JONES v STATE OF NEW SOUTH WALES (COMMERCIAL SERVICES GROUP) FORMERLY GOVERNMENT CLEANING SERVICES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, HANDLEY and BEAZLEY JJA 15 July 1996, 15 July 1996 [1996] NSWCA 280 WORKERS COMPENSATION — WORKERS COMPENSATION ACT 1987 s66 AND s67 — ADVERSE FINDINGS — MEDICAL EVIDENCE — ADEQUACY OF TRIAL — worker had suffered injury to the same part of his body at different times — worker claimed permanent impairment of the back — later injury relied on as a significant causal factor — trial judge held worker not entitled to lump sums under s66 and s67. Question on appeal was whether the trial judge had given proper indication of her reasons for rejecting worker's claimed permanent impairment of the back. HELD: Priestley JA (Handley and Beazley JJA concurring) — the medical evidence had to be weighed in light of the trial judge's view of the worker himself; in this respect the court should not interfere with that view. The judge made it sufficiently clear that she was not satisfied of causal relation between later injury and worker's claimed permanent impairment, and her Honour's conclusions should not be disturbed. ORDERS Appeal dismissed with costs. Priestley JA This is an appeal by a worker from a judgment of her Honour, Judge O'Toole in the Compensation Court given on 27 September 1995. She declined to make awards in the worker's favour pursuant to s66 and s67 of the Workers Compensation Act 1987. She made an award in regard to weekly compensation for a limited period. No question is raised about this in the appeal. The appeal is directed to persuading the Court that the orders declining to make awards under s66 and s67 should be set aside. The worker had in 1975 been working for Newcastle City Council and in that year he suffered an injury to his lower back in the course of his employment. After that injury, he did not return to work for between three and four years, during which time he was, for a period, in receipt of an invalid pension and for a period, in receipt of unemployment benefits. In 1979 he began work as a cleaner working in effect part-time. On 13 September 1993 while working as a cleaner at Warners Bay High School, he had a mishap while operating an industrial buffer as a result of which he suffered various injuries including an injury to his back. He was treated by his general practitioner, Dr Wijesena and was referred to an orthopaedic surgeon, Dr Tarrant. His employment was terminated in about January 1994. He has not worked since the injury on 13 September 1993. He has again been in receipt of the invalid pension since about January 1995S. The issues before Her Honour were confined to incapacity at various times and whether such incapacity was sufficiently related to the 1993 injury as to entitle the worker to lump sums under s66 and s67. 2 UNREPORTED JUDGMENTS In regard to his 1975 injury, the appellant had been treated and/or assessed by Doctors Plowman and Cole, both orthopaedic surgeons. After his three or four years of incapacity, the worker took up the cleaning job I've earlier mentioned and according to his evidence he worked about three-and-a-half hours a day, five days a week. The way in which his case is put on appeal is that there were three questions which the trial judge had to deal with. The first was whether there was permanent impairment of his back or neck and loss of effective use of the right leg. The second was whether there was a relevant causal relationship between the 1993 injury and any permanent impairment found. Third, if he succeeded in the first two, what was the extent of the impairment? The basic way in which the appellant's case was put was that the trial judge had failed to give reasons in regard to the three basic questions which counsel had distilled. There was no complaint, however, about the adverse finding of the trial judge in regard to the permanent impairment of the neck. It was also made plain by counsel for the appellant worker that the complaint in regard to effective use of the right leg went along with the question whether there had been permanent impairment of the back. The question therefore for this Court resolved itself into whether the submission was correct that the trial judge had failed to give any proper indication of her reasons for finding against the worker in regard to the claimed permanent impairment of the back. The only oral evidence relating directly to the question of permanent impairment of the back was that of the worker himself. All medical evidence was given by way of reports; tendered and put into evidence. There was some evidence from investigators relating apparently to film that had been taken of the worker. Although the trial judge's reasons are brief and on the important point somewhat less clear than ideally would be hoped for, I nevertheless do not think that the basic complaint made on the worker's behalf is made out. The trial judge said that she had weighed the whole of the evidence and would refer in her reasons only to the facts relevant to her decision. She then briefly noted the evidence that had been given by the worker himself, concluding this part of her reasons by saying that his evidence left her uncertain regarding one particular aspect of his assertions. She then went on to deal with the medical evidence. She noted that there were what she termed 'crucial omissions from it' so far as the worker was concerned. She referred to the earlier back injury and described it as having seriously incapacitated him for years and having entitled him to an invalid pension for lengthy periods. This seems to be a fully justifiable remark. She then mentioned that the only medical practitioner who saw the worker at about the time of the 1975 injury was Dr Wijesena, whose report the judge clearly did not regard as carrying a great deal of weight. She said that that report made a sweeping assertion that the condition of the worker after 1993 injury was caused wholly or partly by it but the judge went on to record that Dr Wijesena had not conducted a clinical examination for some time. The judge thought, therefore, that that doctor's opinion was of limited assistance. The judge then noted that Doctors Plowman and Cole, who had treated him for the earlier serious back injury, had provided no evidence in the worker's case. The judge then went on to refer to other evidence before her in a way indicating that she was impressed by the doubts and qualifications expressed sometimes clearly, sometimes implicitly in that medical evidence. UBWES v STATE OF NEW SOUTH WALES (COMMERCIAL SERVICES GROUR} FORMERLY GOVERNMENT CLEANING SERVICES (Priestley JA) None of the doctors whose reports were before the trial judge was in a position to, as it were, make factual findings adverse to the worker in regard to those symptoms he claimed but which were clinically unverifiable. They indicated however, some doubts about the reality of the symptoms at least to the degree that they were asserted by the worker. This meant that a valuation of the medical evidence by the trial judge would be affected to a significant degree by her own view of the reliability of the worker in the description he gave before her of his medical history. In that respect the trial judge said that on the whole of the evidence the applicant was not an accurate historian and she placed greater reliance upon medical practitioners observations during clinical examinations. She then said that she was left uncertain regarding to the nature of the applicant's serious back injury in 1975 and uncertain regarding the relationship between his capacity for work and his earlier serious injury. In my opinion, on the basis of the various reports before her, and on the basis of her not fully accepting the worker in his history of his own symptoms, it was properly open to her to express the conclusion that she had not been satisfied by the worker of the matters which in her terminology she said she had been left uncertain about. It seems to me reasonably clear that her use of the word "uncertain" was intended to express what is usually described as not having been satisfied on the balance of probabilities of the matters which the worker was asserting. To this point, there would still be some question as submitted by counsel for the worker whether the trial judge was saying she had not been satisfied about the fact of permanent impairment or not satisfied about the causal relationship between permanent impairment and the work injury of September 1993. However, the last thing she said following what I have already dealt with in regard to the claims under s66 and s67 was that: "For reasons including the absence of crucial medical evidence, I am uncertain whether the applicant suffers relevant permanent impairment of his back." In the light of everything that had gone before, I have little doubt that this was a finding on the part of the trial judge that she was not satisfied that the worker had discharged the onus of showing on the balance of probabilities that there was any sufficient causal relation between whatever the state of his back was after the injury of 1993, if that state were to be regarded as permanent impairment, and the injury of 1993. On this view of her Honour's reasons, it seems to me that she did sufficiently explain why it was that she was not prepared to make an award in the worker's favour under s66 and s67. A further matter which was relied on by the worker's counsel was a remark made by the trial judge in the course of her reasons concerning the resolution of a forward slip at L4-5 between September 1993 and February 1994. It was said that there was no evidence to support this observation by Her Honour. However, although it is not completely clear, it seems first that so medical evidence of no slip following February 1994. This evidence would appear to support what Her Honour said. Secondly, however, even if there is some error involved in what Her Honour said, it seems more to be an error, if it be one, in expression than in substance of medical evidence which certainly in some of the reports supported the view that from February 1994 no forward slip was discernible radiologically. The case before Her Honour raised a frequent question where a worker has suffered injuries to the same part of the body at different tunes and the later injury is being relied on as a significant causal factor in the state of incapacity which the worker presents at the hearing of his or her claim for compensation. It is a matter 4 UNREPORTED JUDGMENTS of difficulty for trial judges to sort out the facts in order to see whether the better conclusion is that the worker's current condition is substantially the result of the earlier injury or partly the result of the earlier and the alter injuries. It was that task the trial judge had to perform in the present case. Parts of the medical evidence could be used, arguably, to support either conclusion. The medical evidence had to be weighed in light of the judge's view of the worker himself and in light of that view, I do not think that the Court can say the conclusion she arrived at should be interfered with. To return to the actual grounds of appeal, they were concentrated on the question whether the judge had sufficiently explained the reasons for her conclusion. For the reasons I have given, I think she did and I think the appeal, therefore, should be dismissed. Handley JA I agree. Beazley JA I agree. The appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: RH Taperell Solicitors for the Appellant: Baker Love, Newcastle Counsel for the Respondent: M Cranitch SC and R Harrington Solicitors for the Respondent: D Pittard, NSW Treasury Managed Fund, Newcastle