David v Global Logistics Toll People
[2022] NSWPIC 38
•31 January 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | David v Global Logistics - Toll People [2022] NSWPIC 38 |
| APPLICANT: | Robin David |
| RESPONDENT: | Global Logistics - Toll People |
| MEMBER: | John Wynyard |
| DATE OF DECISION: | 31 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Respondent denied liability to applicant's left elbow and lumbar spine; applicant referred to doctor within hours of injury, completed an incident form on the respondent's letterhead, was given a rehabilitation plan on the date of injury, and attended physiotherapy the following week; whether inconsistencies in the contemporaneous evidence affected the applicant's onus; applicant's credit attacked as to alleged contrast in still photographs taken during video examination and surveillance of applicant turning his head whilst driving, and he was also seen attending a gym when he had told his qualified specialist that he had given up going to the gym; Held - as the incident form mention the lumbar spine, and as the left forearm was immediately x-rayed on the day of injury, the respondent's submissions regarding contemporaneous material were posed with an eye too keenly attuned to the perception of error; Qannadian v Bartter Enterprises Pty Limited applied; credit issues regarding surveillance not relevant as to whether injury had occurred in view of contemporaneous material, applicant’s explanation accepted in any event; matter referred to medical assessor on all injuries. |
| DETERMINATIONS MADE: | 1. I remit this matter to the President for referral to a Medical Assessor for a whole person impairment assessment on the following bases: (a) Date of injury: 29 March 2018. (b) Matters for assessment: (i) left upper extremity (shoulder, elbow); (ii) cervical spine, and (iii) lumbar spine. (c) Evidence: (i) Application to Resolve a Dispute and attached documents; (ii) Application to Admit Late Documents from the applicant; (iii) Reply and attached documents; (iv) Application to Admit Late Documents from the respondent, and (v) surveillance footage from the respondent. |
STATEMENT OF REASONS
BACKGROUND
Mr Robin David, the applicant, brings an action against Global Logistics - Toll People, the respondent, for lump sum compensation in respect of an accident that occurred on 19 March 2018.
Dispute notices were issued and an Application to Resolve A Dispute (ARD) and Reply were duly issued.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) Did the applicant suffer any injury at all?
(b) Alternatively, did the applicant suffer injury to his lumbar spine and/or his left elbow?
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)
The matter was heard by video link on 22 November 2021. The applicant was represented by Mr Greg Young of counsel instructed by Ms Clemance Semaan from Messrs Law Partners. The respondent was represented by Mr Brendan James of counsel instructed by Ms Chantelle Bauer from Messrs Colin Biggers and Paisley. Mr Luke McIlroy appeared from the respondent who is a self insurer. 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.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Application to Admit Late Documents (ALD) and attached documents from the applicant;
(c) Reply and attached documents;
(d) ALD and attached documents from the respondent, and
(e) video survelliance.
Oral evidence
No application was made in respect of oral evidence.
FINDINGS AND REASONS
Mr David claims that he was injured on 19 March 2018. The injury was described in the ARD form as follows[1]:
“On 1 April 2018, during the course of his ordinary employment duties, the Applicant was removing a gate from a truck when he lifted the gate and lost control of the gate causing the gate to tip over the back of the Applicant’s head, towards the left side of his body, which caused him to drop the gate behind him and twist his left shoulder, left elbow, neck and back.
As a result of this incident, the Applicant sustained injuries to his left shoulder, left elbow, cervical spine, and lumbar spine.”
[1] ARD form page 6.
The claim is for lump sum compensation caused by injury to the left upper extremity (which was clarified in submissions as involving the left shoulder and the left elbow), the cervical spine and the lumbar spine.
There was CCTV footage of the vehicle concerned and the faulty gate. Surveillance was also carried out on Mr David’s movements in June 2019.
A convenient factual summary
The applicant had been working for the respondent since 28 November 2016[2] as a driver, undertaking driving assignments for a range of companies. The circumstances of the injury were contained in a comprehensive factual report by Mr Paul York from Sure Fact Australia Pty Ltd, the results of which accord with other material before me.
[2] This date was given in Mr York’s summary at ARD page 50. Other accounts suggest that Mr David commenced on 27 March 2018 (Ms Kouros at reply page 2). Nothing turns on this discrepancy.
Mr York reported that on 29 March 2018 Mr David started work at about 9.00am. He checked his vehicle and received his run sheet from the office. He took the vehicle to its trailer where he observed that a gate was not chained and not hanging correctly. It was loose and it was leaning against a trailer. He also noticed that a curtain was torn and proceeded to arrange for its repair which took about three hours. He secured his load, tied down the curtains and proceeded to make a delivery to Clipsal Australia. The delivery address was 50 Stennett Road, Ingleburn and he arrived there at about 1.0pm.
He went to a waiting bay where he opened the curtains and undid the straps so that his trailer could be unloaded. He removed the gate that was not hanging properly and placed it on the ground against the trailer.
After unloading, the applicant replaced the gates and lifted the unchained gate. As he lifted it, he lost balance and it went over the back of his head and as it did so, he dropped it at an angle so that he did not fall back with the gate.
In attempting to control the gate, he alleged he suffered the claimed injuries.
The applicant reported his injury when he returned to base, to Mr Thomas Luken, the Assistant Fleet Manager.
Mr Luken contacted the Operations Supervisor, Ms Toula Kouros, who made an appointment for Mr David to see the company doctor, Dr Chiwara whom he saw immediately at 4.48pm.
Sometime after 5.00pm on the date of the injury, Mr David saw Ms Kouros and reported the injury and had a medical certificate from Dr Chiwara. Mr David commenced light duties the following day.
Toll Group Incident/Hazard Report
On the date of injury, 29 March 2018, an incident report was completed on a Toll Group form. The description given said:[3]
“Short Reference: Parascapulae Muscle Strain to Left Shoulder, Neck and Back
Description:
Toll People Driver was lifting non-hanging gate when it overbalanced due to heavy weight causing it to fall behind driver causing strain to his left shoulder neck and back.
Short Reference: Parascapulae Muscle Strain to Left Shoulder, Neck and Back”
[3] ARD page 27.
The form indicated that Dr Chiwara was the treating medical provider, and that Toula Kouros had taken action on 29 March 2018 in her capacity as Operations Supervisor. The form, which was lodged by the applicant, was not signed.
Jobfit Health Group Pty Ltd clinical notes
The clinical notes of Dr Chiwara’s above practice were lodged.[4] The entry on 29 March 2018 at about 4.30pm stated:[5]
[4] ARD from page 250.
[5] ARD page 258-259.
“Thursday March 29 2018 16:31:47
Dr Lazarus Chiwara
Visit type:
Surgery Consultation
Was lifting gate on truck that had no chain when he had to let go of the gate as it was getting too heavy. He strained the left shoulder and neck muscles as he let the gate fall to the ground.
He was not hit on the shoulder.The gate hit his left forarm.
….
Examination:
Nil AC Joint tenderness both shoulders.
Limited left shoulder movements in flexion, extension and abduction.
Negative impingement test.
Left forearm- Nil bruising seen.
Mild tenderness to palpation.Parascapulae muscle strain.
…
USS + X-Ray Left shoulder.
X-Ray Left forearm.”
Mr David next saw Dr Chiwara on 4 April 2018 and on this occasion Dr Chiwara’s notes said:[6]
“Still very sore in the left shoulder.
Pain in the upper back slightly better- now radiated to the left lumbar back.
Has not been taking the prescribed pain medication.No physiitherapy since Thursday.”
(as written)
[6] ARD page 258.
Mr David’s statements
A statement was taken from Mr David by the investigator on 30 April 2018. He described the incident saying:[7].
“43. I grabbed he date from the middle and picked it up. I moved a little to the left to position the gate. I lost balance when I lifted it up and it went over the back of my head. I dropped it back over the back of my head. I dropped it at an angle so that I didn’t fall back with the gate. I think this would have been at about 1430pm or 1435pm.
44. I strained my head and neck and left shoulder and left elbow.”
[7] ARD page 74.
Mr David made a further statement on 1 September 2021.[8] At [14] he said:
“14. On the date of subject injury, I was unloading crates off my truck in Ingleburn. This required me to open the metal gate, to allow my truck to get through. As I lifted the gate upwards, I lost control of the gate and it fell onto my left side. In response, I twisted my body away from the gate. As I did this, my left elbow, left shoulder, neck and lower back all twisted and I instantly felt pain. I wasn’t one to complain, so I pushed through the pains and thought it would go away with time. I flagged down the forklift driver, who used the forklift lift the heavy gate up off the ground.”
[8] ARD page 2.
Suitable duties plan
The respondent has a suitable duties plan drawn up for Mr David. The plan was agreed to by the signature of Mr David apparently on the same date as the injury 29 March 2018 although the doctor’s signature was 1 May 2018.[9]
[9] ARD page 328.
The start date was in fact the date of injury, 29 March 2018 and the nature of the injury was described as “strain to left shoulder and neck”[10].
[10] ARD page 329.
Investigations and certificates
Also Dr Chiwara sent Mr David for investigations with “MRI Now” and an ultrasound of the left shoulder, an X-ray of the left shoulder and of the left forearm was performed at 4.48pm.
The clinical notes accompanying the referral form from Dr Chiwara were:[11]
“Was lifting gate on truck when he had to let go, and jarred left shoulder, neck and upper back.
Pain in left forearm.”[11] ARD page 362.
Medical certificates were issued by Dr Chiwara which variously described the injury as affecting the left shoulder, left elbow and neck.
Mr Andrew Tan, Physiotherapist
Mr David saw a physiotherapist, Mr Andrew Tan. Mr Tran’s clinical notes showed that Mr David attended for treatment on 6 April 2018.[12] The site injury was described as “neck, lower back and left shoulder” and Mr Tran recorded the history given:
“Was lifting gate of truck weighing about 40 kg when he felt sudden pain in the left shoulder and back. Gate was already above head and he had to drop it. He has constant pain throughout and says that the medication was not helping very much.”
[12] ARD page 171.
Mr Tran’s handwritten notes stated that on examination Mr David was tender to palpation in the thoracic spine and paraspinal muscles as well as C6/7 facet joint. A diagram was drawn with the affected areas shaded which indicated complaints around the back of the shoulders, the front of the left shoulder and an area adjacent to the lumbar spine on the left side.[13]
[13] ARD page 174.
Dr Jonathan Herald
On 16 November 2018 Dr Chiwara referred Mr David to Dr Jonathan Herald, orthopaedic surgeon for treatment. Dr Herald issued a report dated, 26 November 2018.[14] Dr Herald was concerned with treatment of the left shoulder and left elbow, finding that Mr David most likely had a full thickness rotator cuff tear, for which surgery was necessary. Dr Chiwara’s referral was limited to obtaining an opinion about the left shoulder and forearm.[15]
[14] ARD page 76.
[15] ARD page 218.
Dr Min Fee Lai
A medico-legal opinion was obtained on Mr David’s behalf from Dr Min Fee Lai, hand and plastic reconstructive surgeon on 1 October 2020.[16] Dr Lai took a consistent history of the injury, noting complaints of pain in the left shoulder and elbow followed by pain in the neck and the back.
[16] ARD page 80.
Dr Lai’s assessment was conducted by video link, which resulted in the obvious restrictions regarding the inability to assess sensation by palpation. However, Dr Lai took a series of photographs during the consultation to demonstrate the limitations of functional movements.[17] At ARD pages 101 and 102 photographs depict Mr David looking to his right and left respectively, and indicating the limit of his movement by facial expression.
[17] ARD pages 93-117.
Dr Lai found “a direct relationship” between Mr David’s condition and the injuries sustained, saying that employment was the main contributing factor to his injury, incapacity, and need for treatment. Dr Lai considered a report from Dr Deshpande, who had been qualified by the respondent, but at that stage Dr Deshpande had not considered the claim regarding the cervical spine.
The gym issue
In recording Mr David’s limitations of daily living, Dr Lai said:[18]
“Recreational activities: Mr David had to cease his gym and swimming activities since the injury.”
[18] ARD page 81.
The respondent lodged surveillance footage of Mr David attending the Anytime Fitness Gym in Fairfield West on 12 June 2019.[19] Mr David made a supplementary statement with regard to this observation on 16 November 2021.[20] He said that he had been a member of Anytime Fitness since 2016, and had been a regular attendee doing weights, bench presses and squats. It was an activity he enjoyed and he was able prior to his injury to bench press 80 - 90 kg.
[19] Reply page 71.
[20] ALD (applicant).
He said that after his injury he could no longer lift heavy weights without aggravating his injury, but that he had been advised by his physiotherapist (presumably Mr Tran) to do elastic band work and utilise the treadmill in order to maintain his strength. These facilities were available at Anytime Fitness, and so Mr David continued to attend, but was unable to do the heavy weights, being careful to follow the advice of his specialists.
Financial considerations caused him to suspend his membership, at which time he then did the elastic band work at home and resorted to walking to try to keep active. Mr David referred to Dr Lai’s report that he had stopped going to the gym, and said that he misunderstood Dr Lai’s question. He said at [14]:
“I thought Dr Lai was asking whether I still worked out with weights, which I had not done since my injury. In my mind, the question was whether I still went to the gym as my hobby as opposed to a necessity to keep my condition manageable. I do not class the current exercises that I do at the gym as ‘gym work’.”
SUREFACT AUSTRALIA INVESTIGATION REPORT
A most thorough and exhaustive factual report was prepared by Mr Paul York from Surefact Australia Pty Ltd. Mr York’s summary was lodged by the applicant, together with a statement given by Mr David and Ms Josie De Angelis, the Safety Manager NSW/ACT for the respondent . Statements by Ms Toula Kouros, Operations Supervisor, Compliance and Audit, with the respondent , and by Mr Thomas Luken, Assistant Fleet Manager for the respondent were lodged with the reply.
Mr Luken’s statement was dated 1 May 2018, and he acknowledged that at about 1600 on 29 March 2018 Mr David reported his injury. Mr Luken made the appropriate enquiries and located the damaged gate by using CCTV . Mr Luken arranged for Mr David to be taken to “the doctors” and returned to the yard by a fellow employee, Kyle Thackery. Also, when he returned from seeing the doctor, Mr David made an incident report to Ms Kouros, who in turn sent the incident report and the certificate issued as to capacity to Ms De Angelis. The certificate recommended light duties and Mr David was allocated data entry work the following day by Mr Luken.
Mr Luken arranged to see CCTV footage of the accident, but it was of little assistance as the injury occurred out of camera view. Mr Luken arranged for CCTV footage at the Toll site to be viewed, and it was confirmed that there was a gate not hanging, and that it had been repaired with the assistance of a forklift driver. Mr Luken believed that the primary contributor as to the cause of the injury was the fact that the loose gate had not been reported.
Ms De Angelis also viewed the CCTV footage of the incident. She too was unable to see the accident itself. However, she said:[21]
“… I observed the claimant walking around the vehicle normally, getting into and around the vehicle. The claimant used three points of contact getting into the vehicle without apparent difficulty.”
[21] ARD page 25 at [35].
A surveillance report from Messrs Nicholas Anthony and Associates was lodged, dated 8 July 2019.[22] Surveillance was carried out on 4, 6, 9 and 12 June 2019. On 12 June 2019 at about 8.30am Mr David was seen loading some of his five children into his car. He was seen to put on his seatbelt and to turn his head as he was reversing his vehicle.
Associate Professor (Dr) Michael Shatwell
[22] Reply page 64.
Dr Michael Shatwell, Orthopaedic Surgeon, was qualified by the respondent. He issued three reports, dated 16 January 2019,[23] 20 February 2019,[24] and 29 December 2020.[25]
[23] Reply page 38.
[24] Reply page 49.
[25] Reply page 52.
In his first report, Dr Shatwell took a consistent history of the injury, noting that Mr David twisted his left shoulder, neck and lower back as the gate fell away from him. No investigations of the back were available, and Dr Shatwell noted forward flexion to toe level with no restriction of lateral flexion or rotation in the lumbar region. He noted a full range of elbow and wrist movement on both sides. The letter of instructions was not lodged, but a number of questions were concerned with the left shoulder condition.
Dr Shatwell’s next report of 20 February 2019 was concerned with the benefit or otherwise of a mode of treatment called “Vpulse Sequential Compression Pump and Cyrotherapy Wrap.” The treatment had been proposed for Mr David’s left shoulder.
In his third report of 29 December 2020, almost two years later, Dr Shatwell was asked to provide a medico-legal report. Dr Shatwell repeated the history he had been given of the mechanism of injury, twisting his left shoulder, neck and lower back. Dr Shatwell noted also a complaint of injury to the left forearm on this occasion. His examination of the lumbar spine was considerably more detailed, and he noted:[26]
“In the sitting position, straight leg raising was negative to 90°. In the supine position, straight leg raising produced back pain at 70° on the left side.
Mr David had straight leg raising to 80° on the right side without pain.
Reflex activity was symmetrically present and normal at knee and ankle level. There was no objective sensory disturbance in the lower limbs. Knee and ankle movements were normal. There was normal power in the muscle groups supplying these joints.”
[26] Reply page 58.
Dr Shatwell noted that no investigations had been made of the lumbosacral spine. Dr Shatwell confirmed the history that Mr David’s back had been twisted in the injury. He said:[27]
“I consider Mr David may have sustained a minor lumbosacral sprain or strain which would have settled within a matter of a few weeks of the incident.”
[27] Reply page 61.
In answer to a further question, Dr Shatwell advised that any injuries sustained would have settled within three weeks.
SUBMISSIONS
Mr Jones
Mr Jones firstly referred to the description given by Mr David in his statement to the respondent’s investigator 30 April 2018, noting that Mr David did not mention any twisting in the mechanism of the accident, and neither did he mention his lower back.
Mr Jones then conceded that in the statement of 1 September 2021 Mr David’s account included a reference to Mr David’s twisting as he dropped the gate. However, Mr Jones submitted that there were “a few additions” in that later statement, in that Mr David mentioned his left elbow and his lower back, which he had not mentioned in his more contemporaneous statement. Mr Jones also submitted that Mr David’s statement to the effect that his pain intensified whilst driving to the next depot had not been given in the earlier statement.
Mr Jones then referred to Dr Chiwara’s clinical notes. The initial entry only referred to pain in the parascapular region of the left shoulder and, Mr Jones submitted, the absence of any mention of the right shoulder and, more significantly, of the lower back would raise some doubt as to whether there had been any injury to those parts. Mr Jones observed that no investigations were ordered of the lower back.
The first entry was 29 March 2018 and only referred to pain in the parascapular region and the right shoulder. There was an absence of any mention of the left shoulder, Mr Jones submitted, and more significantly, any reference to the lower back. Mr Jones observed that no investigations were ordered for the lower back on that occasion.
Mr Jones submitted that Dr Chiwara’s entry was a fair description of how the applicant was feeling at the time. Mr Jones acknowledged that it might be said that his submissions need to be regarded in the light of cases such as Mason v Demasi[28] but nonetheless this was the very first time Mr David’s general practitioner (GP) had recorded the incident hours earlier, and it “beggared belief” that Mr David would not have mentioned his lower back symptoms if he had indeed suffered them in the accident.
[28] [2009] NSWCA 227.
Mr Jones submitted that the next entry of 4 April 2018 in Dr Chiwara’s notes supported his interpretation, as it mentioned radiation into the lumbar back, from which an inference could be drawn that the lumbar symptoms were not present on 29 March 2018. Thus, any problem with the lumbar spine constituted a new issue as at 4 April 2018. Moreover, Mr Jones said, the description in that entry spoke about a referral into the lumbar spine from another part of the body. It was accordingly not indicative of an injury to the lumbar spine in any event.
Mr Jones referred to the suitable duties plan, which did not mention the left elbow or back. He referred to the history that accompanied the request for an MRI which was performed at 4.48pm on the day of injury which similarly did not mention the low back. He referred to the medical certificates issued by Dr Chiwara and Dr Chiwara’s referral to Dr Herald, which also did not mention the low back. This constituted a “glaring absence” of any reference to any back problem, Mr Jones submitted. Accordingly, his argument proceeded, the totality of the evidence indicated that there had been no injury to the left elbow or the lower back.
Mr Jones then acknowledged that there was some contemporaneous support for Mr David’s allegations regarding his back and his left elbow, but Mr Jones submitted that the weight of evidence was such that I would not be persuaded that such injuries occurred. Indeed during his submissions at one stage Mr Jones submitted that I would not be satisfied that any injury had occurred.
The contemporaneous evidence Mr Jones referred to was the Toll Incident/Hazard report of 29 March 2018. Mr Jones conceded that the anatomical parts identified included the neck and the back, but he submitted that because no signature was affixed to that document, it could only be presumed to be “second-hand hearsay” which came from sources other than the applicant. I would not accept that evidence, Mr Jones argued, because “it may not convey the truth of the entries,” and I would prefer the initial clinical notes by Dr Chiwara.
Mr Jones also conceded that the entry in the clinical notes of the physiotherapist dated 6 April 2018 did mention Mr David’s back, but Mr Jones submitted that the left elbow had not been indicated either in the notes nor in the diagram attached to the notes, which did indicate Mr David’s by shading symptoms over the shoulders and adjacent to the lumbar spine. Mr Jones acknowledged that there should be some recognition of the fact that this was early reporting, but that nonetheless I would not be satisfied that injury had occurred to either the left elbow or the lower back because of the absence of any reference in either the clinical notes or the rehabilitation plan.
Mr Jones then submitted that Mr David’s credit was also adversely affected and that I could therefore not accept his account of his injuries. He referred to the observation by one of the respondent’s witnesses, Ms De Angelis, who described that she saw Mr David climb into his truck following the accident on CCTV using “three points of contact.” Although his point was “somewhat subtle,” Mr Jones admitted, he said there was some tension between that observation and Mr David’s complaint of pain in his left shoulder.
A further point that told against Mr David’s credit, it was alleged, was that when Mr David was seen during surveillance on 12 June 2019 turning his head to reverse his motor vehicle when he was driving his children to school, the footage did not sit well with the photograph taken by Dr Lai where Mr David was seen grimacing as he demonstrated during that video assessment the extent of his ability to look to his left and to his right. Mr Jones submitted that the surveillance footage showed Mr David moving freely whilst driving and not grimacing.
Mr Jones also submitted that the observations by Dr Shatwell that Mr David’s grip strength was not compatible with the muscle bulk that he observed on examination.
Mr Jones also submitted that I would not accept Mr David’s explanation regarding Mr David’s gym membership. Mr David had told Dr Lai that he no longer went to the gym, and the surveillance footage together with the material obtained from Anytime Fitness demonstrated that Mr David was not telling the truth. I would not be assisted, Mr Jones submitted, by the excuses proffered in Mr David’s supplementary statement regarding the comment he made to Dr Lai.
Mr Young
Mr Young engaged with the credit issue immediately, saying that the facts and circumstances on which Mr Jones was relying post-dated the injury by a number of months and whilst it might be relevant to Mr David’s present symptomatology, or the symptomatology he was suffering on 12 June 2019, as I understood Mr Young, the relevant question was whether Mr David had suffered the injuries that he was claiming, as that was the relevant issue regarding the referral to the Medical Assessor.
With regard to that occurrence of the injury itself, Mr Young referred to the caution that must be exercised when considering clinical notes, referring to a well-known authority, Davis v Council of the City of Wagga Wagga.[29] Mr Young submitted that the inconsistencies relied on by Mr Jones were no more than one would expect where a number of reports were taken by different agencies within hours of the incident. Mr Young submitted that what was consistent was the mechanism of the accident itself, which the evidence showed involved significant forces acting on Mr David as he attempted to cope with a faulty gate, which Mr Luken himself said should have been fixed.
[29] [2004] NSWCA 34.
Mr Young submitted that the injury was reported immediately, and that the CCTV footage showed the nature of the equipment Mr David was dealing with.
Mr Jones in reply
Mr Jones referred to the opinion of Dr Shatwell that Mr David may have sustained a minor lumbosacral sprain but that it would have settled within a few weeks of the incident. Mr Jones submitted that I would not necessarily accept that opinion in the light of the other matters to which he had referred.
Discussion
The respondent has submitted that Mr David has not met his onus.
The respondent has not challenged Mr David’s allegation that he was involved in an incident shortly after 1.00pm on 19 March 2018. It was not challenged – indeed it was admitted by Mr Luken - that there was a damaged gate on Mr David’s truck. This was the gate which Mr David alleged was the cause of his accident when he attempted to lift it, overbalanced and dropped it behind him. The respondent also accepted that Mr David reported his injury as soon as he got back to the respondent’s premises. The respondent checked CCTV footage of both the accident site, and its premises, finding nothing to suggest that Mr David’s account could not be accepted.
The respondent has not challenged that Mr David saw Dr Chiwara that same afternoon at about 4.30pm – indeed Mr David was sent there by the respondent’s officers. The respondent has not challenged that Dr Chiwara arranged for an ultrasound and X-ray of the left shoulder and left forearm to be performed at 4.48pm, and that he issued a light duties certificate. The respondent has not challenged that it drew up a suitable duties plan which was signed by Mr David later in the afternoon.
The respondent relied upon the qualified opinion of Associate Professor Shatwell, who took a history, on 16 January 2019, of injury to Mr David’s left shoulder, neck and lower back, those injuries being confirmed in Dr Shatwell’s later report of 29 December 2020 when he also noted injury to the left forearm. The respondent relied on Dr Shatwell’s opinion of 29 December 2020 that Mr David may have sustained a minor lumbosacral sprain or strain when he injured himself. His opinion that the injury had ceased within three weeks is not a relevant consideration, as once an injury has been established it is for the Medical Assessor to determine such issues.
It can be seen that there was a plethora of contemporaneous documentation regarding Mr David’s injuries, much of it taken on the day of the accident.
The respondent submitted that I would not be persuaded, as I understood Mr Jones, that Mr David had suffered any injury at all, and certainly not any injury to the left elbow and lumbar spine. This submission was based on a hypothesis that when the details of Mr David’s injuries were recorded, they encompassed the totality of his complaints, and that therefore any additional complaints made at other times raised such uncertainty as to whether they had occurred that I would not be persuaded of their accuracy.
The respondent’s reliance on apparent inconsistencies between the statement of Mr David taken by the investigator on 30 April 2018 and that taken on 1 September 2021 might have had some probative value, had there been no contemporaneous evidence that supported Mr David’s complaint of injury to the lumbar spine and the left elbow, which Mr Jones accurately pointed out had not been complained of to the investigator. Similarly, the failure by Mr David in his statement to the investigator to advise that he had “twisted” as he suffered his injury was also a matter that was not included until the second statement was made, and should, I was urged, also lead to some doubt as to the accuracy of the second statement.
Such a lack of precise detail is not uncommon in statements taken by investigators, whose attention to detail can be less assiduous than that given by an applicant to his legal advisors, which I infer from the construction of the later statement was the case with Mr David. An examination of the contemporaneous evidence must lead to the rejection of the respondent’s submission in this regard.
The respondent also submitted, however, that there were inconsistencies in the contemporaneous material that would cause me some reservations as to whether the applicant’s onus had been established. The submission that Mr David did not actually use the word “twisted” in his description of the mechanism of the accident is of small moment when the descriptions given to Dr Chiwara on the afternoon of the accident and in the incident report of the same date described consistently the heavy gate falling backwards and causing a strain of the left shoulder and neck muscles, as well, to Dr Chiwara, the gate striking his left forearm. The whole mechanism of injury suggests that Mr David twisted to his left whilst dropping the gate but failed to entirely avoid contact with the falling gate.
The suggestion that I would not be persuaded that the lumbar spine or the left elbow were implicated in the injury may also be put to one side. The contemporaneous record from Dr Chiwara noted that ultrasound and X-ray investigations were carried out to the left shoulder and the left forearm on 29 March 2018, and on 4 April 2018 Dr Chiwara noted a complaint of pain to the left lumbar back.
I reject the respondent’s submission that I should ignore the note of pain in the left lumbar back because it was described as radiating from the upper back. That description can only come from Mr David, whose background does not suggest he has any familiarity with the anatomical cause of symptoms.
I also reject any suggestion that Mr David’s later complaint of lower back symptoms on 4 April 2018 should be regarded with suspicion because there was no such complaint on the day of the injury, for the following reasons:
(a) Firstly, Mr David said in his second statement that he did complain to Dr Chiwara of symptoms in his lumbar spine.
(b) Secondly the focus at the time of the first consultation was concerned with the left shoulder and left forearm as was evidenced by the investigations that were made by ultrasound and X-ray.
(c) Thirdly, the physiotherapist, Mr Tran, noted complaints on 6 April 2018 of pain in the back, and indicated in the diagram I have referred to, the left lumbar spinal area.
(d) Fourthly, and perhaps most significantly, the incident report – again completed on 29 March 2018 – noted complaints of pain in the left shoulder, neck and back.
The respondent attempted to deal with the incident report by submitting that the document had very little probative value, as it had not been signed by Mr David, and he described it as “secondhand hearsay.” The respondent’s description of this form as hearsay due to its unsigned status must be rejected. Firstly, the Commission is not bound by the laws of evidence and, pursuant to s 43 of the Personal Injury Commission Act 2020, may inform itself on any matter it thinks appropriate to the proper consideration of the issue before it. Secondly, the document is clearly a business record, and, were the laws of evidence applicable, admissible in any event. Thirdly, as the document was lodged by the applicant, it may be that, unbeknownst to Mr Jones, the respondent held a duly signed copy anyway. Fourthly, the information contained in the document was correct: Ms Toulos was Operations Manager; Dr Chiwara was the treatment provider; the accident did occur on 29 March 2018; Mr David was lifting a gate which overbalanced.
Finally, the respondent’s reliance on perceived inconsistencies within the contemporaneous notes carries with it the well-known dangers expressed by the courts.[30] Busy doctors are more concerned with treatment and sometimes mis-record or misunderstand histories of accidents. The focus of Mr David’s complaints was initially his shoulders, the left in particular, and in view of the fact that the accident had only occurred a few hours earlier, the less significant back complaint may well have not been recorded. It was noted five days later in any event.
[30] See e.g. Qannadian v Bartter Enterprises Pty Limited [2016] NSWWCCPD 50 per President Judge Keating from [35].
I also reject the respondent’s attack on Mr David’s credit. The respondent submitted that I would not accept Mr David’s evidence because of what I described above as “the gym issue.”
Mr Young’s response in any event disposes of the issue. The observations shown in the surveillance material, and the records obtained from Anytime Fitness, do not detract from the compelling evidence that I have referred to which establishes that Mr David suffered the injuries he complains of. Thus, in any event, even if I had taken an adverse inference as to Mr David’s reliability in view of the alleged contrast between his statement to Dr Lai that he had to cease his gym and swimming activities with the surveillance taken on 12 June 2019 showing Mr David attending Anytime Fitness at Fairfield West, it is not relevant to my determination as to whether Mr David suffered the claimed injuries. Their extent is a matter for the Medical Assessor.
In any event, I accept the explanation given by Mr David in his supplementary statement. It is entirely possible that a person who is injured will nonetheless continue to attend his/her gym in order to maintain as much fitness as his/her limitations would allow. Such an approach to a person’s general health may indeed assist in the recovery from any specific injury.
It was also submitted that there was a suspicious contrast between the photographs taken by Dr Lai which showed the restrictions in movement in Mr David’s neck, and the surveillance footage of 12 June 2019 at 8.30am when he secured his seatbelt and turned his head as he was reversing.
The interpretation of the movements of people being filmed whilst under surveillance is necessarily subjective. The respondent submitted that when Mr David reversed his vehicle, his movements were to be contrasted with the observations of Dr Lai. It was alleged that Mr David was moving freely, but I had some difficulty in accepting that interpretation of what was seen on camera. The images were of a very short duration in both the securing of Mr David’s seatbelt and the moving of his head whilst he reversed his vehicle, and those images could not be said to have shown that Mr David’s movements were free of restriction, in my view.
The respondent also submitted, but faintly, that I would be suspicious of Mr David’s credit . because the CCTV footage showing Mr David immediately after the injury climbing in his cabin with “three points of contact.” Mr David has not suggested that he was immediately incapacitated by his accident. He was able to continue his driving and return to the Toll depot, where he immediately reported his injury. The fact that he could still climb into his truck is of no moment.
The respondent has an efficient and responsible occupational health and safety regime, and it has resisted this claim no doubt because its protocols are so thorough. It organised an immediate attendance by the applicant on Dr Chiwara, and ensured that the injury was properly recorded and investigated. It examined relevant CCTV footage, and put Mr David under surveillance.
Such a thorough approach is commendable, but it carries with it the danger that it might perhaps have examined Mr David’s case with an eye too keenly attuned to the perception of error. The respondent has said all that could be said in furtherance of its case, but, for the reasons given, Mr David succeeds in establishing injury to his left shoulder, left elbow, neck, and lower back. A common sense evaluation of the causal chain must result in the dispute being resolved in Mr David’s favour.
SUMMARY
Accordingly, I remit this matter to the President for referral to a Medical Assessor for a whole person impairment assessment on the following bases:
(a) Date of injury: 29 March 2018.
(b) Matters for assessment:
(i)left upper extremity (shoulder, elbow);
(ii)cervical spine, and
(iii)lumbar spine.
(c) Evidence:
(vi)ARD and attached documents;
(vii)ALD from the applicant;
(viii)Reply and attached documents;
(ix)ALD from the respondent, and
(x)surveillance footage from the respondent.
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