Blackmore v G&A Blackmore Pty Ltd
[2024] NSWPIC 190
•16 April 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Blackmore v G&A Blackmore Pty Ltd [2024] NSWPIC 190 |
| APPLICANT: | Gary Keith Blackmore |
| RESPONDENT: | G&A Blackmore Pty Ltd |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 16 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; section 4(b)(ii); injury to the left hip disputed; costs of hip replacement surgery disputed; admissibility of documents; application of Way v Newcastle City Council, Gow v Patrick Stevedores No 2 Pty Limited, and Harman v Secretary of State for the Home Department; Held – additional documents not admissible as factually and legally irrelevant to the current proceedings; the applicant suffered an aggravation, acceleration, exacerbation or deterioration of a disease process in the left hip within the meaning of section 4(b)(ii) arising out of or in the course of his employment with the respondent deemed to have occurred on 20 March 2023; the hip replacement surgery was/is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent within the meaning of section 60. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered left hip injury within the meaning of s 4(b)(ii) of the Workers Compensation Act 1987 which was the aggravation of a disease in which his employment was the main contributing factor. The deemed date of injury is 20 March 2023. 2. The respondent pay the applicant’s reasonably necessary medical, hospital and related treatment expenses pursuant to s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
On 20 March 2023, Gary Blackmore (the applicant) made a claim for medical expenses associated with a left hip replacement, maintaining the need for treatment arose from the aggravation, acceleration or exacerbation of deterioration of a disease due to the nature of his employment as a cement truck operator between 1980 to 8 July 2015 with G & A Blackmore Pty Ltd (the respondent).
On 5 April 2023, the respondent disputed liability with reference to the Workers Compensation Act 1987 (1987 Act) and the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The respondent disputed injury[1] and as a result considered that treatment expenses were not reasonably necessary.[2] Further, the respondent maintained the claim was not made within the prescribed time frame and there were no grounds that would permit an extension.[3] Proceedings were then filed in the Personal Injury Commission (Commission).
[1] Section 4 of the 1987 Act.
[2] Sections 59 and 60 of the 1987 Act.
[3] Sections 254 and 261 of the 1998 Act.
The matter underwent the usual case management pathway. Following impasse at conciliation the matter proceeded to arbitration. The applicant was represented by Mr Robison of counsel instructed by Mr Staninovksi. The respondent was represented by Mr Doak of counsel instructed by Ms McCoy. The applicant and an insurer representative were also present.
Absent oral evidence, the evidence in this matter was limited to;
(a) Application to Resolve the Dispute (ARD) and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents (AALD) dated 11 December 2023 filed by the applicant and by the respondent on 25 January 2024
At hearing, leave was sought to amend the pleadings to plead a further/alternate date of injury being the date of claim 20 March 2023, opposed by the respondent. The Personal Injury Commission Act 2021 ratifies the Commission is not a jurisdiction of strict pleading. The Commission is to hear and determine matters on the merits and justice of the case, but in granting leave, must ensure that procedural fairness is not compromised and that neither party is taken by surprise.[4] Both parties acknowledge ‘disease’ and the applicant’s case has been pleaded in that manner, albeit somewhat untidily. There is no surprise. For this reason, leave to amend the date of injury is granted.
[4] State Rail Authority of New South Wales v Reodica [2000] NSWCA 37, 20 December 2000.
PRELIMINARY MATTERS
Following the hearing, the respondent requested leave to admit further documents, namely a s 282 notice that was served on it by the applicant the day following the arbitration.[5] The respondent maintains the s 282 notice purports to give particulars of a claim for work injury damages and further its contents were contrary to the argument put by the applicant at hearing with regards to incapacity and date of injury, matters that compel admissibility ‘in the interest of justice’.
[5] 2 February 2024.
Given this, a further teleconference was convened at which time the parties were directed to provide submissions on admissibility. Unfortunately and quite frustratingly, this protracted my decision making timetable, but this is not the platform to lecture either party on case management strategy.
Applicant’s submissions on admissibility
In summary, the applicant maintains the document should not be admitted because:
i) the s 282 notice relates to different proceedings (which may or may not eventuate) and contains particulars relating to a different claim;
ii) a s 282 notice relates to common law proceedings and overall the content of the letter is irrelevant as deemed dates of injury do not arise in common law claims.[6] Further it is just that, a notice. It is not even a claim. It proves nothing, either in common law in which it is sought to be made or in the present claim;
iii) admissibility would be contrary to Procedural Direction PIC 3 – Documents and Late Documents (the Rules) and specifically clause 28 of the procedural direction. It is farcical for the respondent to claim admissibility would be in the ‘interests of justice’. Further the timely resolution of the issue in dispute is not assisted by its tender, because of its legal and factual irrelevance, and
iv) to admit the document would contravene Harman[7] principles which essentially state that a party cannot use material obtained as a result of a mandatory process in collateral litigation, including mandatory steps in the pre litigation phase, such as a s 282 notice. The applicant again emphasised that the document is merely notice of a claim and not the claim itself and so there is really nothing to admit and nor can that document be tendered elsewhere as the common law proceedings have not formally commenced.
[6] Kotevski v Esselte Australia Pty Ltd [2005] NSWCA 126.
[7] Harman v Secretary of State for the Home Department [1983] 1 AC 280.
Respondent’s submissions on admissibility
In reply, the respondent submitted:
i) it acknowledges admissibility is ultimately a matter of discretion however, strong grounds exist for admissibility on account of inconsistent assertions pertaining to the date of injury contained in the notice and those advanced at hearing, (the primary issue that I must determine in the current proceedings) and so the interests of justice compel admissibility;
ii) the applicant’s interpretation of Harman is misconceived, that principle essentially prohibits a party to litigation from making collateral use of documents in proceedings through compulsory court processes such as discovery and there are no such mandatory processes demonstrated in this case, as the applicant has not undertaken the proper pathway, and
iii) it accepts the s 282 notice is of itself, legally irrelevant.
In reply, the applicant submitted:
i) as the s 282 notice is legally irrelevant (as deemed dates of injury do not apply to a common law claim) and also factually irrelevant (as the particulars relate to a different claim) the discretion to refuse to admit the document should be applied on these grounds alone, and
ii) further Harman has been misinterpreted by the respondent as being limited to ‘proceedings’ as opposed to litigation, which has a broader concept than proceedings and include mandatory pre litigation steps prior to commencing proceedings, such as common law proceedings.
Findings on admissibility
Having considered the submissions, the contents of the notice and the Rules, I find that it is not in the interests of justice to admit the document. This is because to do so would effectively allow the respondent to re-open its case by relying on a document that is simply a notice of common law proceedings (and not yet a claim) which effectively relates to a different claim entirely and in which different tests apply. Further, I also find and the respondent accepts that the document is legally irrelevant to the issue that I must determine and so does not assist in my assessment of the matter.
ISSUES FOR DETERMINATION
I will now return to the issues that I was originally required to determine; that is:
i) did the applicant sustain an injury to his left lower extremity in the course of his employment; if so, is such an injury a disease pursuant to s 16 of the 1987 Act and; if so, what is the date of the injury?
ii) Did the applicant make a claim for compensation in respect of the injury to the left lower extremity within the time prescribed by s 261 of the 1998 Act;
iii) Do the claimed expenses fall within the definition of ss 59 and 60 of the 1998 Act?
FINDINGS AND REASONS
In considering the threshold issues of giving notice within the time prescribed by s 261, I will apply the approach preferred by Deputy President Fleming in Way v Newcastle City Council [2004] NSWWCCPD 17; relevantly:
“The better approach to the construction of these provisions is to first determine whether the worker suffered an ‘injury’, pursuant to section 4, and the nature of that injury (section 4(b)), and then to fix the date of injury accordingly. The application of section 261 of the 1998 Act may then be applied to the relevant facts, as found.”
Therefore the first matter to be determined is whether the applicant suffered injury to the left lower extremity in the course of his employment.
Evidence of the applicant
In the statement dated 11 May 2023[8] the applicant states he worked as a truck driver in the concrete industry for 35 years and his duties were mainly to drive; deliver concrete to sites; climb in and out of the truck multiple times a day; climb the inspection ladder at the rear of the agitator to quality control the load and feed concrete placement machines from the truck amongst other tasks. The applicant states that the role was physically demanding and required much standing, bending, twisting, lifting delivery chutes on and off the truck resulting in multiple aches and pains at the end of his shift. He confirms he did not complain to the principal contractor as he was concerned this may impact the amount of work he would be given and stated “my approach therefore was simply to grit and put up with the pain, which has progressively worsened over time”.
[8] Folios 1-5 ARD.
The applicant explains in his statement that he did not at first take the pain seriously and became “accustomed” to it. He retired in 2015 and stated:
“Although I have experienced pain within my thigh/hip throughout the course of my employment, the pain was initially minor, and I was able to push through till the end of my career. However, amongst other factors, my thigh/hip pain was one of the reasons for my retirement in 2015. I did not lodge a claim for workers compensation until 2023, as the pain within my hip was bearable until recently. I also consider myself to be a stoic person and although I would notice pain during work I expected this to be normal for my age in the industry and did not immediately seek medical treatment as I thought it was unnecessary.”
The statement confirms that treatment was largely conservative until the pain became unbearable with ultimately referral to Dr Leong who recommended total hip replacement.
In his supplementary statement dated 11 December 2023, the applicant confirmed it took many years to get a diagnosis, was unaware that there were restrictions for making a claim and once receiving a conclusive diagnosis and being told of the need for hip replacement, explored his rights via the Transport Union resulting in a claim on the insurer, being oblivious until that time about the ability to lodge a claim.[9]
Dr Donald Cawthorne
[9] AALD filed 11 December 2023
Dr Cawthorne, orthopaedic surgeon was qualified by the applicant. He takes a consistent history relevantly (unedited):[10]
[10] Folios 29-34 ARD.
“History of events leading to claim
There was no specific injury responsible for Mr Blackmore’s claim. He states he first developed pain within the left hip and thigh in approximately 1995. It was noted mostly on operating a kerb and gutter machine which required long hours of operating the clutch moving the machine slowly forward as the gutter was laid.
In or around 2012, secondary to increasing hip and thigh pain, Mr Blackmore began seeing an Osteopath, Dr Lia Conti. This was for multiple pains around the body including the leg.
In or around 2021, he saw Dr Conti with severe pain in the left thigh which he noted was worse on standing for long periods and with activity. He first consulted his General Practitioner for this condition on 21/11/2021, Dr Emilija Sokolovska. He underwent an x-ray of the left hip and pelvis which found osteoarthritis of the left hip. He also consulted an Osteopath, Dr Terry Stewart, on a number of occasions to work with massage and stretching, however this did not improve the pain.
He was referred to Orthopaedic Surgeon, Dr Anthony Leong, and started on Panadeine Forte and anti-inflammatories. He did not receive a cortisone injection or formal physiotherapy for the hip.
On 25/10/2022, he underwent an MRI scan and was reviewed on 13/03/2023 by Dr Leong. On reviewing the clinical findings and imaging, a total hip replacement was suggested and Mr Blackmore underwent a total hip replacement on 13/06/2023 at Wollongong Private Hospital. He was an inpatient for approximately 2 nights and did at home rehab for 6 weeks. He states his pain has dramatically improved since this surgery and it is now approximately 2½ months following surgery.
He has not had any issue during the post-operative period and he continues with his at home physiotherapy to improve his outcome. He has no planned appointments with Dr Leong….
Opinion
Mr Blackmore is a 73 year old gentleman who has in the course of his work developed left hip osteoarthritis which was failing conservative measures and required a total hip replacement. He has subsequently undergone a total hip replacement with great improvement of his pain, function and symptoms and is continuing to improve from this in the immediate post-operative period.”
With regards to whether employment was the main contributing factor to the injury, it was reported:
“It is my opinion that based on Mr Blackmore’s account of his duties and high intensity heavy labour load over a prolonged period of time was a substantial contributing factor to the development and worsening of left hip osteoarthritis. There was no specific incident, with a gradual decline in symptoms over time. The onset of significant pain symptoms occurred following retirement, however the degenerative process had, more probably than not, commenced well before this time.”
Dr Cawthorne concluded the opinion by reporting that based on the pre-operative symptoms and radiological findings, a total hip replacement was reasonably necessary.
Radiological investigations
There are a number or radiological investigations including x-rays of the left hip dated 26 November 2021 and 8 March 2023 and an MRI scan on 26 October 2022. Unfortunately, the scans were interpreted by different radiologists which does not promote consistency in interpretation. However, evident from the sequential scans is that during the period of imaging, the investigations show moderate, severe or either advanced degenerative disease of the left hip with the MRI scan ultimately being reported as identifying “full thickness chondral wear involving anterior superior acetabulum and anterior superior femoral head”.
Submissions
Submissions by counsel were recorded and in the interests of brevity are summarised under the relevant discussion headings below.
Discussion
Did the applicant sustain an injury to his left lower extremity in the course of his employment; if so, is such an injury a disease pursuant to s 16 of the 1987 Act and; if so, what is the deemed date of the injury?
The definition of “injury” in s 4 of the 1987 Act relevantly states:
“Injury –
(a) means personal injury arising out of or in the course of employment;
(b) includes –
‘disease injury’, which means--
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
….”
The applicant submits his condition is a disease process and I note there is no evidence to rebut this assertion. The respondent submitted there was leg length discrepancy in the radiological investigations, a constitutional condition which likely could have resulted in the pathology identified, although conceded it has no medical evidence to support this assertion.
Further, the respondent submits that the applicant’s condition had progressed/deteriorated post retirement, irrespective of any work related duties and referred to the radiological investigations which nominated various grades of severity of the osteoarthritis over the years. As already indicated the investigations were reported on by different radiologists and interpretation is subjective. The respondent’s submissions were therefore not persuasive and as in the absence of any medical opinion of its own, I cannot do anything with this argument.
Further, it has been determined the proper definition of “injury” does not require there to be a changing pathology, but requires that the work acting upon the underlying condition has aggravated and/or exacerbated it. Kitto J in Federal Broom Company Limited v Semlitch [1964] 110 CLR 626 said:
“In its ordinary meaning ‘disease’ is a word of very wide import, comprehending any form of illness; and there is no reason that I can see for reading it in the present context as not extending to mental illness. The second ground treats the word ‘employment’ in the definition as something distinct both from the fact of the employment of the worker and from any consequence of the employment, and confines it (if I understand the notion correctly) to the inherent features or essential incidents of the employment, to the exclusion of occurrences in the course of the work. With all respect, I think that to take this view is to refine upon the word too much and by so doing to miss what the definition is manifestly intending to say. Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition… As applied to a disease it is properly used to refer to effects which the disease produces in the victim rather than to the advance of the disease itself to a more serious stage of its development…”
Kitto J agreed with the judgment below of Moffitt J when he said:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.”
In Rural Press Limited v Hancock [2009] NSWWCCPD 160, Acting Deputy President Deborah Moore said:
“The proper test then is whether the aggravation to which the employment was a contributing factor had some tangible effect on the worker. It is not necessary for the particular disease to be made worse. …It is clear that symptoms or pain brought on by work activity may constitute a relevant aggravation even though no pathological change to the underlying condition has occurred (Commonwealth of Australia v Beattie). What is necessary to decide is whether the manifestation of symptoms is sufficient to establish ‘injury’, or, in other words, whether the symptoms were made worse by the work duties described.”
The applicant submitted that the injury to the lower extremity arose out of or in the course of employment with the respondent as a result of the nature and conditions of his employment, specifically the aggravation, acceleration, exacerbation or deterioration of a disease and that the date of injury should be deemed to be the date the claim was made (s 16 of the 1987 Act).
However, in order to determine the date of injury it is necessary to decide whether the injury to the applicant’s lower extremity arising out of or in the course of employment with the respondent, as a result of the nature and conditions of his employment, was an aggravation, acceleration, exacerbation or deterioration of a disease, a matter firmly disputed by the respondent despite the absence of any of its own medical or factual evidence.
It is well established degenerative conditions such osteoarthritis are “diseases” within
s 4(b) (ii).[11][11] Duncan v Roads & Traffic Authority of NSW [2007] NSWWCCPD 113 at [88], Armeo v Ladue Holdings Pty Ltd and WorkCover Authority of NSW [1992] NSWCC 16; (1992) 8 NSWCCR 440; Smith v Parkes Shire Council [2010] NSWWCCPD 130 at [108].
There is in this matter a substantial amount of medical evidence as to the nature and origin of the applicant’s lower extremity complaints, that leads me to find that the injury process in the hip as disclosed by the evidence, was/is a disease. The applicant’s symptoms in his hip increased over time to the point where he required surgery. I accept that the surgery was eight years post-retirement, however it was at this point, where the pain became unbearable and the need for surgery came about only after the applicant had consulted a number of doctors and was conclusively diagnosed and had exhausted all conservative measures. The applicant’s evidence, which was unchallenged by the respondent is capable in my view of showing the disease had been aggravated by the nature and conditions of his work. I therefore find the applicant had a degenerative condition affecting his lower extremity and this degenerative condition was a disease process within the definition of s 4(b) (ii) of the 1987 Act. I further find on the basis of the evidence that employment was the main contributing factor in the aggravation of the disease.
Whilst not having any qualified evidence of its own, the respondent did rely on clinical notes produced by the applicant’s treating doctor, Dr Sokolovska, a total of over 440 pages. Careful review of these notes confirms the applicant has not suffered hip injury outside of his employment and his statement and the history taken by Dr Cawthorne are consistent with the contemporaneous clinical notes, reinforcing my findings.
The next matter to determine is the date of injury, refer to [Way] (paragraph 13) above.
The applicant submitted for the purposes of making a claim for treatment expenses, in the absence of incapacity, the date of injury is the date of claim.
Sub-s (1) of s 16 of the 1987 Act provides:
“(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a)the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
As discussed above, I have found that the disease provisions apply in relation to the injury to the left hip. I find therefore that the deemed date of injury for the purposes of the claim for treatment expenses is the date the applicant made a claim on 20 March 2023.
Did the applicant make a claim within the time prescribed by s 261?
The next matter to be determined is the threshold issue of making a claim within the time prescribed by s 261 of the 1998 Act. The respondent argued that the applicant had failed to make a claim within the time prescribed by s 261 of the 1998 Act both in relation to any injury caused by the nature and condition of his employment or in respect of any frank injury to the lower limb.
There has been much legal discussion on this issue. In Gow v Patrick Stevedores No 2 Pty Limited [2002] NSWCC 60; (2002) 24 NSWCCR 626 Geraghty CCJ was of the opinion that, “when it comes to disease, it seems that because of the deeming provisions, no notice need be given, that a worker can leave work, as this worker has, be away for ten years, make a claim and find that he does not need to give the respondent notice” (at [18]).
In State Forests of New South Wales v Whittaker [2007] NSWWCCPD 149, owing to the operation of the disease provisions in ss 15 and 16, combined with the definition of “injury”, it turned out that the deemed date of injury was after the date of the claim form. The worker submitted the claim form at a time in keeping with when he actually suffered the physical harm that was the injury. The 1987 Act gave that “injury” a later artificial date. Candy A-DP understood the employer's argument to be that the worker had not given “notice” of the injury, because such “notice” and “claim” made for the physical harm was before the “deemed date of injury”. The Acting Deputy President rejected the employer's argument. Candy A-DP said:
“This would essentially require in disease cases a separate notice or claim be given after each deemed date of injury. I do not think that the legislation requires such additional notice and claim and it is to be expected that in the application of the disease provisions in workers compensation legislation there will occasionally be chronological anomalies.” (at [82])
Applying the above authorities and noting that in the absence of any incapacity, the date of injury is deemed to be the date of claim, s 16(1)(a)(ii), that is 20 March 2023. It follows and I find the applicant has not offended the provisions of s 261 of the 1998 Act and so it is unnecessary for me to consider the arguments relating to ignorance or mistake as being responsible for the late claim. However, as an aside, I find the applicant was ignorant of his rights in relation to the disease claim. True, the respondent submits the applicant had made claims for frank injuries (upper limbs) up to one year before his retirement, however, his hip symptoms did not require treatment until they deteriorated to a point he sought advice. I find on the basis of the applicant’s statement that he was ignorant of the ability to make claims for such ‘disease’ conditions. However, nothing turns on this finding.
Do the claimed medical expenses fall within the definition of ss 59 and 60 of the 1987 Act?
Here the applicant has undergone total left hip replacement surgery after failing all conservative measures. The treatment was considered reasonably necessary by both his surgeon and qualified specialist. I so find. The respondent has not served any medical evidence to rebut injury or the need for hip replacement, instead denying liability on the basis that the claim was out of time. With the benefit of hindsight, given the amount of expenses initially claimed, it would have been a prudent and optimal case management strategy for the insurer to obtain at the outset, the full set of clinical notes followed by independent medical evidence to verify pathology and treatment needs. However, given my assessment of the evidence above, realistically this would not have altered the outcome, but it may have narrowed the dispute. On the basis of the evidence to hand, I therefore find that the treatment was reasonably necessary with reference to s 60 of the 1987 Act and the respondent is liable for such treatment.
SUMMARY
For the reasons above, I make the findings and orders as set out on page 1 of the Certificate of Determination.
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