Gordon v State of New South Wales (NSW Police Force)
[2025] NSWPIC 40
•7 February 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Gordon v State of New South Wales (NSW Police Force) [2025] NSWPIC 40 |
| APPLICANT: | Ian Patrick Gordon |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 7 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Whether the applicant suffered injuries to the bilateral upper and lower limbs in the course of his employment as a police officer; gaps and inconsistencies in the medical evidence; the value of contemporaneous evidence; the fallibility of memory; Nguyen v Cosmopolitan Homes; Kooragang Cement Pty Ltd v Bates; Makita (Australia) Pty Ltd v Sprowles; Watson v Foxman; Held – award for the respondent for claims relating to the upper and lower limbs; matter referred to a Medical Assessor for assessment of whole person impairment for accepted conditions of cervical and lumbar spine. |
| DETERMINATIONS MADE: | The Commission determines: 1. By consent, the respondent to pay the applicant $1,375 with respect to a 1% whole person impairment arising from injury to the right thumb sustained on 16 September 2015. 2. Award respondent with respect to claims for injury to the bilateral upper limbs (shoulders) and bilateral lower limbs (knees). 3. The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment (WPI) as follows: (a) Date of injury: 31 October 2022 – (deemed) (b) Method of assessment – WPI (c) Body system/part: (i) lumbar spine, and (ii) cervical spine. 4. That the Medical Assessor is to be provided with the following; (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments, and (c) Application to Lodge Additional Documents filed by the respondent on 30 January 2025. 5. Liberty to apply following the medical assessment with respect to any issues relating to quantum/costs. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Mr Ian Gordon (the applicant) claims lump sum compensation for impairments suffered to the lumbar and cervical spines, bilateral upper and lower limbs and right thumb arising out of injuries claimed in the course of his employment as a police officer with the NSW Police Force (the respondent).
The respondent’s insurer accepted liability for injuries to the lumbar spine and right thumb but disputed liability for the balance of the claims as it considered employment was not a substantial contributing factor to any injury or aggravation, acceleration, exacerbation of a disease process.
An Application to Resolve a Dispute (ARD) was then filed in Personal Injury Commission (Commission). The matter ultimately proceeded to conciliation/arbitration where Mr Hammond of counsel instructed by Mr Bourke appeared on behalf of the applicant. Mr Barter of counsel instructed by Mr Fazzolare represented the respondent. A representative from the insurer was present.
During conciliation the respondent agreed to compensate the applicant with respect to the right thumb and requested the agreement be recorded in my Certificate. It also accepted liability for the cervical spine. The parties requested a determination on the issue of “injury” to the bilateral upper and lower limbs with reference to the Workers Compensation Act 1987 (the 1987 Act).
At arbitration, the applicant objected to the admission of the supplementary opinion of Dr Stephen dated 10 January 2025 due to late service and argued his report dated 30 April 2024 (served with the respondent’s s 78 notice and attached to the Reply in accordance with the Personal Injury Commission Rules 2021 (the Rules) should therefore also be excluded. If successful, such a decision would result in the applicant’s impairment claim with respect to the neck and back being unchallenged, thereby negating the need for assessment by a medical assessor.
I admitted the report of Dr Stephen dated 10 January 2025 and gave ex tempore reasons at arbitration as I was satisfied:
(a) the report was forecasted at the preliminary conference;
(b) its contents already facilitated and likely would continue to facilitate the “real issues” in dispute[1], and
(c) procedural fairness and natural justice principles prevent the applicant from gaining a forensic advantage[2] by the rigid enforcement of procedural requirements where cogent explanation exists for breach. I accept the respondent had difficulty obtaining instructions to release the report which was necessary as it ultimately resulted in liability reversal. I was not persuaded by the claims of prejudice raised by the applicant especially given the report reversed the respondents liability determination with respect to the cervical spine, thereby narrowing the issues in dispute.
[1] Section 67C of the Rules requires documents be served “no later than 3 working days before the conference or hearing”. Section 67D allows a late document to be admitted on application by a party, in this case the respondent.
[2] Garrard v Email Furniture Pty Ltd (1993) 32NSWLR 662.
I directed the respondent file this report via an Application to Lodge Additional Documents (ALAD) no later than 30 January 2025.
Parties agreed, pending findings on liability, the lump sum dispute was to be referred to a medical assessor. Liberty to apply for a further conference with respect to any remaining disputes relating to quantum and/or costs was sought following that assessment.
During the course of decision making, I considered oral submissions along with the documentary evidence consisting of the ARD, the Reply and the report of Dr Stephen dated 10 January 2025 filed under the ALAD. No oral evidence was called. As indicated above, the only dispute between the parties is the issue of injury of the upper and lower limbs and in the interests of brevity I will confine discernment to these claims.
EVIDENCE
Applicant’s statement
In a comprehensive statement[3] the applicant tells me he was attested in 2007 and medically discharged in March 2024. He last worked on 31 October 2022. (During submissions, I was referred to paragraphs 16, 17, 26 to 33 inclusive, 46, 47, 74, 75, 89 and 90 of the statement by Mr Hammond) as these related to the balance of the dispute. Before progressing further I will reinforce that I have reviewed the statement in full despite the concessions made by the respondent. In summary, I learned that over 17 years the applicant was largely involved in uniformed general duties in which he was subject to hundreds of arrests, many involving physical force to varying degrees. He states prior to leaving the Force he had counted the number of occasions where he had “preferred charges or lodged incident reports” in relation to “someone who had assaulted me” and “from my recollection the number was about 49 or 50 and this doesn’t count the number of less serious assaults”.
[3] Folio 1-14 of the ARD
He documents he did not report injuries such as bumps, bruises or knocks and other significant injuries unless there was a fracture or stitches required. He further reports that his Duty Officer would place him on an “easy shift – station duties or something that didn’t involve members of the pubic or physical exertion” when he was struggling with pain in the knee or shoulders. His failure to report injuries was because “as a male officer I would have been ridiculed and viewed as weak”.
Specifically with regards to the shoulders, the applicant discloses a pre attestation right clavicle injury which did not affect his fitness. He states pain commenced in about 2010 during various arrests with non-compliant offenders where he was required to wrestle, fight, force to the ground, cuff, and forcibly place offenders in the police truck. He was required to lift, push and pull heavy objects including dead bodies and car wreckage at motor vehicle accidents to access passengers. He also noticed pain when waving down motorists during random breath testing (RBT) duties and overall attributed symptoms to the nature and conditions of his varied unpredictable physical work.
As regards treatment he consulted his general practitioner and radiology subsequently revealed sub deltoid bursitis and impingement in 2010. Recommended steroid injections in the right shoulder provided little to no relief and so were not trialled in the left shoulder for this reason. Rotation movements cause a grinding feeling, pain and decreased mobility.
As regards the knees, the applicant recalls falling on multiple occasions during foot pursuits and arrests which resulted in him twisting the knee. He recorded hitting his knee on the office desk whilst completing paperwork. When overly active, he has pain in both of the knees. Again, the applicant attributes symptoms to the nature and conditions of his varied unpredictable physical work.
The statement then informs me as to the general nature of movements associated with defensive tactics including the use of batons, handcuffs, leg sweeps, arm bars, wrist locks, kicks and knee strikes. Such movements were stated to involve much physical strength and force and resulted in various strains and pains during his employment. The applicant does not nominate any specific dates or incidents when such movements may have caused symptoms.
The applicant concludes his statements by summarising the impact of his injury on his day to day activities both domestically, personally and socially.
Medical evidence
Dr Wadley, orthopaedic surgeon, was qualified by the applicant and reported on 2 May 2023.[4] She records the onset of symptoms in 2010 and diagnosed bilateral shoulder sub acromial bursitis and impingement, right worse than left, attributed to the “hard, heavy and repetitive nature and conditions of the police work he undertook during his employment”.
[4] Folios 75-86 of the ARD.
As regards the knees, it was recorded symptoms commenced in about 2013 particularly with activities such as jumping fences, landing and walking down stairs or hills. There was no history of pain prior to his policing duties. A diagnosis of bilateral chondromalacia patellae chondrosis with anterior cruciate ligament (ACL) strain was made, with such symptoms also being attributed to the “hard, heavy and repetitive nature and conditions of the police work he undertook during his employment”.
Dr Porteous, occupational physician, was qualified by the applicant and reported on 29 February 2024.[5] His assessment largely relates to the now undisputed claims, that is neck and back but he noted “repeated micro-traumas to the right shoulder which was painful and restricted” with no other medical history of note.
[5] Folios 110-116 of the ARD.
Respondent’s evidence
Attached to the reply was a completed although unsigned questionnaire by a doctor at the Lennox Head and Epiq Medical Centre dated 25 July 2024.[6] The report refers to the need for ongoing psychological support and exercise physiology. A record of a fractured right clavicle in 2005 is recorded prior to being attested. The report confirms attendance on 31 May 2010 with right shoulder pain and confirms the steroid injection. A further presentation for the right shoulder and neck pain is noted on 11 July 2024 after a complaint of pain present for eight weeks. (The applicant ceased active duties on 31 October 2022).
[6] Folio 15 of the Reply.
Dr John Stephen, qualified on behalf of the respondent reported on 30 April 2024[7] predominantly with regards to the neck and back claim. A supplementary report dated 10 January 2025[8] supported that the applicant suffered injury to the neck and back. He recorded examination of the shoulders revealed a full range of painless active movement. The knees were not assessed as no complaint was made.
[7] Folios 16-22 of the Reply.
[8] Folios 1-4 of the ALAD filed 30 January 2025.
Dr Machart, orthopaedic surgeon, qualified by the respondent reported on 10 August 2023[9] specifically with regards to the upper and lower limbs claims. (It was this assessment that resulted in the denial of liability.) Dr Machart considered the applicant was a poor historian and concluded
“Having looked through the medical documentation, in absence of documentation of work related injury to either of the shoulders or knees, it is difficult to come to the conclusion that the pathology described, impingement and anterior knee pain relate to employment. On the balance of probabilities, probably not, specifically since there was no improvement since he stopped working, and he continues to go to the gym, which undoubtedly is aggravating any potential impingement in the shoulders and anterior knee pain.”[10]
[9] Folios 22-34 of the Reply.
[10] Folio 33 of the Reply.
The clinical notes of the Lennox Head Medical Centre attached to the Reply record presentations/consultations between 11 February 2008 and 25 January 2023. I have carefully analysed the notes and noted the following relevant entries:
(a) on 31 May 2010 presentation notes recorded unedited:
“Reason for visit: Shoulder pain
History: 6 months of intermittent Right shoulder pain
?onset after bowling in cricket
Lifts a lot of weights - this can make it worse (my emphasis)
Has been going to Physio
Has been told it is Impingement syndrome
Doing the exercises with limited improvement
Examination:
Very muscular
Scar over clavicle - Previous ORIF
Crepitus ++ in joint Good ROM
Unabale to reproduce impingement
Plan
Xray and US Plan for steorid injection if bursitis of Tendonitis”
On 3 June 2010 the applicant underwent injections under ultrasound to the right shoulder.[11]
(b) On 24 September 2015, the applicant attended with a sprain to the right thumb. The onset was recorded as “post hyperextension yesterday 3pm at work while restraining a person as a police officer”.[12]
(c) On 12 July 2018, the applicant attended with a sprain to the adductor tendons in the right pubic area and also pain in the right knee which locks. The applicant returned to the practice on 9 August 2018 at which time a right popliteal cyst was diagnosed following MRI with aspiration recommended.[13]
(d) On 30 December 2021 the applicant presented with back pain which was recorded as work related, being present for 18 months.[14] There are many other presentations following this relating to work related back complaint.
(e) There are work related presentations relating to psychological injury.
(f) There are multiple other non-work related presentations relating to general health matters which are irrelevant to this determination, except to say that the applicant did regularly attend the general practice.
[11] Folio 48 of the Reply.
[12] Folio 64 of the Reply.
[13] Folio 72 of the Reply.
[14] Folio 49 of the Reply.
SUBMISSIONS
On behalf of the applicant it was submitted:
(a) the applicant’s statement should be accepted in full. The activities nominated as part and parcel of general policing duties including but not limited to rolling, wrestling, grappling, grabbing, carrying, lifting, climbing in and out of tight and awkward spaces, scuffles, wrestles, and falls with offenders would all easily contribute to aggravation of the pre-existing disease conditions identified. Such activities must be accepted as being part and parcel of every day duties of a police officer and the applicant was engaged in such duties for the better part of 14 years;
(b) the opinion of Dr Machart should be rejected. It unnecessarily focuses on the applicant’s gym activities rather than holistically assessing the day-to-day activities of a police officer. The doctor failed to engage with the evidence and his opinion should be given little weight;
(c) Dr Machart called for corroboration yet ignored the applicant’s statement which corroborates injury and educates about the physical demands of policing. The applicant’s statement as a whole cures the lack of any medical corroboration but specifically paragraphs 17, 26 to 33, 46, 47, 74, 75, 89 and 90;
(d) it is accepted there are few contemporaneous complaints to various health professionals relating to the areas claimed. This is because claims/complaints are discouraged in the Force. Further the ailments are minor (in the scheme of things) which would not cause the applicant to regularly complain of symptoms or seek treatment;
(e) it is accepted the applicant was not incapacitated by virtue of his upper and lower limb symptoms and so any deemed date of injury for the purposes of referral to a medical assessor should be the last date of service, that is 31 October 2022.
On behalf of the respondent it was submitted:
(a) the applicant has not established on the balance of probabilities ‘injury’ to the upper or lower limbs and specifically aggravation of any degenerative conditions during the course of his employment;
(b) the only evidence of ‘injury’ to the upper and lower limbs is in the statement. There is no corroborating medical evidence;
(c) both Dr Wadley and Dr Machart have failed to nominate any injuries or specific incident’s accounting for injury or aggravation. The reason for this is because there haven’t been any and that the claims have only been constructed after the cessation of employment;
(d) the applicant ceased employment in March 2022 yet only complained to his treating doctor of knee symptoms in 2024, claiming increasing symptoms for a period of over eight weeks (well after the cessation of employment);
(e) the applicant was forthcoming with a variety of medical complaints both work related and personal to his treating doctors. It makes no sense that he did not complain of symptoms in the upper and lower limbs if and when experienced at work over the years. There is no evidence that he sought any treatment for any symptoms arising out of workplace events;
(f) the applicant’s evidence is unreliable.
In response the applicant submitted;
(a) it is important to understand the psychology/culture behind claims in the Force. Claims are not encouraged and police officers “just get on with it”;
(b) any concerns about credibility could have been dealt with via cross examination, a path not taken by the respondent.
APPLICATION OF THE LAW AND FINDINGS
Injury is defined in s 4 of the 1987 Act.
In assessing whether injury has occurred as a result of or in the course of employment, authorities demonstrate:
(a) in order to be satisfied that an injury has occurred, there must be evidence of a sudden or identifiable pathological change: Castro v State Transit Authority (NSW),[15] or as stated by Neilson CCJ in Lyons v Master Builders Association of NSW Pty Ltd,[16] “the word ‘injury’ refers to both the event and the pathology arising from it”;
(b) “disease”, – s 4(b) of the 1987 Act, has been described as “any abnormal physical or mental condition that is not purely transient”[17] (and it is now well established that a relevant aggravation injury (which for present purposes shall include aggravation, exacerbation or deterioration) need not have any effect on the underlying pre-existing disease itself and that it will be sufficient if the symptoms of the disease have been increased in the course of employment. In the case of an exempt worker, (such as police officers) all that needs to be shown is that employment has been a substantial contributing factor to the increase in symptoms. Moreover, employment need only be the substantial contributing factor to the aggravation and need not contribute to the causation or progression of the underlying disease itself;[18]
(c) the issue of causation must be determined based on the facts in each case and the application of the common sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates,[19] and
(d) the applicant bears the onus of establishing injury on the balance of probabilities. A decision maker must feel an actual persuasion or comfortable satisfaction of the existence of a fact. The approach to be taken was summarised explored by the Court of Appeal in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen) relevantly:
“(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
(At [55].)[15] [2000] NSWCC 12; 19 NSWCCR 496.
[16] (2003) 25 NSWCCR 422, at [429].
[17] per Windeyer J Commissioner for Railways v Bain [1968] HCA 5.
[18] see, for example, Murray v Shillingsworth [2006] NSWLR 451 and State Transit Authority of NSW v El-Achi [2015] NSWWCCPD 71.
[19] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), [463].
The qualified medical opinions confirms diagnoses of bilateral chondromalacia patellae chondrosis with ACL strain of both lower limbs and bilateral shoulder impingement, both degenerative conditions. This is entirely consistent with the radiological findings and clinical notes. I so find. The key question that follows is whether these conditions have been aggravated, exacerbated, deteriorated or even resulted from employment within the definition of s 4 and s 4(b)(ii) of the 1987 Act. No claims for consequential conditions were made.
I have carefully examined the evidence. In paragraph 26 of his statement, the applicant states he experienced pain in the right shoulder in 2010 arising from the hard and heavy duties as a NSW Police officer. The notes of the Lennox Head Medical Centre and specifically the presentation in May 2010 have been repeated in full in paragraph 23 above and isolate injury/symptoms to the effects of “onset after bowling in cricket and lifting a lot of weights”. The entry is silent on any work relationship. Scrutiny of the records confirms no complaints relating to the shoulders arising from any work related situation either discrete injury, nature and conditions/disease aggravation or even consequential.
In assessing the claim, Dr Wadley adopted the applicant’s statement. Her failure to engage with the contemporaneous evidence (which has shown the applicant’s memory of events to be unreliable) significantly erodes the probative value of her opinion. I have given it little weight for this reason.
Likewise, there are no work related complaints in contemporaneous clinical notes pertaining to the knees. There is reference to a popliteal cyst for which aspiration was recommended but this was not reported as being related to employment.
I acknowledge authorities indicate care should be taken not to place too much weight on the clinical notes of treating doctors, given their primary concern with treatment which could possibly explain the lack of recorded complaints to the upper and lower limbs arising from any work related event.[20] I find that this is not the case in this matter. I find the notes of the Lennox Head Medical Centre to be thorough. The applicant regularly attended the practice and the practitioners have carefully recorded a number of work and non work related medical conditions in great detail, taking necessary referral action and ordering investigations as required. It beggars belief that the doctors would not record any contemporaneous symptoms of shoulder or knee pains or treatment suggestions in the context of employment circumstances over the years, especially when they had no hesitation in doing so with regards to the right thumb injury, back and psychological complaints (which ultimately resulted in medical retirement/discharge). I find given the level of detail and care taken in his notes and management of the applicant that the records are an accurate reflection of the complaints made by him (prior to litigation). Whilst the applicant has undergone investigations for the shoulders in 2010 and the right knee in 2018, these were unconnected to his employment. As recorded above, the shoulder complaint related to symptoms arising out of personal circumstances (cricket) and the right knee pain was ultimately attributed to a popliteal cyst. The radiological reports demonstrate that there is a degenerative process in both the upper and lower limbs however there is a paucity of medical evidence which prevents a finding that employment circumstances were a contributing factor to the ‘disease’ as required by the 1987 Act. Counsel for the applicant urged me to accept the applicant’s statement that the culture of the Force is to not complain or raise claims with regards to injury and to just “get on with it”. I have in previous cases accepted such an argument but cannot do so in these circumstances because:
(a) the clinical notes in 2010 relating to the onset of upper limb pain (bowling via cricket and heavy lifting) is clearly inconsistent with the applicant’s recall and representation of injury recounted almost 14 years later in his statement. I cannot ignore the well-established case law on the fallibility of memory,[21] which the circumstances suggest to be the case here. I prefer the contemporaneous note recorded by the treating doctor which clearly expresses that upper limb pain occurred in private circumstances;
(b) there is no other complaint of shoulder pain in the clinical notes or records of treatment being sought;
(c) there is no complaint of pain in the knees except when the popliteal cyst was identified and ultimately excised. The development of the cyst was not recorded to be related to employment;
(d) whilst I accept the submissions that police officers generally “just get on with it”, in this factual scenario, the applicant did approach his doctor for assistance for various other work related events. It beggars belief that the doctors would record some work injuries but not others;
(e) the applicant nominates that he was able to access records prior to leaving the Force where he able to bring charges relating to assault on no less than
49-50 occasions (not accounting for less serious assaults). The applicant has failed to provide this evidence in his application which would have assisted his case. The failure to provide the documents, (after confirming their existence) causes me to consider the assaults were unrelated to the claimed injuries.[20] Mastronardi v State of New South Wales [2009] NSWCA 270.
[21] Watson v Foxman (1995) 49 NSWLR 315 at [319].
As indicated above, the applicant carries the onus of establishing on the balance of probabilities that he suffered injury as defined in the 1987 Act to the upper and lower limbs. The content of the standard of proof has been the subject of much judicial discussion and consideration but, for present purposes, it is sufficient to say that I must be satisfied to a sense of actual persuasion or affirmative satisfaction that his case has been made out (Nguyen). It is not necessary that I be satisfied to a degree of medical or scientific certainty but, on the other hand, it will not be sufficient if I am merely satisfied that it is possible that the applicant’s employment caused “injury” of the relevant time.
For the reasons above, I find the applicant has not discharged his onus in establishing injury to the upper or lower limbs, as I am not satisfied to a sense of actual persuasion or affirmative satisfaction that his case has been made out.
Much was said about the applicant’s credibility in this matter. I wish to emphasise that I have no doubts that the applicant has varying ongoing symptoms in his upper and lower limbs, however, I find the evidence does not establish such symptoms arose out of “injury” as defined in the 1987 Act.
SUMMARY
For the above reasons, I make the findings and orders set out on page 1 of the Certificate of Determination
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