Gallelli v HammondCare

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gallelli v HammondCare [2024] NSWPIC 660
APPLICANT:	Silvio Gallelli
RESPONDENT:	HammondCare
MEMBER:	John Wynyard
DATE OF DECISION:	29 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for surgical treatment by patient carer for injury to the right shoulder whilst preventing patient from falling; whether evidence by respondent witnesses established that claim fraudulent; whether file report by respondent expert established that proposed surgery not reasonably necessary; Held – the evidence from the respondent witnesses offended rule 73 of the Personal Injury Commission Rules; it was neither logical nor probative and was unacceptable as it was based on speculation and unsubstantiated assumptions; it was in conclusive form and failed to relate sufficient detail to be acceptable; applicant’s claim established contemporaneous independent documentary support from GP notes the day following the event; Mason v Demasi and Qannadian v Bartter Enterprises Pty Limited considered and applied; claim also supported by patient who was saved from his fall by the actions of the applicant; Fox v Percy considered and applied; observations as to regrettable action by respondent in denying liability; respondent expert opinion rejected; applicant not interviewed or examined; history inconsistent and incorrect; findings as to investigation erroneous; Diab v NRMA Ltd considered and applied; award applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to his right shoulder on 16 June 2023. 2. The proposed surgery by Dr Allan Young in his email of 14 June 2024 is reasonably necessary. The commission orders: 3. The respondent will pay the costs of an incidental to such surgery.

STATEMENT OF REASONS

BACKGROUND

Silvio Gallelli, the applicant, brings an action against HammondCare, the respondent, for a declaration pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) that proposed surgical procedure recommended by Dr Allan Young is reasonably necessary.
Dispute notices were issued and the matter has accordingly come before the Personal Injury Commission (Commission).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether Mr Gallelli suffered an injury at all, and
(b) whether the proposed surgery is reasonably necessary.

PROCEDURE BEFORE THE COMMISSION

On 2 October 2024, this matter was part heard at the Commission premises. Mr Greg Young of Counsel appeared for the applicant instructed by Ms Karina Karimova. Mr Fraser Doak of Counsel, appeared for the respondent, instructed by Mr Sean Patterson. Mr Luke Socha appeared for the respondent.
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)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Application of Admit Late documents dated 23 September 2024 (AALD);
(c)    Reply and attached documents, and
(d)    AALD tendered at the hearing in an application dated 30 September 2024.

Oral evidence

No application was made with regard to oral evidence.

FINDINGS AND REASONS

Preliminary

When the respondent sought to tender the AALD from the respondent dated 30 September 2024 at the commencement of the hearing, Mr Young objected on the basis that the evidence had been served outside the relevant timeframe. The documents were admitted on the basis that the probative value of the evidence before the Commission is a matter of weight rather than admissibility.

Factual evidence
Mr Gallelli

Mr Gallelli made his first statement on 2 February 2024.[1] He said that he was born in Germany and migrated to Australia in 1997. He is the holder of a Bachelor's Degree in Architecture and a Bachelors Degree in Industrial Design from Fachhochschule Des Saarlandes in Germany.
[1] ARD page 1.
Mr Gallelli said that he had sustained a similar injury in 2015 but that it did not affect the physical demands of his employment nor the physical tests requested by the respondent prior to his being employed.
He commenced employment in 2022, at which time he said he considered himself to be healthy, fit and highly capable of handling the physical demands of his employment. He said:
“Particularly before my subject employment, I did not experience any pain or restrictions in my right shoulder. I was able to wholly engage with activities of daily living without compromise and never took time off work”.
His employment with the respondent was an aged care worker working 60 hours per fortnight.
From [11] of the statement he described the injury he sustained on 16 June 2023. He said:
“12. Around 2 pm on the date of my injury, I was assisting a patient at their home. The patient was using a walker and had fallen on a set of stairs. In my attempt to prevent the fall, the patient collided with me. I experienced a sharp, stinging pain in my right shoulder as I grabbed the patient. After ensuring the patient s safety, I continued to their appointment. Upon returning, I contacted my manager who advised reporting the incident internally and seeking a doctor's examination for my shoulder quote, and you go from 12, from around 2pm through to for my shoulder."
Mr Gallelli consulted his general practitioner (GP), Dr Joe Yohendran, the following day, 17 June 2024. He told Dr Yohendran that he had felt a snap in his right shoulder when he injured it and that he was then in excruciating pain and unable to lift his arm above the shoulder. An ultrasound was performed on 20 June 2023, and an MRI scan was taken on 29 June 2023. Mr Gallelli detailed his referral on 14 July 2023 to Dr Allan Young and his subsequent management and treatment.
Mr Gallelli referred to the s 78 notice of 2 August 2023 which declined liability on the basis that the respondent did not believe Mr Gallelli had sustained an injury to his right shoulder.
Mr Gallelli became his own advocate to a degree at this point in his statement, expressing the view that he “firmly believed that the insurer’s position to be incorrect”. Mr Gallelli said he had been advised by Dr Gehr that he needed to undergo surgery. He said at [30]:
“While I am open to other treatment suggestions, I feel like I have exhausted all conservative treatments with analgesics, rest, and physiotherapy, yielding no success. I am desperate for pain relief and increasingly frustrated. Other treatments, such as medication, are challenging due to concerns about side effects and potential reactions. Limited to medication, I am constrained in seeking other jobs and dealing with personal care.”
The insurer alleged that he did not report the injury within 10 minutes but at [32], Mr Gallelli stated that he reported the injury to the manager, Fern McNulty, who advised he should not make an immediate formal report.
Mr Gallelli made some comments about statements made by the respondent’s manager, Ms Emma Puddicombe. Mr Gallelli said that Ms Puddicombe’s statement that the incident had never happened, as she had spoken to the patient (whose name was Ray Williams), was false. He said at [33]
“….Despite Ms Puddicombe’s reliance on the absence of bruising or grazing related to the incident, the patient was still suffering pain and restriction in his left arm as he got caught between the external handrail and the wall."
Mr Gallelli pointed out that Mr. Williams had made a statutory declaration about the incident and that Mr Williams’ long term partner Ms Aoake has made a statement also.
Mr Gallelli listed the restrictions and limitations that his injured right shoulder was causing him.

Statement Mr Williams

The statement by Raymond Williams was in the form of a statutory declaration and it was dated 21 August 2023.[2] He stated as follows:
1.     On June 16^th, 2023, I had an accident in front of my house on the concrete stairs while on the way to an x-ray in Lane Cover around 2pm.
2.     While I was holding on the banister with both hands and walking sideways down the stairs, I could not move my right foot at the top of the step down to my other foot. As a result, I lost my balance, my left hand let go and I slipped my left arm between the banister and the wall of the house.
3.     With my arm held up to my armpit in this trap, my body rotated 90 degrees clockwise, followed by falling backwards towards the concrete platform 5 steps below. That moment my care worker Silvio was at the bottom of the stairs and came to my aid to prevent me from falling further.
4.     The impact of my bodyweight in addition to the moving made both of us crumbing into the stairs. It took my careworker several minutes to fee my trapped arm and to rest me on the stairs until I could get up again.
[2] ARD page 7.

Statement Ms Aoake

A statutory declaration was also taken from Ms Judith Aoake on 21 August 2023. Ms Aoake did not witness the incident but she recounted that Mr Williams had informed her about the accident of 16 June 2023. Mr Williams was “My long-time Friend and fiancée.” She said:[3]
“He was on his way to an screening appointment in Lane Cover with his care worker Silvio from Hammond Care. Ray explained that he slipped and fell backwards down the stairs outside the house. His arm got caught behind the handrail and he could not free himself.
Ray assumed that he would not be alive anymore if his care worker wouldn’t have stopped him from falling down the concrete.”
[3] ARD page 8.

Mr Gallelli

Mr Gallelli made a further statement on 6 August 2024.[4] He stated that he saw Dr Young on 14 June 2022 and that his condition had worsened. He said that now he could hardly move his shoulder at all due to the pain and limitation of flexion. His right arm and hand were becoming weaker as a result.
[4] ARD page 9.
Mr Gallelli again referred to the s 74 notice issued by the insurer and stated that the insurer was incorrect.

Ms Emma Puddicombe

The respondent based its denial of liability on two statutory declarations. The first was from Ms Emma Puddicombe and was dated 20 July 2023.[5] It said in hand writing:
“-      I have been Care Manager, to client Ray Williams for approximately 2 ½ years.
-      Visited the client at home following the alleged incident to ascertain extent of injuries to the client.
-       The client refuted the incident.. I checked for bruising/ stroke, grazing, etc. that would be consistent with a fall, as described.
-       no apparent injury to the client, no reduced mobility.
-    Visit took place on 19/6/23.”
[5] Reply page 9.

Ms Elizabeth Chadwick

Ms Puddicombe’s statutory declaration was witnessed by Elizabeth Chadwick who also made a statutory declaration on 9 April 2024.[6] This again was in handwritten form, and stated:
“On 19 June 2024 a telephone conversation with client Raymond Williams to investigate a reported fall by care worker Silvio. During the conversation, Raymond denied having a fall the previous Friday as Silvio reported and denied any incident on the stairs outside him home resulting in injury to Silvio. Raymond denied any pain, injury or bruising and refused my recommendation to visit his GP for a review, as he insisted that he had not had a fall on this occasion.
Raymond is a client who is known to fall frequently, however when I have investigated other incidents of falling, Ray can recall the incident well, and this event was out of character for Ray."
[6] Reply page 12.

Mr Gallelli

Mr Gallelli made a third statement on 20 September 2024 in which he gave some further detail of the incident on 16 June 2023.[7] He said that whilst he was assisting Mr Williams at his house, Mr Williams
“…was holding onto a banister with both of his hands, walking sideways down concrete stairs. Raymond then lost balance as he could not move his right foot down to his left and his left-hand let go of the railing with his left arm slipping in the gap between the banister and the wall of his house.
7.With Raymond’s arm being trapped, his body rotated and caused him to begin to fall backwards towards the concrete platform below the stairs, where I was standing. I tried to prevent him from falling further, however the impact of Raymond’s bodyweight and the sudden movement caused us to both fall onto the stairs. Upon the collision with Raymond, I experienced a sharp stinging pain in my right shoulder as I tried to grab him.”
[7] ALD (applicant) page 1.
In regard to Ms Chadwick’s statutory declaration Mr Gallelli confirmed that there was no bruising or grazing on Mr Williams but that he was suffering from pain and restriction in his left arm as a result of being caught between the wall and the banister.
Mr Gallelli said that in his view there had been some miscommunication. He also said that Mr Williams was “very afraid of Emma Puddicombe,” as “she threatened to arrange for him to be placed in a care facility if he fell again and the ambulance had to come”.
Mr Gallelli surmised that Mr Williams might have played down the action, or denied it, as a result of that threat. Mr Gallelli said that Mr Williams told him that he could not remember how the fall had happened when he was asked by Ms Puddicombe. Mr Gallelli said that Mr Williams had expressed his condolences for Mr Gallelli’s injury on several occasions
The respondent relied on further and statutory declarations from Ms Puddicombe and Ms Chadwick, which were contained in the respondent’s late documents application dated 30 September 2024.

Ms Puddicombe

Ms Puddicombe had typewritten this statement.[8] She began by stating that the allegations of fear with regard to her relationship with Mr Williams was unfounded. She said she remained “very supportive of Ray's wishes to remain living at home”. She had a mutually respectful relationship Mr Williams and during her time as his Care Manager she said she took many steps to prolong the time he could spend living at home, and she described the steps that she had taken. These included the purchase of custom-made orthotic shoes “to reduce the risk of his risk of falling”, provision of a wheelchair to enable Mr Williams to access the community when he needed to, and the sale of his car that he had not used for a year and for which he no longer had a licence.
[8] ALD (respondent) page 1.
She discussed with Ms Aoake to move in to Mr William’s home, and Ms Puddicombe had taken part in several cleanup sessions to declutter Mr Williams home and improve the cleanliness to reduce the risk of falls.
Ms Puddicombe took offence to Mr Gallelli’s allegations that she would threaten a client, she was “more than aware”, that Mr Williams did not want to go to a care home and those wishes were “supported and respected”, for another 12 months until it became apparent for his own health, safety and well-being that this was “no longer able to be mitigated.”
Mr Williams had been placed into a home after consultation with a number of health professionals whom Ms Puddicombe named. Ms Puddicombe concluded by saying:
“NSW Health were involved due to his declining cognitive ability in respect to guardianship and assessing if full time care was needed for Raymond, and made the final decision to place Ray in a residential care for his own health and safety”.

Ms Chadwick

Ms Chadwick also made a further statutory declaration, this one also being typewritten. She disputed Mr Gallelli’s claim of miscommunication and said:
“I specifically asked Raymond if he recalled any fall or incident comment in which he clearly denied the alleged fall occurred.”
Ms Chadwick said that Mr Williams also denied experiencing any shoulder pain, and he declined to see his GP. “Our conversation was direct and clear,” Ms Chadwick said.
Ms Chadwick said, “Mr Williams had a history of frequent falls and was willing to discuss them in the days following." Ms Chadwick attached incident reports showing that he actively used his personal alarm to seek medical attention. She said that between June 2023 and April 2024 there were nine reported calls and the incident reports in relation to those falls were annexed to the application to admit late documents.
Ms Chadwick said:
“Despite having an acquired brain injury and some cognitive decline, Raymond accurately recalled an appointment with Mr Gallelli, but maintained he did not fall during the visit”.
She concluded by saying:
“Furthermore, Mr Gallelli did not follow protocol by immediately contacting HC about the alleged fall; he waited until after the visit inform CCM”
Ms Chadwick then said:[9]
“With my experience as a clinical care manager and registered nurse, I believe that due to Raymond’s frality and medications, an incident in which he was caught between a hard surface and a banister for an extended period would typically result in bruising. At the time Raymond was taking Aspirin 100mg which increases the risk of bruising and even mild trauma bruising therefore it would be unlikely that Raymond would experience pain without the presentation of a bruise after such an incident. The absence of bruising or reports of pain to hospital staff or myself raise questions about whether the injury occurred.
I bult a trusting relationship with Raymond and I believe he would have informed me of any pain following an incident, as he had done previously. My role is to support hi health and wellbeing alongside other medical professionals”.
[9] Respondent ALD pages 3-5.
Ms Chadwick maintained that there was no miscommunication between herself and Mr Williams. She said:
“He could not recall any incident; therefore, he could not describe a fall, he was sure never happened”

MEDICAL

Leichhardt Medical Centre

Dr Joe Yohendran from the Centre had been Mr Gallelli’s GP since at least 2003. On 17 June 2023 the following entry appeared in his notes:[10]
“WAS HELPING A PERSON WHO WAS FALLING AFTER TRIPPING A STEP.
HELD HIM BUT HE FELL OVER HIS RIGHT SHOULDER
HEARD A SNAP
NOW IN PAIN AND UNABLE TO LIFT ARM ABOVE SHOULDER
?TORN LIGAMENT?”
(As written).
[10] ARD page 127.
Dr Yohendran organised an ultrasound of the right shoulder on 20 June 2023, and an MRI of the shoulder on 23 June 2023. The ultrasound findings were recorded and stated:
“The biceps tendon was thickened, heterogeneous with an intrasubstance tear. There was a sheath effusion in keeping with both biceps tendinopathy and tenosynovitis. No complete tear or retraction seen.
The subscapularis showed tendinopathy, no tear. The supraspinatus showed a complete full-thickness tear with retraction. There was subacromial bursal thickening and bunching on abduction in keeping with bursitis.”
The MRI investigation’s conclusion stated:[11]
“CONCLUSION: Chronic rupture of the entire supraspinatus tendon with full thickness tear extending into the anterior aspect of the infraspinatus. High-grade partial-thickness articular-sided tear involving the subscapularis insertion on a background of moderate tendinosis. Severe atrophy of the supraspinatus muscle belly. Severe tendinosis of long head of biceps tendon with longitudinal interstitial split tearing.
Moderate glenohumeral joint effusion decompressing into the subacromial/subdeltoid bursa. Low-grade partial-thickness chondral wear involving the superior humeral head suggesting early changes of rotator cuff arthropathy. Degenerative superior labrum without discrete tear. Moderate AC joint osteoarthritis.”
[11] Reply page 33, ARD page 129.

Earlier right shoulder entries

The clinical notes also showed that some eight years prior, on 4 February 2015 Mr Gallelli attended the practice. The clinical note stated relevantly:[12]
“Presented post-fall and bleeding from the mouth
Had a mechanical fall over a railing
fell onto the hands and hit the face on the ground
bleeding from the left nostril
No LOC, no amnesia
On examination, bleeding from the anterior inner gum….”
[12] ARD page 79.

On 5 February 2015 a further entry included “ongoing R shoulder pain post-accident…” The entry noted the fall which was noted as having occurred “yesterday.”^[13]
[13] ARD page 80.
A further entry dated 9 February 2015 included the following:
“Ongoing pain right shoulder post fall with difficulty in abduction and some pain on flexion
Hears a click when he abducts his arm
Causing significant distress, unable to sleep on right side secondary to pain
Explained that given difficulty with abduction, most likely muscular or ligamentous injury…”
Complaints of ongoing shoulder pain “post fall” appeared on 13 February 2015, 23 February 2015, 7 April 2015 and on 29 April 2015 the entry included “Due to see Surgeon.”
There was a further mention of the right shoulder in a clinical note dated 29 November 2016.[14] The reason for the visit was noted to be “Hyperlipidaemia,” but the entry also noted:
“R shoulder- complete thickness tear supraspinatus tendon
R shoulder - impingement at 90 degrees.”
[14] ARD page 87.
No further entries were made regarding the right shoulder until 21 January 2021, when a history was taken of a four month painful right shoulder. The entry noted “history of impingement in 2015.”
On 23 January 2021 results of an ultrasound were recorded as follows:[15]
“Small to moderate fluid is seen in the biceps tendon sheath. No tear is seen.
Subscapularis intrasubstance tear measures 0.4 x 0.3cm with tendinosis.
Supraspinatus complete tear is seen, with 2.4cm retraction.”
[15] ARD page 116.
A referral letter was printed to Dr Sanjeev Gupta.

Dr Allan Young

Dr Allan Young, orthopaedic surgeon with Sydney Shoulder Specialists, was Mr Gallelli’s treating surgeon. He reported on 14 July 2023 to Dr Yohendran. He took a history that the applicant “injured his shoulder at work four weeks ago whilst helping a client fell down some stairs.”[16] He noted the results of the MRI scan and recommended surgery. He said:
“… Given the size of the tear but more importantly the degree of retraction, I would have concerns regarding the success of any attempted repair if I left for any period of time more than the next month or so. As such I have strongly recommended to Silvio that he proceed immediately with the right arthroscopic rotator cuff repair + biceps tenotomy…”
[16] Reply page 28.
On 8 August 2023 he reported to the insurer.[17] The report took the form of 12 points answering questions from the insurer, which were not before the Commission. Dr Young said that there was a right “rotator cuff tear and biceps partial tear/instability” and that there was “pain and weakness on testing external rotation (infraspinatus) and supraspinatus; painful biceps testing.” Dr Young said:
“7. Silvio reported that his shoulder was good immediately prior to the injury. I have no reason to suggest that he would have developed an extension of his long-standing tear or aggravation of his shoulder if not for the recent injuries. The risk of sustaining an extension of a tear or increased size will of course be increased with a pre-existing tear.
8. Whilst possible that there has been an aggravation that has not ceased, it is less likely that an extension of the tear or increased size given the sudden pain and snapping sensation reported."
[17] ARD page 37.
Dr Young issued a further report of 14 June 2024 addressed to Dr Joe Yohendran[18]. Dr Young noted that he'd seen Mr Gallelli almost a year earlier and recommended surgery, but his recommendation had been declined. He noted that Mr Gallelli continued to report right shoulder pain and weakness. If anything, his symptoms had worsened. Dr Young said:[19]
“Understandably Silvio is frustrated by the ongoing pain. I have again suggested that the best course of action would be to proceed with surgery to attempt a rotator cuff repair. Silvio is aware given the duration since his injury, the tear may in fact be found to be irreparable. If that proves to be the case, at the very least a biceps tenotomy would stand a good chance of improving his symptoms. I have again explained the risks, benefits, rehabilitation requirements and expected outcomes following surgery in the form of a right arthroscopic rotator cuff repair + biceps tenotomy”.
[18]ARD page 37.
[19] ARD page 37.

Dr Eugene Gehr, orthopaedic surgeon

Dr Eugene Gehr acted as Mr Gallelli’s medico-legal expert. Dr Gehr noted the history recorded by Dr Young on 8 August 2023, which is noted above. He noted the consistent history given by Dr Yohendran’s note on 17 June 2023. He noted the prior shoulder symptomatology contained in noted in the Leichhardt Medical Centre clinical notes in February 2015.
Dr Gehr noted the investigations that were before him, which included an ultrasound of the right shoulder dated 20 June 2023, and an MRI of the right shoulder dated 23 June 2023. Dr Gehr noted that although in 2015 Dr Hossain referred Mr Gallelli to a surgeon, (presumably Dr. Gupta), Mr Gallelli advised that he did not see the surgeon and that he made a full recovery.
Dr Gehr noted that before he was employed by the respondent Mr Gallelli had to pass a physical examination.[20]
[20] ARD page 37.
Dr Gehr took the following history:[21]
“At work, at about 2 p.m. on 16/6/2023, whilst employed as an In-Home Aged Care worker by HammondCare, was at a patient's home providing assistance. The patient was using walker to descend a set of stairs when the patient's foot became caught causing him to fall. He attempted to prevent the patient's fall and the patient collided with him.”
[21] ARD page 27.
Dr Gehr noted that Mr Williams was very tall and heavy and that Mr Gallelli had to catch him with his right arm and Mr Gallelli had “the onset of pain and felt something stepped in the right shoulder." (I assume that Dr Gehr meant to say “snapped” in the right shoulder.)
Dr Gehr noted the recommendation for a right arthroscopic rotator cuff repair and biceps tenotomy and he noted that the earlier right injury had been managed non-operatively and that Mr Gallelli had made a full recovery from it. Dr Gehr noted again that Mr Gallelli had to pass a physical examination prior to taking the current job.
Dr Gehr recommended the proposed surgery and said there was a high likelihood of success in such a procedure.
In his supplementary report of March 16, 2024, Dr Gehr confirmed that the need for surgery arose from the subject accident.[22]
[22] ARD page 34.
With regard to the ultrasound report of 19 February 2015 which had been forwarded to him for comment, Dr Gehr said:[23]
“Ultrasound reports are not always entirely accurate.
Despite what an ultrasound shows, the client may still have good function, making it possible for him to undertake the duties of his pre-injury job.”
[23] ARD page 35.
Dr Gehr commented further:
“It is important to realise that function is based on history and examination, not on imaging results. It is not unusual for a client who has a complete tear of the rotator cuff mechanism demonstrated on imaging to still have good function and to be able to carry out their full duties. This is what the client has already stated here.
Therefore, it is my opinion that regardless of what imaging shows, it is clearly the subject accident which has caused his loss of function in regard to the right shoulder.”
Dr Gehr's attention was drawn to Dr Young's view that the nature of the injury consisted of an injury and/or aggravation of the right shoulder.
Dr Gehr said:
“I do note that Dr Young in his statement dated 8 /8/023 outlines a clear and precise description of the injury and the mechanism of injury and I note under point number 8, he states that whilst there has been an aggravation that has not ceased, it is less likely than an extension of the tear or increased size given the sudden pain and snapping sensation reported. …..
So, again, it is my opinion that whatever pathology existed in his rotator cuff, it may well have remained largely asymptomatic if it had not been for the subject accident and have remained irrelevant if it had not been for the subject accident. It is my opinion that the injury to his right shoulder was caused by the subject accident.”

Associate Professor Brett Courtney

For the respondent, Professor Courtenay carried out a file review on 28 March 2024
Professor Courtenay noted that, “…according to the correspondence, [Mr Gallelli] has denied any previous injury to the right shoulder, however that is clearly not correct…”[24]
[24] Reply page 14.
Professor Courtenay noted the MRI results for the scan taken on 23 June 2023. He said:
“This clearly shows that the rotator cuff has been completely torn for an extended period of time. That is demonstrated by the comment about severe muscle atrophy, but also the comment regarding early changes of rotator cuff arthropathy. This gentleman's shoulder is developing osteoarthritic changes and the chances of any successful surgical repair is virtually non-existent given the severe retraction, the early arthritic changes and also the severe atrophy of the muscle belly ([sic]. In addition the long head and biceps showing the severe tendinosis is also very long standing.”
Professor Courtenay then considered the earlier x-ray and ultrasound of the right shoulder of 19 February 2015. Professor Courtenay said that the imaging clearly showed a complete tear of the rotator cuff shown on ultrasound in 2015, “when Mr Gallelli was working as a glass sculptor”.
Professor Courtney thought that “it is quite expected” that a right-handed glass sculptor of 25 years working in his own business would put a large amount of strain on his right shoulder – the right rotator cuff in particular – which would predispose him to developing degenerative changes. A complete tear was clearly evident in 2015 and was also consistent with the severe muscle atrophy and cuff arthropathy presented in the MRIs of 2023.
Professor Courtenay repeated that the pathological changes in the injury of 16 June 2023, as shown in the MRI, were “clearly old”. Professor Courtenay said, “there is nothing in that MRI to suggest that there is any additional and new pathology”.[25]
[25] Reply page 15
Professor Courtenay said (page 16):
“I will acknowledge that we had ultrasounds pre-2023 and an MRI post-2023, but given that slight difference in the acuity of each of those modalities, they both confirm exactly the same condition, complete tear of the supraspinatus. The MRI gives the additional information of confirming the severe atrophy, again pointing to the fact that it had been present for a long time and the ultrasound certainly confirmed that it had been present well prior to 2015.
….
There is no evidence of any pathological change to confirm that there was (sic) any changes following the incident in 16 June 2023. It was all old pathology.
….
I definitely do believe that his lengthy employment as a glass sculptor artist would have had a major effect on his shoulder and certainly was evident when he had the ultrasound in 2015 and at that point he was still working as an art sculptor and again what was shown in 2015 was virtually identical to what was shown in 2022 clearly indicating that his employment as a glass sculptor artist was in fact the cause of his shoulder issues not the incident with Hammond Care.”
Professor Courtenay was asked to comment on whether an injury had occurred. He said:
“I acknowledge all the differences and the contradictions. If there was an injury on 16 June 2023 it would have been an acute flare of that shoulder however the MRI clearly shows that there was no additional pathology or no evidence of any acute injury. That would have been seen by marrow oedema if it occurred or further significant swelling of the joint. There was some effusion but it was not of a major amount indicating in my opinion that there was no additional pathology in June 2023.”
As to whether the proposed surgery by Dr Young was reasonably necessary, Associate Professor Courtenay said:[26]
“In answering that question, I will split it into two areas. Firstly, I do not believe that there was any additional pathology as a result of the alleged frank injury in June 2023 but secondly and more importantly is that the changes in the MRI shown in that MRI of 2023 in my opinion clearly show that this shoulder has reached end stage cuff arthropathy and any attempt at arthroscopic repair would at best be futile and far more likely to make his shoulder much worse than where it currently is. There has been some evidence to show that even where there is significant atrophy that may improve however when there is the gross retraction and the already present arthropathy I do not believe that that is going to often him any benefit at all.
….
I do not believe that the claimed surgery is reasonably necessary or appropriate. I think if this man irrespective of the alleged injuries requires surgery, he needs to be considered for a shoulder replacement and most likely a reverse shoulder replacement.”
[26] Reply page 17.
Associate Professor Courtenay thought that Dr Gehr's prediction of a 70 to 90% improvement was “entirely unrealistic”. He thought it was highly unlikely that the surgeon will be able to bring the retracted tendon back to an acceptable position and that attempting to do so would increase the surgical trauma and lead to a far higher risk of frozen shoulder.
Associate Professor Courtenay noted that Dr Gehr's examination reported very significant loss of movement of the shoulder with pain and Associate Professor Courtenay stated that he did not believe the surgery would improve that at all – in fact he thought it would make things worse.

SUBMISSIONS

Mr Gallelli

Mr Young submitted that there were two issues, one being whether the injury occurred and the other whether the proposed surgery was reasonably necessary. Mr Young referred to the evidence in the ARD concerning the subject incident and to the fact that the other protagonist in the event, Mr Williams, had also given a statutory declaration that was consistent with the account given by Mr Gallelli. Importantly, Mr Young submitted, Mr Gallelli has felt a snap at the time of the injury. Mr Gallelli, it was submitted, could be found to have prevented the fall by sustaining his injury.
Mr Young submitted that it was significant that Mr Williams' statutory declaration was witnessed by Dr Lee. Mr Young submitted that it was inherent in the respondent’s case that it was relying on the reliability of Mr Williams' cognitive functioning to enable a submission to be made that when he was spoken to by Ms Puddicombe and Ms Chadwick that he was able to understand and give reliable answers.
It was submitted that Ms Aoake’s statement was consistent with what Mr Williams had said in his statutory declaration.
Mr Young submitted that the medical legal expert retained for Mr Gallelli, Dr Gehr, had seen the treating records and was aware of the prior problems, and in sufficient detail from the specific notes relating to the 2015 problem to the right shoulder.
Mr Young said that the investigations referred to by Dr Gehr demonstrated, contrary to what Professor Courtenay had said, that there was additional pathology revealed in the MRI scan of 23 June 2023, that is to say, the tearing in the biceps tendon. The conclusion was of “severe tendinosis of long head of biceps tendon with longitudinal interstitial split tearing”.
In the ultrasound of 2021, no such tear had been revealed.
Mr Young submitted that the evidence about the 2015 injury showed that it was self-limiting. Mr Young referred to the entry of 29 November 2016, saying that there was a complete thickness tear in the supraspinatus tendon, which was a referral to the 2015 injury. Mr Young submitted that the notes demonstrated that Mr Gallelli recovered from his 2015 injury and it was then another five years until it reoccurred when he saw his GP on 12 January 2021.
Professor Courtenay’s opinion could not therefore be accepted, it was submitted. There was no suggestion that Mr Gallelli’s right shoulder symptoms were persistent and the evidence was that he was not troubled by them on an ongoing basis. Mr Young emphasised that the ultrasound of 23 January 2021 recorded:
“Small to moderate fluid is seen in the biceps tendon sheath. No tear is seen. Subscapularis intrasubstance tear measures 0.4 x 0.3cm, with tendinosis. subscapularis intrasubstance tear measures 0.4 times 0.3 cm, with tendinosis. There is infraspinatus complete tear. “
Mr Young said that ultrasound result contained the only measurements within the case. The nature of the subject injury might well have extended the tear, but no such finding, as I understood Mr Young, was available in view of the circumstances of the subject injury.
Mr Young submitted that there was no other complaint regarding the right shoulder until 16 June 2023. Both Dr Young and Dr Gehr were satisfied that Mr Gallelli had been asymptomatic when he started work and indeed the evidence was that he had to undergo a pre-employment health check.
With regard to the respondent’s case, Mr Young noted that there were two hostile witnesses, Ms Puddicombe and Ms Chadwick. He submitted their statutory declarations demonstrated that their conclusions went beyond the scope of their evidence and sought to have the insurer draw adverse inferences. They were based on a hypothesis that because Mr Williams did have any injuries consistent with a fall, Mr Gallelli’s statement was false. This showed they were motivated by unwarranted suspicion and animus towards Mr Gallelli and their conclusions were completely without foundation.
Mr Young said that although Professor Courtenay in his file review thought there was no difference between the investigations before and after the subject injury, he failed to note the additional pathology of the biceps tear.
As Professor Courtenay did not even examine Mr Gallelli, and Mr Young submitted that his opinion was superficial and of no weight.
The evidence of other falls by Mr Williams Mr Young submitted was not relevant. He agreed that the statutory declarations by both witnesses contained hearsay evidence and were conclusive in their language.
At this point written submissions were ordered, as the allocated time had expired.

Respondent submissions

The respondent’s submissions were prepared by Mr Doak. He submitted that Mr Gallelli had provided a very limited account of the circumstances of the injury. He referred to the description given by the applicant in his initial statement, submitting that there was an inconsistency. Mr Gallelli described Mr Williams as falling on the stairs which he attempted to prevent. Mr Doak conceded that it might simply be a matter of the expression used by Mr Gallelli, but he submitted that the evidence given by him must be weighed against the evidence of other witnesses, and the contemporaneous records.
Mr Doak referred to the entry by Dr Yohendran the following day, 17 June 2023, which noted that Mr Williams was falling after tripping on a step, but was held by Mr Gallelli at which time he felt the snap in his shoulder.
The statements of Ms Puddicombe and Ms Chadwick were then referred to. Mr Doak conceded that Ms Puddicombe did not set out the details of the conversation with Mr Williams, but submitted that it was “tolerably clear” that Mr Williams denied that he had fallen on the steps.
Ms Chadwick’s statement was to the same effect after she had spoken to Mr Williams by telephone three days later on 19 June 2023, Mr Doak said.
Mr Doak also referred to a Royal North Shore Hospital discharge summary dated 21 June 2023 which pertained to treatment for a facial injury to Mr Williams which had occurred some three months earlier, and in respect of which he had not sought medical attention. The records produced by the respondent showed a number of attendances by Mr Williams at the hospital for other medical issues but none of them referred to in the fall on 16 June 2023, or any injury sustained on that date.
Mr Doak addressed the statement by Mr Williams, which confirmed that there had been an incident with Mr Gallelli on 16 June 2023. Mr Doak also referred to the statement by Ms Aoake, which he criticised for its lack of detail, submitting nonetheless that the language used by Ms Aoake indicated that the incident had been significant. If that evidence were accepted, it was submitted, then the incident was significant and potentially life-threatening for Mr Williams. Accordingly one would expect him to be able to recall the event when he was discussing it with Ms Puddicombe and Ms Chadwick.

Whilst Mr Gallelli relied on Mr Williams statement, the inconsistency of Mr Williams’ failure to mention the event to the respondent witnesses had not been addressed by any further statement from Mr Williams.
Moreover, the circumstances under which Mr Williams’ statutory declaration was obtained was not addressed. It was not suggested that a further statement could not have been obtained, and that failure constituted a “direct inconsistency” between Mr Williams’ statutory declaration and what he said to Ms Puddicombe and Ms Chadwick.
There was no medical evidence of injury to Mr Williams, it was submitted, to support a finding that he was involved in a fall of the type and magnitude described in his and Ms Aoake’s statutory declaration. The evidence from Royal North Shore Hospital on 21 June 2023 regarding Mr Williams’ attendances for a prior head wound without his having mentioned the events of 16 June 2023 was a fact that was consistent with “the account said to have been given to Ms Puddicombe and Ms Chadwick.”
Mr Doak referred to Mr Gallelli’s statement of 20 September 2024, in which Mr Gallelli speculated as to the reasons why Mr Williams did not disclose the incident to Ms Puddicombe and Ms Chadwick. It was suggested that to do so may have jeopardised Mr Williams status of being cared for in his own home and his ability to remain there. Mr Doak submitted such a statement was speculation and simply self-serving, and it being therefore had no weight. Mr Doak submitted also that as such a suggestion was contradicted in any event by the further evidence of Ms Puddicombe in her statutory declaration 27 September 2024. Mr Doak noted that Ms Puddicombe had in fact sought to prolong Mr Williams’ time in his home. Mr Doak also asked rhetorically why Mr Williams would fail to admit the fall of 16 June 2023 out of fear of being removed from his home and then make a statutory declaration about it anyway.
Mr Doak submitted “the applicant did not directly challenge the evidence of either Ms Puddicombe or Ms Chadwick about the conversations with Mr Williams.” Neither, it was submitted, had Mr Gallelli provided any plausible evidence which would explain the direct inconsistency that Mr Doak was relying on.
Mr Doak then addressed Mr Young’s submission that the respondent could not rely on an inference that Mr Williams’ competence as a witness precluded any weight being given to his statutory declaration, because the same limitation would apply to the accuracy of his answers to the questions put by Ms Puddicombe and Ms Chadwick.
Mr Doak acknowledged the force of that submission, but submitted also applied in reverse: the applicant could not rely on the accuracy of the statutory declaration an at the same time dismiss the accuracy of the accounts from the respondent’s witnesses. Mr Doak submitted that if it could not be shown that there was a persuasive explanation for Mr Williams’ “lying” in those conversations. The evidence was simply too contradictory for any reliance to be placed on it, as I understood the submission.
Mr Doak acknowledged that some comments were made during the hearing about the form of the statutory declarations from Ms Puddicombe and Ms Chadwick. He submitted that whilst the form of the statements not comply with affidavit evidence in a jurisdiction where the rules of evidence applied, the guiding principle in the Commission was rather to facilitate the “quick cheap cost effective resolution of the real issues in proceedings.” Accordingly it was submitted that the form of the evidence of the respondent’s witnesses did not offend against those guiding principles as required by s 42 of the Personal Injury Commission Act 2020 and rule 73 of the Commission Rules.
Mr Doak submitted that “essentially” the Commission had to be persuaded to reject the evidence of Ms Puddicombe and Ms Chadwick “because they are lying about the conversations…” or alternatively that Mr Williams’ evidence was contradictory and therefore unreliable. Mr Doak submitted that Mr Gallelli had failed to show that either Ms Puddicombe or Ms Chadwick were lying – and indeed that submission had not been made by Mr Young.
Mr Gallelli had to establish that the injury occurred as he described it and on the evidence the Commission could not be satisfied that he had met his onus, Mr Doak said. If Mr Williams’ evidence was put to one side, the respondent submitted, that would only leave the account of Mr Gallelli himself. Mr Doak said that the “only” possible corroboration was the entry in the clinical records by Dr Yohendran, but that corroboration needed to be seen in the light of various dicta warning against the use of clinical notes such as Container Terminals Australia Limited v Huseyn[27] and Mason v Demasi.[28]
[27] [2008] NSWCA 320.
[28] [2009] NSWCA 227.
Only limited weight could be given to Dr Yohendran’s clinical note, Mr Doak submitted, and once the evidence of Mr Williams was put to one side there was no persuasive evidence to corroborate the applicant’s account. The applicant had failed to satisfy his onus of proof, Mr Doak submitted.
The respondent then turned to the evidence of Associate Professor Courtenay. Mr Doak submitted that the history relied on spoke of a “sharp stinging pain in the right shoulder” as Mr Gallelli grabbed Mr Williams.
Mr Doak noted that Associate Professor Courtenay said that the documents he had seen suggested that Mr Gallelli had denied any previous injury to his right shoulder, but the clinical notes showed that there was an injury to the right shoulder in 2015 “when he fell over the railing.” Mr Doak noted that there had then been an ultrasound and an X-ray investigation and that Mr Gallelli came under the care of an orthopaedic surgeon, who recommended surgery to repair a torn rotator cuff. Mr Doak noted that the applicant did not go ahead with the procedure.
Nonetheless, Mr Doak submitted, Associate Professor Courtenay after considering the MRI scan of June 2023 thought that the rotator cuff had been completely torn for an extended period of time. There was no new pathology in Associate Professor Courtenay’s view that was demonstrated by the 2023 MRI. The subject incident would have caused no more than a sprain that did not affect the underlying pathology and therefore would have resolved after a short period of time.
Mr Doak relied on Associate Professor Courtenay’s view that there was no bone marrow oedema or further significant swelling of the joint shown in the MRI scan of 16 June 2023, which an acute injury would have shown.
The opinion of Associate Professor Courtenay thus supported the respondent’s submission that the pathology which the proposed surgery is designed to address was pre-existing and not caused by the subject incident. There was no causal connection therefore between the subject incident and the pathology and accordingly the applicant was not entitled to the declaration he sought.
Associate Professor Courtenay did not consider the proposed surgery to be reasonably necessary or appropriate, Mr Doak said. His view was that the 2023 MRI scan showed that Mr Gallelli’s right shoulder had reached end stage cuff arthropathy and any attempted arthroscopic repair would be futile – and indeed make Mr Gallelli’s condition worse. There was a gross retraction in Mr Gallelli’s case and Associate Professor Courtenay did not accept that there would be any benefit in the procedure. Mr Doak referred to Diab v NRMA Ltd[29] in that regard.
[29] [2014] NSWWCCPD 72.
Appropriate treatment, Associate Professor Courtenay thought, was a right shoulder replacement, but that had not been claimed and when it was discussed during the hearing, Mr Young declined to make an application in that regard. That course, Mr Doak submitted, was entirely appropriate as no such claim had been made.
Mr Doak submitted that the applicant had not shown that the proposed treatment was likely to be effective and thus the application should fail.
Mr Doak submitted that the evidence of Dr Young lacked a clear description of the mechanism of injury in his first report of July 2023. Dr Young simply recorded pain in the antero- lateral aspect of the right shoulder. The MRI scan Dr Young noted as demonstrating pathology and Mr Doak noted that it also reported a partial tearing of the long head of biceps tendon.
Mr Doak noted Dr Young’s reluctance to proceed with the surgery if there was any delay of more than a month or so, and Mr Doak submitted that Dr Young did not then identify when the degree of retraction had occurred but said that the tear had occurred in the incident of June 2023 and not in 2015 as the contemporaneous ultrasound investigations demonstrated. This was a significant matter, Mr Doak submitted, in view of Dr Young’s comments about the prospects of successful surgery due to the degree of the retraction of the supraspinatus tendon.
Mr Doak submitted that Dr Young’s report in July 2023 to the GP was inconsistent with his response to the insurer of 8 August 2023. Dr Young had made no reference to a pre-existing rotator cuff in his initial report but in his response to the insurer he spoke of “an extension of the rotator cuff tear” to include infraspinatus tear as well as the biceps partial tear. Dr Young did not provide any basis for the conclusion that the subject incident had caused the extension of the tear and accordingly his evidence should not be given any probative value.
Dr Young said that he was unaware of any prior investigations, Mr Doak said, but he was clearly aware of the pre-existing tear of the supraspinatus but had failed to identify the source of that information. In any event the 2021 ultrasound contradicted Dr Young’s evidence about the absence of a pre-existing tear of the subscapularis and infraspinatus, as the ultrasound indeed showed such tears.
Dr Young’s further report of 14 June 2024 contained a number of contradictions Mr Doak submitted. Dr Young recommended that the surgery attempt a rotator cuff repair but he did not refer to any procedure to address the tear in the biceps. Dr Young agreed with Associate Professor Courtenay that the retraction of the supraspinatus might make the tear irreparable. Dr Young did not identify the date of the tear and, given his previous comment that the repair should occur within a few months, the failure to do so significantly undermined his view about the success or otherwise of the operation.
Whilst Dr Young suggested at the very least a biceps tenotomy would stand a good chance of improving symptoms, Dr Young did not provide any “reasoned basis” and accordingly Dr Young’s opinion lacked proper foundation. Mr Doak referred to Hancock v East Coast Timber Products Pty Ltd[30] in that regard.
[30] [2011] NSWCA 11.
Mr Doak submitted that Dr Young had not given a properly reasoned opinion about the cause of the pathology, the potential benefit of the proposed surgery, nor the potential for the reduction in symptoms of the biceps tenotomy.
Dr Gehr’s report, Mr Doak submitted, did take the history of the 2015 injury to the right shoulder. Mr Doak criticised Dr Gehr’s description of it as “minor” and indeed Dr Gehr’s finding that it settled soon after. Mr Doak referred to the clinical records between 9 February 2015 and 7 April 2015, which indicated that indeed Mr Gallelli had been having difficulties with his shoulder over that period of time. Mr Doak also referred to the entries of 29 November 2016 and 21 January 2021.
Mr Doak relied on these entries to submit that Dr Gehr’s assumptions were wrong. Dr Gehr had relied on an incorrect history and was contradicted by the imaging studies which demonstrated “significant damage to the right rotator cuff”.
In his later report of 16 March 2024, Mr Doak said, Dr Gehr attempted to address these problems by advising that despite what appeared on the ultrasound, Mr Gallelli may still have had good function and that the ultrasound might not have been accurate. Mr Doak submitted that this was “rather confounding” in view of Dr Gehr’s comment that the 2021 ultrasound demonstrated significant rotator cuff pathology, including full thickness tearing.
Dr Gehr, Mr Doak submitted, provided no comment or analysis regarding the degree of retraction of the rotator cuff tear, neither did he comment about any likely benefit or otherwise of a biceps tenotomy. Mr Doak accepted, for the purpose of argument, that Dr Gehr’s observation that the subject injury had caused Mr Gallelli a significant loss of function, but he failed to address whether the proposed surgery was reasonably necessary as a result of the injury. He simply accepted Dr Young’s assertion that the tear, as a result of the subject incident had extended, which Mr Doak submitted was a bare assertion and did not advance the applicant’s case.
Mr Doak referred to an interchange during the hearing to the effect that Dr Gehr had the advantage of examining Mr Gallelli whereas Associate Professor Courtenay’s opinion was based on a file review, about which Mr Doak said the errors in Dr Gehr’s report in effect nullified that advantage.
Associate Professor Courtenay on the other hand advised that the subject incident did not cause additional pathology, and that proposed surgery was unlikely to benefit Mr Gallelli. Mr Doak submitted that neither Dr Young nor Dr Gehr had provided a “properly reasoned basis for the assertion that the incident caused an extension or increase in size of the rotator cuff tear.” He submitted that neither doctor had provided a “satisfactory basis for concluding that the proposed surgery would benefit the applicant.”

Applicant in reply

Mr Young submitted that the respondent had misunderstood the mechanism of injury. The allegation was that the applicant had placed his body in the way of Mr Williams’ falling to the ground by taking his weight, and thus sustaining his right shoulder injury.
The respondent witnesses focused on any injury that might have occurred to Mr Williams, but failed to understand that the Mr Williams’ “fall” caused the applicant’s right shoulder to “snap.”
The attempt to undermine the evidence of both the applicant and Mr Williams was caused by an assumption that Mr Williams’ fall could only have happened if it had caused him injury. The respondent witnesses’ evidence was in hearsay form and did not contradict the applicant’s version of events, corroborated as it was by Mr Williams and the contemporaneous treatment from the GP.
As to Mr Doak’s submissions regarding the medical evidence, Mr Young observed that Associate Professor Courtenay had not examined the applicant, and had simply reviewed the file.
In summary, Mr Young submitted that Associate Professor Courtenay concluded there was no new pathology in the right shoulder consistent with the alleged injury. Rather, there was a right rotator cuff tear present, that was too old and retracted to justify the proposed rotator cuff repair.
Mr Young contrasted that opinion with those of the treating surgeon and the applicant’s medicolegal expert. Both practitioners conducted a thorough examination and concluded that the proposed right rotator cuff repair and biceps tenotomy were reasonably necessary.
Mr Young conceded that Dr Young in his report of 14 June 2024 accepted that the degree of retraction of the supraspinatus might indeed render it irreparable, but Dr Young wished to examine the rotator cuff to make that judgement. Dr Young also said that a biceps tenotomy would at the very least stand a good chance of improving the applicant’s symptoms.
Associate Professor Courtenay did not comment at all on the injury to the biceps and the need for the biceps tenotomy, Mr Young submitted. Associate Professor Courtenay’s opinion accordingly should be given little probative weight.

DISCUSSION

I am grateful for the detailed and thoughtful submissions from Mr Doak. He has said all that could be said for the respondent’s case, and has argued with some tenacity in an endeavour to give it some weight.

Injury

In the course of his submissions, Mr Doak referred to the ‘guiding principle” as provided by s 42 of the Personal Injury Commission Act 2020 and rule 73 of the 2021 Commission Rules. Section 42 does indeed provide that the “guiding principle” for both the Act and the Rules is to “facilitate the just, quick and cost-effective resolution of the real issues in the proceedings.”
It is not uncommon within the Commission for this principle to be applied in resolving matters at conciliation. However, it does not follow from that principle that evidentiary lacunae can simply be ignored if the case proceeds to arbitration. The terms of rule 73 demonstrate that evidentiary rules do apply to an extent:
“73 Guiding Principles for Applicable Proceedings
The appropriate decision-maker for applicable proceedings must, when informing itself or themselves on any matter in the proceedings, have regard to the following principles--
(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,
(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.”
On the question of liability Mr Doak laid some emphasis on the statutory declarations of Ms Puddicombe and Ms Chadwick. They were the cornerstone of the respondent’s case in this regard, in respect of which Mr Doak advanced a conundrum. Mr Doak submitted that there was “a direct inconsistency” between the account given by Mr Williams and the “uncontradicted evidence” of those witnesses. He submitted further that the applicant “must persuade the Commission” either that they had been “lying” or that Mr Williams’ evidence was so unsatisfactory, because it contradicted their accounts, that it amounted to a probability that they had been telling the truth.
This approach offended the above guiding principles in r 73.
Firstly, the question must be asked as to whether this evidence – including both the evidence of the above witnesses and the alleged contradiction of Mr Williams – was either logical or probative. Mr Williams is not the applicant, and the respondent has sought to build a circumstantial case against Mr Gallelli on the premise that a resolution of Mr Doak’s conundrum in favour of his witnesses must logically lead to the dismissal of Mr Gallelli’s case.
At the outset of the hearing, it was put to Mr Doak that he was alleging that Mr Gallelli was a liar and a fraud – a proposition he agreed with. Leaving aside the requirement for the Commission to have regard to the seriousness of such a charge,[31] the logic of the hypothesis is difficult to follow. Accepting for the purposes of the argument that Mr Doak’s conundrum was based on acceptable evidence, the Commission would be required to deduce that because there was a conflict between a patient and two employees charged with his care, that the patient’s carer had embarked on a deliberate attempt to defraud the company. The logic was flawed. The conflict may have been because the patient had an issue with the two employees, or vice versa. It may have been through a misunderstanding on either side. Without more, the proposition was speculative, and it was not probative of itself of any relevant issue.
[31] See Hatzisavas v Berkley Challenge Pty Ltd [2006] NSWWCCPD 145.
I read with interest the subsequent statements of both Mr Gallelli and Ms Puddicombe and Ms Chadwick regarding possible motives for Mr Williams to allegedly deny that any event had occurred on 16 June 2023. They were speculative and not relevant to the fact in issue. It may be that Mr Williams was indeed fearful that he would be moved out of his home – as he was a year later, or it may be that his cognitive awareness was affected by his age, to mention two possible inferences that were available. There are probably more.
Moreover, the attempt by the respondent to rely on a record of the patient’s admissions to hospital could only logically prove that his condition was frail, and if he was sufficiently badly injured, he would have sought medical attention. The fact that he apparently did not do so on the date of the injury meant either that he was not injured at all, or that he did not consider the injuries he sustained to be sufficiently serious to draw the attention of management. It was not probative of the proposition that this failure indicated that the applicant was engaged in a fraudulent attempt to claim compensation.

As strands of evidence these two theories could have been used to bolster the formation of a chain of relevant evidence that pointed to wrongdoing by the applicant, but there was no other evidence. Accordingly, they were not logically probative of anything but a difficulty in communication between Mr Williams and the two witnesses.
It follows that the relevance of this evidence to the facts in issue and the issues in dispute was marginal at best and, in the absence of any other evidence, of no relevance at all, thus offending against rule 73 (a).
As indicated, these findings have been made on the assumption, for the purposes of the argument, that the evidence was acceptable in any event. Whilst Mr Doak submitted that the form of the statutory declarations by Ms Puddicombe and Ms Chadwick did not offend against the guiding principles in this jurisdiction, this submission does not withstand scrutiny.
Ms Puddicombe’s first statutory declaration of 20 July 2023 was handwritten and consisted of 10 lines only. She said that the visit took place on 19 June 2023, some three days after the incident. It is possible that Mr Williams, if he did not deliberately withhold confirmation of the event to the respondent witnesses, may have forgotten the incident if it had not caused any serious injury, his being an elderly gentleman of about 80 years. Ms Puddicombe did not explain her understanding of the nature of the “alleged incident”. It is apparent that she assumed that Mr Williams had sustained injuries, for she said that was the purpose of her visit. She did not explain what information she had, nor from what source she had received it.
Accordingly, the evidence to this point was so vague that it was not possible to understand the facts on which she drew her conclusions. Ms Puddicombe’s assertion that “the client refuted the incident” offends the most basic requirement of a witness, as it assumes that the Commission will accept her conclusion in the absence of any attempt to explain its actual basis, i.e. the conversation itself.
Moreover, Ms Puddicombe’s statement that she “checked for bruising/grazing etc” was predicated on the basis that such injuries would have been consistent with a fall “as described.” Ms Puddicombe did not give any information of what had been described, or who had done the describing. She assumed that there had been a fall, but such an assumption was unsubstantiated, as she made no attempt to record any of the facts on which she made that assumption.
She had clearly speculated that a fall had occurred but did not consider the possibility that there might not have been a fall at all. She did not specify exactly where she had “checked for bruising/grazing etc” and it cannot be said that she inspected under Mr William’s left arm, which is where any bruising might have occurred on the objective facts.
Similarly the statutory declaration by Ms Chadwick was not in acceptable form. She stated that on 19 June 2023, the same day as Ms Puddicombe’s visit, she telephoned Mr Williams “to investigate a reported fall by care worker Silvio.” Again, Ms Chadwick did not advise what information she had obtained, and her conclusion that Mr Williams had denied having a fall “as Silvio reported” gave no details, either of what Mr Williams had said, or what the applicant had reported.
Ms Chadwick’s summary that Mr Williams “denied any pain, injury or bruising” did not relate the content of the conversation, and in view of the controversy that the respondent sought to establish about this incident, such a conclusory statement was no more than unsubstantiated assumption, unsupported by evidence as to what was actually said.
The same comments apply to Ms Chadwick’s reporting that Mr Williams had refused her recommendation to visit his GP as he had not sustained a fall. Ms Chadwick’s assertion that Mr Williams was known to fall frequently was supported by the evidence the respondent lodged as to Mr Williams’ visits to Royal North Shore Hospital between 22 October 2023 and 29 March 2024, but again the assumption that that therefore there had been no incident on 16 June 2024 was, without more, speculative. Moreover, although Ms Chadwick stated that Mr Williams “insisted” that he had not had a fall, she failed to recount the actual conversation.
Accordingly the evidence relied on by the respondent was based on speculation and unsubstantiated assumptions, and thus offended the provisions of rule 73(c).
The respondent was aware, or ought to have been aware, that it was making allegations of fraud and criminal behaviour against the applicant, as its counsel conceded. The s 78 notice of 2 August 2023 recounted the effect of the two statutory declarations from Ms Puddicombe and Ms Chadwick and concluded:[32]
“Based on the factual evidence that disproves this incident occurred, we do not consider there is causal connection between your employment and the diagnosis of ‘intrasubstance tear of biceps tendon and full thickness tear of subscapularis with traction’.”
[32] ARD page 13.
The resulting dispute therefore concerns the credit of Mr Gallelli, and whether the accusations by the respondent have created so much doubt that he has been unable to meet his onus. In assessing the reliability of evidence it is necessary to consider “contemporary materials, objectively established facts and the apparent logic of events.”[33]
[33] Fox v Percy [2003] HCA 22 ; 214 CLR 118 at [31] (Gleeson CJ, Gummow and Kirby JJ) (Fox).
The contemporary material supports Mr Gallelli’s assertion that he sustained an injury as he described. The entry in Dr Yohendran’s clinical notes on Saturday 17 June 2023 is a contemporaneous confirmation that Mr Gallelli had sustained an injury the day before. Dr Yohendran’s entry, to repeat, was:
“Was helping a person who was falling after tripping a step
Held him but he fell over his right shoulder
heard a snap
now in pain and unable to lift arm above shoulder
? Torn ligament?”

164.I have above reproduced the results of the ultrasound and MRI investigations which were carried out at the request of Dr Yohendran on 20 June 2023 and 23 June 2023 respectively. These investigations showed the presence of pathology in the right shoulder, including in the biceps tendon.
165.There is accordingly independent contemporaneous documentary evidence that supports the applicant’s claim that he had suffered injury to his right shoulder when held Mr Williams who had tripped and “was falling.”
166.Mr Gallelli obtained from Mr Williams a statutory declaration dated 21 August 2023, which has been referred to above. The contents of that statutory declaration related that Mr Williams “had an accident” on the concrete stairs in front of his house whilst he was on the way to an x-ray at Lane Cove around 2 PM on 16 June 2023. He said he was “walking sideways down stairs and could not move his right foot from the top of the step down to my other foot.” He said he lost his balance, “my left hand let go, and I slipped my left arm between the banister and the wall of the house.”
167.Mr Williams said that his arm was thus held up to his armpit. His body rotated 90° clockwise and he fell backwards towards the concrete platform five steps below. He said that his care worker, Mr Gallelli, was at the bottom of the stairs and “came to my aid to prevent me from falling further.” Mr William said that his body weight combined with the momentum “made both of us crumbling unto the stairs [sic)].”
168.I read that statement as meaning that when Mr Williams arm became trapped as he lost his balance, he fell with his back towards the bottom of the stairs as his body rotated as a result of his inability to release his arm. Mr Williams’ left foot was on the step below his right foot, and his inability to move his right foot down to that step had caused him to lose his balance, his body rotating as he fell due to his left arm being trapped.

I read Mr Williams use of the word “momentum” to mean that his body was falling. It follows that Mr Gallelli absorbed that momentum as he came to Mr Williams’ aid, and both he and Mr Williams “crumbl[ed] unto the stairs,” by which I infer that Mr Gallelli’s actions prevented the fall from occurring any further and that they both came to rest on the stairs. The fall could not have been any further than the one step Mr Williams’left foot had been on, as Mr Williams also said that his left arm was still trapped and it took Mr Gallelli “several minutes to free my trapped arm and to rest me on the stairs until I could get up again.”

170.Mr Gallelli also had the support of Mr Williams’ longtime friend and fiancé, Ms Aoake. Ms Aoake’s statutory declaration of 31 August 2023 confirmed that Mr Williams had explained to her that “he slipped and fell backwards down the stairs outside his house. His arm got caught behind the handrail and he could not free himself.” Although Ms Aoake did not identify when this statement was made, and her evidence needs to be approached with some care in view of the closeness of the relationship with Mr Williams, nonetheless her evidence corroborates Mr Williams’ account of the incident and is available as a reasonably contemporaneous account of what she had been told.
171.Mr Gallelli in his statement of 2 February 2024 added a further detail to the narrative, that being that Mr Williams was at the time “using a walker.” Mr Gallelli’s account of the mechanics of the fall was not as detailed as that of Mr Williams, but he did confirm that “the patient collided with me” as Mr Gallelli attempted to prevent the fall, and that he experienced a “sharp, stinging pain in my right shoulder as I grabbed the patient.”

Mr Doak conceded that his criticism of this description by Mr Gallelli of his injury might simply be a matter of expression used by Mr Gallelli, a concession that was well made. Mr Gallelli’s statement was corroborated as to the essential elements of his claim firstly by the contemporaneous record made by Dr Yohendran the day after the injury. Mr Doak referred to authority as to the use could be made of clinical notes, submitting that therefore Dr Yohendran’s note was of limited weight. Mason v Demasi has been cited with approval in the Commission in Qannadian v Bartter Enterprises Pty Limited[34] where DP Michael Snell said from [36]:
[34] [2016] NSWWCCPD 50.
“36. Mason is from a line of appellate authority dealing with the use of clinical notes in the fact finding process. A number of these authorities are referred to in Winter v New South Wales Police Force [2010] NSWWCCPD 121 (which was reversed on appeal, on a different basis), where Roche DP at [183] said:
‘It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34]–[36]).’
37. The authorities (including Mason) do not preclude the use of such evidence in the fact finding process, nor do they provide that such evidence should not be relied on, in the absence of evidence from the author of the clinical notes. The authorities require the use of caution by a fact finder, including having regard to the circumstances in which such notes are brought into existence.”
This dicta is also of some relevance when considering Dr Young’s opinion regarding the proposed surgery, but in the present context Mr Doak’s submission that Mason was authority that limited weight could be given to the entry by Dr Yohendran of 17 June 2023 must be rejected.
Mr Doak’s conundrum has no association with what appears in Dr Yohendran’s note. It is prima facie independent corroboration that Mr Gallelli suffered an injury whilst preventing a fall by Mr Williams. The history recorded, brief though it was, contained all the elements of the incident described by both Mr Williams and Mr Gallelli. Mr Williams was falling after tripping; Mr Gallelli held him, but Mr Williams fell over his right shoulder and Mr Gallelli heard the snap. Mr Gallelli said he felt a sharp stinging pain in his shoulder as he grabbed Mr Williams which is sufficiently similar to the history taken by Dr Yohendran that makes it probable that the incident occurred. It follows that Mr Williams’ account may also be accepted.
As indicated above, the respondent relied on circumstantial evidence to attack Mr Gallelli’s credit, and the inference that it sought to have the Commission accept was that Mr Gallelli had decided to defraud the respondent and lie about his injury. The logic of events referred to in Fox would require some reason to draw that inference besides the speculation that has been discussed when considering the respondent’s witnesses’ rejected evidence above, that there was some motive for his doing so.
Mr Gallelli had been employed for about a year when the incident occurred, and no evidence was submitted that suggested that he was anything but a competent employer. Moreover, he was a person who was very well educated, having gained a double degree in Germany before he emigrated in 1997. The probability that a man with his background would attempt such a clumsy and obviously flawed fraud is highly unlikely.
The probabilities, when weighing up Mr Gallelli’s statement, the clinical note of 17 June 2023, the statutory declaration of Mr Williams and that of Ms Aoake, strongly support a finding that the accident happened in the manner described by the applicant. It is perhaps ironic that these serious accusations have been made against his credit when he was simply performing his duties as a carer and suffered personal injury whilst doing so. The decision by the respondent to deny liability under these circumstances is regrettable.
Ms Aoake’s evidence that Mr Williams said he would not be alive but for the actions of his care worker was unsupported, although I am satisfied that Mr Gallelli’s actions did prevent a serious fall down some several steps onto the concrete, which may have had serious consequences for Mr Williams.
Mr Gallelli is entitled to have his unblemished record taken into account in considering his credit, and I am satisfied that he has established his onus of proving that the respondent is liable for his injury.

Reasonable necessity

Section 60 of the 1987 Act provides relevantly:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service….
……..
(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service……”
The question of whether a given treatment was reasonably necessary was considered in Diab v NRMA Ltd[35] where DP Roche set out a number of criteria as useful heads for consideration. From [88] the learned DP stated:
[35] [2014] NSW WCC PD 72.
“88. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89. With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
90. While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary….’”
The respondent relied on the opinion of Associate Professor Courtenay dated 28 March 2024. The first difficulty in accepting this opinion is that Associate Professor Courtenay did not actually examine Mr Gallelli.
Associate Professor Courtenay provided a file report based on documentation that was provided to him. Unfortunately, Associate Professor Courtenay did not identify the documentation that he considered. It would seem that he did not have Mr Gallelli’s statement of 2 February 2024 available, as he alleged that “according to the correspondence” Mr Gallelli had denied any previous injuries to his right shoulder.” Associate Professor Courtenay did not identify “the correspondence” to which he was referring and his comment had the appearance of a gratuitous attack on Mr Gallelli’s credit.
Associate Professor Courtenay’s report was concerned with an analysis of Mr Gallelli’s previous injuries, from which Associate Professor Courtenay concluded that the pathology demonstrated in the investigations taken subsequent to the subject injury had been present in an ultrasound taken in 2015. Associate Professor Courtenay concluded on a number of occasions that the pathology had been caused by Mr Gallelli’s prior occupation between 1991 and 2017 as a “glass sculptor artist”, which information he obtained “from the documentation.” The “documentation” was not identified and seems to be in contrast to the history taken by Dr Gehr on 16 November 2023 that Mr Gallelli had worked up to 2017 as “an industrial designer.”[36]
[36] ARD page 26.
In any event, Associate Professor Courtenay’s opinion was that the work as a glass sculptor artist over 25 years would have put a large amount of strain on Mr Gallelli’s right shoulder and rotator cuff, which in turn would have predisposed Mr Gallelli to develop in degenerative changes and the complete tear that had been shown in the ultrasound of 2015. Associate Professor Courtenay believed that Mr Kelly’s “lengthy employment as a glass sculptor artist” had a “major effect” on Mr Gallelli’s shoulder. Associate Professor Courtenay also stated that the pathology shown in 2015 was “virtually identical” to the pathology shown in “2022”. From that deductive series of conclusions, Associate Professor Courtenay advised that it was the employment as a glass sculptor artist that was “in fact the cause of the shoulder issues” rather than the incident with the respondent.
This conclusion is at odds with the contemporaneous documentation regarding the 2015 complaint. As extracted above, the first entry in the GP notes of 4 February 2015 noted that Mr Gallelli had presented “post-fall” when he had “a mechanical fall over a railing” in which he apparently fell onto his hands and face on the ground. On 5 February 2015 a further entry noted a complaint by Mr Gallelli that he had ongoing right shoulder pain “post-accident.” Further, the entry noted that Mr Gellatly had been seen “yesterday post fall” and that he also had sutures to the inner bottom lip.
Associate Professor Courtenay’s assumption that Mr Gellatly had denied previous injuries to his shoulder was also incorrect, as Mr Gallelli stated that he had suffered a “similar injury” in 2015. It had not however affected the physical demands of his employment, and Mr Gallelli stated that he had to pass physical tests in order to obtain his employment with the respondent. This assertion was not challenged. He said that before his employment with the respondent he “did not experience any pain or restrictions in my right shoulder” and he was able to fully engage with activities of daily living, and never took any time off work. This assertion too has not been challenged.

Associate Professor Courtenay’s advice concentrated on the effect of the investigations that had been carried out on 2015 and Mr Doak relied on his opinion that the MRI taken subsequent to the subject injury did not suggest there was any additional or new pathology. Associate Professor Courtenay said that the post injury MRI “clearly shows that there was no additional pathology or no evidence of any acute injury.” Associate Professor Courtenay spoke about marrow oedema and swelling of the joint having to be present if any significant injury had occurred. He did however allow that if there was an injury on 16 June 2023 it would have been an “acute flare.”
The MRI scan of 23 June 2023 findings included “severe tendinosis of long head of biceps tendon with longitudinal interstitial split tearing.” Associate Professor Courtenay acknowledged that such pathology was evident in the MRI scan of 23 June 2023 but appeared to regard it as old pathology, saying “in addition, the long head of biceps showing the severe tendinosis is also very long-standing.”[37]
[37] Reply page 15
Mr Young submitted that Associate Professor Courtenay did not comment at all on the biceps injury or the need for biceps tenotomy. Associate Professor Courtenay was asked as to whether he considered the “right arthroscopic rotator cuff repair and biceps tenotomy [was] reasonably necessary…” by his retaining solicitors, and Mr Young was correct that Associate Professor Courtenay did not comment in his reply.
Associate Professor Courtenay’s answer was firstly that there was no additional pathology, and secondly that the changes shown on the MRI scan of 23 June 2023 demonstrated that Mr Gallelli’s shoulder had reached “end stage cuff arthropathy” and that any attempt at arthroscopic repair would be futile at best and could worsen the shoulder symptoms. Associate Professor Courtenay considered that the proposed surgery would not offer any benefit at all. He did, however, confirm that Mr Gallelli needed surgery in the form of a shoulder replacement or a more likely a reverse shoulder replacement.
Associate Professor Courtenay’s opinion has simply relied on the results of investigations and speculated that the comparison of the pre-injury and post-injury investigations confirmed that there had been no fresh pathology involved in the injury. It was, with respect, somewhat ambitious for the respondent to base its medical dispute on a file report where the claimant has suffered a specific physical injury. There was no consultation with Mr Gallelli. Associate Professor Courtenay did not interview him, he did not examine Mr Gallelli and he did not confirm the accuracy of the histories he was relying on. His opinion was contradicted by Dr Gehr, whose opinion I prefer.
I accept Dr Gehr’s statement that “it is important to realise that function is based on history and examination not on imaging results.” I accept Dr Gehr’s opinion that “it is not unusual for a client who has a complete tear of the rotator cuff mechanism demonstrated on imaging to still have good function and to be able to carry out their [sic] full duties.” I also accept Dr Gehr’s opinion that “ultrasound reports are not always entirely accurate” and that despite what an ultrasound may show, a person may still have good function, making it possible for him to undertake the duties of his pre-accident job – as indeed was the case with Mr Gallelli.
Mr Doak’s criticism of the advice by the treating surgeon, Dr Allan Young, must be seen in the light of Dr Young’s function. He was not a medico legal advisor, and he was concerned with the proper management and treatment of his patient.
The criticism that Dr Young’s report to the insurer was inconsistent with his report to the GP overlooked the fact that in his report to the insurer, Dr Young was simply answering a series of questions, which were not before the Commission, whereas in his report to Dr Yohendran he was explaining the reasons why the proposed surgery was necessary.
The report to the insurer was dated 8 August 2023 and the insurer must have enquired about the effect of any prior investigations, as Dr Young said he was not aware firstly of any prior MRI scan which accurately compared to the recent MRI scan (presumably that of 23 June 2023) and secondly of any other prior imaging such as an ultrasound.
Dr Young’s report to Dr Yohendran was dated 14 June 2024 and noted the relevant issues from Dr Young’s perspective. He said that his recommendation for surgery almost one year earlier had been declined and that Mr Gallelli’s symptoms had worsened. Dr Young referred to the duration since the injury and acknowledged that the tear might in fact be found to be irreparable. He said “if that proves to be the case, at the very least a biceps tenotomy would stand a good chance of improving [the applicant’s] symptoms.”
In his submissions in reply, Mr Young said that Dr Young therefore wished to surgically examine the rotator cuff to make that judgement. I agree with that interpretation of what Dr Young said. In Mason at [2] Basten JA, agreeing with Simpson J, listed five reasons why any apparent inconsistencies in health professional notes should be approached with caution, one of which was “(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings…”
Whilst Dr Young made his comments in a report rather than a note, it is clear that they were made in furtherance of his recommendation that surgery be undertaken, which differed from the forensic exercise Mr Doak sought to deploy regarding the applicant’s prior problems with his shoulder. That aspect of the case was considered by Dr Gehr, the appropriate medico legal specialist, whose opinion I have above accepted.
Mr Doak’s principal submission was that the proposed surgery was not reasonably necessary because it was “unlikely to provide any benefit to the applicant.” I accept Dr Young’s opinion that a biceps tenotomy could improve the applicant’s symptoms and I accept further that the exploration is necessary to establish whether the supraspinatus tear can be repaired. Mr Doak’s submission in terms of the heads of consideration listed in Diab, related to whether the proposed treatment would be effective, in respect of which I am satisfied that in the facts of this case, even if there is a poor outcome, the proposed surgery is reasonably necessary.

CONCLUSION

Accordingly I make the orders set out from the above certificate.

[2024] NSWPIC 660

29 November 2024