MEWBURN v COWRA SHIRE COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, SHELLER JA and FITZGERALD AJA 15 September 1998, 22 October 1998 [1998] NSWCA 140 WORKER'S compensation — conclusions arrived at by trial judge open to him on the evidence — no misapplication or misunderstanding of evidence. Mason P I agree with Fitzgerald AJA. Sheller JA I agree with Fitzgerald AJA Fitzgerald AJA The appellant, who was born on 15 December 1946, was employed by the respondent from 1973 to 19 February 1988. During the course of his employment, he suffered three injuries. In 1980, he fell from the step of a large roller and landed on the ground on his back. He returned to work and his normal duties after one week. On 21 April 1983, he fell from the back of a truck and injured his right shoulder and back. After six months off work, he returned to his normal duties. During the period when he was off work, he first consulted Dr Mutton, an orthopaedic surgeon, on 14 September 1983. On 28 July 1987, a scraper which the appellant was driving "lurched sideways" into a ditch, and the appellant was thrown against the side of the cabin and suffered injury to his right shoulder and back. After he was off work for two months, he returned to light duties. He ceased work for the respondent in February 1988, complaining that he couldn't continue the light work available to him, namely holding a "stop-go" sign in connection with road work. The appellant was paid compensation until 20 June 1988. Meanwhile, on 6 April 1988, Dr Mutton had fitted the appellant with a lumbosacral support. Whether or not the appellant's basic problem had then been identified, he had a pars interarticularis defect in his 4" lumbar vertebra. In proceeding No CR10079/1988 (renumbered 7527/1989), the appellant sought further compensation, but his application was dismissed by Senior Commissioner Hopkins on 6 July 1990. In rejecting the appellant's claim at that time, Senior Commissioner Hopkins stated that he did not accept the appellant as a truthful witness, and found that the appellant had not "satisfied the onus of proof that he has an ongoing incapacity as a result of [the] injuries [suffered in the employment of the respondent] beyond the date compensation was paid, being 20 June 1998". Doctor Mutton, who had provided a number of reports for the purpose of the appellant's claim which was dismissed by Senior Commissioner Hopkins, was again consulted by the appellant on 12 September 1990. On 23 November 1990, Dr Mutton performed a posterolateral fusion of L4-L5 on the appellant. The pars interarticularis defect in his 4" lumbar veterbra had caused a spondylolisthesis of L4 on LS. Subsequently, the appellant made a further application for compensation, which was dismissed by Moran J on 2 September 1997. 2 UNREPORTED JUDGMENTS This appeal is brought from that decision. The appellant conceded that the matter must proceed on the footing that he was not incapacitated between mid-1988, when his compensation payments ceased, and mid-1990, when his earlier claim was dismissed by Senior Commissioner Hopkins. His case was that, nonetheless, the injuries which Senior Commissioner Hopkins found that he had sustained in the course of his employment by the respondent contributed to the condition which necessitated the operation performed by Dr Mutton on 23 November 1990. It is common ground that, because of the material dates, the appeal is not limited to errors of law or questions concerning the admission or rejection of evidence!, but is a rehearing. The trial judge's reasons for dismissing the appellant's claim can be briefly summarised. His Honour found that the appellant was not "a witness of truth", and rejected his account of the symptoms which he claimed to have experienced leading to his termination of his employment by the respondent and extending up to 23 November 1990, when he was operated on by Dr Mutton. Senior Commissioner Hopkins had similarly rejected the appellant's account of his symptoms during most of that period, but concluding some months earlier: Senior Commissioner Hopkins had delivered his decision on 6 July 1990, and the appellant was not operated on by Dr Mutton until 23 November 1990. The appellant's fabrication or exaggeration of his symptoms undoubtedly hindered rather than helped his cause. Medical reports tendered in support of his application were substantially based on inaccurate information provided by the appellant. According to the trial judge, the medical witnesses "relied on the [appellant] to support his claim" did so only "on the basis that he has a continuity of symptoms", and his Honour did not "accept the [appellant's] evidence that he had a continuity of symptoms... from May 1998 to 23 November 1990. It is necessary to quote only three further passages from the trial judge's judgment. His Honour said: "Counsel for the [appellant] in his address submitted there was some support for the [appellant's] case from the evidence of Dr J Harrison who was called by the respondent... His opinion was based on a number of assumptions including a continuity of symptoms." Later, his Honour adopted a submission which had earlier been made by counsel for the respondent to Senior Commissioner to the effect that "... any aggravation caused by his work with the respondent must have ceased by [May 1988], and any depreciation in the [appellant's] condition has been caused by either the natural progression of that condition or perhaps the type of activities shown in the video". The video referred to formed part of the evidence before both Senior Commissioner Hopkins and Moran J. It had been taken in May 1988, and, to quote from the decision of Senior Commissioner Hopkins, "... showed the [appellant] carrying sacks of material emptying them into a hopper, climbing into and out of the silo, climbing on top of the silo, removing panels, hitting the silo with his right fist, driving a tractor, and bending, stooping, reaching, stretching and walking... without any difficulty." The inconsistency between the appellant's description of his symptoms and what was disclosed by the video played a significant part in the rejection of the' appellant "as a witness of truth" by both Senior Commissioner Hopkins and Moran J. 1. Compensation Court Act, 1984, subs32(1). URJ MEWBURN v COWRA SHIRE COUNCIL (Fitzgerald AJA) 3 Finally, his Honour's stated: For the above reasons I am not satisfied on the balance of probabilities: (a) that the [appellant] has been incapacitated for work since 7 July 1990 as a result of the injuries referred to in the Application for Determination. (b) That the medical and hospital treatment which the [appellant] has had since 7 July 1990 was reasonably necessary as a result of the injuries referred to in the Application for Determination. (c) That the impairment and losses claimed resulted from the injuries referred to in the Application for Determination. I make an award in favour of the respondent." Although the argument was presented on a more complex basis, in my opinion only two questions arise. The first is whether there was any medical opinion which causally connected the appellant's condition necessitating the operation which Dr Mutton performed on 23 November 1990 to one or more of the injuries which the appellant had sustained in the course of his employment by the respondent (as well as the natural degeneration of his defective vertebrae) which was not dependent upon the doctor's acceptance of the appellant's description of his symptoms. If that question is answered affirmatively, it is necessary to consider whether the trial judge took account of that evidence. His Honour appears to me to have unnecessarily introduced an excessively rigid concept with his references to "continuity of symptoms", and, at the conclusion of oral argument, I inclined to the opinion that he might have misunderstood evidence given by Dr Harrison and, perhaps, a report by Dr Mutton dated 9 September 1994. However, on a further review of the material, I do not think that it could legitimately be held that the overall evidence of either Dr Harrison or Dr Mutton supports the appellant's claim notwithstanding that he had no incapacity between the middle of 1988 and a few months prior to the operation performed on him by Dr Mutton on 23 November 1990, a period during which he was videotaped carrying out the activities summarised by Senior Commissioner Hopkins. The conclusions arrived at by the trial judge were open on the evidence, and I am not persuaded that he misunderstood or misapplied or overlooked evidence in arriving at his conclusions. Accordingly, in my opinion, the appeal should be dismissed, with costs. Appeal dismissed with costs. Counsel for the appellant: R M Jeffries Solicitors for the appellant: White Barnes Counsel for the first respondent: R A Stanton Solicitors for the first respondent: Hunt & Hunt Counsel for the second respondent: G F Little Solicitors for the second respondent: A O Ellison & Co