Abraham v Racing NSW
[2022] NSWPIC 162
•13 April 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Abraham v Racing NSW [2022] NSWPIC 162 |
| APPLICANT: | Jeffery Abraham |
| RESPONDENT: | Racing NSW |
| MEMBER: | Philip Young |
| DATE OF DECISION: | 13 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Section 60 of the Workers Compensation Act 1987 (1987 Act) claim including claim for cost of future left shoulder surgery; applicant specifies injury when horse reared striking left shoulder; applicant claims no prior condition apart from fractured left clavicle 21 years prior; history given by applicant to doctors; Held- incomplete for various reasons including failure to disclose a post injury dislocation, early reference to “recurrent” dislocations; award for applicant for section 60 of the 1987 Act expenses incurred for left shoulder in 2011 but causation of need for surgery not established; award for respondent in respect of section 60(5) declaration of the 1987 Act. |
| DETERMINATIONS MADE: | 1. Award in favour of the respondent in respect of the surgery proposed by Dr Dave in his report of 13 January 2021. 2. General order that the respondent pay the applicant’s section 60 of the Workers Compensation Act 1987 expenses being only those expenses occurring in 2011 directly referable to the applicant’s left shoulder condition. 3. Liberty is granted to the parties to apply in the event of disagreement concerning particular expenses referred to in paragraph 2 above. |
STATEMENT OF REASONS
BACKGROUND
Jeffery Abraham (the applicant) is a 49 year old man who was employed by Racing NSW (the respondent) as a stable hand/ jockey. He alleges that on 9 April 2011 in the course of his employment whilst riding a racehorse the horse reared and he was struck in the left shoulder by the horse’s head.
The applicant makes a claim for past medical expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) and seeks a declaration that the respondent should pay the cost of future left shoulder surgery recommended by Dr Dave in his report of 13 January 2021.
ISSUES
The respondent does not dispute the applicant’s need for surgery to his left shoulder. The only issue is whether this need for surgery results from injury suffered by the applicant on 9 April 2011.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter came for conciliation and arbitration hearing by teleconference on 10 March 2022. On that occasion Mr Carney of counsel instructed by Ms Hunt, solicitor, appeared for and with the applicant. Mr Baker of counsel instructed by Mr Dolan, solicitor, appeared for the respondent. Ms Rai was present from the self insurer.
The matter proceeded to conciliation but regrettably was not capable of resolution. I was satisfied that I used my best endeavours to attempt to bring the parties to an agreement to no avail and accordingly the jurisdiction of the Personal Injury Commission (the Commission) to proceed to arbitration hearing was enlivened.
Oral submissions were made by both counsel and this decision was reserved.
DOCUMENTS BEFORE THE COMMISSION
The following documents were in evidence before the Commission.
(a) Application to Resolve a Dispute (the Application) and attachments lodged 27 December 2021, and
(b) Reply and attachments lodged 10 January 2022.
ORAL EVIDENCE
No oral evidence was given.
SUBMISSIONS
Counsel for both parties made oral submissions which have been sound recorded and are available to the parties on request.
DISCUSSION AND REASONS
The applicant has provided what appears to be a comprehensive statement dated 7 September 2021.[1] In it the applicant confirms that before migrating to Australia in January 2011 the applicant lived in India.[2] He obtained his jockey training license in India in 1990.[3] Therefore, he had about 20 years experience in working with horses before coming to Australia.
[1] Application at page 1-11.
[2] Applicant’s statement at [1]-[2].
[3] Applicant’s statement at [6].
The applicant confirms that in 2000 he suffered a fractured left clavicle during a horse race in India.[4] He wore a cast for around 10 days, had physiotherapy for a few weeks then returned to riding as a champion level jockey.[5]
[4] Applicant’s statement at [8].
[5] Applicant’s statement at [8].
In around 2002 the applicant fractured his right shin and was off work for about a year.[6] He then returned to riding horses with what he says was no pain or restriction.[7]
[6] Applicant’s statement at [9].
[7] Applicant’s statement at [9].
The applicant worked in the United Arab Emirates between 2006 and 2007 and then in London between 2008 and 2010. Upon arriving in Australia in January 2011 he commenced work with the respondent looking after horses generally as well as being a jockey.[8]
[8] Applicant’s statement at [15].
On 9 April 2011 whilst trotting a horse at work the horse reared and its head and neck struck the applicant’s left shoulder. The applicant instantly felt the shoulder come out of its socket and drop down.[9] He was driven to Liverpool Hospital and during the drive felt his shoulder “pop back into its socket”.[10] The applicant saw his general practitioner, was prescribed pain killers and advised to rest.[11] After a week he returned to work on lighter duties.[12]
[9] Applicant’s statement at [17].
[10] Applicant’s statement at [17].
[11] Applicant’s statement at [18].
[12] Applicant’s statement at [18].
On or after 17 April 2011 the applicant’s general practitioner referred him to Dr Dave, orthopaedic surgeon. It would seem that between the date of this referral and the date that Dr Dave saw the applicant the applicant suffered an injury to his right shoulder. This was on 6 May 2011 when the applicant whilst riding a horse dislocated his right shoulder.[13] The applicant was taken to Liverpool Hospital and treated.[14]
[13] Applicant’s statement at [20].
[14] Applicant’s statement at [20].
Pausing there, it is to be observed that whatever injury occurred to the applicant’s left shoulder did not prevent him from riding horses because he was engaged in riding a horse on 6 May 2011 when he injured his right shoulder.
On 18 May 2011 the applicant saw Dr Dave who referred him to MRI scans of both shoulders.[15] These scans revealed that the right shoulder was the most troublesome so on 27 July 2011 Dr Dave performed arthroscopy of the applicant’s right shoulder, for which the insurer paid.[16]
[15] Applicant’s statement at [21].
[16] Applicant’s statement at [23].
In August 2011 the applicant commenced physiotherapy which continued over six months and was, according to the applicant, of assistance.[17] In October 2011 the applicant returned to light duties.[18]
[17] Applicant’s statement at [24].
[18] Applicant’s statement at [24].
On 5 April 2012 as a result of another left shoulder dislocation whilst riding a horse the applicant was admitted to Liverpool Hospital and had his left shoulder manually reset.[19] On 26 June 2012 the applicant saw Dr Dave at which time surgery was discussed in respect of his left shoulder, but not pursued.[20]
[19] Applicant’s statement at [27].
[20] Applicant’s statement at [28].
The applicant suffered a further dislocation of his left shoulder on 20 August 2013, requiring another manipulation.[21] Between 2014 and 2019 the applicant suffered about a dozen further left shoulder dislocations.[22] The most recent seems to have occurred on 15 February 2019, again requiring manipulation at hospital.[23]
[21] Applicant’s statement at [29].
[22] Applicant’s statement at [31].
[23] Applicant’s statement at [31].
Following MRI scan of 11 March 2019 Dr Dave on 13 March 2019 recommended left shoulder reconstruction.[24]
[24] Applicant’s statement at [34].
The self insurer on 14 May 2021 issued a section 78 notice denying the applicant’s claim for surgery proposed by Dr Dave. This notice relies on medical reports of Dr Smith and Dr Breit, both orthopaedic surgeons.[25] Because of clause 44 of the regulations, the respondent has indicated that it relies on Dr Breit, but not Dr Smith.
[25] Applicant’s statement at [40]; Application at page 12.
At paragraph 49 of his statement the applicant says:
“Dr Dave states that he believes my recurrent left shoulder dislocations are entirely related to the subject injury due to the initial instability caused. This is in line with my experience as I have never experienced any dislocation of my left shoulder prior to my fall on 9 April 2011. I worked as horse rider, trainer, and jockey for over a decade before the subject injury…throughout this time I have never experienced any issues, pain or restrictions in my left shoulder.”
Apart from mention by the applicant of a “fall” on 9 April 2011 in this section of the applicant’s statement, there does not appear to be much other evidence that the applicant fell off the horse. Nevertheless, the history given by the applicant to Dr Dave is set out in Dr Dave’s notes.[26] Dr Dave records that the applicant’s history goes back to 2011 in that in his report to general practitioner Dr Gayed of 26 November 2019 he says:
“This gentleman has had multiple dislocation of his left shoulder originally starting in 2011.”
Again, in report dated 28 January 2014 it is clear that Dr Dave attributes the applicant’s left shoulder condition to the incident in April 2011.[27]
[26] Report Dr Dave at Application page 113.
[27] Application at page 141.
Dr Giblin in his report of 18 September 2020[28] also obtained a history of the applicant’s injury in 2011 and that the applicant after his earlier injury in 2000 “didn’t have any problems until the injury of 2011”.[29] Dr Giblin next saw the applicant on 11 October 2021.[30] Dr Giblin added that the major pathology in the applicant’s left shoulder most likely occurred at the time he fractured his clavicle (2000) and that this injury has caused further damage to that pre-existing pathology to the extent that he now has recurrent dislocation/ subluxation.[31] In dealing with Dr Breit’s opinion that Dr Breit could not accept the applicant’s denial of prior dislocations (i.e. before the incident of April 2011). Dr Giblin says:[32]
“I have broached this with Mr Abraham and he is quite insistent that he had no problems with his left shoulder following his fractured clavicle up until the point of the injury of 2011.”
[28] Application at page 24.
[29] Application at page 26.
[30] Application at page 27.
[31] Application at page 28.
[32] Application at page 29.
Some important aspects of the various histories given by the applicant emerge when consideration is given to events described as having occurred on and after 9 April 2011. First, in his statement the applicant says of the trip to Liverpool Hospital on 9 April 2011 when his shoulder popped back into its socket:
“As my shoulder was back in place, I told my boss that we no longer needed to attend hospital. Even though I was still in pain, I knew that there was little that could be done for me at hospital, and I would be waiting for a long time before being seen by a doctor.”[33]
[33] Applicant’s statement at [17]; Application at page 3.
Bearing in mind that the applicant migrated to Australia no more than three months previously and had spent about 20 years working riding horses overseas, it is remarkable that the applicant would have such insight into what would occur at hospital, how long he would have to wait in an Australian hospital and be confident that nothing further could be medically done for him. There is of course no direct evidence that the applicant had experienced any prior dislocation of either his left or right shoulders. The applicant’s knowledge of what could, or could not, be done for him at hospital, however, provides in my view some support for the view that by 9 April 2011 the applicant already had some familiarity with events of this nature. It would, in my view, be most unusual for a person with no prior familiarity or expertise in the medical consequences of a dislocation to not seek medical assistance if pain persisted, notwithstanding that the shoulder had “popped back into its socket”.
Were that the only piece of evidence, it might be insufficient to support that view. But other evidence does exist.
On 9 April 2011 the applicant says that he saw Dr Yit, then took a week off work before returning to selected duties. Regrettably, the consultation records from Dr Yit commence on 17 April 2011 so the precise history given to Dr Yit on 9 April 2011 is not known. However, the consultation note of Dr Yit on 17 April 2011,[34] just eight days afterwards, refers to “recurrent dislocation” thereby suggesting, in my view, a dislocation or dislocations of the applicant’s left shoulder prior to 17 April 2011, quite apart from the one which occurred on 9 April 2011.
[34] Application at page 166.
Third, the reference to “recurrent dislocation” is unlikely to be an inadvertent one-off error by the general practitioner because it appears also in the referral letter written by Dr Yit to
Dr Dave dated 19 April 2011[35] and also in the handwritten consultation note of Dr Yit of 17 April 2011.[36] Curiously, although Dr Dave had been told about “recurrent dislocation” he does not enquire into this position, instead attributing the genesis of the applicant’s left shoulder dislocation only to the incident of 9 April 2011.[35] Application at page 173.
[36] Application at page 188.
Four, the applicant in his statement in describing the incident of 6 May 2011 when he dislocated his right shoulder says:[37]
“I knew that I had dislocated my right shoulder as I could feel the same sensation that I had during my previous fall.”
It is questionable whether the applicant had a “fall” in the 9 April 2011 incident of injury. The only “fall” to which the applicant refers in his statement prior to 9 April 2011 is the fall in 2000 when the applicant fractured his left clavicle. There is no suggestion by the applicant that he suffered any shoulder dislocation in 2000 and there being no fall on 9 April 2011 this begs the question as to which “fall” the applicant is referring.
[37] Applicant’s statement at [20].
Five, the applicant in his statement refers to the next episode of the dislocation of his left shoulder as occurring on 5 April 2012 and the clinical records of Liverpool Hospital[38] confirm this attendance. The applicant in his statement gives no information at all concerning what happened to his left shoulder, if anything, between November 2011 and 5 April 2012.[39] The Liverpool Hospital notes, however, record an attendance because of left shoulder dislocation on 28 March 2012 when the applicant slipped on some stairs.[40] These same notes[41] refer to “several left shoulder dislocations in the past” yet the applicant’s statement refers to only the one prior left shoulder dislocation, this being the one the subject to these proceedings on 9 April 2011. The “several…past” left shoulder dislocations are unexplained.
[38] Application at page 253.
[39] Applicant’s statement at [26]-[27].
[40] Application at page 428.
[41] Application at page 426.
Six, Dr Giblin in his first report of 28 September 2020 had no history at all of the applicant’s left shoulder dislocation when he slipped on stairs on 28 March 2012. His opinion is therefore deficient, as are all of the medical opinions, because they had insufficient information concerning recurrent dislocations and even subsequent dislocations. This is important in my view because the evidence suggests the applicant was able to return to horse riding work 10 days after 9 April 2011 and was in fact riding horses in races by 6 May 2011 when he dislocated his right shoulder.
Seven, the large number of dislocations experienced by the applicant over the years are described by the applicant to have occurred between 2014 and 2019, being about a dozen further left shoulder dislocations.[42] Yet all of these subsequent dislocations occur after 28 March 2012 when the applicant attended Liverpool Hospital with a dislocation, having slipped on stairs.
[42] Applicant’s statement at [31].
Finally, reference must be made to the MRI scan of the applicant’s shoulders which occurred on 25 May 2011.[43] Both shoulders were scanned. The finding of the right shoulder included “concavity involving the postero-superior aspect of the proximal humeral epiphysis, consistent with a Hill-Sachs injury”. The scan of the left shoulder included findings of “there is cortical irregularity involving the proximal humeral epiphysis postero-superiorly likely due to an old Hill-Sachs injury”.
Dr Giblin whilst noting an old tear of the interior inferior labrum and an associated Hill-Sachs lesion does not comment on the significance of the old Hill-Sachs injury identified by the left shoulder MRI scan in terms of the question of left shoulder dislocation on 9 April 2011. Additionally, in his second report of 11 October 2021 Dr Giblin obtains no history of the applicant falling on 9 April 2011 and changes his opinion from dislocation of the left shoulder to a subluxation/ perching injury. This was because the MRI scan of the left shoulder (unlike the right shoulder) did not at that stage exhibit any significant oedema which would have been present if the left shoulder had been dislocated.
[43] Application at page 33.
Having regard to the foregoing reasons, whilst I am satisfied that the applicant did suffer an injury to his left shoulder on 9 April 2011, I do not accept this was the only left shoulder injury experienced by the applicant. In particular, the reference “recurrent dislocation” and “fall” as well as the above reasons lead me to the view that there is insufficient evidence to support a conclusion that the surgery proposed by Dr Dave is reasonably necessary medical treatment resulting from injury on 9 April 2011.
FINDINGS AND ORDERS
The appropriate I believe are as follows:
(a) award in favour of the respondent in respect of the surgery proposed by Dr Dave in his report of 13 January 2021;
(b) general order that the respondent pay the applicant’s section 60 (1987 Act) expenses being only those expenses occurring in 2011 directly referable to the applicant’s left shoulder condition, and
(c) liberty is granted to the parties to apply in the event of disagreement concerning particular expenses referred to in (b) above.
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