ILJAZI v AUSTRALIAN IRON & STEEL PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL SHELLER JA, POWELL JA and COLE JA 7 March 1996 [1996] NSWCA 261 SECTION 66 — no question of principle. Cole JA. This is an appeal from a decision of Johns J in the Compensation Court delivered on 3 February 1994, in which his Honour made an award in favour of the appellant in respect of an injury related to his left leg, but declined to make an award in respect of a claimed permanent impairment to his back, the applicant-appellant having claimed for compensation pursuant to s 66 of the Workers" Compensation Act 1987 in respect of an asserted permanent impairment of his back. Had it not been for the full and helpful submissions advanced by Mr Poulos of Queens Counsel on behalf of the appellant, for myself I would have been content to dismiss the appeal for the reasons given by Johns J. It should be recorded that when the matter came before the Court this morning the appellant, Mr Iljazi, was unrepresented. Mr Poulos volunteered to act for him in the best traditions of the bar and in accordance with a scheme which is operated by the New South Wales Bar Association. Inthose circumstances the matter was adjourned until this afternoon to enable Mr Poulos to have time to consider the matter and it should be recorded that the submissions put by Mr Poulos to the Court all that could sensibly be put on behalf of the appellant. The appeal relates only to the back injury and the claim for compensation pursuant to s 66 in relation to it. It was undisputed at the hearing that the appellant suffered a back injury on 30 May 1990. The injury was diagnosed as being a ligamentous strain and the appellant was off work for something less than a month, he being certified as being fit to resume work on 26 June 1990. He did resume work on that date. Thereafter, he continued to perform his work which, whilst sedentary in some respects, did involve manual work of medium intensity. He did not see any doctor for three years. He lodged a claim, which is the subject of this appeal, on 21 April 1993 and it was shortly thereafter that he again saw doctors for the first time after his resumption of work on 26 June 1990. Materially to this appeal he saw three doctors in a period of some five months. The first doctor whom he saw was Dr Deveridge, whom he saw on 3 August 1993. He was referred to Dr Deveridge by his then solicitors. Dr Deveridge recorded a complaint of episodic low back pain, usually two or three times a week, and a soreness in the back and a stiffness in the back after heavy work. On examination he found that the appellant had some tenderness to pressure over the lower lumbar segment and that there was a slight restriction of lumbar movement. He also noted that there were no neurological deficits and no muscle wasting observed in the lower limbs. In his opinion the appellant suffered a chronic musculo-ligamentous strain injury of the lumbar spine on the background of an early L4 LS disc degeneration. He assessed permanent impairment of his back at eight per cent. 2 UNREPORTED JUDGMENTS Next the appellant saw Dr Berry on 3 December 1993. That doctor recorded a history that the major problem suffered by the appellant was his back, that he had pain brought on by lifting and bending and also by prolonged standing. Sitting for any length oftime produced discomfort. On examination it was found that he was tender over the lower lumbar spine at the midline. He demonstrated half the normal range of flexion, no restriction of extension and two-thirds of the normal range of rotation. There was no spasm of the paraspinal muscles and no loss of lumbar lordosis. In the opinion of Dr Berry the appellant suffered a ligamentous injury of the lumbar spine with the possibility there had been some damage to the L4 L5 discs. In his opinion the appellant had suffered a 15 per cent permanent impairment of his back. Dr Berry was also seen by the appellant at the request of his then solicitors. In January 1994 he saw Dr Silva. On 14 January Dr Silva noted complaints in relation to his back that 'He feels as if there are nails inside his back, but that is only an occasional feeling. The low back stiffens after long car drives and he takes the occasional analgesic amounting to about twice a week for these occasional back aches.' After examination Dr Silva expressed the opinion: Clinically, I cannot fault his lumbar spine today. He described some occasional back symptoms, as mentioned above, but there is no significant quantifiable back disability or back impairment and the prognosis for the back is good, and he does not require any further treatment for his alleged back incident of 1990, which is probably in the form of lumbo-sacral strain, and that has probably largely resolved. He remains fit for his pre-injury occupation. Those three reports were tendered to the trial judge, who of course also heard evidence from the appellant. At the trial the doctors" reports were tendered, but there was no cross-examination upon them. Nor was there any significant exploration in examination or cross-examination of the differences which had been noted by the various doctors in the five month period over which the appellant had seen them. The trial judge in his judgment recorded the substance of the three doctors" reports to which I have referred and also noted the circumstance that the appellant had not seen a medical practitioner for some three years until after he had lodged his claim for Workers" Compensation. Having noted the three doctors" reports, his Honour commented, 'It seems to me remarkable that between the time that he was seen by Dr Deveridge on 5 August1993 he had deteriorated to the state when he saw Dr Berry in December 1993 and improved to the state that he was when he was seen by Dr Silva,' which as I have said was in January 1994. The trial judge had the opportunity to observe the appellant in the witness box and to weigh his evidence at the hearing in February 1994. It was the impression of the trial judge, as he recorded, that the appellant exaggerated or made the most of his injuries. His Honour noted that, 'It seems remarkable to me that a man who describes the symptoms he says he has and the difficulties he has been having since the time of injury did not need any consultation with any medical practitioner for a period of three years.' His Honour in those circumstances expressed the view that the appellant had failed to convince him on the probabilities that whatever he may suffer in regard to his back, if anything at all, is a consequence of the employment injury that he suffered with the respondent on 30 May 1990. He was inclined to the view of Dr Silva that the lumbar spine was not significantly deficient and, accordingly, came to the conclusion that the appellant had not suffered any permanent impairment to his back as a consequence of the employment injury. URJ ILJAZI v AUSTRALIAN IRON & STEEL PTY LIMITED (Sheller JA) 3 That process of reasoning seems to me to be unimpeachable. It was clearly open to the trial judge and he expressed his reasons for reaching the conclusion. It was submitted by Mr Poulos that the comment to which I have referred made by the trial judge concerning the discrepancies noted in the assessments and reports of Drs Deveridge, Berry and Silva had not been raised with the appellant in evidence and, accordingly, the appellant had been denied procedural fairness in that he was not given the opportunity to respond to the trial judge's comment. There are a number of things which may be said about that submission. The first is that at the time the appellant was legally represented at the trial by experienced counsel. If there was any suggestion of procedural unfairness one would have expected the matter tohave been raised then. Second, one would have expected it to be raised in the notice of appeal, but it was not. Third, there is nothing placed before this Court which enables it to make any determination regarding the substance of submissions which were put to the trial judge concerning the three doctors" reports. Accordingly, there is no factual basis for any submission that the appellant was denied procedural fairness. The trial judge had the advantage which this Court does not have of making an assessment of the witness. There was evidence available to the trial judge which entitled him in my view to reach the conclusion which he did concerning his impression of the quality of the evidence given by the appellant. In those circumstances it seems to me that the decision of the trial judge is not able to be attacked in this Court. In my opinion the appeal should be dismissed with costs. Sheller JA. I, too, would acknowledge the assistance of Mr Poulos who, at short notice, volunteered to appear for the appellant and put the appellant's case as well as it could be put. Even so, I agree for the reasons given by Mr Justice Cole that the appeal must be dismissed with costs. Powell JA. I join with Mr Justice Sheller and Mr Justice Cole in recording my appreciation of the assistance which Mr Poulos has given to the Court at short notice and for the assistance which he gave to the appellant, who would otherwise have been at a very grave disadvantage. All this notwithstanding, for the reasons given by Mr Justice Cole, I agree that the appeal should be dismissed with costs. Sheller JA. The order of the Court is that the appeal is dismissed with costs. Orders accordingly. Counsel for the appellant: J Poulos QC Solicitors for the appellant: Jn person Counsel for the respondent: A L Mitchell Solicitors for the respondent: Blake Dawson Waldron