NEW SOUTH WALES POLICE SERVICE v HUGHES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE and BEAZLEY JJA, and SHEPPARD AJA 25 August 1997, 5 December 1997 [1997] NSWCA 223 WORKERS COMPENSATION admission of doctor's report — challenge to trial judge's findings regarding amount of compensation: review of findings: s66, s68A considered. ORDERS appeal and cross-appeal upheld. Cole JA I have had the advantage of reading in draft the judgment of Sheppard AJA in which the facts and issues on appeal are set forth. I agree for the reasons given by his Honour that grounds 1, 2 and 3 should be rejected. I have, however, reached a different view to his Honour in relation to ground 4. That ground was expressed in the notice of appeal in the following terms: "His Honour failed to give consideration to when any exacerbation of the first respondent's neck symptoms resulting from her employment with the appellant ceased". Bishop CCJ made a continuing award for compensation. Accordingly it is to be assumed that this specialist judge considered that at the date of the hearing exacerbation of the respondent's underlying neck symptoms resulting from her employment with the Police Service continued. There was clear evidence both from the worker and Dr Garrick that her employment with the Police Service aggravated a pre-existing neck injury. The appellant's submissions accept that. The appellant argued, however, that such aggravation "does not necessarily give rise to either continuing worker's compensation rights or entitlements to lump sum payments for permanent impairment". The submission was that: "There has to be by the trial judge an investigation as to whether the aggravation etc is of a continuing nature. In that the only specialist medical evidence was of an aggravation or exacerbation of symptoms, it is submitted that it is an error for his Honour to find incapacity or permanent impairment resulting therefrom without having determined the nature and/or extent of that aggravation or exacerbation". To make a continuing award, or to award payment for permanent impairment, it would be necessary for the trial judge to find continuation of the aggravation. In my view, in terms, his Honour did so. He said: "T am also satisfied on the totality of the evidence, and I have taken into account the hospital notes from Sydney Hospital that whatever the condition of the applicant's neck, it was made worse by her employment with the second respondent". That is not a finding that it was made worse only during the period of her employment. Later his Honour said: "T consider further, that it should be held that she sustained an injury to her left arm and her neck as a result of the nature of her employment with the second respondent from 9 April 1990 to 18 August 1992". That also is not a finding that she suffered aggravation only during the period of that employment. 2 UNREPORTED JUDGMENTS Finally, his Honour said when assessing the lump sum payable pursuant to s66: "T am satisfied that there is the necessary element of permanence made out with regard to the condition of the appellant's neck and her left arm." There was clear evidence from Mrs Hughes that her employment with the Police Service permanently aggravated her prior condition. She said: "Q. Just dealing with the-perhaps going to the neck now, you have indicated to his Honour that it was during the course of the latter part of 1989 that you began to develop some symptoms in the neck, and when you were at the police department the symptoms progressively got worse. Have the symptoms in the neck ever gone away since they developed in 1989-1990? A. No. Q. At the time you finished working with the police department how did the symptoms feel in the left arm compared to what they had been like when you first started with the police department. A. Worse. Q. What about the neck? A. Worse. Q. Have the symptoms in the left arm and the neck ever gone back to what they were like before you started working with the police department? A. No."! The trial judge accepted Mrs Hughes. There was thus available evidence to support the trial judge's finding of continuing and permanent aggravation., I also read Dr Garrick's reports as indicating continuing aggravation from employment with the appellant. In his report of 23 September 1996, Dr Garrick noted in relation to pain along the outside of the left arm to the back of the neck and to the occipital region that "there was significant variability of this pain with exacerbations of discomfort related to work in the Police Service maintaining fixed positions". He subsequently noted that: "She reported that domestic activities were as much aggravating her discomfort as her police work. She didn't recognise that symptoms were being provoked by physical activity so that a period of leave without pay was recommended in order for Mrs Hughes to allow symptoms to subside". Dr Garrick was there speaking of the period 1992-1993. However, writing in September 1996 he noted that "her pain disorder has persisted over a number of years and is likely to be intractable". This implies that cessation of work with the Police Service did not result of amelioration of the pain to a level equivalent to that suffered during her pre-Police Service employment, such that she could again resume employment. It follows in my view that the trial judge had available to him evidence sufficient to sustain the finding which he made that the employment with the Police Service had resulted in a continuing aggravation of a permanent nature sufficient to justify both a continuing award and a lump sum payment. I would reject this ground of appeal. The fifth ground of appeal was that his Honour failed to apply the provisions of s68A Workers Compensation Act 1987. It was agreed by the parties to the appeal that the applicable provisions in s68A are those inserted by the WorkCover Legislation Amendment Act 19952, and that the amendments made by the WorkCover Legislation Amendment Act 1996 have 1. Appeal Book p30P V. 2. Act 89 of 1995. URJ NEW SOUTH WALES POLICE SERVICE v HUGHES (Cole JA) 3 no application to this appeal. Further, at the hearing, the appellant accepted that, if s68A had not been applied by the trial judge, and this Court were to apply its provisions, the appropriate deduction in relation to the lump sum awarded pursuant to s66 in respect of the neck disability was a deduction of $762.60. His Honour did not address in terms the provisions of s68A, and there is nothing in the judgment to suggest that, implicitly, its provisions were taken into account. Accordingly this ground of appeal should be upheld and the award entered in favour of the first respondent reduced by the sum of $762.60. The sixth ground of appeal was: "His Honour's findings regarding the first respondent's entitlements under s66 as against the appellant failed to exceed the threshold set out in s67(2) and therefore compensation should not have been awarded against the appellant under s67(1) (that is, $7626 + 25% X $14,298.75 is less than $12,710)." The trial judge found that the worker had suffered a 15% impairment to the neck in relation to a most extreme case, entitling her to $7,626, payable by the Police Service. He also found that she suffered a 15% permanent loss of the efficient use of the left non-dominant arm at or above the elbow, entitling her to a lump sum payment of $14,298.75. The trial judge held that this latter sum was payable by the Police Service because of the provisions of s65(3) of the 1987 Act which provides: "If a loss mentioned in the Table to this Division resulted both from an injury received before the adjustment of an amount mentioned in s66 or s67 and an injury received after that adjustment, the loss shall, for the purposes of determining the amount of compensation payable under those sections, be treated as having resulted from the injury received after that adjustment". Senior Counsel for the worker on appeal accepted that s65(3) related to calculation of the amount of compensation, not liability. Apportionment of liability is addressed in s22 and s22A. It was accepted that the true issue regarding whether compensation for pain and suffering was payable pursuant to s67 depends upon whether the threshold determined pursuant to s67(2)had been crossed. That threshold was $12,710 being 10% of $127,100. The trial judge apportioned responsibility in respect of the left arm injury 75% to the first employer, Gladesville RSL Club, and 25% to the second employer, NSW Police Service. The appellant Police Service should thus have been ordered to pay 25% of the figure of $14,298.75 assessed pursuant to s66. That equates to $3,574.69. To that must be added the sum in respect of the neck injury which, after the s68A deduction referred to in ground 5, becomes $6,863.40. Those sums total $10,438.09 which is less than the threshold. Accordingly the appellant should not have been ordered to pay any sum pursuant to s67. The first employer, Gladesville RSL Club, was granted leave to file in court a cross-appeal, it having been ordered to pay 40% of the s67 payment. Its only responsibility was for 75% of the 15% permanent loss of the efficient use of the left arm above the elbow, which results in a liability of $10,724.07. The threshold for a s67 payment against that cross-appellant was thus not reached. Accordingly no payment pursuant to s67 should have been ordered against that cross-appellant. I would propose the following orders: 1. Appeal and cross-appeal upheld. 2. Award entered by Bishop J on 25 November 1996 be varied by reducing the amount payable by the appellant in respect of the neck injury from $7,626 to $6,863.40 and by deleting from the award the order for payment pursuant to s67 of $12,500. 4 UNREPORTED JUDGMENTS 3. The first respondent should pay the appellant's and the cross-appellant's costs of the appeal but should have, if qualified, a certificate under the Suitor's Fund Act. Beazley JA I have had the advantage of reading in draft the judgments of Cole JA and Sheppard AJA. I agree with the reasons of Sheppard AJA in respect of grounds 1, 2 and 3 raised on the appeal. As to ground 4, I prefer the reasons of Cole JA and agree with him on that issue. I also agree with Cole JA in respect of ground 5. Ground 6 raises the question whether the first respondent was entitled to an award of lump sum damages under s67 of the Workers Compensation Act. S67(1) provides: "A worker who has suffered a loss mentioned in the Table to this Division (or 2 or more of any such losses as a result of the same injury) is entitled to receive from the worker's employer by way of compensation for pain and suffering resulting from the loss or all those losses, in addition to any other compensation under this Act, an amount not exceeding $50,000." $67(2) provides: "This section does not apply if the compensation paid or payable under s66 for the loss or an those losses is less than 10 per cent of the maximum amount from time to time referred to in s66(1)." The threshold amount prescribed by s67(2) was, for the purposes of this case, $12,710. The effect of s67(2) is that an applicant for s67 compensation must be awarded by way of s66 compensation an amount greater than the threshold for a loss or losses arising from the one injury. The trial judge found that the first respondent had sustained a 15 per cent permanent impairment to the neck in relation to a most extreme case, entitling her to an award of $7,626 as against the appellant. His Honour also found that the first respondent had sustained a 15 per cent impairment to the permanent use of the left non dominant arm at or above the elbow, entitling her to an award of $14,298.75. His Honour considered therefore, that the second respondent had thereby "surmount[ed] the threshold from the point of view of s67". His Honour determined the amount of s67 compensation and then apportioned the s66 and s67 damages in respect of the left arm injury as to 75 per cent to the second respondent and 25 per cent to the appellant. The appellant was thereby liable to pay to the first respondent the sum of $11,200 in respect of the s66 award, being an amount less than the statutory minimum prescribed by s67(2). Senior counsel submitted that the result of the apportionment therefore, was that the first respondent was not entitled to any award under s67. Whether this is so depends, in my opinion, upon whether s67(2) applies to an award in respect of a single loss sustained as a result of two injuries or whether, as a matter of construction, in the case of a single loss arising from two injuries the point of reference prescribed by s67(2) relates to the amount awarded as against a particular respondent once the apportionment under s22 has been ascertained. If the former approach is permitted by the section, a further question arises in this case as to whether the trial judge found that the first respondent has sustained loss in respect of the arm injury. In my opinion, there is nothing in the provisions of s67 which compel the former construction. S67 makes provision for compensation in respect of a "loss mentioned in the Table". "Loss in relation to a thing" is defined in s65 to mean, URJ NEW SOUTH WALES POLICE SERVICE v HUGHES (Beazley JA) 5 relevantly, "the permanent loss of the use, or the efficient use, of the thing". As defined, the concept of loss is not related to the question of who is to bear responsibility for the loss. There is nothing in the definition, however, which denies the proposition that there can be one loss arising from more than one injury. S65(3) does provide recognition of that concept in circumstances where the injuries which caused "the loss " occurred both before and after the commencement of the Act. S22 also gives express recognition to the situation of a single loss arising from more than one injury. Indeed, the very purpose of s22 is to apportion liability between employers in such a case. Accordingly, there is no reason, as a matter of construction, to confine the operation of s67(2) so as to apply the threshold amount only to the apportioned amount payable by a particular employer. To do so would, in my opinion, not only be unnecessary on the wording of the subsection, but would be contrary to its purpose. The purpose of the subsection is to limit the making of small claims under the section. It has done so by the imposition of a threshold amount calculated at 10% of the maximum amount referred to in s66. Its purpose is not to limit the liability of an employer to pay compensation for pain and suffering where the statutory threshold has been exceeded but where the apportioned share of an employer's liability falls below that threshold. The employer's protection against liability to pay the full amount of compensation determined to be payable under s67 is found in the apportionment provisions. Support for this construction is to be found in Glebe Rowing Club Pty Ltd v Pride & Anor (unreported, NSW Court of Appeal 18 August 1995). Priestley JA, in his dissenting judgment, considered that both s22 and s65 recognise multiple causes of impairment giving rise to a single loss. His Honour considered that the trial judge had, in that case, determined that the worker sustained one loss from two injuries. Meagher JA and Rolfe AJA both considered the worker had suffered two distinct losses, in which case the question whether she was entitled to s67 compensation against either of the two employers depended upon the s66 award as apportioned between those employers. However, Meagher JA commented that the result would have been different "if one injury has caused the ultimate impairment". It is also apparent from Rolfe AJA's judgment that his Honour considered that s67 could apply in the case of a single loss arising from two injuries. The question which thus arises for determination is whether the trial judge found one loss arising from the two injuries or whether the first respondent sustained separate and distinct impairments from each injury. His Honour found that the first respondent suffered a lateral epicondylitis due to the arduous nature of her employment with the second respondent, who was the first respondent's first employer. She underwent surgery and part of the epicondyle was removed. The first respondent gave evidence that, over time, the symptoms in her arm worsened. His Honour formed a favourable impression of the first respondent. He stated: "In considering whether there is in fact any ongoing consequences of the elbow injury with regard to the left arm, one must, I consider, take into account very much, the sequence of events, the views of Dr Garrick who is probably the doctor who has seen the applicant on most occasions, and on my own impression of the applicant as a witness." His Honour considered "that there is an acceptable level of complaint, consistent with the continuing effects of the epicondylitis continuing on an ongoing basis." His Honour stated however that he could not conclude "that there 6 UNREPORTED JUDGMENTS was absolutely no involvement in the symptomatology that the applicant was suffering... in her left arm by the nature of her employment with the [appellant]". His Honour concluded that on the totality of the evidence, the first respondent was "suffering from a degree of ongoing symptomatology in [her left] arm". That finding, in my opinion, involved a finding of a single loss in respect of the left arm. The need for and effect of the apportionment was to determine the extent to which each employer was liable for that single loss. However, having regard to his Honour's finding of a single loss, apportionment did not affect the first respondent's rights under s67. The award made under s66 in respect of the single impairment to the arm was in excess of the statutory minimum prescribed by s67(2). His Honour was correct, therefore, in holding that the first respondent was entitled to an award under s67. In the result, I agree with the orders proposed by Cole JA save in respect of the alteration of the s67 award. Sheppard AJA This is an appeal from a decision of the Compensation Court (Bishop J) which resulted in an award for the applicant (the first respondent to the appeal) dated 25 November 1996. The award was made against two respondents, former employers of the applicant. The employers were the appellant, the New South Wales Police Service, and the second respondent, the Gladesville RSL Club. During the course of the hearing of the appeal the second respondent was given leave to rely on a cross-appeal which was filed in Court. I shall refer to the matter raised by the cross-appeal in due course. The facts of the matter are not, at least to any degree, in issue and are to be found in his Honour's judgment. His Honour said that the first respondent ("Mrs Hughes") claimed that the nature of her employment with the second respondent ("the RSL Club") up to December 1987 involved repetitive and arduous work including lifting and stacking. Injuries alleged by Mrs Hughes were to her neck and both arms and wrists. She claimed also that she suffered anxiety and depression as a consequence of the injuries. The claim which was made was for weekly compensation at various rates from 9 April 1990 to date (ie to the date of judgment) together with various lump sums for losses and impairments. The claim against the appellant ("the Police Service") was based upon the nature of Mrs Hughes' employment with that Service between April 1990 and August 1992. The disabilities claimed and the relief sought were for practical purposes the same. His Honour formed a favourable impression of Mrs Hughes as a witness. He said that he was satisfied that her work with the RSL Club involved repetitive types of activities and that over a period she began to develop symptoms in her left arm. She consulted a general practitioner and was referred to Dr Bosanquet who performed surgery on her left elbow. She was thought to be suffering from epicondylitis and the operation was "by way of an epicondyle release". A condyle is any rounded eminence such as occurs in the joints of many of the bones, especially the femur, humerus and mandible. An epicondyle is an eminence upon a bone above its condyle and epicondylitis is the inflammation of an epicondyle, specifically that of the humerus. Mrs Hughes said that after the surgery, her ability to use her left arm, which she described as having been "locked up", was considerably improved. Nevertheless, the pain in her elbow and in her arm did not disappear. After the surgery, Mrs Hughes was paid compensation for a period, including a period when she worked in a university co-operative bookshop on a part-time basis with her earnings from that source being made up by the RSL Club's insurer. She was anxious to obtain a full time job and ultimately obtained URJ NEW SOUTH WALES POLICE SERVICE v HUGHES (Sheppard AJA) 7 employment with the Police Service as a telephonist. His Honour said that he was satisfied that this involved Mrs Hughes in movements of her neck in particular, and also in the use of her arms. His Honour said that prior to her employment with the Police Service Mrs Hughes had experienced some twinges in her neck. About this time, she was suffering a degree of stress in her then marriage. After a period with the Police Service she started to notice problems and again obtained medical advice. She came under the care of Dr Raymond Garrick. In August 1992 he recommended that she take nine months off work in the hope that her symptoms would "ameliorate". She went off work on unpaid leave but did not resume work with the Police Service. Towards the end of 1992 she moved to Queensland and has since been living in the Brisbane area. His Honour said that the burden of her evidence was that her symptoms in her arm and neck had "if anything" got worse over time. He said that Mrs Hughes claimed - and what she said was confirmed in the medical material before the Court - that she began to develop symptoms in other parts of her body. These symptoms were ultimately narrowed down by two of the specialists as being a type of fibromyalgia. His Honour said that it was not claimed that this condition bore any relation to Mrs Hughes' employment with either respondent. I note that myalgia is pain in muscles. It may be muscular rheumatism. "Fibro" is a prefix referring to fibres or relating to fibrous tissue or structure. The evidence thus establishes that there were work related incidents causing disability with two employers and a condition quite unrelated to employment with either respondent also causing disability. It was in those circumstances that his Honour remarked that the case was not without its difficulties, a statement with which I agree. His Honour said that there was, in the reports of Dr Garrick as well as the reports of Brisbane medical practitioners, "a fairly clear-cut acceptance" of an underlying generalised problem that subsequently emerged in the nature of fibromyalgia. He said that an orthopaedic surgeon, Dr Pillemer, suspected that there was a degree of some underlying condition "in the picture". His Honour first came to the question whether there were any ongoing consequences of the elbow injury in the left arm. His Honour said that he thought he should take into account the sequence of events, the views of Dr Garrick, who was the doctor who had seen Mrs Hughes on most occasions and "one's own impression" of Mrs Hughes as a witness. His Honour said that he thought that there was an acceptable level of complaints consistent with the continuing effects of the epicondylitis continuing on an ongoing basis. He accepted the submissions made on behalf of Mrs Hughes that the evidence linking her neck condition with the employment with the RSL Club was "inadequate". It seemed to his Honour that the evidence showed some degree of onset of neck symptoms well after the elbow injury and before the commencement of Mrs Hughes' employment with the Police Service. His Honour said, however, that he found it difficult, looking at the totality of the evidence before the Court, to disregard the recommendation of Dr Garrick that at the end of Mrs Hughes' period of employment with the Police Service she should take nine months off work in order to permit the symptoms from which she was suffering to abate. His Honour added, "It seems to me that common sense indicates that the doctor having come to that view, it is a very difficult step to deduce from that, that there was absolutely no involvement in the symptomatology that the applicant was suffering in her neck and to a lesser extent, in her left arm by the nature of the employment with the 8 UNREPORTED JUDGMENTS second respondent [ie the RSL Club]". His Honour concluded that there was, on the totality of the evidence, a case made out that, following an injury to the left elbow with the RSL Club, Mrs Hughes suffered from a degree of ongoing symptomatology in her neck which was made worse by her employment with the Police Service. His Honour said that that was her testimony and considered that her evidence in this regard was to be accepted. He said that Mrs Hughes' capacity for employment since the cessation of her employment with the Police Service was, as a result of the totality of the medical evidence, "pretty limited". He thought that it was very difficult to envisage her being able, at the time of his judgment, to do anything more than very light, very casual part time work. His Honour then came to his findings. The first of these was that Mrs Hughes had sustained an injury to the left arm resulting from the nature and conditions of her employment with the RSL Club up to December 1987. He found also that she sustained an injury to her left arm and her neck as a result of the nature of her employment with the Police Service from 9 April 1990 to 18 August 1992. He found that she was partially incapacitated as a result of the injury to the left arm for the period from 9 April 1990 to 18 August 1992. He thought that this was established by her initial diminution in her earning capacity, while working in the book store, followed by his finding as to the ongoing symptomatology in the arm upon which the operation had been carried out. His Honour found that, after 19 August 1992, Mrs Hughes' partial incapacity was as a cumulative result of the employment with both respondents. He then made his award. The first part of the award was an award against the RSL Club under s40 of the Workers Compensation Act 1987 for weekly payments of varying amounts in respect of three periods, the first of which began on 9 April 1990 and the last of which ended on 18 August 1992. The total period involved in fact extended continuously from 9 April 1990 until 18 August 1992. The only reason for there being three periods was the need to award different figures in respect of each period. In relation to Mrs Hughes' incapacity subsequent to August 1992, his Honour thought that, at the first instance, it should "rest on" the Police Service. He thought that Mrs Hughes' ability to earn should be found "at something in the area of $200 per week" in the type of casual part time work to which he had referred. He said that there were discretionary matters that had to be taken into account in calculating Mrs Hughes' entitlement. These related to the condition of fibromyalgia and to the fact that Mrs Hughes had "elected" to remove herself to another labour market. The award made for this period under s40 of the Act was for three periods, the first beginning on 19 August 1992 and the third concluding on 19 May 1993 (in the reasons for judgment incorrectly stated as 19 April 1993 but corrected in the award when it was entered). In respect of each period a sum of approximately $195 was awarded. From 20 May 1993 to the date of the judgment and continuing his Honour awarded the sum of $100 per week. His Honour said that the liability to make weekly payments from 19 August 1992 and continuing resulted in part from Mrs Hughes' employment with the RSL Club. He apportioned liability for these payments between the two employers on a 50/50 basis. His Honour then came to the question of liability under s66 of the Act. S66 provides that a worker who has suffered the loss of "a thing" mentioned in the Table to Division 4 of Pt3 of the Act as the result of an injury is entitled to receive from the worker's employer by way of compensation for the loss, in addition to any other compensation under the Act, the amount equal to the percentage of URJ NEW SOUTH WALES POLICE SERVICE v HUGHES (Sheppard AJA) 9 $132,300 set out opposite to that loss in that Table. The relevant provisions of the Table deal with the permanent impairment of the neck and with the loss of the left arm at or above the elbow. In the former case the percentage of the maximum amount which is payable ranges from 0-40 per cent, and in the latter case, the percentage is 75 per cent of the maximum. His Honour said that he was satisfied that there was the necessary element of permanence made out with regard to the condition of Mrs Hughes' neck and left arm. He said, "Considering all the material in the quite complex medical exhibits, and also forming my own view and my own assessment of the applicant, I consider that it should be found that she has sustained a 15 per cent permanent impairment to the neck in relation to a most extreme case". This entitled her to a sum of $7,626. His Honour decided that the amount to be awarded should be paid by the Police Service. He considered that Mrs Hughes had sustained a 15 per cent permanent loss of the efficient use of the left "non-dominant" arm at or above the elbow. This produced a figure of $14,298.75. He said both figures had been taken on the date Mrs Hughes last worked for the Police Service. The figures, so his Honour said, enabled Mrs Hughes to surmount the threshold provided for in s67 of the Act. That section provides that a worker who has suffered a loss mentioned in the Table to Division 4 of Pt3 of the Act (or two or more of any such losses as a result of the same injury) is entitled to receive from the worker's employer by way of compensation for pain and suffering resulting from the loss or all those losses, in addition to any other compensation under the Act, an amount not exceeding $66,200. The section does not apply if the compensation paid or payable under s66 for the loss or losses there provided for is less than 10 per cent of the maximum amount referred to in s66(1). That is the threshold to which his Honour referred. His Honour said that Mrs Hughes had given evidence of problems with headaches. The vulnerability of her personality had also been emphasised in a number of the medical reports. His Honour decided that the approximate relativities were in the area of 1:5 and that the figure to be awarded under s67 should be $12,500. Of this he apportioned $6,250 for past pain and suffering. His Honour said that the award under s66 relative to the left arm and the award under s67 were payable "as well" by the Police Service but "resulted in part" from Mrs Hughes' employment with the RSL Club. In his view the RSL Club's share of the liability under s66 for the arm and of the totality of the award under s67 should be apportioned as to 75 per cent to the RSL Club with regard to the left arm (as I understand it, for the liability under s66 of the Act) and as to 40 per cent with regard to the amount under s67. His Honour said that he was not satisfied that there was any ongoing psychiatric injury affecting these findings. With s66 and s67 there needs to be considered s65(3) and s68A. S65(3) provides that, if a loss mentioned in the Table resulted both from an injury received before the adjustment of an amount mentioned in s66 or s67 and an injury received after that adjustment, the loss shall, for the purposes of determining the amount of compensation payable under those sections, be treated as having resulted from the injury received after that adjustment. The relevant subsections of s68A are subs(6) and subs(8). These subsections are as follows: "(6) If another loss was suffered by the worker as a consequence of the permanent impairment of the back, neck or pelvis for which there is a deductible proportion under subs(1) and that other loss and the impairment both resulted 10 UNREPORTED JUDGMENTS from the same injury, no compensation is payable under this Division for the proportion of the other loss that equals the deductible proportion for the impairment. (8) If there is a deductible proportion for a loss but the extent of the deductible proportion will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding litigation) that the deductable proportion is 10%, unless this assumption is at odds with available evidence." With these subsections there needs to be read s68A(1) and s68A(2). The former provides that if a loss suffered by a worker as the result of an injury is permanent impairment of the back, neck or pelvis, no compensation is payable by the employer who is liable in respect of the injury for any proportion of the loss that is due to a previous injury for which compensation has been paid or is payable under Division 4 of Pt3 of the Act or any other previous injury or any pre-existing condition or abnormality. S68A(2) provides that the proportion of a loss for which no compensation is payable because of subs(1) is the "deductible proportion" for that loss. "Deductible proportion" is the phrase used in subs(6) and subs(8). I should mention at this point that there was uncertainty expressed during the argument whether the provisions of s68A(8) were, at times relevant to the facts of this matter, in the terms which I have recounted them. After the hearing a letter was received from counsel in which it was said that it had been agreed that the appropriate subsection providing for an "assumed" deductible proportion of 10 per cent was s68A(8) as I have quoted it. This appears to me to be correct. The submissions made on behalf of the Police Service followed the grounds of appeal. The first ground was that his Honour had wrongly admitted into evidence a report of Dr Garrick dated 23 September 1996. The second and third grounds were taken together. They involved suggested errors of law in relation to: (1) there being no evidence regarding injury to Mrs Hughes in the course of her employment with the Police Service; and (2) there being no evidence regarding the nexus of any injury to any incapacity and/or impairment or loss. The fourth ground was that on the evidence, it was not possible to determine that the onus of proof had been discharged by Mrs Hughes in circumstances where there were competing explanations regarding the cause of her incapacity and/or impairment or losses. The fifth ground of appeal was that his Honour had failed to make any reference to s68A of the Act when assessing the loss under s66. The sixth ground related to the statutory construction of s67(2) of the Act and its "purported interaction" with s65(3). I turn to the grounds and the submissions in support of them in the order in which I have stated them. Counsel for the Police Service said that the report of Dr Garrick dated 23 September 1996 should not have been admitted because of a number of factors which his Honour either did not take into account or to which he had given insufficient weight. He said that the matter had initially been listed for hearing in Brisbane on 2 September 1996. Prior to that time, there had been served on behalf of Mrs Hughes reports of Dr Garrick dated 23 March 1992, 28 August 1992 and 1 June 1995. Of these reports one of two reports made on 28 August 1992 and URJ NEW SOUTH WALES POLICE SERVICE v HUGHES (Sheppard AJA) 11 the report of I June 1995 were tendered at the Brisbane hearing on her behalf. A report of 18 August 1992 was tendered on behalf of the Police Service. Counsel said that counsel for Mrs Hughes had indicated to the Court in Brisbane that he intended to call Dr Garrick to give evidence when the matter was listed for further hearing in Sydney. Mrs Hughes gave evidence at the Brisbane hearing that she had arranged to see Dr Garrick on 17 September 1996. Counsel said that Dr Garrick's report of I June 1995 made reference to a prior letter to Mrs Hughes' solicitors of 10 August 1994. The letter had not been served nor tendered. The report of Dr Garrick of 23 September 1996 and a later report of 18 October 1996 were served less than 28 days prior to the part-heard hearing date in Sydney which had been fixed for 25 November 1996. R8(3) of Pt23 of the Compensation Court Rules provides that such reports "may", not "must", be served at least 28 days before a party seeks to tender them. The purpose of the tule is to trigger a process whereby a party who has served a medical report within time may rely on statements in the report as evidence in his or her case notwithstanding that the doctor is not called. Counsel for the Police Service objected to the tender of the report of Dr Garrick of 23 September 1996. His Honour dispensed with r8 and admitted the report. Counsel conceded that his Honour had a discretion whether the report should be admitted into evidence. But he said that the discretion should have been exercised judicially, particularly taking into account any prejudice which might flow to a party. He said that the prejudice which flowed to the Police Service included the following matters: (a) Prior to Dr Garrick's report of 23 September 1996 there was no medical evidence suggesting that Mrs Hughes had sustained an injury in the course of her employment with the Police Service. (b) The Police Service was unable to elicit from Dr Garrick the contents of his letter of 10 August 1994 addressed to Mrs Hughes' solicitors. (c) Dr Garrick was Mrs Hughes' treating specialist in Sydney who had seen her over a lengthy period before and after her employment with the Police Service. (d) As events transpired, Dr Garrick's opinion was heavily relied upon by his Honour. (e) Dr Garrick could have been cross-examined by counsel for the Police Service on a number of issues. These were specified in the submission but I do not find it necessary to set out the detail of them. The transcript of the proceedings for 25 November 1996 records that there was an objection made to the report of 23 September 1996 by counsel for the Police Service, but there is no record of the argument which presumably then took place. The transcript records, however, that his Honour said that in the exercise of his discretion he dispensed with the rules in regard to late service. The report was admitted. Both counsel for Mrs Hughes and counsel for the RSL Club, in their responses to the Police Service's submissions in relation to this ground, make the point that if the Police Service was prejudiced as a consequence of the late service or of its inability to cross-examine Dr Garrick because of his not having been asked to attend, an adjustment could have been applied for. No such application was made. Counsel for Mrs Hughes also submitted that, if the Police Service wished Dr Garrick present for the purpose of cross-examination, it should have taken appropriate steps to have him called. 12 UNREPORTED JUDGMENTS Counsel said that there was no suggestion that, following service of Dr Garrick's final report, any enquiries had been made of Mrs Hughes' solicitors whether it was proposed to have Dr Garrick present. Counsel also said that, if the letter dated 10 August 1994 to Dr Garrick had been required, it could have been subpoenaed or called for during the hearing. Neither of those steps was taken. lam of opinion that the various matters relied upon by counsel for Mrs Hughes and the RSL Club should be accepted. The transcript does not suggest that any application for an adjournment was made and, during the argument before us, it appeared to be common ground that it had not. In those circumstances, there is no basis for saying that his Honour's decision to dispense with compliance with the rules involved a miscarriage of his discretion. I would reject this ground of appeal. As mentioned, counsel for the Police Service dealt with the second and third grounds of appeal together. These were that his Honour's finding that Mrs Hughes suffered a further injury to her left arm due to her employment with the Police Service was not supported by any evidence and was, in any event, against the evidence and the weight of the evidence. It was also submitted that his Honour's finding that Mrs Hughes suffered injury to her neck as a result of her employment with the Police Service was based on an inference drawn from the report made by Dr Garrick on 23 September 1996 which it was not open to his Honour to draw, particularly in the absence of oral "testing" of Dr Garrick, and/or was "based upon a negative or exclusionary proposition which did not reflect the onus of proof". I shall come to the detail of the submissions made in support of grounds 2 and 3 in a moment. Before I do, I wish to say that, insofar as those grounds appear to open up again the question of the reliance by his Honour on Dr Garrick's report of 23 September 1996, the report was in evidence and was material which his Honour was not only justified but obliged to take into account in reaching his conclusion. The challenge to the admission of the report has failed. It is therefore to be treated no differently from the other evidence in the case. Another matter I should deal with before going to the detail of the submissions is Dr Garrick's evidence. In his report of 28 August 1992 he said that Mrs Hughes was suffering from post-traumatic cervico-brachial pain. He thought she had continuing disability sufficient to render her unfit for either normal full time or part time work from 18 August 1992 to 18 November 1992. Dr Garrick's report of 18 August 1992 had been a little more detailed. In it Dr Garrick said, after referring to the cervico-brachial pain which had evolved in 1988 or 1989, that the symptoms were related in part to cervical ribs and in part to mild cervical spondylosis. Mrs Hughes' symptoms responded to analgesic medication and to occasional paravertebral blocks with local anaesthetic and steroid. Physiotherapy had also been helpful. Dr Garrick said that none of the conservative treatments undergone by Mrs Hughes had "allowed" her discomfort to settle. He said that avoidance of physical activity was helpful. In this regard, he had recommended that she apply for leave of absence from her work involving computing and clerical duties for a period of nine months in order to allow her symptoms adequately to subside. On 1 June 1995 Dr Garrick referred to his letter of 10 August 1994, which I have earlier mentioned, and said that, at the time of his last assessment, Mrs Hughes had persisting fibromyalgic cervical and shoulder pain. While it was likely that her level of comfort would fluctuate from time to time in the future, he considered that it was probable that a return to work of the character that she URJ NEW SOUTH WALES POLICE SERVICE v HUGHES (Sheppard AJA) 13 had been performing before the onset of symptoms would be most likely to have resulted in increased or more prolonged symptoms and disability. The reports to which I have referred are comparatively short. The report dated 23 September 1996, which was admitted over the objection of the Police Service, is much more comprehensive. Dr Garrick said that Mrs Hughes had been treated for persisting cervico-brachial pain during her attendances at Sydney Hospital in 1989 and 1990. She subsequently attended his rooms, initially in December 1991 and on two further occasions in March and August 1992. She then moved from Sydney to Brisbane in late 1992 and he did not see her again until the examination on which he was reporting which had taken place on 17 September 1996. Dr Garrick said that he was aware of Mrs Hughes' symptoms developing in 1988 with lateral elbow pain. She had an operation on the left lateral epicondyle with excision of a small part of the bone. Her pain persisted after the operation but elbow mobility was maintained. Dr Garrick said that Mrs Hughes subsequently developed pain along the outside of the left arm, to the back of the neck and to the occipital region. There was significant variability of this pain with exacerbations of discomfort related to work in the Police Service. He referred to her domestic difficulties and said tension aggravated her symptoms with the consequence that the separation of causes was not "relevant to management". Trials of medication were unhelpful, but paravertebral blocks with local anaesthetic and low dose steroid were effective in providing short term relief sufficient for her to cope with her acute problems. Dr Garrick then said: "In December 1991 she had prominent arm pain, more on the right than the left with mild cervical pain. Symptoms were provoked by arm dependency and some degree of thoracic outlet compromise as a component of a mixed cervico-brachial pain disorder which was diagnosed. Significant tension myalgia or fibromyalgia was noted. There was sufficient domestic stress in late 1990 for Mrs Hughes to request referral for counselling. She was referred to Dr W L Metcalf at the Sydney Hospital Outpatient Clinic and continued under his care until her difficulties were resolved. In March 1992 she had a further relapse of cervico-brachial pain following a flu illness. She had a reasonable response to paravertebral injections on that occasion until a relapse of headache and neck pain was reported in August 1992. She had some relief with muscle relaxant medication with Baclofen. She reported that domestic activities were as much aggravating her discomfort as her Police work. She did recognise that symptoms were being provoked by physical activity, so that a period of leave without pay was recommended in order for Mrs Hughes to allow symptoms to subside." Dr Garrick said that Mrs Hughes had continued to have the same pattern of symptoms over the past four years in Brisbane. She had been advised by the Commonwealth Employment Service against returning to work and she commenced on a disability pension in 1993. Her symptoms had persisted with gaps between acute exacerbations becoming shorter. Mrs Hughes told Dr Garrick that she currently had a mild generalised headache rising from the occiput and spreading particularly to the left side of the face. She had paraesthesia and a feeling of skin tightening in that side of her face. Her speech occasionally slurred and there were tender areas over the head. On some days the pain was more right sided. Both shoulders were slightly sore, the 14 UNREPORTED JUDGMENTS left more than the right. There was continuing tenderness around the left elbow and wrist dating from 1988. She had developed pains in the left fingers, paraesthesia in the left arm, and an occasional twinge of pain in the right arm. She occasionally lost all feeling in the left arm. Her sleep pattern was disputed. When pain was slight she preferred to avoid treatment, but when it was "prominent" she felt desperate to receive any relief possible. Dr Garrick said that there was no muscle wasting or abnormality of tone. There was a slight tendency for the left arm to give way. Sensory examination revealed a global reduction of pinprick perception over the left arm, hand and shoulder extending to the left side of the face, neck and angle of the jaw. The pattern of sensory disturbance had persisted through her previous examinations. There was no tenderness of the wrists or the medial epicondyle. There was significant tenderness of the left forearm. Dr Garrick said that Mrs Hughes had a chronic axial pain disorder which commenced following a left lateral epicondylitis and more diffuse arm pain. Her original symptoms appeared to be work related. The progression of fibromyalgic pain was multifactorial. Contributing factors included the pattern of her occupational activities producing some degree of muscle tension, but domestic activities were contributing factors as well. The components of her discomfort included persisting muscle tension (ie myalgia), soft tissue origin tenderness and probably apophyseal (protruding bone) joint and ligament insertion related pain. The physiology of pain persistence and spread was related to the release of neuropeptides (amino acids) at the spinal dorsal root entry zone region. Dr Garrick said that Mrs Hughes was currently unfit for work and that her disability support pension appeared appropriate. Practical considerations interfering with her management included medication intolerance, travel difficulties, availability of an appropriate pain clinic facility within her means and the requirement for regular follow-up. He said that her pain disorder had persisted over a number of years and was likely to be intractable. The absence of structurally identifiable pathology and the identification of specific neurological deficits should not be indicators of a lack of seriousness. Dr Garrick said that Mrs Hughes' condition was probably best assessed by a pain clinic consultant. There was no surgical problem present, so that evaluation by orthopaedic or neurosurgeons did not appear to be sensible or appropriate. Dr Garrick thought that Mrs Hughes should not attempt work in the nature of her pre-injury employment, nor should she consider a return to full time clerical work. The object of a pain clinic rehabilitation program was naturally to reintroduce normal working capacity, but in her case he thought this should be graded extremely cautiously with a realistic goal of part time light duties work without lifting or maintenance of a fixed posture. Assessment of permanent disability in percentage terms was inappropriate in this situation. It was impossible to separate her neck shoulder and arm disabilities into specific categories and, since she was currently unable to be employed and was significantly disabled and becoming "habituated to short acting opiate medication", it was difficult to avoid the disability limit or level of 85 per cent which was used by "the social security" for pension provision. In a letter dated 18 October 1996 Dr Garrick said that he considered that Mrs Hughes was "globally disabled". If a "cumulative disability" was required, he thought that it would be reasonable to offer "a separation at neck 20%, left shoulder 10%, right shoulder 5%, left arm at or above the elbow 35%, right arm at or above the elbow 10%". He said that this left emotional factors out of account. URJ NEW SOUTH WALES POLICE SERVICE v HUGHES (Sheppard AJA) 15 The account of his Honour's judgment which I have given shows that he relied for his conclusions on Mrs Hughes' evidence, which he accepted, and Dr Garrick's evidence, particularly his report of 23 September 1996. Against that background I come to the submissions made in support of the second and third grounds of appeal. Counsel for the Police Service said that his Honour's finding of further injury to the left arm and injury to the neck as a result of Mrs Hughes' employment with the Police Service was not supported by the evidence. He said that Mrs Hughes had sustained an injury to her left arm in the course of her employment with the RSL Club. This required operative treatment. Mrs Hughes had continuing symptoms from her left arm which were accepted by his Honour. She had symptoms in her neck prior to the commencement of her employment with the Police Service in April 1990. That was indicated in a report of the Sydney Hospital dated 10 October 1994 where it is said Mrs Hughes (then Mrs Maxwell) attended the Neurology Clinic at the Hospital on 10 November 1989 as the result of a sudden onset of severe left-sided headache and neckache. Counsel relied on the fact that in August 1992 at the end of Mrs Hughes' employment with the Police Service, Dr Garrick recommended that she should take nine months off work in order to permit her symptoms to abate. Counsel said that upon the basis of these matters, his Honour made the following "deduction": "Tt seems to me that common sense indicates that the doctor having come to that view, it is a very difficult step to deduce from that, that there was absolutely no involvement in the symptomatology that the applicant suffered in her neck and to a lesser extent in her arm by the nature of her employment with the second respondent [the Police Service]." I have earlier referred to this passage. Counsel said that it was not open to his Honour to formulate a positive deduction that Mrs Hughes suffered injury to her neck and left arm as a result of her duties with the Police Service "from a negative inference drawn from Dr Garrick's opinion". Mrs Hughes already had symptoms in her left arm and neck prior to her employment with the Police Service. That was supported by a report from Sydney Hospital dated 10 October 1994. Furthermore, the report of Dr Garrick dated 18 August 1992, ie the report tendered by the Police Service, said that Mrs Hughes was suffering from continuing cervico-brachial pain which originally evolved in 1988 or 1989 following physical activity including the carrying of parcels. Counsel submitted that there was nothing in that report to indicate that Mrs Hughes' employment with the Police Service was causing her any injury. If anything it was to the contrary. Counsel said that, at the most, Dr Garrick supported the view that Mrs Hughes had exacerbations of her pre-existing pain related to her work with the Police Service. He referred to sections of Dr Garrick's report of 23 September 1996 which have been earlier referred to. Counsel submitted that it was not open on the evidence for his Honour to find that Mrs Hughes suffered any more than an exacerbation of her pre-existing symptoms due to her employment activities with the Police Service. Even this may have been merely a demonstration of her underlying disability rather than any injury per se. Any reliance upon Mrs Hughes' evidence of an increase in symptoms over time could not be relied upon in itself because of the developing onset of generalised fibromyalgia which was not work related. Counsel submitted that whether a particular inference could be drawn from primary facts established by the evidence was a question of law. He referred to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355. He said, correctly in my opinion, that in such an enquiry an appellate Court was in as good 16 UNREPORTED JUDGMENTS a position as a trial Judge to determine what were the proper inferences to be drawn from the facts found by the judge. He also referred to Warren v Coombes (1979) 142 CLR 531 at 551, although, of course, that was not a case dealing with an appeal only on questions of law. It was submitted that this Court could determine as a matter of law whether it was open to the trial judge to draw the inference which he did. Counsel said that the inference drawn by the judge was "a negative inference" drawn from the evidence to support a positive proposition that Dr Garrick had come to the view that the nature of Mrs Hughes' employment with the Police Service had some involvement in (ie as I understand, was a cause of) her symptomatology. It was submitted that this supposed inference was illogical, outside the bounds of a proper inference to be drawn, and against the contemporaneous evidence. Reference was again made to Dr Garrick's report of 18 August 1992. It will be recalled that Dr Garrick said that her symptoms were related in part to cervical "ribs" and in part to mild cervical spondylosis. In reply to those submissions, counsel for Mrs Hughes said that his Honour had relied on the accumulation of a number of factors, namely the physical activity required by her employment with the Police Service, the circumstances in which symptoms arose, the treatment she received, the opinions of the doctors, the sequence of events, his impression of Mrs Hughes as a witness, and common sense. That is an accurate account of the way his Honour approached the matter as the reference to the judgment in the earlier part of these reasons discloses. Counsel for Mrs Hughes said that these matters provided more than adequate support for the conclusion that his Honour reached, namely that the nature of Mrs Hughes' employment with the Police Service "to some extent" caused the symptomatology in her arm. Counsel said that so far as the sufficiency of the evidence was concerned, counsel for the Police Service had conceded that Mrs Hughes' condition during and following employment with the Police Service may have been an exacerbation of a pre-existing condition. That would amount to an injury within the meaning of the Act; see s4. Counsel said that it was clear that his Honour was not relying on any one occasion; the whole case was run on the basis that the nature of Mrs Hughes' employment was a contributing cause of the ultimate condition from which she suffered. Counsel said that the evidence as to the onset of symptoms on the occasions of the work performed by Mrs Hughes for the Police Service provided-a sufficient basis for his Honour's conclusion as to causation. The conclusion was that there were two underlying conditions from which Mrs Hughes suffered, namely the fibromyalgia and the epicondylitis. Her "ultimate" condition in respect of her arm resulted from an exacerbation of both conditions and that in respect of her neck from the former, ie the fibromyalgia. He said that the "negative inference" claimed to be found in his Honour's judgment was merely the obverse of the finding actually made, namely that the proper deduction from the evidence was that there was some involvement of the employment with the Police Service in Mrs Hughes' symptomatology in her neck and left arm. The consequence, so it was submitted, was that his Honour was entitled to infer, especially in the light of Mrs Hughes' own evidence, that her employment with the Police Service was a substantial contributor to her condition notwithstanding that she had given a history that domestic work also exacerbated her problems. The submissions made by counsel for Mrs Hughes were supported by counsel for the RSL Club. I do not refer to the detail of these submissions except to say that there is a much more comprehensive reference to the evidence to be found URJ NEW SOUTH WALES POLICE SERVICE v HUGHES (Sheppard AJA) 17 in them than is the case in the submissions made either on behalf of the Police Service or Mrs Hughes. I have found these references helpful but I do not find it necessary otherwise to refer to them. In my opinion there was ample evidence to justify the conclusions to which his Honour came in respect of the matters covered by the second and third grounds of appeal. I would accept the approach adopted by counsel for Mrs Hughes. I do not think it right to regard what his Honour said in the passage of the judgment which is challenged, namely, "It seems to me that common sense indicates that the doctor, having come to that view, it is a very difficult step to deduce from that, that there was absolutely no involvement in the symptomatology that Mrs Hughes was suffering in her neck and to a lesser extent, in her left arm, by the nature of the employment" with the Police Service, as a finding or conclusion not open to his Honour upon the evidence. His Honour accepted the evidence of Dr Garrick and Mrs Hughes. His conclusion was based on that evidence. Counsel for the Police Service said that his Honour had drawn "a negative inference". I do not think I have fully understood what counsel meant by this. As best I can follow the submission, it involves the proposition that Dr Garrick made a negative finding and from this both he and his Honour concluded positively that the work done by Mrs Hughes with the Police Service contributed to her problems. But, as counsel for Mrs Hughes said, that is no more than the other side of the same proposition. In my opinion, the findings made by his Honour were open to him on the face of the evidence. I would accordingly reject the second and third grounds of the appeal. I turn to the fourth ground of appeal. It was that his Honour failed to give consideration to when any exacerbation of Mrs Hughes' neck symptoms resulting from her employment with the Police Service ceased. In support of this ground counsel for the Police Service said that the only possible finding of injury against the Police Service supported by the medical evidence was that Mrs Hughes' duties with the Police Service aggravated or exacerbated her symptoms. It was submitted that there was no assessment by his Honour of the extent or nature of the injury sustained by Mrs Hughes in her employment with the Police Service. He referred to the definition of "injury" in s4 of the Act, particularly to so much of that definition as is contained in para(b)(ii) which provides that injury includes the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration. Counsel said the fact that a disease was aggravated by Mrs Hughes' employment with the Police Service did not necessarily give rise either to continuing worker's compensation rights or entitlements to lump sum payments for permanent impairment. It was submitted that there needed to be an investigation by the trial Judge as to whether the aggravation or exacerbation was of a continuing nature. It was said that it was an error for his Honour to have found incapacity and permanent impairment resulting therefrom without having determined the nature and/or extent of the aggravation or exacerbation. Counsel for Mrs Hughes said that Dr Garrick's report of 1 June 1995 provided a sufficient evidentiary basis, when taken together with the other evidence including particularly that of Mrs Hughes, for a finding that the work performed for the Police Service probably caused increased and more prolonged symptoms and disability. In his report of 1 June 1995 Dr Garrick referred to the fact that Mrs Hughes had persisting fibromyalgic cervical and shoulder pain but considered that it was probable that a return to work of the character which she was performing before the onset of symptoms would be most likely to have resulted 18 UNREPORTED JUDGMENTS in increased or more prolonged symptoms and disability. Counsel said that his Honour had concluded that the conditions of both arm and neck were permanent and made worse by Mrs Hughes' employment. Counsel submitted that this involved consideration of the temporal character of the exacerbation or aggravation of what he found to be the underlying problem. It was not essential that a judge be able to diagnose the precise condition or conditions from which an applicant suffered. It was sufficient if there were material reasonably capable of supporting the inference that was arrived at. Reference was made to the well known judgment of Rich J in Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; see particularly at 5634. In passing, it should be mentioned that counsel for the Police Service countered the reference to Forst's case with a reference to the decision of Burchett J in Australian Postal Commission v Lucas (1991) 33 FCR 101. There Burchett J referred (at 107-8) to the dissenting judgment of Dixon J in Forst (at 570). Counsel submitted that, once his Honour had concluded that there was an exacerbation or aggravation contributed to by the nature of the work, there was ample evidence that permitted the conclusion that the condition, and hence the exacerbation or aggravation, was permanent. These submissions were supported by counsel for the RSL Club. In the submission of counsel for the RSL Club, the effect of Mrs Hughes' evidence was that the increase in symptoms she suffered whilst employed by the Police Service was permanent and not merely an exacerbation which ceased or could have been expected to cease. Counsel submitted that such a finding was implicit in his Honour's reasons. It was said that there was no need for his Honour specifically to refer to this matter. Reference was made to Soulemezis v Dudley (Holdings) (1987) 10 NSWLR 247. In order to do justice to these submissions, I think it is necessary to look at Dr Garrick's reports again, particularly the report of 23 September 1996. Under the heading "Opinion", Dr Garrick referred first of all to the epicondylitis and to more diffuse arm pain. He said, in effect, that this had led to a situation in which Mrs Hughes had a chronic axial pain disorder. By the use of the word "axial" I think Dr Garrick was intending to convey the impression that the pain disorder suffered by Mrs Hughes centred upon the area of the epicondylitis but was diffused into the surrounding area. As he said, the original symptoms were work related. But the difficulty comes in relation to her other problems. As he said, the progression of fibromyalgia was multifactorial. He proceeded to list the various contributing factors. These were said to include the pattern of Mrs Hughes' occupational activities which produced some degree of muscle tension. By that I understand Dr Garrick to mean that Mrs Hughes' employment with the Police Service was a contributing factor because she did not have the fibromyalgic condition, at least so far as she was aware, during the period of her employment with the RSL Club. The other contributing factors mentioned by his Honour are not so clearly related to her employment, although it is possible that they may be, or at least some of them may be, if only indirectly. Dr Garrick mentioned domestic activities, significant psychological stresses and the provision of short acting opiate analgesics as well as sleep disruption and intermittent viral infections. In what Dr Garrick has written, there is no indication of his having turned his mind to the question whether the contribution being made by occupational activities was permanent or a temporary exacerbation or aggravation of the underlying condition. The report is silent on the matter and I think it may be unwise, as counsel for the Police Service suggested, to assume that Dr Garrick URJ NEW SOUTH WALES POLICE SERVICE v HUGHES (Sheppard AJA) 19 thought about it. The difficulties are highlighted by what he said in a later letter dated 18 October 1996, namely that percentage disability is highly unscientific, subjective and inappropriate for consideration by a treating doctor. In his view, it was of little value in understanding a medical condition. He understood what he described as the administrative requirements of making guesses from inaccurate tables and also the tendency of such percentage assessments to have trends according to "the prejudices and source of remuneration of the assessing physician". I do not regard the question which the fourth ground of appeal raises for decision as free from difficulty. Having reflected upon the evidence and the submissions, I have, however, reached the conclusion that the ground should be upheld. Mrs Hughes described her two problems. She said that one was the fibromyalgia, "it's all through the body, and the other one is just my arm, my neck and the head". She referred to pain in her neck and head in 1990. She was asked when it started and said that it was about the time she was at the book shop. She said she needed treatment and was given cortisone at the back of her neck. She described the pain as "discomfortable". She said the work which she did for the Police Service sometimes required her to do double shifts which meant that she was working for continuous periods of sixteen hours. She said that she worked for the Police Service throughout 1990. She was asked how she felt "in her body" doing this work at the end of a shift, particularly a double shift. Her answer was "bad". She was asked what parts were feeling "bad" and indicated her arm, her neck and her head. She saw Dr Garrick from time to time. She was given medication in the form of analgesics and she had injections. She continued to work throughout 1991. She said she kept getting the pain. It got worse and she felt "terrible" at the end of shifts. It was after that that she had the period of nine months off as recommended by Dr Garrick. She did not return to work for the Police Service. Essentially the question is whether or not the evidence is such as to have entitled his Honour to reach the conclusion which he did. Did it establish no more than an aggravation or exacerbation which was not such as to cause a permanent effect on her underlying condition of fibromyalgia? The difficulty exists because the problem was not addressed in specific terms by his Honour except insofar as one can say that the fact that he has made the award a continuing one and awarded lump sum compensation for permanent impairment indicates that he must have concluded that the effects of the employment with the Police Service would continue to contribute to Mrs Hughes' condition indefinitely. Does the decision of this Court in Soulemezis (supra) provide an answer to the problem? That case is authority for the proposition that the duty of a judicial officer to provide reasons for decision in respect of findings of fact from which no appeal lies is sufficiently satisfied by the dying of grounds for, and-not the detailed reasoning in support of, the findings. In this regard, Mahoney JA said (at 270) that it was not necessary for a judge who is exercising a discretionary judgment to detail each factor found to be relevant or irrelevant or to itemise, for example, in the assessment of damages for tort, each of the factual matters to which regard is had. Later he said (at 271) that the law did not require that a judge make an express finding in respect of every act leading to, or relevant to, the final conclusion of fact; nor was it necessary that the judge reason and be seen to reason, from one fact to the next along a chain of reasoning to that conclusion. Nevertheless, the matter of permanent effect was so fundamental to the question 20 UNREPORTED JUDGMENTS whether the Police Service was bound to make continuing weekly payments of compensation and whether Mrs Hughes had established an entitlement to the compensation provided for in s66 of the Act, that I think that a clear finding supported by reasons, however short, was called for. Whether his Honour's statement of reasons is sufficient is not the principal problem. The problem is whether there was evidence justifying his Honour in reaching the conclusions which he did. In this connection, I have noted the statement of his Honour made when assessing the amount of lump sum compensation payable pursuant to s66 of the Act namely, that he was satisfied that there was the necessary element of permanence made out with regard to the condition of Mrs Hughes' neck and left arm. But that only serves to emphasise the point. The statement is a finding; it is not a statement of reasons. More importantly, it cannot stand if there is not evidence to support it. As counsel for Mrs Hughes contended, there can be no question but that the evidence of Mrs Hughes and Dr Garrick justified his Honour in concluding that there was an exacerbation or aggravation of the underlying fibromyalgia as a consequence of the work done by Mrs Hughes for the Police Service. In order, however, to justify a continuing award and an award of a lump sum payment, there had to be evidence of a permanent impairment caused by the work itself. In other words Mrs Hughes needed to establish that her work with the Police Service had the effect of permanently worsening her underlying condition. Mrs Hughes could only speak of the effect of the work upon her during the course of the employment and of the symptoms she suffered afterwards, particularly during the nine months she was off work. But she, being a lay person, could not herself determine whether the exacerbation or aggravation of her condition brought about by the employment had a permanent or indefinite effect on her condition. The question was whether the effect of the exacerbation or aggravation was spent or was permanent in its effect. That is the matter which does not appear to have been addressed in the evidence. The complicating factor is the fibromyalgia which is not work related. There is a real question whether it is has supervened to cause the entirety of Mrs Hughes' continuing problems or whether, independently of the fibromyalgia, the aggravation of the pre-existing condition caused by the employment continued to operate independently of the effect of the fibromyalgia. That is the question which Dr Garrick has not, in my opinion, addressed. There is no indication that he turned his mind to it. Accordingly, my conclusion is that the evidence did not permit his Honour to find a permanent impairment as a consequence of exacerbation or aggravation of the underlying condition from which Mrs Hughes suffered and which was not itself work related. I would thus uphold the fourth submission. My conclusion in this respect forecloses the outcome of the fifth and sixth submissions. They must, in my opinion, be upheld. A claim under s66 cannot succeed unless the injury, even though it be in the form of an exacerbation or an aggravation, is permanent. It is not established that the injury relied on here is of that character. There was, in my opinion, no evidence which would have justified such a finding. S67 has no operation unless a worker has suffered a loss referred to in the Table appended to Division 4 of Pt3 of the Act. It follows that neither the claim for permanent injury made pursuant to s66 nor the claim for pain and suffering made pursuant to s67 can succeed. That leaves the cross-appeal. In the view I take of the matter, the cross-appeal does not arise for determination. The ground of it is that his Honour's findings as regards Mrs Hughes' entitlement under s66 as against the RSL Club failed to URJ NEW SOUTH WALES POLICE SERVICE v HUGHES (Sheppard AJA) 21 exceed the thresholds set out in s67(2). Accordingly, compensation should not have been awarded against the RSL Club under that section. The cross-appeal is supported by counsel for the appellant but the appellant has not, I think, in terms relied on this matter as a separate ground of appeal. My conclusion is that the appeal should be allowed insofar as regards grounds 4, 5 and 6 are concerned. In my opinion the cross-appeal does not arise for consideration. The other members of the Court are of a different opinion in relation to ground 4 and thus have expressed their views in relation to the fifth and sixth grounds of appeal and the cross-appeal. Anything I said about those matters would be obiter. There is agreement between the other members of the Court as to ground 5 but disagreement in relation to ground 6. The other members of the Court consider that ground 5 should be upheld to the extent indicated in their respective reasons. In passing, I indicate that I respectfully share their view in this regard. Cole JA is of opinion that ground 6 should be upheld; Beazley JA is of a different opinion. I would prefer not to express a view on ground 6 which I regard as raising quite a difficult matter. In the circumstances I do not perceive the usefulness of my engaging in such an exercise. The orders of the Court will involve the rejection of grounds 1, 2, 3 and 4, and the upholding of grounds 5 and 6, ground 5 because that is the joint view of the other members of the Court and ground 6 because that is the view of Cole JA and myself, albeit for different reasons. It remains to mention another matter. Counsel for Mrs Hughes and the RSL Club were stopped by the Court when they came to deal with ground 4. We had the benefit of their written submissions and, at that stage of the argument, the provisional view was taken by the members of the Court including myself, that ground 4 should be rejected. For the reasons given, I have changed my mind since the matter was reserved. If my view had prevailed, I would have felt obliged to give counsel for Mrs Hughes an opportunity of making such further submissions in writing as he thought appropriate. Since my view will not prevail, there seems no point in pursuing that exercise. 1. Appeal and cross-appeal upheld. 2. Award entered by Bishop J on 25 November 1996 be varied by reducing the amount payable by the appellant in respect of the neck injury from $7,626 to $6,863.40 and by deleting from the award the order for payment pursuant to s67 of $12,500. 3. The first respondent should pay the appellant's and the cross-appellant's costs of the appeal but should have, if qualified, a certificate under the Suitor's Fund Act. Counsel for the appellant: P M Hall QC/J Dodd Solicitors for the appellant: Hunt & Hunt Counsel for the first respondent: M F Adams QC/P M Kavanagh Solicitors for the first respondent: Geoffrey Edwards & Co Counsel for the second respondent: C R Hoeben SC Solicitors for the second respondent: Pieterse & Pieterse