Bruscino v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bruscino v Workers Compensation Nominal Insurer (iCare) [2021] NSWPIC 518
APPLICANT:	Michael Bruscino
FIRST RESPONDENT:	Golden Carwash Pty Ltd
SECOND RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
MEMBER:	Michael Wright
DATE OF DECISION:	10 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments arising from frank injury and nature and conditions of employment; injury dispute on the facts and medical evidence; whether applicant has capacity for work; suitable employment pursuant to section 32A of the Workers Compensation Act 1987; Wollongong Nursing Home Pty Ltd v Dewar considered as to whether “real jobs” available; Held - applicant sustained injury in course of employment; applicant found to have no capacity for employment; award for applicant for weekly compensation.
DETERMINATIONS MADE:	1. The applicant sustained injury to his left hand, left thumb and left index finger on 15 May 2019 and also injury to his left hand, left thumb and left index finger as a result of his employment with the first respondent from 8 April 2019 to 7 July 2019. 2. Pre-injury average weekly earnings agreed as $411. 3. The first respondent is to pay the applicant weekly payments of compensation pursuant to section 37(1) of the Workers Compensation Act 1987 from 18 February 2020 and continuing at the rate of $328.80 per week, and as indexed from time to time. 4. The first respondent is to pay the applicant’s medical, rehabilitation and related treatment expenses pursuant to section 60 of the Workers Compensation Act 1987. 5. The first respondent was not insured as required by the Workers Compensation Act 1987 at the time of the applicant’s injury on 15 May 2019 and as a result of his employment from 8 April 2019 to 7 July 2019. 6. The second respondent is ordered to pay compensation awarded against the employer, the first respondent, from the Workers Compensation Insurance Fund established under section 154D of the Workers Compensation Act 1987. 7. The first respondent, the employer, is ordered to reimburse the second respondent for amounts paid out of the Workers Compensation Insurance Fund in respect of compensation awarded against the first respondent, the employer.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (ARD), Mr Michael Bruscino (the applicant) claims weekly compensation pursuant to section 37 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury on 15 May 2019 and also injury deemed to have happened on 7 July 2019 in the course of employment with Golden Carwash Pty Ltd, the first respondent. The applicant claimed injury to his left hand, left thumb and left index finger as a result of a frank incident on 15 May 2019 and also as a result of the nature and conditions of his employment with a deemed date of injury on 7 July 2019.
The first respondent was said to be uninsured, for which reason the second respondent was a party to the proceedings.
In a section 78 notice dated 5 February 2020, issued by the second respondent, it was disputed that injury arose out of or in the course of employment on 15 May 2019 as required by section 4 of the 1987 Act. Incapacity and entitlement to medical and treatment expenses were also disputed.
In a notice dated 30 April 2021, the second respondent’s solicitors disputed that the incident alleged to have occurred on 15 May 2019 occurred, maintain the dispute in relation to section 4 and also disputed that employment with the first respondent was a substantial contributing factor within the meaning of section 9A of the 1987 Act.
In a notice dated 12 August 2021, the solicitors for the second respondent also disputed injury as a result of the nature and conditions of the employment duties on and prior to 7 July 2019.

PROCEDURE BEFORE THE COMMISSION

At the conciliation/arbitration hearing of this matter on 14 October 2021, the applicant was represented by Mr McManamey of counsel and Ms Alawie, solicitor, and the second respondent by Mr Harris, solicitor. There was no appearance by the first respondent, nor was a Reply lodged on its behalf.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The second respondent confirmed that the first respondent was uninsured at the relevant times of alleged injury.
The applicant and second respondent agreed that pre-injury average weekly earnings were $411.

10.The applicant also sought a general order for medical and related treatment expenses pursuant to section 60 of the 1987 Act if successful with the application.
11.There was no application for cross examination of the applicant nor for the giving of oral evidence.

EVIDENCE

Documentary evidence

12.The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARD and attached documents;
(b) Reply by second respondent (Reply) and attached documents, and

(c) Application to Admit Late Documents dated 30 August 2021 and attached documents.

The applicant’s statements

13.The applicant provided two statements dated 20 November 2020 and 6 May 2021.
14.In his statement dated 20 November 2020, the applicant stated that he completed high school after year 10 and subsequently did a Japanese course at TAFE for three years. The applicant has no other qualifications.
15.The applicant stated that prior to the injury said to have been sustained in the course of his employment with the first respondent, he had not sustained any significant injuries or suffered from any significant medical conditions which had impacted his capacity to work. He stated that he considered himself to be healthy, fit and capable of handling the demands of his employment. He stated that he did not recall ever experiencing any pain or restrictions in the fingers of his left hand prior to commencing employment with the first respondent.
16.The applicant stated that in respect of his employment history in the five years prior to working for the first respondent, he worked for Clark rubber as a detailer from February 2018 to about May 2018; and as a customer service assistant at McDonald’s from about July 2018 until September 2018. He stated that other than this employment he had no other employment in the five years prior to the subject injury.
17.He stated that he commenced employment with the first respondent in February 2019 as a labourer on a part-time basis working 20 hours per week in the car wash business. His duties involved greeting customers; washing the exterior of vehicles using hoses, chemicals and water; spraying rims and cleaning dirt from tyres and rims; vacuuming the interiors of cars; using chemicals to wipe down the interior of the car; and other general duties incidental to working at the car wash.
18.The applicant stated that on 15 May 2019 he was washing and hosing a car at work. He stated that he did this by using a pressure gurney which used a trigger mechanism. He stated that he operated the trigger of the gurney with his right hand and was required to hold the equipment with both hands to control it as it was too heavy to operate with only his right hand. He stated that as he was unwinding the gurney the long steel cable that was attached to the gurney trigger recoiled, resulting in it rewinding rapidly at the other end and as it rapidly rewound it skipped along the ground before bouncing up and hitting the back of his left hand near his left index finger and thumb. He stated that he felt immediate excruciating sharp pain in his left hand.
19.The applicant stated that as his boss was not there at the time of the incident, he was obliged to continue working until the boss returned and for the rest of his shift the applicant had to use his right hand for everything as his left hand was in excruciating pain. He stated that when his boss returned later that day, the applicant told him that he had hurt his hand. He said he continued to work for the next few weeks.
20.The applicant stated that he first consulted his General Practitioner (GP), Dr Krishnamohan, at the Merrylands Family Practice on 17 July 2019. He stated that his left thumb was swollen and tender. He stated that he explained to Dr Krishnamohan that he had injured his left hand while working at the car wash and that he had not sought medical treatment initially as he had hoped the pain would resolve on its own. He said that he was also reluctant to file a workers compensation claim initially due to the way the business was run. He said that by this time he was no longer working for the employer. Dr Krishnamohan referred the applicant for physiotherapy and for an x-ray and ultrasound of his left thumb and left index finger.
21.He stated that he underwent the ultrasound of his left thumb on 19 July 2019.
22.The applicant stated that he again consulted Dr Krishnamohan on 18 September 2019 as he felt that the pain in his left thumb and index finger was getting worse. Dr Krishnamohan issued a medical certificate, the applicant stated, certifying him as being partially incapacitated for work.
23.The applicant stated he underwent the ultrasound to his left index finger on 26 September 2019.
24.He stated that due to financial issues he did not commence physiotherapy until about 12 December 2019 which he continued on a weekly basis up until February 2020, but which he did not find to help much with pain relief.
25.The applicant stated that he first consulted with Professor Orchard, Sport and Exercise Physician, on about 19 December 2019. He stated that Prof Orchard recommended continuation of physiotherapy and review in four weeks time to assess treatment options.
26.He stated that he consulted his new GP, Dr Bastakoti, on 23 December 2019 and told him about the continued stiffness and pain in his left hand. The applicant stated that
Dr Bastakotie recommended that he return to see Prof Orchard for review.
27.The applicant stated that he again consulted Prof Orchard on 23 January 2020 and told
Prof Orchard that his left thumb was slightly more painful and stiff than his left index finger but both fingers were often caught in flexed positions when carrying out household tasks. The applicant stated that Prof Orchard recommended that he have surgery to his left hand.
28.The applicant stated that throughout 2020 he continued to suffer from pain and restricted range of movement in his left index finger and left thumb. He stated that from time to time he experiences a numbness sensation in his left hand. He stated that he had not been consulting his GP on a regular basis as he had attempted to self manage his symptoms by resting. He had not consulted his GP to obtain further certificates of capacity since 7 January 2020. He outlined continuing pain and restricted movement in his left thumb and left index finger, with aggravation of pain in his left arm and left index finger when grouping objects and in cold weather. He stated that he had weakness in his left hand and inability to lift heavy objects.
29.The applicant’s supplementary statement dated 6 May 2021 was provided in response to receipt from the workers compensation insurer of documents including the statements of
Ms Ward and Mr Ghahani and investigation photographs.
30.In relation to the statement of Ms Ward, the applicant stated that it was true that he had never raised any complaints about the high pressure hose with her. He stated that he never had a great deal of interaction with Ms Ward as she mostly handled the administrative side of the business. He said that on the few occasions he did approach her about any general issues she would tell him to go speak to her husband, Mr Ghahani.
31.The applicant also stated that Ms Ward’s statement that there had never been any metal on either of the hoses used was not true. He stated that the handle of the hose he was using at the time of his injury was made of steel and it was heavy, weighing approximately 2kg and was goldish in colour.
32.The applicant stated that it was true that he had never informed Ms Ward directly of any workplace injury as she was not at the car wash at the time of the injury and he had informed Mr Ghahani of the injury on the day of the incident.
33.In relation to the statement of Mr Ghahani, the applicant disputed that he had never raised any concerns with Mr Ghahani regarding the water sprayer that he was using at the time of the injury. The applicant stated that when he first started working at the car wash he made several comments to Mr Ghahani about how difficult it was to use but did not push the matter because he thought that he was experiencing greater difficulty than others due to his inexperience.
34.The applicant also disputed the statement of Mr Ghahani that there was no chance of recoil when using the hose that he was using at the time of the injury. The applicant stated that there was always a chance of recoil because of the pressure of water going through the hose and it was not possible to have the hose straight at all times when washing a car and it would become twisted and coiled. The applicant stated that when his injury occurred he was trying to straighten out the hose after it had coiled up and then recoiled and the metal part of the handle hit his hand.
35.The applicant also disputed the statement of Mr Ghahani that he had never reported the injury to him. The applicant stated that neither Mr Ghahani nor Ms Ward were present at the time of the injury and it was very common for them both not to be on-site. The applicant stated that when Mr Ghahani arrived at work on the day of the injury at about 5 pm the applicant reported the injury to him and told him that his hand was still sore.
36.In relation to photograph three taken by the insurance investigator, the applicant stated that the photograph shows the hose hanging neatly against a wooden type fence but that fence was never present during the time of his employment. The applicant also stated that at the time when he was employed the gurney was chained to a metal pole on the other side of the wash bay to prevent it from being stolen and the gurney was attached to the chain even during use.
37.In relation to photograph four, the applicant stated that the hose handle shown in the photograph was not the handle of the hose that he was using at the time of his injury. He stated that this particular photographed hose was never used with the gurney due to the high pressure of the water when the gurney was in use.

Clinical notes

38.In the clinical notes of the Merrylands Family Practice there was a note of a surgery consultation on 17 July 2019 with Dr Krishnamohan. The history recorded was that “states has injured thumb…?from work - does car detailing etc… was [doing] car detailing, car washing… [states] no longer works there now”. The reason for the visit was recorded as “workers compensation certificate… Left thumb injury”. Under management it was recorded that a WorkCover certificate was prepared, and arrangements were for an x-ray and physiotherapy and it was noted “see scanned work cover cert”.
39.Also attached to the ARD was one page of a WorkCover medical certificate dated 17 July 2019, issued by Dr Krishnamohan. That certificate noted the applicant’s occupation as a car wash attendant and recorded that “how the injury occurred” was “from doing car detailing work” with date of injury “1 – 2 months ago”. The diagnosis was given as “?work related hand injury” and in response to whether the worker’s employment was a substantial contributing factor to this injury it was marked “unknown”. Appearing within this clinical entry of 17 July 2019, was the following additional entry:
“Visit notes amended by Dr Sanjev Krishnamohan on 26/11/2019 at 02:42:15PM
Written in retrospect:
Note that during this consult, Michael advised me that he no longer works at the employer in question. Michael states that his hand injury is due to his former employment. His history during this consult was vague as to exactly what incident caused his injury. Michael was not able to pinpoint a date but insisted that the injury was caused by work.”

40.A report by Dr O’Rourke dated 19 July 2019 of an ultrasound of the left thumb stated “clinical notes: work-related injury”. Findings were that “there is mild thickening of the A1 pulley with clinical mild triggering but the flexor tendon itself demonstrates no definitive stenosing type synovitis”. Dr O’Rourke stated that he would be happy to perform ultrasound guided injection at the level of the pulley.
41.Attached to the Reply was a medical certificate of Dr Krishnamohan dated 31 July 2019. In response to “how the injury occurred” it was recorded that “patient states L thumb pain from doing car detailing work, experiencing L thumb pain for two months now”. The diagnosis was “? Work related hand injury” and it was marked “unknown” whether the employment was a substantial contributing factor to the injury. Similar medical certificates were issued on 18 September 2019 and 1 October 2019.
42.In a handwritten reply to a questionnaire from the second respondent addressed to
Dr Krishnamohan dated 18 October 2019, and signed by Dr Krishnamohan and dated 31 October 2019, in response to the question as to “history and causation of the patient’s injury/condition as related to you”, Dr Krishnamohan noted that “patient states from doing car detailing at a former employer – cause unclear – specialist input recommended”.
43.In a handwritten reply to a questionnaire from the second respondent addressed to
Dr Krishnamohan dated 14 November 2019 and signed by Dr Krishnamohan on 18 December 2019, Dr Krishnamohan in response to the question as to whether he agreed to act as the applicant’s nominated treating doctor responded by ticking the box marked “no”. In response to the question that “the fax dated the 18/10/2019 and the WorkCover NSW Medical certificate indicate that you are unsure if work is a substantial contributing factor, would you please provide your reasoning around this”, Dr Krishnamohan responded “history of injury unclear, no work incident report to prove injury date”.
44.In a medical certificate dated 18 December 2019, Dr Krishnamohan similarly stated that “L thumb pain from doing car detailing work, experiencing L thumb pain for some months now. No longer works at the employer. Exact dates and progress of injury unclear and further medical input and expertise required”. In response to the question how is the injury related to work Dr Krishnamohan stated “cause is unclear”. In response to the question as to whether injury is consistent with person’s description of the cause Dr Krishnamohan responded “uncertain”. In response to the enquiry as to the person’s stated date of injury/accident,
Dr Krishnamohan recorded “unknown”.
45.In the Reply was attached a handwritten note dated 19 December 2019 without identification of the author. That note was headed “thumb & index finger”. It was stated that “working [at] car wash place. 4 months in early 2019 first injured [about] May 2019 high pressured power gurney… Smashed into hand. Kept working did not want to report as getting higher pay than other workers… Left work – as unpaid… Triggering 1^st & 2^nd…”. As the author is not identified, nor the note signed, I am unable to place any weight on this document.

46.In a note of a consultation on 20 November 2019, Dr Krishnamohan recorded a history that the applicant “states he was using gurney with a trigger… states he got smashed in hand”. In a supplementary note entered 26 November 2019 with respect to the consultation of 20 November 2019 Dr Krishnamohan recorded:
“the following addition to notes added in retrospect:
Michael came to this consultation stating he got advised by his insurer that I was not willing to stay the injury was definitely caused by work.
Michael was angry that I did not assert in my documentation that is injury was caused by work.
I attempted to explain to Michael why I cannot assert something that I could not state with certainty in documentation. I attempted to explain to Michael that this is my ethical obligation to only state of facts in his workers compensation related documents.
I advised Michael to contact his work comp worker to contact to discuss with me directly.
During this consult Michael recalled for the first time an incident that he claims may have caused his hand symptoms and injury – gurney smashing into his hand. Michael did not recall this injury during his previous consults. I asked Michael whether he reported this injury to his boss on the day it occurred and Michael states he did not.
I explained to Michael that he will need to provide such evidence if I am to make any assertions about work-related injuries...”

47.In a medical certificate dated 6 January 2020, Dr Bastakoti diagnosed work-related injury/disease as “trigger fingers (left hand – thumb + index finger)” with patient stated date of injury as “May 2019”, first seen at this practice for this injury on “17 July 2019”. No response was entered for how the injury/disease is consistent with patient’s description of cause. In response to the question how is injury/disease related to work, Dr Bastakoti stated “high-pressure cable – the middle part smashed into left hand”. In respect of capacity for employment, certification was provided for capacity from 7 January 2020 to 3 February 2020 for five hours per day for three days per week. Capacity was stated to be in respect of lifting/carrying “nil use of left thumb and index finger” and in respect of pushing/pulling ability “nil use of left thumb and index finger”.

Professor Orchard

48.Professor Orchard, Sport and Exercise Physician, provided three reports dated 19 December 2019, 23 January 2020 and 12 February 2020.
49.In his treatment report dated 19 December 2019, Prof Orchard diagnosed the applicant as having two trigger fingers of thumb and index finger on the left-hand, both of mild to moderate severity, with support for the diagnosis on ultrasound. Both trigger fingers involved the classic presentation of swelling of the tendon at the level of the A1 pulley and a history of getting semi-locking on extension which is relieved by manually pulling the finger straight.
50.Professor Orchard stated the following:
“The most important unresolved question is whether this is a work-related injury. The history described by Michael in my opinion is consistent with a work-related injury using the definition of work being a substantial contributing cause. Firstly, and most importantly, he was working in a job that was of high demand on the upper limb, being a car wash operator. Duties as described were to handle a high-pressure gurney in particular which was the largest load at work, but all duties in such a job require constant medium to high load on the upper limb, including hands. Michael does describe a specific incident, or series of incidents, where the gurney was prone to recoil and a few times heading [hitting] in the hands and occasionally even hit him on other body parts including head. He has not suffered any injuries elsewhere but the left hand is injured, and he has reported a history of having had a direct blow in addition to the constant high level manual load on hand.
A complicating factor is that he did not file a workers compensation claim at the time of injury which was approximately in May 2019. However he also describes a workplace which was not run according to the highest level of protocol, and in fact he claims that he has been underpaid wages which were promised him by his previous boss. He actually left the workplace after he had not been paid for a significant period, and if this history is true, it is also understandable that in such circumstances the culture would be one of reluctance to file a workers compensation claim, if the basics of not even being able to rely on being paid were not being met.
Therefore, I am happy to state opinion that if the history as described is accurate then on balance I am very comfortable at calling this a work-related injury.”

51.In a review treating report dated 23 January 2020, Prof Orchard noted that the thumb is slightly worse than the index finger, both in terms of more frequently locking/triggering/having less fluid range of motion and causing more pain. He noted that both are slightly/marginally improved since December. Prof Orchard was of the opinion that the applicant could slightly increase load on the left hand over late January and February.
52.Professor Orchard stated:
“Apparently there is a further independent medical opinion required on whether these injuries are work-related. I would think that if Michael’s history, as provided, is accurate, then it would be hard to dispute work as being a significant contributing factor to his injuries. In a job working in a car wash with repetitive loading/manual handling of a gurney spray gun, this would provide moderately heavy load to the hands and is likely to have had a significant role in the development of hand tendon injuries.”

53.In a treating letter to Dr Krishnamohan dated 12 February 2020, Prof Orchard noted that he had reviewed the applicant. Prof Orchard also noted the report of Dr Hitchen of 29 January 2020, which he had read. Prof Orchard stated that his letter was a clinical treating doctor update rather than a formal medicolegal opinion and he accepted that the circumstances of the injury and the relation between mechanism and diagnosis were open to some debate.
54.Professor Orchard reiterated his previously stated view that:
“ ● there are two potential work-related mechanisms of injury that are relevant to the development of the condition.
·        The first mechanism is at least one single and possibly more than one direct blow of a gurney recoiling to hit the left hand which has given rise to the possibility of soft tissue damage. Given that the incident is not on Fillmore reported, we do not know exactly where the gurney hit on hand, but I disagree that it could not have been at the location where the injury has subsequently developed
·        in addition to the history supplied of direct injury, being a gurney operator in a car wash clearly involves repetitive use of both hands. I would agree that a right-handed person is more likely to develop overuse conditions in the right hand, but would totally disagree that the left hand could not develop an overuse condition. I also think it is not realistic to compare operation of the gurney, which involves two hands, to single handed tasks like writing or throwing a ball. Nobody operates a high-pressure gurney with a single hand only because it is too heavy to do so
·        the best diagnosis we have is mild to moderate trigger finger affecting index finger and thumb on the left-hand, and we have imaging to support this diagnosis. Although Dr Hitchen called this diagnosis questionable, he did not provide an alternative diagnosis that would make me change my opinion from trigger finger being the operative/working diagnosis
·        in conclusion, I believe that the diagnosis is trigger finger(s) and that the previous work as a car wash gurney operator was most likely to have been a substantial contributing cause to the development of this diagnosis”

55.Professor Orchard was of the opinion that at that time the severity of the condition was still not at a point where surgery was indicated “but the prognosis with trigger finger is variable, and some cases do tend to deteriorate over a period of months or years”.
56.Professor Orchard was also of the opinion that the applicant would currently “be fit for certain jobs that involved minimal use of the left hand, and generally those which would be classified as sedentary”. He was also of the opinion that the applicant was currently unfit to do his previous work as a car wash operator and he would also be unfit for similar jobs involving manual handling such as baggage handling, trade work or lifting/stacking/carrying type jobs.

Dr Assem

57.In a medicolegal report to the applicant’s solicitors dated 25 January 2021, Dr Assem, rehabilitation specialist, noted a history that the applicant was using a high-pressure gurney to wash cars and he normally operated the trigger of the gurney with his right hand while moving the hose with his left hand. Dr Assem noted that the applicant was also required to repetitively use both hands to wash and dry the vehicles. He noted that the applicant was undermining the gurney when it recoiled causing direct impact to the dorsal aspect of his hand over the left first and second metacarpals. He noted that the applicant relied on the use of his uninjured right hand while he persevered at work until he resigned in July 2019.
58.Dr Assem noted that the applicant currently complains of pain and swelling over the first and second MCP joints and a reduction in grip strength and hand dexterity that limits some of his activities at home. On examination, Dr Assem noted limited flexion of the IP joint and MCP and restriction in extension in the DIP of the second digit and slight restriction at the PIP joint. Dr Assem noted investigations, being ultrasound left thumb dated 19 July 2019 with report by Dr O’Rourke and ultrasound left index finger dated 26 September 19 reported by
Dr O’Rourke.
59.Dr Assem diagnosed soft tissue injury to the left first and second digits. He was of the opinion that the applicant may have experienced triggering of the left thumb and index finger in the past “but there was no longer any evidence of active triggering” and “as a consequence of his injuries, he demonstrated a slight reduction in his finger motion, grip strength and hand dexterity”. Dr Assem was of the opinion that the applicant would need to avoid heavy lifting or repetitive forceful use of his left hand given his ongoing subjective complaints and self-reported limitations. Dr Assem was of the opinion that the applicant would be capable of performing any other sedentary, semi sedentary or light manual work providing that he complies with these restrictions.

Claim form

60.In his compensation claim form (uninsured liabilities) dated 27 September 2019, in respect of date of injury the applicant wrote “do not remember… maybe May or April”. In response to a request for a brief description of how the injury occurred or what he was doing at the time he wrote “I was straightening up the [gurney] hose that I wash the cars with which is a steel cable and as I straightened it and it untied itself it flew at me and smashed my left hand thumb and finger. I have been hit by it before in the [possibly hand or head] a few times also”. In response to the question as to who he reported the injury to, the applicant wrote “I told my boss and co-worker”.

Wage Subsidy Head Agreement and related document

61.Attached to the Reply was a “Wage Subsidy Head Agreement” between Serendipity (WA) Pty Ltd, as an “Employment Service Provider”, and the first respondent, as “Employer”. The “Head Agreement Term” recorded a start date of 17 April 2019 and an end date of 30 June 2020.
62.This agreement contained a preliminary term that the schedule attached to the Head Agreement will relate to a single employment position and create a separate contract (Wage Subsidy Agreement) between the provider and the employer in relation to the employment position. It was stipulated that each Wage Subsidy Agreement consisted of the terms and conditions of the Head Agreement and relevant terms relating to the Employment Position, Wage Subsidy Participant and Wage Subsidy. Set out in the relevant schedule.
63.The terms and conditions in respect of the employment condition included a term that “the Employment Position is a sustainable and ongoing position that is not intended to end when Wage Subsidy payments cease, and in respect of which the Employer knows of no reasons why the Employment Position will not continue indefinitely”. Another term provided that “the Provider and the Employer must, as soon as possible, bring to the intention of the other party any difficulties the relevant Participant may have in the relevant Employment Position, and work towards supporting the Participant to continue in the Employment Position”. The Head Agreement was signed by Ms Julia Ward on 14 May 2019 in her capacity as owner.
64.Following the “Wage Subsidy Head Agreement” there was attached another document headed “Recipient Created Tax Invoice for Wage Subsidy” dated 10 July 2019 from Advanced Personnel Management to the first respondent. This document named the employee as the applicant and the position as “Car Wash Worker” and the employer as the first respondent with a wage subsidy period from 8 April 2019 to 7 July 2019 and the wage subsidy amount of $5,000 for that period. Hours were referred to as an average of 20 hours per week excluding any periods of approved leave.

Statements of Ms Julia Ward and Mr Mehdi Ghahani

65.Ms Julia Ward provided a statement dated 21 April 2021. Ms Ward stated that she is a
co-director and operator of the first respondent and her business partner Mehdi Ghahani is the only other director. She stated that her role as owner – operator was “more administrative and customer service” and when she is not involved in administrative matters she assists in supervising the workers and organising general management of the car wash.
66.Ms Ward stated that she met with an official from Serendipity (WA) Pty Limited on behalf of Centrelink and agreed to offer the applicant employment on a subsidised wage. She stated that her working relationship with the applicant was as owner – operator and occasional supervision. She stated that the applicant commenced employment on about 8 April 2019 as a labourer on a part-time basis of three days per week from 8 am to 3:30 pm resulting in a 21 hour week with occasional extra hours and payment of $20 per hour. She stated that he worked generally in a group of three other labourers under the supervision of Mr Ghahani and his duties were to wash, vacuum and polish cars.
67.Ms Ward stated that the equipment that the applicant commonly used were two high pressure hoses, buckets containing water with carwash detergent and a vacuum cleaner. He did not use any other electrical equipment, Ms Ward stated. She said that she was always available in the event the applicant required any type of assistance.
68.Ms Ward stated that the applicant was “a below average labourer”. She stated that it was obvious that he had no previous knowledge or experience with washing cars and he did not have a drivers licence and therefore never drove to work. She stated that Mehdi “provided him with 3 days of training in washing cars. There was no need to train him in matters of safety due to the type of work he did”.
69.Ms Ward stated that the high pressure spray hoses were easy to use and neither the applicant nor any other employee had ever raised any concerns over their use. She stated that there had “never been any metal on either hose surrounding the rubber type compound with no chance of any recoil”. Ms Ward stated that due to their simplicity there was no need to warn of danger in relation to the use of the high pressure hoses and she “therefore never had to demonstrate the use of any of the high pressure hoses” to the applicant. Ms Ward stated that the applicant had never informed her of any workplace incident or injury during his employment nor did she have knowledge that he had suffered a left hand or other type of injury.
70.Ms Ward stated that the applicant ceased work on 7 July 2019 at the end of his contract. She stated that the applicant wanted to keep working but she and Mehdi were not satisfied with his performance. She also stated that some weeks after his employment was terminated the applicant came to the car wash and presented her with two standard medical certificates and mentioned something about pain to his left hand. She stated that she did not remember the applicant mentioning the pain was associated with working at the car wash and she just kept the medical certificates.
71.Mr Mehdi Ghanani provided a statement dated 21 April 2021. He stated that he is a
co-director of the first respondent and his business partner Julia Ward was the only other director. He stated that he was the supervisor of all staff, including the applicant during his term of employment. Mr Ghahani stated that Ms Ward attended to the administration role of the business while he was supervisor to the employees, including the applicant.
72.Mr Ghahani stated that the car wash was equipped with two high pressure water sprayers attached to individual air hose fittings.
73.Mr Ghahani stated that the applicant was “a satisfactory labourer, however I could see that he could not become an efficient car washer” and “at the time of his employment, work was mostly slow and there was not much for him to do”.
74.Mr Ghahani stated that the applicant was employed on 8 April 2019 through Serendipity (WA) Pty Ltd and “it was something to do with a Centrelink placement”. He stated that the employment was to vacuum clean, interior clean, wash the outside using one of the high pressure water sprays, chamois dry and apply tyre shine when finished.
75.Mr Ghahani stated that the applicant never complained to him about concerns of using the water sprayer and it was a simple device to use. He stated that he showed the applicant how to use the water sprayer when he first started to wash cars and there was no need to warn him of any dangers associated with its use.
76.He stated that “there is no, nor has there ever been any steel cable or other metal material on the hose and attached to the trigger area of either high pressure water spray that can cause a recoil action in any situation”. Mr Ghahani also stated that:
“Both of the water sprayers consists of a very flexible, rubber type of compound hose from the compressors to the trigger operated nozzle. Other than a cover that surrounds both hose connections to the trigger and nozzle, there is no possibility of either hose recoiling.”

77.Mr Ghahani stated that the applicant did not, during May 2019 or at any other time, approach him and complain of an injured hand. He stated that the applicant during his entire employment had never reported any injury to him.
78.Mr Ghahani stated that the applicant’s employment was terminated on 7 July 2019. He stated that “the circumstances leading up to the termination was that he was not deemed suitable and he had come to the end of his contract”.

Letter from second respondent

79.In a letter to the applicant dated 10 December 2019, the second respondent advised that following initial notification of injury weekly payments of compensation and payments for medical expenses would commence on the basis of provisional liability and weekly payments would be payable from 10 December 2019 to or until liability had been determined.

Dr Hitchen

80.In a medicolegal report to the second respondent dated 30 January 2020, Dr Hitchen, Orthopaedic Surgeon, noted a history of injury to the applicant’s left hand. He noted that the applicant was uncertain on an exact date but believe the event occurred sometime in May 2019. Dr Hitchen recorded that the applicant said that he worked 10 hour days and would undertake a lot of washing and hosing of cars. Dr Hitchen noted that the applicant described the use of a pressure gurney, using a trigger mechanism with his right and not left hand. He noted that specifically on one occasion the long steel cable attached to the gurney trigger recoiled and as it rewound rapidly it skipped on the ground and then bounced up hitting his left hand. Dr Hitchen noted that the applicant was “specific that the impact occurred on the dorsal aspect of the left thumb and the dorsal aspect of the left index finger around the region of the MCP joint”. Dr Hitchen noted that the applicant stated that he told his boss that he did hurt his hand but continued to work over the next few weeks and did not seek medical care. He noted that the applicant stated that he believed his left index and thumb became slightly swollen.

81.Dr Hitchen noted that the applicant voluntarily resigned from employment in July 2019 as he stated that his wages were not being paid.
82.Dr Hitchen noted treatment by Prof Orchard, sports physician, and about six weeks of physiotherapy. He noted that at that stage the applicant stated he had lingering symptoms in his left hand and had a catching sensation at times in his thumb or index finger and as a result he is reluctant to grip objects Dr Hitchen noted that the applicant stated that his left index finger at last got caught in a flexed position about a week ago when doing some washing at home.
83.On examination, Dr Hitchen noted that the applicant presented with his left forearm extensively taped with some tape around the web space of his thumb, which is removed for examination. He noted that inspection of the hands revealed no swelling or deformity and the applicant was able to make a full fist with both hands and fully straighten. Dr Hitchen noted that with respect to the left thumb the applicant “lacked some terminal adduction due to alleged pain”. Dr Hitchen was unable to precipitate triggering on palpation or extension.
Dr Hitchen noted that he asked the applicant to point where the impact had occurred and “he clearly pointed to the dorsal aspect of the thumb and the dorsal aspect of the index finger (this was away from the volar or flexible aspect of the hand)”.
84.Dr Hitchen noted investigations being an ultrasound of the left thumb from 19 July 2019 and ultrasound of the left index finger from 26 September 2019. He noted the reports of both investigations.
85.Dr Hitchen diagnosed “on a historic basis” a soft tissue injury to the left hand and “the injury was not of the severity for him to seek prompt medical care”.
86.Dr Hitchen was of the opinion that historically the applicant was experiencing episodes of triggering of the thumb and index finger although on physical examination he could not demonstrate any signs of active triggering. He noted that the applicant showed reluctance to move the hand, “although he could, in essence, undertake excellent movement of his digits”.
87.Dr Hitchen also stated:
“With respect to trigger digits being a result of injury, I am unconvinced. I could accept, if there was a severe blow to the palmar aspect of the hand and significant palmar trauma then theoretically some thickening of the flexor tendon or pulley could occur. Conversely, on a couple of occasions and on examination, he gives a clear history of impact occurring on the dorsal aspect of the hand - well away from the flexor tendon pulleys. Thus, the mechanism of injury is not consistent with the type of forces that would be required to precipitate triggering on the opposite side of the hand.
Further, I note his sports physician has mounted an argument that general occupational activity of repetitious griping may have played a role. Again, I carefully questioned him regarding his use of a trigger mechanism when hosing down the cars with a gurney. He is specific that he is very right hand dominant, and only used the gurney trigger in the right-hand, especially given the power that came through the gurney with water pressure. In essence, he did not ever use the gurney with his left hand. Thus, I do not believe that he underwent repetitious gripping with his left hand of sufficient frequency and severity to precipitate traumatic trigger digits.
Conversely, trigger digits commonly occur spontaneously and one does not need an injury to develop triggering. There is an association with diabetes - but I note that he is not diabetic.
I would conclude that his historic minor triggering of the thumb and index fingers (that I have not been able to demonstrate today) are not secondary to the effects of injury.”

88.Dr Hitchen was of the opinion that the applicant was physically fit for his preinjury duties and he noted that the applicant was working normally allegedly with the same symptoms until he resigned voluntarily. Dr Hitchen was also of the opinion that the applicant was “fit to engage in other vocations for which he is trained, including childcare, acting, security and baggage handling”.

Submissions

Second respondent’s submissions

89.The second respondent submitted that Ms Ward in her statement said that the applicant did not at any time report injury to her. It was also submitted that the applicant ceased work on 7 July 2019 which was at the end of the contract and that the applicant wished to continue working. It was submitted that the wage subsidy head agreement between the first respondent and an entity on behalf of Centrelink supported the evidence of Ms Ward that there was a contract for a specific period and there was no guarantee of ongoing employment.
90.The second respondent submitted that the statement of Mr Ghahani established that the applicant had not complained about any concerns in relation to the water sprayer nor did he report any injury to Mr Ghahani. Mr Ghahani in his statement also confirmed details of the employment arrangements.
91.The second respondent also submitted that the claim form submitted by the applicant and dated 27 September 2019 is of some significance in that the particulars of injury, given some two and a half months after the applicant last worked for the employer, give details of a specific and, it was suggested, dramatic incident on a date that he could not recall involving a gurney hose which “smashed” his left hand. This it was submitted was a very dramatic description of a quite significant injury.
92.It was also submitted that the applicant gave to various people a history of a very significant dramatic incident on a specific date. The second respondent submitted that the applicant attended a number of doctors at the Merrylands Family Practice for unrelated matters in May and June 2019 and then significantly on 17 July 2019 was recorded in the clinical notes that the applicant stated that he “has injured thumb? From work”. It was submitted that this was significant as it was obvious from what was recorded that the applicant was not sure and it was of no significance and there was no record made of any specific incident of the type subsequently alleged by the applicant. It was submitted that the clinical notes indicated attendances in July, August, September, October and November 2019 and there was no reference to any specific incident and the only entry was one on 20 November 2019 which was a vague reference to the possibility that whatever problem he was complaining of was work-related.
93.It was submitted that the clinical record of 26 November 2019 was the first time that the applicant gave a detailed history of a specific incident in which he again described the gurney “smashing into his hand”. The same note also recorded that the applicant did not recall this injury during the previous consultation, which it was submitted, beggared belief in view of what is now being alleged.
94.It was submitted that the ultrasound report dated 19 July 2019 was of no consequence as the references in the clinical notes of the GP, particularly the day before on 18 July 2019, recorded “? From work” so that the GP was unclear as to whether there was any suggestion as to whether the injury was work-related. It was submitted that the questionnaire responses completed by the GP on 18 October 2019 the GP at that stage had no idea as to the cause of the condition and there was no suggestion at that stage of any specific incident. It was submitted that there was also a lack of clarity without a reference to a specific incident in a questionnaire completed by the GP on 18 December 2019 and in a certificate issued by the GP on or about 18 December 2019.
95.In respect of the first report of Prof Orchard, it was submitted that a very dramatic history was taken of an incident which having regard to the earlier contemporaneous evidence is quite inconsistent. It was submitted that in this report of Prof Orchard there was a significant qualification in that he made it clear that his opinion was based on an acceptance of the history given. It was submitted that Prof Orchard in his report of 23 January 2020 again made the same qualification as to the accuracy of the history given.
96.It was submitted that the report of Dr Hitchen dated 29 January 2020 also took a very detailed history of a very dramatic incident in May 2019, with that incident being the only allegation that the applicant made in relation to his employment with no suggestion of any worsening of symptoms after the injury. It was submitted that it was quite clear that the applicant was basing his entire claim on this specific incident. It was submitted that Dr Hitchen was of the opinion that the applicant was physically fit for preinjury duties and he concluded that by the time he saw the applicant there was nothing in the nature of any work-related injury.
97.The second respondent also submitted that the applicant’s statement again referred to a very specific and dramatic incident as having occurred on 15 May 2019 and there was no mention of any subsequent worsening of symptoms or any symptoms being attributed to employment duties. It was submitted that the applicant’s statement only supports the claim in respect of the specific incident and does not support his claim in respect of the so-called nature and conditions allegation.
98.In respect of the report of Dr Assem, it was submitted that it was clear from the history recorded that there was a record of only a history of a specific and very dramatic incident. It was submitted that the assessment made by Dr Assem was solely in respect of that incident and there was no statement of opinion by him which would support the so-called nature and conditions allegation.
99.The second respondent submitted that the applicant has not discharged the onus of proof of establishing any work-related injury either as a result of a specific incident, which it was submitted did not occur, or whether as a result of employment duties generally.

As to incapacity, the second respondent submitted that Dr Hitchen was of the firm opinion that when he saw the applicant there was no evidence of any incapacity and the applicant was fit for work. It was also submitted that there is no current medical evidence of incapacity. It was submitted that the latest evidence of incapacity is now quite old.

Applicant’s submissions

The applicant submitted that the applicant in his statement said that he was healthy, fit and highly capable and handling the physical demands of his employment prior to commencing employment with the first respondent. It was submitted that this was not disputed.
It was submitted that by July 2019 the applicant did have a problem with his left hand. The left thumb ultrasound report of Dr O’Rourke of 19 July 2019 demonstrated mild thickening of the pulley, with clinical mild triggering ultrasound guided injection. It was submitted that it was known that somewhere between February 2019 and July 2019 nothing happened to the applicant’s hand.
It was submitted that, while there may have been some inconsistencies in histories, it was suggested by the second respondent that the history of injury was something that was thought up in November 2019. The applicant submitted that the problem with that submission was that the claim form was submitted in September 2019 and that claim form described the subject incident.
The applicant also submitted that the second aspect to consider if the GP was being told in November, the question to be asked was why was that being said at that time. It was submitted that it is often seen that a denial of liability takes place and afterwards a worker will go back that time. It was submitted that the history of the incident had been disclosed to the second respondent two months earlier and there had been an acceptance of liability and payment of compensation. It was submitted that there was no reason at that point in time for the applicant to give this additional history to the doctor other than injury had happened as liability had been accepted and compensation was being paid.
It was submitted that the applicant in his supplementary statement dealt with what was said by Ms Ward and Mr Ghahani. The applicant submitted that applicant in his statement took issue with the statement of Ms Ward in respect of the use of the hose. It was submitted that Ms Ward disputed that the hose handle was made of metal while the applicant made the point that the handle itself is undeniably metal. It was submitted that it is unclear from the evidence the extent to which Ms Ward knows anything about the use of the gurney as her job was primarily administration. Ms Ward, it was submitted, stated that she assisted in supervising workers but it was not disclosed what extent she in fact supervised and there was no evidence that she had ever picked up a gurney or used it or had experience in handling it nor of any understanding of the pressures that are involved in using the gurney.
The applicant submitted that one must approach the statements of Ms Ward and Mr Ghahani with some caution given that they are the uninsured respondent and it is in their interests to avoid liability and ultimately to pay compensation. It was submitted that Ms Ward and
Mr Ghahani have chosen not to appear and give evidence in these proceedings to defend their position or make any submissions in support of their position. The applicant submitted that the Commission would have concern about the veracity of what Ms Ward and
Mr Ghahani have to say.
The applicant also submitted that it was interesting that the way in which the applicant was employed was that there was a contract of employment in which the employment was subsidised and it seems that at the very moment the contract ceases they say that the applicant is no longer wanted. The applicant submitted that this would also give the Commission cause for concern. This employment process by the first respondent, it was submitted, was consistent with the comments made by Mr Ghahani about the applicant’s work. It was submitted that Mr Ghahani said the claimant was a satisfactory labourer but he could not become an efficient car washer. It was submitted that the statement did not explain why it would be the case that there was any deficiency in what the applicant does as a satisfactory labourer when work was slow and there was not much for him to do. It was submitted that this meant the business was slow. It was submitted that, to state that someone is satisfactory but then throughout the statement of Mr Ghahani provide no identification of any actual deficiency in his work performance, would give rise to some suspicion about what the actual approach is of the first respondent.
It was submitted that when the applicant saw his GP on 17 July 2019 it was clear from the outset that an association was being made between work and the injury with an entry of “? From work does car detailing” with the referral for an ultrasound. It was submitted that the referral for the ultrasound was not available but it would be fairly clear that Dr O’Rourke had received the referral on the basis of work-related injury. It was submitted that the point made about the GP using words that are unclear should be considered in the context of the standard that the doctor is applying and that standard can be seen in the entry of 20 November 2019. It was submitted that in the entry of 20 November 2019 the GP was expressing an opinion that he would not say the injury was work-related until he had some other corroborative evidence, which was a standard somewhat higher than the doctor would have used as he had already issued a certificate on 25 July that the condition was work-related. It was submitted that the GP’s reservation must be read in that context, however in July 2019 he was satisfied that there was a causal relationship that would seem to relate to the nature of the work being performed.
It was submitted that the report of Prof Orchard, relating to a consultation on 19 December 2019, should be observed as taking place during a period in which liability had been accepted and compensation paid, and it also predated examination by Dr Hitchen. It was submitted that the report of Prof Orchard recorded the duties that were performed by the applicant in employment with the first respondent.
It was submitted by the applicant that it was clear that Prof Orchard had enquired about the work being done and was told by the applicant of that work. It was also submitted that the applicant’s statement did not refer to the duties and nature and conditions of his employment, but Prof Orchard’s report is also evidence of the duties performed in that employment. It was submitted that this is a history of the nature and conditions of employment, importantly that the applicant was working in a job with high demand on the upper limb being a car wash operator with duties as described handling high pressure gurney. It was submitted that the fundamentals of the employment duties recorded by Prof Orchard, particularly the handling of the high pressure gurney, were not really disputed and to that extent there is a clear opinion of causation.
It was submitted by the applicant that there were two aspects in the history recorded by
Dr Hitchen on 30 January 2020 which would give the Commission cause to pause before weighing up his opinion. The first was that Dr Hitchen described in the history an impact on one occasion when a steel table attached to the gurney trigger recoiled and struck the applicant’s left hand on the dorsal aspect of the left thumb and the dorsal aspect of the left index finger around the region of the MCP joint. It was submitted that this was not a history taken by any other medical practitioner and was therefore a variation in fact. It was also submitted that Dr Hitchen recorded the subsequent history that the applicant was using only one hand to use the gurney was inconsistent with the history taken by Prof Orchard less than one month before hand. It was submitted that the history taken by Dr Hitchen was not supported elsewhere in any of the histories. It was also submitted that Dr Hitchen in his examination noted a lack of terminal abduction in the left thumb due to alleged pain but did not come back to comment on the pain in the left thumb in that regard, nor did he return to deal with the ultrasound of 19 July 2019 after noting it earlier in his report.
It was submitted that ultimately the opinion of Dr Hitchen comes down to asserting that he did not think the injury was caused by work but he really gave no other explanation for why it was that by July 2019 the applicant had trigger finger but stated that it commonly occurs spontaneously without injury and with an association with diabetes, although it was noted that the applicant did not have diabetes. It was submitted that Dr Hitchen noted no other possible associations that would explain the onset of trigger finger at a time in which the applicant was working in a task that clearly puts strain upon the hand using a high pressure gurney, as accepted by Prof Orchard. It was submitted that the Commission would place little or no weight upon the opinion of Dr Hitchen when considered against the more reasoned opinion of Prof Orchard.
It was submitted that the Commission would accept that an incident occurred in which the applicant was struck in the hand and also more importantly accept the nature of the work being performed was causative of the injury.
In relation to incapacity, the applicant submitted that the opinion of Dr Hitchen should not be accepted. It was submitted that the applicant returned to Prof Orchard on 12 February 2020 with continuing problems in the fingers and Prof Orchard was of the opinion that there is still trigger finger and that surgery was pointless. Prof Orchard, it was submitted, was of the opinion that at that stage the applicant was unfit to return to work at the car wash or work involving similar manual handling and the applicant might be able to work with minimal use of the left hand. It was submitted that the certificate of the GP at that time in December 2019 was at that stage that his capacity involved no use of the index finger but with restrictions might be able to work 15 hours per week.

It was submitted that Dr Assem was the most recent opinion that at that stage the applicant would need to avoid heavy lifting or repetitive forceful movements and was capable of eventually performing light manual work. Dr Assem noted, it was submitted, that the applicant left school at the end of year 10 and has very little by way of skills that is reflected in his employment history in which in the five years before injury the applicant found it hard to find work.
It was submitted that in dealing with the rather restrictive definition of suitable employment provided by section 32A of the 1987 Act, and having regard to the decision in Wollongong Nursing Home Pty Ltd v Dewar[1] (Dewar), there must still be employment for the applicant to perform some kind of work. It was submitted that the realities are that the applicant has no skills, no experience, he could only use his hands which he cannot do now, and he cannot do a sedentary job that involves clerical skills, personal skills and the like. It was submitted that the applicant was able to work only in the type of job that he did previously and now he cannot do that. It was submitted that regardless of the theoretical assumptions about being able to work 15 hours per week there is no real work available to the applicant and he should receive an award at the rate of 80% of $411 with indexation. It was submitted that if some capacity to work is found then it is very small and there should still be an award for the applicant.
[1] [2014] NSWWCCPD 55

Second respondent’s submissions in reply

The second respondent submitted in reply that liability was never accepted and it was on 10 December 2019 that provisional liability was accepted and so it is incorrect to say that liability was ever accepted.
The second respondent also submitted that the applicant said there was an incident but this skirted around the fact that it was clear that the applicant told a number of people quite a distance down the track details of incident which were quite dramatic.
In respect of the statements of Ms Ward and Mr Ghahani, the two directors of the first respondent, the second respondent submitted that those statements went into some detail about their description of the applicant’s work duties which were quite consistent between themselves and inconsistent with what the applicant told Prof Orchard.
To the extent that the applicant invited the Commission to take judicial notice of what is observed at a car wash, the second respondent submitted that this is entirely consistent with the description by Ms Ward and Mr Ghahani and the description recorded by Prof Orchard is simply not consistent. In respect of the report of Dr Hitchen, it was submitted that the entirety of the report should be considered, particularly his passages in respect of his opinion.

FINDINGS AND REASONS

In relation to the statement of Ms Julia Ward, I note that she stated that she occasionally supervised the applicant. It was not clear from this statement as to how long and how often and how regularly she supervised the applicant, nor was it clear what she did as to the nature of such supervision, such as whether it was restricted to checking timekeeping or actually observing the work that the applicant performed. Her description of the applicant’s employment duties appear to me to be generic, that is a statement of the employment duties generally of a car washer, rather than what she observed specifically of the activities that the applicant performed. She did not state whether she observed the applicant operating the high pressure gurney with one hand or both hands.
The statement by Ms Ward that the applicant was a below average labourer and that it was obvious that he had no previous knowledge or experience with washing cars is in my view not consistent with the statement of Mr Ghahani, who stated that the applicant was a satisfactory labourer although he could not see that the applicant could become an efficient car washer. I will deal with the statement of Mr Ghahani below. In my view, the statement of Ms Ward that the applicant was a below average labourer, in circumstances where it is unclear whether or not she observed the applicant in the performance of his duties, gives me reason to be cautious in considering her statement when regard is had to the matters below. Also giving cause for caution in considering the statement of Ms Ward was a reference to it being obvious that the applicant had no previous knowledge or experience with washing cars, this in my view being somewhat at odds with her statement that she had a discussion with an official from Serendipity (WA) Pty Ltd on behalf of Centrelink in which she “agreed to give the claimant a go and offered him employment” with subsidised wages.
Ms Ward also stated that the long nozzle that operates the high pressure water from the hose is easily held by one hand during operation of both sprayers. In my view this is a general statement as to perceived ease-of-use of the sprayer. Ms Ward did not state whether or not she observed the applicant operating the nozzle and sprayer with one hand or two.
Ms Ward did not comment upon whether or not she observed the hose being in a coiled state, as described by the applicant, nor did she provide details as to why she concluded that the sprayer was easily used one-handed.
Ms Ward stated that “on either hose, there has never been any metal on either hose surrounding the rubber type compound with no chance of any recoil”. In my view, this was a somewhat vague statement which did not comment upon whether or not the handle was metal nor whether there was a steel cable which did not “surround the rubber type compound”.
Ms Ward’s statement that she occasionally supervised the applicant was in contrast to
Mr Ghanani, who stated that he was the supervisor to all staff and that Ms Ward attended to the administration role of the business while he was supervisor to the employees.
In relation to Mr Ghanani, he stated that he could not see how the applicant could become an efficient car washer. No explanation was provided by Mr Ghahani as to why he reached this view, other than that the applicant was “not deemed suitable”, particularly in the context of his general view that the applicant was a satisfactory labourer. This gives me some cause for caution in consideration of the statement of Mr Ghahani.
Mr Ghahani made no comment in relation to whether or not the sprayer could be operated one-handed nor as to its ease-of-use.
Mr Ghahani stated that “there is no, nor has there ever been any steel cable or other metal material on the hose and attached to the trigger area of either high pressure water spray that can cause a recoil action in any situation”. Mr Ghahani did not comment upon whether or not there was a metal handle that may not cause a recoil action. This statement was also of a general nature, without providing his own observation of the hose in practice.
The applicant submitted that the Commission would have cause for concern in accepting or giving weight to the statements of Ms Ward and Mr Ghahani having regard to the applicant being employed under a contract of employment in which the employment was subsidised and at the very moment the contract ceased they say that the applicant was no longer wanted.
The Wage Subsidy Head of Agreement made it clear that the applicant was to be employed in a sustainable and ongoing position that was not intended to end when the wage subsidy payments ceased, and also that the first respondent would identify any difficulties that the applicant had in the employment position and work towards supporting him to continue in that position. The wage subsidy employment of the applicant by the first respondent was confirmed in the “Recipient Created Tax Invoice”. Ms Ward’s statement that the applicant ceased work on 7 July 2019 at the end of his contract was therefore an incorrect characterisation of the applicant’s employment. The qualification that she provided to this statement was that “Mehdi and I were not satisfied with his performance” was in my view not satisfactorily explained in terms of the applicant’s work performance, as noted above. Similarly, Mr Ghahani’s statement that the applicant’s employment was terminated on 7 July 2019 in circumstances where “he was not deemed suitable and he had come to the end of his contract” was incorrect and an unsatisfactory explanation. I accept the applicant’s submission in this regard.
In relation to the five photographs attached to the Reply, the author of the photographs was said to be the second respondent’s investigator, according to the index attached to the Reply. However, I was not taken to any document that otherwise identified those photographs, although the applicant did not object to the photographs themselves. In any event, the applicant disputed aspects of photographs three and four. I was unable to ascertain the relevance of the other photographs and no submissions were otherwise made in relation to the photographs. I place no weight on the photographs that were attached to the Reply.
The applicant submitted that the Commission would be cautious in accepting the veracity of the statements of Ms Ward and Mr Ghahani as they are directors of the first respondent and they have an interest in denying liability and hence ultimately avoiding paying compensation. The second respondent submitted that the statements of Ms Ward and Mr Ghahani should be accepted as they are detailed and consistent with each other and inconsistent with the history provided by the applicant to Prof Orchard. I do not accept the submission of the second respondent. In my view there are inconsistencies in respect of the supervision given to employees and in particular the applicant, and in the circumstances of the termination of the applicant employment, as noted above. In addition, the applicant stated that his employment was not terminated by the first respondent, rather he resigned. In my view, when the uninsured position of the first respondent is considered, and the matters relating to supervision and the termination of the applicant’s employment, as noted above, the veracity of the statements of Ms Ward and Mr Ghahani are doubtful. I do not place any weight upon the statements of Ms Ward and Mr Ghahani.
I accept the applicant’s statement that the handle of the gurney was metal and there was a long steel cable attached to the gurney trigger. I also accept the applicant’s statement that while he operated the trigger of the gurney with his right hand he was obliged to hold the equipment with both hands to control it as it was too heavy to operate with only his right hand.
I accept the applicant’s statement that he reported a work related injury to his left hand on 15 May 2019 to Mr Ghahani. I also accept the applicant’s statement that he continued working and did not seek medical treatment until 17 July 2019 due to financial pressure, his work ethic and his hope that the pain would resolve on its own.
In relation to matters contained within the clinical notes, particularly those of Dr Krishnamohan, in my view the evidence supports the applicant’s statement that he sought treatment for what he thought was a work-related injury on and from 17 July 2019. Dr Krishnamohan recorded a history of symptoms of a possible left hand injury “from doing car detailing work” and the notes of the same day recorded car detailing and car washing. The ultrasound report of Dr O’Rourke dated 18 July 2019 noted a clinical history of work-related injury, as the applicant had reported to Dr Krishnamohan and notwithstanding Dr Krishnamohan’s reluctance to certify the work-related nature of the injury.
I accept the applicant’s submission that Dr Krishnamohan applied a higher standard than was required for certification in medical certificates, as shown in his amended notes completed on 26 November 2019 in respect of consultations on 20 November 2019 and 17 July 2019. The standard that Dr Krishnamohan applied in my view was that of stating “with certainty” in relation to the causation of injury and also requiring the applicant to “provide such evidence”, that is corroborating evidence, if Dr Krishnamohan was to “make any assertions about work-related injuries”. The relevant questions in the original certificate of 17 July 2019 and on 5 November 2019 (a certificate of 20 November 2019 was not in evidence) were “how the injury occurred” and “in my opinion, the worker’s employment is a substantial contributing factor to this injury”. In my view, all that was required in the completion of such medical certificates was an opinion based on probabilities, rather than certainty, without the requirement of the applicant providing corroborating evidence such as evidence of reporting to the employer. It is a matter for medical opinion with reference to the history provided by the patient and, if necessary, other medical investigative sources such as radiology. The opinion is in respect of “a substantial contributing factor”, a term which allows opinion that may reasonably differ among medical practitioners. I am not persuaded that Dr Krishnamohan’s reservation in not expressing an opinion, and his additional notes referred to above, in these circumstances carries any weight. Similar considerations also applied to Dr Krishnamohan’s comments in his handwritten responses of 31 October 2019 and 18 December 2019.
I do not accept the second respondent’s characterisation of the incident on 15 May 2019 as being a history given by the applicant of a very dramatic incident. Although the word “smashed” was used in the applicant’s description, this in my view should be considered in the context of the applicant stating that he continued to work, albeit with pain, until 7 July 2019, and also that in his claim form and in the history recorded by Prof Orchard the applicant referred to being struck on more than one occasion in similar circumstances.
I accept the applicant’s submission that the history recorded by Prof Orchard’s is evidence in this matter. The history recorded by Prof Orchard is relevant to both this point and to the issue of the history of the nature and conditions of the applicant’s employment.
In my view, the history given by the applicant in his claim form of a specific incident in about April or May 2019 is not inconsistent with his complaints of a work-related injury from 17 July 2019 to Dr Krishnamohan. In my view, what was important was that the applicant had been seeking treatment for a work-related injury to his left hand since 17 July 2019 with a history relating the injury to his employment. Similarly, in my view, both the history provided in the claim form and the history provided to Dr Krishnamohan was consistent with the history recorded by Prof Orchard.
I also accept the applicant’s statement, and the history recorded by Prof Orchard, that he sustained injury as he described on 15 May 2019. I also accept the history recorded in the notes of Dr Krishnamohan of injury to the left hand as a result of doing car detailing and washing work, and also the history recorded by Prof Orchard of the applicant using a high-pressure gurney and other duties requiring constant medium to high load on the upper limb. In relation to the submissions regarding liability at the time the applicant consulted
Prof Orchard in December 2019, it was the case that liability at that time was not in dispute and in my view there is no support for an implication that the applicant provided a change of history in the context of a dispute. Indeed, the history recorded by Prof Orchard in detail in December 2019 was present in outline in the claim form of September 2019 and the clinical notes of Dr Krishnamohan from July 2019, as noted above. I accept the applicant’s submissions that the history recorded by Prof Orchard was the result of questioning on the part of Prof Orchard.
In relation to the report of Dr Hitchen, I note the history that he recorded of the applicant using the pressure gurney “using a trigger mechanism with his right (and not left) hand”.
Dr Hitchen elaborated upon this later in his report under “diagnosis of the worker’s ongoing condition…” when he noted that:
“I carefully questioned him regarding his use of a trigger mechanism when hosing down the cars with the gurney. He is specific that he is very right hand dominant, and only use the gurney trigger in the right hand, especially given the power that came through the gurney with water pressure. In essence, he did not ever use the gurney with his left hand.”
In my view, it is unclear whether the words used by Dr Hitchen that “in essence, he did not ever use the gurney with his left hand” were in fact part of the history taken from the applicant or whether they were his conclusion from the history recorded prior to those words, or indeed whether this was meant to convey that the applicant never used the gurney trigger with his left hand alone, rather than excluding two-handed use of the gurney generally. I also note that Dr Hitchen in this history did confirm the power of the high-pressure water in using the gurney. The applicant in his statement said that he used the high-pressure gurney with both hands while using the trigger with his right hand, he also used his left hand in operating the gurney. In circumstances where Prof Orchard, in his consultation one month before that of Dr Hitchen, took a history that the applicant performed duties which required constant medium to high load on the left upper limb, including handling the high-pressure gurney which was the largest load, I do not prefer the history recorded by Dr Hitchen in this regard.
In relation to the incident on 15 May 2019, I have accepted the applicant’s statement as to the injury and the history recorded by Prof Orchard. The history recorded by Dr Hitchen is again not consistent with the report of Prof Orchard of 19 December 2019, where the history of the incident was recorded as being a blow to the left hand following the recoil of the gurney and where Prof Orchard accepted that the injury resulted from the blow and also disagreed with Prof Orchard that the blow to the hand could not have been at the location where the injury has subsequently developed. The consultation with Prof Orchard took place one month before that of Dr Hitchen and I do not accept that the history recorded by
Dr Hitchen as to the location of the blow was more accurate. I also accept the applicant’s submission that Dr Hitchen did not provide an alternative explanation as to the cause of the trigger finger. In my view, the reference to spontaneity by Dr Hitchen is not persuasive when compared to the explanation provided by Prof Orchard based upon his history and explanation. I prefer the opinion and history recorded by Prof Orchard to that of Dr Hitchen in this regard.
I prefer the opinion and reports of Prof Orchard to that of Dr Hitchen. In addition to the matters of history, in my view Prof Orchard has explained the mechanism of injury on 15 May 2019, as noted above, and also the repetitive use of both hands and the use of a high-pressure gurney involving two hands which provided the largest load at work.
I find that the applicant sustained a blow to his left hand on 15 May 2019 when he was using a high-pressure gurney and a steel cable recoiled, resulting in injury to the left hand, left thumb and left index finger. I also find that the applicant sustained injury to his left hand, left thumb and left index finger as a result of his employment with the first respondent from 8 April 2019 to 7 July 2019 with duties involving the strenuous use of, and load on, his left upper limb, including the two-handed use of a high-pressure gurney.
There were no submissions in relation to the deemed date of injury nor as to section 9A of the 1987 Act. It follows from my acceptance of the opinion of Prof Orchard that employment was a substantial contributing factor to the injury on 15 May 2019 and also to injury as a result of the applicant’s employment duties from 8 April 2019 to 7 July 2019. I saw no evidence that injury was the result of a disease of gradual process or an aggravation of such a disease. Prof Orchard diagnosed injury.

In relation to incapacity, I do not prefer the opinion of Dr Hitchen. Dr Hitchen thought that the applicant was fit for his preinjury duties but this was contrary to the findings and opinion of Prof Orchard in his later consultation and report of 12 February 2020. I have indicated above that I prefer the opinion of Prof Orchard to that of Dr Hitchen.
The applicant returned to Prof Orchard on 12 February 2020, that is after the consultation and report of Dr Hitchen. In his report of 12 February 2020 Prof Orchard noted that the prognosis for trigger finger is variable and some cases do tend to deteriorate over a period of months or years. Prof Orchard noted that the severity of the condition was still not at a point where surgery was indicated. He was of the opinion that the applicant would currently be fit for certain jobs that involve minimal use of the left hand and generally those which would be classified as sedentary and he was unfit for his preinjury duties and would be unfit for similar jobs involving manual handling.
Dr Assem in his report of 25 January 2021 was of the opinion that the applicant would need to avoid heavy lifting or repetitive forceful use of his left hand and he would be capable of performing any other sedentary, semi sedentary or light manual work providing that he complies with these restrictions.
In his statement of 20 November 2020, the applicant said that throughout 2020 he continued to suffer from pain and restricted range of movement in his left index finger and left thumb and he gets a catching sensation in his left thumb and index finger when he attempts to bend his fingers and from time to time his left index finger gets caught in a flexed position when he is doing manual tasks. He stated that he continues to have pain in his left thumb and left index finger and restricted range of movement in the left thumb and index finger. He stated that he has aggravation of the pain in the left thumb and left index finger when gripping objects and aggravation in cold weather, as well as weakness in his left hand and inability to lift heavy objects. I accept the applicant’s statement in this regard. In my view it is consistent with the opinions of Prof Orchard and Dr Assem.
I find that the applicant has not been able to perform his preinjury duties since 18 February 2020, and that such inability is continuing.
The recommendations of Prof Orchard and Dr Assem indicate a restricted capacity for work.
However, the applicant in noting the requirements of section 32A submitted that there were no “real jobs” that were available to him, and relied upon the decision in Dewar. That decision in turn relied upon a decision of the Victorian Court of Appeal in Giankos v SPC Ardmona Operations Ltd[2]. In Dewar, it was stated:
[2] [2011] VSCA 121 at [102]
“62. The determination of what is suitable employment is a practical exercise that is conducted “having regard to”:
(a) the nature of the incapacity and the details provided in medical information;
(b) the worker’s age, education, skills and work experience;
(c) any return to work plan, and
(d) any occupational rehabilitation services that have been provided to the worker.
However, without regard to:
(a)whether the work or employment is available, that is, obtainable;
(b)whether the work or the employment is of a type or nature that is generally available in the employment market;
(c)the nature of the worker’s pre-injury employment, and
(d)the worker’s place of employment.
63. Thus, the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’…”
The applicant left school at the end of year 10. He is unskilled, as reflected in his employment history in which in the five years before the injury he found it hard to find work and was employed on the limited occasions noted above.
I accept the applicant’s submission that the realities are that the applicant has no skills and no experience and was only able to use his hands prior to the injury and he is no longer able to use his hands following the injury. The applicant has no experience in administrative or clerical work. He is currently 54 years of age.
Having regard to the nature of the applicant’s incapacity, the opinions of Prof Orchard and
Dr Assem, and the applicant’s age, education, skills and work experience as noted above,
I find that there are no real jobs that the worker is able to do. I have not had regard to whether or not such work or employment is available nor whether it is employment that is of a type or nature that is generally available in the employment market.
I find that the applicant has had no current work capacity since 18 February 2020, and that the applicant has no current work capacity, as a result of injury to his left hand, left thumb and left index finger on 15 May 2019 and also as a result of the nature and conditions of his employment from 8 April 2019 to 7 July 2019.
The applicant is entitled to an award pursuant to section 37(1) at the rate of 80% of $411 per week, and that such award should be indexed at the appropriate rates as determined in April and October each year, or at the appropriate relevant times.
In relation to the first respondent, I note the second respondent’s confirmation that the first respondent was uninsured and that the first respondent did not obtain a relevant insurance policy until some months after the applicant ceased employment with the first respondent.
I also note the late documents in this matter which included an email and a letter from the solicitor for the second respondent to the first respondent in which the first respondent was advised of the conciliation/arbitration hearing on 10 October 2021 and also that the second respondent would seek recovery from the first respondent any workers compensation payable should the applicant be successful in his claim.
A declaration is made that the first respondent was not insured as required by the 1987 Act at the time of the applicant’s injury on 15 May 2019 and as a result of his employment from 8 April 2019 to 7 July 2019. The second respondent is ordered to pay compensation awarded against the employer, the first respondent, from the Workers Compensation Insurance Fund established under section 154D of the 1987 Act. The first respondent, the employer, is ordered to reimburse the second respondent for amounts paid out of the Workers Compensation Insurance Fund in respect of compensation awarded against the first respondent, the employer.

[2021] NSWPIC 518

10 December 2021