Gunnedah Shire Council v Conlan - [2024] NSWPICPD 14

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Gunnedah Shire Council v Conlan [2024] NSWPICPD 14
APPELLANT:	Gunnedah Shire Council
RESPONDENT:	David Conlan
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-W1319/23
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	1 March 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 16 May 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – injury arising as a result of the nature and conditions of employment – claim for medical expenses under section 60 of the Workers Compensation Act 1987 – whether a claim has been made or notified – definition of a claim under sections 4 and 289 of the Workplace Injury Management and Workers Compensation Act 1998 – South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Robison, counsel
BBW Lawyers
Respondent:
Mr C Tanner
Carroll & O'Dea Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr B Batchelor
DATE OF MEMBER’S DECISION:	16 May 2023

INTRODUCTION AND BACKGROUND

The respondent, Mr David Conlan, was employed by the appellant, Gunnedah Shire Council over the course of approximately 10 years, firstly as a concreter, then as a water truck driver, then again as a concreter.
On 3 April 2020, during his work as a concreter, the respondent attempted to move an item of formwork with a steel frame and a plywood base, back into a stack. He had removed smaller pieces of formwork without difficulty. In the process of lifting and pushing this particular piece of formwork overhead, he experienced sudden and severe pain in his shoulder.[1]
[1] Application to Resolve a Dispute (ARD), p 1.
The respondent reported the incident and consulted Dr Kelly, his general practitioner, who referred him to Dr Robert Sharp, orthopaedic surgeon. Over 12 months, he underwent conservative treatment by way of physiotherapy and various injections (cortisone, Synvisc and PRP) under the care of Dr Sharp, all of which provided little relief.[2] He was subsequently referred to Dr Minas Petrelis, orthopaedic surgeon, who, in reports of 23 and 29 September 2021,[3] recommended surgery. Dr Petrelis reported that the respondent had advanced left shoulder arthritis which had been present for years but was not symptomatic until 2020. Due to the long history of conservative treatment with limited improvement and an MRI and CT scan demonstrating “severe wear” with a B2 glenoid, Dr Petrelis was of the opinion that a total shoulder replacement was needed. The doctor said that “the type of work that he is doing and has done, has flared up his arthritis to a point where he now needs surgery”.[4]
[2] ARD, pp 29–49.
[3] ARD, pp 50–51.
[4] ARD, p 51.
At some point thereafter, a claim was lodged with StateCover Mutual Limited (StateCover) to cover the cost of the surgery.[5]
[5] Respondent’s statement, ARD, p 1. I remark that there is no specific claim form or correspondence making this claim in the evidence before me.
StateCover arranged for the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2024] NSWPICPD 14
Decision Date: 1 March 2024

CaseChat Overview and Summary

The Gunnedah Shire Council, acting through its insurer StateCover, brought a claim against Conlan before the Personal Injury Commission of New South Wales. The council sought to have its liability for workers' compensation benefits reduced. The dispute centred on whether Conlan's employment with the council was a main contributing factor to his shoulder injury and whether the council should be liable for the medical expenses incurred as a result of the aggravation of this injury. The court had to determine whether Conlan had made a claim for compensation under the Workers Compensation Act 1987, and if so, whether the council was liable for the medical expenses.

The key legal issues in the case were whether Conlan had made a claim for compensation and, if so, whether this claim was made or notified to the council as required by the Workplace Injury Management and Workers Compensation Act 1998. The court considered whether the respondent's submission of a medico-legal report, along with a letter from his solicitor requesting a review of the insurer's dispute, constituted a claim within the meaning of the Act. The court also examined whether the claim had been notified to the council, as required by section 289 of the Act.

The Personal Injury Commission found that Conlan had made a claim for compensation when his solicitor wrote to the insurer requesting a review of the dispute. The court relied on the decision in South Western Sydney Area Health Service v Edmonds, which held that a claim for compensation can be made by any means that enables the other party to understand the nature of the claim. The court held that Conlan's solicitor's letter and the submission of the medico-legal report constituted a claim for compensation. The court also found that Conlan had notified the council of the claim by submitting the medico-legal report and the letter from his solicitor. The court held that the claim had been made and notified to the council, and therefore, the council was liable for the medical expenses incurred by Conlan as a result of his work-related injury.

The Personal Injury Commission ordered that the Gunnedah Shire Council pay Conlan's medical expenses incurred as a result of the aggravation of his pre-existing shoulder condition. The court found that the council was liable for these expenses under section 60 of the Workers Compensation Act 1987. The court also noted that the council's dispute notice contained an incorrect reference to section 4(b)(i) of the Act, which should have been section 4(b)(ii).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The respondent said he performed heavy work for 10 years and, as stated, this evidence was not contradicted by the appellant. The respondent’s assertion also had support in his medical case as identified by the Member (at reasons [50]). In Australian Securities and Investments Commission v Hellicar[70] Heydon J referred to the Blatch v Archer[71] analysis in the following terms:[70] (2012) 247 CLR 345, 441.[71] (1774) 1 Cowp 63 [98 ER 969].“The Court of Appeal’s conclusion cannot be supported by reference to the first strand in its reasoning, resting on a duty of fairness. The respondents in this Court preferred to support the outcome on the second strand. It is based on the Briginshaw qualifications to the standard of proof on the balance of probabilities in proceedings of the present kind, as reflected in s 140(2)(a)–(c) of the Evidence Act. It is also based on the following passages. In Blatch v Archer Lord Mansfield CJ stated:‘It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.’In G v H Brennan and McHugh JJ stated:‘[W]hen a court is deciding whether a party on whom rests the burden of proving an issue on the balance of probabilities has discharged that burden, regard must be had to that party’s ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce available evidence in response.’In Ho v Powell Hodgson JA stated:‘[I]n deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision.…In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so.’In Shalhoub v Buchanan Campbell J stated:‘[F]ailure of a party who bears an onus of proof to call an available witness who could cast light on some matter in dispute can be taken into account in deciding whether that onus is discharged, in circumstances where such evidence as has been called does not itself clearly discharge the onus. This is an application of Lord Mansfield’s maxim.’In Whitlam v Australian Securities and Investments Commission Hodgson, Ipp and Tobias JJA stated:‘[T]he principle in Briginshaw calls attention to the requirement that a party seeking a finding of serious misconduct produce adequate material to enable a court to reach a comfortable satisfaction on such a serious matter. Although this is not the same as the obligation of the Crown to call available evidence in a criminal prosecution, we think it is fair to say that a person seeking such a finding does need to be diligent in calling available evidence, so that the court is not left to rely on uncertain inferences.’And in Cook’s Construction Pty Ltd v Brown Hodgson JA stated, in an ex tempore judgment:‘[W]here a party has to prove something and prima facie has available evidence that would directly deal with the question, a court will be very hesitant in drawing an inference in that party’s favour from indirect and second-hand evidence, when the party doesn’t call the direct evidence that prima facie it could have called, at least unless some explanation is given, or the circumstances themselves provide an explanation.’” (citations omitted, emphasis added)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

With reliance on this report, StateCover issued a notice to the respondent in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 16 February 2022. It declined liability for the respondent’s claim, with the matters in dispute framed as follows:“• Whether your employment with Gunnedah Shire Council is the main contributing factor to contracting a disease injury with your left shoulder. As a result you are no longer entitled to recover compensation for this disease injury. We rely upon section 4(b)(i) of the Workers Compensation Act 1987.• Further your employment with Gunnedah Shire Council was not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of your pre-existing condition/disease injury affecting your left shoulder. We rely upon section 4(b)(i) of the Workers Compensation Act 1987.• StateCover does not dispute that you suffered a frank incident on the 03/04/2020 which resulted in a temporary aggravation to your pre-existing disease injury in your left shoulder however this aggravation has now ceased.• Whether any incapacity for work is related to your workplace compensable aggravation of a pre-existing condition on the 03/04/2020. We rely upon section 33 of the Workers Compensation Act 1987.• Whether any medical treatment is reasonably necessary as a result of the aggravation of a pre-existing condition on the 03/04/2020. We rely upon section 60 of the Workers Compensation Act 1987.”[7] (emphasis added)[7] Reply, p 2. During proceedings before the Personal Injury Commission (the Commission), it was clarified that the reference to s 4(b)(i) in this dispute notice was incorrect and should have been reference to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) instead.[8] [8] Conlan v Gunnedah Shire Council [2023] NSWPIC 226 (reasons), [13]. Prior to commencing proceedings, on 18 January 2023, the respondent’s solicitor wrote to the insurer seeking a review of its dispute pursuant to s 287A of the 1998 Act. In support of the application for review, the respondent served a medico-legal report of Dr J Brian Stephenson, orthopaedic surgeon, and claimed that the doctor had accepted “[a] relationship between the duties performed and the injury” and “[t]he proposed surgery being reasonably necessary by reference to the injury”.[9] [9] ARD, p 9. In the medico-legal report, dated 24 November 2022, Dr Stephenson recorded that the respondent’s duties put pressure and strain on his arms, but there was no significant pain or discomfort, nor a need for medical management, until 3 April 2020. The doctor was specifically questioned as to whether “the nature of [the respondent’s] employment and the heavy work associated with the employment caused or aggravated the level of underlying arthritic processes in the shoulder, even if it was not causing symptoms”. Dr Stephenson answered: “Yes, I would agree to that contention”. The doctor continued that the specific incident of 3 April 2020 involved the exertion of significant effort and strain causing sudden pain. According to the doctor, there was a direct relationship between the respondent’s condition and the injuries sustained in employment. He regarded the shoulder replacement surgery to be reasonably necessary and causally related to the work injury.[10][10] ARD, pp 19–22.