Catalanotto v Transdev Sydney Ferries Pty Ltd
[2021] NSWPIC 514
•9 December 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Catalanotto v Transdev Sydney Ferries Pty Ltd [2021] NSWPIC 514 |
| APPLICANT: | Mariano Catalanotto |
| RESPONDENT: | Transdev Sydney Ferries Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 9 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly benefits and medical expenses regarding alleged consequential tear of biceps tendon at home as a result of a work-related right elbow injury; the applicant was lifting a water pressure system at home when he tore his right biceps tendon; he had suffered a right elbow injury at work 11 days earlier; the applicant alleges the torn tendon came about because he was manoeuvring the pressure system in a different manner to how he would normally use his right arm, owing to the effects of the work injury; Held - on a common-sense basis, the totality of the evidence establishes a causal connection between the work injury and the consequential torn tendon; Kooragang Cement Pty Ltd v Bates and EMI (Aust) Limited v Bes followed; the respondent offered no medical evidence in support of its case, however, no inference is taken in circumstances where the respondent’s case is the applicant has not satisfied on his own evidence the requisite onus of proof; Woolworths v Christopher-Coates followed; however, the applicant has discharged the onus of proof in establishing the relevant causal link; award for the applicant on the claims for weekly payments and medical expenses. |
| DETERMINATIONS MADE: | 1. The applicant suffered an injury to his right upper extremity (elbow) in the course of his employment with the respondent on 10 March 2021. 2. As a result of the injury referred to in (1) above, the applicant suffered a torn right biceps tendon on 31 March 2021. 3. As a result of the tear of his biceps tendon, the applicant was totally incapacitated for employment between 31 March 2021 and 4 July 2021. 4. At the date of injury, the applicant’s preinjury average weekly earnings were $2,459.23. 5. The respondent is to pay the applicant worker compensation for the period 31 March 2021 to 4 July 2021 pursuant to section 36 of the Workers Compensation Act 1987 at the rate of $2,336.27 per week. 6. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses in connection with the torn bicep tendon. |
STATEMENT OF REASONS
BACKGROUND
Mariano Catalanotta (the applicant) in this matter brings a claim for a closed period of weekly benefits between 31 March 2021 and 4 July 2021, a need for which is said to arise from a work-related tear of his right biceps tendon. The applicant also claims the payment of reasonably necessary medical and treatment expenses.
Transdev Sydney Ferries Pty Ltd (the respondent) alleges the torn biceps tendon is not work-related and says the applicant has not discharged his onus in establishing a causal connection between an accepted soft tissue injury to his right elbow on 10 March 2021 and the subsequent biceps tendon tear on 31 March 2021.
The applicant’s index injury occurred when he banged his right elbow as he was climbing down a ladder in the course of his employment with the respondent. That injury is not in dispute.
On 31 March 2021, the applicant was manoeuvring a water pressure system at his home and alleges that he was moving the item in an unusual manner owing to his previous injury when he suffered a biceps tendon tear which required surgical repair and an absence from work. Happily, the applicant has returned to his pre-injury employment and duties.
ISSUES IN DISPUTE
The only issue in dispute is whether the tear of the applicant’s right biceps tendon is causally connected to his accepted work injury on 10 March 2021.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 30 November 2021. 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.
At the hearing, Mr J Trainor of counsel instructed by Ms B Thomas, solicitor, appeared for the applicant. Mr L Morgan of counsel instructed by Ms N Tancred, solicitor, appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence and taken into consideration in making this decision:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents.
Oral evidence
During the conciliation phase, Mr Trainor made application to lead short oral evidence from the applicant as to the nature of the water pressure system which he was manoeuvring at the time of his biceps tear. That application was opposed by Mr Morgan, and on balance, I rejected it. Accordingly, there was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the applicant’s torn biceps tendon was work-related
10.In this matter there was no issue that the applicant was totally incapacitated for employment during the period claimed. There is likewise no dispute about his preinjury average weekly earnings (PIAWE) worth $2,459.23 per week.
11.The matter in issue in these proceedings is purely in relation to the cause of the biceps tear.
12.The applicant bears the onus of establishing on the balance of probabilities that the biceps tear was related to his accepted workplace injury. It is well-established that in determining the cause of an injury, the Commission must supply common-sense test of causation, as that term was set out by His Honour Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). In that matter, His Honour noted that whether death or incapacity results from a relevant work injury will be a question of fact and the mere proof that certain events occurred which predisposed the worker to subsequent injury will not, of themselves, be sufficient to establish that such incapacity or death results from a work injury. Rather, what is required is a common-sense evaluation of the causal chain.
13.In this matter, the medical evidence is clear in establishing the presence of biceps tendon tear on 31 March 2021. Mr Morgan pointed out the precise mechanism of the tendon tear was in issue, with some clinical records suggesting a pulling motion, and others a dragging or lifting one. The applicant, by contrast, submitted that the medical evidence was all one way, namely, it demonstrated that the applicant was manoeuvring the water pressure system at his home in an unusual manner because he was still recovering from his accepted workplace injury.
14.On balance, I accept this is so. The applicant’s treating surgeon, Dr Cheriachan, provided a report dated 18 August 2021. In that report, he was asked whether any incapacity as a result of the biceps tendon was brought about by the original work-related injury, to which Dr Cheriachan replied, “I believe this injury is potentially related to the previous workplace injury.”
15.Mr Morgan submitted that this evidence was insufficient for the applicant to satisfy the onus of proof. It should, however, be noted that in the same report, Dr Cheriachan stated the history was that the applicant was dragging a water pressure machine when he had a sudden onset of pain travelling down the posterior surface of the forearm, with numbness to the bicep region. Dr Cheriachan specifically said “Mariano previously has tennis elbow from the workplace injury, so he was unable to lift as he normally would.”
16.In my view, that entry is consistent with the contemporaneous medical evidence from 31 March 2021 which demonstrated a history by the applicant of manoeuvring the water pressure system at his home in an unusual manner because of the pre-existing injury suffered in the course of his employment with the respondent. On 31 March, the applicant attended upon his general practitioner and the clinical records from that date note the following:
“Right elbow pain
while lifting a pressure washer
unable to tolerate arm weight
tenderness around bicepsadvised to have urgent u/s scan.”
17.On the same day, the applicant attended on Blacktown Hospital where he provided a history of pulling on the water pressure system when he suffered a sudden onset of pain. On that occasion, there was no ultrasound facility available at the hospital so he returned to his general practitioner on 1 April, namely the day after the biceps tendon tear. On that occasion, the applicant’s general practitioner executed a medical certificate in which he provided the following diagnosis of work-related injury:
“Right lateral epicondylitis – right biceps tendon tear (using arm in different ways/overcompensation to avoid pain of underlying condition).”
18.In my view, that contemporaneous record, consistent as it is with the clinical entry of 31 March 2021, obviates the respondent’s submission that the applicant had reconstructed (albeit unconsciously) the events of that day in his statement when he said that he was lifting in a certain manner owing to the ongoing problems with his work injury.
The applicant’s treating specialist also completed a question-and-answer format report for the respondent, found at page 150 of the Application. That document was completed on 5 May 2021, and in it Dr Cheriachan was asked whether the surgery in the right distal bicep tendon was related to the workplace injury of bumping his right elbow on a ladder. In answer to that question, Dr Cheriachan replied, “Yes, as he was using his arm differently to protect his previous tendon injury and not lifting as he usually would.”
20.It is therefore apparent that the preponderance of the medical evidence in this matter is supportive on balance of the applicant suffering the biceps tendon purely as a result of the favouring of his right elbow and manoeuvring the water pressure system differently to the manner in which he otherwise would.
21.The respondent offers no medical case in support of its contentions, however, as Mr Morgan quite properly pointed out, the applicant bears the onus of proof in establishing the relevant causal link. In my view, he has done so.
22.In so finding, I draw no inference as to the respondent failing to call medical evidence, as its case was that the applicant had not discharged the onus of proof. As his Honour, President Judge Keating pointed out in Woolworths v Christopher-Coates [2014] NSWWCCPD 14 at [118] (Christopher-Coates), it is not appropriate to draw an adverse inference as a result of the absence of a positive medical case from an employer in circumstances where that employer was entitled to present no expert medical evidence given the case it was meeting. However, in my view this matter differs from Christopher-Coates because in this instance, the applicant has discharged his onus of proof.
23.As Mr Morgan pointed out, where a medical expert such as the applicant’s treating surgeon in this case talks in terms of a possible “view”, or something which “might” have been relevant, then it is appropriate to reference all of the other evidence in the matter to decide that that is in fact the probable view. That then requires a factual analysis of the totality of the evidence, as was held to be the requirement in EMI (Aust) Limited v Bes [1970] 2 NSWR 238 (Bes).
24.In this matter, having regard to the other material aside from the treating surgeon’s report, I am of the view that on balance the evidence establishes the applicant’s ruptured right bicep tendon was caused by the manner in which he was manoeuvring the water pressure system as a result of his accepted workplace injury.
25.In so finding, I have taken into account the opinion contained within the handwritten report of the treating surgeon, the contemporaneous material, including but not limited to the hospital discharge summary, and the views and history as set out in the material provided by the applicant’s treating general practitioner.
26.On balance, that material comfortably supports a finding on the balance of probabilities that the ruptured biceps tendon was caused by the accepted workplace injury.
SUMMARY
27.For these reasons, the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
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