Gourlay v The Trustee for Map Investment Trust t/as Poolwerx

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gourlay v The Trustee for Map Investment Trust t/as Poolwerx [2021] NSWPIC 402
APPLICANT:	Angus Gourlay
RESPONDENT:	The Trustee for Map Investment Trust t/as Poolwerx
MEMBER:	Jill Toohey
DATE OF DECISION:	11 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of left tibialis posterior tendon reconstruction; applicant employed as a pool technician; whether applicant fell whilst at the home of a customer; whether applicant injured his left ankle in the fall; whether applicant sustained an injury to which his employment was a substantial contributing factor; whether employment was the main contributing factor to the aggravation of a pre-existing condition; whether applicant gave notice of injury as soon as possible after he became aware of it; whether applicant’s failure to make a claim for compensation within six months is excused by ignorance; Held - finding that applicant gave notice of injury; finding that delay in making claim for compensation excused by ignorance; applicant sustained a personal injury to which his employment was a substantial contributing factor; applicant sustained a disease injury to which his employment was the main contributing factor; no dispute among the doctors that proposed treatment is reasonably necessary treatment of the applicant’s left ankle; respondent to pay the reasonably necessary costs of the proposed treatment.
DETERMINATIONS MADE:	1. The applicant sustained injury to his left ankle arising out of or in the course of his employment with the respondent on 5 November 2018 to which his employment was the main contributing factor. 2. The applicant gave notice of his injury as soon as possible after he became aware of the injury and is not barred from compensation by reason of failure to give notice. 3. The applicant failed to make a claim in accordance with section 261(1) of the Workplace Injury Management and Workers Compensation Act1998. 4. The applicant’s failure to make a claim was occasioned by ignorance which is a special circumstance identified in section 261(4)(a) of the Workplace Injury Management and Workers Compensation Act1998. 5. The proposed tibialis posterior tendon reconstruction in the applicant’s left ankle is reasonably necessary treatment as a result of the injury on 5 November 2018.
ORDERS MADE:	6. The respondent to pay the reasonably necessary costs of, and associated with, the proposed treatment pursuant to section 60 of the Workers Compensation Act1987.

STATEMENT OF REASONS

BACKGROUND

Mr Angus Gourlay (the applicant) claims compensation under section 60 of the Workers Compensation Act 1987 (the 1987 Act) for the cost of a tibialis posterior tendon reconstruction in his left ankle.
Mr Gourlay was employed as a pool technician by The Trustee for Map Investment Trust which trades as Poolwerx (the respondent). He claims he was undertaking a “pool familiarisation discussion” at the home of a customer in East Killara on 5 November 2018 when he fell down a short flight of steps, injuring his left ankle. He claims the proposed treatment is reasonably necessary as a result of that injury.
There is a dispute as to whether the incident on 5 November 2018 occurred and, if so, whether Mr Gourlay injured his left ankle.

An MRI scan in September 2019 confirmed posterior tibial tendinopathy in Mr Gourlay’s left ankle. His treating specialist, Dr Andrew Wines, recommends tibialis posterior tendon reconstruction.
Mr Gourlay had a previous injury to his left ankle in August 2010 when he fell while cross-country running. An MRI in December 2010 revealed posterior tibial tendinopathy.
Mr Gourlay claims that, with treatment, the injury resolved in 2011 and he had no further symptoms until the fall on 5 November 2018 aggravated the condition, leading to the present need for treatment.
The respondent does not dispute that the proposed treatment is reasonably necessary treatment for Mr Gourlay’s left ankle but disputes that it is reasonably necessary as a result of injury on 5 November 2018.
There is a further dispute as to when, if at all, Mr Gourlay gave notice of his injury to his employer. The respondent maintains he failed to give notice as soon as possible after becoming aware of his injury and before he voluntarily left employment with the respondent, and is not entitled to compensation by reason of section 254(1) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act). The respondent maintains that none of the special circumstances in section 254(3) excuses his failure to give notice.
The respondent further says that Mr Gourlay is not entitled to compensation because he failed to make a claim within six months as required by section 264(1) of the 1998 Act, and that his failure is not excused by any reasonable cause.
By dispute notices issued on 21 April 2021 and 14 July 2021, the respondent disputed liability to meet the cost of the proposed surgery. Both notices refer to an injury on 24 August 2018, based on information originally provided by Mr Gourlay. Mr Gourlay has since said that date was an estimate only and was not correct. The respondent accepts that the relevant date of injury in these proceedings is 5 November 2018.
By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (the Commission) on 26 July 2021, Mr Gourlay claims the fall on 5 November 2018 aggravated his pre-existing condition, leading to significant symptoms and ongoing disability. He claims the fall is the main contributing factor to the aggravation, acceleration or exacerbation of the previously asymptomatic condition.

ISSUES FOR DETERMINATION

The respondent does not dispute that the proposed treatment is reasonably necessary treatment for Mr Gourlay’s left ankle; the dispute goes to causation.

The parties agree that the following issues remain in dispute:

(a) whether Mr Gourlay injured his left ankle on 5 November 2018;
(b) whether his employment was a substantial contributing factor or the main contributing factor to any injury;

(c) if so, whether the injury materially contributed to the need for the proposed surgery, and

(d) whether Mr Gourlay is precluded from compensation by reason of sections 254(1) or 261(1) of the 1998 Act.

PROCEDURE BEFORE THE COMMISSION

Parties attended a conciliation/arbitration hearing conducted by telephone on 23 September 2021. Mr Gourlay was represented by Mr Ty Hickey of counsel, instructed by Mr Kye Bruce. The respondent was represented by Mr David Saul of counsel, instructed by Ms Amy Corey.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents;
(b) Reply and attached documents;

(c) Application to Admit Late Documents (AALD) lodged by the respondent and attached document, and

(d) AALD lodged by the applicant and attached document.

Documents attached to both AALDs were admitted into evidence at the hearing without objection.

The evidence includes a Factual Investigation Report dated 5 June 2020 which outlines investigations undertaken to establish the circumstances of the injury and whether
[1] ARD page 35. A copy also appears in the Reply at page 26. Footnotes refer to one or the other.
[2] ARD page 1.
Mr Gourlay notified his employer of the injury[1]. It includes a signed statement by Mr Gourlay dated 2 May 2020, and one by the owner of Poolwerx, Mr Malcolm Price, dated 25 May 2020, as well as emails and text messages between them. Mr Gourlay provided a supplementary statement dated 22 July 2021[2].
Reports and clinical records have been provided by Mr Gourlay’s treating doctors. Reports of independent assessments were provided by Dr Greggory Burrow and Dr Richard Powell.

Oral Evidence

Neither party sought leave to adduce oral evidence or cross-examine any witness.

The incident on 5 November 2018

There was some confusion early in the proceedings as to the date of the claimed injury. According to the Factual Investigation Report, Mr Gourlay “initially reported” the date of injury as 24 August 2018 but said that was an approximate date only. He was not sure of the exact date as he no longer had access to the documentation but his employer would be able to identify the date from records of his attendances at the East Killara address for a “Pool Familiarisation Discussion”, and at an address in St Ives the following day for an “acid wash” procedure.
The Factual Investigation Report shows that Mr Gourlay’s employer had confirmed his attendance at the East Killara property on 5 November 2018 and at the St Ives properties on the following days. Poolwerx invoices provided to the investigator showed that Mr Gourlay attended jobs at the East Killara and St Ives addresses on the dates claimed.[3]
[3] ARD pages 93, 94.

The Factual Investigation Report proceeded on the basis that 5 November 2018 was the relevant date of injury.

Both dispute notices identified the date of injury as 24 August 2018 but the respondent accepts that 5 November 2018 is the relevant date in these proceedings.

In his statement to the investigator[4] Mr Gourlay states that he was conducting a “Pool Familiarisation Discussion” with a customer at an address in East Killara. He was standing with the customer on some steps in the back yard as he was about to leave. As he said goodbye, he turned around and “stepped wrongly off the step” and fell down three or four steps. In doing so, he suffered minor cuts and abrasions to his left leg and knees. There was no defect in the steps, it was “just the way [he] moved”.
[4] ARD page 48.
Mr Gourlay states that he got up slowly and thought he was okay. He thought it was “just a bit of physical injury” and that he would be alright. He finished his last job for the day at an address in St Ives and went home.
Mr Gourlay states that he had a big job next day at another property in St Ives which involved draining and cleaning the pool. His body was so sore from the day before that he could hardly lift his arms and it took him about double the usual time to complete the job. Next day, Mr Price asked him why the St Ives job had taken so long. Mr Gourlay says he told Mr Price about the fall at the East Killara address and that he had trouble lifting up his arms.

Mr Price told the investigator that he had a conversation on 6 November 2018 with Mr Gourlay about why the St Ives job had taken so long. He said Mr Gourlay told him the pool was very deep and his arms were very sore from holding up the brush.[5]
[5] ARD Page 55.
The investigator reported that inquiries had revealed that the person who rented the property in East Killara on 5 November 2018 had left and his whereabouts were unknown. It was therefore not possible to obtain any kind of witness statement.
Mr Gourlay states that he thought at first he had just superficial physical cuts to his knees, legs and arms. He did not see a doctor “for several months” until he started to notice “a constant sprain or pain” in his left ankle. At that point, he went the Woy Woy After Hours Medical Centre.
A progress note dated 24 December 2018 by Dr Daniel Calder shows that he saw
Mr Gourlay for pain in the left ankle. The document does not identify the practice where
[6] ARD page 164.
Dr Calder worked but it appears it was the Woy Woy Medical Centre. Dr Calder noted the pain “started in lateral ankle after a fall about a month previously”. He noted mild swelling over the left lateral ankle and his impression “Ankle sprain likely grade 2”. He noted “Follow up wiuth [sic] regular GP”.[6]

Mr Gourlay usually saw doctors at Hornsby Medical Centre. The clinical records show that Mr Gourlay attended on Dr Justine Hester on 9 November 2018. She recorded that he “had fall on Monday” and “grazes on L leg”. She noted “pain in L shoulder after fall”. She noted that he worked as a pool technician “constantly using hands/arms” and that he was “not keen to claim as work related injury”. She requested an x-ray of his left shoulder. There is no reference to the left ankle.

On 15 January 2019, Dr Peyman Raispouroskouie at Hornsby Medical Centre recorded the reason for visit as “Ankle sprain”. He noted “Ankle sprain 3 month ago; swelling and tenderness; not getting any better. He requested an x-ray and ultrasound of the left ankle.[7]
[7] ARD page 186.
The report of an x-ray on 18 January 2019[8] showed “soft tissue swelling just above the medial malleolus, and diffuse swelling over the lateral malleolus”. An ultrasound showed the left anterior talofibular ligament was ruptured; the anterior tibia fibula ligament was intact. The report concluded there was “rupture of the anterior talofibular ligament, consistent with an ankle injury that was sustained three months ago”.
[8] ARD page 165.

On 22 January 2019, Dr Hester saw Mr Gourlay with the results of the x-ray and the ultrasound. She recorded that he hurt his left leg “3/12 ago, ongoing pain with intermittent [left] lateral side of the ankle” and a mild limp on walking. She referred Mr Gourlay to orthopaedic surgeon, Dr Stuart Riley.[9]
[9] ARD page 187.

As set out below, on 29 January 2019 Dr Riley took a history consistent with Mr Gourlay’s account of a fall on 5 November 2018, and found symptoms consistent with that type of injury.

Mr Gourlay’s poor recollection of dates raises questions about the reliability of his evidence. He first said the subject injury occurred over two months before the date he now claims. He told the investigator he did not see a doctor “for several months” after the fall, when he went to the after-hours practice at Woy Woy. This appears to be a reference to seeing Dr Calder on 24 December 2018, approximately six weeks after the fall.

There is no direct evidence to corroborate Mr Gourlay’s account of the fall. However, his employer has confirmed he was at that address on the day and at the St Ives addresses on the following days. The clinical records and reports document a fall on or around that date and, subsequently, an injury to the ankle from a fall around that time. I am satisfied that the evidence supports the finding that there was an incident on 5 November 2018 as Mr Gourlay claims in which he fell and injured his left ankle.

NOTICE OF INJURY

Section 254(1) of the 1998 Act provides that compensation is not recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after it happened and before the worker has voluntarily left the employment.
Section 254(2) provides that failure to give notice as required is not a bar to recovery if it is found that there are special circumstances as provided by the section.
Section 254(3) provides that each of the following constitutes special circumstances:

“(a)    the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b)     the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c)     the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d)     the injury has been reported by the employer to the Nominal Insurer in accordance with this Act,
(e)     the employer has contravened section 231,
(f)      the injury has been treated in a first aid room at the place of work,
(g)     if the employer is the owner of a mine--the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011.”

Section 254(6) provides that, if the worker was not aware of the injury when it occurred, time starts running when he or she becomes so aware.

Mr Gourlay’s evidence

In his statement to the investigator, Mr Gourlay said he told Mr Price about the fall on the day after it happened when Mr Price questioned him about the time he took on the St Ives job.
Mr Gourlay stated that he thought he had just “superficial, physical cuts” to his knees, leg and arms. He did not see a doctor for several months when he started to notice he had “a constant sprain or pain in [his] left ankle”.
Mr Gourlay says he also had conversations with Mr Price at different times about his “medical condition” and what his doctors were suggesting. He was trying to handle the matter himself but, when it became clear he was going to need surgery, he told Mr Price he was going to “have to go through workers compensation”.[10]
[10] ARD page 153.
Mr Gourlay refers to a text message he sent Mr Price on 27 January 2018 asking permission to attend a medical appointment, and a further message on 29 January 2019 asking whether the matter was covered by WorkCover. He refers to further text messages on 26 April 2019 and 22 May 2019 (see below).
In his supplementary statement, Mr Gourlay rejects the assertion that he failed to notify his employer of his injury. He refers to his conversation with Mr Price about the St Ives job. He recalls that this conversation took place on 7 November 2018 when he attended the PoolWerx office on the day after the St Ives job. He recalls Mr Price was seated at his desk “in a cross-legged fashion” at the back of the store. He says Mr Price “must have noticed the grazes on [his] arms and legs” because he asked what had happened.
Mr Gourlay states that he told Mr Price the St Ives job took so long because he had fallen down the steps at the East Killara job and had trouble lifting up his arms. He disputes
Mr Price’s evidence (below) that he said his arms were sore from holding up the brush while cleaning the pool at St Ives. He says the job was an “acid wash” using a high-pressure cleaner or brush which is very light, and his arms were not sore for any reason other than the fall the day before.

Mr Price’s evidence

In his statement to the investigator, Mr Price disputes Mr Gourlay’s account of their conversation. He recalls the conversation occurred on 6 November 2018 but nothing turns on this. He agrees the St Ives job was on 6 November 2018 and their conversation took place the following day.

Mr Price states that “the first [he] became aware of the injury being claimed” was on 27 January 2019 when he received a text message from Mr Gourlay asking for time off to see an orthopaedic doctor.
It is not clear what Mr Price means by “became aware of the injury being claimed” because he goes on to say there was no mention of the injury on 5 November 2018 being work-related. He says when he asked why the St Ives job took so long, Mr Gourlay’s explanation was that “the pool was very deep and his arms were very sore from holding up the brush”[11].
[11] ARD page 56.

Mr Price states that, on 5 February 2019, he had a meeting at the Turramurra store with retail store managers and service technicians at which they discussed the need for injuries to be reported at a dedicated “WH&S” segment.

Mr Price states that the first notification he received about the ankle injury was in a text message on 26 April 2019 in which Mr Gourlay requested time to see a specialist. Up to that point, Mr Gourlay had not reported an ankle injury and had not completed an injury report.
In the email on 26 April 2019 (below), Mr Gourlay referred to his ankle and said he “may need to start working on a paper trail re work cover”.

Mr Price states that, on 26 September 2019, he received a letter from Dr Riley from which he understood that Mr Gourlay “was looking to have his surgery privately funded with access to his personal and annual leave”[12]. On 2 November 2019, he received an email from
[12] ARD page 59.
Mr Gourlay to advise he had collected “the AFO” he was to wear leading up to the surgery. They discussed that the surgery would be done during the winter season. Mr Gourlay said he needed to establish the date so he could advise his surgeon and his private health insurer.

Mr Price states that, between the first part of 2018, and April 2019 “which was the first date [he] received any notification of any ankle injury”, he had been having discussions with
Mr Gourlay about his work performance and that, if things did not improve, a warning letter would be issued. That part is Mr Price’s evidence is more relevant to the question of when
Mr Gourlay made a claim for compensation, and is considered below.

Mr Price maintains that Mr Gourlay “never at any time indicated that the injury which he alleges occurred at [the East Killara address] was related in any way to a defect in the steps”[13]. It is not clear why Mr Price considered it relevant whether there was a defect on the steps.
[13] ARD page 60.

Emails and text messages

Screen shots show that Mr Gourlay sent a text message to Mr Price on 27 January 2019. He said “the orthopaedic doctor” had an appointment available that week and wanted to confirm his attendance. He asked Mr Price if this was okay. Mr Price responded “Yes of course”.[14]
[14] ARD page 140.
On 29 January 2019, Mr Gourlay wrote:
“They wanted to know if my injury happened at work and want to know the insurance details. Is this covered by work cover?”
On 26 April 2019, Mr Gourlay sent a text message asking for time off to take his daughter to hospital. He said:
“in addition to this i will need some time to see my specialist re my ankle in the next couple of weeks.
If the outcome means that i require surgery then i may need to start working on a paper trail re work cover.
[15] ARD page 141.
Will discuss with you on Monday.”[15]

On 3 May 2019, Mr Price sent Mr Gourlay a text message about car parking.[16]
[16] ARD page 141.

On 22 May 2019, Mr Gourlay sent a text message advising Mr Price he had discussed the options with his doctor “re my ankle injury”.[17] He needed to have an MRI scan and possibly an injection. If that did not work he was happy to go on a waiting list for surgery. He stated:
“Want you to know that I really don’t want to make the work cover option a headache for you. This would only work if the customer that was witness to the situation would be willing to sign a stat dec.
[17] ARD page 142.
Nonetheless i would like to know your thoughts regarding the matter”

There is no evidence that Mr Price responded to any of the messages regarding work cover, and he does not suggest that he did.

The next correspondence in evidence is an email from Dr Riley’s office to Mr Gourlay on 26 September 2019 referring to correspondence sent to his general practitioner “which you may wish to forward to your employer”.[18]
[18] ARD page 67.
On 2 November 2019, Mr Gourlay sent Mr Price the email about collecting his “AFO” which was “to ensure that the foot and ankle is seated correctly for both pre & post surgery”. He said he needed to confirm the date of surgery with his specialist and his private health care insurer, and asked when was the most convenient time for this to be done[19]. (This appears to mean the most convenient time for the surgery to be done.)
[19] ARD page 69.
On 9 March 2020, Mr Price sent Mr Gourlay a “first and final warning letter” about his performance and conduct during his employment[20]. It referred to meetings and discussions several times about his unsatisfactory performance, that immediate improvement was required, and that his employment might be terminated if there was no improvement.
[20] Reply page 136.
On 16 March 2020, Mr Price sent Mr Gourlay an email attaching a letter in response to a medical certificate dated 17 March 2020 from Dr Renu at Hornsby Medical Centre certifying Mr Gourlay fit for light duties. The certificate referred to a left ankle injury and that Mr Gourlay was to have surgery on 29 April 2020[21].
[21] ARD page 172.
Mr Price wrote back and asked for a hard copy of the document. He advised of “our support with this non-work related injury”. He set out Mr Gourlay’s available personal and annual leave, and asked for clarification of the surgery proposed for 29 April 2020. He reminded
Mr Gourlay that the performance issues raised in the letter on 9 March 2020 remained active and would need to be addressed at a future time.
On 20 March 2020, Mr Price emailed Mr Gourlay and referred to his request for light duties following receipt of a “medical support letter” on 17 March 2020. Mr Price stated it was not possible to provide light duties and he referred to COVID-19 distancing requirements.[22]
[22] ARD page 71.
Mr Gourlay replied by email the same day. He referred to Dr Riley’s email dated 27 October 2018 [sic][23]. He said he needed to supply accurate information to his “Super fund company” regarding an accident report. He referred to his conversation with Mr Price about the St Ives job. He stated (verbatim):
“I had cuts to my body but after falling off a step in the previous day after a pool familiarisation discussion with the customer.
I had no idea that i had injured my foot, nor did i know that I needed to report anything.
There were no signs in the shop that i was required to report an injury.
Your response to me was that it was not within a 48 reporting period.
[23] This appears to be a typographical error. It must mean 2019.
Also I had no I was unaware that I had sustained an ankle injury at the time until many months after that that the ankle pain was due to that particular fall off the step at [the East Killara address].”

In the same email, Mr Gourlay referred to Mr Price not answering his correspondence and he rejected the assertion that he had a “non work related injury”.
On 25 March 2020, Mr Price responded by letter. He said Mr Gourlay had never reported that the injury to his ankle was work-related; Mr Gourlay had kept him informed of steps taken to treat his injury but had not indicated that he injured his ankle in the course of his employment. Mr Price referred to Mr Gourlay’s correspondence about his private health cover[24].
[24] ARD page 76.
On 24 April 2020, Mr Gourlay sent an email advising he had “actioned” a WorkCover claim which, he said, Mr Price should have actioned. He attached an initial certificate of capacity form and iCare claim form[25]. He repeated his account of their discussion following his fall.
[25] Reply page 161.
On 27 and 29 April 2020, Mr Gourlay sent emails disputing various matters raised in the first and final warning letter[26].
[26] ARD page 83.
On 2 May 2020, Mr Gourlay advised by email that his surgery had been delayed by
COVID-19. He disputed that he had not reported a work-related injury to his ankle. He referred to text messages including the one referring to the customer as witness to the accident. He said Mr Price did not respond or refute the messages. He said the only reason he decided to use private health care insurance was that he knew Mr Price had not reported the matter “to work cover” and was unwilling to help with his claim[27].

Submissions
[27] ARD page 78.

Mr Saul submits that, if I do not accept there was a conversation on 7 November 2018 about Mr Gourlay’s injury, then notice was not given as soon as possible after Mr Gourlay become aware of his injury. Mr Saul submits that Mr Gourlay’s evidence cannot be believed and I would prefer Mr Price’s evidence.
As to any special circumstances for the purposes of section 254(3), Mr Saul submits that the respondent is prejudiced by the delay because the occupier of the property in East Killara had left and it was not possible to verify Mr Gourlay’s account. Further, Mr Gourlay cannot rely on ignorance, mistake or other reasonable cause because he maintains he did give notice.
Mr Saul submits that none of the other special circumstances in section 254(3) applies in this case.
Mr Hickey submits that Mr Price’s statement is brief and internally consistent. Mr Price maintains he was never aware of the workplace incident while also saying Mr Gourlay never indicated that his injury was related in any way to a defect in the steps. Mr Price accepts there was a conversation but denies there was any reference to an injury.
Mr Hickey submits that notice of injury may be given orally or in writing. The respondent has not dealt with the text messages and their references to seeing doctors and to WorkCover which undermine Mr Price’s claim that he had no knowledge of the injury. He did not reply to those messages and has not explained why not.
Mr Hickey submits that Mr Gourlay gives direct evidence about the fall and his conversation with Mr Price the following day. Mr Price confirms he was at the address in East Killara on the date claimed. His claim that he did not know about the injury until he received the WorkCover certificate cannot be believed.
Mr Hickey submits that Mr Price’s evidence cannot be believed and I would prefer
Mr Gourlay’s evidence.

Consideration

Mr Gourlay bears the onus of establishing the necessary elements of his claim. The standard is on the balance of probabilities, meaning I must feel an actual persuasion of the matters necessary to establish his claim: Department of Education and Training v Ireland[28] and Nguyen v Cosmopolitan Homes[29].
[28] [2008] NSWWCCPD 134.
[29] [2008] NSWCA 246.

Section 255(1) of the 1998 Act provides that a notice of injury must state the name and address of the person injured, the cause of the injury in ordinary language, and the date on which it happened. Notice may be given orally or in writing: s 255(2).
As I understand Mr Gourlay’s evidence, he does not claim to have told Mr Price about the ankle injury in their conversation on 7 November 2018. Rather, he claims he told Mr Price about the fall and that his arms were sore. He says Mr Price must have noticed the grazes on his arms and legs because he asked what had happened.
There is no dispute that there was a conversation on 7 November 2018. Mr Gourlay’s statement indicates he had a clear recollection of where their conversation took place and what was said. Mr Price claims similar clear recollection, if not in quite the same detail.
I have to decide between conflicting versions.
As already noted, aspects of Mr Gourlay’s evidence raise questions as to its reliability. His evidence therefore has to be approached with some caution. On the other hand, questions are raised by Mr Price’s evidence, in particular when he says he was actually aware of an ankle injury. He states he first became aware of the injury being claimed on 27 January 2019. He also says the first notification he received was on 26 April 2019.
For the reasons set out above, I accept that Mr Gourlay fell on the steps on 5 November 2018 as he claims. Insofar as there is doubt about what was said in the conversation with
Mr Price, I consider that Mr Gourlay is entitled to the benefit of the doubt.
I find that Mr Gourlay told Mr Price on 7 November 2018 that he had hurt himself in the fall. He does not claim that he told Mr Price about an injury to his ankle in that conversation. I accept that he was not aware of an injury to his ankle at that time.

Dr Hester’s note on 9 November 2018 supports Mr Gourlay’s claim that his arms were sore after the fall, although I note he does not say in his statement that he thought he had injured his shoulder. He says he did not become aware of the injury to his ankle until “several months” later when he saw the doctor at Woy Woy. He saw Dr Calder complaining of ankle pain on 24 December 2018. That appears to be the earliest date that he was aware of an injury to his ankle.
Dr Raispouroskouie’s note on 15 January 2019 refers to ankle sprain “3 months ago”.
Dr Riley’s report on 29 January 2019 links the injury to the ankle with the mechanism of injury claimed by Mr Gourlay in the fall on 5 November 2018.
It is reasonable to infer that Mr Gourley became aware of the injury to his ankle from the fall sometime between 24 December 2018 and 29 January 2019 when he saw Dr Riley.

“As soon as possible” has not been interpreted in any decision to mean “immediately”. In the context of beneficial legislation, the phrase has generally been taken to mean within a reasonable time[30].
[30] Astle v Toll Pty Limited [2007] NSWWCCPD 112
Mr Gourlay relies on his evidence about the conversation with Mr Price on 7 November 2018 and text messages on 29 January 2019, 26 April 2019 and 22 May 2019 referring to WorkCover.
Mr Price does not dispute receiving Mr Gourlay’s text messages. His evidence does not explain why he did not respond to the messages asking about WorkCover.

Considering all the evidence, I am satisfied, on the balance of probabilities, that Mr Gourlay told Mr Price on 7 November 2018 about the fall on 5 November 2018, that he told Mr Price that the job the following day took longer than usual because his arms were aching from the fall, that he became aware of the injury to his ankle around 24 December 2018, that he was aware by 29 January 2019 that it was due to the fall, and that he made Mr Price aware of this by 29 January 2019. I find that notice was given within a reasonable time after he became aware of the injury and that his claim is not barred by reason of delay.

MAKING THE CLAIM

Section 261(1) of the 1998 Act provides that compensation cannot be recovered unless a claim for compensation has been made within six months after the injury or accident happened.
Section 261(4) provides, relevantly, that failure to make a claim within the period required is not a bar to recovery if the failure was occasioned by ignorance, mistake, absence from the state or other reasonable cause, and the claim was made within three years after the injury or accident happened.
If a worker first becomes aware he or she has received an injury after it was received, time runs from when the worker first became so aware: section 261(6).

Mr Gourlay’s evidence

In his supplementary statement, Mr Gourlay states that, prior to this episode, he had no experience with the workers compensation system. He understood that his initial verbal report of the fall and his subsequent correspondence discharged his obligation. He was not aware of the process for lodging a claim or that it was for him to do so. He believed it was for an employer to lodge a claim. He states there were no signs, directives or policies in place at PoolWerx that explained the process or how to report an injury or lodge a claim. He refers to his text messages to Mr Price.
Mr Gourlay states that, after receiving Mr Price’s correspondence in March 2020 alleging the injury was not work-related, he spoke to his parents who suggested he call WorkCover for advice. He made inquiries and established that WorkCover was no longer an entity and he spoke to someone at the State Insurance Regulatory Authority who directed him to iCare; that was when he found out for the first time that he could lodge a claim himself.
Mr Gourlay states he believes he lodged a claim by phone. He was given a claim number. He provided the date of 24 August 2018 because he was not sure of the actual date and did not have relevant documents. iCare advised him to get his doctor to complete a certificate of capacity. He was not aware of this requirement until then. On 5 April 2020, he saw Dr Renu, who provided an initial certificate of capacity as directed by iCare.
Mr Price states that, between early 2018 and April 2019 when he first received notification of an ankle injury, he had been having discussions with Mr Gourlay about his work performance. On 9 March 2020, they again discussed his performance and Mr Price issued him with a first and final warning letter and suggested they meet again at the end of April to discuss his work performance[31]. They had a further discussion on 11 March 2020 after it became apparent that Mr Gourlay had breached company policy in the relation to the use of company equipment.
[31] Reply page 136.
On 12 March 2020, Mr Price received a text message from Mr Gourlay attaching a WorkCover medical certificate certifying him unfit for duty on 12 and 13 March 2020. Mr Price says this was the first time a surgery date had been mentioned[32].
[32] This certificate does not appear to be included in the documents.

Submissions

Mr Saul submits that Mr Gourlay’s evidence is that he was aware of his injury on the day of the fall. He made his claim in March 2020. Even if he was not aware of his injury sufficient to make a claim, Dr Riley’s report of 29 January 2019 shows that he was aware by then of his injury.
Mr Saul submits that Mr Gourlay cannot rely on ignorance or any other reasonable cause for the delay in making his claim. A clinical record on 4 May 2017 shows he saw a doctor with forms for his lawyer in relation to a motor vehicle accident and medical certificate[33], indicating he was familiar with claiming compensation. He was proceeding with surgery for his ankle through his private insurer.
[33] ARD page 182.
Mr Saul submits that, even if, as he claims, Mr Gourlay did not become aware of the injury until some months later, that does not explain why it took more than a year to make the claim.
Mr Saul submits that the evidence suggests that Mr Gourlay was motivated to make a claim because his performance was being questioned and his job was at risk. Mr Saul submits it is not necessary to consider the truth of the allegations about his performance but the timing suggests it was the motivating factor.
Mr Hickey submits that Mr Gourlay has provided substantial evidence in his statement of his lack of understanding of the workers compensation system and the steps he took as soon as he learned what he needed to do. He asked Mr Price if his injury should be a WorkCover matter and he referred to needing a “paper trail”. His claim of lack of knowledge of the system should be accepted. The respondent’s suggestion that the motor vehicle accident certificate indicates knowledge of the workers compensation system should be rejected; that inference cannot be drawn.

Consideration

According to the dispute notice issued on 21 April 2021, Mr Gourlay made his claim on
3 April 2020. There is no question this was outside the statutory period, even allowing that he was not aware of his injury until sometime in January 2019.
Mr Gourlay relies on his ignorance of the workers compensation system and his obligation to make a claim.
Dr Hester’s note on 9 November 2018 that Mr Gourlay was “not keen to claim as work related injury” suggests that Mr Gourlay may have known it was for him to make a claim; he was at least aware of the potential for a claim. Against that is his text message to Mr Price on 29 January 2019 asking if the matter was “covered by work cover” which suggests he did not understand how the system worked. No obvious reason for his question presents itself other than ignorance. His further email on 26 April 2019 that he “may need to start working on a paper trail re work cover” and his text message on 22 May 2019 that it “would only work if there was a witness” tend to support this conclusion.
The lack of any evidence of follow up by Mr Gourlay to these inquiries, and of any response from Mr Price, is curious. It seems surprising that Mr Gourlay did not follow up his inquiries and equally surprising that Mr Price did not ask why he was raising WorkCover. However,
I cannot draw any conclusions on either side.

Mr Saul submits that the clinical record showing that Mr Gourlay made a claim in relation to a motor vehicle accident some years earlier suggests awareness of the claims process. However, do not think it can be inferred from that note that Mr Gourlay was familiar with the workers compensation system. Nothing is known of the circumstances of that claim.

I agree, as Mr Saul submits, that the timing of the issues raised by Mr Price about
Mr Gourlay’s performance raises questions as to whether it was the motivating factor in contacting iCare and making his claim. However, I do not think it can be concluded from the coincidence of timing that he was aware of the notice requirement.

Mr Gourlay’s claim that he was ignorant of the system is plausible. I accept that he understood he had fulfilled his obligation in telling Mr Price about the fall and, later, about ankle injury. I accept that, once the matter was clearly in dispute with Mr Price, he sought advice from his parents and then from iCare, and made his claim.

I find that Mr Gourlay’s failure to make a claim within the statutory period is excused on the ground of ignorance.

The 2010 injury

There is no dispute that Mr Gourlay suffered an injury to his left ankle in 2010.

In his statement to the investigator and his supplementary statement, Mr Gourlay said he had a fall in August 2010 while cross country running. An x-ray showed no fracture. In December 2010, he saw orthopaedic surgeon, Professor Kuo, who recommended an MRI. The MRI revealed tibialis posterior tendinopathy. Dr Kuo recommended conservative treatment and a boot.
In January 2011, the injury was resolving and Dr Kuo recommended Mr Gourlay wean off the boot. Between March 2011 and May 2011, he underwent a day rehabilitation program. On 3 May 2011, he was reviewed by Dr David Prendergast, rehabilitation physician, by which time the ankle was no longer symptomatic and Dr Prendergast certified him fit to return to pre-injury duties.
Mr Gourlay states that he returned to sporting activities including cross-country running, martial arts and weight training, and he went backpacking overseas. He had no problems with his ankle between 2011 and 5 November 2018.
Reports from Dr Kuo and Dr Prendergast in 2010 and 2011 are in evidence together with reports of various scans.

The respondent does not dispute that Mr Gourlay sustained an injury to the left ankle in 2010 similar to that now claimed. Mr Saul submits that the clinical records since then are incomplete as the general practitioners’ records date from 2016.

According to a report from Dr Andrew Wines (see below), Mr Gourlay presented with a 10 year history of pain and deformity in his left ankle. Mr Gourlay says this history is incorrect. He refers to his own evidence and the absence of any medical evidence of symptoms continuing after 2011.
Mr Hickey submits that I would accept that Dr Wines’ report should be read as taking a history of the 2010 injury which then resolved, and of further injury in 2018. Considering all of the evidence and that this the only suggestion of any ongoing symptoms after 2011, I accept that submission.
It is true that the medical evidence ends in 2011 and the clinical records start again from 2016. However, there is no evidence to suggest Mr Gourlay had continuing problems with his left ankle in the meantime. There is no reference to the left ankle until Dr Calder’s note of 24 December 2018. I accept Mr Gourlay’s evidence that he resumed work and sporting activities and had no further problems with his left ankle until around the end of 2018.

The 2018 injury

In addition to the evidence already referred to, the following evidence is before the Commission.

General practitioner’s records

Records from Hornsby Fountain Medical Centre date from 4 February 2016[34]. The first reference to a fall is on 9 November 2019 when Dr Hester noted pain in the left shoulder after a fall. Her note indicates, although not in clear terms, that it was a work injury[35].
[34] ARD page 180.
[35] Paragraph 24 above.
The first reference to Mr Gourlay’s ankle is in Dr Calder’s note of 24 December 2018[36]. All other general practitioners’ notes are from Hornsby Fountain Medical Centre.
[36] Paragraph 25 above.
On 15 January 2019, Dr Raispouroskouie recorded “Ankle sprain 3 month ago; swelling and tenderness; not getting any better”. He requested an x-ray and ultrasound of the left ankle.
The report of the x-ray on 18 January 2019[37] showed “soft tissue swelling just above the medial malleolus, and diffuse swelling over the lateral malleolus”. The ultrasound showed the left anterior talofibular ligament was ruptured; the anterior tibia fibula ligament was intact. The report concluded there was rupture of the anterior talofibular ligament, consistent with an ankle injury that was sustained three months ago.”
[37] ARD page 165.
On 29 January 2019, Dr Amili Rahman referred Mr Gourlay to physiotherapist, Narelle Veverka, noting he was under the care of Dr Riley regarding a left ankle sprain and that a course of physiotherapy had been recommended.
On 14 February 2019, Ms Veverka reported that Mr Gourlay initially presented on 6 February 2019 saying he had fallen over a step and felt immediate pain in the region of the left ankle but “did not receive any injury assessment at the time”. He reported ongoing pain, swelling and stiffness since. She noted the results of the x-ray and ultrasound. She outlined the treatment she had commenced and which she planned to continue.

Dr Riley’s reports

On 29 January 2019[38], Dr Riley reported to Dr Hester that Mr Gourlay said he fell heavily “towards the end of October last year” while working on a job at Killara. He fell heavily, injuring his left shoulder and suffering numerous abrasions to his left leg. He injured his left ankle in the fall but was not aware of it acutely. However, since then there had been swelling over the lateral aspect and intermittent discomfort which had been slow to settle.
[38] ARD page 167.
Dr Riley referred to Mr Gourlay’s history of left midfoot injury in approximately 2010 after which his symptoms settled. He set out his findings on examination and noted the x-ray and ultrasound. He concluded that Mr Gourlay had suffered an injury to the left ankle and there was now an element of hind foot stiffness and capsulitis. He recommended physiotherapy and an MRI if the foot remained stiff.
On 22 May 2019, Dr Riley reported that neither physiotherapy nor Celebrex had made any significant difference and he had referred Mr Gourlay for an MRI.[39]
[39] ARD page 168.
The report of the MRI on 5 September 2019 confirmed posterior tibial tendinopathy with signs of posterior tibial tendon dysfunction.[40]
[40] ARD page 169.
On 25 September 2019, Dr Riley reported to Dr Hester that Mr Gourlay had developed stage IIB tibialis posterior tendinopathy of his left hind foot and midfoot which he felt would require surgery.[41]
[41] ARD page 170.

Dr Wines’ reports

Since Dr Riley’s retirement in early 2021, Mr Gourlay has been under the care of Dr Wines, orthopaedic surgeon. Reports dated 23 March 2021 and 20 April 2021 from Dr Wines are in evidence[42].
[42] ARD pages 173, 176.
On 23 March 2021, Dr Wines reported that Mr Gourlay presented with a 10 year history of pain and deformity in his left ankle. His symptoms commenced following inversion injury while cross country running. He sustained an inversion injury when he fell from a step two years ago, since when his pain had increased. Dr Wines noted the MRI in September 2019. He said Mr Gourlay had signs of relatively advanced tibialis posterior tendon dysfunction and he had arranged for a further MRI.[43]
[43] ARD page 173.
The report of an MRI on 31 March 2021 is in evidence.[44] On 20 April 2021, Dr Wines reported that the MRI scan confirmed tibialis posterior tendinosis with spring ligament degeneration and degenerative changes in the cuboid cuneiform articulation. He said
[44] ARD page174.
[45] ARD page 176.
Mr Gourlay had reached the stage where he would benefit from reconstruction of the tibialis posterior tendon. He referred to the risks of surgery which he had discussed with Mr Gourlay who wanted to proceed.[45]

Dr Powell’s reports

Dr Powell saw Mr Gourlay for assessment on 23 September 2020.[46] He took a history that
[46] Reply page 14. Mr Gourlay told Dr Powell the fall was on 24 August 2018 when undertaking a familiarisation session at a client’s premises. This appears to be the source of the respondent’s original understanding as to the date of injury.
Mr Gourlay fell down a short flight of stairs, sustaining multiple superficial impressions. He was not aware of any specific injury to his ankle until several weeks later when he became aware of pain over the lateral aspect.
Dr Powell referred to a previous injury in 2016 when Mr Gourlay was cross country running and to treatment from late 2018. There is no dispute that Dr Powell was referring to the 2010 injury. Nothing turns on this. He reported his findings on examination. He said Mr Gourlay was “the most compliant and cooperative client and there was “no suggestion of overreaction or exaggeration”.
As to diagnosis, Dr Powell said Mr Gourlay was injured in a fall at work on 24 August 2018 and subsequently developed some pain over the lateral aspect of the ankle. Further investigations revealed evidence of lateral ligament injury.
Dr Powell said it was reasonable to conclude that Mr Gourlay sustained a minor injury in the fall at work. However, there was insufficient evidence to conclude that his current left foot condition was related to that incident. Mr Gourlay was not aware of any specific injury to the left foot or ankle at the time, and his symptoms did not develop until several weeks later and were on the lateral aspect.

Dr Powell said the diagnosed injury was not consistent with the mechanism of injury. There was not sufficient evidence to conclude employment was the main contributing factor to the development of his current symptoms which related to the tibialis posterior tendon dysfunction “which most likely represents a pre-existing condition”.
Dr Powell considered the surgery proposed by Dr Riley was reasonably necessary for the management of Mr Gourlay’s ankle condition but not on the basis of injuries sustained in the course of his employment.

In a supplementary report dated 13 September 2021[47], Dr Powell confirmed his diagnosis of left tibialis posterior tendon dysfunction which was a pre-existing condition. The available evidence indicated that Mr Gourlay sustained a soft tissue injury to the ankle in the workplace incident in November 2018. Mr Gourlay said he was aware of some lateral ankle pain at the time of the fall, but subsequent investigation and treatment was directed to the left shoulder. Dr Powell said the first entry in the records referring to ankle sprain was on 15 January 2019. His opinion was unchanged that there was not sufficient evidence to conclude that Mr Gourlay’s employment was the main contributing factor to the “permanent aggravation” of the disease process.
[47] Respondent’s AALD page 1.
Dr Powell confirmed his opinion that the surgery proposed by Dr Wines was “entirely appropriate, reasonable and necessary” for the management of the underlying disease process but not on the basis of the minor soft tissue injury.

Dr Burrow’s reports

Dr Greggory Burrow saw Mr Gourlay for assessment on 22 June 2021[48]. He had Dr Kuo’s reports from 2010 and 2011, general practitioners’ records, investigative scans from 2019, reports from Dr Riley and Dr Wines, and from Dr Powell.
[48] ARD page 9.
Dr Burrow took a history of the 2010 injury. He noted Dr Kuo’s confirmation of tibialis posterior tendon injury and that surgery was an option if symptoms persisted. He noted that Mr Gourlay said the ankle settled completely, he returned to normal work, and resumed sporting activities.
Dr Burrow took a history of the fall on 5 November 2018, that Mr Gourlay suffered abrasions to his knees and arms “but had marked left ankle-foot pain” which he thought would get better because it was just a sprain. He had increasing problems over the following weeks and attended the medical centre in Woy Woy.
On examination, Dr Burrow found “prominence of the tibialis posterior insertion, which was locally tender all along the tendon, and the tibialis posterior function was weak at MRC4”.
Dr Burrow diagnosed left foot tibialis posterior dysfunction and tendinopathy, with fixed plantar various deformity. He said the fall at work on 5 November 2018 represented a significant aggravation of a pre-existing injury which at that time was asymptomatic. He said there was “no frank injury, but there was an aggravation”.
Dr Burrow said it was possible that Mr Gourlay may have developed symptoms of disability from a symptomatic tendinosis at a similar time, or some stage in his life, had it not been for the work incident. However, it was “very clear” that the work incident led to the current symptoms and presentation and, specifically, to the need for surgical intervention now. The surgery proposed by Dr Riley and Dr Wines was reasonably necessary.

Dr Burrow noted Dr Powell’s diagnosis and his agreement with the treatment recommended, but that the injury was not consistent with the mechanism of injury. Dr Burrow disagreed and said it was “quite clear” that Mr Gourlay had a “traumatic tripping/falling incident in November 2018” which led to aggravation of pre-existing pathology and recurrent symptoms which had continued to date.
Dr Burrow said he agreed with Dr Powell that the current injury was “not entirely related” to the workplace incident, but it aggravated the previously asymptomatic disease and that aggravation continued. It was the main contributing factor to Mr Gourlay’s current symptoms.
Dr Burrow said he agreed with Dr Powell that Mr Gourlay “related his history in a reliable and consistent fashion”.
In a supplementary report dated 21 September 2021[49], Dr Burrow referred to reports from
[49] Applicant’s AALD page 1.
Dr Kuo and Dr Prendergast, and Mr Gourlay’s supplementary statement that the ankle was completely asymptomatic and he had no significant disabilities between 2011 and 2018. He disagreed with Dr Powell that the current left ankle presentation and need for surgery were a continuation of the pre-existing clinical problem from 2010.
Dr Burrow said he and Dr Powell agreed as to diagnosis and treatment but they disagreed as to attribution. The absence of any symptoms, disability, investigations or treatment from 2010 to 2018, led him to the conclusion that the work event of 2018 was significant, and that symptoms, investigations and consultations from that time were as a result of the trauma that occurred in the fall. He concluded that “the work event that occurred on this day was the significant, principal and main factor leading to the current presentation”. Any non-work factors were minimal or insignificant.

SUBMISSIONS

Submissions were recorded and the transcript is available. The following is an outline of the main points.

The respondent’s submissions

Mr Saul submits:
(a)    there is no dispute that Mr Gourlay suffered injury to his left ankle in 2010. The condition diagnosed this time is identical, and the surgery the same as that considered by Dr Kuo as an option;
(b)    the clinical picture between 2011 and 2017 is incomplete;
(c)    Mr Gourlay gives inconsistent accounts of the fall on 5 November 2018. In his supplementary statement he said he felt pain in his ankle at the time of the fall but thought it was a simple sprain that would resolve[50]. There was no mention when he saw Dr Hester on 9 November 2018 of ankle pain. He told Mr Price he had “no idea” he had injured his foot[51]. He told Dr Powell he was not aware of any specific injury at the time;
[50] ARD page 2.
[51] Email dated 20 March 2020, Reply page 70.

(d) even if I accept there was an incident on 5 November 2018, I would not accept Mr Gourlay injured his left ankle. Dr Calder’s note is acknowledged but it gives no indication of causation;

(e) none of the treating evidence grapples with causation as Dr Powell does;

(f) even if I accept there was some form of injury, section 9A requires that employment be a substantial contributing factor. With reference to the factors in section 9A(2), Mr Gourlay was not actually working when he fell; the injury or similar injury would have happened anyway, regardless of whether he was at work or in that employment; further, he had significant prior condition;

(g) section 9A(3) provides that employment is not to be regarded as a substantial contributing factor merely because an injury arose out of or in the course of employment; the causal connection must be “real and of substance”: Badawi v Nexon Asia Pacific Pty Ltd[52];
[52] [2009] NSWCA 324 (Badawi)

(h) if the injury is regarded as an aggravation, employment must be the main contributing factor, the test of which is more stringent than section 9A: AV v AW[53];

(i) Dr Powell was prepared to accept that might have been a minor injury at the time but it had resolved. His evidence is to be preferred to that of Dr Burrow who focused on the claim that Mr Gourlay was symptom-free prior to the incident and concluded there must have been an aggravation, and

(j) Mr Gourlay bears the onus. Even if I accept he suffered injury by way of aggravation of the pre-existing condition, I must be satisfied his employment was the main contributing factor. Mr Gourlay cannot discharge the onus and his claim must fail.

[53] [2020] NSWWCCPD 9

The applicant’s submissions

Mr Hickey submits:

(a) Mr Gourlay’s claim is pleaded as disease injury within the meaning of section 4(b)(ii) of the 1987 Act but it can equally constitute a personal injury within the meaning of section 4(a): Zickar v MGH Plastic Industries Pty Ltd[54];
[54] [1996] HCA 31; 187 CLR 310 (Zickar)

(b) the evidence is clear that Mr Gourlay injured his left ankle in 2010. Dr Kuo’s report on 27 January 2011, five months post-injury, shows his symptoms were resolving; and Dr Kuo would review him and consider surgery if they returned. The respondent’s submission that the identical surgery is now proposed should be rejected; there is no evidence to support that contention;

(c) Dr Prendergast’s report on 3 May 2011 shows Mr Gourlay had recovered from his injury;

(d) the clinical records start again on 4 February 2016 and continue to the date of injury. There is no reference in any consultation throughout that time to any problem with the left ankle. He did not return to see Dr Kuo. There can be no doubt that he had no further pain or discomfort in the ankle until late 2018;

(e) as to what occurred on 5 November 2018, there is a clear, contemporaneous report of damage to Mr Gourlay’s left leg in Dr Hester’s note on 9 November 2018 at which time Mr Gourlay did not realise he had sprained his ankle. The respondent’s contention that he did not report his injury until 15 January 2019 is not correct; he saw Dr Calder on 24 December 2018 complaining of ankle pain, and Dr Calder noted mild swelling and ankle sprain;

(f) the scans on 15 January 2019 confirmed rupture consistent with ankle injury three months previously;

(g) by 29 January 2019, Mr Gourlay had seen Dr Riley who took a detailed history consistent with Mr Gourlay’s evidence that he was not aware acutely of injury at the time. The history given by Mr Gourlay in his statements and to the doctors is internally consistent, that he had pain which did not get better and he eventually saw a surgeon;

(h) applying the common sense test in KooragangCement Pty Ltd v Bates[55], I would find that Mr Gourlay injured his ankle in the fall at work and has continued to suffer symptoms since;
[55] 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang)

(i) Dr Burrow found there was an aggravation of a pre-existing condition and clear need for surgery. He considered Mr Gourlay’s employment the main contributing factor to the aggravation. He and Dr Powell agreed in all respects except as to attribution;

(j) Dr Powell accepted Mr Gourlay suffered injury to his ankle in the fall and found he had sustained an aggravation of his underlying condition and had pain since. He gives no explanation for his view that the injury had resolved;

(k) Dr Powell does not explain why he did not think Mr Gourlay’s employment was the main contributing factor to the aggravation when there is no other explanation suggested;

(l) with respect to section 9A(2), Mr Gourlay’s employment was the reason he was at the East Killara address. Mr Hickey relies on Badawi and Ryan v Regional Imaging Pty Ltd[56] and submits that I would be satisfied as to section 9(A);
[56] [2017] NSWWCCPD 48

(m) I would also be satisfied that Mr Gourlay’s employment was the main contributing factor to the aggravation of his pre-existing condition. Mr Hickey relies on AV v AW[57]. No other contributing factor has been identified;

(n) on either test, whether of substantial contributing factor or main contributing factor, I would be satisfied that Mr Gourlay satisfies the test of injury in section 4 of the 1987 Act, and

(o) there is no dispute that the treatment proposed is reasonably necessary treatment for Mr Gourlay’s condition.

[57] [2020] NSWWCCPD 9.

Submissions in reply

In reply, Mr Saul submits that the tests of substantial contributing factor and main contributing factor go to the overall incident claimed by Mr Gourlay but he has not established that his employment was the main contributing factor to the aggravation of the claimed condition.
Mr Saul refers to Dr Powell’s conclusion that Mr Gourlay may have suffered a soft tissue injury but there was insufficient evidence to conclude that employment represented the main contributing factor to the permanent aggravation of the pre-existing disease process.

CONSIDERATION

For the reasons set out above, I find that Mr Gourlay injured his left ankle in a fall at a customer’s property on 5 November 2018. The question for determination now is whether he sustained a compensable injury.
Section 4 of the 1987 Act provides:
“In this Act--

"injury" --
(a) means personal injury arising out of or in the course of employment,
(b) includes a
"disease injury" , which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…”

The claim is pleaded as a disease injury, being the aggravation of pre-existing tibialis posterior tendinopathy, within the meaning of section 4(b)(ii). Mr Hickey submitted that the claim was also run as one for a personal injury, both being open in the circumstances, following Zickar. Submissions were made in respect of both.
The respondent submits that Mr Gourlay cannot satisfy either test.

I will first consider the claim of personal injury.
Section 9A(1) of the 1987 Act provides that no compensation is payable in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Section 9A(2) sets out a non-exhaustive list of examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury. They are:

(a)     the time and place of the injury;
(b)     the nature of the work performed and the particular tasks of that work;
(c)     the duration of the employment;
(d)     the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment;
(e)     the worker's state of health before the injury and the existence of any hereditary risks, and
(f)      the worker's lifestyle and his or her activities outside the workplace.

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[58]. “Injury” refers to both the event and the pathology arising from it”: Lyons v Master Builders Association of NSW Pty Ltd[59].
[58] [2000] NSWCC12; 19 NSWCCR 496.
[59] (2003) 25 NSWCCR 422.
The legal test of causation was described by Kirby P (as he then was) in Kooragang as follows:
“What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”

The report of the x-ray and ultrasound on 18 January 2019 confirmed a “rupture of the anterior talofibular ligament, consistent with an ankle injury that was sustained three months ago”. For the reasons already discussed, I find that the rupture occurred in the fall on
5 November 2018. I find that Mr Gourlay sustained an injury within the meaning of section 4(a).
A worker's employment is not to be regarded as a substantial contributing factor to an injury merely it arose out of or in the course of the worker’s employment, or both, or because it resulted in incapacity for work or the need for medical or related treatment, or rehabilitation services: section 9A(3). The causal connection must be “real and of substance”: Badawi.

Whether employment is a substantial contributing factor to an injury is a question of fact and a matter of impression and degree to be decided after consideration of all the evidence: Dayton v Coles Supermarkets Pty Ltd[60] and McMahon v Laguna[61].
[60] [2001] NSWCA 153 at [29].
[61] [2004] NSWCA 164 at [32].
I am not persuaded by the respondent’s submissions that the connection between
Mr Gourlay’s employment and the injury was not “real and of substance”.
Mr Saul submits that Mr Gourlay was not actually working when he fell; that the injury or similar injury would have happened anyway, regardless of whether he was at work or in that employment; and that he had a significant prior condition.
I do not accept that Mr Gourlay was not actually working when he fell from the steps. The evidence is that he attended those premises for the purposes of the “pool familiarisation discussion”. Although there is no direct evidence about what the session involved, by its nature it had to involve discussions with the customer outdoors in the area of the pool. The fact that he was about to leave makes no difference in my view. His employment required him to be outdoors with the customer discussing the pool. I find the connection between his employment and the circumstances of his injury was “real and of substance”.
Mr Saul referred to Mr Price’s evidence that Mr Gourlay never said there with a defect in the steps. It is not clear why Mr Price considered that relevant because Mr Gourlay has not suggested in his evidence that there was a defect, and it does not appear relevant to the matters to be determined.
Dr Burrow acknowledged that Mr Gourlay may have developed symptoms of disability from a symptomatic tendinosis at a similar time, or some stage in his life, regardless of the work incident. On the other hand, Mr Gourlay’s evidence is that he resumed an active life after 2011, continuing cross country running and reasonably strenuous sporting activities. The possibility of a similar injury occurring at any time cannot be discounted but I am not persuaded that, more probably than not, it would have occurred in any event.
In my view, the evidence supports the conclusion that Mr Gourlay’s employment was a substantial contributing factor to his injury.
For the reasons that follow I find that Mr Gourlay suffered a disease injury within the meaning of section 4(b)(ii) to which his employment was the main contributing factor.
In AV v AW, Deputy President Snell said the test of “main contributing factor” in section 4(b)(ii) is more stringent than that of “substantial contributing factor” and requires a more stringent causal connection with the employment. Whereas there may be more than one “substantial contributing factor”, the requirement that employment be “the main contributing factor” permits the existence of only one such factor.

Deputy President Snell considered relevant authorities and said at [77]-[78]:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
There is no dispute among the doctors as to the diagnosis of Mr Gourlay’s condition following the workplace injury. All agreed that his symptoms related to the tibialis posterior tendon dysfunction.
Dr Powell was not persuaded that the condition was related to Mr Gourlay’s employment. Rather, he considered Mr Gourlay sustained a soft tissue injury which had resolved and that the ongoing condition was pre-existing. Considering the history he had of the 2010 injury and the absence of symptoms or treatment since, Dr Powell does not explain why he considered the ongoing condition was pre-existing.
Dr Riley took a history of the 2010 injury after which Mr Gourlay’s symptoms settled. He said Mr Gourlay injured his left ankle in the fall but was not aware of it acutely. Since then, there had been swelling over the lateral aspect and intermittent discomfort which had been slow to settle. He noted that the MRI in September 2019 confirmed posterior tibial tendinopathy with signs of posterior tibial tendon dysfunction and that Mr Gourlay had developed stage IIB tibialis posterior tendinopathy of his left hind foot and midfoot which he felt would require surgery.
Dr Riley did not state specifically that the condition was aggravated by the fall but in my view it is clear from his report that he considered the fall to be the cause of the current condition.
Dr Wines concluded that Mr Gourlay sustained an inversion injury when he fell from the step, since when his pain had increased. The MRI in September 2019 showed signs of relatively advanced tibialis posterior tendon dysfunction and the further MRI in March 2021 confirmed this. Dr Wines did not state specifically that the condition was aggravated by the fall but he noted the increase in symptoms since.
Dr Burrow considered that the fall at work on 5 November 2018 represented a significant aggravation of a pre-existing injury which at that time was asymptomatic. It was “quite clear” that Mr Gourlay had a “traumatic tripping/falling incident in November 2018” which led to aggravation of pre-existing pathology and recurrent symptoms which had continued to date. He considered that the fall was the main contributing factor to Mr Gourlay’s current symptoms.
Dr Burrow disagreed with Dr Powell that the current left ankle presentation and need for surgery were a continuation of the pre-existing clinical problem from 2010. He explained his reasons by reference to the absence of any symptoms, disability, investigations or treatment from 2010 to 2018 and said the fall at work was “the significant, principal and main factor leading to the current presentation.” He said any non-work factors were “minimal or insignificant” although he does not explain what other non-work factors he had in mind.
The test of “main contributing factor” involves an evaluation of the causal factors to the aggravation, both work and non-work related. The respondent has not suggested any factors other than the fall contributed to the aggravation.
In my view, the weight of the evidence from the treating doctors and Dr Burrows supports the conclusion that Mr Gourlay sustained a disease injury by way of aggravation of the pre-existing condition to which his employment was the main contributing factor.

REASONABLY NECESSARY TREATMENT

By section 60 of the 1987 Act, an employer is liable to pay the cost of any reasonably necessary medical or treatment expenses as a result of an injury.
There is no dispute that the proposed treatment is reasonably necessary for the condition in Mr Gourlay’s left ankle. The respondent agrees that, if Mr Gourlay succeeds on injury, it is liable for the cost of the proposed treatment proposed by Dr Wines.
There will be an order as set out in the attached Certificate.

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Citations

Gourlay v The Trustee for Map Investment Trust t/as Poolwerx [2021] NSWPIC 402

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

0

Department of Education and Training v Ireland [2008] NSWWCCPD 134

Nguyen v Cosmopolitan Homes [2008] NSWCA 246

Astle v Toll Pty Ltd [2007] NSWWCCPD 112

[2021] NSWPIC 402

11 October 2021