Hayes v CSR Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hayes v CSR Ltd [2024] NSWPIC 507
APPLICANT:	Jeffrey Hayes
RESPONDENT:	CSR Limited
MEMBER:	Jacqueline Snell
DATE OF DECISION:	12 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; applicant claims weekly compensation payable under sections 36 and 37 resulting from an alleged injury sustained to the right shoulder; the respondent disputes the applicant’s claim; Held – applicant sustained injury to the right shoulder in the course of employment; employment being the main contributing factor to the injury; section 261(1) of the Workplace Injury Management and Workers Compensation Act 1998 is not a bar to the recovery of compensation payable to the applicant resulting from the injury; applicant has had a total incapacity for work resulting from the injury; applicant has entitlement to weekly compensation payable under sections 36 and 37.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained injury to his right shoulder on 8 May 2021 in the course of his employment with the respondent with his employment being the main contributing factor to injury. 2. Section 261(1) of the Workplace Injury Management and Workers Compensation Act 1998 is not a bar to the recovery of compensation payable to the applicant under the Workers Compensation Act 1987 resulting from the injury. 3. The applicant has had no current work capacity from 18 May 2022 resulting from the injury. The parties agree the applicant’s pre-injury average weekly earnings are $2,211.64. The applicant has an entitlement to weekly compensation from 18 May 2022 as follows: (a) payable under s 36 of the Workers Compensation Act 1987 at the rate of $2,101.06, and (b) payable under s 37 of the Workers Compensation Act 1987 at the rate of $1,769.31 (subject to indexation). A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Jeffrey Hayes (Mr Hayes), the applicant alleges he sustained injury on 8 May 2021 in the course of his employment with CSR Limited (CSR). Mr Hayes is currently 60 years of age.
The circumstances of alleged injury are described in the Application to Resolve a Dispute:
“The applicant was on the third rung of a step ladder when his foot slipped, and he fell. As he fell, the applicant reached for an airline with his right hand and sustained significant injury to his right shoulder region. A right knee injury was also sustained when the applicant impacted the ground.”
Mr Hayes claims weekly compensation payable under ss 36 and 37 of the Workers Compensation Act 1987 (1987 Act) from 18 May 2022 on the basis of a total incapacity for work resulting from the alleged injury. Mr Hayes’ claim for compensation has been declined and he has been issued with notices dated 27 June 2022, 29 August 2022 and
23 November 2022 in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).

ISSUES FOR DETERMINATION

When these proceedings came before the Personal Injury Commission (Commission) for conciliation/arbitration hearing Mr Hayes discontinued the allegation of injury to his right knee and CSR withdrew defence raised under s 254 of the 1998 Act.
The parties agree Mr Hayes’ pre-injury average weekly earnings (PIAWE) are $2,211.64.
The parties agree that the following issues remain in dispute:
(a) whether Mr Hayes sustained injury to his right shoulder on 8 May 2021 in the course of his employment with CSR; and if so,
(b) whether compensation is recoverable by Mr Hayes due to alleged failure to make a claim for compensation within the time frames prescribed by s 261 of the 1998 Act and if compensation is recoverable by Mr Hayes,
(c) whether Mr Hayes suffered an incapacity for work resulting from his injury since 18 May 2022 and has entitlement to weekly compensation payable under ss 36 and 37 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter came before me for preliminary conference on 18 April 2024 and with Mr Hayes’ claim unresolved on this occasion, his claim came before me for conciliation/arbitration hearing on 28 May 2024. Mr Moffatt appeared for Mr Hayes and Mr Grimes appeared for CSR on this occasion. Mr Hayes was present and supported by his partner.
Consequent on my discussions with counsel, I was satisfied the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I was 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.
With the arbitration hearing of Mr Hayes’ claim failing to conclude on 28 May 2024, the arbitration hearing was stood over to 1 July 2024. Mr Moffatt again appeared for Mr Hayes and Mr Grimes appeared for CSR. Mr Hayes was again present.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 6 May 2024 lodged on behalf of
Mr Hayes and attached documents;
(d)    Application to Admit Late Documents dated 23 May 2024 lodged on behalf of CSR and attached documents
(e)    Application to Admit Late Documents dated 31 May 2024 and attached documents lodged on behalf of CSR
(f)    Application to Admit Late Documents dated 12 June 2024 and attached documents lodged on behalf of Mr Hayes (and
(g)    Application to Admit Late Documents dated 19 June 2024 and attached documents lodged on behalf of Mr Hayes

Oral evidence

Mr Grimes sought leave to cross examine Mr Hayes. Mr Grimes’ application was opposed. There is no legal right to cross examination in the Commission and the decision to allow or not allow the cross examination of Mr Hayes is at my discretion.[1] Following careful consideration of counsels’ submissions I formed the view cross examination of Mr Hayes is necessary to enable me to properly determine his claim, and accordingly leave was granted to Mr Grimes to cross examine Mr Hayes.

FINDINGS AND REASONS

Brief review of evidence

[1] Aluminium Louvres & Ceilings Pty Limited v Xue Quin Zheng [2006] NSWCA 34.

Statements of Mr Hayes

Mr Hayes provided a number of statements, dated 6 July 2022, 2 March 2023,
8 August 2023, 3 November 2023 and 8 February 2024.
In his initial statement dated 6 July 2022, which Mr Hayes provided to the investigator,
Mr Hayes explained that on 8 May 2021 in accordance with planned maintenance, a fitter prepared an air leak on the air receiver, which Mr Hayes went to check prior to him leaving work that day. Mr Hayes explained that when he turned the compressor on, the pipe blew off and after shutting the compressor down he retrieved a step ladder and tools with the purpose of securing the pipe as the maintenance fitters were no longer on site. Mr Hayes explained he positioned the step ladder close to the air receiver, which gave him direct access to the pipe and placed one of his feet on the third step of the step ladder and his other foot on the top of the air dryer. Mr Hayes said the third step of the step ladder and the air dryer were of a similar height. Mr Hayes said that while attending the repair, his left foot slipped off the third step of the ladder while his other foot remained on the air dryer. Mr Hayes said as he was falling he grabbed hold of the air line with his right hand and his left leg landed directly on the ground below. Mr Hayes explained his right arm was overextended above his head with his weight pulling him to the ground, while his right leg remained on top of the air dryer.
Mr Hayes said he felt immediate pain in his right shoulder, right bicep and right knee but did not appreciate the severity of any injury at the time.
Mr Hayes said he reported the incident occurring on 8 May 2021 to Ms Ward. Mr Hayes said he consulted with an onsite physiotherapist about three months after the incident, who relevantly told him that his right shoulder/biceps injury “might heal within three months”.
Mr Hayes said that as he was able to undertake his work duties, without restriction, he did not consult with a general practitioner until after his employment with CSR had been terminated because he “knew he would not pass a pre-employment medical due to the injuries I was still suffering as a result of the incident on 8 May 2021.However, he said he was self-medicating and had mentioned his right arm problem to Ms Ward in or about
April 2022 and said he had also mentioned the soreness he experienced in his right shoulder to Mr Skinner.
In a subsequent statement dated 2 March 2023, Mr Hays confirmed his previously provided statement and said his right shoulder was deteriorating. He said too that he was unable to commence the employment position he had “lined up” because of his symptoms.
In a further subsequent statement dated 8 August 2023 Mr Hayes relevantly explained:
“Following my workplace incident on 8 May 2021, which was reported two days later, I confirm that I continued to work with CSR before reporting my injuries to my general practitioner on 17 June 2022.
At the time of the accident I was prescribed 75mg of Lyrica twice daily along with over-the -counter pain killers for approximately six months to manage an unrelated injury, which masked the pain of my right shoulder and right knee injuries.
Following the end of my prescription, I continued to manage my pain symptoms conservatively with over-the-counter pain medication and by avoiding the heavier duties at work.
During the period I continued working my formal role at CSR. In terms of the heavier work required I was relieved of that by the fitters in my team, namely Kerry Noble and Jordan Baxter, who were aware that I had an incapacity in that regard. This accommodated me by avoiding the ongoing aggravation of my right shoulder injury.
Approximately three to four months after the injury, CSR started providing some onsite physiotherapy. I consulted with the physiotherapist soon afterwards. He assessed my shoulder and my knee… I remember in respect of my shoulder that the physiotherapist told me to let it rest and it may come good. I accepted this advice.
There was another reason I kept working. The site had ‘lost time injury’ quotas which affected the individual bonus entitlement of team members. The site was close to exceeding its quota due to the high degree of manual work performed on site. I was trying not to let myself and the site down following my injury.
I also felt like I was working things out with my superiors. I continually told Nadine and Glenn about my ongoing shoulder problems during the period and through them I enquired about the company giving me assistance. What I had in mind was paid treatment and if needed some eventual paid time off. Nadine and Glenn knew that my right shoulder was causing me problems over the period including in the months leading up to when my employment was terminated.
After my termination I realised I would not be able to pass a medical examination with another employer let alone survive the requirements of a physical job and as a result it became apparent to me that I should urgently obtain treatment.”
In a further statement dated 3 November 2023 Mr Hayes confirmed he had reported injury to Ms Ward and completed an incident form on 10 May 2021 and explained:
“I did not lodge a workers compensation claim at this stage, as I was a very loyal employee and I was trusting in my employer, particularly Nadine Ward and Glenn Skinner, that they would assist me in obtaining treatment for my injuries and support with the workplace.
Due to my position in the management team, I was privy to many conversations regarding employees that were on workers compensation. The general attitude towards these employees was very negative and it was generally regarded that these employees had poor work ethic and it was not always believed that their injuries were real.
The management team were also very critical of the effect that workers compensation claims had on the operations of the business as they are a self-insurer. I would described the attitude of management to be very toxic and it was for this reason that I was very sceptical to lodge a workers compensation claim, as I did not want this attitude to ruin my reputation.
Further AFS had a short term incentive scheme. In 2021 I was rewarded with a bonus in accordance with this incentive scheme to reflect my performance, as well as a pay raise for the 2022 financial year.
Not every employee was eligible to receive a bonus based on the short-term incentive scheme. You had to receive acceptance into the scheme, which was sent out yearly.
One of the main components of this incentive scheme was for improved safety performance. It was part of the workplace culture to minimise lost time injuries, and it was also the goal of the incentive scheme to have a maximum of two RI injuries per financial year in order to receive a higher bonus.
I understand now that I made the wrong decision, and I should have lodged a workers compensation claim and reported the injury to my GP immediately, however, my actions at the time were for personal preservation within my workplace as well as attempting to abide by the culture of negativity surrounding claims.
It was not until I was terminated from my employment that I realised the brevity of my mistake in not reporting my injury properly, as I could not receive medical clearance to commence other employment due to my injuries.”
In his latest statement dated 8 February 2022 Mr Hayes relevantly explained:
“As I have said, the aspect of the injury at work to my right shoulder in May 2021 occurred as a result of hanging from a line by my right arm as the ladder slipped away. Following the injury I was experiencing pain in my right bicep and upper arm in that region. The pain spread to the front of my shoulder. My back and knee were sore as I have said. I took three endone at around 5.00pm that day and went straight to bed. From then onwards, my right sided arm and shoulder symptoms became progressively worse over the coming weeks and the movement of my shoulder was restricted in connection with my symptoms.
What I described in the notice of injury when I said ‘upper arm’ were those symptoms.
When I started to consult my general practitioners at Bradfordville Family Medical Practice after the injury, and for more than a year later, I declined to refer to my injuries. I persisted to remain tight lipped about it during the balance of my employment. As far as I was concerned, I was able to perform the majority of my duties. It thought that a complaint to my doctor might get back to my employer and be wrongly understood at the time as my intending to bring a workers compensation claim.
In around August 2021 I decided to attend upon the visiting physiotherapist at work. I did so because my upper arm symptoms were not going away and not getting better. The physiotherapist did not want to perform any physiotherapy to my right arm during the consultation which was itself brief in duration. He told me to give the symptoms some time and they should improve…”

Oral evidence

19. Mr Hayes was cross examined and re-examined during the arbitration hearing on 28 May 2024.

20. In essence, Mr Hayes said that he knew of the concept of doctor-patient confidentiality but had refrained from complaining to his doctor about his right shoulder injury prior to his consultation with her on 17 June 2022 despite consulting with his general practitioners on a number of occasions after the incident occurring on 8 May 2021 and the consultation on 17 June 2022 because he did not want his general practitioner to open a workers compensation claim relevant to the injury, which was what occurred as a result of the consultation occurring on 17 June 2022.

21. Mr Hayes said that while he had told a number of people at work about his right shoulder injury and also his inability to undertake all of his work duties, he had done so because he was hopeful CSR would do something to fix his right shoulder injury. Mr Hayes accepted that while it might be that those work colleagues to who he had spoken about his right shoulder injury may have anticipated in the circumstances that he would bring a claim for workers compensation, Mr Hayes confirmed that was not his intention at that point in time. Mr Hayes accepted that he was aware of his right shoulder injury “very early on” but did not report his right shoulder symptoms for some time.

22. Mr Hayes confirmed that while he was aware of a number of physical activities he could not do because of his right shoulder injury, he had been hopeful of securing alternate employment “three or four weeks” after he ceased working with CSR, but this had not come to fruition because of his disclosure of his right shoulder injury and a perceived inability to pass the required pre-employment medical.

23. Mr Hayes confirmed that he had not applied for any employment opportunities since his employment with CSR was terminated. Mr Hayes confirmed he had been approached for the alternate employment opportunity he had hoped to secure shortly after he ceased working with CSR and had not applied for the position.

Incident report

An Event/Investigation – Output form demonstrated that Mr Hayes reported the incident occurring on 8 May 2021 on 10 May 2021, with the persons to who the incident was reported identified as Nadine Ward and TJ Kooyman. The incident was described as a “minor event” and the description of the incident was in the following terms:
“Changing fitting on air receiver when left foot slipped of the 3^rd step of the ladder whilst right foot was still on the air dryer.”
Relevant to injury sustained by Mr Hayes at the time, while the report demonstrated that the main injury sustained by Mr Hayes was “sprain/strain” to his right knee, the report also demonstrated Mr Hayes had sustained “sprain/strain” to his back bilaterally and to his right upper arm.

Worker’s injury claim form

The worker’s injury claim form signed by Mr Hayes on 23 June 2022 recorded the date of injury as 8 May 2021 and recorded the circumstances of injury:
“I had 1 foot on a 3 step ladder and the other on top of an air dryer at the same height. My foot slipped off the ladder whilst the other stayed on the air dryer. I fell to the ground whilst hanging on the airline with my right arm taking the full weight of my body as my other leg stayed on the dryer.”
The recorded injuries sustained by Mr Hayes in the incident are:
“sore right bicep and shoulder
sore left knee.”

Factual investigation report

M & A Investigations prepared a factual report dated 15 July 2022. At the time of the investigation Mr Hayes was described as not being legally represented.
The investigator reported that while Mr Hayes’ role with CSR was essentially office based and did not require him to work on the tools, as he is a maintenance fitter by trade, Mr Hayes took it upon himself to undertake manual duties from time to time.
The alleged circumstances of Mr Hayes injury are described:
“The claimant alleges he sustained injury on 8 May 2021 as a result of a fall whilst undertaking a maintenance repair on an air receiver at the insured’s premises.
The claimant alleges he fell from a step ladder which caused him to overextend his right arm as he grabbed hold of the airline, resulting in a right shoulder, right bicep and right knee injury.”
Ms Ward provided a statement dated 11 July 2022 to the investigator in which she confirmed she is the WHSE Manager with CSR. Ms Ward confirmed that she has known Mr Hayes since she commenced working with CSR some six years earlier and thought she had a good working relationship with him. Ms Ward confirmed Mr Hayes had lodged an incident report on 10 May 2021 relevant to the incident occurring on 8 May 2021. Ms Ward said that on receipt of the incident report, she had a discussion with Mr Skinner and subsequently she and Mr Kooyman met with Mr Hayes on 11 May 2021 to “ascertain more information relevant to the incident”. Ms Ward described Mr Hayes as being more concerned about his knee injury at that time. Ms Ward said:
“Jeffrey did not take any time off work as a result of the incident on 8 May 2021. Jeffrey continued to work his full duties, and he made nil requests for light or modified duties at any time.
He did not display any signs of pain, discomfort or injury following the subject incident on 8 May 2021.
In June 2021 I had a brief conversation with Jeffrey to see how he was tracking, as I was prompted to follow up due to Glen Skinner’s investigation. Jeffrey told me he was OK and said he would let me know if he required any treatment. He did not approach me after this date to request any support or treatment.”

Mr Skinner provided a statement dated 13 July 2022 to the investigator in which he confirmed he is the Operations Manager with CSR. Mr Skinner confirmed that he had known Mr Hayes since about June 2020. Mr Skinner said that at the time Mr Hayes allegedly sustained injury on 8 May 2021, Mr Hayes reported directly to him. Mr Skinner said that he had a good working relationship with Mr Hayes.
Mr Skinner said he was aware of the alleged incident occurring on 8 May 2021 “as Jeffrey lodged an incident report on 10 May 2021 regarding this”. Mr Skinner relevantly said:
“I do not recall Jeffrey informing me, at any time, that he had suffered a right shoulder injury.
I did have a conversation with Nadine and asked how Jeffrey was going post-incident and she told me he had a physiotherapy appointment but did not want to have any further appointments as he reported he was OK.
I did not believe Jeffrey had any ongoing injuries as when he lodged the incident report he listed it as ‘report only’ which suggested to me that he was solely reporting the incident because it occurred, and not because he had any ongoing injuries.
…
From 8 May 2021 until his employment was terminated in May 2022, Jeffrey did not take any time off work as a result of alleged injuries. He never requested light or modified duties, and he was able to perform his duties in full.”
Mr Kooyman provided a statement dated 8 July 2022 to the investigator in which he confirmed he is the Production Manager with CSR. Mr Kooyman confirmed that he commenced working with CSR on 15 March 2021. Mr Kooyman said that both he and
Mr Hayes reported to Mr Skinner. Mr Kooyman said of his working relationship with
Mr Hayes:
“Jeffrey and I had a good working relationship towards the tail end of his employment. I did find him to be quite ‘set in his ways’ but we were able to manage a professional working relationship.”
Mr Kooyman said that prior to 8 May 2021 he did not know of Mr Hayes suffering any injury, and said of the incident occurring on 8 May 2021:
“I was aware of the alleged incident on 8 May 2021, but I do not know the specific details of the alleged incident. From what I do understand, Jeffrey was standing on the top part of a ladder, and he put his foot off the ladder to kneel on something, and he has slipped and fallen to the ground landing on his feet.
He reported he had hurt his right knee as he hyperextended his leg, and he also reported a back and right bicep injury.
…
I came to know of the alleged incident on 10 May 2021 when Jeffrey lodged an incident report.
Following this, Nadine Ward had asked me to attend a meeting with her and Jeffrey, as she was new to her role, and she required a senior staff member to be in attendance for the meeting. During the meeting Jeffrey went over the incident circumstances, but he was quite vague.
…
From memory, I believe Jeffrey may have consulted the onsite physiotherapist on one occasion, but he did not continue this treatment, advising he was okay.
I have never known Jeffrey to mention any injuries to his shoulders…
As far as I was aware, I believe Jeffrey had not suffered ongoing injuries as a result of the alleged incident on 8 May 2021, as he informed the business that he was solely reporting the incident for ‘reporting purposes only’, because all incidents on site must be reported, no matter how minor.
I am aware Jeffrey continued to work post-incident and did not make any request for light or modified duties.”

Site Sign in Register

The Site Sign in Register for 9 May 2021 demonstrated there were no persons on site on
9 May 2021.

Correspondence

In a letter dated 14 July 2023 Peta Skaines, operations manager with Flexiforce wrote:
“Jeffrey Hayes has been dealing with Flexiforce since November 2011. Jeff was operations Manager in Goulburn for CSR/AFS.
As the Operations Manager, I had personally dealt with Jeffrey on a professional basis for over a decade.
Thus, when I heard he had finished at AFS/CSR, I contacted him immediately, knowing his wealth of experience; I offered him an ongoing role with another prominent Host employer.
They were excited to have him on board, but rescinded the role once the knowledge of his shoulder injury was revealed…”
In a letter also dated 14 July 2023 but addressed to Mr Hayes, Nathan Price, Allmac Welding & Fabrication, wrote:
“Thanks for time and patience in this matter, but as we have discussed we have had to find an alternative person for the workshop manager role as we stated that Allmac requires a full medical clearance to enable us to employ yourself, we began negotiations with yourself in May 2022 to which we all agreed to give you a six month period to achieve a full medical clearance from your shoulder injury. After we meet in November 2022 (six months later) the matter was still unresolved and you were unable to give Allmac an accurate deadline as to when you would be able to commence employment with Allmac, therefore we had to actively start looking at other alternatives to fill this role. It has taken us approximately 7 months to find a correct replacement to which Allmac has now engaged his services and offered him a full-time role. It is with regret and disappointment that we have to inform you that we no longer have a role for you once you gain a full clearance from your shoulder injury. Sorry for any inconvenience this has caused yourself as it was not intended to end this way.”

Treating medical evidence
Bradfordville Family Medical Centre

Mr Hayes came under the general medical care of practitioners practicing out of Bradfordville Family Medical as early as 19 October 2009. While it is apparent Mr Hayes presented with complaint of left shoulder symptoms on occasion in December 2018 there is no mention of Mr Hayes presenting with right shoulder symptoms until 17 June 2022, despite Mr Hayes reportedly consulting with Dr Jassani on 27 May 2021 and Dr Ekanayake on 29 May 2021, being relatively close in time to the workplace incident occurring on 8 May 2021.
At consultation on 10 August 2021 Dr Abedin also relevantly noted:
“…stated both arm pain – tingling and numbness – no neck pain. No shoulder pain. No injury. Pain for last 5 days – had Pfizer vaccine – 3 weeks ago. Denied nsaids allergy. On exam upper limb – tone power reflex, sensation was normal. No c tenderness – raising shoulder above shoulder height – noticed pain on left-shoulder. Rom – not restricted.”
On subsequent review on 24 August 2021 while Dr Abedin recorded complaint by Mr Hayes of “both arm pain – tingling and numbness” there is no complaint of symptoms in his right shoulder.
However at consultation on 17 June 2022 Dr Aung relevantly noted:
“This is his first time consultation for his work related injury. It happened 8? Months ago. He slipped and fell from the ladder while fixing things at work. Grab with right shoulder to prevent falling and held the whole body weight. Has a pulled injury on right shoulder. Right knee stuck on ladder; other left foot was on ground. He reported his work at that time, incident report was done. His right knee pain has been better after 4 months. He is still having ongoing right shoulder pain, with movements and mild pain at rest. Pt complaint of this shoulder pain which started again a few days ago. It is getting worse, took Panadol which is not helpful. Can use the affected shoulder with pain. Denied any injury, fall or direct blow, no recent heavy weight lifting, no tingling, numbness, weakness in hands
…
He is not fit for his duties at this moment.”
At consultation on 14 September 2022 Dr Aung relevantly noted:
“Summarising his case,
He reported he had an injury to his right shoulder at work on 8^th May 2021. He slipped and fell from the ladder while fixing things at work. Grab with right shoulder to prevent falling and held the whole body weight. Had a pulled injury on the right shoulder. Right knee was stuck on ladder, other left foot was on ground. He reported his work at the time, incident report was done. His right knee pain has been better after 4 months. Today face to face appointment was made. He got his work cover rejected … he is not for fit for his duties at the moment.”
On 18 September 2022 Dr Aung referred Mr Hayes for a CT scan of his right shoulder, the results of which she discussed with him on 28 September 2022. I think it is fair to say that while Mr Hayes consulted with Dr Aung with right shoulder symptoms on occasion during the remainder of 2022, he did not complain of right shoulder symptoms to Dr Aung after consultation on 16 February 2023 at which time Dr Aung noted “he is having chronic severe right shoulder pain with limitation of movements followed by injury happened in 2021. Seen by orthosurgeon Dr Rae. He will wait with non-operative measures, owing to his age. He is seeing a solicitor, as he could not go through work cover process. He was advised by Dr Rae as there is unlikelihood for him to be back to duties…”
In what I assume to be a statement by Dr Aung dated 19 February 2023 provided to Zurich relevant to a TPD claim made by Mr Hayes, Dr Aung confirmed that Mr Hayes had first come under her general medical care on 26 February 2022 and first consulted with her relevant to his right shoulder injury on 17 June 2022. Dr Aung stated that Mr Hayes injured his right shoulder when he “slipped and fell from ladder while working” and had not suffered a similar problem with his right shoulder prior to this time. Dr Aung suggested a number of restrictions to be placed on Mr Hayes’ activities due to his right shoulder injury. Dr Aung noted Mr Hayes had been referred to Dr Rae for orthopaedic review.

Goulburn Physiotherapy Centre

Mr Hayes was provided with onsite physiotherapy treatment by Timothy Moule, and while the onsite assessment document is undated it describes Mr Hayes’ presenting complaint:
“Fall off ladder
3/12’s ago
R) ant.sh
R med knee P”
It is evident from the onsite assessment document that Mr Moule assessed Mr Hayes’ right shoulder for functional deficit and his recommendation included referral for right shoulder ultrasound if there was no improvement in Mr Hayes’ condition within one month.
In email correspondence dated 31 January 2024 addressed to Mr Hayes’ solicitors, Matthew Austen wrote:
“Thanks for your time on the phone today. Apologies for the confusion, we have record of another gentleman by the name of Jeff Haes with a different date of birth. I managed to track down the email with the assessment that was completed by Tim that was sent to you. I’ve had a chance to talk to Tim the therapist who saw Jeff at this time. Goulburn Physiotherapy commenced services at AFS in August 2021 so the report would have been completed after that time. Treatment notes indicates the presentation was 3 months after falling off a ladder. Tim has also mentioned that AFS is required to keep a log of what staff members present to the physio clinic at AFS and the date as well. The records are kept at AFS and as such we do not have access to them at this point in time. I hope that assists you with regard to this matter and if you have any further concerns please be in touch.”

Dr Rae

Mr Hayes came under the orthopaedic specialist care of Dr Rae following referral from
Dr Aung on 25 November 2022. Dr Rae provided reports dated 8 December 2022 and
19 October 2023. In his initial report Dr Rae reported of Mr Hayes:
“Jeffrey recalls an injury in May of 2021 when they were finishing a job installing an air conditioning system in a commercial place, he was inspecting the work, but the workers had left, and he had to change a faulty fitting in a pipe but as he did so it blew off and he fell from a three stepladder to the ground predominantly onto his right arm. The initial concern was about his back and pain exacerbation in the knee before he started to notice his shoulder a day or two later. He managed to keep working but he has had persistent pain and irritation predominately with the right shoulder was his biggest issue.
…
Jeffrey has a persistently painful right shoulder secondary to a large / massive rotator cuff tear that likely occurred in the workplace injury in May 2021.”
In his subsequent report Dr Rae relevantly reported a deterioration in Mr Hayes’ right shoulder symptoms, with X-ray demonstrating “mild to moderate progression in his arthritic changes in the glenohumeral joint consistent with deteriorating rotator cuff tear arthropathy”.

Northern Pain Centre

Mr Hayes has come under the care of Dr Holdford, pain medicine specialist, and in his report dated 10 February 2023, Dr Holdford relevant wrote:
“Jeff has recently sustained a work related injury to his right shoulder for which surgery is planned and for which he has been advised he needs an MRI…”

Independent medical evidence

Dr Pillemer

Mr Hayes was initially orthopaedically assessed by Dr Pillemer on 1 November 2022 in his capacity as independent medical examiner. Dr Pillemer provided his initial report dated
1 November 2022. Dr Pillemer reported a history of injury:
“His history was confirmed as having sustained his injuries on 8 May 2021, now some 1 year and 6 months ago when he was on the third rung of a step-ladder and his foot slipped and he fell, and as he fell he reached for an air line with his right hand and sustained a significant traction injury to his right shoulder region, and also fell to the ground …”
Dr Pillemer described the workplace incident occurring on 8 May 2021 as occurring on a Saturday with Mr Hayes reporting it on “the Monday”. Dr Pillemer described Mr Hayes “as being able to continue working until he was terminated on 18 May 2022 for other reasons. Dr Pillemer said Mr Hayes explained he was able to continue with his normal work” as this was basically office work at bench top level, and he was not required to do any sort of manual activity.
Dr Pillemer described Mr Hayes as not working at the present time but with “another job lined up.”
Dr Pillemer reported Mr Hayes presented with complaint of symptoms in his right shoulder. Dr Pillemer reported Mr Hayes had no problems with his right shoulder prior to the incident occurring on 8 May 2021. Dr Pillemer described Mr Hayes as having no particular problem with activities at bench top level “provided he does not have to stretch out to get something.” However, Dr Pillemer noted Mr Hayes’ concern regarding any activities involving his right arm above shoulder level. Dr Pillemer noted Mr Hayes had previously sustained injury to his left shoulder.
Following clinical examination and review of the CT scan dated 22 September 2022 and ultrasound dated 10 October 2022, Dr Pillemer provided opinion:
“My Hayes sustained a traction injury to his right shoulder region on 8 May 2021, some 1 year and 6 months ago, and has had ongoing problems with his right shoulder since then. As noted, he was unrestricted and asymptomatic prior to his incident and the investigations show a significant rotator cuff tear to be present. It would certainly seem as though his rotator cuff tear occurred at that time.”
Dr Pillemer went on to say:
“In my opinion the injury on 8 May 2021 would either be the cause of his rotator cuff tear and early arthritic change, or if not, would seem to be the main aggravating factor of any longstanding problem that might have been present.”
While Dr Pillemer considered Mr Hayes would be fit for work at bench top level, he did consider he would be fit for work above shoulder level or fit for work which “involved rapid or repetitive use of his arm, or heavy lifting on the right side.” Dr Pillemer also considered, absent surgical repair of his ruptured rotator cuff, Mr Hayes will have significant ongoing problems with his right shoulder.
In a supplementary report dated 21 March 2023 Dr Pillemer provided comment on the reports dated 21 February 2023 and 20 March 2023 prepared by A/Prof Miniter, discussed below. Dr Pillemer relevantly said:
“With regard to A/Prof Miniter’s report of 21 February 2023, he notes with regard to history, which following Mr Hayes’ injury on 8 May 2021 ‘he recalled the shoulder being uncomfortable at the time but he did nothing about it in particular’. He goes on to note that Mr Hayes only reported this '…about three months later …’
As noted, this is not the history that I had received and Mr Hayes informed me that he had reported the injury on the Monday following the Saturday on which the injury occurred. Obviously, this information would need to be checked and confirmed, and if in fact he did not report the shoulder for three months after the injury, this would certainly suggest less importance to the injury than I was led to believe’.”
Noting A/Prof Miniter’s opinion regarding diagnosis, attributability to injury and symptomology, Dr Pillemer cautioned:
“Much therefore depends on an accurate history, and the history I obtained was that Mr Hayes was asymptomatic prior to the incident and had ongoing problems since then, and that in fact the injury was reported two days later, after the weekend.
Obviously if the history obtained by A/Prof Miniter is correct, and that Mr Hayes did not report the injury at the time and reported it ‘…about three months later…,’ this would certainly indicate that the extent of any aggravation is likely to have been fairly minor.
Obviously then, an accurate history of Mr Hayes’ problem with his right shoulder following his injury on 8 May 2021 would be crucial in this situation, and which history given to A/Prof Miniter and myself is more correct, would be very important in trying to assess the extent of any aggravating of his underlying condition that might have been caused on 8 May 2021.”
In a supplementary report dated 30 April 2023, following review of the supplementary statement prepared by Mr Hayes on 26 April 2023, Dr Pillemer wrote:
“Unfortunately, this latest statement does not really clarify the issues, as will be noted below. The important aspects would be the extent of Mr Hayes’ symptoms from the time of his injury on 8 May 2021 and the ongoing problems since that time.”
In essence, Dr Pillemer explained that if corroborating evidence from Mr Hayes’ treating physiotherapist, Ms Noble and Mr Baxter, Ms Ward and Mr Skinner, being persons to who
Mr Hayes referred in his supplementary statement could be obtained “it would certainly be my opinion that Mr Hayes’ injury on 8 May 2021 would have been an aggravation of an underlying condition and had been a substantial contributing fact to his ongoing symptoms”. Dr Pillemer explained “I do not feel I could be more specific than this at the present time but would be happy to supply additional opinion if more facts can be ascertained.”
Dr Pillemer re-assessed Mr Hayes on 12 February 2024 and provided a further report dated 23 February 2024. Dr Pillemer relevantly provided an update of Mr Hayes’ work history:
“When last seen he informed me that he had been terminated in May 2022, and had another job lined up, but apparently this was not successful, and he would have difficulty passing the medical. He is now hoping to get an office job and be able to get back to gainful employment.”
Dr Pillemer reported Mr Hayes presented with complaints of pain in his right shoulder:
“indicating the whole shoulder area with symptoms still going as high as 8-9/10 and aggravated particularly by an overhead activity or stretching out. He does get relief by simply resting and taking his tablets. As far as activities of daily living are concerned, he says that in addition to his previous restrictions he is now unable to hang washing.”
Dr Pillemer again noted Mr Hayes denied any problems with his right shoulder prior to the incident occurring on 8 May 2021.
Dr Pillemer understandingly expressed concern regarding his review of Mr Hayes’ general practitioner’s clinical records demonstrated “no mention of any problems with his right shoulder until 17 June 2022”, which he noted was some 13 months after the incident occurring on 8 May 2021. Dr Pillemer said:
“My Hayes was therefore questioned very specifically about this, and he informs me that he did not complain to his general practitioner about these symptoms as he was still able to do his desk job, and he was also able to delegate, and that he was ‘not on the tools’ but occasionally he did get on the tools at bench top level which he was able to do. He also informs me that he did not have any intention at that stage of raising a workers compensation claim in relation to his shoulder injury of 8 May 2021.
As noted previously, my concern has always been with regard to the accuracy of
Mr Hayes’ history as given to me initially, and again today. As noted, this was conflicted with regard to the reports of Dr Miniter.”

Dr Pillemer again suggested that receipt of specific further evidence “would be most important and certainly very helpful in enable me to give a firm opinion in this regard.” Having said this, Dr Pillemer accepted “Mr Hayes comes across as being a very straightforward and open person, and I would certainly be prepared to accept the history he has given me as well as the explanation as to why he did not report his symptoms to his general practitioners until many months later.”
In his supplementary report dated 2 May 2024, Dr Pillemer provided further opinion following review of further information forwarded to him, which he did not identify. In response to specific questioning, Dr Pillemer in essence confirmed that Mr Hayes’ employment with CSR was a substantial contributing factor to the injury he sustained to his right shoulder on8 May 2021, with his opinion remaining “the injury on 8 May 2021 would either be the cause of his rotator cuff tear and early arthritic change, or if not, would seem to be the main aggravating factor of any longstanding problem that might have been present”.
In his further supplementary report dated 12 June 2024, Dr Pillemer provided opinion following review of Dr Fung’s report dated 24 April 2024 and A/Prof Miniter’s report dated
31 May 2024. I think it is fair to say that Dr Pillemer carefully summarised his previously expressed opinion. Dr Pillemer correctly identified “that the key question has been whether Mr Hayes sustained any injury to his right shoulder at the time of the incident on 8 May 2021”. Dr Pillemer provide comment on both the report prepared by Dr Fung and A/Prof Miniter’s report. Relevant to Dr Fung’s conclusion “it is not possible to confidently ascribe cause of the patient’s symptoms to a personal injury sustained on 8 May 2021, although this cannot be entirely ruled out” Dr Pillemer said that in reaching such conclusion “Dr Fung has been guided by his understanding that Mr Hayes had no problems with his right shoulder region following the injury on 8 May 2021 which as noted does not seem to be correct.” Relevant to A/Prof Miniter’s report while Dr Pillemer said he agreed with A/Prof Miniter’s statement “I believe there is no evidence to suggest that this man had a serious injury on the date in question” he said such statement “does not in any way exclude the fact that there was an injury which is likely to have aggravated an underlying condition” and reiterated his previously expressed opinion “My Hayes did sustain and injury to his right shoulder region on 8 May 2021 … In my opinion, this would have been an aggravation of a longstanding underlying rotator cuff problem”.
In his further report dated 19 June 2024 Dr Pillemer provided clarification that in providing his previously expressed opinion he had received and reviewed both the clinical records of Goulburn Physiotherapy and the incident report dated 10 May 2021.

Associate Professor Miniter

Mr Hayes was orthopaedically assessed by A/Prof Miniter on 9 August 2023 in his capacity as independent medical examiner. A/Prof Miniter provided a substantive report dated
21 February 2023.
A/Prof Miniter relevantly reported Mr Hayes presented “with issues relating to his right shoulder”. A/Prof Miniter reported that Mr Hayes told him he had injured himself at work on
8 May 2021 while assessing a control valve repair. A/Prof Miniter reported:
“Apparently the fitters had been in, they had repaired the control valve, but they had not started up the compressor which was required to function effectively to allow the company to operate. Mr Hayes told me that he started up the compressor and the control valve blew off. Annoyed as he was by this, noting that the fitters had not checked their work, he got up onto a dryer with his right foot and his left foot on the top of a stool. Apparently his left foot slipped off, causing him to come toward the ground, and he found himself hanging by his right arm. He then dropped himself to the ground and had significant lower back pain.
He recalled the shoulder being uncomfortable at the time, but he did nothing about it in particular.
Mr Hayes did report it about 3 months later and had some physiotherapy by the company physiotherapist.
The matter was not taken any further and I note Mr Hayes lost his job in May 2022 due to some type of safety breach…
In effect, Mr Hayes has not worked since and is not currently able to work, from his point of view.”
A/Prof Miniter reviewed the CT scan dated 20 September 2022, which he said:
“demonstrated what appeared to be a rotator cuff arthropathy with upriding of the humeral head, significant AC joint osteoarthritic change and glenohumeral osteoarthritic change. The changes would appear to be longstanding.”
Following clinical examination, A/Prof Miniter provided commentary:
“Mr Hayes presents today with bilateral significant rotator cuff disease. It is likely to be age related. There is evidence of advanced osteoarthritis affecting the shoulder joint, probably secondary to the rotator cuff disease.
The episode that he described is not likely to have altered the natural history of this matter. He gave no clear history of major shoulder pain following the episode in question, had no bruising, and in general terms, has probably aggravated the pre-existing disease.
If he had truly extended the rotator cuff disease, one would have expected him to have a drop-arm sign or profound weakness that had not been present before. He does not give a history of this nature.”
In response to specific questioning A/Prof Miniter said:
“In my opinion, there is no clear evidence to suggest a significant injury having occurred on the day of Mr Hayes’ alleged injury in the workplace. It is more likely than not that the pathology was pre-existing, this being exemplified by the presence of similar pathology on the left hand side.”
A/Prof Miniter provided diagnosis of rotator cuff arthropathy affecting the right shoulder. He said “Mr Hayes has clear evidence of a full thickness rotator cuff tear on that side. It is also evident on the contralateral side”. A/Prof Miniter noted opinion provided by Dr Pillemer and said:
“I note that Dr Pillemer’s diagnosis appears to suggest that Mr Hayes was “unrestricted and asymptomatic prior to this incident, and the investigations show a significant rotator cuff tear to be present. It would certainly seem as though his rotator cuff tear occurred at that time.”
I am afraid I cannot agree with Dr Pillemer from this point of view, as the ultrasound showed extensive tears of supraspinatus, infraspinatus and biceps, and if this had been an acute injury, one would have expected a drop-arms sign and profound acute weakness, which was simply not evident.”
While it appears A/Prof Miniter accepted Mr Hayes “has had an acute injury at the time” he considered Mr Hayes’ shoulder injury had resolved.
As to Mr Hayes’ capacity for work, A/Prof Miniter said:
“Mr Hayes is not fit to return to heavy work. He is a fitter by training, but I do not believe he is fit to perform this work.
Unfortunately his overall general health is relatively poor, and this combined with his diabetes, which is poorly controlled, his haematological malignancy, and the significant shoulder findings evident on both sides, make it difficult to determine that Mr Hayes will return to work in a functional fashion longer term.”
A/Prof Miniter provided a supplementary report dated 20 March 2023 following his review of Mr Hayes’ general practitioner’s clinical records, in which he said:
“As you have appropriately observed, there is no mention of issues relating to the right shoulder between the alleged incident in the workplace and the report of this matter over a year later. This would certainly align with my overall impression of the issue which has been conveyed to you in previous correspondence.
In short, the findings would suggest that this is a longstanding problem, and you will recall that I made reference to the fact that I could not agree with the opinion of Dr Pillemer who made the observation that it was likely that there was an acute rotator cuff tear.
…
In general terms, and in particular in relation to the shoulder, I do not believe that the matter causes me to change my opinion. It is clear that this gentleman has a number of medical problems, and it also clear that the correspondence would suggest that this was a longstanding problem and most unlikely to be related to the alleged incident in the workplace in 2021.”
A/Prof Miniter provided a further supplementary report dated 31 May 2024 following review of Mr Hayes’ supplementary statement dated 8 February 2024, Dr Pillemer’s reports dated
23 February and 2 May 2024, the clinical records of Bradfordville Medical Centre relevant to Mr Hayes as at 11 December 2023, the email from Goulburn Physiotherapy Centre dated
31 January 2024 and the medical report of Dr Fung dated 24 April 2024, discussed below.
A/Prof Miniter said the further documents provided to him “basically confirms my view that it is most unlikely that there has been a significant injury in the alleged workplace episode described in my previous reports”. In response to specific questioning he wrote:
“The information that you have put forward to me simply supports the concept that I have put forward to you, whereby this matter in my opinion is not an issue that is other than longstanding. I would suggest to you that if here was an acute rotator cuff tear, he would have almost certainly had a drop arms sign, and this was not in evidence either by reference to his clinical presentation or by his own history.”

Dr Fung

Dr Fung provided a report dated 24 April 2024, which he had prepared in his capacity as independent medical examiner, and which is the nature of a radiological review. Dr Fung is a radiologist.
Dr Fung relevantly noted that while Mr Hayes had previously been employed with CSR, his employment was terminated effective from 18 May 2022 as a result of a safety breach occurring on 10 May 2022. Dr Fung noted the circumstances of injury occurring on
8 May 2021 from the incident report dated 10 May 2021, referred above.
Dr Fung cautioned that in providing his report following his review of the right shoulder ultrasound dated 10 October 2022 and the CT scan dated 20 September 2022, his report “is limited” because “ultrasounds of the shoulder are a dynamic study and should ideally be interpreted with the benefit of live ‘real-time’ scanning”.
In response to specific questioning, I think it fair to say that Dr Fung provided opinion:
(a)    it is possible that the pathology identified in the ultrasound dated
10 October 2022 occurred in the workplace incident occurring on 8 May 2021 As to whether the pathology identified in the ultrasound is likely to have occurred in the workplace incident, he was unable to say that;
(b)    an absence of reported symptoms between 8 May 2021 and 17 June 2022, although not conclusive, could imply either that the injury identified in the ultrasound dated 10 October 2022 occurred well before 8 May 2021 or occurred sometime between 17 June 2022 and the ultrasound on 10 October 2022, and
(c)    from the diagnostic imaging provided (identified) and the clinical records provided to him (not identified) it would not be possible to confidently ascribe the cause of Mr Hayes’ symptoms to a personal injury sustained on 8 May 2021 “although this cannot be entirely ruled out”.

Submissions

Mr Moffatt and Mr Grimes made oral submissions, which I have carefully considered. As a recording of counsels’ submissions is available to the parties on request, I have not reproduced them here.

Determination

I am required to determine a number of issues. I am required to determine whether Mr Hayes sustained injury to his right shoulder on 8 May 2021 in the course of his employment with CSR with his employment being the main contributing factor to injury, and if so, whether Mr Hayes is precluded from recovering compensation payable under the 1987 Act for the injury due to an alleged failure to make a claim for compensation within the time frames required by s 261 of the 1998 Act, and if not, whether Mr Hayes suffers an incapacity for work since 22 May 2022 resulting from the injury and has entitlement to weekly compensation payable under ss 36 and 37 of the 1987 Act resulting from the injury.
Mr Hayes has the onus of proving these matters.
In Nguyen v Cosmopolitan Homes (NSW) Limited[2] the court stated, “a number or cases of high authority insist for a tribunal of fact to be satisfied on the balance of probabilities of that fact” and I consider it also helpful to note that in Malec v JC Hutton Pty Limited[3] the court stated:
“A common law court determined on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred is less than it not having occurred, it is treated as not having occurred.”
[2] [2008] NSWCA 246.
[3] (1990) 169 CLR 638.
Relevant to the issue of causation, it must also be remembered that in Kooragang Cement Ltd v Bates[4] the court relevantly stated:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts … What is required is a commonsense evaluation of a causal chain.”

Whether Mr Hayes sustained injury to his right shoulder on 8 May 2021 in the course of his employment with CSR with his employment being the main contributing factor to injury

[4] (1994) 35 NSWLR 452.

Section 4 of the 1987 Act relevantly defines injury as a personal injury arising out of or in the course of employment, including injury in the nature of an aggravation, acceleration, exacerbation or deterioration in the course of employment, of a disease if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. Whether employment is the main contributing factor to an injury is a question of fact and is a matter of impression and degree to be decided after consideration of all of the evidence, with the relevant authority being AV v AW.[5]
[5] [202] NSWWCCPD 9.
The event/investigation-output form completed on 10 May 2021, being the Monday after the workplace incident occurring on Saturday, demonstrated Mr Hayes sustained a “sprain/strain” injury to his right upper arm, including “sprain/strain” to his right knee and his low back, with his main concern at that time being his right knee, when one of his feet slipped off a ladder.
The onsite physiotherapy assessment document, which is relevant to Mr Hayes’ attendance with Mr Moule in August 2021, demonstrated Mr Hayes presented with right shoulder complaint following a fall from a ladder three months’ earlier, with recommendation that
Mr Hayes be referred for ultrasound imaging if there was no improvement in his symptoms within one month.
While it may be thought curious that Mr Hayes presented to Bradfordville Family Medical Centre on two occasions in late May 2021 and again in August 2021 with no complaint about his right shoulder despite Mr Hayes having presented to Mr Moule in August 2021 with right shoulder complaint, to my mind this accords with explanation provided in his statements and to Dr Pillemer that Mr Hayes did not chose to consult with his general practitioners about his right shoulder injury until after his employment with CSR had been terminated because he harboured concern that if CSR became aware of such complaint by him to his general practitioners, CSR would anticipate Mr Hayes would make a claim for workers compensation, which Mr Hayes explained he did not wish to do as he perceived to do would attract adverse reaction by CSR management.
It is apparent from correspondence dated 14 July 2023 from Allmac Welding & Fabrication (Allmac) that following the termination of Mr Hayes’ employment with CSR in mid-May 2022,
Mr Hayes entered into negotiations with Allmac with a view to securing employment as workshop manager with Allmac, with the role being ‘held open’ for him for a period of six months so as to enable him to obtain medical clearance for the role, relevant to his right shoulder injury. Mr Hayes explained in his statements that it was this conditional employment opportunity that prompted him to consult with Dr Aung on 17 June 2022 with a history of injury occurring on 8 May 2021 when Mr Hayes slipped off a ladder.
In his initial statement dated 6 July 2022, which he provided to an investigator, Mr Hayes said he felt immediate pain in his right shoulder when his foot slipped off the ladder in the incident occurring on 8 May 2021, his history as to the circumstances of injury being in consistent terms to that provided to Dr Aung a few weeks’ earlier, on
17 June 2022. Mr Hayes was cross examined and re-examined during the arbitration hearing of his claim and as did Dr Pillemer, I am prepared to accept Mr Hayes’ history of injury occurring on 8 May 2021 and also his explanation as to why he did not report his symptoms to his general practitioners until some considerable time later. I consider Mr Hayes’ evidence to be believable and I accept him as a credible witness, despite the evidence provided by Ms Ward, Mr Skinner and Mr Kooyman more than a year after the incident occurring on 8 May 2021 to the effect that Mr Hayes had made no complaint to them of a problem with his right shoulder between 8 May 2021 and the termination of his employment a year later. It may be that with the passage of time Ms Ward, Mr Skinner and Mr Kooyman merely have no recollection of any complaint made by Mr Hayes to them of a problem with his right shoulder between 8 May 2021 and the termination of his employment a year later.
While on 8 December 2022 Dr Rae recorded a history of Mr Hayes landing predominantly on his right arm when he fell off the ladder in the incident occurring on 8 May 2021 and only starting to notice right shoulder symptoms “a day or two later”, I do not believe this anomaly to be of any great moment in circumstances where Dr Pillemer in his capacity as independent medical examiner recorded a consistent history of injury occurring on
8 May 2021 when he independently assessed Mr Hayes just over a month earlier on
1 November 2022, particularly so as Dr Rae, as a treating orthopaedic surgeon, was of course more concerned with treatment of Mr Hayes’ right shoulder injury, rather than the cause of the injury.
Dr Pillemer provided a number of reports relevant to Mr Hayes’ claim before the Commission, and I think it is fair to say that Dr Pillemer is a very experienced independent medical examiner who has provided the Commission with assistance for many years.
As noted, when Dr Pillemer first assessed Mr Hayes on 1 November 2022, some 18 months after the incident occurring on 8 May 2021, Dr Pillemer took a consistent history of injury occurring and noted too that Mr Hayes had “another job lined up” which is also consistent with Mr Hayes’ reportedly being in discussion with Allmac about securing the role of workshop manager. Following clinical examination on that occasion and review of both the CT scan dated 22 September 2022 and the ultrasound dated 10 October 2022, Dr Pillemer accepted Mr Hayes sustained injury to his right shoulder on 8 May 2021 and said:
“… in my opinion the injury on 8 May 2021 would either be the cause of his rotator cuff tear and early arthritic change, or if not, would seem to be the main aggravating factor of any longstanding problem that might have been present.”
However, following review of A/Prof Miniter’s reports, and I accept too that A/Prof Miniter is a very experienced independent medical examiner who has provided the Commission with assistance for many years, in a supplementary report dated 23 March 2023 Dr Pillemer noted A/Prof Miniter had recorded a different history of reporting of injury to his right shoulder and cautioned:
“… an accurate history of Mr Hayes’ problem with his right shoulder following his injury on 8 May 2021 would be crucial in this situation, and which history given to A/Prof Miniter and myself is more correct, would be very important in trying to assess the extent of any aggravating of his underlying condition that might have been caused on 8 May 2021.”

When Dr Pillemer re-assessed Mr Hayes on 12 February 2024 he expressed concern that his review of Mr Hayes’ general practitioners’ clinical records demonstrated “no mention of his right shoulder until 17 June 2022” and reiterated his previously expressed concern regarding the history provided to him by Mr Hayes at initial assessment and again on re-assessment, which conflicted with the history reportedly provided to A/Prof Miniter. This noted, Dr Pillemer said of Mr Hayes that he “would certainly be prepared to accept the history he has given me as well as the explanation as to why he did not report his symptoms to his general practitioners until many months later”.
Following his subsequent review of the incident report lodged on 10 May 2021, the clinical records of Goulburn Physiotherapy, the report of A/Prof Miniter dated 31 May 2024 and
Dr Fung’s report dated 24 April 2024, in his supplementary report dated 12 June 2024,
Dr Pillemer provided a considered summary of his previously expressed opinion and with specific reasoning canvassing opinion provided by Dr Fung and A/Prof Miniter, confirmed his opinion that Mr Hayes sustained injury to his right shoulder on 8 May 2021, such injury being in the nature of an aggravation of a longstanding underlying rotator cuff problem.
When A/Prof Miniter first assessed Mr Hayes on 9 August 2023, A/Prof Miniter provided a history of injury occurring on 8 May 2021 in consistent terms but reported that Mr Hayes recalled “the shoulder being uncomfortable at the time” but not reporting it for about three months. At the time of assessment A/Prof Miniter reviewed the CT scan dated
20 September 2022 and concluded there was “no clear evidence to suggest a significant injury having occurred” with it being more likely that the pathology demonstrated on the diagnostic imaging was pre-existing. Following review of Mr Hayes’ general practitioners’ clinical records, Mr Hayes’ supplementary statement dated 8 February 2024 in which
Mr Hayes’ essentially explains his delay in complaint of right shoulder problems to his general practitioners, the email explanation from Goulburn Physiotherapy regarding
Mr Hayes’ attendance for physiotherapy treatment, further reporting of Dr Pillemer and the report of Dr Fung, A/Prof Miniter confirmed his opinion that it was most unlikely that
Mr Hayes had suffered significant right shoulder injury in the incident occurring on
8 May 2021 and that his right shoulder injury is a pre-existing injury.
I have reviewed the evidence as a whole and I have carefully considered counsel’s submissions. I am satisfied on the balance of probabilities that Mr Hayes sustained injury to his right shoulder on 8 May 2021 in the course of his employment with his employment being the main contributing factor to injury. I feel an actual persuasion of that fact.
Dr Fung had the opportunity to review both CT scan dated 20 September 2022 and the ultrasound dated 10 October 2022, and while he conceded that ultrasound scanning should ideally be interpreted with the benefit of live “real time” scanning, which of course was not available to him, he accepted it was possible that the pathology identified on the ultrasound occurred in the incident occurring on 8 May 2021. Dr Fung conceded too that from the identified diagnostic imaging provided to him and the clinical records provided to him, it was not possible to completely rule out that the symptoms Mr Hayes suffered in his right shoulder resulted from the incident occurring on 8 May 2021. After considerable contemplation of the evidence made available to him, Dr Pillemer maintained his opinion that Mr Hayes sustained an injury to his right shoulder in the incident occurring on 8 May 2021, which was in the nature of an aggravation of a pre-existing condition and while A/Prof Miniter is of the view that it was unlikely Mr Hayes suffered a significant injury to his right shoulder in the incident occurring on 8 May 2021, I am not inclined to accept A/Prof Miniter’s opinion against a back drop of an absence of evidence demonstrating complaint of right shoulder symptoms by
Mr Hayes prior to the incident occurring on 8 May 2021 and the presence of evidence demonstrating complaint of right shoulder symptoms by Mr Hayes to Mr Moule in
August 2021 with a consistent history of falling from a ladder some three months’ earlier, and I am mindful of Dr Pillemer’s comment:
“While I would agree with Dr Miniter’s statement ‘I believe that there is no evidence to suggest that this man had a serious injury on the date in question’ this does not in any way exclude the fact that there was an injury which is likely to have aggravated an underlying condition. I would also agree with Dr Miniter’s suggestion that it was not ‘an acute rotator cuff tear’ as the symptoms would have been much more severe at that time.”

Whether Mr Hayes is precluded from recovering compensation payable under the 1987 Act due to alleged failure to make a claim for compensation within the time frames required by s 261 of the 1998 Act

Section 261 of the 1998 requires that a claim for compensation must be made within six months after the date of injury or accident happened. However this bar is lifted if failure to make a claim for compensation was occasioned by ignorance, mistake, absence from the State or other “reasonable cause” and a claim was made within three years after the date that the injury of accident happened.
While there is no doubt Mr Hayes’ claim for compensation was made outside the specified six-month period, his claim for compensation was not made outside the specified three year period and I am of the view Mr Hayes has discharged the burden of proof required of him. I accept Mr Hayes initially failed to make his claim for compensation resulting from the injury I have determined he sustained to his right shoulder on 8 May 2021 in the course of his employment with CSR as (a) he was aware of the effect that workers compensation claims had on business operations, (b) he perceived a negative attitude of management towards employees “on workers compensation” and (c) he only realised the consequence of failing to make his claim in a timely fashion when he was unable to receive medical clearance to commence employment with an alternate employer following the termination of his employment with CSR.
Mr Hayes has provided detailed explanation as to why he did not make his claim for workers compensation within six months of the incident occurring on 8 May 2021 and I accept his explanation without hesitation.
Having considered the evidence as a whole and careful consideration of counsel’s submissions I accept s 261 of the 1998 is not a bar to recovery of compensation that may be payable to Mr Hayes under the 1987 Act for the injury I have determined he sustained to his right shoulder on 8 May 2021 in the course of his employment with CSR.

Whether Mr Hayes suffers an incapacity for work since 18 May 2022 resulting from the injury

Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during incapacity”.
Sections 36 and 37 of the 1987 Act provide for weekly payments during an injured worker’s first and second entitlement period and require consideration as to whether an injured worker has “current work capacity” of “no current work capacity” as defined in cl 9 of Schedule 3 of the 1987 Act. “Suitable employment” is relevantly defined in s 32A of the 1987 Act.
Assessment of Mr Hayes’ capacity for work from 18 May 2022 involves consideration as to whether Mr Hayes has had a current work capacity or no current work capacity as defined in Schedule 3 of the 1987 Act. This requires consideration of Mr Hayes’ capacity to undertake not only is pre-injury employment with CSR but his capacity to undertake suitable employment as defined in s 32A of the 1987 Act, irrespective of its availability. This is accepted in Wollongong Nursing Home Pty Ltd v Dewar.[6] It is also accepted in Dewar that suitable employment “must refer to a real job in employment for which the worker is suited”.
[6] [2014] NSWWCCPD 55 (Dewar).
In his initial statement dated 6 July 2022 Mr Hayes confirmed he was not working and was experiencing pain and discomfort in his right shoulder, which was affecting his day to day activities. He explained he was taking medication to manage his pain. Mr Hayes said at that time he “would not pass a pre-employment medical” because of the injury he sustained to his right shoulder in the incident occurring on 8 May 2021. In his supplementary statement dated 2 March 2023, Mr Hayes said his right shoulder injury was deteriorating and he did not think he could work at that time as his right shoulder injury “is too severe.” Mr Hayes explained his right shoulder is quite restricted and he finds “it particularly hard to elevate above shoulder level, stretch out or to lift weights”. He explained he is experiencing increasing difficulty with his day to day activities. He explained he was still taking medication to manage his pain. In his most recent statement dated 8 February 2023, Mr Hayes said his right shoulder “remains painful and restricted”.
Dr Aung provided Mr Hayes with a certificate of capacity on 20 June 2022 in which she certified Mr Hayes with a total incapacity for work from 17 June 2022 until 17 July 2022. On review on 14 September 2022 Dr Aung again considered Mr Hayes totally incapacitated for work and provided him with such certification to 17 October 2022.
At initial assessment on 1 November 2022, while Dr Pillemer considered Mr Hayes would be fit for work at benchtop level he said he would not be fit for work above this level or for work that involved rapid or repetitive use of his arm or heavy lifting. Dr Pillemer also evidentially correctly cautioned that without surgical treatment Mr Hayes would have significant ongoing problems with his right shoulder.
On review on 16 February 2023, Dr Aung noted Dr Rae had reportedly told Mr Hayes of an “unlikelihood for him to be back to duties”.
At initial assessment on 9 August 2023 A/Prof Miniter reported Mr Hayes was of the view that he was not currently able to work, and A/Prof Miniter conceded that Mr Hayes was not fit to undertake the duties of a fitter and relevantly conceded that Mr Hayes’ right shoulder injury contributed to Mr Hayes’ inability to “return to work in a functional fashion longer term”.
On 19 October 2023 Dr Rae described a deterioration in Mr Hayes’ right shoulder condition and indicated that proposed surgical treatment “should allow a return to truck driving or other light physical tasks”.
At re-assessment on 12 February 2024 Dr Pillemer described a deterioration in Mr Hayes’ right shoulder condition and described his activities of daily living further restricted.
There can be no doubt Mr Hayes suffers a right shoulder injury, which has deteriorated over time as anticipated by Dr Pillemer. Dr Aung who has the day to day general medical care of Mr Hayes provided opinion Mr Hayes was totally incapacitated for work resulting from his right shoulder injury from 17 June 2022 and while it may be that on assessment on 1 November 2022 Dr Pillemer considered Mr Hayes had capacity to work at benchtop level, it is evident that the negotiations Mr Hayes had entered into with Allmac to secure the position of workshop manager, which commenced in May 2022, had failed to come to fruition by November 2022 due to Mr Hayes’ inability to obtain medical clearance for work resulting from his shoulder injury.
Having considered the evidence as a whole and careful consideration of counsel’s submissions I accept that for all intents and purposes Mr Hayes has had no current capacity for work from 18 May 2022 resulting from injury I have determined he sustained to his right shoulder on 8 May 2021 in the course of his employment with CSR. While it may be that Dr Aung has only provided opinion regarding Mr Hayes’ capacity for work following Mr Hayes’ consultation with her on 20 June 2022, I accept that at the time Mr Hayes’ entered into negotiations with Allmac in May 2022 following the termination of his employment with CSR on 18 May 2022 Mr Hayes was unable to secure the position of workshop manager due to his right shoulder injury, and on the balance of probabilities I accept Mr Hayes had no current capacity for work in that short period between the termination of his employment with CSR on 18 May 2022 and his consultation with Dr Aung on 20 June 2022.

Quantification of entitlement to weekly compensation

The parties agree Mr Hayes’ PIAWE is $2,211.64.
I have determined Mr Hayes has no current work capacity since 18 May 2022 resulting from injury I have determined he sustained to his right shoulder on 8 May 2021 in the course of his employment with CSR. Mr Hayes has an entitlement to weekly compensation payable from 18 May 2022 under s36 of the 1987 Act at the rate of $2,101.06 and Mr Hayes has an entitlement to weekly compensation payable under s 37 of the 1987 Act at the rate of $1,769.31 per week in accordance with the1987 Act (subject to indexation).

SUMMARY

I have determined Mr Hayes sustained injury to his right shoulder on 8 May 2021 in the course of his employment with CSR and that his employment was the main contributing factor to injury.
I have determined that s 261(1) of the 1998 Act is not a bar to the recovery of compensation payable to Mr Hayes under the 1987 Act resulting from the injury I have determined he sustained to his right shoulder on 8 May 2021 in the course of his employment with CSR.
I have determined that Mr Hayes has had no current work capacity from 18 May 2022 resulting from the injury I have determined he sustained to his right shoulder on 8 May 2021 in the course of his employment with CSR.
Mr Hayes has an entitlement to weekly compensation payable from 18 May 2022 under s 36 of the 1987 Act at the rate of $2,101.06 and Mr Hayes has entitlement to weekly compensation payable under s 37 of the 1987 Act at the rate of $1,769.31 per week in accordance with the 1987 Act (subject to indexation).

[2024] NSWPIC 507

12 September 2024