Cousens v Graeme Brett Morley t/as Morley Earthworks
[2024] NSWPIC 229
•3 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Cousens v Graeme Brett Morley t/as Morley Earthworks [2024] NSWPIC 229 |
| APPLICANT: | Bechet Cousens |
| RESPONDENT: | Graeme Brett Morley trading as Morley Earthworks |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 3 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly benefits; denial of injury withdrawn at hearing; only issue for determination is extent of incapacity for employment; the applicant injured her right shoulder when she fell from a motor bike while mustering cattle in the course of her employment; her claim was originally denied on the basis that she had engaged in wilful and serious misconduct at the time of her injury; that denial was withdrawn at the hearing and the matter proceeded as a dispute as to the applicant’s incapacity; the applicant’s uncontested evidence is that she could not afford to have her injury treated after the denial of liability, and that she remains effected by the effects of her injury to the extent she cannot work in paid employment; that evidence is supported by her IME; Held – the applicant was totally incapacitated for employment during the period claimed; having regard to her age and the nature of her work history, the applicant had little in the way of transferable skills which could be applied on the open labour market; the fact the applicant is a mother of two young children for whom she cares is not indicative of a residual capacity for employment; the respondent offers no medical evidence or vocational assessment to counter the evidence of the applicant and her IME, which evidence is accepted; respondent ordered to pay the applicant weekly compensation as claimed. |
| DETERMINATIONS MADE: | The Commission determines: (a) The applicant suffered an injury to her right shoulder in the course of her employment with the respondent on 26 February 2021. (b) As a result of her injury, the applicant was totally incapacitated for employment from (c) At the date of her injury, the applicant’s pre-injury average weekly earnings were $1,140 per week. (d) The respondent is to pay the applicant weekly compensation pursuant to s 36 of the Workers Compensation Act 1987 for the period 26 February 2021 to 28 May 2021 at the rate of $1,083 per week. (e) The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 for the period 29 May 2021 to 25 August 2023 at the rate of $912 per week. (f) The respondent is to have credit for any payments made in the above periods. |
STATEMENT OF REASONS
BACKGROUND
On 26 February 2021, Bechet Cousens, the applicant, was mustering cattle in the course of her employment with the respondent, Graeme Brett Morley trading as Morley Earthworks at the respondent’s property when she fell from a motorbike and suffered an injury to her right shoulder.
The applicant was employed on a full-time basis by the respondent as a machine operator based on a farm in Geurie, New South Wales. Her usual duties consisted of driving an excavator, a bulldozer and a grader together with general farm duties. At the date of injury, the applicant was 20 years of age.
The applicant seeks payment by the respondent of weekly compensation from the date of injury until 25 August 2023 pursuant to s 36 and s 37 of the Workers Compensation Act 1987 (the 1987 Act). Her claim was originally denied on the grounds that she had suffered injury as a result of serious and wilful misconduct in disobeying a specific direction not to ride a motorbike while mustering cattle. That dispute was maintained until the hearing, at which time it was withdrawn.
The applicant’s pre-injury average weekly earnings (PIAWE) are agreed at $1,140 per week.
ISSUES FOR DETERMINATION
The only issue for determination is the degree of incapacity suffered by the applicant as a result of her accepted injury.
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. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 3 April 2024. At the hearing, the applicant was represented by Mr Grimes of counsel, instructed by Mr Gutierrez. The respondent was represented by Mr Morgan of counsel, instructed by Ms Tancred.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents;
(c) respondent’s Application to Admit Late Documents (AALD) dated 27 March 2024 and attached documents, and
(d) applicant’s AALD dated 28 March 2024 and attached documents.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
The applicant’s incapacity for employment
The respondent submitted the applicant had regained at least partial capacity for employment from mid to late 2021. In so submitting, Mr Morgan took the Commission to the clinical records and medical opinions in evidence. He noted that after an entry from Dr Young at Dubbo Base Hospital on 9 June 2021, the only relevant entry in relation to the applicant’s capacity for employment is the opinion of independent medical examiner (IME), Dr Bodel and the statement evidence of the applicant herself. Mr Morgan submitted that after June 2021, there were no clinical records from the applicant’s treating practitioners which suggest ongoing incapacity.
The respondent noted the applicant was receiving treatment in relation to her pregnancy from approximately mid-2021. Mr Morgan submitted the evidence discloses the applicant was looking after four children at home and no evidence has been provided from either the applicant’s partner or parents as to what she could or could not do.
The Commission was taken to a number of clinical entries made during the applicant’s pregnancy which made no mention of any restrictions or difficulties with her shoulder. The respondent submitted this was suggestive of the applicant’s shoulder condition having greatly improved and of her having capacity for employment.
I do not accept that submission. The applicant’s midwifery visits were plainly made in the specific context of receiving treatment relating to her pregnancy. Additionally, it is settled law that caution must be taken in relying upon history (or in this case, the absence of history) contained within the clinical records of treating practitioners: see Mason v Demasi & Anor [2009] NSWCA 227 (31 July 2009). As Basten JA noted in that matter:
“(a) the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c) the record did not identify any questions which may have elucidated replies;
(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”
In my view, there is no basis to criticise the applicant for an absence of any recording of clinical entries relating to her shoulder in the context of midwifery consultations during her pregnancy.
In relation to her post-injury symptoms, the applicant provided a supplementary statement in which she set out the ongoing issues with her shoulder. She said:
“31. I continue to struggle from pain, inability to perform daily activities and restricted
movements as a result of my injuries.
32. Some examples of how my injuries incapacitate me are as follows:
• My lifting capacity is restricted, and I struggle to lift, move, or carry objects
heavier than 5 kilograms.
• My overhead lifting capacity is significantly restricted, and I cannot even move
my right arm above shoulder height.
• My pushing and pulling capacity is restricted to light items with only my right
arm.
• I can no longer engage in AFL and other sporting activities as I had previously
enjoyed.
• Household maintenance and cleaning has become difficult due to the heavy
reliance on using both arms to perform these duties.
• Hanging and pulling washing off of my clothes line is no longer possible due to
pain and inability to move arm above my shoulder height. As a result, I
purchased a clothes line which is lower which still causes aggravation to my
shoulder when I attempt to use it.
• Any activity involving placing my arms overhead is now unachievable.
• I cannot perform any heavy duties that are required. For example, I can no
longer move furniture around my home if I wanted to.
• Sleeping on my right side causes intense pain in my shoulder and results in
disrupted sleep due to pain.
• I am very anxious in performing any activity which involves my right arm as I
am fearful of injuring my shoulder any further.
33. The above also reflects my inability to perform work of the same nature, or similar
nature, to what I was performing on the farm prior to the subject incident.
34. Due to the subject incident and resulting injuries, I am unable to return to work of a
physical nature. I would not be able to return to work on the farm in my current
condition.
35. I continue to suffer as a result of the incident which occurred during the course of my employment with G.B Morley & J.C Morley on 26 February 2021.”
It should be noted that the applicant was 20 at the time of her injury, and the work which she carried out was physically demanding. There is no suggestion she had a significant work history which would demonstrate the presence of readily transferable skills. Her evidence discloses the applicant was still struggling with household maintenance and cleaning activities together with any overhead use of her right arm at the time of her examination by Dr Bodel, IME on 5 October 2023.
Mr Morgan submitted the applicant must demonstrate that she has incapacity for the period claimed. I accept that submission. However, I also accept that she has done so, and that her incapacity for the period claimed was total. There are some certificates of capacity for part of the relevant period, and also the opinion of Dr Bodel, which I accept.
In weighing up the evidence in this matter, it is important to note the respondent puts forward no IME opinion, nor has it had the applicant vocationally assessed to determine any duties which it says she could carry out, be they modified, restricted or by way of a return to normal full-time employment. I draw no inference in relation to the absence of medical evidence by the respondent in the circumstances of a case where it is asserting the applicant has not discharged her onus of proving incapacity, however, it is axiomatic to say there is nothing put forward by the respondent to positively counter the evidence of the applicant and her IME Dr Bodel.
The respondent submitted the fact the applicant is able to look after her two young children together with two older children of her partner from a previous relationship means she plainly has capacity for employment, however, I reject that submission. The applicant gives evidence that she struggles with household work, and finds some difficulties in doing so. That opinion is supported by Dr Bodel’s report, which is uncontested.
The applicant attended her general practitioner’s rooms in January 2023, at which time she sought a return to work. The general practitioner refused that request for certification, noting he would require a clearance from physiotherapy and an MRI to be conducted on the applicant’s shoulder to determine the nature and extent of any duties which she should carry out. In other words, at that point in time, the applicant was not certified as being fit for a return to work. That entry accords with the applicant’s statement evidence surrounding her lack of treatment for the injury:
“7. I last saw my Treating Doctor, Dr Moe, on 17 June 2021.
8. I tried to see Dr Moe after 17 June 2021, but I was told he no longer worked at the
practice and I was unable to see him anymore.
9. I did not continue to see Dr Moe in relation to my injuries because of this.
10. I did see another doctor sometime in the last 12 months for my injuries. I cannot
remember which doctor I saw, but I was told that without completing X-rays or MRIs
they would be unable to help me.
11. Since I had become a breastfeeding mother, I would not subject myself to scanning
practices which would expose me to radiation. As I was told nothing else could be
done unless I had scans, I did not continue to see any doctors.
12. Further, as the insurer was not accepting my claim, I had to pay costs for scans and appointments upfront and I could not afford this at the time.
13. This is reflected in the Medical Records from Dubbo Medical and Allied Health Group annexed in the ARD.
14. Specifically, a consultation note from 24 May 2021 stated ‘explained she needs to pay upfront till her claim number has been approved. Can’t afford to see specialist as
Private’.
15. Further, a consultation note dated 17 June 2021 states ‘refused to take Vitamin.
Wants everything ‘natural’, ‘Can’t afford to pay for WC.’
16. I did not have the means to pay for ongoing consultations with my treating doctor as liability is disputed by the insurer and I was not receiving any form of income during
this period. I continue to be unable to afford treatment as a result of the ongoing liability
dispute.
17. As I do not want to expose my children to radiation and struggled to afford to pay for doctors and specialists at the time, I had not sought ongoing treatment or continued
to see doctors for my injuries after 17 June 2021.”
The fact the applicant is not physically capable of carrying out her pre-injury duties until her injury is investigated and treated is also supported by IME Dr Bodel.
As noted, the respondent denied liability for the applicant’s claim alleging serious and wilful misconduct at a very early stage. From that time forward, the applicant received no treatment for her injury, and I accept her evidence that she was unable to afford to do so.
In assessing the applicant’s capacity for suitable employment, s 32A of the 1987 Act establishes a number of matters which should be taken into consideration:
“‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited--
(a) having regard to--
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of--
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence.”
In considering the relevant factors in s 32A, I am mindful the applicant was a young woman at the time of her injury, who had only worked in physically demanding roles. There is no evidence she had readily transferable skills which would have rendered her capable of carrying out suitable duties. There is no vocational capacity assessment or medical evidence in the matter which contradicts the applicant’s statement evidence and that of the medical experts on whom she relies.
At the time when the applicant’s claim was refused and payment for treatment ceased, I am comfortably satisfied on the evidence before me she was totally unfit for work. The evidence also satisfies me that her incapacity continued throughout the period claimed. In my view, it ill behoves a party which has denied liability and refused payment for treatment to then seek to rely on a lack of documentary evidence as to the progress of the applicant’s injury in circumstances where her uncontested evidence is she could not afford to have that injury treated. This is particularly the case in circumstances where the respondent abandoned its denial of liability on the morning of the hearing.
On balance, having regard to the totality of the lay and medical evidence in this matter, I am comfortably satisfied that the applicant suffered total incapacity as alleged for the period claimed, namely from 26 February 2021 to 25 August 2023. To the extent the respondent made any payments during that period, it will be entitled to credit for them. Otherwise, the respondent will be ordered to pay the applicant weekly compensation pursuant to ss 36 and 37 of the 1987 Act as applicable for the period claimed.
SUMMARY
For the above reasons, the Commission will make the findings and orders set out on Page 1 of the Certificate of Determination.
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