Cameron v Toll Transport Pty Ltd
[2021] NSWPIC 9
•5 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Cameron v Toll Transport Pty Ltd [2021] NSWPIC 9 |
| APPLICANT: | Dale Raymond Cameron |
| RESPONDENT: | Toll Transport Pty Ltd |
| MEMBER: | Rachel Homan |
| DATE OF DECISION: | 5 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- application for incurred section 60 expenses and lump sum compensation pursuant to section 66 of the 1987 Act; accepted left hip injury; whether consequential right hip condition; applicant’s medicolegal expert initially recorded a history of “injury” to right hip; whether medicolegal experts asked correct question; whether applicant has exhausted his one claim pursuant to section 66(1A); legal professional privilege claimed over documents produced to Commission; Held – the applicant sustained a consequential condition at right hip as a result of left hip injury; original claim never resolved or determined; subsequent claim form constituted an amendment to the original claim; matter remitted to Medical Assessor to assess degree of permanent impairment. |
| DETERMINATIONS MADE: | 1. The applicant sustained a consequential condition at his right hip as a result of the injury to his left hip on 16 January 2013. |
| ORDERS MADE: | 1. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 16 January 2013 Body parts: Left lower extremity (hip) Right lower extremity (hip) Skin (scarring) Method: Whole Person Impairment 2. The materials to be referred to the Medical Assessor are to include the documents admitted in the proceedings together with this Certificate of Determination and accompanying statement of reasons. 3. The respondent to pay the applicant’s reasonably necessary expenses pursuant to s 60 of the Workers Compensation Act 1987, subject to s 59A of the Workers Compensation Act 1987, in respect of the left hip injury and consequential right hip condition, upon production of accounts, receipts and /or valid Medicare Notice of Charge. |
STATEMENT OF REASONS
BACKGROUND
Mr Dale Raymond Cameron (the applicant) was employed by Toll Transport Pty Ltd (the respondent) as a driver dockhand. On 16 January 2013, the applicant sustained an injury to his left hip when he slipped as he was climbing onto a truck and fell.
In June 2014, the applicant underwent bilateral total hip replacement surgeries performed by Dr Jorgen Hellman.
On 9 April 2015 the applicant made a claim alleging injury to the left and right hips on 16 January 2013. Liability for the injury was provisionally accepted on 16 April 2015.
On 29 May 2015, the respondent’s insurer issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability for the right hip injury and asserting that the left hip injury had resolved.
On 27 October 2015, a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) was made for 24% whole person impairment (WPI) of the left and right lower extremities (hips) and skin (scarring) based on an assessment by
Dr Youssef Ghabrial on 9 September 2015. A further notice pursuant to s 74 of the 1998 Act was issued on 6 November 2015 maintaining the liability disputes.On 15 January 2018, the applicant’s solicitors again sought lump sum compensation pursuant to s 66 of the 1987 Act, relying on an assessment by Dr Ghabrial dated 12 July 2017. The insurer denied all claims for liability in relation to the right hip in a s 74 notice dated 25 May 2018.
A third permanent impairment claim form was lodged on 25 May 2020, in reliance on an assessment of 30% WPI of the left and right lower extremities (hips) and skin (scarring) by
Dr Ghabrial, dated 9 September 2019.On 5 June 2020, the insurer wrote to the applicant’s solicitors noting that the applicant had previously made a claim for permanent impairment compensation under cover of a letter dated 15 January 2018. A decision regarding that claim was notified on 25 May 2018 pursuant to s 74 of the 1998 Act. The insurer asserted that the applicant was precluded from bringing a further claim for permanent impairment compensation by s 66(1A) of the 1987 Act.
The applicant’s solicitors replied by email on 10 June 2020 asserting that the claim for lump sum compensation was unresolved and the claim form lodged on 25 May 2020 was an amendment to that claim. The insurer was referred to the decisions of Woolworths Ltd v Stafford[1] and Woolworths Ltd v Wagg[2].
[1] [2015] NSWWCCPD 36.
[2] [2017] NSWWCCPD 13.
On 19 June 2020, the respondent offered to pay the sum of $20,350 pursuant to s 66 of the 1987 Act for 14% WPI of the left hip as assessed by Dr James Powell on 17 May 2018.
On 7 July 2020, the insurer wrote to the applicant maintaining the declinature of liability in relation to the right hip notified on 25 May 2018.
On 31 July 2020, the insurer withdrew its offer to pay lump sum compensation in respect of 14% WPI of the left hip. A new offer to pay $17,050 in respect of 12% WPI of the left hip as assessed by Dr Powell on 27 July 2020 was forwarded to the applicant on 26 August 2020.
On 6 October 2020, the applicant rejected the offer in relation to the left hip and sought an internal review of the decision in relation to the right hip on 25 May 2018.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 5 November 2020. The applicant seeks incurred s 60 expenses and lump sum compensation pursuant to s 66 of the 1987 Act based on the assessment of Dr Ghabrial dated 9 September 2019.
On 10 November 2020 a further notice was issued pursuant to ss 78 and 287A of the 1998 Act maintaining the decision to dispute liability in relation to the right hip.
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing on 1 February 2021. The applicant was represented by Mr Patrick Williams, of counsel, instructed by Ms Heidi Lewis. The respondent was represented by Mr Fraser Doak of counsel, instructed by Ms Lily Fung.
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.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a consequential condition affecting his right hip as a result of the injury on 16 January 2013;
(b) the applicant’s entitlement to s 60 expenses;
(c) whether the applicant has exhausted his “one claim” for the purposes of s 66(1A) of the 1987 Act; and
(d) the degree of permanent impairment resulting from injury.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) Supplementary report of Dr James Powell, dated 27 January 2021; and
(d) Documents attached to an Application to Admit Late Documents (AALD) lodged by the respondent on 25 January 2021 subject to the findings below.
Legal Professional Privilege
At the conciliation conference and arbitration hearing, Mr Williams objected to the admission of two reports attached to the AALD lodged by the respondent on 25 January 2021, namely:
(a) a report of Dr Jorgen Hellman, dated 16 November 2016, at pp 29-30 of the AALD; and
(b) a report of Dr Max Lenzer, dated 29 March 2016, at pp 541-542 of the AALD.
Submissions on the admission of those reports were made orally and recorded.
Mr Williams referred to the following passage from the presidential decision of Liverpool City Council v Trovato[3] (Trovato) and submitted that it had been held that legal professional privilege applies in Commission proceedings:
“It can be seen from the above discussion that, while the rules of evidence, and the Evidence Act 1995 do not apply to the Commission, a party in Commission proceedings will have the benefit of the ‘common law right’ or ‘immunity’ of legal professional privilege, unless it has been expressly and unequivocally excluded by statute. There is no such express exclusion in the Workers Compensation Acts.
There are a number of elements of legal professional privilege. Firstly, the legal ‘communication’ must have been made by a lawyer, when he or she was acting in that capacity for the client, in this case, the Worker. Secondly, the communication must have been made with the dominant purpose of giving legal advice, or in relation to anticipated, or pending, legal proceedings. Thirdly the advice must have been confidential.
Whether legal proceedings are anticipated is a matter of fact in each case, taking into account the subject-matter and the context in which the communication came into existence. (Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd & Ors [1998] 81 FCR 526).”
[3] [2004] NSWWCCPD 15 (24 March 2004).
Mr Williams said the two reports in question had been written to the applicant’s solicitors pursuant to letters of instruction by the solicitors. The reports were not treating reports but responded to questions put by the solicitors. The reports had clearly been prepared for the dominant purpose of anticipating proceedings in the Commission. Both reports were written in 2016 and notices disputing liability had been issued in 2015. The documents were not supplied to the Commission by the applicant but were produced pursuant to a Direction for Production.
Mr Williams submitted that the documents were governed by legal professional privilege and should not be admitted in the proceedings.
Mr Doak submitted that the formal rules of evidence do not apply in Commission proceedings. The documents were from the applicant’s treating doctors and relevant to the issues in dispute. If they were not admitted the respondent would ask the Commission to draw an inference that they did not assist the applicant’s case. It was noted that the applicant did not wish to rely on evidence from either his treating surgeon or treating general practitioner.
I have considered the submissions made by the parties. Although s 354(2) of the 1998 Act provides that the rules of evidence do not apply in the Commission, I accept that Trovato is authority for the proposition that a party in Commission proceedings will have the benefit of the ‘common law right’ of legal professional privilege, unless it has been expressly and unequivocally excluded by statute. There is no such express exclusion in the Workers Compensation Acts.
In considering whether the documents in question are subject to legal professional privilege, useful guidance can be obtained from ss 118 and 119 of the Evidence Act 1995 which provide that in order for legal professional privilege to apply there must be:
· the existence of a client and lawyer relationship,
· the confidential nature of the communication or document, and
· the communication or document was brought into existence by the client, lawyer or another person for the dominant purpose of either:
oenabling the client to obtain, or the lawyer to give legal advice or provide legal services, or
ofor use in existing or anticipated litigation.
I am satisfied on the face of the reports in question that a client and lawyer relationship between the applicant and his solicitors was in existence at the time the reports were prepared. I am also prepared to accept that the reports were brought into existence for the dominant purpose of enabling the applicant’s solicitors to give legal advice or provide legal services to the applicant in respect of his potential entitlement to workers compensation.
The final element is whether the reports are confidential. The report from Dr Hellman is marked “WITHOUT PREJUDICE - NOT TO BE RELEASED TO THIRD PARTIES WITHOUT MY WRITTEN PERMISSION”. The information contained in the report is of a nature to have the quality of confidence. Dr Lenzer’s report is similar in nature although it lacks any mark or indication on the face of the document that it was intended to be confidential.
There is no evidence before me that either report was previously provided to the respondent or insurer or that it has otherwise been given or received previously in way which would be inconsistent with the documents being confidential. The reports were not initially produced to the Commission by either party to these proceedings but rather were produced in response to a Direction for Production by Dr Hellman’s office and the Andrew Nash Clinic.
Importantly, however, the applicant was given first access to the documents when they were produced. The purpose of first access to medical records being given to the worker is so that he or she can consider whether privilege should be claimed over any of the documents. No claim of privilege was made by the applicant at that stage and the matter proceeded in the ordinary course so that access to the documents was given to the respondent. The reports in question are now before me in these proceedings under cover of an Application to Admit Late Documents lodged by the respondent.
The applicant’s failure to claim privilege when given first access to the documents has therefore resulted in the disclosure of the reports to the respondent and was inconsistent with the maintenance of confidentiality over the reports. This, in effect, has constituted a waiver of any privilege, had it existed.
Inadvertent disclosure may not always result in a waiver of privilege, so long as the party who committed the error acts promptly upon realising it[4]. In this case, however, the applicant had access to the report of Dr Hellman from 23 December 2020 onwards and access to the report of Dr Lenzer from 18 January 2021 onwards. The reports were served and lodged under an Application to Admit Late Documents more than 7 days prior to the conciliation conference and arbitration hearing at which the objection was first made.
[4] See, for example, Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46.
I am not satisfied in the circumstances that the reports are covered by legal professional privilege. The applicant has not objected to the admission of the reports on any other basis.
The reports are directly relevant to the issues arising in the proceedings. They, in large part, repeat evidence already before the Commission in other documents. The opinions contained in the reports were capable of being addressed in submissions at arbitration. I am satisfied, in all the circumstances, that it is in the interests of justice that the documents be admitted in the proceedings.
Applicant’s evidence
The applicant’s evidence is set out in written statements made by him on 9 April 2015, 25 April 2015, 2 July 2015 and 6 October 2020.
In his first statement, the applicant stated that in or around 2010, he was told he had arthritis in his hips after attending Belmont Hospital for groin pain. After undergoing scans, doctors found osteoarthritis and the applicant was prescribed anti-inflammatories. The osteoarthritis in the applicant’s hips did not cause any pain or incapacity for work until the applicant injured his left hip in the accident on 16 January 2013.
The applicant subsequently developed pain in his right hip due to overcompensation from the left hip injury.
The applicant said his duties for the respondent included driving a truck to pickups and deliveries, forklift operating, freight sorting, computer reports and operating the tail lift on the delivery truck.
On 16 January 2013, the applicant was making a pickup at Singleton Toyota. After picking up a pallet of goods, the applicant loaded the pallet onto the truck. The applicant was required to manually operate the tail lift platform as the remote control was not working. As the applicant was climbing onto the tail lift platform, his hand slipped from the corner of the truck and he fell backwards. The applicant hit the tail lift platform, which spun him sideways, and he landed heavily on the ground on his left side and hip.
The applicant immediately felt pain in his left hip, right arm and hand and left side. There were two witnesses to the accident. The applicant contacted his employer and his manager was notified.
The applicant was in pain but had another pickup to do. By the time he got to the next job he was in so much pain that he was visibly limping. When the applicant returned to the depot, his manager made an appointment with the respondent’s workers compensation doctor,
Dr Mary McGinty. The applicant was referred for scans.On around 18 February 2013, the applicant was cleared for pre-injury duties by Dr McGinty. The applicant still had left hip pain but was afraid that his employment would be terminated if he didn’t get back to work as soon as possible. Stepping up into the truck and lifting items from the floor caused the applicant more pain and discomfort. The applicant also began to experience pain in his right hip from having to compensate for the left hip while doing his usual duties.
The applicant struggled on for the next eight or nine months but was in so much pain that he was taking eight Panadeine Forte per day. The applicant purchased a ladder to assist him in getting in and out of the truck. The pain was so intense in both hips that the applicant was crying some days. The applicant decided to consult his usual general practitioner, Dr Max Lenzer who referred the applicant to orthopaedic surgeon, Dr Jorgen Hellman.
The applicant saw Dr Hellman on or around 17 October 2013 and was advised that he would need a left hip replacement.
The applicant told his manager about the recommended surgery and his response was that the matter was not work-related and he thought it was related to the applicant’s sports injuries. Believing that his employer was not going to cover the surgery on workers compensation, the applicant was placed on a public waiting list. The applicant was attending work using a cane and ladder and continuing to take medication.
The pain in the both of the applicant’s hips became so bad that he contemplated using two canes to get around. The applicant struggled on waiting for his name to come up on the public waiting list. Eventually, the applicant could not bear the pain any longer and he went back to Dr Hellman to see if the surgery could be done sooner. After reviewing the applicant, Dr Hellman called the hospital and he was admitted two weeks later for surgery.
In or around June 2014, both hips were replaced at the same time.
Following the surgery, the applicant attended physiotherapy. The applicant was terminated from his employment as a result of not being able to return to pre-injury duties.
In his statement dated 2 July 2015, the applicant reiterated that although he had been diagnosed with degenerative osteoarthritis in his hips prior to the injury on 16 January 2013, the symptoms he experienced then were substantially different to those experienced after the injury.
In 2010 when the applicant first sought medical attention for the condition, he was prescribed anti-inflammatories and no pain relief. Prior to commencing full-time work with the respondent, the applicant underwent a pre-placement medical, which he passed. The applicant experienced no pain during his employment as a result of the degenerative condition and was able to complete his tasks. The applicant had no issues walking.
Although the applicant was off work for only two weeks after the injury, the applicant was still experiencing discomfort when he returned to work. The discomfort gradually increased to the point where he was struggling with his duties.
In the statement dated 6 October 2020, the applicant stated that the symptoms in his right hip started to be noticeable around three to six months after the injury and got increasingly worse. The applicant found that in order to get in and out of the trucks he would need to jump down and put all his weight onto his right hip to compensate for how bad the left hip was. The applicant started to use the ladder to get in and out of the truck to prevent him from having to jump down onto the right hip and help make things easier for both hips. People would often comment about his use of the ladder.
The applicant used a cane at work and when using the cane, the applicant would rock from side to side when he walked due to the pain in his left hip. This put pressure on to the right hip. The applicant’s family started calling him “Rocky” because of the altered gait and the way he rocked from side to side as he walked. The pain started to become terrible in both hips.
Incident/hazard report
An incident/hazard report completed on 16 January 2013 by the applicant’s manager refers to a fall off the rear of the tail lift of a truck. It was reported that a pallet had been loaded on a pallet jack which was raised to the height of the rear of the truck. The applicant was about to get back onto the tray when he slipped and lost his grip on the handle and fell onto the concrete.
The injury was described as a soft tissue injury to the left hip, right wrist strain and abrasion to the left elbow. The applicant was seen by Dr Mary McGinty and referred for x-ray of the hips and physiotherapy.
Mr Teasey
The applicant’s manager, Mr Peter Teasey, provided a written statement on 9 December 2014.
Mr Teasey said he recalled that on 16 January 2013 he received a call from the applicant telling him that he had fallen off the tailgate of one of the trucks. Asked if he was okay, the applicant said he had hurt his backside a bit. When the applicant returned to the depot he gave the same account and Mr Teasey drove the applicant to the doctor.
The doctor examined the applicant and referred him for x-rays of his right arm/wrist and hip area. The applicant was placed on restricted duties for four hours per day until 1 February 2013.
The x-rays were performed on 18 January 2013. The report for the x-ray of the hip said that there was no fracture or dislocation but the findings were consistent with bilateral moderately advanced hip joint osteoarthritis. The applicant continued on restricted duties until 18 February 2013 when he was deemed fit for pre-injury duties. The applicant returned to work as normal.
Mr Teasey said he later noticed the applicant to be visibly limping:
“Around early 2014 I had noticed Dale did not appear to be moving to well, he was visibly limping. l became concerned about Dale's well-being and his ability to move freely.
At 1.30pm on the 28th of March 2014, I had a conversation with Dale about his well-being after what I had observed. The Newcastle Operations Manager, Steve Drummond was present during this conversation. I asked Dale how he was feeling and he told me that he was feeling better today. l told Dale that Toll was concerned for his wellbeing and the fact his job could be exasperating the issues with his hips.
Dale told me that his hip problems were due to him playing sport, in particular soccer which he stated he had played since he was six years old. Dale further told me that his doctor, Dr Lendzer, had told him that his hip problems were caused because of sport and that he would need both his hips replaced. Dale told me that his doctor had told him this some time ago.”
Mr Teasey said the applicant went to see an orthopaedic surgeon on 30 May 2014 who agreed the applicant needed the operation. The respondent paid for the consultation. The doctor’s report did not mention anything about the hip injuries being work-related.
The applicant had hip surgery in June 2014 and took sick and annual leave.
On 22 September 2014, the applicant presented a doctor’s certificate saying he was ready to work. Mr Teasey sent the applicant to the company doctor at Chromis. The report from Chromis said that the applicant could not squat or bend or lift his leg more than 32 cm. The first step on a truck was 68 cm high. There were other medical conditions of concern mentioned in the report. The applicant was later presented with a “show cause” letter.
As the applicant did not respond to the show cause letter within the allocated time, termination letter was prepared. On 1 December 2014, the applicant attended a meeting with a union delegate and signed the termination letter.
Mr Drummond
The respondent’s operations manager, Mr Steve Drummond, prepared a written statement on 15 December 2014.
Mr Drummond stated:
“About 18 months ago, I am not sure of the exact date. I started to notice Dale was struggling to get around work. I would see him struggle to get in and out of his own family car. He would really struggle to get in and out of the work truck. Even the fork lift was a struggle. I didn't know what was wrong with Dale, he never came and made any complaints to me. As the Operations Manager I believe that I was the person he should have come and seen if he was having any problems.
l would speak to Dale at times in passing and ask him how he was going. He would tell me that his doctor had him on some medications and he was on a waiting list to get his hips operated on. He used to say to me that his hips were no good from him playing years of soccer.”
Mr Hall
The respondent’s fleet controller, Mr Gary Hall, provided written statement on 19 December 2014.
Mr Hall recalled the applicant phoning him on 16 January 2013 to say he had fallen off the tailgate of his truck. The applicant told Mr Hall that he was a bit sore. Mr Hall thought the applicant had told him that he had hurt his leg or backside.
Mr Hall stated:
“About 6 months ago I noticed Dale started waddling around work. He used to use a little step ladder to help him get up into his truck. He used to use the step ladder to get up onto the step of the truck, then he would lean down and put the ladder into the truck and he would get in.
I used to look at Dale just getting around in general and he struggled. Dale had told me that he needed to get his hips replaced. Sometimes when I would see him getting around I would tell him to just bite the bullet and go and get them done. l think he was on a waiting list for the operation.”
Treating medical evidence
Clinical records of the Andrew Nash Clinic dating from 2002 are in evidence. A hip x-ray performed on 19 December 2010 was reported to show:
“There are early OA changes seen at both hip joints particularly on the right.”
On 9 February 2011, Dr Max Lenzer recorded a clinical note referring to reported left groin pain for two months and minimal osteoarthritis shown on x-ray.
A bone scan performed on 14 February 2011 noted a two month history of progressively worsening left groin pain and was reported to show:
“The bone scan demonstrates active arthritis in both hips most marked and more focal on the left. The scan indicates moderately advanced degenerative arthropathy in the left hip joint.”
A WorkCover certificate was issued by Dr Mary McGinty on 16 January 2013 diagnosing a “soft tissue injury left hip” when the applicant fell off the back of a truck. The applicant was certified fit for suitable duties.
Physiotherapist Cameron Bullus reported to Dr McGinty on 29 January 2013 that the applicant’s hip was “clinically normal aside from the loss of range of motion from osteoarthritis, and Dale considers it back to pre-injury status.”
The report of an x-ray of both hips performed at the request of Dr McGinty on 18 January 2013, records a history of trauma. The findings were said to be consistent with bilateral “moderately advanced” hip joint osteoarthritis.
On 18 February 2013, Dr McGinty issued a WorkCover certificate certifying the applicant as fit for pre-injury duties.
On 17 October 2013, Dr Max Lenzer recorded:
“increasing hip and knee pain left> right
pain and reduced rom hips
some left trochanteric tenderness
pain with knee mvt I>> r
xrays >> refer hellman”The report of an x-ray done on 18 October 2013 recorded:
“There is moderately severe osteoarthritis of the hip joints, slightly more advanced on the left.”
On 13 November 2013, orthopaedic surgeon, Dr Jorgen Hellman prepared a report for
Dr Lenzer. The report indicated that the applicant had bilateral hip arthritis, left worse than the right. Although the applicant had bilateral groin pain for more than two years, he had a fall four months earlier which had aggravated the left hip. The applicant was in constant pain through the day, which was slowing down his walking. X-rays of the hips revealed bone on bone degeneration on both sides.On 29 January 2014 a consultation was recorded by Amy Hipwell:
“Pt limping O/A- pain in hips++ l hip worst than right. Pain 9/10 when walking around. 4/10 when sitting down but after sitting for long periods cannot mobilise easily.
Waiting list for L hip replacement 12 months long pt told but is concerned that he will not last another 2 months. Still working but barely able to cope at work however needs sick leave for when replacement occurs.
Taking Diclofenac mane and panadeine forte for breakthrough pain.”On 16 April 2014, Dr Lenzer recorded:
“increasing hip pain struggling to walk cannot put on shoes/socks/ struggles on the toilet
job at risk
>> will write to jorgen hellman
pan forte”On 23 April 2014, Dr Hellman wrote to Dr Lenzer that the applicant had agreed to have his name placed on waiting list for joint replacement surgery. Dr Hellman said there was an average waiting time of 16 months and the applicant was unable to be reclassified as a priority.
On 19 May 2014, Dr Lenzer recorded that the applicant had requested a certificate for the week as he was unable to work due to his hip pain and disability. On 23 May 2014,
Dr Lenzer recorded that the applicant was going to make an appointment to see Dr Hellman.On 4 June 2014, Dr Hellman reported to Dr Lenzer that the applicant had deteriorated significantly and was extremely slow to mobilise now. The applicant had been referred for a further x-ray which showed the development of avascular necrosis (AVN) in his hips.
Dr Hellman had contacted the hospital to try to expedite the applicant’s procedure and change it from a left to a bilateral hip replacement.An operation record dated 26 June 2014 confirms that the applicant underwent bilateral hip replacement at the Royal Newcastle Centre on that date.
On 16 July 2014, Dr Lenzer recorded that the applicant had undergone a recent bilateral total hip replacement with good result. The applicant was on “few pan forte a day only”.
On 15 August 2014, Dr Richard Sherbon recorded that the applicant had requested a Centrelink certificate for his bilateral total hip replacement from 26 June 2014 to 26 September 2014. The applicant had limited mobility and was walking using sticks.
A case conference with the applicant and the respondent was held with Dr Lenzer on 23 October 2014.
On 2 December 2014, Dr Sherbon recorded that the applicant was going to claim workers compensation for his hip replacements due to an exacerbation of osteoarthritis from a fall on 16 January 2013. It was recorded that the applicant had some capacity for work but it was limited. The applicant’s employment had been terminated.
Dr Ghabrial
The applicant relies on medicolegal reports prepared by orthopaedic surgeon, Dr Youssef Ghabrial, dated 9 September 2015, 12 July 2017 and 9 September 2019.
In his first report, Dr Ghabrial took a history of the applicant falling off a truck onto his left hip and developing increasing pain in his hips since then. Dr Ghabrial had a history of pain in the groin and x-rays at both hips being performed in 2010 which showed osteoarthritic changes. The applicant was, however, managing work without any problems and did not take any medications apart from occasional anti-inflammatories.
As a result of the fall on 16 January 2013, the applicant’s symptoms became quite severe and the applicant was referred to Dr Hellman who recommended and eventually performed bilateral total hip replacements.
Dr Ghabrial gave the opinion,
“Mr. Cameron developed a severe aggravation to both hips as the result of an injury at work on the 16th January 2013.
…
From the history given to me by Mr. Cameron, I believe that his employment is considered to be the main contributing factor to the present clinical features, disabilities and impairment.”Dr Ghabrial made an assessment of whole person impairment of both hips and scarring of 30% with a 1/5 deduction due to the pre-existing osteoarthritic changes in hips. This resulted in a final assessment of 24% WPI as a result of “the injuries” sustained at work on 16 January 2013.
In the 12 July 2017 report, Dr Ghabrial again took a history of injuries to the hips on 16 January 2013. The applicant continued with increasing symptoms in the hips. The applicant had previously been diagnosed with arthritis of the hips in 2010 but continued with work without any problems and did not take medication other than occasional anti-inflammatory tablets. Dr Ghabrial performed a further examination and made an assessment of WPI that was identical to his previous assessment.
On 9 September 2019, Dr Ghabrial prepared a further report. On that occasion, he recorded a history as follows:
“I understood that his injuries to both hips occurred on 16 January 2013 when he was employed as a Truck Driver with Toll Global. He was picking up freight from a customer and was required to use the tail lift on the truck. The tail lift remote was not working and he had to use the lift manually, requiring him to climb into the back of the truck. He fell from the tray of the truck onto his left hip. He developed pain in his left hip initially. He, soon after, developed pain in his right hip which he considered was due to overuse of his right hip as he was not able to walk on his left leg. He was diagnosed with minor osteoarthritis of both hips in 2010. He took anti-inflammatory medications and continued with his employment. However, his symptoms continued to deteriorate.”
Dr Ghabrial then took a history of subsequent treatment before giving the following opinion:
“Mr Cameron sustained an injury to the left hip on 16 January 2013 in an incident at work, as described. He developed pain in his right hip soon after as well which I believe is the result of overuse as he was not able to walk appropriately as the result of his left hip injury. Clinical assessment and investigations confirmed a severe aggravation of his pre-existing minor osteoarthritic changes. His condition in both hips deteriorated rapidly following the injury of 16 January 2013 and he required, after failure of conservative treatment, bilateral total hip replacement on 25 June 2014 with a fair result.”
On that occasion, Dr Ghabrial assessed the applicant as having 38% WPI of the hips and skin, reduced to 30% WPI after a 1/5 deduction due to the pre-existing minor osteoarthritic changes at the hips.
Dr Powell
The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr James Powell, dated 17 May 2018, 27 July 2020 and 27 January 2021.
Dr Powell first examined the applicant on 26 April 2018. In his corresponding report of 17 May 2018, Dr Powell took a history of the applicant falling and landing on his left side and experiencing pain around the left hip region in January 2013. Dr Powell took a subsequent history as follows:
“Mr Cameron found that around six months after the fall that he started to experience increasing pain about the left hip region. Initially this was in the groin area, but then became more generalised about the hip. It was aggravated by standing, walking, climbing in and out of vehicle. He tended to limp but did not use any external support. He found that similar symptoms started to develop in the right hip region in late 2013, and became more severe to the point where he had difficulty walking due to bilateral hip pain. Mr Cameron saw his local doctor, further scans were done and it was found that he had osteoarthritis in both hips. He was referred to Dr Hellman, Orthopaedic Surgeon, who advised him that at some stage he would come to joint replacement. He took analgesics and anti-inflammatories, but his pains continued to trouble him and his level of physical activity was steadily diminishing.”
Asked about the causation of the applicant’s condition, Dr Powell noted that the applicant had established osteoarthritis at both hips at the time of the initial fall, being a long-standing condition. The applicant had indicated, however, that he was unaware of this and had been managing running sport up until the age of 52, despite the developing disease. Dr Powell responded:
“The incident of the fall onto the left side with a period of symptomatic improvement and then deterioration suggests that the mechanical stimulus of injury led to an aggravation and deterioration of the left hip osteoarthritis rendering it symptomatic.
The right hip deterioration and symptoms are less easy to explain on the basis of trauma.
It is unlikely that the right hip suffered any direct injury in the fall and Mr Cameron at that time was not aware of any complaints.
Symptoms developed subsequently. This is likely to represent the development of symptoms in an already advanced disease process and a minor alteration in physiologic loading has led to the development of symptoms and this represents a symptomatic aggravation rather than deterioration of disease or acceleration of disease.”
Dr Powell was provided with the clinical notes from Andrew Nash Clinic and asked whether the applicant suffered a short aggravation of his right hip. Dr Powell responded:
“Mr Cameron’s description was of initial pain in the region followed by a period of improvement and he was able to get back to work, and then deterioration.
As outlined above, he was found to have osteoarthritis and although this condition was pre-existing, likely to have been developing for many years, and not apparently impinging on his work and physical activities (which is quite possible), a trauma event of significance (as opposed to a mechanically insignificant event) can in some individuals cause deterioration of an arthritic joint both symptomatically and in range of motion through acceleration of the degenerative process.
…
With respect to the left hip, Mr Cameron’s description of incident and development of symptoms is consistent with mechanically aggravated osteoarthritis for which he undertook surgical management on the basis of pain symptoms. The improvement of these symptoms with his joint replacement is a good indicator that his arthritic hip was the source of at least the majority of his pain symptoms.”Dr Powell then considered the right hip and said it was more difficult to explain on the basis of trauma and described a range of “confounding factors” that could have brought the symptoms to the fore. Dr Powell concluded:
“Given the length of time since Mr Cameron’s incident and coming to joint replacement, it is unlikely that any alteration he might have made on the basis of his left hip symptoms has had any influence on the natural history of the right hip disease as the time period was too short. His proceeding to right hip replacement is more of a serendipitous arrangement with the work incident than direct.”
In making an assessment of the degree of permanent impairment, Dr Powell noted that there was WPI at both hips. Dr Powell assessed 14% WPI after a 1/10 deduction at the left hip. With respect to the right hip, Dr Powell said:
“With respect to the right hip, the association with his work is, as outlined above, less clear. There was no direct aggravation of the hip from the work incident. Symptoms developed from the underlying disease process, but the main reason that Mr Cameron became symptomatic was the advanced nature of the pre-existing disease process rather than the effects of incident. In this respect, the right total joint replacement impairment is not work related.”
Later in the same report, Dr Powell said,
“In the right hip, although Mr Cameron has impairment from having had a total joint replacement, it is the presence of the pre-existing disease that determined his symptomatic presentation with minor physiologic change imposed by his left hip injury and altered gait and so is not considered work related.”
In the supplementary report 27 July 2020, Dr Powell was asked to reconsider the deduction he made pursuant to s 323 of the 1998 Act in his previous assessment, noting the 1/5 deduction made by Dr Ghabrial.
In responding, Dr Powell noted that Dr Ghabrial had a different history of both hips being symptomatic from the time of the workplace incident. On the history provided to Dr Powell the right hip symptoms did not trouble the applicant until late 2013. Dr Powell also noted
Dr Ghabrial’s assessment of impairment of the skin. Dr Powell revised his assessment and, after making a 1/5 deduction found 12% WPI of the left hip.With respect to the right hip, Dr Powell reiterated his previous opinion:
“At the right hip, there is no rateable impairment in relation to the workplace incident in view of the history obtained in the additional information which indicates that
Mr Cameron’s development of symptoms nearly 12 months following the incident would represent the natural history of his pre-existing condition, for which he was managed with total joint replacement coincidentally at the same time that he undertook that for his compensable component on the left hip.”In his final report of 27 January 2021, Dr Powell said he had reviewed the clinical notes of the Andrew Nash Clinic dating back to 2002. From 2010, the applicant was known to have osteoarthritis of both hips revealed on plain x-ray. The applicant had given a history that the symptoms about the hips were not sufficient for him to alter his work practices. Dr Powell said that, on reflection, his previous deduction of 1/5 appeared generous and he adopted a 50% deduction leaving 8% WPI of the left hip.
Dr Powell was asked whether the clinical notes caused him to change his opinion on causation. Dr Powell responded:
“Mr Cameron’s workplace incident has had no influence upon his disease process nor his progression to joint replacement on the right side, neither directly nor indirectly. There was no direct injury to the right hip.
There is no support for the concept of “overuse” or “consequential injury” from contralateral pathology in the literature, as outlined in publications such AMA Guides to the Evaluation of Disease and Injury Causation, 2nd Edition, Chapter 33.”
Applicant’s submissions
Mr Williams said it was common ground that there was an injury to the left hip. The issue was whether there was a consequential condition at the right hip. Mr Williams said that it was also common ground that the applicant had a pre-existing hip condition. Following the injury, the applicant experienced an increase in right hip symptoms. Mr Williams said it was the applicant’s submission that, applying the test in Kooragang Cement Pty Ltd v Bates[5], there was a right hip impairment as a result of the injury to the left hip.
[5] (1994) 10 NSWCCR 796 at [810].
Mr Williams referred to the applicant’s statements and noted that prior to the injury the applicant had experienced a different type of pain. The applicant had given evidence that because of the left hip injury he found that in order to get in and out of trucks he would need to jump down and put all of his weight onto his right hip in order to compensate for the left hip. The applicant was a heavy man and this action would have involved a significant impact on his osteoarthritic but asymptomatic (other than with respect to the groin) right hip.
On the evidence of the applicant there was a development of a consequential condition in the right hip as the symptoms did not emerge until after favouring the left hip injury.
Mr Williams submitted that the applicant’s case was consistent with the clinical notes of
Dr Lenzer as referred to above. The applicant’s evidence was also consistent with
Dr Hellman’s records. Mr Williams also observed that Mr Teasey had observed the applicant visibly limping. Mr Drummond and Mr Hall had also noted the applicant struggling to get around including getting in and out of his own family car. The applicant was observed to be using a step ladder to get into the truck and “waddling” around work.
Mr Williams submitted that there was nothing in the material before the Commission that suggested the applicant was experiencing right hip pain prior to 16 January 2013. There was no suggestion of prior injury to the right hip. The right total hip replacement was proposed due to the serious deterioration of the applicant’s condition.
Mr Williams submitted that the medicolegal reports in evidence did not address the correct legal test. By referring to the “main contributing factor” it appeared the experts were looking for an “injury” to the right hip rather than a consequential condition.
Mr Williams submitted that Dr Ghabrial’s first reports appeared to misunderstand the original mechanism of injury. This was corrected in the report dated 9 September 2019 in which
Dr Ghabrial took a history of developing pain in the right hip soon after the injury as a result of overuse. Mr Williams noted that Dr Ghabrial did not have the benefit of the most recent statement from the applicant which also described the mechanism by which he would get out of the truck following the left hip injury.Mr Williams submitted that Dr Powell did not have a complete history from the applicant in his first report. Dr Powell’s report did not have the same level of detail as appeared in the applicant’s statement of the manner in which he favoured his injured hip. Mr Williams described Dr Powell’s report as problematic in two respects. First, a proper history detailing what the applicant did to adapt to his left knee pain was absent. Second, Dr Powell failed to explain the extraordinary coincidence of the right hip becoming symptomatic temporally in line with the left hip injury.
Mr Williams conceded that Dr Powell had a more complete history in his more recent supplementary report but submitted that he was still addressing the wrong question of whether there was an “injury” to the right hip. Dr Powell failed to grapple with the change in the applicant’s right hip symptoms flowing from the left hip injury. Although he referred to literature in support of his opinion, Dr Powell failed to grapple with the specifics of the applicant’s evidence.
Mr Williams noted the dispute raised by the applicant with respect to s 66(1A) and submitted that only one claim had been made. The present proceedings did not relate to a new claim. Referring to the following passage in Woolworths Ltd v Stafford[6] at [91], Mr Williams said that the applicant was entitled to amend his claim:
“It is true that neither the legislation nor the Workers Compensation Commission Rules 2011 (the Rules) deal with the amendment of the initial letter of “claim” for permanent impairment compensation or a permanent impairment claim form. That is hardly surprising. As explained earlier in this decision, when a claim is at that informal stage, the purpose of making a “claim” is merely to start the claims procedures in Ch 7. It is not a formal pleading. To suggest that, prior to the resolution or determination of the claim, by making a demand for permanent impairment compensation for a certain level of permanent impairment, the worker is permanently locked into that claim, and cannot amend it, is untenable and contrary to all principles of justice.”
[6] [2015] NSWWCCPD 36.
Respondent’s submissions
Mr Doak noted the attack made on Dr Powell’s evidence by Mr Williams but observed that the respondent bore no onus in the proceedings. It was for the applicant to prove his case.
Mr Doak submitted that the “high water mark” of the applicant’s case was set out in the final report of Dr Ghabrial. Dr Ghabrial’s earlier reports had recorded a history of a frank “injury” sustained to both hips with a deterioration thereafter. Mr Doak submitted that Dr Ghabrial had not simply misunderstood the applicant’s circumstances but rather had been given that history by the applicant. No explanation had been given as to why the subsequent history of a consequential condition was accepted by Dr Ghabrial when he had previously been prepared to accept that there was an injury to that hip. Mr Doak observed that Dr Ghabrial had not been given the applicant’s statements.
Mr Doak submitted that the applicant’s statement evidence was inconsistent with the history given to Dr Ghabrial. The symptoms in the right hip did not come on “soon after” the left hip injury as recorded by Dr Ghabrial. The applicant’s evidence of jumping down from a truck was completely at odds with what Dr Ghabrial had said with regard to overuse due to not walking properly. Dr Ghabrial was never given history of problems getting out of a truck.
Mr Doak submitted that it was the applicant’s onus to satisfy the Commission on the balance of probabilities that he had sustained a consequential right hip condition. Dr Ghabrial’s reports did not assist the applicant in discharging his onus.
Mr Doak submitted that the clinical notes of Dr Lenzer did not assist the applicant either. The applicant attended Dr Lenzer on 5 December 2012 before the injury. The next entry was dated 27 February 2013, after the injury had occurred. The applicant was reported on that occasion to have said he had been well since his last visit. Mr Doak contrasted this with the evidence of the applicant that despite being certified fit for pre-injury duties on 18 February 2013 he still had pain in his left hip. Mr Doak noted that there was no reference in
Dr Lenzer’s clinical notes to any hip symptoms until 17 October 2013 despite multiple consultations in the intervening period.Mr Doak noted that on 8 July 2013 there was reference in Dr Lenzer’s clinical notes to “stress +” at work. Mr Doak said this was evidence of the applicant reporting work matters to Dr Lenzer. Although this date was almost six months post injury there was still no reference to pain in either hip.
Mr Doak said an inference should be drawn that it was the applicant’s underlying osteoarthritis rather than the injury which had caused the need for surgery. The applicant’s evidence was completely at odds with the reporting to Dr Lenzer.
Mr Doak submitted that there must be evidence to provide a positive basis on which to conclude that the applicant had discharged his onus. Dr Ghabrial had not explained his views or addressed the change in history.
Mr Doak submitted that the history given to Dr Powell was more consistent with the general practitioner’s clinical records. Mr Doak submitted that despite Dr Powell’s use of the expression “main contributing factor”, the subsequent use of the terms “directly” or “indirectly” indicated that Dr Powell had asked the correct question with regard to the influence of the injurious event. Dr Powell had given a clear opinion that the right hip symptoms were neither directly nor indirectly caused by the injury, about which he had a clear history. Mr Doak submitted that Dr Powell had in this regard given an opinion that there was neither an injury nor a consequential loss at the right hip.
Mr Doak submitted that in order for weight to be given to Dr Ghabrial’s medical opinion it must have set out the assumptions on which his opinion was based and provided the reasons for his conclusions. Owing to these omissions in Dr Ghabrial’s report, it would be given little weight and the applicant’s claim must fail.
Mr Doak submitted that the applicant had attempted to make two claims for lump sum compensation inconsistently with s 66(1A) of the 1987 Act. An earlier claim for permanent impairment that “results from the injury” was made in 2015 as evidenced by the corresponding s 74 notice. Mr Doak submitted that that was a claim for permanent impairment resulting from an injury simpliciter to the right hip. The current claim, being one pertaining to consequential loss at the right hip was a second, impermissible claim.
Mr Doak distinguished Woolworths v Stafford on the basis that the amendment made in that case was to degree of permanent impairment. Mr Doak submitted that the claim now being made was different entirely to the 2015 claim. In 2015, the applicant claimed permanent impairment compensation in respect of a right hip injury. What was now been claimed was permanent impairment resulting from a consequential condition at the right hip. So far as the claim related to the right hip it was a second claim.
Applicant’s submissions in Reply
Mr Williams submitted that the respondent’s arguments with respect to s 66(1A) applied only in relation to the right hip. No issue was taken with the claim with respect to the left hip. In the absence of any liability dispute to the left hip it could proceed to a Medical Assessor to assess the degree of permanent impairment.
FINDINGS AND REASONS
Consequential condition
Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a 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
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
It has been accepted by the respondent that the applicant sustained an “injury” to his left hip on 16 January 2013. Consequential scarring resulting from the injury is also not disputed. There is, however, a notified dispute as to whether the applicant has sustained a consequential condition at his right hip as a result of the injury to his left hip.
It is not necessary for the applicant to establish that any condition at his right hip was itself an ‘injury’ pursuant to s 4 of the 1987 Act. Deputy President Roche in Moon v Conmah[7] observed at [45]-[46]:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[7] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services[8], Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[8] [2013] NSWWCCPD 4.
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[9], where Kirby P said (at 461) (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[9] (1994) 10 NSWCCR 796 at [810].
His Honour said at 463–464:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
It is the applicant who bears the onus of establishing, on the balance of probabilities, that a consequential condition at his right hip has been sustained.
In considering that question, I note at the outset that in excess of 2000 pages of evidence were lodged with the Commission in these proceedings. Whilst all of that material has been reviewed, I will limit my findings to the evidence to which I was referred in submissions at the arbitration hearing.
The applicant has, in his written statements, given an account of the injurious event on 16 January 2013, which is corroborated by the other evidence before me. There is no factual dispute as to the existence or mechanism of injury to the left hip.
It is also clear on the evidence before me that both of the applicant’s hips had been symptomatic and had been found on investigation to be arthritic prior to this incident. The applicant has, however, given uncontradicted evidence that those symptoms were manageable, did not interfere with his work or ability to walk, and required only occasional use of anti-inflammatory medication. The clinical records of the Andrew Nash Clinic are broadly consistent with this account, showing no further complaint of hip symptoms after February 2011 until after the work incident.
Although it has been accepted by the respondent that the work incident caused an injury to the applicant’s left hip, the ongoing effect of that injury was initially disputed. In the dispute notice issued on 29 May 2015, the insurer found that the injury had resolved in reliance on the WorkCover certificate issued by Dr McGinty certifying the applicant as fit for pre-injury duties.
The contemporaneous evidence does suggest that during the period in which the applicant was not performing his usual duties following the incident, his left hip began to feel better. The applicant is recorded to have indicated that it had returned to its pre-injury state. There is also no indication in the contemporaneous medical evidence from the period after the applicant returned to work until October 2013 of ongoing or increasing symptoms at the left hip.
Despite being certified fit to perform pre-injury duties and in fact returning to his pre-injury duties after a period off work or on light duties, the applicant has, however, given evidence that his hip remained symptomatic and rapidly deteriorated. The applicant describes experiencing difficulty lifting items from the floor and particular difficulty getting in and out of the trucks. The evidence from Mr Teasey suggests that the lower step of the trucks was at a height of 68 cm.
The applicant’s evidence of ongoing difficulties of this nature is corroborated to some degree by the other witness evidence. Mr Drummond, in particular, in his statement dated 15 December 2014 recalled noticing the applicant struggling to get around work about 18 months earlier, although he was not sure of the exact date. Mr Drummond, Mr Teasey and Mr Hall have all corroborated the applicant’s claim that he was struggling to walk, appeared to be visibly limping or “waddling” and was using a step ladder to get in and out of his truck.
The witness evidence does not, however, indicate, nor does the applicant claim, that he told his work colleagues during this period that the hip symptoms were related to the fall on 16 January 2013. In fact, the witness evidence suggests that the applicant had indicated that his symptoms were related to sports. When the applicant first reported hip difficulties to
Dr Lenzer after the incident, some 10 months later on 17 October 2013, he does not appear to have reported any relationship to the work injury. The symptoms were described to be “increasing” and the left hip was said to be worse than the right. The applicant does not appear to have related the hip symptoms to the work injury in his consultations at the Andrew Nash Clinic or in his dealings with his employer until after his employment was terminated.The applicant did, however, report that his hip symptoms had been worse since the injurious event to Dr Hellman. In the report dated 13 November 2013, Dr Hellman recorded a history that although the applicant had bilateral groin pain for more than two years, he had a fall which had aggravated the left hip. Dr Hellman did describe the fall as having occurred four months earlier which would have placed it in around July 2013. In the absence of any other reference to a fall involving the left hip in the evidence, however, I accept that this was an error and a reference to the fall onto the left hip which occurred in January 2013.
The respondent’s medicolegal expert, Dr Powell, was given the same account and has provided reasoning as to why he has accepted it. Dr Powell reasoned that despite a period of symptomatic improvement, the mechanical stimulus of the injury led to an aggravation and deterioration of the left hip osteoarthritis.
The applicant’s own medicolegal expert, Dr Ghabrial, initially recorded a very different history, suggestive of a frank injury to both hips on 16 January 2013. Dr Ghabrial’s reports are, however, notable for their brevity and lack of detail in contrast to the reports of
Dr Powell. Mr Doak has submitted that Dr Ghabrial’s understanding of there being a frank injury to both hips flowed from the history given to him by the applicant. I accept that that is what Dr Ghabrial indicates on the face of his first report. That history is recorded, however, in the span of only a couple of sentences. The applicant’s first statement, which sets out the same history on which he now relies, pre-dates Dr Ghabrial’s first report by several months. I cannot discount the possibility, in these circumstances, that Dr Ghabrial has misunderstood or mis-recorded the history given to him.It is correct, as Mr Doak has observed, that Dr Ghabrial does not explain the inconsistency between the histories recorded in his first reports and his final report. It is necessary, however, to look at the evidence as a whole.
A consistent history is described in the applicant’s various written statements. The history provided to Dr Hellman and Dr Powell, and eventually provided to Dr Ghabrial in 2019 is broadly consistent also, in identifying an aggravation of left hip symptoms after the fall and, later, worsening right hip symptoms.
Mr Doak has, however, identified a possible inconsistency in the histories as to when the right hip symptoms increased. Dr Ghabrial’s final report suggests they developed “soon after” the left hip injury. The applicant’s most recent statement indicates that the right hip symptoms began to be noticeable around three to six months after the injury and got increasingly worse. The history given to Dr Powell was of the right hip symptoms developing in late 2013. I accept that there does in this regard appear to be an inconsistency as to the reported onset or increase in right hip symptoms.
That inconsistency must be viewed in the context of what has consistently been described as a gradual increase in symptoms. I accept that in these circumstances, it may have been difficult in hindsight to determine with precision when such symptoms commenced. I am not satisfied that the inconsistency is so material as to detract from the credibility of the applicant’s evidence or the histories provided to Dr Hellman, Dr Powell and subsequently
Dr Ghabrial.On this review of the evidence, I accept that the applicant’s left hip remained symptomatic after the fall and gradually worsened following the return to pre-injury duties. I also accept that the applicant began to develop worsening right hip symptoms several months after the return to pre-injury duties. I am satisfied that the applicant’s left hip symptoms caused an alteration in the applicant’s gait in the nature of limping or waddling or rocking. I am satisfied that the applicant had particular difficulty getting in and out of his truck. I accept that the lower steps of the applicant’s trucks were at a height of around 68 cm. As a result, I find the applicant’s evidence that he had to jump out of the truck to be credible. I also accept as credible, the applicant’s evidence that he altered the manner in which he got out of his truck by putting all his weight onto his right hip in order to compensate for his injured left hip. The developing symptoms in the applicant’s right hip led him to eventually cease this activity and use a step ladder to get in and out of the truck instead.
The applicant has attributed his worsening right hip symptoms to the left hip injury as a result of the manner in which he compensated for the left hip injury. This is, however, a matter for medical opinion.
Dr Powell’s opinion on this issue is somewhat opaque and appears to have changed over the course of his reports. In his initial report, Dr Powell’s attention appears to have been focussed initially on whether there was a traumatic injury to the right hip in the fall on 16 January 2013. Dr Powell said this was unlikely. Dr Powell said the symptoms were likely to represent the development of symptoms in an already advanced disease process. Dr Powell did, however, give the opinion that a “minor alteration in physiologic loading has led to the development of symptoms and this represents a symptomatic aggravation”.
This opinion is consistent with there being a consequential condition due to an alteration in physiologic loading resulting from the left hip injury. Dr Powell does not appear to have appreciated that this was potentially sufficient for the right hip condition to be compensable without the need for there to be an “injury” meeting the definitions in ss 4(a) or (b)(ii).
The language used by Dr Powell in the remainder of that report suggests he considered that the left hip injury needed to be the “main” reason that the applicant’s hip became symptomatic or a “direct” cause of the symptoms at the right hip. Despite accepting that there was a physiological change imposed by the left hip injury and altered gait, Dr Powell considered this to be “minor” in the context of the advanced degenerative disease and so not work related.
As the authorities cited above indicate, it is not necessary for the applicant to demonstrate that the left hip injury was “the main contributing factor” to an aggravation, etc of the right hip osteoarthritis or the direct cause of that pathology. All the applicant has to establish is that symptoms and restrictions in his right hip “resulted from” the left hip injury.
In his later reports, Dr Powell appears to have resiled, without explanation, from the view that there was any contribution from altered physiologic loading or gait to the applicant’s right hip symptoms. Dr Powell indicated that the development of symptoms nearly 12 months following the incident would represent the natural history of the pre-existing condition and it was “coincidental” or “serendipitous” that it occurred temporally around the same time as the left hip injury required surgery.
Dr Powell’s later opinions fail to engage at all with the applicant’s evidence, as supported by the respondent’s witness evidence, of waddling, limping, difficulty getting in and out of vehicles and, in particular, jumping from a height of 68 cm and placing most of his weight through the right hip when he needed to get out of his truck over the course of many months. I am not satisfied that this last mechanism, in particular, is addressed by the literature to which Dr Powell refers dealing with the concept of “overuse” or “consequential injury”.
There is no opinion from the applicant’s treating doctors, Dr Lenzer or Dr Hellman, which is supportive of there being a consequential condition at the right hip as a result of the left hip injury. Both doctors have expressed the view that the symptoms at the right hip were caused by the degenerative osteoarthritic condition in the right hip.
The only other relevant opinion on causation is that contained in Dr Ghabrial’s final report. The opinion, and the reasons for that opinion, expressed by Dr Ghabrial in that report are, as in his previous reports, brief in comparison with the reports of Dr Powell. Mr Doak was critical of Dr Ghabrial’s report on the grounds that Dr Ghabrial had not explained his views or addressed the change in history.
Examination of Dr Ghabrial’s report does, however, reveal that, at least by 2019, he had before him a history that aligned sufficiently with the remainder of the evidence, and in particular my factual findings above. Mr Doak identified that Dr Ghabrial did not have the applicant’s final written statement or the history of jumping out of the truck, and relied only on “overuse” due to not being able to “walk appropriately”, which was not otherwise explained. I am not satisfied, however, that this omission undermines Dr Ghabrial’s opinion. If anything, this information would tend to bolster Dr Ghabrial’s opinion. Whilst the mechanism by which the alteration in walking occurred and its impact on the right hip could certainly have been explained in greater detail, ultimately I am satisfied that there is a fair climate for the acceptance of Dr Ghabrial’s opinion on the cause of the pain in the applicant’s right hip. In Paric v John Holland Constructions Pty Ltd (at 846) the Court (Mason CJ, Wilson, Brennan, Deane and Dawson JJ) said:
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence ... to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.’[10]
[10] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.
Dr Ghabrial’s ultimate opinion in his 2019 report is also erroneously couched in the language of s 4(b)(ii). I am, however, satisfied, reading the report as a whole, that his opinion is consistent with there being a consequential condition at the right hip as a result of the left hip injury.
After careful consideration of the evidence as a whole, for the reasons given above, I am satisfied that the applicant has discharged his onus of establishing that he has sustained a consequential condition at the right hip as a result of the injury to his left hip on 16 January 2013.
Entitlement to s 60 expenses
It follows from the findings above that the applicant will be entitled to compensation pursuant to s 60 of the 1987 Act, subject to s 59A of the 1987 Act, for his reasonably necessary medical and related treatment expenses resulting from the left hip injury and right hip consequential condition. The application of s 59A will depend on the assessment of the degree of permanent impairment resulting from the injury and the claim for incurred expenses is not sufficiently particularised for me to address it further. I will, accordingly, make an order of a general nature. Any dispute as to particular expenses claimed can be brought before the Commission in separate proceedings.
Entitlement to lump sum compensation
Section s 66 of the 1987 Act relevantly provides:
“66 Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.Note—
No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.”
Subsection 66(1A) was inserted by the Workers Compensation Legislation AmendmentAct2012. Prior to the 2012 amendments, if, after recovering permanent impairment compensation, a worker’s condition deteriorated as a result of the injury, he or she was entitled to recover additional permanent impairment lump sum compensation. There is no dispute that s 66(1A) applies in this case.
I accept on the evidence before me that the applicant first made a claim for permanent impairment compensation, in respect of the injury which occurred on 16 January 2013, on 27 October 2015. That claim was for 24% WPI of the left and right lower extremities (hips) and skin (scarring) based on the assessment by Dr Ghabrial on 9 September 2015.
The dispute notice issued in response maintained previous liability disputes with respect to the alleged right hip injury, stated that the left hip injury had resolved and stated that the applicant had not suffered the degree of permanent impairment claimed.
A further permanent impairment claim form was forwarded to the insurer on 15 January 2018. The form re-stated the earlier claim in that the same injuries were asserted and the same degree of permanent impairment claimed. Further evidence was, however, provided in support of the claim.
The dispute notice issued in response again disputed injury to the right hip. Although the insurer had obtained a report from Dr Powell in response to the claim, which assessed the applicant as having 14% WPI of the left hip, the insurer disputed that the applicant had any permanent impairment as a result of an injury.
A further permanent impairment claim form was forwarded on 28 May 2020 relying on the most recent report of Dr Ghabrial. The applicant’s solicitors asserted in subsequent correspondence that this constituted an amendment to the earlier claim. The claim form differed both in relation to the degree of permanent impairment claimed but also in that it now alleged a consequential condition at the right hip resulting from the left knee injury rather than a right hip injury.
In responding to the respondent’s argument that the form forwarded on 28 May 2020 constituted a second or further claim in contravention of s 66(1A), the applicant has relied on Woolworths Ltd v Stafford. The passage cited by Mr Williams in his submissions sets out the finding of Roche DP that a claim form merely starts the claims procedures in Ch 7 of the 1998 Act. To suggest that a claim could not be amended prior to the “resolution or determination of the claim” was said to be untenable. The claims procedures in Ch 7 include the referral of disputes to the Commission. The point is elucidated further at [93] – [94]:
“As an applicant is permitted, with leave, to amend the formal Application to Resolve a Dispute, “for the avoidance of injustice”, so too must a claimant be permitted to amend a letter of claim, or a permanent impairment claim form, prior to the resolution or determination of the claim and prior to commencement of proceedings in the Commission. The contrary suggestion is unsupported by any authority or reasoning. It is clearly preferable that a letter of claim for permanent impairment compensation, or a permanent impairment claim form, should not be served until the worker’s condition is stable and has reached maximum medical improvement. If that is done, as it should be, the issue of amending the claim will rarely arise.
However, there will be rare cases, such as the present, where there is a change in impairment between the date of the initial claim and the date of resolution or determination of that claim. In such cases, it is appropriate that the claim be amended to reflect the correct position. That is especially so where workers are now restricted to only “one claim” for permanent impairment compensation and where formal proceedings have not commenced in the Commission. It is clearly in the interests of justice that, subject to any prejudice to the appellant, and none has been suggested in the present case, particulars of the worker’s claim properly reflect the claim that is being pursued.”
Mr Doak sought to distinguish Woolworths Ltd v Stafford from the current case on the basis that the amendment sought to be made in that case related only to the amount of compensation sought or degree of permanent impairment claimed.
I can discern no reason why in principle, nor can I discern any provision in the legislation or Rules which would indicate that, the reasoning of Roche DP should be confined in the manner asserted by the respondent.
In the present case, the form forwarded on 28 May 2020 sought to change the description or particulars of the injury to the left hip to include a consequential condition at the right hip as well as increase the amount of compensation claimed in respect of permanent impairment resulting from that injury.
The claim for permanent impairment resulting from an “injury” to the right hip (which, if it was accepted would be assessed together with the left hip injury pursuant to s 322(3) of the 1998 Act) was effectively abandoned.
The claim for permanent impairment resulting from the left hip injury has never been resolved. Although offers to resolve the claim have been made they have never been accepted. No offer has ever been made to pay the amount of compensation claimed by the applicant. Although the claim has been disputed, the dispute had not been brought before the Commission until the present proceedings. At no time has there been a Medical Assessment Certificate or determination of the claim by the Commission in accordance with the procedures in Ch 7 of the 1998 Act. I find that the claim has not been determined, nor has it ever resolved.
Applying Woolworths Ltd v Stafford, I find that it was open to the applicant to amend the claim for permanent impairment resulting from the left hip injury in the manner sought. The correspondence forwarded on 28 May 2020 did not constitute a “second claim”.
Having made the findings above, I am satisfied that it is appropriate that the matter be remitted to the President for referral to a Medical Assessor to make an assessment of the degree of permanent impairment at the left and right hips and skin resulting from the left hip injury on 16 January 2013.
SUMMARY
The applicant sustained a consequential condition at his right hip as a result of the injury to his left hip on 16 January 2013.
The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury: 16 January 2013
Body parts: Left lower extremity (hip)
Right lower extremity (hip)
Skin (scarring)
Method: Whole Person Impairment
The materials to be referred to the Medical Assessor are to include the documents admitted in the proceedings together with the Certificate of Determination and accompanying statement of reasons.
The respondent to pay the applicant’s reasonably necessary treatment and related expenses pursuant to s 60 of the 1987 Act, subject to s 59A of the 1987 Act, in respect of the left hip injury and consequential right hip condition, upon production of accounts, receipts and /or valid Medicare Notice of Charge.
Rachel Homan
MEMBER
5 March 2021
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