Bhavsar v State of NSW (Sydney Local Health District)
[2022] NSWPIC 205
•10 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Bhavsar v State of NSW (Sydney Local Health District) [2022] NSWPIC 205 |
| APPLICANT: | Anand Bhavsar |
| RESPONDENT: | State of NSW (Sydney Local Health District) |
| MEMBER: | Philip Young |
| DATE OF DECISION: | 10 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for section 60(5) of the Workers Compensation Act 1987 (1987 Act) declaration regarding cost of future ankle surgery and general order regarding section 60 of the 1987 Act expenses; applicant finished lunch break, stood up, right leg numb; fell and fractured his ankle; respondent relies on section 9A of the 1987 Act; claim that respondent admitted non-application of section 9A of the 1987 Act through making weekly payments not established as no prejudice; Held- following Clifton applicant’s employment (need to rush back to work) a substantial contributing factor to his injury; declaration and award in favour of the applicant accordingly. |
| DETERMINATIONS MADE: | 1. On 6 May 2020 the applicant in the course of his employment with the respondent suffered injury to his right ankle when he stood up, fell and twisted his right ankle resulting in a fractured right ankle. 2. The claim for past medical and treatment expenses is reasonably necessary as result of the applicant’s injury and the applicant is entitled to a general award for section 60 expenses. 3. The future surgery to the applicant’s right ankle proposed by Dr Kuo in his report and quotation of 19 August 2020 is reasonably necessary medical treatment resulting from the applicant’s injury to his right ankle and a declaration is made pursuant to section 60 (5) of the Workers Compensation Act 1987 in that regard. 4. The respondent is directed to pay pursuant to section 60 the applicant’s reasonable, hospital and incidental expenses the subject of the proposed surgery. |
STATEMENT OF REASONS
BACKGROUND
Anand Bhavsar (the applicant) is a 48-year-old man who was employed by State of NSW -Sydney Local Health District (the respondent) as a hospital assistant/ cleaner. He alleges that on 6 May 2020 he suffered injury to his right ankle in the course of his employment. He claims pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) a general order in relation to section 60 expenses as well as a declaration pursuant to section 60(5) that the respondent is liable to pay the costs of and incidental to right lateral ligament reconstruction recommended by Dr Kuo in a surgery quotation dated 19 August 2020.[1]
[1] Application at page 45.
The respondent’s objection to payment of this claim relies only upon section 9A of the 1987 Act in that the respondent asserts that the applicant’s employment was not a substantial contributing factor to his injury.
ISSUES
The sole issue in this matter is whether the applicant’s employment was a substantial contributing factor to the injury he suffered to his right ankle on 6 May 2020?
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter came for conciliation and arbitration hearing by teleconference on 14 April 2022. On that occasion Mr Adhikary of counsel instructed by Ms Nair, solicitor, appeared for and with the applicant. Mr McMahon of counsel instructed by Mr Krieg, solicitor, appeared for the respondent.
At the outset Mr McMahon indicated that the only dispute in this matter concerned the application of section 9A of the 1987 Act. That being the case, Mr McMahon made the first oral submissions followed by Mr Adhikary.
At the conclusion of submissions, the decision in this matter was reserved.
DOCUMENTS BEFORE THE COMMISSION
The following documents were in evidence before the Personal Injury Commission (the Commission):
(a) Application to Resolve a Dispute (the Application) and attachments lodged 16 February 2022, and
(b) Reply and attachments lodged 8 March 2022 (Reply).
There were no Applications to Admit Late Documents.
ORAL EVIDENCE
No oral evidence was given.
SUBMISSIONS
Both counsel provided oral submissions. A sound recording of these submissions is available to the parties on application to the Commission.
DISCUSSION AND REASONS
The respondent’s submissions
The respondent made the following submissions:
(a) the applicant relies on a statement he provided dated 25 May 2021 in terms of the mechanism of injury, specifically paragraphs 5 to 11.[2] Because of the Covid restrictions the applicant claims that after finishing his lunch in the break room he decided to spend the remainder of his half hour lunch time in a different room. He sat on a soft sofa chair in front of a coffee table with his right foot on the table and his left foot on the ground for about 20 minutes;[3]
(b) the respondent submitted that the applicant’s injury is said to have occurred because he was concerned that he may not complete all of his duties and he had to rush to level two because his lunch break had ended at 12.30 pm and he was already five minutes over this time. The Covid pandemic and “rushing” is not, according to the respondent, relevant in that it is not the applicant’s case that he was rushing;
(c) paragraph 10 of the applicant’s statement outlines a number of events. The applicant stood up from the sofa chair to start walking. He noticed that his right leg was numb. He stepped with his left leg and was unable to balance with his right leg. This caused him to fall over;
(d) at 4.36 pm on 6 May 2020 the applicant consulted Dr Rahmanamlashi.[4] The history given was that the applicant twisted his ankle that morning but there is no recorded history of any fall. The following day the applicant saw
Dr Jamnagarwalla who obtained a history that the applicant was sitting on a chair and when getting up his ankle twisted. Again, there is no reference to any fall;[5](e) there is then on 12 May 2020 an incident report.[6] This describes the incident/ injury as “stood after lunch break and foot was numb, fell and twisted and fractured right ankle”. This is a description which indicates the applicant changed the mechanism of his injury in that the applicant says for the first time he fell;
(f) the uncertainty of the mechanism of injury is compounded by Dr Akhtar’s referral to specialist Dr Kuo[7] where Dr Akhtar simply refers to the applicant’s right ankle being twisted/ sprained at work. Dr Miniter reported in September 2020[8] that the applicant experienced a giving way sensation of his right ankle after he stood up and added that the process of simply standing up should not cause such a fracture. Dr Stephenson in his report of 27 January 2021[9] records a history that the applicant stepped with his left leg, but his right leg was numb, and the applicant fell over, and
(g) the legal question emerges as to the extent of the contribution of employment to the applicant’s injury? In Clifton[10] the applicant had a fit in his employment, fell down and suffered injury to his hip. The applicant was walking to his job. The applicant was successful but in the present case the applicant’s account of twisting his ankle cannot be related to employment except by reference to time. In terms of section 9A (2) of the 1987 Act the applicant’s foot becoming numb could have occurred anywhere, anytime. When one analyses the various steps of the mechanism of injury, none are related to the applicant’s employment and the applicant has not surpassed the hurdle that his employment was a substantial contributing factor to his injury.
[2] Application at pages 1-3.
[3] Applicant’s statement at [7].
[4] Application at page 68.
[5] Application at page 68.
[6] Reply at page 2.
[7] Application at page 48.
[8] Reply at page 5.
[9] Application at page 32.
[10] Department of Corrective Services v Clifton [2006] NSWCCPD 310.
The applicant’s submissions
Mr Adhikary put the applicant’s case on two bases. The first concerned the extent to which the respondent was entitled to challenge section 9A in circumstances where it had already paid 44 weeks of weekly compensation. The second was the substantive issue of section 9A.
As to the first issue, during the weekly payments period the respondent issued a section 78 notice on 16 December 2020 which made no suggestion concerning section 9A notwithstanding that the respondent had in its possession a report from Dr Miniter. In subsequent notices dated 19 March 2021 and 27 August 2021 the respondent raised section 9A and took issue with the applicant’s evidence. These matters were raised well after payments had already been made and it was submitted that the applicant was prejudiced by the respondent seeking to raise section 9A at that later time in circumstances where the applicant had made a report of injury on 6 May 2020. Had the applicant known of this issue earlier, he could have obtained statements from his supervisor as well as from “Jeremy”. The applicant could have also obtained evidence from his general practitioner and because that contemporaneous evidence can now not be obtained, the applicant is in a position of disadvantage.
The applicant relies upon Clifton but in that case in which the applicant succeeded the applicant was simply walking from his meal table to his office when he blacked out and fell. In the present case, it is necessary to look at the employment concerned and this applicant’s employment was as a hospital assistant whose task was to return to his work. As in Clifton, the applicant’s reference to “rushing” was a matter which occurred incidental to his employment. The applicant was in his physical premises at work and what he was doing was incidental to his employment, namely rushing. The applicant needed to suddenly go back to work and in this process and because of this need he twisted his ankle and/ or fell over.
REASONS
Dealing with the first issue raised by Mr Adhikary, although the matters were raised somewhat late, they were raised as long ago as March 2021 and accordingly I take the view that the applicant has had sufficient time to address the prejudice of which he complains. That being the case, in my view the applicant’s first issue cannot succeed.
Applying the approach adopted by Roche DP in Clifton, the relevant indicia in terms of section 9A (2) are as follows:
(a) “The time and place of injury”. In this matter the applicant’s injury occurred during his normal working hours and at the respondent’s premises;
(b) “The nature of the work performed and the particular tasks of that work”. The applicant was employed as hospital assistant/ cleaner. These duties included, at the time Covid 19 started, “extra cleaning duties to perform, in addition to (the applicant’s) regular cleaning work. This included cleaning level two after lunch. In order to complete all (his) work in one day, (the applicant) had to rush and run about”.[11]
Contrary to the respondent’s submission, the applicant’s case does include that he was “rushing” at the time of his injury. That he was rushing is repeated at paragraph [8] of his statement.[12] It is significant in my view that the applicant’s lunch break had finished at 12.30 pm and it was at 12.35 pm that the applicant stood up to return to his duties in circumstances where the journey from the room at level six to level two where he was to complete his duties involved potentially using a lift when because of Covid 19 there was always a line to get into the lift.[13]
Whilst the applicant was not engaged in work activities such as cleaning, he was in my view doing something that was, at the least, incidental to his employment, namely proceeding with haste to the location where he was to perform cleaning duties;
(c) “The duration of the employment”. As was the case in Clifton, this indica is not relevant in this matter;
(d) “The probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment”. The respondent has submitted that the applicant’s right foot could have become numb anywhere or at any time. The applicant in his statement[14] says that when he stood up to start walking he noticed that his right leg was numb, he stepped with his left leg “and was unable to balance with my right leg, which caused me to fall over”. It is, as the respondent submits, the history given to the first two general practitioners on 6 and 7 May 2020 that the applicant twisted his right ankle and it is not until 12 May 2020 that the incident report describes the applicant as having stood up and fell and twisted and fractured his right ankle. Be that as it may, there is nothing necessarily inconsistent between a partial history of an event (twisting ankle) and a more complete history (stood up, fell and twisted and fractured right ankle). The same might be said of the histories given to Dr Miniter in September 2020 (“giving way sensation of his right ankle after he stood up”)[15] and to Dr Stephens (“stepped with left leg but right leg numb. He fell over”).[16]
Accepting as I do that the applicant fell over, as he says in his statement, I infer that the fall was a significant factor in causing his injury;
(e) “The worker’s state of health and the existence of any hereditary factors”. There is no evidence that the applicant’s fracture occurred because of his health in general or because of any genetic predisposition, and
(f) “The worker’s lifestyle and his or her activities outside the workplace”. The applicant’s lifestyle was not relevant to his sustaining injury.
[11] Applicant’s statement at [4] at Application page 1.
[12] Applicant’s statement at [8] at Application page 1.
[13] Applicant’s statement at [8]-[9] at Application page 1.
[14] Applicant’s statement at [10] at Application page 1.
[15] Reply at page 5.
[16] Dr Stephen report on 27 January 2021 at Application page 32.
In my view a factor which substantially contributed to the applicant’s injury was his need to rush from his lunch break in order to attend to his extra cleaning duties. It can in my view be inferred that were the applicant not late for his work and not faced with the prospect of further lateness because of the distance he needed to travel, he would have been in a position to proceed slower and with more care. It is also relevant that the applicant noticed his right leg was numb when he stood up and before he stepped off with his left leg.[17] Were he not so concerned to be late back from his lunch break to ensure that he could complete his extra cleaning duties in my view the applicant would not have proceeded with haste with a numb right leg before perhaps stretching or massaging that leg or taking other steps to ease the numbness. Additionally, there could only be three people in the break room due to Covid restrictions at one time, so it was when others arrived in the break room at 12.10 pm that the applicant chose to move to a different room. The applicant’s presence in that room to that extent was a result of the requirements of his work. In the result, I am satisfied that the applicant has established on the balance of probabilities that his employment (namely an activity incidental to his employment) was a substantial contributing factor to the injury he sustained.
[17] Applicant’s statement at [10] at Application page 1.
FINDINGS AND ORDERS
On 6 May 2020 the applicant in the course of his employment with the respondent suffered injury to his right ankle when he stood up, fell and twisted his right ankle resulting in a fractured right ankle.
The claim for past medical and treatment expenses is reasonably necessary as result of the applicant’s injury and the applicant is entitled to a general award for section 60 expenses.
The future surgery to the applicant’s right ankle proposed by Dr Kuo in his report and quotation of 19 August 2020 is reasonably necessary medical treatment resulting from the applicant’s injury to his right ankle and a declaration is made pursuant to section 60 (5) of the 1987 Act in that regard.
The respondent is directed to pay pursuant to section 60 the applicant’s reasonable, hospital and incidental expenses the subject of the proposed surgery.
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