Court of Appeal (WA)|1999-05-12|Before: Ipp J, Wallwork J, Steytler J

Stojkoski v Kailis and France [1999] WASCA 109 (12 May 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : STOJKOSKI -v- KAILIS AND FRANCE [1999] WASCA 109

Workers' compensation - Workers' compensation generally - Causal relation between injury and incapacity - Whether worker unfit for pre-accident duties as a result of aggravation to pre-existing injury - Error of law in considering medical evidence

Abalos v Australian Postal Commission [1990] HCA 47; (1988) 171 CLR 167

Arsham v Kealley, unreported; Compensation Magistrate's Ct of WA; Application No CM17/94; 15 August 1994

Azzopardi v Tasman UEB Industries Ltd (1995) 4 NSWLR 139

Bednarczyk v Natcorp Investments Limited; FCt SCt of WA; Library No 970363; 23 July 1997

Contra: Whittal-Wood v Drake-Overload, unreported; FCt of SCt of WA; Library No 920279; 13 May 1992

Corker v Corker, unreported; Compensation Magistrates Ct of WA; Appeal No CM101/94; 12 November 1997

Devries v Australian National Railways Commission (1993) 177 CLR 472

Floate v State Energy Commission of WA; unreported; Application No CM76; 13 September 1995

Galea v Galea (1990) 19 NSWLR 263

Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304

Hood v Royal Perth Hospital, unreported; FCt of WA; Library No 970658A; 5 December 1997

Mahov v Air New Zealand Ltd & Ors [1983] UKPC 29; [1984] AC 808

Mayne Nickless Ltd Trading As Wards Express v Mayne, unreported; SCt of WA; Library No 960736S; 19 December 1996

McPhee v S Bennett Ltd (1934) 52 WN(NSW) 8

Metwally v University of Wollongong (1985) 60 ALR 68

Minagall v Ayres [1966] SASR 151 (FC) 156

Minister for Immigration & Ethnic Affiairs v Pochi [1980] FCA 85; (1980) 44 FLR 41

Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475

Multiplex Constructions Pty Ltd v Starguard Pty Ltd & Ors, unreported; Compensation Magistrate's Ct of WA; Application No CM72/94; 20 November 1995

National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296

Nelson v Royal Perth Hospital, unreported; FCt SCt of WA; Library No 980434S; 6 August 1998

Pettitt v Dunkley [1971] 1 NSWLR 376

R v War Pensions Entitlement Tribunal, Ex Parte Batt [1933] HCA 30; (1933) 50 CLR 228

S.S. Hontestroom v S.S. Sagaporack (1927) AC 37

State Government Insurance Commission and Cromack v Darrington, unreported; Application No CM97/94; 25 January 1995

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

Strowse v Hales Precision Metal Products Pty Ltd, unreported; Dist Ct of WA; Library No D970357; 12 November 1997

Sullivan v Department of Transport (1978) 20 ALR 323

Summit Homes v Lucev, unreported; FCt SCt of WA; Library No 9601264; 3 April 1996

Tipper v Orbital Engine Company Pty Ltd, unreported; FCt SCt of WA; Library No 930066A; 15 February 1993

Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303

Vella v BHP Steel, unreported; Compensation Magistrates Ct of WA; Appeal No CM-65/95; 15 November 1995

Watt or Thomas v Thomas [1947] AC 484

Wiechmann v Lovering [1992] 59 SASR 203

1 IPP J: This is an appeal against a decision by the Compensation Magistrate, dismissing an appeal from a decision by a review officer in terms of which the review officer determined that the appellant was not entitled to further weekly payments of compensation from 15 June 1997.

2 The applicant contended before the review officer that his capacity to work had been diminished from 15 June 1997 by reason of an aggravation of a pre-existing injury. The review officer determined that the worker had not demonstrated, on the balance of probabilities, that he was unfit for his pre-accident duties as from that date.

3 In coming to this conclusion, the review officer relied on a report by a general practitioner, Dr Blake, a videotape of the worker mowing his lawn, and on the findings of a neurologist, Mr Silbert. This testimony supported the conclusion arrived at. The review officer also had regard to the progress medical certificates of Dr Same, a general practitioner, whose evidence was put in by the worker. After referring to Dr Blake's report, the video surveillance and Mr Silbert, the review officer said:

"This leaves only the progress medical certificates of Dr Same to support the worker's contention that he was and remains unfit."

The review officer then gave reasons as to why Dr Same's certificate should be, as he put it, severely discounted. The aforegoing constitutes the basis on which the review officer arrived at his decision that the appellant failed to establish that his capacity to work had been diminished from 15 June 1997.

4 The problem with this reasoning on the part of the review officer is that there was indeed other important evidence that supported the appellant's contention that he was unfit for his pre-accident duties. There was the evidence of Prof Mastaglia who had expressed the opinion that an MRI scan, taken after the relevant date, showed evidence of degenerative change in the L4-5 disc and a small annulus tear and left sided disc protrusion. Prof Mastaglia said that these changes could have caused irritation or compression of the L5 nerve root and lower limb pain and sensory symptoms in the left foot. Further, Dr Edwards, who was the treating general practitioner, had provided a report in which he expressed the opinion that the applicant's capacity to work, in effect, had been diminished.

5 It is true that the principal symptoms of which the appellant complained was pain to the right and not the left limb. Nevertheless, he did also complain of symptoms in the left limb. Thus, Prof Mastaglia's testimony is capable of supporting the appellant's contention. There is no answer to the proposition that Dr Edwards' opinion supported the appellant's case. Accordingly, the review officer was incorrect in stating that, after considering the evidence to which he had expressly referred, only the certificates of Dr Same were left to support the appellant's contention.

6 The aforegoing gives rise to one of two possible inferences. The first is that the review officer did not take into account at all, and ignored, the testimony of Prof Mastaglia and Dr Edwards. The second is that the review officer did consider the evidence of these two medical practitioners but misunderstood its import. Whatever inference is to be drawn, it is apparent that the review officer made an error of law that had a fundamental effect on the reliability of his findings.

7 It is not possible for us, in my opinion, to come to any view, on all of the evidence, as to which body of evidence should be preferred. That is because any final decision on this issue depends on the credibility of the appellant who did not give evidence before us. As this Court has not seen or heard his testimony it is not able to make any reliable finding as to which of the varying opinions expressed by the medical practitioners is to be preferred. The appellant's credibility is relevant to this issue as some of the medical opinions are dependant on the truth of what the doctors in question were told.

8 In the circumstances, I would uphold the appeal, set aside the decision of the Compensation Magistrate, set aside the finding of the review officer and remit the matter to the review officer for decision according to law.

9 WALLWORK J: Yes. I agree with the reasons for judgment of the presiding Judge and I would only like to add, for my part, that the two reports from Dr Edwards, at page 68 and 70 of the appeal papers, reveal that he was the treating doctor in May 1997 and June 1997 and he gave the certificate for four days after 14 June 1997 and his evidence was of great importance to the applicant, whether it was accepted or not.

10 Of course Prof Mastaglia, with his well known qualifications and expertise, was also a most important doctor and the fact that the evidence of neither of those persons was referred to is very significant, in my view, and that is why I agree with the presiding Judge that this appeal should be allowed.

11 STEYTLER J: I agree with what has been said by each of Ipp and Wallwork JJ and I agree with the conclusions which each has ultimately arrived at.

Stojkoski v Kailis and France [1999] WASCA 109

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Stojkoski v Kailis and France [1999] WASCA 109 (12 May 1999)

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