr H Ho on June 3 as showing changes similar to those observed by Dr Roseverne in December, 1987." of much assistance when the following passage in Dr Green's examination in chief (Appeal Book 28) is noted: URJ ZIZZAT| PTY LTD v ADEMOSKI (Powell JA) 13 "Q. Having had access to those two reports, do you have any comment as to whether they assist you in the question of the growth or otherwise of this tumour between December 1987 and June 1988. A. With due respect to both the radiologists, the only way I could have formed an opinion with regard to whether there was any change in the size of the tumour was to have a look at the radiograph myself. They weren't available to me." This part of the first attack advanced on behalf of the Appellant, in my view, thus fails in its attempted demonstration. Nor, so it seems to me, does the fact that all of the Respondent's doctors are said to be of the opinion that, whatever increase in size may have occurred to the tumour, it was not related to any work incident and was more consistent with the normal development of such tumours, assist the Appellant. Two things might be said about this submission, they being: 1. the mere fact that Dr Freedman's opinion did not accord with the opinions expressed by Dr Green and those whose reports had been tendered on behalf of the Appellant, did not require that Dr Freedman's opinion be rejected (Commissioner for Government Transport v Adamcik?); 2. in any event, the opinions of Dr Green and those others is by no means as absolute as the submission suggests, as the following passage in the course of Dr Green's examination in chief (Appeal Book 28-29) would indicate: "Q. So my question to you is this, did that fall cause the sarcoma to become painful. A. It could have, but if I could qualify that by saying that other soft tissues injury from the accident could also cause similar pain. HIS HONOUR: Q. Does that mean that the continuity of pain in a certain position is important in determining that question. A. I think as a result of the trauma he had, one, a lot of soft tissue injury, nothing to do with the tumour itself, but the tumour could have been squeezed, compressed, but not to a very - to a minor degree." I would accordingly reject the first attack upon his Honour's Judgment. The submissions which were advanced on behalf of the Appellant in support of its claim that the Award made by Johns CCJ should have been for a closed. rather than for an open, period proceeded along the following lines. 1. even if the Court were of the view that the evidence supported a conclusion that there were some acceleration in the Respondent's condition as the result of the accident in December 1987, the duration of any such acceleration or aggravation could not extend beyond the date of the first operation in July 1988; 2. even if there were any acceleration in the present case, it did no more than produce, sooner than would otherwise have been the case, the same result which would have been produced in the ordinary course of progression of a chondrosarcoma; 3. it could not be suggested, in the present case, that the acceleration itself caused permanent incapacity and, accordingly, the compensation should have been limited to the duration of the incapacity produced by the acceleration: 4. the facts of the present case can be equated with the facts in McLaughlin and Co Pty Ltd v Brinnand? which also involved a malignant tumour, and in which case the High Court held (Kitto, Menzies, Windeyer and Owen JJ; Barwick CJ dissenting) that the successive operations after the first which the worker was required to undergo did not flow from any aggravation or acceleration of the underlying malignancy. 2. (1961) 106 CLR 292 3. (1965) 39 WCR 112 14 UNREPORTED JUDGMENTS Iam unable to accept this submission. It is sufficient, in my view, first, to adopt what was said by Barwick CJ in Darling Island Stevedoring and Lighteridge Co Ltd v Hankinson4, where his Honour said: "The relevant question in a case of an injury is whether incapacity resulted from it is not, as in the case of an action at law based on negligence, what damage the injured party sustained. Thus cases such as Watts v Rake ((1960) 108 CLR 158) and Purkess v Crittenden (1965) 114 CLR 164) insofar as they deal with the possible effect of a pre-existing condition upon the amount of an award of damages in such a action, are not in point in connection with a claim under the Workers Compensation Act. If the resulting incapacity is temporary and ceased by the time the award is made, the award will be limited to that period of incapacity. If the incapacity is temporary but continuing at the date of the award, as a rule, the award will be expressed to continue during the incapacity, leaving the parties, if need be, to litigate subsequently the time at which incapacity ceased: or the award may simply be made without limitation as to time, the respondent to it being able to bring its operation to an end by establishing the loss of the incapacity. But the question in either case is whether the injury had ceased to cause incapacity." and then to repeat the concluding words in Johns CCJ's Judgment: "Tt would seem to me that in this case the consequences of the acceleration of this pre-existing progressive disease had not ceased to matter and have resulted in the total incapacity of the applicant. The mere fact that at some stage total incapacity would have arisen in (sic)" (QUAERE: is not) "a reason for discontinuing compensation." For these reasons I would propose that the Appeal be dismissed with costs. Appeal dismissed with costs. Counsel: Appellant: PJ Deakin QC and CJ Wynyard Respondent: MJ Joseph SC and AR Cooley Solicitors: Appellant: Gadens Ridgeway Respondent: Daly Busolitti and Co (Wollongong) 4. (1967) 117 CLR 19, 25-26