Crossley v Trude Stahmer Tiling
[2021] NSWPIC 50
•26 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Crossley v Trude Stahmer Tiling [2021] NSWPIC 50 |
| APPLICANT: | Mark Crossley |
| RESPONDENT: | Trude Stahmer Tiling |
| MEMBER: | Mr John Isaksen |
| DATE OF DECISION: | 26 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for weekly payments of compensation and order for payment of surgery to left shoulder; notice of injury, delay in making claim for compensation, injury and capacity for work in issue; Nguyen v Cosmopolitan Homes considered; Held– worker sustained injury to his left shoulder in the course of his employment; reasonable cause established for failing to give notice of injury and make claim for compensation in time required by legislation; worker could earn more than his pre-injury average weekly earnings in suitable employment; proposed surgery results from injury and is reasonably necessary. |
| DETERMINATIONS MADE: | 1. The applicant sustained an injury to his left shoulder in the course of his employment with the respondent on 14 June 2019. 2. The applicant has established special circumstances under section 254 (3)(b) of the Workplace Injury Management and Workers Compensation Act 1998 for failing to give notice of injury as soon as possible after the injury happened, which allows him to recover workers compensation benefits. 3. The applicant has provided a reasonable cause under section 261 (4) of the Workplace Injury Management and Workers Compensation Act 1998 as to his failure to make a claim for compensation within six months after the injury happened. 4. The applicant has been able to return to employment which he is suited for since 29 July 2019. 5. The applicant has been able to earn more than his pre-injury average weekly earnings in suitable employment since 29 July 2019. 6. The left rotator cuff repair and biceps tenodesis along with AC excision proposed by Dr East is reasonably necessary as a result of the injury sustained by the applicant on 14 June 2019. |
| ORDERS MADE | 1. An award for the respondent for the claim for weekly payments of compensation from 29 July 2019 to date. 2. Pursuant to section 60 (5) and section 61 (4A) of the Workers Compensation Act 1987, the respondent is to pay for the left rotator cuff repair and biceps tenodesis along with AC excision proposed by Dr East, and expenses related to that surgery. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Mark Crossley, claims that he sustained an injury to his left shoulder on 14 June 2019 while employed as a labourer for the respondent, Trudy Stahmer Tiling.
The applicant claims that on 14 June 2019 he lifted cartons of tiles weighing approximately 20 kg, and transferred those cartons from the front to the rear of a residence that he was working at, and as he did so he sustained injury to his left shoulder.
The applicant claims weekly payments of compensation from 29 July 2019, being day after he last worked for the respondent.
The applicant also seeks an order pursuant to section 60 (5) of the Workers Compensation Act 1987 (the 1987 Act) that the respondent pays the costs of a left rotator cuff repair and biceps tenodesis along with AC excision, recommended by the applicant’s orthopaedic surgeon, Dr East.
The respondent disputes that the applicant sustained an injury to his left shoulder in the course of his employment.
The respondent also disputes liability to pay any workers compensation because the applicant failed to give notice of the injury as soon as possible after it happened as required by section 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and failed to make a claim for compensation within six months after the injury happened as required by section 261 of the 1998 Act.
The respondent disputes that the applicant has any total or partial incapacity as a result of any injury the applicant has sustained to his left shoulder in the course of his employment with the respondent.
The respondent disputes the need for surgery to the applicant’s left shoulder results from any injury the applicant has sustained to his left shoulder in the course of his employment with the respondent.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) Whether the applicant sustained injury to his left shoulder in the course of his employment with the respondent (section 4 of the 1987 Act);
(b) Whether the applicant can recover compensation because notice of injury was not given by the applicant as soon as possible after the injury happened (section 254 of the 1998 Act);
(c) Whether the applicant can recover compensation on the grounds that a claim for compensation was not made within six months after the injury happened (section 261 of the 1998 Act);
(d) Whether the applicant has any total or partial incapacity as a result of any injury he sustained to his left shoulder (sections 32A, 33, 36, 37 and Schedule 3 of the 1987 Act);
(e) Whether the need for surgery to the applicant’s left shoulder results from any injury the applicant has sustained to his left shoulder (section 60 of the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
The parties attended a conference and hearing on 19 March 2021. 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.
Ms Grotte appeared for the applicant, instructed by Mr Ahmed. Mr Saul appeared for the respondent, instructed by Mr Orr.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $530, being the amount set out in the Application to Resolve a Dispute (ARD).
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) The ARD and attached documents;
(b) Reply and attached documents.
Oral Evidence
There was no application to adduce oral evidence or to cross examine any witnesses who have made statements, and which have been admitted into evidence.
The applicant’s evidence
The applicant has provided statements dated 11 February 2020, 6 November 2020, and 21 January 2021.
The applicant states that he commenced employment with the respondent in January 2019 as labourer. He states that Trudy Stahmer owned and operated a general wall and floor tiling company. He states that he understood that he was employed under a scheme whereby Centrelink provided a financial incentive to the respondent for providing him with paid work.
The applicant states that his normal duties involved tiling work, mixing cement, loading and unloading tiles, lifting and carrying cement bags, cleaning, and other labouring duties as required.
The applicant states that during the week commencing 10 June 2019, he worked with
Ms Stahmer at a residence at Wangi Wangi. He states that on the morning of 14 June 2019 Ms Stahmer picked up the applicant from his home and she drove to the Wangi Wangi residence. He states that one of the first jobs he had to complete was to move 22 cartons of wall and floor tiles from the front to the rear of the residence. He states that the entire job took several hours. The applicant estimates that each of the cartons weighed approximately 20 kg.The applicant states:
“I had managed to move most of the cartons from the front to the back, and when I went to place one of the last cartons onto the stack of cartons that I formed, I swung both of my arms and upper body from the left to the right to place the carton down, when suddenly I felt an excruciating sharp pain in my left shoulder. I managed to place the carton down but was able to stop working further as I had completed the job.”
The applicant states that Ms Stahmer was near the applicant when he sustained this injury and he said something like: “That didn’t feel good.” He states that he thinks he then told
Ms Stahmer that he hurt himself. He states that work for the day finished up soon after and he did not discuss the injury any further with Ms Stahmer because he thought it was normal wear and tear.The applicant states that the next day, being a Saturday, he visited a Thai Massage business at Wangi Wangi and received a massage of the shoulder, although he states that it did not help much.
The applicant states that he returned to the same work location on 17 June 2019, but he was still experiencing a sharp, throbbing pain in the left shoulder. He states that he did not mention the pain again to Ms Stahmer and pressed on with his work, although he was careful and moved slower.
The applicant states that he kept working for and with Ms Stahmer for the next few weeks. He states that he remained in pain but that he pushed through with Panadol, “heat balm” and wheat bags. He states that the pain was getting worse, but he wanted to keep working to earn money and obtain long term employment with the respondent, and he did not want to disappoint Ms Stahmer or let her down.
The applicant states that he ceased work with the respondent on 29 July 2019 because no further work was being offered to him. He states that he did not take on or pursue any other employment while he was waiting for a call for more work from Ms Stahmer.
The applicant states that he was reluctant to seek any medical assistance because he does not regularly see a doctor. However, when the pain had not gone away by November 2019, the applicant states that he consulted Dr Clarke at Rathmines Medical Centre.
The applicant states that in the six month period following the injury, he thought that his left shoulder would get better and it never occurred to him to lodge a workers compensation claim. He states that he had already told Ms Stahmer about the injury, so he was in no rush to lodge a claim.
The applicant states that during the time that he did not lodge a claim, it did not occur to him that he was suffering a severe injury to his left shoulder. He states that it became quite obvious as time went on that his shoulder injury was worsening.
The claim form completed by the applicant on 7 January 2020 describes how the injury happened as follows:
“I was moving tiles from left to right placing them on top of each other when I felt a sharp pain in my left shoulder.”
The applicant states that he was involved in a motor vehicle accident on 24 January 2020. He made a statement to NSW Police on 28 January 2020. In that statement, the applicant states that he was struck in the left hip to rib area, and that as a result of the accident he has a sore back and left side hip. In a further statement dated 21 January 2021, the applicant states that he did not injure or feel pain in his left shoulder from this accident.
The applicant states that he left school at the School Certificate level and has no formal qualifications. He states that his entire working experience has been in the construction and manual labour industries. He states that he cannot use his left arm at all due to the left shoulder injury. He states that he would not expect to be employed in the physical demands of a labouring job when he has only one good working arm.
The applicant states that he does not have any sales experience and that he is computer illiterate because he has not used or worked with a computer for many years.
The respondent’s lay evidence
Trudy Stahmer has provided a statement dated 24 February 2020. She states that she has been operating a small tiling business for about 15 years.
Ms Stahmer states that her business employed the applicant through an employment agency because of an incentive provided to employ a long term unemployed person. She states that the applicant was required to work 20 hours per week as a minimum, but that his normal hours varied.
Ms Stahmer states that when the applicant commenced employment she went over the policies and procedures of the applicant’s employment with her business. She refers to a multi page document which she personally created to suit her business which covers all aspects of safety on the work site and conduct in the workplace. That document is included in the Reply, although it is not signed by the applicant.
Ms Stahmer states that the applicant’s aptitude and attitude towards his work was that he was keen and happy to be working. She states that for the most part, the applicant’s behavioural and work performance was fine.
Ms Stahmer states that she first learned of the applicant’s alleged injury when she arrived home one day, sometime between 18 and 20 December 2019, to find a bundle of documents relating to a claim for a work injury.
Ms Stahmer states that on 14 June 2019 the applicant’s initial duties were to shovel and mix sand, and then mix the sand with concrete. She states that they were then joined by a contractor, Ty Matthews, and all three did the mixing. She states that she and Mr Matthews then spent about four hours laying mud in the bathroom, and that while they were doing that the applicant was tasked with moving boxes of tiles from the front to the rear of the property.
Ms Stahmer states that the applicant had to move about 15 boxes of wall tiles which weighed between 18 and 24 kg each, and about 10 boxes of floor tiles, which weighed half that weight. She states that the applicant only moved half of those boxes in a five or six hour period.
Ms Stahmer states that at no time while moving those boxes of tiles, or at any other time during that day, did the applicant complain of having sustained an injury. She states that the applicant knew to report an injury as that was part of his initial induction.
Ms Stahmer states that the applicant did not say anything about an injury when the applicant, herself, Mr Mathews and her son, Max Stahmer, spent about 20 minutes at the end of shift talking about next week’s agenda, or when she drove the applicant back to his home.
Ms Stahmer states that the applicant continued working for her business until the second week of August 2019, but that he said nothing about an injury, and that he showed no signs of discomfort. She states that she after the six month period of employment provided to employ the applicant came to an end, she advised the applicant to get an ABN so that he could do sub-contract work. She states that by now her son, Max, required work and she chose to provide the available work to her son rather than the applicant. Ms Stahmer states that she informed the applicant of this and he seemed to accept it.
Ms Stahmer writes in the employer injury claim form:
“I believe Mark did this to his shoulder after he ceased employment with me. He had no time off work after alleged incident, then hatched this plan to defraud the insurance company, and go back to not working.”
Ty Matthews has provided a statement dated 24 February 2020. He states that he recalls undertaking subcontract work for the respondent on 14 June 2019 at a property at Wangi Wangi.
Mr Matthews states that while he and Ms Stahmer worked in the bathroom, the applicant carried boxes of tiles from a carport area to a rear deck area. He estimates that based on the size of the job, there would have been about 20 boxes to carry, over a distance on each occasion of about 20 metres. He states that the applicant moved all of the boxes that afternoon and that it would have taken him a couple of hours with breaks and doing other small things in between.
Mr Matthews states that at no time did the applicant make any complaint of sustaining any form of injury while moving those tiles. He states that the applicant did not appear injured in any way and that the applicant was in a jovial mood.
Mr Matthews states that he has seen and spoken to the applicant a number of times between 14 June 2019 and when he made a claim for compensation, including attending the applicant’s residence to install a door, and no time did the applicant mention any form of injury and that the applicant never appeared injured when they were together.
Maxwell Stahmer has provided a statement dated 24 February 2020. He states that he recalls the day when the applicant claims to have sustained an injury, being a Friday at a residence at Wangi Wangi.
Mr Stahmer states that he stopped in at the site that day when his mother, Mr Matthews and the applicant were packing up. He states that the applicant did not mention that he had sustained an injury and that the applicant was moving freely.
Karran Vincent has provided a statement dated 24 February 2020. She states that she is employed as a bar person at the Wangi Hotel and is “long-term local.”
Ms Vincent states that in September or October 2019 the applicant told her that he had injured his right shoulder when attempting to lift a closed and locked roller door. She also states before the applicant was employed with the respondent, the applicant had told her that he had ripped his right bicep from the bone.
The medical evidence
The first reference to treatment being sought by the applicant for a condition affecting his left shoulder is the applicant’s attendance upon his general practitioner, Dr Clarke, on 27 November 2019. The notes record referral for a x-ray and ultrasound of the left shoulder and “pain and stiffness ? RC Tear or bursitis or both.”
A Medical Certificate for Centrelink provided by Dr Clarke at that consultation states that the date of onset of left shoulder pain and stiffness is 27 September 2019.
There is no reference to the left shoulder condition being related to the applicant’s work in
Dr Clarke’s notes for 27 November 2019, or at the applicant’s next consultation on 2 December 2019.
At the applicant’s third consultation for his left shoulder on 16 December 2019, it is recorded:
“Claiming W/C for left shoulder injury
As looked back through his records and found the date of injury in June
Remembers lifting and carrying about 24 x 20kg packets of tiles for a job, when left shoulder pain began
Says he reported it to Trudy Stahmer his employer. Not sure if anything was recorded then
Hasn’t worked for months now because of left shoulder pain.”
Dr Clarke issued a Certificate of Capacity at that consultation certifying that the applicant had a lifting capacity with his left arm of 5 kg, with no work above shoulder height, and the applicant having no current work capacity from 16 December 2019 to 13 January 2020. Thereafter further Certificates of Capacity are provided by Dr Clarke until 13 August 2020 which certify that the applicant has no current work capacity and places a lifting capacity with the left arm of 2 kg, to completely avoid pushing and pulling, but with unlimited driving ability.
In a report dated 18 August 2020, Dr Clarke diagnoses a left rotator cuff tear and writes that the “incident described by the patient at work is consistent with the clinical findings, the radiological findings and his orthopaedic specialist consultations.” Dr Clarke opines that the applicant remains unfit to perform any duties of a tiler, and that the applicant’s left arm range movement is very limited and lifting capacity very poor.
Dr Clarke records on 24 January 2020:
“Got hit by a car this AM backing fast out of her driveway
Hit him on L side and ribs and hip are now sore, protected himself with L arm, that he is waiting to have surgery on.”The applicant’s treating orthopaedic surgeon, Dr East, has provided a report dated 17 June 2020. Dr East records the history of injury being that the applicant was moving tiles from a ute on 14 June 2019 when he had an acute onset of pain and “an elastic break” in the left shoulder. He records that the applicant has struggled with pain ever since.
Dr East diagnoses an acute left rotator cuff tear and provides the following opinion:
“It can often be difficult to precisely establish the exact nature and temporal relationships of rotator cuff tear injuries as related to work incidents in labourer’s who have worked for a long period of time. What is obvious, is that the pain in Mark’s shoulder over this period of time was significantly affected by his work as a tiler in this company. Surgery as described by Dr Posel is reasonably necessary, as also assessed by myself. It is simply then a matter of whether this injury occurred at work or whether exacerbated by work, one of which is certainly the case.”
Dr East also opines that he does not believe that the applicant is fit for the type of work he is trained for, and that work as a manual labourer, tiler and tradesman would be very difficult due to chronic deconditioning of the shoulder and chronic pain.
Dr Yuk Kai Lee, orthopaedic surgeon, has provided reports at the request of the applicant’s solicitors dated 23 September 2020 and 22 January 2021.
Dr Lee records that on 14 June 2019 the applicant was carrying boxes of tiles that weighed about 20 kg from the front to the rear of a house and while negotiating the footpath he felt a twinge in his left shoulder. Dr Lee records that the applicant continued working until July 2019.
Dr Lee diagnoses an aggravation of a pre-existing rotator cuff tear in the applicant’s left shoulder. Dr Lee opines that the applicant’s employment was a substantial contributing factor to his left shoulder injury because the applicant’s work involved a lot of lifting and the applicant also twisted the left shoulder while carrying tiles into the backyard.
Dr Lee opines that it would be difficult for the applicant to return to work as a tiler at this stage. In his further report dated 22 January 2021, Dr Lee opines that “theoretically” the applicant should be fit for suitable duties working for the respondent if not for the car accident on 24 January 2020, but that it is unlikely that the applicant will be able to find other jobs due to his previous back injury and the left shoulder injury.
Dr Posel, orthopaedic surgeon, has provided a report at the request of the respondent dated 8 April 2020.
Dr Posel records that on 14 June 2019 the applicant carried four tiles at a time from the front to the rear of a house, and estimates the weight of the tiles he carried to be approximately
10 kg. Dr Posel records that on the eighteenth of some twenty trips carrying tiles, the applicant felt a bang in the shoulder akin to an elastic band rupture. Dr Posel records that the applicant advised Ms Stahmer of the injury while she was driving him home.
Dr Posel records that the applicant continued to work for the respondent for another two and half months. He records that the applicant continued to carry tiles, as well as all other duties expected of him as a tiler’s labourer, but “babied” the left arm.
Dr Posel diagnoses a high grade partial tear of the left rotator cuff. He opines that he does not believe that the applicant would have been able to perform all of the tasks of a tiler’s labourer had he suffered an acute large tear on 14 June 2019. Dr Posel writes:
“If one suffers an acute reasonably large full thickness rotator cuff tear whilst at work, it may be feasible to continue working for the remainder of the shift, however with warm down, the shoulder becomes rather uncomfortable. More often than not, it would be difficult to continue working the following day in a labouring position (e.g. as a tiler’s labourer) performing all of one’s usual duties including carrying tiles, laying tiles and mixing cement and glue, without significant discomfort.”
Dr Posel’s conclusion that the applicant did not suffer a left rotator cuff tear is also based upon his perusal of “background information about the claim” supplied by icare and his comparison of material, such as the statements relied upon by the respondent, with what he was told by the applicant.
FINDINGS AND REASONS
Whether the applicant sustained an injury in the course of his employment with the respondent
Ms Grotte for the applicant submits that the applicant’s evidence as to the cause of the injury to the left shoulder should be accepted. She submits that the applicant’s evidence should be preferred over the evidence of Ms Stahmer because the evidence of Ms Stahmer is self-serving, alleges fraud where there is no such evidence, and is based on speculation and innuendo.
Ms Grotte submits that there is no evidence that the applicant did not sustain an injury as he has claimed, and his description of how the injury occurred is consistent with the description of the work he was undertaking from the evidence provided by Mr Matthews.
Ms Grotte submits that the applicant has met the onus of proof summarised by McDougall J (McColl and Bell JJA agreeing) in Nguyen v Cosmopolitan Homes [2008] NSWCA 246, where it was said at [55]:
“The position may be summarised as follows:
(1)A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4)A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
Mr Saul for the respondent submits that the applicant’s credit is in issue. Mr Saul refers to the applicant continuing to work for another six to eight weeks after 14 June 2019 without informing Ms Stahmer that he had sustained an injury or exhibiting any signs of injury while undertaking his usual duties; the delay of some six months before seeking treatment for the alleged injury; the applicant’s failure to initially inform his general practitioner that the condition of his left shoulder was related to work; the date of onset of symptoms in the left shoulder recorded on the Centrelink medical certificate to be 27 September 2019; and the varying records in the medical reports as to how the alleged injury occurred. Mr Saul submits that all of this evidence means that I could not be satisfied that the applicant sustained the injury to his left shoulder at work on 14 June 2019.
Both Ms Stahmer and Mr Matthews confirm that on 14 June 2019 the applicant lifted and carried cartons of tiles from the front to the rear of the property that they were all working at. There is some variation in the evidence as to when the applicant undertook this particular activity. The applicant’s own evidence is that he did this job at the beginning of the working day, whereas Ms Stahmer and Mr Matthews state that it was later in the day. The applicant estimates that all 22 cartons weighed about 20 kg, whereas Ms Stahmer states that 10 of the cartons would only have weighed 9 to 12 kg.
There are also some variations in the details of what occurred on 14 June 2019 in the medical reports which are in evidence. Dr East records that the applicant felt an acute onset of pain when lifting tiles from a ute. Dr Lee records that the applicant felt a twinge of pain in his left shoulder when carrying a box of tiles. Dr Posel records that the applicant felt a bang in his left shoulder when carrying four tiles which weighed about 10 kg.
I accept from the evidence of the applicant, Ms Stahmer and Mr Matthews that on 14 June 2019 the applicant lifted and carried about 20 cartons of tiles and that at least half of those cartons weighed about 20 kg.
I also accept that the lifting and carrying of heavy cartons of tiles was capable of causing an injury to the left shoulder. Despite some variation in the details obtained by Drs Clarke, East and Lee, all three doctors have no difficulty in accepting that the lifting and carrying of heavy cartons of tiles as described by the applicant to each of them could cause or aggravate a rotator cuff tear.
Dr Posel does not accept that the applicant did sustain an injury to the left shoulder on 14 June 2019, but that is based upon his own interrogation of the lay evidence and his opinion that the applicant would not have been able to continue to undertake labouring work if he had sustained a reasonably large tear.
The applicant’s treating specialist, Dr East, is provided with the opinion of Dr Posel. Dr East acknowledges the record made by Dr Posel that the applicant “babied” his left arm after 14 June 2019, but maintains an opinion that the applicant’s rotator cuff tear was caused or exacerbated by the manual moving of tiles on 14 June 2019. Dr East concedes that he does not have the full information to hand and only relies on the applicant’s description in terms of making the causal relationship between what the applicant did on 14 June 2019 and the onset of symptoms in the left shoulder.
I nonetheless have an actual sense of persuasion from a review of the evidence that the applicant did sustain an injury to his left shoulder on 14 June 2019 when he was lifting and carrying heavy tiles at the direction of the respondent.
The applicant states that he did not discuss the pain he had felt in his left shoulder because he thought it was normal wear and tear. He states that the following day he visited a Thai Massage business at Wangi Wangi and received a massage of the shoulder. The applicant was not challenged on this and there is no evidence of the respondent making any further enquiries in regard to this treatment.
I accept that it is reasonable and understandable that the applicant did not want to alert
Ms Stahmer to the ongoing problems he was having after 14 June 2019 because he wanted to keep working to earn money and obtain long term employment with the respondent. There is some discrepancy between the applicant’s own evidence that he worked between 2008 and 2011 as a construction labourer and also for a short time in 2018, and the history taken by both Dr Lee and Dr Posel that the applicant had not worked at all since 2008. It would seem that the job provided by the respondent was under a scheme to assist long term unemployed persons.
I accept that the applicant had been out of the workforce for many years and because of this he was motivated to retain this job and kept on working despite having sustained an injury to the left shoulder on 14 June 2019. That conclusion is supported by Ms Stahmer’s evidence that the applicant’s aptitude and attitude towards his work was that he was keen and happy to be working, and that his behavioural and work performance was fine.
Ms Stahmer states that in the following two months after 14 June 2019 the applicant showed no signs of discomfort. However, Ms Stahmer also states that the applicant never informed her of any injury to the left shoulder while he continued working for her business, so there is no reason why Ms Stahmer would have been on the lookout for signs of disability from the applicant.
The applicant’s own evidence does not support a finding that he put Ms Stahmer on notice that he sustained an injury to the left shoulder on 14 June 2019. The applicant states that
Ms Stahmer was near him when he said something like: “That didn’t feel good.” That short comment did not identify the applicant’s left shoulder as being injured, or that he had sustained an injury at all. It was a comment that could have several meanings. The applicant’s only other evidence on reporting the injury goes no higher than he thought he had told Ms Stahmer that he hurt himself.It is therefore reasonable to accept that the applicant continued on working for another six to eight weeks without informing Ms Stahmer of his injury and protecting his left arm because of the need to keep earning income and maintain his employment.
I also accept as reasonable that the applicant did not seek any medical treatment for some months because he hoped that the condition of his left shoulder would improve. The applicant also states that he does not regularly see a doctor.
The clinical notes from the two general practices which the applicant attends support his claim that he does not regularly see a doctor. The clinical notes from the practice that
Dr Clarke works from contains one entry for treatment in 2017, and no entries for treatment in 2016 and 2018. There are several entries in 2015 but those followed a specific event in August 2015 when the applicant exacerbated his lower back condition.
The clinical notes from the other general practice which the applicant attends, The Boulevarde Family Practice, contains two entries in 2016 for lower back pain, but no further entries until 21 July 2020 when the applicant seeks treatment for his left shoulder condition.
Mr Saul took issue with this evidence. He submits that it is implausible that the applicant would not have attended for medical treatment for two or three years given the variety of medical issues he has had over the years.
Ms Grotte in response submits that there are no other clinical records that relate to the period from 2016 to 2019 and that the respondent had the opportunity to seek information on this if it wished.
I agree with the submission made by Ms Grotte. The available evidence confirms that despite the applicant having had other ailments over the years, he rarely went to the doctor, and that is consistent with his own evidence.
Mr Saul submits that a crucial piece of evidence is the Medical Certificate for Centrelink dated 27 November 2019 which nominates the date of onset of left shoulder pain and stiffness as 27 September 2019, and which post-dates the alleged injury by over three months.
There is, however, no other contemporaneous evidence to explain why 27 September 2019 is chosen by Dr Clarke in that document as the date when the applicant commenced to experience symptoms in his left shoulder. Neither the clinical notes from Dr Clarke, nor his subsequent report dated 18 August 2020, provide any assistance.
I agree with the submission made by Ms Grotte that the date nominated in the Medical Certificate for Centrelink for the onset of the applicant’s left shoulder pain and stiffness should be treated with caution, especially when placed against other clinical records and medical certificates that are provided by Dr Clarke only some two weeks after this Medical Certificate for Centrelink and which identify the date of injury as being 14 June 2019.
Mr Saul also refers to the note made by Dr Clarke on 16 December 2019 that the applicant had looked through his records and found that the date he was lifting packets of tiles and sustained injury was in June 2019. Mr Saul submits that no “records” have been provided by the applicant which would assist in the determination of this dispute.
I do not consider any adverse inference can be drawn against the applicant in regard to this. That note is created by Dr Clarke and may be Dr Clarke’s own shorthand for understanding how the applicant came to identify the injury occurring on 14 June 2019. Caution needs to be exercised when placing reliance on clinical notes from a busy general practice (Nominal Defendant v Clancy [2007] NSWCA 349).
I also agree with the submission made by Ms Grotte that the opinion expressed by
Ms Stahmer in the employer injury claim form that the applicant had hatched a plan to defraud the insurance company, and the evidence from Ms Vincent, can be no more than innuendo and speculation. There is no tangible evidence available which supports a finding that the applicant has engaged in any fraud as part of this claim.
The applicant has certainly made it difficult for himself in pursuing this claim by not providing immediate notice to the respondent of the onset of pain he experienced in his left shoulder on 14 June 2019, and by the delay in not seeking treatment and immediately telling his general practitioner of the cause of his injury. However, there is no dispute that the applicant was lifting and carrying heavy boxes of tiles on 14 June 2019, that he has provided an explanation for his tardiness in reporting the injury and seeking medical treatment, and that he has been consistent in informing his treating doctors as to how the injury to his left shoulder occurred.
I therefore have an actual sense of persuasion from the evidence which I have summarised and reviewed that the applicant did sustain an injury to his left shoulder in the course of his employment with the respondent on 14 June 2019.
Both Dr Lee and Dr Posel opine that the applicant has aggravated a pre-existing tear of the left shoulder. Dr East considers the tear either occurred at work or that it was exacerbated by work.
The preponderance of medical evidence supports the injury being an aggravation of an existing tear. That can still meet the definition of ‘injury’ in section 4 (a) of the 1987 Act. That has been confirmed in decisions such as Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd [1998] NSWCC 51; 17 NSWCCR 309; 45 NSWLR 606 (Mecha), and Rail Services Australia v Dimovski [2004] NSWCA 267 (Dimovski).
In Mecha, Powell J said at [39 -42]:
“In the present case, the medical evidence which was before the trial Judge was sufficient to demonstrate that, even before the fall which he sustained on 11 February 1992, the worker’s lumbo-sacral spine had begun to degenerate. ... This notwithstanding, the evidence of the worker, which was accepted by the trial Judge, was that, prior to the fall, his back condition was asymptomatic.
The worker’s evidence, which was supported by that of his general practitioner, was that, following his fall, he began to suffer pain in his back and neck, which pain grew worse and led to his ceasing work for a period ...
There thus having been an identifiable incident, which incident appears to have caused, at least, ligamentous injury to the lumbar spine segment, the sequelae of which involved pain, which was, for a time disabling, and which, in any event, has continued over the years, the decision of the majority in Zickar v MGH Plastic Industries Pty Ltd would seem to dictate that, even if it be the fact that the result of the incident was merely that the worker’s pre-existing back condition was rendered symptomatic, he was nonetheless to be regarded as having sustained an injury within the meaning of par (a) of the definition of ‘injury’.”
In this dispute there was an identifiable incident of lifting and carrying tiles which caused the onset of pain in the applicant’s left shoulder, so that the pre-existing tear was rendered symptomatic, and so the applicant can be regarded as having sustained injury within the meaning of paragraph (a) of section 4 of the 1987 Act.
I have already referred to Dr Posel’s opinion that the applicant did not sustain an injury to his left shoulder as being based upon his interrogation of material made available to him. I have reviewed the evidence and accepted the applicant’s evidence as to how the injury was sustained. Dr East and Dr Lee both opine that the injury to the applicant’s left shoulder occurred when he was lifting and carrying heavy tiles.
I prefer the opinions of Dr East and Dr Lee when placed against the evidence which I have reviewed, in particular that of Dr East, given the role that he has as the applicant’s treating specialist. Furthermore, Dr East has considered issues raised by Dr Posel, but remains of the opinion that the work undertaken by the applicant on 14 June 2019 was the cause of the onset of symptoms.
I accept that the applicant sustained injury to his left shoulder on 14 June 2019 and that his employment was a substantial contributing factor to that injury.
I should add that I do not consider the motor vehicle accident which the applicant was injured in on 24 January 2020 affected the applicant’s left shoulder condition in any way because material from soon after the accident makes no reference to any injury to the left shoulder. The note taken by Dr Clarke on the same day of the accident refers to the applicant experiencing pain in his left hip and back, and there is no mention of any injury to the shoulder. The statement made by the applicant to the police four days later does not refer to any injury to the left shoulder.
Whether the applicant can recover compensation due to a delay in giving notice of injury to the respondent and/or making a claim within the time required by legislation
Section 254 of the 1998 Act relevantly provides:
“(1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3) Each of the following constitutes special circumstances:
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act;
(e) the employer has contravened section 231;
(f) the injury has been treated in the first aid room at the place of work;
(g) if the employer is the owner of a mine – the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011.”
Section 261 of the 1998 Act relevantly provides:
“(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
…..
(4) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.”
I have already provided reasons as to why I do not accept that the applicant gave notice of injury to Ms Stahmer at the time the applicant sustained injury on 14 June 2019, or soon thereafter.
The alternative basis made by Ms Grotte for overcoming the requirements of sections 254 and 261 of the 1998 Act is that the applicant has provided reasonable cause for his delay. Ms Grotte submits that the applicant did not formally notify Ms Stahmer of his injury and did not make a claim for a little over six months after the injury occurred because he wanted to keep working and he hoped the condition of his left shoulder would improve.
Mr Saul submits that the applicant was well aware of how to make a claim for compensation and was provided with an Employee Handbook when he commenced employment with the respondent, which included details of what to do if he was injured at work. Mr Saul also submits that there is no explanation as to why the applicant delayed in giving notice of injury and making a claim from September 2019 (when the Medical Certificate for Centrelink states the applicant had an onset of left shoulder pain) to January 2020 (when the applicant makes a claim for compensation).
The term ‘reasonable cause’ as it applies to section 261 (4)(a) of the 1998 Act was considered by Roche ADP in Albury Real Estate Pty Ltd v Rouse [2006] NSWWCCPD 139 (Rouse). That decision in turn referred to a much earlier decision of Judge Rainbow in Garratt v Tooheys Ltd [1949] WCR 80 (Garratt). Roche ADP said at [30]-[32]:
“The phrase ‘reasonable cause’ was considered in Garratt v Tooheys Ltd [1949] WCR 80 (‘Garratt’) at 86-7. In that case Judge Rainbow said at 86:
“The next question is whether the applicant’s failure was occasioned by some reasonable cause. In its context, cause means the grounds which led the workmen to omit to claim. And the mixture of facts, circumstances and motive which constitute the explanation of the failure must be reasonable. It is sometimes argued that the reasonableness of the cause is only to be measured and considered from the viewpoint of the worker and reference is made for example to King v Port of London Authority [1920] AC 1 where Lord Atkinson at page 24 said: ‘Of course it is reasonable cause having reference to the workman himself’. If this argument means that the inquiry is to be limited to discovering whether the worker believed himself to be acting or thinking reasonably that is not the law: cf Brown v Aveling and Porter, (22 BWCC 165 at 169). It is not the worker who is to be reasonable, it is the cause. As Lord Birkenhead said in King v Port of London Authority, ‘the general atmosphere must always be considered’. The reasonableness is to be measured objectively in the light of every circumstance in the case relevant to showing why the failure to claim occurred: cf Atherton v Chorley Colliery Co Ltd (19 BWCC 314).”
Commenting on Garratt C P Mills said at page 468:
“The mixture of facts, circumstances and motive which constitute the explanation of the omission must be reasonable, considered from the view point of the worker not in the sense that he considered his omission reasonable, but rather in the sense that the cause of the omission is reasonable in the light of all the circumstances in which the worker found himself.”
Roche ADP in Rouse then said at [35]:
“I agree with the comment by C P Mills that it is the “mixture of facts, circumstances and motive which constitute the explanation of the omission” that must be reasonable. If the explanation is ‘reasonable’ and if the failure to claim within six months was occasioned by that ‘cause’, then the subsection has been satisfied.”
Although what was said in Rouse regarding ‘reasonable cause’ was in respect of section 261 (4)(a) of the 1998 Act, I see no reason why the same principles should not be applied to ‘reasonable cause’ in section 254 (3)(b) of the 1998 Act, given that both sections use those same words.
Garratt and Rouse emphasise that what is considered a reasonable cause is not to be considered from the viewpoint of the worker, but in all the circumstances in which the worker finds himself.
There are facts, circumstances and motive in the explanation for delay provided by the applicant which can be regarded as reasonable in the circumstances that the applicant found himself in from the time that he sustained the injury on 14 June 2019 until December 2019 and January 2020 when he did give notice of injury to the respondent and did make a claim for compensation.
I have already accepted that the applicant was motivated to keep working because he had been out of the workforce for many years, and that this was an understandable reason for not informing Ms Stahmer of the injury and not making a claim for compensation while he was able to continue to work for the respondent. I have also accepted the applicant’s explanation that he hoped that the left shoulder would improve and that this conclusion is supported by the applicant’s claim that he does not regularly seek medical treatment, which in turn is borne out by there being few attendances by the applicant upon general practitioners in at least the few years prior to the applicant’s left shoulder injury.
I accept the applicant’s evidence that once several months had passed after the incident on 14 June 2019 and the applicant’s left shoulder had not improved, that the applicant was motivated to seek medical treatment. He was then advised of the severity of his condition and that surgery was an appropriate form of treatment.
I therefore find that the applicant has provided a reasonable cause for his delay in giving notice of injury, as provided for by section 254 (3)(b) of the 1998 Act, and for his delay in making a claim for compensation as provided for by section 261 (4) of the 1998 Act, and that the applicant is able to recover workers compensation benefits.
The claim for weekly payments of compensation
Clause 9 of Schedule 3 of the 1987 Act provides:
“(1) An injured worker has
"current work capacity" if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.(2) An injured worker has
"no current work capacity" if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.”‘Suitable employment’ is defined in section 32A of the 1987 Act:
“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.”
Ms Grotte refers to the applicant’s past work experience being in labouring and construction work, and that he has no sales or computer skills. Ms Grotte submits that the severity of pain which the applicant is now experiencing in the left shoulder and the applicant’s limited employment skills means that he has no current work capacity, and that this will continue until he undergoes the recommended surgery to his left shoulder.
Mr Saul refers to the applicant continuing to work for the respondent without any apparent difficulty for six to eight weeks after 14 June 2019. Mr Saul also refers to the applicant’s statement that he was waiting for more work to be provided by Ms Stahmer as evidence that the applicant remained willing and able to do work as a labourer from August 2019. Mr Saul submits that there are many unskilled jobs that the applicant could do despite the current disability affecting his left shoulder.
Dr Clarke has provided Certificates of Capacity from 16 December 2019 to 13 August 2020 which certify the applicant having no current work capacity. The Certificates of Capacity from 15 January 2020 impose restrictions of a lifting capacity with the left arm of 2 kg and to completely avoid pushing and pulling. However, those certificates state that the applicant’s driving ability is unlimited and there are no restrictions on standing or sitting.
Both Dr East and Dr Lee opine that it would be difficult for the applicant to work as a labourer. Dr Lee opines that theoretically the applicant should be fit for suitable duties with the respondent, although he does not explain what those duties might be.
I could not locate any opinion from Dr Posel on the applicant’s work capacity since August 2019, but only an opinion of the applicant’s capacity for work once he has undergone surgery to the left shoulder.
I accept from a review of the medical evidence that the applicant is not fit for labouring work and will remain so until he has undergone surgery to the left shoulder. However, a review of the medical evidence also supports a finding that there are jobs which the applicant could do despite the pain and restriction in his left shoulder.
Although Dr Clarke certifies the applicant as having no current work capacity, there is no limit placed on the applicant’s driving ability. That the applicant has no limitations on his driving ability means that the applicant could work as a courier transporting light parcels or doing pathology collection. The applicant stated in February 2020 that he did not drive a motor vehicle and that he was driven to and from work by Ms Stahmer, but there is no evidence as to any reason why the applicant cannot actually drive a motor vehicle. Dr Posel records that the applicant did have a 1992 Pajero until it was set alight in June or July 2019.
The medical evidence would also support a finding that the applicant could work as a meter reader because there are no restrictions placed upon the applicant’s standing tolerance or bending ability.
I appreciate that the applicant resides at Rathmines on Lake Macquarie and that public transport is likely to be limited, especially if the applicant does not have access to a motor vehicle. However, I am required to determine whether the applicant is currently suited for employment having regard to the nature of the applicant’s incapacity and his age, education, skills and work experience, but regardless of whether the suitable employment is available and where the applicant resides. From my review of the evidence, the applicant has been fit since the time he ceased employment with the respondent to work as a courier driver transporting light goods or as a meter reader.
There are Certificates of Capacity issued by Dr Burbidge from the Boulevarde Family Practice from 7 September 2020 onwards which certify the applicant as having no current work capacity and that “no capacity” is written for all the activities listed for ‘Capacity’ in those certificates.
There is no explanation provided by Dr Burbidge, or any other doctor, as to why the applicant suddenly has no capacity for any work activities when for the previous year, on a review of the medical evidence, the applicant had a capacity for work. President Keating in DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCCPD 22 (Hyde) said in regard to medical certificates at [93]:
“The certificates are of little probative value in the absence of a medical report to explain them or to set out the history on which they are based: Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 229; 6 DDCR 461.”
Furthermore, although the Certificates of Capacity issued by Dr Burbidge are in relation to the applicant’s left shoulder injury, the clinical notes from the Boulevarde Family Practice, which are limited to attendances on 21 July 2020 and 30 July 2020, also refer to treatment for the applicant’s right shoulder and lumbar spine.
I am therefore not confident in relying on the medical evidence from Dr Burbidge or the Boulevarde Family Practice when making a determination on the applicant’s capacity for work and claim for weekly payments of compensation.
The medical evidence which I have relied upon to find that the applicant has continued to have a partial capacity for work since he ceased employment with the respondent does not place any restrictions on the amount of hours each week that the applicant could work. Yet even if an allowance was made for the applicant having one day off each week given the pain which he is experiencing in his left shoulder, 28 hours of work per week as a courier driver or meter reader would still be in excess of not only 80% of the applicant’s PIAWE (being $424), but also 95% of the applicant’s PIAWE (being $503.50).
The award rate for a courier driver under the Road Transport and Distribution Award 2010 (being a Transport Worker grade 2) in August 2019 was $21.17 per hour, which for a 28 hour week amounts to $607.88. The award rate for a meter reader under the Electrical Power Industry Award 2010 (being Administrative Grade 1) in August 2019 was $20.77 per hour, which for a 28 hour week amounts to $581.56.
I therefore find that the applicant has been able to earn more than his pre-injury average weekly earnings in suitable employment since 29 July 2019. I find that the applicant has no entitlement to weekly payments of compensation that he has claimed from 29 July 2019 to date. There will be an award for the respondent for the claim for weekly payments of compensation to date.
The claim for medical expenses
Dr East, Dr Lee and Dr Posel all consider that the surgery to repair the left rotator cuff tear is appropriate, although Dr Posel recommends an MRI scan before proceeding to surgery.
Dr East states that he does not routinely obtain an MRI scan of the shoulder because surgery should be attempted in any event for a 54 year old man for a rotator cuff repair.
I have already provided my reasons as to why I found that the applicant did sustain an injury to his left shoulder on 14 June 2019 in the course of his employment with the respondent and that the applicant’s employment was a substantial contributing factor to that injury. It follows that from the opinions expressed by Dr East and Dr Lee that the need for the proposed surgery results from the injury the applicant has sustained and is reasonably necessary, and the costs of that surgery, and costs related to that surgery, should be met by the respondent.
John Isaksen
MEMBER
26 March 2021
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