OSTOJIC v SCHAFFER CORPORATION LTD AND ANOR [1995] NSWCA 344

OSTOJIC vy SCHAFFER CORPORATION LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and MEAGHER JJA 10 July 1995, 1 September 1995.

[1995] NSWCA 344

Applicant claiming total incapacity — Whether finding of partial incapacity correct — Whether consideration given to relevant evidence Appeal from Compensation Court — Applicant claiming total incapacity — Held: partial incapacity — Whether finding correct — Whether consideration given to relevant evidence.

Mahoney JA On 18 May 1994 the applicant Mr Branko Ostojic ("the applicant") filed, by leave a Second Application for Determination of compensation in the Compensation Court of New South Wales. On 19 August 1994, after a hearing of his claim, her Honour O'Toole J made an award for the applicant in the sum of $150 per week for the period between 10 March and 31 July 1994. Otherwise she refused his application. The applicant has appealed to this Court against her Honour's judgment.

The applicant was, at the relevant times, an employee first of Schaffer Corporation Limited ("Schaffer") and then of Boral Besser Masonry Limited ("Boral"). Boral had "taken over" Schaffer on or about 1 July 1988 and the applicant was thereafter employed by Boral. Nothing has been said to turn upon this change.

In the present application the applicant claimed that he suffered injury on three occasions: on 19 October 1984 when lifting a drum; on 23 September 1985 when pushing a trolley. and on 29 March 1988 when pushing a trolley.

The only oral evidence presented at the trial was that of the applicant. The documentary evidence included some thirty or more medical reports, a number of certificates, and various other documents. There were ten or more medical practitioners whose views were in evidence, in one form or another, before the judge. It was upon the basis of such evidence that the claim came to be determined. The trial judge found that on or about 19 October 1984, on or about 27 October 1984, and between June 1991 and 18 August 1993, the applicant suffered work related injuries. As far as was relevant, she found him to have been partially incapacitated for the periods: 10 March 1994 - 31 July 1994; and June 1991 - 18 August 1993. In her discretion she made an award in the sum of $150 per week for the period between 10 March 1994 and 31 July 1994.

Her Honour made these awards upon the basis that she had concluded "that the applicant is an unreliable witness and, contrary to the applicant's assertions, that he probably has not suffered chronic back pain or other symptoms". She concluded that it was "probable" that he had suffered an injury on 19 October 1984 and was "incapacitated for" a "short period"; and that on or about 27 October 1986 he suffered a right sacroiliac joint strain or right paravertebral muscular injury occasioning symptoms different from the generalised low back pain of October 1984. Periodically after October 1986 the nature and conditions of his employment "highlighted or caused those symptoms". Her Honour did not accept that the applicant had suffered disc lesions or protrusions in 1984 or that he suffered a permanent impairment of his back.

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In the light of these findings, her Honour examined the complaints which he was recorded to have made at relevant times, particularly on "clinical examination". Having regard to the conclusions which she had formed, she refused the substantial part of the relief which he claimed.

Mr Joseph SC, for the applicant, submitted that her Honour's judgment involved error. The "basic underlying current" of his submissions was that her Honour had failed "to give reasons on critical matters of fact". His submission was that she had failed to consider, "at all" or "in a selective and unsatisfactory way", contemporaneous records, evidence tendered by both sides, and the failure of the employer companies to call medical and lay evidence upon the way in which the applicant's suggested back injury had affected his work and caused pain. He submitted in addition that the judgment in its terms contained errors and provided unsatisfactory support for the orders made.

It is not correct to contend that her Honour did not have regard to the contemporary medical reports. A number of these were referred to in terms in her judgment. Her Honour referred, in terms, to Dr Fuller, Dr Lloyd Hughes, Dr Kaushik, Dr Hodoba, Dr Eggins, Dr Bleasel and Dr Millons. Her Honour was faced with a large number of written reports; there was no opportunity to test the meaning or accuracy of any of them by asking of the doctors concerned the questions which plainly would arise from a comparison of them. Some reports were inconsistent with others and what was recorded in some reports, by way of complaints, observations, clinical examinations and the like, were not consistent with what was recorded in others. As the judge recorded, some doctors "received complaints inconsistent with, exceeding, or unsupported by clinical signs". The clinical records of Dr Kaushik, a practitioner consulted by the applicant for some time, were "difficult to decipher". The records of Dr Hodoba were "even more difficult to decipher". Notwithstanding these obvious difficulties, the medical issues were left to be dealt with upon the basis of such evidence.

Her Honour, in her judgment, indicated some of the difficulties that arose from the state of the evidence. As I have said, she indicated that complaints were inconsistent with signs. Records did not disclose what might have been expected had the complaints made in evidence been acurate. The hospital records of 19 October 1984, standing alone, suggested injury or consequences less than the applicant had contended. Complanints were made as to matters which might suggest that such incapacity as existed derived from them rather than or as well as from work related injuries. The applicant suffered from "well documented constitutional or degenerative changes" of the thoracic and lumbar spine and there were differences, which the judge noted, in relation to the recorded observations as to the "wasting" of the applicant's right thigh and the significance of it.

It is, in my opinion, to do less than justice to the judge's judgment to suggest that these matters were not or not satisfactorily dealt with.

It was submitted, in effect, that the judgment should be put aside because the findings were inconsistent internally. To take one example, it was suggested that her Honour's finding of an injury on or about 27 October 1986 related to an injury not in question. The injury was, apparently, taken by her Honour from her perusal of the notes of Dr Hodoba, which show that on that date a complaint of right hip pain was recorded. The inference was, apparently, that there was an aggravation of the existing conditions sufficient to warrant a finding of "injury".

URJ OSTOJIC v SCHAFFER CORPORATION LTD (Mahoney JA) 3

Counsel contended that the judge's conclusions were unsatisfactory because of, as it was said, the failure of the respondents to tender medical and lay evidence of the kind referred to and the judge's "failure to consider" that failure. It is, of course, proper to have regard to evidence which might have been tendered and was not. The fact that a judge does not refer, amongst the other things referred to by her, to the suggestion of such a failure does not necessarily warrant the inference that she failed to consider whether the omission to tender such evidence was significant and, if it was, the significance of it. As I have said, the case was conducted upon the basis that, on matters vital to the applicant's case, the issue was to be determined by comparing inconsistent written medical material. It may have been thought that further medical material of that kind would not greatly have assisted determination of whether what the applicant claimed was accurate or should be accepted.

It is also, I think, appropriate to take into account the way in which the proceeding before the Compensation Court was conducted. I am_ not unappreciative of the need and perhaps the duty to determine disputes in that Court quickly and without reference to legal technicality. The burden of work of the Court from time to time may require cases to be determined upon less evidence than ordinarily could or should be called. But, if such be an explanation for the state of evidence, the complaint that the significance of evidence or the absence of evidence were not examined and passed upon in terms is apt to receive less weight than otherwise it would have. I do not think that, in the context of this case, this submission weighs heavily in the applicant's favour.

However, the determination of the appeal does not turn upon matters of this kind: at least, I think, it should not do so. It is proper that this Court, as on a rehearing, consider the evidence that was before the trial judge, taking due account of her findings as to the credibility of the applicant's evidence and the effect to be given to them: see, eg, Abalos v Australian Postal Commission (1990) 171 CLR 167.

There was evidence in the medical reports suggesting that the applicant had, prior to the injuries here in question, relevant degenerative problems apt to cause him difficulty and that the condition of the applicant was different from that claimed by him. It is not necessary for me to detail the varying views which have been expressed. Dr Bodel saw the applicant as fit to return to "lighter duties activities" notwithstanding that the "major disability in this case" arose from "an internal disruption of the L4/5 disc". His conclusion was that there was a twenty per cent overall impairment of the back of which ten per cent was "due to constitutional factors associated with degenerative change" and that there was no clinical evidence that any of the injuries had caused "any significant additional structural damage or permanent aggravation of the underlying abnormal situation".

Dr Millons thought him, on 7 March 1994, "quite fit to continue with his current duties which are not greatly demanding on him', but accepted that there "may well be exacerbation of symptoms from time to time with minor discretion either at work or at home...". He felt "a low level of continuing intermittent symptoms" was likely. He saw the back impairment of the order of fifteen per cent.

Dr Scarf, in a report of 19 February 1991, opined that the applicant "suffered a musculo-ligamentous strain" and thought it not likely that he suffered "disc disruption". He thought that there was no impaired function of the lumbar spinal

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mechanism or the vertebral column as such and he detailed the history, signs and symptoms that were before him at the time.

Dr Eggins, in a long report of 7 April 1993, accepted that there had been a back injury in 1984 and possible exacerbations in 1985 and 1988 as the result of "nerve root pressure". He was of the opinion that the applicant "has recovered from these injuries but is having great difficulty discarding the symptoms". He was unable to find "any symptoms or signs to confirm the presence of a work related injury".

Dr Fuller gave several reports. In his report of 9 June 1994 he recorded that it was "difficult to say how much of Mr Ostojic's employment after mid-1991 is responsible for his present back disability. I think the percentage of Mr Ostojic's work related symptoms and disabilities which relate to work after mid-1991 would not be great and I doubt if the percentage would exceed more than 10-20 per cent". He thought there was a "strong possibility that work carried out after mid-1991 did cause some further aggravation and acceleration of degenerative changes" and that most of the problem related to the injury of October 1984.

I have referred to these reports, those primarily favouring the case of the respondents, to indicate that there was in the evidence a substantial basis for the views which her Honour formed. It is to be accepted that other medical reports, to some at least of which the judge referred, provided a basis for a contrary conclusion. I have considered whether, within the established principles, the judge's finding as to the applicant's credit as a witness can or should be put aside. I have considered that finding by reference to, inter alia, the medical evidence. I see no basis for doing so.

I have considered the effect to be given to the medical evidence in the light of that finding and otherwise. I think the judge's conclusions were correct.

The conclusion formed by the trial judge was not that the applicant suffered no incapacity. Her finding was that there was partial incapacity. That was sufficient to dispose of the issues raised at the trial. The applicant's case was that his incapacity was total and that the pains in his back and leg were such that he was unable to work. Her Honour was in my opinion correct in rejecting such a case. It is to be inferred that the reason why the applicant did not, after the period referred to by the judge, employ his partial capacity to derive income lay, not in incapacity within the legislation, but in reasons not sounding in workers compensation. It was by reference to those matters and issues that the proceeding was fought before the judge at the trial. The findings that I have made are sufficient to deal with those issues.

It is proper to note that, in coming to this conclusion, it is not necessary to determine whether what the applicant has done arises from the deliberate misstatement of his condition from emotional factors, or from other causes. It is not necessary to find, and I do not find, that his attitude is the result merely of deliberate misstatement by him. It is sufficient that, as was the case at the trial, Iam not convinced that the case made out for continuing weekly compensation has been established.

In my opinion the appeal should be dismissed with costs.

Clarke JA I agree with the orders and reasons of Mahoney JA. Meagher JA I agree with Mahoney JA.

Appeal dismissed with costs.

COUNSEL:

URJ OSTOJIC v SCHAFFER CORPORATION LTD (Meagher JA)

Appellant: MJ JOSEPH SC/JP SEWELL

Respondent (1): JD HISLOP QC/WP KEARNS

Respondent (2): PL PERRY

SOLICITORS:

Appellant: VICKOVICH AND ASSOCIATES

10 Respondent (1): AO ELLISON AND CO Respondent (2): PIETERSE AND PIETERSE