Grbasliev v Tooheys Pty Limited
[2021] NSWPIC 61
•6 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Grbasliev v Tooheys Pty Limited [2021] NSWPIC 61 |
| APPLICANT: | Vanco Grbasliev |
| RESPONDENT: | Tooheys Pty Limited |
| MEMBER: | Ms Kerry Haddock |
| DATE OF DECISION: | 6 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for permanent impairment compensation and medical expenses as a result of injury to right upper extremity (right shoulder) and lumbar spine; respondent relied on section 261 of the 1998 Act; injury to lumbar spine disputed; injurious event to right shoulder conceded, injury disputed; consideration of Castro v State Transit Authority(NSW) [2000] NSWCC 12; (2000) 19 NSWCCR 496; Held- claim was made within time provided for by section 261 of the 1998 Act; applicant sustained injury to his right shoulder; award for the respondent with respect to the claim for injury to the lumbar spine; medical dispute may not be referred to Medical Assessor as permanent impairment as a result of injury to right shoulder is not greater than 10%. |
| DETERMINATIONS MADE: | 1. That the applicant did not fail to make a claim within the time limits imposed by section 261 of the Workplace Injury Management and Workers Compensation Act 1998. 2. That the applicant sustained an injury to his right upper extremity (right shoulder) arising out of or in the course of his employment with the respondent on 20 November 2013. 3. That there is an award for the respondent in respect of the applicant’s claim to have sustained injury to his lumbar spine arising out of or in the course of his employment with the respondent on 20 November 2013. 4. That the applicant does not have permanent impairment of greater than 10% as a result of injury to his right upper extremity (right shoulder) and the medical dispute may not be referred to a Medical Assessor. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Vanco Grbasliev (Mr Grbasliev) was employed by the respondent, Tooheys Pty Limited (Tooheys), as a brewery technician.
Mr Grbasliev claims to have sustained an injury to his right shoulder and lumbar spine on 20 November 2013, when he fell downstairs at the respondent’s premises.
The respondent completed a document headed “Incident Notification Only” (the Notification) on 20 November 2013. It stated that “Vinc tripped and fell down the stairs from the promenade walkway to the shrink wrapper”. The applicant’s injuries were described as “Multiple Injuries – Unknown at this stage”; and “Multiple body parts”. The Notification stated that it was an “Incident Notification only. No treatment and no time lost”. It was emailed to Allianz Australia Workers Compensation (NSW) Limited (Allianz), the respondent’s workers’ compensation insurer.
The applicant ceased work with the respondent in May 2016 due to a psychological condition that he claimed arose out of or in the course of his employment. He made a claim for this injury on 4 July 2016, stating that he had never previously claimed, even when injured in the workplace.
The respondent disputed liability for psychological injury, and it appears that Mr Grbasliev accepted its decision.
On 1 May 2017, the applicant completed a Worker’s Injury Claim Form (the Claim Form) for the injury on 20 November 2013. He stated that he fell downstairs, approximately six steps, and “lay upside down for over 20 min, could not get up”. His injuries were to the right shoulder, back and right knee.
The applicant’s reason for the delay in reporting the injury was that he “didn’t want to complain and kept on working, no one even checked up on me after I returned to work and no assessment was done”. Dave Mullen (who was then the team leader) and a casual employee called Paul had come to his aid after he fell.
On 10 May 2017, Allianz issued the applicant with a notice pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It disputed that he had sustained injury on 20 November 2013; that his employment had been a substantial contributing factor to any injury; that he was prevented from working as a result of the injury; and that medical treatment was reasonably necessary as a result of the injury.
Allianz noted that the applicant had “lodged a claim” with the respondent alleging injury to his lower back on 20 November 2013 when he fell at work. At the time, he sought no treatment and no certificates of capacity (COC) were issued. The applicant returned to work “with no issues reported”. The “claim remained as a notification only”.
Allianz further noted that it had received an email from the respondent on 2 May 2017, advising that the applicant had received a COC indicating that he was unfit for work due to injuries from 2013.
Allianz referred to the COC and other medical evidence. It concluded that, based on the evidence, the applicant was suffering a pre-existing degenerative condition that was not deemed to be work related. It maintained that his original injury resolved, with no treatment required, and his current symptoms were not related to the incident in 2013.
On 19 October 2017, Allianz issued the applicant with a further notice pursuant to section 74 of the 1998 Act. It referred to his claim for injury to his lower back, bilateral knees and right shoulder.
Allianz disputed that the applicant had sustained an injury; that his employment was a substantial contributing factor to the injury; that he was prevented from working as a result of the injury; and that medical treatment was reasonably necessary as a result of the injury. Allianz referred to medical evidence that it claimed supported its decision.
On 4 April 2018, Allianz issued the applicant with a further notice pursuant to section 74 of the 1998 Act. It disputed that he was entitled to permanent impairment compensation, pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act).
Allianz disputed that the applicant had sustained injury to his right upper extremity (shoulder) or lumbar spine; that employment was a substantial contributing factor to the injury; and that he was entitled to permanent impairment compensation, as he had not sustained a compensable workplace injury.
Notwithstanding that it disputed that the applicant had sustained injury, Allianz maintained that he had “fully recovered” from any injuries related to the incident on 20 November 2013. It also maintained that any pathology in the “claimed body parts is due to long-term constitutional degeneration”. Allianz also relied in this notice on section 4(b) of the 1987 Act, maintaining that the applicant’s employment was not the main contributing factor to his disease injury.
By letter dated 6 March 2020, the applicant made a claim pursuant to section 66 of the 1987 Act for $22,000 in respect of 15% whole person impairment (WPI) as a result of injury to his right upper extremity (shoulder) and lumbar spine.
Allianz issued the applicant with a notice pursuant to section 78 of the 1998 Act on 15 July 2020. It disputed that he had sustained an injury; and that he was entitled to payment of permanent impairment compensation. It acknowledged that “an incident” occurred in 2013, when Mr Grbasliev fell down some stairs, and that Allianz was notified of the incident at the time. The respondent was awaiting a medical certificate, but nothing further was received and “the claim was finalized”.
Allianz set out the history of the matter. It disputed that the applicant had aggravated pre-existing conditions in 2013; and, if he was suffering from a work related aggravation injury, it disputed that he was entitled to lump sum compensation under section 66(1) of the 1987 Act, because his injury had not resulted in more than 10% permanent impairment.
On 16 December 2020, Allianz issued the applicant with a further section 78 notice. It disputed that he was entitled to permanent impairment compensation. In addition to the matters previously notified as being in dispute, Allianz disputed that the applicant had given notice of his injury in accordance with section 254 of the 1998 Act or made a claim in accordance with section 261 of the 1998 Act.
The applicant lodged an Application to Resolve a Dispute (the Application) on 15 December 2020. He claimed that on 20 November 2013, he was taking samples from the promo-line to the shrink wrap room when he fell down approximately 10 to 12 stairs and lay upside down for over 20 minutes, causing injury to his lumbar spine and right shoulder.
The Application claimed weekly benefits from 25 May 2016 ongoing; medical expenses, including the future cost of right shoulder surgery; and permanent impairment compensation of $22,000 in respect of 15% WPI as a result of injury to the applicant’s lumbar spine and right upper extremity.
The respondent lodged its Reply on 14 January 2021. In addition to the matters previously notified as being in dispute, it submitted that the applicant was not entitled to weekly benefits, pursuant to section 52 of the 1987 Act; and was not entitled to medical expenses, pursuant to section 59A(1) of the Act.
At the telephone conference on 21 January 2021, the applicant discontinued his claim for weekly benefits and the cost of future surgery, which he does not plan to undergo.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) Whether the applicant complied with section 261 of the 1998 Act in making his claim;
(b) Whether the injurious event to the applicant’s right shoulder, which the respondent concedes occurred, resulted in a pathological change, or merely a temporary physiological change, and
(c) Whether the applicant sustained an injury to his lumbar spine on 20 November 2013.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for conciliation/arbitration hearing on 11 March 2021. Mr Bill Carney of counsel, instructed by Mr Con Ktenas, appeared for the applicant, who was present. Mr Tom Grimes of counsel, instructed by Ms Jenny Nichols, appeared for the respondent. Ms Tessa Nunn of Allianz also attended.
At the conciliation/arbitration hearing, the respondent withdrew its reliance on section 254 of the 1998 Act.
The parties agree that, if the applicant succeeds in his claim to have injured his right shoulder, but does not succeed in his claim to have injured his lumbar spine, the medical dispute may not be referred to a Medical Assessor, as the assessment of WPI as a result of the injury to his right shoulder is not greater than 10%.
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) The Application and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents dated 28 January 2021 and attachments, lodged by the applicant and admitted by consent, and
(d) Application to Admit Late Documents dated 4 March 2021 and attachments, lodged by the respondent and admitted by consent.
Oral Evidence
There was no application by either party to call oral evidence or cross-examine any witness.
FINDINGS AND REASONS
Evidence of the applicant, Vanco Grbasliev
Mr Grbasliev’s first statement is dated 11 May 2018.
Mr Grbasliev stated that on 20 November 2013, he was taking samples from the promo-line to the shrink wrap room when he fell down approximately 10 to 12 steps and lay upside down for over 20 minutes, injuring his right shoulder, lower back and right knee. He was screaming for help until his team leader and some casual staff came to help lift him slowly.
The applicant was taken to Westmead Hospital and x-rays showed he had a rotation [sic] cuff tear on the right shoulder, which needs to be operated on, and a disc bulge with mild compression of the thecal sac. He was then discharged.
Over the next few months, the applicant had physiotherapy at JB Healthcare Cabramatta, and hydrotherapy, which was continuing. He continued to work with right shoulder and lower back pain.
The applicant was referred to Dr Donnellan, neurosurgeon, whom he saw in July 2017. He organised a lumbar steroid injection, but this did not help with the pain.
The applicant was then referred to Dr Herald, orthopaedic surgeon, in September 2017. He proposed surgery to the right shoulder, which had not been undertaken.
The applicant had continuous right shoulder pain, weakness in his right arm and ongoing stiffness. He also had ongoing pain and stiffness in his lower back. He took Panadeine daily and had physiotherapy and hydrotherapy twice a week.
On 7 November 2019, Mr Grbasliev stated that both his physical and psychological conditions had deteriorated. He undertook walking and stretching exercises in an effort to get better and attended hydrotherapy.
The applicant went to Macedonia between 20 July 2018 and 1 July 2019. He undertook some hot water spa therapy and walked daily. He took with him some medication and bought others. He felt much better psychologically but his physical condition was basically the same. Since returning to Australia, he had again undertaken hydrotherapy. He took Panadol and occasionally Panadeine Forte.
On 27 August 2020, the applicant stated that he never wanted to complain about his injuries to Tooheys in the past, as he felt it was like “my” company. He was loyal and dedicated and didn’t want to burden “my company” with any medical issues, even if it did happen at the workplace.
The applicant stated that he was hurt on 20 November 2013. He returned to work as he thought it would be fine and would just go away. There were many times he could have submitted a claim for compensation, but he did not want to jeopardise his position. He had seen others losing their jobs in the process.
The applicant is “a man with old school values, hard work ethics and loyalty”. He didn’t take any sick leave and kept on working. As soon as he turned 65 the workplace bullying commenced. He was asked to stand down to investigate an allegation he was sleeping on the job. During this time, suddenly all impacted areas of his body “exacerbated due to the body not moving as it used to.”
Tooheys asked the applicant to complete a work health assessment and he was found to be unfit to work. He explained that due to his injuries he could not bend his knees, lift his shoulder or twist his body, due to pain from his original injury. His pain was always there, however with the break from work it worsened.
At the time of the injury, the applicant was seeing Dr Mattar. Unfortunately, he has retired.
Dr Mattar never wanted to do insurance claims and never pushed him to file a workers’ compensation claim. He attended Dr Mattar for many years and advised him of the pain he was experiencing.On 10 December 2020, the applicant stated that when the accident occurred on 20 November 2013, his team leader called an ambulance. It took too long to get to Tooheys, so he drove the applicant to Westmead Hospital. The applicant was seen and discharged on the same day.
The applicant stated that his discharge documents note that he had a trip and fall down stairs at work, injuring his right leg, left leg and right shoulder. It also mentioned he had an injury to his back. He was given pain medication.
The applicant’s last statement is dated 28 January 2021. It deals with the circumstances of him making a claim on 1 May 2017, in relation to an accident on 20 November 2013.
The applicant stated that he struggled on with his employment, even though he was injured, as he wanted to keep his job.
The applicant did not seek legal advice until he met Ian Chipchase at Stacks Goudkamp. He had obtained advice from Mr Hayward at Haywards Employment Lawyers in relation to an industrial relations issue in April 2017. Mr Hayward referred him to Stacks Goudkamp for advice about his workers’ compensation entitlements.
Before meeting Mr Chipchase, the applicant had made no claims for workers’ compensation. He suffered an injury to his left thumb in 1973, whilst employed by the Water Board. He remembers the injury being reported “through the union”, but no claim was made. He did not instruct any lawyers to bring the claim for him. He thinks he was paid some weekly benefits and medical expenses. He never made a claim for a lump sum in relation to the partial amputation of his thumb.
As a result of his consultation with Mr Chipchase, the applicant signed an Application for Workers Compensation Benefits and instructed him to lodge a claim on his behalf. He had no knowledge of the workers’ compensation system apart from what he was told by Stacks Goudkamp.
Medical Evidence
Westmead Hospital
The Westmead Hospital’s ED Discharge Summary (the Discharge Summary) is dated 20 November 2013. The applicant had presented with “Pain, limb lower/hip”. The diagnoses at the top of the summary are recorded as soft tissue injury.
The Discharge Summary states that the applicant presented “post fall”, with a “simple trip and fell down stairs”. There were about six steps. The applicant fell forward and was grabbing onto a railing. He fell slowly and lay on the steps upside down. He was unable to get up on his own and waited about 20 minutes before help arrived.
The applicant did not hit his head and there was no loss of consciousness. He complained of pain in his right shoulder, right tibia and right finger.
The Discharge Summary notes that the applicant had superficial abrasions over his left flank, right tibia, left tibia and [illegible – possibly “left”] forearm. He had a full range of active and passive movement of his right shoulder, “however with pain”. He had minimal swelling over the superior aspect of the tibia tuberosity.
The applicant had “nil tenderness C spine/T spine/L spine”. He had an x-ray of his right hand and right tibia, with “nil acute fractures”.
Apart from the above notation about the applicant’s cervical, thoracic and lumbar spines, there is no reference in the Discharge Summary to his lumbar spine, or to any injury to his back or spine.
Dr Peter Yu – Occupational Physician
Dr Yu was requested by the respondent to review the applicant’s fitness for work. He provided a report dated 20 February 2017.
Dr Yu recorded a detailed history of the applicant’s duties for the respondent. The respondent had confirmed that he took very little sick leave over the 40 years of his employment before May 2016.
The applicant provided a history of the injury to his left thumb, which was “smashed” at work for the Water Board. The tip of his thumb was subsequently amputated.
Dr Yu reported that in mid-May 2016, the applicant said he was at work, sitting in a chair, with his head tilted down and his eyes closed, as he was thinking of a memory. Two days later, he received formal notification from his supervisor that he had been seen to fall asleep at work. Another such occasion was also brought to his attention and an investigation ensued.
Mr Grbasliev had received a “Level 1 Warning” and Tooheys “sent him home” on 25 May 2016. He had not returned to work.
The applicant had claimed compensation for “stress” that he attributed to the process of being subjected to performance management. He recalled consulting his usual GP, Dr Kamal Mattar.
Dr Yu recorded the applicant’s current status as “happy”. He felt tight pain in the centre of his chest, constantly, every day. He felt faint without warning.
The applicant frequently had a “hot” feeling in his left shoulder, that spread to involve his left arm to the elbow. He noticed swelling and a feeling of pins and needles intermittently in both hands, more frequently in the right.
The applicant frequently sweated in both sides across the centre of his low back. He described shaking in both thighs; and his knees were “sore”. He also had a pain across his low back and in both groins. He specified that he did not have any of these symptoms before May 2016.
Dr Yu reported that the posture and appearance of the applicant’s low back were normal. He consistently demonstrated one-half of the normal range of movement. He walked with an intermittent limp; and walked heel to toe with difficulty but denied pain in his low back during the test. He declined to hop on either foot, citing concerns about low back pain. Dr Yu recorded a reduced range of mobility in the low back, being less than five centimetres of movement that is normally expected.
The applicant’s shoulders appeared normal. The range of movement of each shoulder was the same. The applicant reported right shoulder pain during the “Empty Can” test but denied pain in his left shoulder.
The applicant reported an inability to reach the ground with either hand while he stood, sat or bent his knees to a half-squat. This was attributable to a combination of mechanical restriction of movement in his spine and knees, as well as relating to the dimensions and position of his abdominal obesity.
Dr Yu opined that there were consistent, objective, verifiable physical signs of a multi-regional, constitutional, degenerative condition affecting the applicant’s spine and knees. The condition was consistent with his constitutional obesity. This condition was inherently long-term in nature, arising over years or decades, and was not consistent with the allegedly recent onset of back and knee symptoms.
Dr Yu further opined that, even with successful treatment, there would always remain a high probability that if the applicant were to attempt to perform all the duties inherently required of his role, his condition would worsen. His condition rendered him indefinitely unable to safely and effectively perform all his duties. Dr Yu was unable to suggest any reasonable way for the respondent to accommodate the applicant’s medical needs.
Dr Yu reported to Allianz on 6 March 2018.
Dr Yu noted that the applicant alleged that he injured his right shoulder, low back and right knee in the fall on 20 November 2013. He had access to records that are not in evidence, including those of Drs Donnellan and Herald.
The history recorded by Dr Yu was consistent with his first report. However, the applicant denied he was “upside down” after the fall. He said he fell forward onto his left side and denied falling face-up.
The applicant confirmed that he attended all his shifts and performed all his duties after the incident, until his prolonged absence from work, “starting not sooner” than 25 May 2016.
Dr Yu recorded complaints of pain in the top and back of the right shoulder joint; constant pain through the low back; pain and bleeding in the wall of the left abdomen (which resolved soon after the incident); pain in both shins, which had resolved by the time of the assessment; and ongoing, constant pain in both knees.
Dr Yu referred to a report of Dr Brittain, nuclear medicine specialist, dated 28 July 2017, that the applicant had pain “following fall 18 months ago”. The report was of a whole body bone scan with SPECT/CT of the cervical and lumbar spine and both shoulder joints. The applicant “vehemently objected to this” and reiterated that the sole reason for the whole body scan was the fall on 20 November 2013. He denied falling after the workplace incident.
Dr Yu opined that the applicant sustained only superficial injury to the skin overlying his left abdominal wall; superficial injury to the skin overlying his right and left shins; superficial injury to the skin overlying his left forearm; mild strain to the muscles and tendons of his right shoulder joint; mild strain to the interphalangeal joint of his right thumb; and superficial injury to the soft tissue at the upper-most part of his right leg, just below and not including his right kneecap and joint.
Dr Yu further opined that the applicant did not sustain any other injury that was reasonably attributable to the incident. The applicant did not have any current diagnoses of either shoulder, either knee or any part of his back. He had fully recovered from each of the injuries, which were superficial, self-limited and transient.
Dr Yu concluded that the applicant had no permanent impairment as a result of the injury on 20 November 2013.
Dr Ijaz Khan – General Practitioner
Dr Khan reported to the respondent first on 28 March 2017.
The applicant had been diagnosed with a psychological condition; right shoulder impingement syndrome; subtotal amputation of his left thumb; and constitutional degenerative osteoarthritis of both hips, both knees and his lumbar spine. He also had type II diabetes and hypercholesterolaemia.
Dr Khan opined that the applicant’s prognosis for improvement of his psychological condition or return to normal function was guarded. The prognosis for his right shoulder was poor, as was the prognosis for his lumbar spine. His physical diagnoses were deemed to be clinically permanent.
Dr Khan recommended that the applicant avoid manual handling with his right upper limb greater than 5 kg, distant from the trunk or at shoulder height; avoid duties requiring ladders, platforms, uneven ground or confined spaces; avoid duties involving bending, kneeling, crouching, squatting, lunging, stooping or crawling; avoid duties requiring lifting, pushing, pulling or carrying greater than 10 kg; avoid working with individuals who were the subject of a bullying and harassment complaint; work in a seated, sedentary position; and work only day shift.
Dr Khan opined that the applicant was unable to successfully complete the requirements of his role in a safe, productive, sustainable and durable basis [sic]. He could not return to his pre-injury duties without significant risk of aggravating his underlying diagnoses or potentially suffering a new injury.
Dr Khan reported to the applicant’s solicitors on 20 September 2017.
Dr Khan noted that on initial review on 1 May 2017, he recorded a consistent history of the mechanism of the injury to that provided by the applicant. The applicant advised Dr Khan that he continued to experience low back pain following the fall.
Dr Khan had diagnosed mechanical low back pain; mechanical right shoulder pain with possible rotator cuff tear (which was awaiting diagnosis by MRI); and bilateral meniscal tears.
The recommended treatment was neurosurgical follow up for lumbar spine pain, with possible repeat CT guided cortisone injections; orthopaedic follow up of the right shoulder post MRI; and possible orthopaedic intervention of the meniscal tears. The applicant may require surgery to his right shoulder, depending on the outcome of the MRI. He also required manual therapy; medication; and modification of his lifestyle and activity to avoid aggravation of underlying pain.
Injury Care Pty Ltd – General Practitioners
The practice has issued the applicant with a number of COCs.
The COCs issued in respect of the applicant’s claim for psychological injury refer to his past medical history, past surgical history and prior work injury history. The latter reads “Patient reports that he has had multiple injuries at work and he has never claimed”. There is no mention of an injury to the lumbar spine or right shoulder.
The first COC issued in respect of the injury on 20 November 2013 is dated 1 May 2017, which is when the applicant lodged his Claim Form and Allianz reopened his claim. It records a history of the applicant’s fall; and states that he “advises he continues to experience low back pain following the fall”. The diagnoses are mechanical low back pain; mechanical right shoulder pain; and mechanical bilateral knee pain.
Associate Professor Nigel Hope – Orthopaedic Surgeon
Associate Professor Hope was qualified by the applicant and reported on 21 November 2017.
A/Prof Hope recorded a history that, before the injury, the applicant had no symptomatic pre-existing pathology in his right shoulder, lumbar spine and right knee. A fall down 10 stairs at work on 20 November 2013 injured these body parts and non-operative treatment resulted in a partial recovery.
Four years later, A/Prof Hope recorded moderate right shoulder and lumbar spine pain; and mild right knee pain. There was also moderate right shoulder weakness and lumbar spine stiffness; and mild right knee stiffness, causing moderate functional loss.
A/Prof Hope found stiffness of the applicant’s right shoulder with impingement signs. Lumbar examination showed tenderness with asymmetric loss of range. The applicant’s right knee was also tender on examination. Right shoulder MRI revealed impingement, while lumbar MRI showed mild (irrelevant) spondylosis. The right knee MRI was normal.
A/Prof Hope diagnosed moderate right shoulder impingement, a moderate chronic lumbar strain and mild right knee osteoarthritis.
A/Prof Hope reported that the applicant had attended Westmead Hospital and was discharged several hours later after x-rays were taken. He continued work with right shoulder and lumbar pain. He had physiotherapy and hydrotherapy. Dr Donnellan organised a lumbar steroid injection. Dr Herald proposed surgery for the right shoulder, which was not undertaken.
The applicant complained of aching in his right shoulder, induced by moderate abduction; moderate low lumbar aching; and global aching of his right knee. There was moderate right shoulder weakness, moderate lumbar spine stiffness and mild right knee stiffness, but no neurological symptoms.
A/Prof Hope diagnosed right shoulder moderate impingement; lumbar spine moderate chronic strain; and right knee mild osteoarthritis. He found no evidence of exaggeration, symptom fabrication or functional overlay. The history, symptoms, signs and investigations were all consistent.
A/Prof Hope assessed the applicant with 10% WPI as a result of injury to his right upper extremity (shoulder); and 6% WPI as a result of injury to his lumbar spine, a combined WPI of 15%. He assessed WPI as a result of injury to the right lower extremity (knee) as 0%.
A/Prof Hope again reported on 17 September 2019.
A/Prof Hope recorded that the applicant had no symptomatic pre-existing pathology in his right shoulder, lumbar spine and right knee. A fall on 20 November 2013 injured these body parts.
Six years after the injury, the applicant had moderate right shoulder pain, moderate lumbar spine pain and mild right knee pain. There was also moderate right shoulder weakness, moderate lumbar spinal stiffness and mild right knee stiffness, causing a moderate functional loss.
The applicant’s diagnoses remained the same, as did his WPI.
Dr Graeme Doig – Orthopaedic Surgeon
Dr Doig was qualified by Allianz and reported on 15 May 2020.
Dr Doig recorded a history that the applicant accidentally fell forwards and reached for the handrail using his right arm, experiencing pain in his right shoulder. He continued to fall onto both knees, which struck the steps, as did his abdomen, resulting in a twisting mechanism.
The applicant believes he suffered lower back, dominant right shoulder and bilateral knee injuries as a result of the fall. He complained of lower back pain with restricted movement, discomfort in his right shoulder, with difficulty using his arm overhead and bilateral anterior knee pain.
Dr Doig noted multiple scans of the applicant’s spine, including CT and MRI, which confirmed multi-level degenerative changes, particularly at the inter-vertebral discs and facet joints. X-rays of both knees dated November 2019 failed to reveal significant degeneration. Scans of the right shoulder had been performed and Dr Doig believed a possible rotator cuff tear had been diagnosed.
Dr Doig diagnosed primary, idiopathic osteoarthritis of the lumbo-sacral spine, involving the inter-vertebral discs and facet joints; bilateral anterior knee pain, with palpable crepitus, consistent with patella-femoral joint articular cartilage damage; and soft tissue injury to the right shoulder, with possible rotator cuff tear, with restricted movement.
Dr Doig noted there appeared to be “some contention” as to what was injured in the fall. It was difficult for him to state with certainty what was directly injured and this should be clarified with the treating practitioners at the time. The applicant maintained that he “tractioned” his right arm through the shoulder, due to hanging onto the handrail, with his knees colliding with the stairs, and twisting his spine in the process.
Dr Doig assessed a total of 9% WPI. This comprised 6% WPI as a result of injury to the lumbar spine; 1% WPI as a result of injury to the right upper extremity; and 2% WPI as a result of injury to the right lower extremity.
SUBMISSIONS
The parties’ submissions have been recorded, so I will not repeat them in full.
Respondent
The respondent submits that the applicant’s claim for weekly benefits was made in mid-2017, and his claim for WPI was made by letter dated 6 March 2020. Both were more than three years after the injury. The injury has not resulted in permanent and serious disablement. The applicant worked for three years after the alleged injury. His failure to make the claim was not due to ignorance, mistake, absence from the State or other reasonable cause.
The applicant has stated that he made no previous claims. The respondent contrasts this with the claim for psychological injury, which pre-dates the period in which he said he sought advice. He made a separate claim for psychological injury and there are certificates of capacity dated 2016. The respondent submits that I would not accept the applicant’s evidence that he was unaware of his rights.
As regards the issue of injury, the respondent refers to the Westmead Hospital records. It submits that the injury to the applicant’s shoulder was a minor, superficial injury. There was no sudden pathological change. The respondent relies on the decision in Castro v StateTransit Authority (NSW) [2000] NSWWCC 12; (2000) 19 NSWCCR 496 (Castro). The applicant had an x-ray of his right shoulder 3.5 years after the alleged injury. It showed degenerative changes consistent with his age, not a pathological change occurring 3.5 years before.
The respondent submits that I would not accept the applicant’s evidence in respect of the injury or what happened at Westmead Hospital. He did not complain until mid-2017. There are no contemporaneous records, but he states he was treated by numerous providers. He has not provided statements from any co-workers or from his personal life to support his claim of ongoing pain from 2013 to 2017.
The respondent refers to Dr Yu’s report, which contains no history of injury to the lumbar spine in 2013. The history the applicant gave was that he had no symptoms in that area before May 2016. When reporting his capacity to Dr Yu, he did not mention his right shoulder. The appearance of his low back and shoulders was reported as normal. This is inconsistent with the pleaded injuries. Dr Yu opined that his physical signs were consistent with a degenerative condition. It was inherently long-term in nature.
The respondent submits that Dr Khan made no reference to the alleged injury. The diagnosis of constitutional change in the lumbar spine is inconsistent with injury.
The respondent submits that Dr Yu made a detailed analysis of earlier documents. Weight should be given to his report over that of A/Prof Hope, whose report lacks detail. The fact that the applicant attended all his shifts until his absence from work from 25 May 2016 is inconsistent with the pleaded injuries. The respondent submits that A/Prof Hope’s report offends the principles of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 30 (Makita) and Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844, in that there was not a “fair climate” for his opinion.
The respondent submits that I would not find that the applicant sustained injury to his right shoulder or lumbar spine. Dr Yu’s report is consistent with the other evidence and should be given the most weight. Dr Doig gave the applicant the benefit of the doubt.
Finally, the respondent submits that the decision as to the applicant’s claim for section 60 expenses related to the lumbar spine would follow from my determination as to injury to the lumbar spine.
In reply to the applicant, the respondent submits that he appears to indicate that his failure to make a claim was due to “ignorance”. His third statement indicates a deliberate decision not to make a claim. This is inconsistent with ignorance.
The respondent submits that I would have trouble accepting the applicant’s evidence; and any inconsistency should be looked at sceptically.
Applicant
The applicant submits that he has a reasonable excuse for his late claim. His evidence is that he could have made a claim but did not want to jeopardise his employment. This is a partial explanation. He explained in his late statement why he did not bring a claim. He did not know about his rights until he sought legal advice. When he had his previous injury, matters took their normal course, he was paid compensation and he did not need to make a claim.
The applicant submits that, in any event, pursuant to section 261(9) of the 1998 Act, he did make a claim. He refers to the Notification and to the section 74 and section 78 notices. The notice dated 15 July 2020 refers to his claim being finalised. It appears that there was some form of claim and section 261(9) is satisfied. As for “serious and permanent disablement”,
Dr Doig has assessed 9% WPI and A/Prof Hope has assessed 15%. It has traditionally been held that no work capacity is evidence of serious and permanent disablement, and the doctors agree on this.As regards the issue of injury to his right shoulder, the applicant submits there is no question that there was a sudden pathological change. He went to hospital, complained of pain and was diagnosed with a soft tissue injury. The pathology could be as simple as scratches or abrasions but manifested in pain. A/Prof Hope and Dr Doig found pathology. Dr Yu is “on his own”. There is sufficient evidence to satisfy Haroun v Rail Corporation New South Wales [2008] NSWCA 192; 7 DDCR 139. It is up to the Approved Medical Specialist (sic) (AMS) what he or she makes of that.
The applicant relies on the history regarding his right shoulder taken by Westmead Hospital and Dr Yu. He concedes that he cannot shy away from the lack of reference in the notes to his lumbar spine. His evidence is that he went back to work because he thought the pain would go away. He still complains of pain in his right shoulder and low back. He refutes some of the history recorded by Dr Yu.
The applicant submits that, while Dr Doig was not given Westmead Hospital’s records, he did assess WPI with respect to injury to his lumbar spine. He placed the applicant in Category II, which must mean that he found muscle spasm, guarding, asymmetry and reduced range of movement, which is at odds with Dr Yu’s opinion of “nothing to see”, despite the complaint of pain.
The applicant concedes that there are no clinical notes or reports from Dr Mattar. Dr Khan supported him when he was apprised of the full history. As regards Makita, there is a lot of case law to the effect that if it is argued that the effects of the injury have ceased, the matter is to be referred to an AMS. The Commission is not a common law jurisdiction and Makita is often misunderstood. It is up to me to decide whether there was pathological change in the right shoulder and injury to the lumbar spine.
SUMMARY
Making of a Claim
Section 261 of the 1998 Act provides:
“(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2) If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker's claim related.
(3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person's claim did not relate to the particular compensation in question.
(4) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either--
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6) If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7) If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8) In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9) When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”
The applicant’s evidence regarding the delay, if such there was, in making a claim is contradictory.
The applicant has variously stated that he didn’t want to complain and kept on working; he never wanted to complain about his injuries due to loyalty to the respondent; there were many times he could have made a claim but didn’t want to jeopardise his position, having seen others lose their jobs; he was a man with “old school values”; and he had no knowledge of the workers’ compensation system apart from what he was told by Stacks Goudkamp, which was in 2017. However, he made a claim for psychological injury in 2016; and had seen other workers make claims and lose their jobs. I have therefore approached his evidence with some caution.
The applicant gave notice of the injury on the day it occurred, and the respondent notified Allianz on the same day. The Notification stated that the applicant had sustained multiple injuries – “unknown at this stage”. It was an Incident Notification only, with no treatment and no time lost.
There is no evidence that the respondent entered the particulars of the injury in a register of injuries, although it may be expected that it would, given that it notified its insurer and one of those who assisted the applicant after the fall was his team leader.
Allianz appears to have treated the Notification as a claim. It stated in its section 74 notice dated 10 May 2017 that the applicant had “lodged a claim” with the respondent (emphasis added). He sought no treatment (which is not the case, as he was treated at Westmead Hospital, but it is assumed no claim for payment was made on Allianz), and no COC was issued. Confusingly, Allianz advised that the “claim remained as a notification only”.
In its section 78 notice dated 15 July 2020 Allianz stated that the respondent had been awaiting a medical certificate but nothing further was received and the claim was finalised (emphasis added).
Allianz having apparently accepted that the applicant made a claim for the injury on 20 November 2013, I determine that the applicant has complied with section 261 of the 1998 Act. It is not necessary that I decide whether the injury has resulted in serious and permanent disablement.
Injury to the Right Shoulder
Section 4 of the 1987 Act provides:
“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 respondent concedes that an injurious event to the applicant’s right shoulder occurred on 20 November 2013. It disputes that the event resulted in a pathological change, rather than a temporary physiological change.
The respondent relies on the decision of His honour Judge Armitage in Castro. After referring to the authorities, Armitage J said [at 129]:
“This passage…makes it clear that what is required for an ‘injury’ within par (a) to occur is a ‘sudden or identifiable pathological change’ in the body, whether internal or external”.
The respondent appears to take the position that, as it submits the injury to the applicant’s right shoulder was a minor, superficial one, there was no “injury” within the meaning of section 4 of the 1987 Act. I do not accept that submission.
The pathology that results from an injury may be as simple as a bruise or a soft tissue strain: North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 [at 81].
The Discharge Summary is evidence that on 20 November 2013, the applicant presented with pain in his right shoulder. He said he had grabbed onto a railing. While he had a full range of movement of his right shoulder, the Discharge Summary records “however with pain”. There was a sudden or identifiable pathological change in the applicant’s right shoulder, manifested in the onset of pain.
Dr Yu diagnosed a mild strain to the muscles and tendons of the applicant’s right shoulder joint. Dr Khan diagnosed mechanical right shoulder pain with possible right rotator cuff tear. A/Prof Hope diagnosed right shoulder impingement, revealed by MRI. Dr Doig diagnosed soft tissue injury to the right shoulder, with possible rotator cuff tear, and restricted movement.
Dr Yu, Dr Khan, A/Prof Hope and Dr Doig all found pathology in the applicant’s right shoulder. While Dr Doig acknowledged there was some contention as to what was injured in the fall, the respondent concedes that the applicant suffered an “injurious event” to his right shoulder on 20 November 2013.
The applicant sustained an injury to his right shoulder on 20 November 2013. There was a sudden or identifiable pathological change in that area of his body. As he submits, it would be “up to an AMS” to determine whether he has sustained any permanent impairment as a result of the injury.
Injury to the Lumbar Spine
As the applicant properly concedes, there is no contemporaneous evidence to support the claim that he sustained injury to his lumbar spine on 20 November 2013.
While the applicant stated that x-rays were taken at Westmead that revealed a disc bulge with mild compression of the thecal sac, there is no reference to this in the Discharge Summary. There is also no reference to the x-ray he stated was performed on his right shoulder.
There is no evidence from Dr Mattar, the applicant’s former GP. The applicant has explained this as being due to the doctor’s retirement and his reluctance to become involved in workers’ compensation matters. However, there is also no evidence from JB Healthcare Cabramatta, Dr Donnellan or Dr Herald, from whom the applicant claims he has received treatment. There is no explanation for the lack of evidence from those providers.
The applicant had the opportunity in February 2017 to tell Dr Yu about an injury to his lumbar spine in November 2013. Dr Yu recorded that the applicant frequently sweated across the centre of his low back; had shaking in both thighs; his knees were sore; and he had a pain across his low back and both groins. However, he specified that he did not have any of these symptoms before May 2016. He did not provide Dr Yu with any history of the injury in November 2013.
The applicant’s evidence that he sustained an injury to his lumbar spine on 20 November 2013 is not supported by any contemporaneous evidence at all. His own evidence about this is unreliable, given that he stated x-rays were taken of his right shoulder and lumbar spine at Westmead, which was not the case.
The only reference to the applicant’s lumbar spine in Westmead’s records is to an examination of all areas of his spine – cervical, thoracic and lumbar – with no tenderness found. This does not support his claim to have sustained injury to his lumbar spine, any more than it would support a claim that he injured his cervical or thoracic spines. It was obviously a precautionary measure on the part of the medical examiner.
The various COCs attached to the Application that commence on 1 May 2017 in my view do not assist the applicant, in the absence of any contemporaneous evidence. The first COC was issued on 1 May 2017, some 3.5 years after the injury.
McDougall J (McColl JA and Bell JA agreeing) said in Nguyen v Cosmopolitan Homes [2008] NSWCA 236:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact…”
Given the lack of contemporaneous evidence to support the applicant’s claim, I do not feel an actual persuasion, and I am not satisfied on the balance of probabilities, that he sustained injury to his lumbar spine on 20 November 2013.
SUMMARY
I have determined that the applicant did not fail to make a claim within the time limits imposed by section 261 of the 1998 Act and have therefore considered his claim.
I determine that the applicant sustained injury to his right upper extremity (right shoulder) arising out of or in the course of his employment with the respondent on 20 November 2013.
There will be an award for the respondent in respect of the applicant’s claim to have sustained injury to his lumbar spine arising out of or in the course of his employment with the respondent on 20 November 2013.
The applicant does not have permanent impairment of greater than 10% as a result of injury to his right upper extremity (right shoulder) and the medical dispute may not be referred to a Medical Assessor.
Kerry Haddock
MEMBER
6 April 2021
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