Chatfield v Total Fire Solutions (Aust) Pty Ltd
[2025] NSWPIC 70
•4 March 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Chatfield v Total Fire Solutions (Aust) Pty Ltd [2025] NSWPIC 70 |
| APPLICANT: | Troy Chatfield |
| RESPONDENT: | Total Fire Solutions (Aust) Pty. Limited |
| MEMBER: | Parnel McAdam |
| DATE OF DECISION: | 4 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; whether applicant suffered an injury; applicant felt pain in the course of normal duties; initial diagnosis of a strain; more significant pain sometime later; investigations revealed that applicant had a type of bone cancer (Ewing’s sarcoma) and suffered a pathological fracture; Held – applicant did not suffer an injury; alternatively employment was not a substantial contributing factor to injury; award for the respondent. |
| DETERMINATIONS MADE: | The Commission determines: 1. Award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Mr Chatfield’s case is, by any stretch, not usual for the types of matters seen in the Personal Injury Commission (Commission). There are elements commonly seen, including heavy work, lifting, and significant symptoms in a body part. The complicating factor in this case is that shortly following the onset of symptoms in the body part alleged to be injured (shoulder) Mr Chatfield was diagnosed with a rare type of bone cancer, Ewing’s sarcoma.
There are some facts in this case that are incontrovertible – Mr Chatfield had cancer, he had surgery to treat that cancer, and has been left with a significant degree of impairment in his shoulder as a consequence.
The issue in dispute in this case concerns the connection between employment and what Mr Chatfield has today, that is a greatly impaired right arm.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered a personal injury pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act), to which employment was a substantial contributing factor pursuant to s 9A, or in the alternative, and
(b) whether the applicant suffered an aggravation, acceleration, exacerbation or deterioration of a disease, to which employment was the main contributing facto, pursuant to s 4(b)(ii) of the 1987 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
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. The matter proceeded to a conciliation/arbitration hearing on 11 February 2025. Mr Carney of counsel appeared for the applicant, instructed by Law Partners. Mr Stockley of counsel appeared for the respondent, instructed by Lee Legal Group.
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.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents, and
(c) An Application to Lodge Additional Documents, lodged by the applicant on 5 February 2025.
The below is a brief summary of the critical evidence referred to by the parties in the course of the hearing. I will also refer to that evidence in my reasons for decision below.
The applicant’s statement
Mr Chatfield provides a statement dated 13 December 2023. That statement sets out the previous conditions he suffered from, the nature of his employment with Total Fire Solutions (the respondent), and the onset of pain in his right shoulder. The statement then goes through detail of the development of that pain, his referral to various specialists, and a chronology of treatment for his Ewing’s sarcoma.
Report of Dr Gehr
Dr Gehr provides a singular report on behalf of the applicant, dated 3 July 2023. As is his standard practice, Dr Gehr commences the report by setting out an extensive summary of the documentation reviewed before finally coming to the relevant issues. He describes a history of the accident occurring on 24 November 2021, when Mr Chatfield was required to perform heavy and repetitive lifting, noticing pain in his right shoulder.
He goes on to refer to the subsequent incident at work in February 2022, where Mr Chatfield was moving heavy suppression tanks. At this time, the pain in the shoulder was worse. This led to the X-ray and ultimately diagnosis of Ewing’s sarcoma. Under summary and conclusion, he provides: “This is a 51-year-old man, injured at work on 24/11/2021 with a further injury in February 2022.”
The diagnosis provided is as follows:
“Right Ewing’s fracture, humerus, delay in diagnosis, significant trauma applied, tumour complicated by development of a pathological fracture, required proximal shoulder replacement, with ongoing pain, loss of range of motion and axillary nerve damage as described.”
Commenting on the relationship between the condition on examination and the injuries sustained, Dr Gehr provides:
“It is difficult to give a firm opinion between the condition found on examination and the injuries sustained.
However the following are apparent-
The plain chest x-ray in September 2021 showed no evidence of the tumour and then the tumour was diagnosed in February 2022 so it developed some time over that 5-month period and so if an x-ray had been done in November 2021, it would have been picked up sooner and also the pathological fracture almost certainly occurred in February 2022 when pain levels went up significantly. However, the fracture may have first occurred from November 2021 and then later became displaced.”
Dr Gehr then goes on to discuss the consequences of the delayed diagnosis. It is not clear how some of this commentary relates to the issue in dispute concerning causation.
Report of Dr Harrington
Dr Harrington is an orthopaedic surgeon who provides a report dated 27 November 2023. He takes a history of two incidents occurring at work, consistent with other evidence. In respect of the 8 February 2022 incident, he records “this sounds consistent with the pathological fracture, which was later diagnosed with appropriate investigations”. Dr Harrington’s opinion is summarised:
“Mr Chatfield required surgical treatment for a pathological fracture, resultant from a malignant Ewings sarcoma of the right upper humerus. He underwent appropriate surgical intervention to address the bone tumour as well as chemotherapy.
We can only speculate, but in hindsight, the pain he experienced at work in November 2021 may have been the start of his fracture. He doesn’t recall doing anything out of the ordinary at work. He then had intense pain in the same location of his right arm at work in on 8 February 2022, which would be consistent with a complete pathological fracture.”
Dr Harrington suggests that the development of sudden pain at work on 24 November 2021 was probably the start of the bone tumour symptoms. His diagnosis is “a pathological fracture from a primary bone tumour, a malignant Ewings sarcoma”. He states that the malignant bone tumour was “not perpetuated or caused by employment”, and that “his employment at the time is an incidental factor”.
Reports of Dr Kemp
Dr Kemp is Mr Chatfield’s treating orthopaedic surgeon. He first saw Mr Chatfield on 23 February 2022. He takes a history of pain first in November 2021, and then only an “occasional niggle” until 8 February 2022, when he felt pain again. He describes the X-ray and CT scan as “quite worrying”, due to a “fairly diffuse lesion in the proximal 100mm of the humeral shaft with a transvers pathological fracture through the middle”. He postulates some potential diagnoses, before arranging some further scans.
Dr Kemp provides a series of answers to questions that are not before me in a report dated 1 March 2022. He answers with what I assume is a diagnosis:
“Mr Chatfield has sustained a pathological fracture of the right humeral shaft in the course of his normal duties, possibly in November or possibly February of this year.”
In response to a question that was likely about substantial contributing factor, he provides:
“Mr Chatfield first noticed onset of pain and then subsequently aggravation of that pain in the course of his normal duties. On this basis, it would appear that the nature and conditions of the work he was performing are a substantial contributing factor to the presentation.”
On 10 March 2022, Dr Kemp records “Troy’s pathological fracture is looking more like a primary bone tumour now”. He recommends management by the bone tumour team in Sydney, including a biopsy.
In another question and response report on 7 April 2022, Dr Kemp updates the treatment regime for Mr Chatfield, who had been transferred to the care of Dr Paul Stalley (as previously foreshadowed). He opines that the “bone (Ewing’s) sarcoma is not related to the nature and conditions of Mr Chatfield’s work. He did however fracture in the course of his normal duties”. He opines:
“It is likely that had Mr Chatfield not sustained the pathological fracture in the course of his normal duties, at some point in the near future he would have gone on to the same problem”.
He goes on to state that “the treatment of Mr Chatfield’s pathological fracture is the treatment of the bone sarcoma”.
Other clinical evidence
As indicated above, Dr Stalley took over the treatment of Mr Chatfield from Dr Kemp. Much of the reports bare little relevance to the issue in dispute, but rather are concerned with the treatment programme adopted to treat Mr Chatfield’s cancer. On 25 March 2022, the diagnosis of “Ewing’s sarcoma in his proximal humerus” was confirmed via biopsy.
There are also clinical records attached, from Mr Chatfield’s treatment as well as with his general practitioner. Given the issue in dispute these have little relevance, but I have reviewed them.
SUBMISSIONS
The parties provided oral submissions during the hearing that occurred on 11 February 2025. Those submissions were recorded and I do not intend to recite them in full, but provide a brief summary below.
The applicant commenced with reference to Mr Chatfield’s statement. This statement includes a history of the heavy nature of Mr Chatfield’s work, the first notice of pain on 24 November 2021, and the specific incident that occurred on 7 February 2022, when he experienced significant shoulder pain whilst completing duties.
The applicant submits that the Ewing’s sarcoma weakened the bone and caused the problems that he has, along with the heavy work that he was doing. The applicant then went through the material, acknowledging that Dr Stalley’s notes are primarily concerned with the removal of the sarcoma. In respect of the notes of Dr Kemp, the history of treatment of the sarcoma is apparent. There was an initial investigation, and on 1 March 2022 Dr Kemp was fully aware of the cause.
The applicant submits that the bone was weakened by the condition, the injury is to that bone, through the nature and condition of employment, by the applicant having to use his body to manipulate heavy things. This is a frank injury to the shoulder, and the underlying condition has led to the applicant being more susceptible to that injury, with reference to the “egg shell skull rule”.
The applicant then referred to the medicolegal evidence. Dr Gehr identifies a pathological change in February 2022, when the fracture became apparent. He provides a diagnosis and suggests that there was an exacerbation of pain complicated by the cancer in the humerus.
Dr Harrington agrees that there is a proximate cause to the work injury. He was doing work when it occurred and therefore it correlates. The only criticism expressed by the applicant of Dr Harrington’s history taking was the history of duties – these were said to be heavier duties in his normal work. The actual description of what the applicant was doing was important. The applicant submits that what Dr Harrington concludes is inconsistent with what is expressed earlier in the report – there was at least an aggravation. The injury wouldn’t have occurred if the bone was of a normal strength – there was an injury, it was caused by duties, that either aggravated or caused the pathological fracture in the right shoulder.
The respondent submits that however the claim is characterised or whatever legal test applies, one needs to start from the clinical unfolding of the symptoms. To do that you have to understand the pathology in the right shoulder. The respondent referred to the reports of Dr Kemp who was taking a “detective role”, and specifically referred to the report dated 10 March 2022, which suggests that the pathological fracture looks like a primary bone tumour. The respondent submits that this flies in the face of the applicant’s case theory of a weakened bone that was fractured at work. It may have been symptomatic at work, but it was symptomatic other times.
Whilst it was a pretty disastrous outcome for Mr Chatfield, it didn’t have anything to do with his work. He had a cancerous process that was identified as a result of some symptoms, most recently on 8 February 2022. That resulted in the need for the excision of the head of the humerus and the shoulder replacement, but it’s difficult to translate that into a case of substantial contributing factor to a frank injury where it’s not even clear that there is a frank injury.
The respondent referred to the report of Dr Kemp of 7 April 2022, and particular the conclusion that Mr Chatfield sustained the fracture in the course of his normal duties, but at some point in the future he would have gone on to a similar problem. The respondent urged that I would not infer that Dr Kemp is supporting the conclusion that the fracture occurred because of something at work, but rather with relevance to the test in s 9A.
The respondent highlighted that the chronology of the identification of the pathology in Mr Chatfield’s shoulder is important, because Dr Kemp, on who’s opinion the applicant relies, are only as good as the information he had available, and that information was still unfolding at the time.
The respondent’s primary position is that the need for the surgery, and the consequences of it are primarily from the underlying disease process and there is no contribution from employment. The respondent was critical of the opinion of Dr Gehr, as most of his report was composed of a summary of other people’s observations and history. The difficulty with Dr Gehr’s opinion is that he hasn’t explained what the injury is, and offers no support on causation when directly asked about it. In respect of the opinion of Dr Harrington, the respondent submits that his opinion is that Mr Chatfield had pain because of his sarcoma, his pathology was the malignant sarcoma, and employment is an incidental factor.
The respondent also encouraged caution, were I to accept the applicant’s case on injury, in approaching the terms of the referral for assessment and how it is to be framed.
FINDINGS AND REASONS
As I suggested at the outset of the reasons for this decision, this case is both an unusual and complex one. Mr Chatfield brings a claim for 32% whole person impairment. He suffers from a significant degree of impairment in his right shoulder. The sole question is one of causation – how is the impairment with which Mr Chatfield now suffers connected to his employment.
The statutory basis to determine that question lies in s 4 of the 1987 Act, and/or (depending on the nature of the injury alleged) s 9A of the 1987 Act. Both cases were presented by the applicant during the submissions. I would question whether there is evidentiary support for both.
The description of injury in the Application demonstrates some of the evidentiary problems the applicant faces in this case:
“During the course of his duties due to the nature and conditions of his work, the Applicant was required to perform heavy and repetitive lifting. He underwent days lifting long flat hoses when he noticed discomfort and aching in his right shoulder, which resulted in pain that began to build up over several days and increased in intensity.
As a result, the Applicant has now sustained physical injuries, and has ongoing pain and weakness of the right shoulder.
He has also suffered axillary nerve damage in the right arm with sensory loss.
The right arm injury has also resulted in his range of movement restricted by pain and a anterior scar of the right shoulder measuring 23 cm, puckered, hyper pigmented in the upper aspect that has stretched out.”
No mention is made here of the Ewing’s sarcoma that is really at the centre of this case. Whilst the Commission is not a court of strict pleadings, the description of injury represents an important part of the process in bringing a dispute to the Commission, so that the respondent, and the Member determining the dispute, may have an appropriate understanding of what, precisely, it is claimed has occurred.
In the present case, the applicant’s injury is framed to be a “nature and conditions” type injury. Neilson J, in Mirkovic v Davids Holdings Pty Ltd [1995] NSWCC19; (1995) 11 NSWCCR 656 was critical of that type of framing:
“Whilst he used the word ‘arguably’ it is clear that that was what the Commissioner held. The phrase ‘nature and conditions of employment’ is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as ‘quaint.’ My colleague Burke J has repeatedly referred to it as a ‘meaningless concept’. It is used in this place as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, e.g. repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity. Some classify such a period of work as a series of traumata or microtraumata, others classify it as causing a disease of gradual process within section 15 of the Act (where the pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within section 16. The ‘microtraumata’ contention was that advanced by the worker on review.”
In many circumstances, the “nature and conditions” of employment, and how that contributes to an injury is obvious. In lay terms, workers who lift heavy materials repeatedly strain body parts, which progressively get worse through repeated assaults of a minor or major nature. Eventually there will be an event that causes a worker to no longer be able to cope. The “nature and conditions” are heavy work, repeated lifting or the like. The injury will be muscular, discogenic, or to other identifiable body parts. This is obviously a lay summary of the types of cases regularly seen and how “many who practise in this jurisdiction”, to use the words of Neilson J, understand such injuries.
In the present circumstances, there is, on the evidence available to me, one aspect of such a claim. Mr Chatfield describes his duties in his statement dated 13 December 2023. These duties include heavy lifting, duties of a repetitive and strenuous nature, and repetitive duties. These duties are not contested. The particular duties on the days of the two incidents in the medical evidence before me (on 24 November 2021 and 8 February 2022) would reasonably be described as heavy.
The problem is that the applicant’s case is not a typical “nature and conditions” case that would be familiar to those who practise in the jurisdiction. Mr Chatfield’s case is complicated by the presence of bone cancer. Reference to the diagnosed Ewing’s sarcoma is entirely absent from the applicant’s injury description in the Application. It is not clear why. What is clear is that condition must be taken into account in some way when determining whether Mr Chatfield has suffered an injury. There are two mechanisms as to how this might have occurred – by way of aggravation etc. of a disease, to which employment was the main contributing factor. The disease here being Ewing’s sarcoma, the aggravation being one or more specific events that led to the pathological fracture identified.
The second is an injury simpliciter, or personal injury, to which employment was a substantial contributing factor. The former represents the applicant’s alternative case. The latter is more consistent with the case run during the hearing, and how the Application pleads the injury (although the ticking of “deemed date” in the Application counters against that suggestion, as the deeming provisions only apply to disease type injuries). Of course, consistent with Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31 (Zickar), the presence of a disease does not preclude reliance on a specific event where a disease is present. The applicant also does not need to prove a causal connection in s 4(a), as that is where s 9A comes into play: “It is enough that the "injury" took place in the course of the employment. It is not necessary to show that it arose "out of" such employment.” (Zickar at [39] per Kirby J).
As the respondent pointed out in commencing their submissions, however the claim is characterised and whatever legal test is applied, it is critical to understand the clinical unfolding of the symptoms and what, precisely, is the pathology in the right shoulder. That is because whilst the applicant can plead his case as he choose, he still must prove his case on the evidence provided.
To understand the unfolding of symptoms and the pathology in Mr Chatfield’s shoulder, a chronology of events is important. This chronology is a summary from various documents available to me, including the applicant’s statement, the medicolegal opinions, and the treating evidence. In summary:
(a) 8 November 2018 – Mr Chatfield commenced employment with the respondent. His duties would be classified as heavy, but varied from day to day;
(b) 21-24 November 2021 – Mr Chatfield first noticed pain and discomfort in his right shoulder, building in intensity;
(c) 24 November 2021 – pain levels increased significantly. Mr Chatfield attended a general practitioner, Dr Debelak, arranged by his employer, who suggested a shoulder sprain and did not arrange any investigations. I do not have any documents before me of this attendance;
(d) 8 February 2022 (it is noted that Mr Chatfield’s statement suggests 7 February 2022, as do the clinical notes, whereas the Application pleads a date of injury of 8 February 2022, as does Dr Harrington) – Mr Chatfield was completing a task moving heavy suppression tanks, using his body weight to move them, when he felt significant pain, worse than previously identified. He attended the same general practitioner, who again declined to investigate;
(e) Unknown date, between 8 February and 22 February 2022 – Mr Chatfield undergoes an X-ray which identifies a pathological fracture;
(f) 22 February 2022 – Mr Chatfield has a CT Scan of his right shoulder, which identifies an “undisplaced transverse fracture through a lytic lesion involving the proximal 3rd of the right humerus”;
(g) 23 February 2022 – Mr Chatfield see Dr Kemp, orthopaedic surgeon, as referred by Dr Debelak. Dr Kemp describes the radiology as “quite worrying”. He identifies a “fairly diffusion lesion in the proximal 100mm of the humeral shaft with a transverse pathological fracture through the middle”. He describes the appearance as “an aggressive bone tumour”, and suggests further investigations;
(h) 3 March 2022 – MRI right shoulder, which identifies an “extensive malignant process present throughout the humeral head neck and shaft” as well as a “displaced pathological fracture in the proximal shaft”;
(i) 10 March 2022 – Dr Kemp suggests that the pathological fracture is looking more like a primary bone tumour. Mr Chatfield is referred to Dr Stalley to take over treatment;
(j) 14 March 2022 – Mr Chatfield sees Dr Stalley, who identifies a progressive lesion in the proximal humerus and “a pathological fracture there clearly on MRI scan and also CT scan”;
(k) 15 March 2022 – a biopsy of the lesion in Mr Chatfield’s right proximal humerus is performed, identifying probable lymphoma. Dr Stalley comments that “with a pathological fracture I think the most likely thing is to go to a proximal humeral replacement and then treat his lymphoma”;
(l) 18 March 2022 – Dr Stalley describes the lesion as “rather unusual”, postulating that it could be an atypical Ewing’s sarcoma or a whole range of other tumours;
(m) 25 March 2022 – Dr Stalley refers Mr Chatfield for chemotherapy for his Ewing’s sarcoma, apparently satisfied of that diagnosis;
(n) 1 June 2022 – Mr Chatfield attends on Dr Stalley, reporting improvement. Dr Stalley sets out further progress towards surgery;
(o) 16 August 2022 – after a few delays due to unrelated infection, Dr Stalley performs surgery to “resect this man’s tumour en bloc”, and
(p) 26 August 2022 – chemotherapy is recommended to be resumed.
Thereafter Mr Chatfield continued to attend on his treating team, including his oncologist and physiotherapist. The continuation of his treatment, mainly to address the ongoing consequences of the shoulder surgery, is not of particular relevance to the issue in dispute before me.
The respondent made a submission concerning the pathology with reference to the report of Dr Kemp of 10 March 2022. In that report, Dr Kemp suggest that what was identified as a pathological fracture is looking more like a primary bone tumour. I appreciate the submission concerning the role of Dr Kemp, who was, as the respondent suggests, undertaking a “detective role” at that time, to try and identify the true nature of the pathology in Mr Chatfield’s shoulder. However, that opinion, isolated to the report of 10 March 2022, is not consistent with the radiological evidence, Dr Stalley’s opinion, and the medicolegal opinions before me. A later report of Dr Kemp, dated 7 April 2022, again refers to the existence of a pathological fracture. Based on the totality of the material, I am satisfied that Mr Chatfield had a pathological fracture in his humerus, situated within the lesion or bony tumour identified on the MRI scan. That conclusion does not mean that I accept that the applicant had an injury at work.
During the hearing, I inquired as to precisely what a pathological fracture is. The definition is not provided for in any of the medicolegal or treating opinions.
Having discussed the applicant’s treating regime and identification of specific pathology, it is important to then consider the medicolegal construction of the applicant’s case. Dr Gehr’s report dated 3 July 2023 takes a “history of the accident” that is consistent with the applicant’s statement and the treating evidence available. His summary is “This is a 51-year-old man, injured at work on 24/11/2021 with a further injury in February 2022”. The problem with that conclusion is that he has not identified with any specificity what the injuries are said to be. He goes on to be critical of the delay in investigation and the diagnosis of Ewing’s sarcoma. He states “There has been a delay in making the diagnosis of the tumour by a factor of four months plus the two injuries at work caused the pathological fracture.” Again, there is no description of what the injuries were.
His diagnosis is as follows:
“Right Ewing’s fracture, humerus, delay in diagnosis, significant trauma applied, tumour complicated by development of a pathological fracture, required proximal shoulder replacement, with ongoing pain, loss of range of motion and axillary nerve damage as described.”
This is a complicated diagnosis that does not, with great particularity, identify a work-related injury. Dr Gehr commences by diagnosing a “right Ewing’s fracture”, which appears to be a conflation of the diagnoses of the Ewing’s sarcoma and the pathological fracture identified in the medical evidence. Dr Gehr refers to “significant trauma applied” but this is the first reference made to trauma in his report. He has not taken a history of trauma but rather heavy duties at work. Trauma is not identified in any of the other evidence, rather that the applicant was performing his normal duties (albeit heavy) at the time of the onset of symptoms.
Dr Harrington, who provides a report for the respondent, takes a history consistent with Dr Gehr and the other available evidence. Whilst he does not specifically refer to the type of heavy work Mr Chatfield was doing at the onset of symptoms, that does not reduce the weight that I give his opinion. He understood the physical nature of the job. Dr Harrington identifies the existence of the pathological fracture “resultant from a malignant Ewings sarcoma of the right upper humerus”. His diagnosis is a “pathological fracture from a primary bone tumour”. Dr Harrington opines that the pathology is “a malignant bone tumour which was not perpetuated or caused by employment”, and “his employment at the time is an incidental factor”. The highest connection identified by Dr Harrington is that the “pain developed at work”.
The respondent rightly acknowledged some of the explanatory issues in Dr Harrington’s report. Some of the questions posed are confusing, with reference to a “traumatic incident 24 November 2021”. As I have said above in respect of the report of Dr Gehr, it is not really clear what this “traumatic incident” entailed. Mr Chatfield was completing normal duties at the time symptoms appeared. Dr Kemp goes someway to providing support for a conclusion in favour of Mr Chatfield, where he provides an answer to a question that is not before me:
“It is likely that there was a pre-existing process yet to be defined in the proximal humerus of which Mr Chatfield would have been unaware until the load placed on that bone through November and then again in February.”
As the respondent submits, this answer was provided at an early stage of the evaluative process of determining the precise diagnosis for Mr Chatfield. A short time later Dr Kemp suggested that there was no pathological fracture (which I have accepted was not the correct diagnosis above, as it is inconsistent with the other evidence. That is that Mr Chatfield did indeed have a pathological fracture). The relevant question however is did Mr Chatfield suffer this fracture “arising out of or in the course of employment”. This is also inconsistent with the applicant’s case as presented, being a nature and conditions type claim, and the case that the respondent was required to meet. Dr Kemp’s opinion is consistent with a frank incident specifically occurring on 21 November 2021 and then again on 8 February 2022 – a loading incident on the background of “a pre-existing process yet to be defined”.
Having considered the medical evidence in its totality, in the context of the applicant’s statement, I am not satisfied that he has suffered an injury, as described in the Application and as opined by Dr Gehr, consistent with s 4 of the 1987 Act. The better and more consistent view is that Mr Chatfield suffered from a malignant bone tumour, the symptoms from which first appeared or became apparent to Mr Chatfield on 21 November 2021, and became more florid on 7 (or 8) February 2022. The “nature and conditions” of Mr Chatfield’s work, which I accept were heavy, have not caused anything.
I accept that an injury can occur “arising out of” or “in the course of” employment, per s 4. The former represents a causal connection (see Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Aust Pty Ltd [2009] NSWCA 324 at [72]-[79], and the cases cited therein). The latter presents a temporal question. In Weston v Great Boulder Gold Mines Ltd [1964] HCA 59, Windeyer J stated “anything at all that happens to a man while he is at work happens in the course of his employment”.
Having regard to the above, I am not satisfied that “anything at all” happened to Mr Chatfield at work. Such a conclusion is not available on the medical evidence before me. The evidence is that Mr Chatfield had a malignant bone tumour that caused pain in his shoulder. The symptoms first appeared at work on 21 November 2021 and then again, more severely, in February 2022. Pain is not an injury. The presentation of pain at work, where that pain is connected with a bone tumour, cannot satisfy the definition of an injury in s 4 of the 1987 Act, that injury being described as a “nature and conditions” type claim.
In terms of the causative question raised by “arising out of employment” in s 4, again, there is no medical opinion that supports any conclusion on the causal question asked by s 4. Dr Gehr relies on “injuries that happened at work” but does not say what those injuries are. His diagnosis is of a “right Ewing’s facture” with “significant trauma applied”, but again, that diagnosis is not explained. There was, on all the evidence, no “trauma”. Mr Chatfield was completing his normal duties. On the basis that I am not satisfied that there has been an injury within the meaning of s 4 of the 1987 Act, the applicant has not satisfied the onus to prove his case and there will be an award for the respondent.
If I am wrong on the above, in the rare circumstances of this case I think it appropriate that I address the issues of substantial contributing factor, which would not normally arise due to my determination. The below considerations presumes that I am satisfied that Mr Chatfield suffered an injury arising out of or in the course of employment due to the nature and conditions of his employment with a date of injury of 8 February 2022.
Section 9A provides:
“(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note—
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Section 9A was introduced after the High Court’s decision in Zickar. The section undoubtedly introduces a causative test, different to that considered in “arising out of employment” in s 4. “Substantial” is an evaluative concept (Badawi at [82]). In that same paragraph, the context and purpose of s 9A was explained:
“Here, the concept and purpose of the introduction of s 9A was to remove the possibility of compensation for injury with only a ‘remote or tenuous connection with work’. This was the purpose the amendment: see the Second Reading Speech at [34] above. We would endorse the separate comments of Meagher JA and Davies AJA in Dayton v Coles Supermarket. As Meagher JA said, something which is minor is not substantial, or, as Davies AJA said, ‘substantial’ as it appears in s 9A means “in a manner that is real and of substance” and does not apply where, as a matter of practical reality, the contribution of the employment to the injury was of, or had, ‘little substance’” (emphasis in original)
Dr Kemp provides views on this issue. It appears that he was asked questions about s 9A in some correspondence from the insurer. In his report of 1 March 2022, he provides:
“Mr Chatfield first noticed onset of pain and then subsequently aggravation of that pain in the course of his normal duties. On this basis, it would appear that the nature and conditions of the work he was performing are a substantial contributing factor to the presentation.”
Later, in a report dated 7 April 2022, Dr Kemp opines that “It is likely that had Mr Chatfield not sustained the pathological fracture in the course of his normal duties, at some point in the near future he would have gone on to a similar problem”. This seems to specifically address s 9A(2)(d), in that the injury would have occurred in any event at any time.
In terms of the other factors under s 9A(2), those considerations are mixed in their support of a conclusion for Mr Chatfield on substantial contributing factor:
(a) the injury occurred at work whilst Mr Chatfield was moving some heavy material;
(b) the nature of the work was undoubtedly heavy;
(c) the duration of employment has no real relevance, as Mr Chatfield had no complaints prior to the onset of symptoms connected with his Ewing’s sarcoma in November 2021;
(d) the worker’s state of health before the injury was compromised by the undiagnosed, but likely existent Ewing’s sarcoma, and
(e) the worker’s lifestyle out of the workplace has no apparent relevance.
I am most persuaded by Dr Kemp’s opinion that had Mr Chatfield not sustained the pathological fracture in the course of his normal duties, at some point in the future he would have gone on to a similar problem. In that sense, employment could not be seen as a substantial contributing factor to his injury. The Ewing’s sarcoma had been causing some niggling pain since November 2021, but became florid on 8 February 2022. Employment was not a substantial contributing factor to the injury, it is essentially an incidental factor. The Ewing’s sarcoma was the cause of the pathological fracture. The disease process of that cancer weakened the applicant’s bone, within the lesion in the humerus, to the point that it fractured. Mr Chatfield’s work, even though it was heavy, did not contribute in a substantial way to that outcome, which was likely to occur at any time. There was simply a manifestation of symptoms at a specific point that occurred whilst Mr Chatfield was working, which could have occurred at any other point in time.
I do not intend to deal with the applicant’s alternative argument on the basis of an aggravation etc. of a disease. I am not satisfied that the applicant’s employment was a substantial contributing factor to his injury (noting that this is a hypothetical injury, as I have not been satisfied that the applicant suffered an injury). I could not therefore be satisfied that employment was the main contributing factor to that injury, representing a more stringent test. The main contributing factor to Mr Chatfield’s injury is clearly the Ewing’s sarcoma, which has no connection to his employment.
For the above reasons, there will be an award for the respondent.
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