despite which, in that part of the form of Application which required
information as to all other employers by whom the Appellant was employed
during the 12 months prior to the date of incapacity in any employment to the
nature of which the disease was due, the words "not applicable" were inserted.
Insofar as the Application dealt with the Second Respondent, the Application
asserted: "From 14 to 17 December 1986 the Applicant performed shearing work
on the Respondent's property at Bullamalita as a result of which he strained his
back". that part of the form of Application which dealt with former employers
also having the words "not applicable" inserted.
Although it is not clear when, and at whose behest, it was done, it would
appear that, at some time, one or other of the First and Second Respondents
joined as Third Parties to the Application all those by whom, in the 12 months
preceding January 1987, the Appellant had been employed as a shearer.
However, to return to the narrative: the myelogram which was carried out in
May 1989 showed some narrowing just above the laminectomy which had been
carried out in November 1987. However, because the Appellant was reluctant to
undergo further surgery, Dr Bleasel attempted to treat his condition
conservatively until it became inevitable that an operation should be carried out.
That stage appears to have been reached in August 1989, at which time the
Appellant was suffering severe pain, the cause of which was diagnosed by Dr
Bleasel as L4 nerve root compression. Accordingly, the Appellant ill August 1989
was admitted to hospital where it was necessary to carry out a wide laminectomy
removing the laminae and spinous process of L3, and, when the fourth lumbar
8 UNREPORTED JUDGMENTS
nerve root was exposed, it was found to be very tightly jammed into the lateral
recess and was decompressed well out laterally.
Despite the fact that the operation carried out ill August 1989 appears to have
eased the Appellant's condition a little, he continued to be subject to severe pain
when the Application first came on for hearing before O' Toole CCJ in November
1990. By that time, so it would seem, the Appellant had been examined by a
number of medical practitioners who had been retained on behalf of the insurers
for the First and Second Respondents.
Despite the number of employers who had been joined as Third Parties, it
would appear that arrangements were made between one, or other, or both, of the
Respondents and the various Third Parties to the effect that that Respondent, or
the Respondents, would protect the interests of the various Third Parties on any
hearing.
Accordingly, when the matter came on for hearing before O'Toole CCJ, only
the Appellant and the two Respondents were represented on the hearing.
Although the transcript record of proceedings does not deal with the matter in
detail, it seems clear enough that, on the first hearing day, counsel for the
Appellant sought to amend so much of the particulars contained in the
Appellant's Application as related to what might be called "disease injury" by
deleting the words "not applicable", the intention being that the Appellant's
application would be conducted upon the basis, not that the Appellant had
suffered a "frank injury" while working at Bullamalita, or alternatively at Lumley
Park, but that the condition from which the Appellant was suffering, and which
had caused his disability, was what might be called "an industrial disease"
incidental to the work of a shearer, which was the work which the Appellant had
been carrying out for the Respondents in December 1986 and January 1987
respectively.
The only witness who gave evidence on the first hearing day was the Appellant
whose cross-examination, as I read it, was directed primarily to seeking to
establish two facts, they being, first, that any disability from which the Appellant
suffered was due, at least in part, to an arthritic condition of the knees, and,
second, that the Appellant's evidence as to his past earnings, upon which
evidence the Appellant's wage schedule (Exhibit "E" Appeal Book at 234) was
based was inaccurate and ought not to be accepted. At the conclusion of the
Appellant's evidence the application was adjourned.
The hearing of the application was resumed on 30 April 1991, on which day
the only witness to give evidence as Dr Bleasel. Dr Bleasel's evidence in chief
was brief, involving little more than his identifying, and confirming the contents
of, the two reports (Exhibit "C'" Appeal Book 126 et seq) which he had provided
to the Appellant's solicitors in July 1989 and November 1990. Nor was Dr
Bleasel's cross-examination particularly extensive - the whole of Dr Bleasel's
evidence only occupied 35 minutes - as I read it, the burden of the
cross-examination was directed to suggesting, first, that the Appellant's spinal
canal stenosis was a constitutional condition, and, second, that the nerve root
compression from which the Appellant suffered was unconnected with the spinal
canal stenosis, each of which suggestions was rejected by Dr Bleasel who
asserted first, that spinal canal stenosis was due mostly to wear and tear, and,
second, that there was a complete connection between the Appellant's spinal
canal stenosis and the nerve root compression, the former being a cause of the
latter. At no stage, as I read his cross-examination, did Dr Bleasel retreat from the
URJ CRISP v CHAPMAN (Powell JA) 9
opinion expressed by him in the report made in July 1989 that the work which
the Appellant had done as a shearer was undoubtedly the cause of the
deterioration in his spine.
At the conclusion of Dr Bleasel's evidence, the hearing was, once more,
adjourned not being resumed until 8th August 1991.
When the hearing resumed on 8th August 1991 Dr Dan was called to give
evidence.
On this occasion, Dr Dan was not restricted in his evidence in chief to the
report (Exhibit "D" Appeal Book 131 et seq) which he had provided to the
Appellant's solicitors. Rather, his attention was directed to the two reports which
Dr Bleasel had provided to the Appellant's solicitors and the evidence which the
Appellant had given in chief, following which he was asked whether he agreed
with Dr Bleasel's diagnosis of the Appellant's condition as spinal canal stenosis.
Having expressed his agreement with that diagnosis, Dr Dan then gave the
following further evidence: