Gallelli v HammondCare - [2024] NSWPIC 660

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gallelli v HammondCare

Details

AGLC: Gallelli v HammondCare [2024] NSWPIC 660
Case: [2024] NSWPIC 660
Decision Date: 29 November 2024

CaseChat Overview and Summary

In the matter of Gallelli v HammondCare, the applicant, Silvio Gallelli, sought compensation for surgical treatment of his right shoulder, which he injured while preventing a patient from falling. The respondent, HammondCare, disputed the claim, arguing it was fraudulent. The case was heard in the Personal Injury Commission of New South Wales. The central legal issues were whether the evidence presented by the respondent was sufficient to establish the applicant's claim as fraudulent and whether the file report by the respondent's expert justified the conclusion that the proposed surgery was not reasonably necessary.

The court found that the evidence from the respondent's witnesses did not comply with the requirements of rule 73 of the Personal Injury Commission Rules. The court held that the evidence was neither logical nor probative, being based on speculation and unsubstantiated assumptions. It was also noted that the evidence was in conclusive form and did not relate sufficient detail to be acceptable. The applicant's claim, however, was supported by contemporaneous independent documentary evidence from the applicant's GP notes, which recorded the incident and the subsequent pain in the right shoulder. The court also took into account the uncontroverted testimony of the patient who was saved from his fall by the actions of the applicant. The court rejected the respondent's expert opinion, noting that the expert had not interviewed or examined the applicant, and had made erroneous findings about the investigation.

As a result, the court held that the applicant's claim was established and awarded him compensation. The court also made observations on the respondent's regrettable action in denying liability without sufficient evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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. 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 mouthHad a mechanical fall over a railingfell onto the hands and hit the face on the groundbleeding from the left nostrilNo LOC, no amnesiaOn 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 flexionHears a click when he abducts his armCausing significant distress, unable to sleep on right side secondary to painExplained 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 tendonR 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, 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.

Ratio Decidendi

Legal Principle Established

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