FYNA CONSTRUCTIONS (NSW) PTY LTD v SESAR [1995] NSWCA 160

FYNA CONSTRUCTIONS (NSW) PTY LTD v SESAR

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE, MEAGHER and SHELLER JJA 3 May 1995

[1995] NSWCA 160 WORKERS COMPENSATION — error of law

Sheller JA. Fyna Constructions (NSW) Pty Limited appeals from a decision of Judge Herkes in the Compensation Court on 13 December 1991 in which his Honour made an award in favour of the applicant worker, Ivan Sesar. The award was for payment of weekly compensation on the basis of total incapacity from 16 September 1988 and continuing.

The respondent worker was injured on 7 May 1987. While placing form work timber over a trench he was struck on the head by a back hoe. The worker was voluntarily paid compensation until 15 September 1988.

His Honour made a formal finding that the respondent's injury to the head, the neck, left leg, left hip, right arm and right side of his body together with a subsequent psychiatric state was an employment injury which totally incapacitated him from 16 September 1988 to the date of the judgment.

In order to understand the award something must be said about the respondent'sIn order to understand the award something must be said about the respondent's condition and the claim he made. In addition to pain in the neck, severe headaches and various orthopaedic injuries the respondent claimed there was an aggravation, exacerbation or acceleration of a meningioma which was present at the time of the injury but caused no symptoms at that time and was unknown to the worker.

The existence of the tumour was revealed by a CAT scan on 28 May 1987. It was removed by Dr Bleasel on 19 June 1987.

Based on medical evidence, his Honour was not satisfied that there had been any aggravation, exacerbation or acceleration of the tumour by the blow on the head. He had no difficulty in finding partial incapacity to a fairly high degree based on the orthopaedic injuries and there is no challenge to that finding.