Hillsley v Hillsbus Co Pty Ltd
[2024] NSWPIC 705
•17 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Hillsley v Hillsbus Co Pty Ltd [2024] NSWPIC 705 |
| APPLICANT: | Brett Hillsley |
| RESPONDENT: | Hillsbus Co Pty Ltd |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 17 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether the worker sustained a consequential condition of the right elbow which results from injury to the left shoulder; consideration of Moon v Conmah Pty Ltd; whether the left shoulder injury materially contributed to the right elbow condition/injury; consideration of Ozcan v Macarthur Disability Services Ltd; whether injury to the left shoulder and right elbow result from the same injurious incident; Held – worker sustained a consequential condition to the right elbow which results from injury to the left shoulder; the left shoulder injury materially contributed to the right elbow condition; injury to the left shoulder and right elbow do not result from the same injurious incident; however, there can be one assessment of impairment for injury to the left arm and right elbow. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant has a consequential condition affecting his right elbow, as a result of the injury he sustained to his left shoulder on 25 September 2019. 2. The injury sustained by the applicant to his left shoulder materially contributes to his right elbow condition. 3. The injury sustained by the applicant to his left shoulder and the injury sustained to the right elbow do not result from the same injurious event. 4. There can be one assessment of permanent impairment of the left upper extremity (left shoulder) and right elbow arising out of injury on 25 September 2019 in addition to the non disputed injury to the right shoulder and scarring. Orders 5. The medical dispute is remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment as a result of injury as follows: Body parts: left upper extremity (shoulder); right upper extremity (shoulder and elbow), and scarring. Date of injury: 25 September 2019. Documents: Application to Resolve a Dispute and attachments, and Reply and attachments. |
STATEMENT OF REASONS
BACKGROUND
By way of an Application to Resolve a Dispute (ARD), Brett Hillsley (the applicant) claims lump sum compensation under the Workers Compensation Act 1987 (the 1987 Act) for injuries to the right upper extremity (shoulder and elbow), left upper extremity (shoulder) and scarring, said to arise out of his employment with Hillsbus Co Pty Ltd (the respondent).
The respondent consents to the matter being referred to a Medical Assessor for assessment of all areas except for the right elbow, a position it held firm at conciliation and which ultimately proceeded to arbitration, where Ms Goodman of counsel instructed by Ms Parisis represented the applicant. Mr Stockley of counsel instructed by Mr Thorne represented the respondent. Ms Moore was the insurer representative.
Prior to the arbitration, the applicant sought leave to admit late documents, relevantly the ARD, Reply and consent orders relating to matter no W4891/23 where the respondent voluntarily agreed to pay for the costs of treatment (platelet-rich plasma injections (PRP) injections) relating to the right elbow. After hearing submissions, I determined the documents were relevant to the assessment of the matter and so admitted them with the Direction they be filed with the Registry on the day of the arbitration. This was done.
As the dispute is a narrow one, discernment will focus on the claim for the right elbow. In doing so I considered submissions of counsel, the ARD, the Reply, and the additional documents lodged on 10 December 2024.
EVIDENCE
Applicant’s statement
In his statement dated 6 August 2024,[1] the applicant recounts the left shoulder injury, diagnosis, surgical intervention and rehabilitation none of which is disputed by the respondent. He recounted sudden movements such as being jostled in the car and that restricted duties aggravated the shoulder pain and his rehabilitation was slow.
[1] Folios 1-6 of the ARD.
The injury to the right elbow occurred at home on 7 July 2020 and was stated to occur in the following circumstances (unedited):
“18. On or around 7 July 2020, when I was at home I suffered an injury to my right arm, and in particular my elbow.
19. I was walking outside carrying towels in my right hand and I had my left arm close to my body as it was very sore.
20. My son, Brendon, had returned from a camping trip and had left his camping gear on the Veranda. There was a jagged metal piece which was part of a frame for some of his camping gear which was protruding and I walked into it with my right shin. This caused me to fall to my left.
21. My right leg became caught/hooked around that metal piece and I sustained a cut to my right shin.
22. Because of the way I was falling, towards my left, I was going to land on to my left shoulder.
23. There was gym equipment nearby which I grabbed onto.
24. I was concerned about falling onto my left shoulder, as it had been recently operated on, so I grabbed a metal pole with my right arm, to prevent myself from falling onto the recovering left shoulder.
25. I was very conscious about not injuring my operated shoulder and did everything I could to break the fall using my right hand.
26. I could not put out my left hand to break the fall which I normally would have done. 27. As I grabbed the pole, I continued to fall, causing pain in my right elbow. I saw my GP on this date for treatment and underwent a scan the following day”.
The statement also details right shoulder symptoms (undisputed by the respondent) and the impact that all the injuries have had on activities of daily living.
Dr Aung, general practitioner
As indicated above, the applicant sought medical attention from his general practitioner on 7 July 2020. His clinical entry records[2] (unedited)
“lacerated injury to right shin with BBQ metal (big gash) 4 cmx2cm bone deep (with ragged edge)
also scratches his skin at both shin and knee
pain at right shoulder and arm
tender at right biceps (he was trying to graph metal pole to tried to protect his bad left shoulder)
needs to r/o any shoulder joint and biceps tendon injury
suture under strict sterile condition”
[2] Folio 294 of the ARD.
Dr Bokor, orthopaedic surgeon
In a report dated 3 June 2022,[3] it was recorded the applicant was still experiencing symptoms in the right elbow despite surgical repair of the ruptured right distal biceps by Dr Duckworth following the fall on 7 July 2020. He recommended PRP injections. (These injections were approved by the insurer following a consent agreement in the Personal Injury Commission (Commission).
[3] Folio 142 of the ARD.
In subsequent reports,[4] Dr Bokor disagrees with the opinion of Dr Breit (the respondent’s qualified specialist) maintaining the right elbow injury was a result of a fall at work on 7 July 2020 which required surgical repair. (I note that Dr Bokor has incorrectly represented the injury to the right elbow as occurring in the workplace.)
[4] Folio 145 of the ARD.
Respondent’s evidence
Dr Robert Breit, in his report dated 25 May 2022[5] takes a consistent history and concluded the right elbow injury was not work related. In his further report dated 28 February 2024[6] he considered (unedited):
“I fail to see how Dr Gher (previously Sherry) can state that tripping on a verandah and grabbing onto something to prevent a fall is a consequential injury. Having shoulder surgery does not increase one’s risk of tripping”.
[5] Folio 22 of the Reply.
[6] Folio 27 of the Reply.
Submissions
When summarised, the applicant’s submissions were:
(a) there is no dispute the applicant has suffered a significant left shoulder injury and had been undergoing intensive rehabilitation following surgery. Despite a prolonged period of treatment the shoulder was easily aggravated and this is consistently reported;
(b) the applicant’s statement that he used his right hand to protect his left shoulder to prevent a fall onto his left side at home on 7 July 2020 is consistent with that reported to Dr Aung. That is, to avoid further injury to a post-surgical state shoulder, the applicant attempted to break his fall by using his right arm. Had the applicant not had a sore left shoulder, this would unlikely have eventuated, but the sequence of events resulted from his need to protect his left shoulder;
(c) the issue for determination is whether the first incident at work on 25 September 2019 (the accepted injury to the left shoulder) “materially contributed” to the incident in which the right elbow was injured (Ozcan).[7] As the evidence establishes this to be the case, the referral to the medical assessor should include the right elbow with the date of injury being 25 September 2019;
(d) the injury to the right bicep/elbow associated with the injury on 7 July 2020 falls within category 2 of (Oakley)[8] and is causally connected to his initial accepted left shoulder injury, and
(e) in previous proceedings, the respondent accepted liability for treatment for the right elbow, albeit on a voluntary basis. Whilst not an admission, the conduct speaks volumes.
[7] Ozcan v Macarthur Disability Services Limited [2020] NSWWCCPD 21.
[8] State Government Insurance Commission v Oakley (1990) 10 MVR 570.
When summarised, the respondent’s submissions were:
(a) the medical evidence is no assistance in determining the causal connection between the injury of 25 September 2019 and 7 July 2020 and Dr Bokor’s assessment does not assist as he was misinformed the injury on 7 July 2020 was an event at the workplace;
(b) the only issue is whether the left shoulder injury/condition as it was in July 2020 contributed in any material way to the rupture of his right biceps. The ex post facto explanation given in 2024, four years after the event is not persuasive or plausible;
(c) the applicant has failed to descriptively articulate the events in July 2020. It is not known precisely where he was located, where the equipment was or what the timeframe he was faced with;
(d) torturous legal analysis of Oakley or Ozcan is unnecessary. Simply put, if the fall was caused by his left shoulder condition, the consequences of that biceps injury can be assessed. If however, the injury to the right elbow was independent of the shoulder condition, the claim fails, and
(e) nothing can be inferred from the consent orders relating to past treatment for the right elbow.
In reply, the applicant submitted
(a) whilst the applicant’s statement is made several years after the incident, is entirely consistent with the representations made by him to his general practitioner on the date of the elbow incident. The applicant is credible.
APPLICATION OF THE LAW, FINDINGS AND REASONS
When assessing whether the right elbow condition is a ‘consequential condition’ to the left shoulder injury, authorities establish the following principles (but by no means are they exhaustive):
(a) the applicant bears the onus of establishing the existence of a consequential condition on the balance of probabilities[9] (Kumar);
[9] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
(b) each case must be determined on its own facts;
(c) to establish a condition, there is to be a “common sense evaluation” of the causal chain, determined based on the evidence, including expert opinions[10] (Kooragang);
(d) a finding of a consequential condition does not require the identification of pathology[11] (Kumar);
(e) a consequential condition occurs when an applicant experiences a new injury or condition because or consequences of their original work-related injury, that is, it results from an employment injury[12] (Brennan);
(f) reliable and contemporaneous medical evidence plays a significant role in establishing causation;
(g) there must be an unbroken chain of causation from the injury to the development of the consequential condition;
(h) the test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury,[13] and
(i) a consequential condition may be multifactorial in nature, but still result in liability being found against an employer where it is demonstrated that the subject injury ‘materially contributed’[14]; to the claimed consequential conditions (Murphy) and (Moon).
Has the applicant sustained a consequential condition affecting his right elbow “resulting from” the injury he sustained to his left shoulder on 25 September 2019 and/or has the injury to the left shoulder “materially contributed” to the condition of the right elbow?
[10] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
[11] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
[12] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan (NSWWCCPD 23).
[13] Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648.
[14] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
It is well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity/injury from which the claim comes, it will be open to make findings that this is the case (Kooragang).
The respondent’s argument at first glance was compelling. How does a fall at home, which was only precipitated when the shin was struck by a sharp object have any plausible connection to the left shoulder injury? Or alternatively, how did the left shoulder condition contribute to the fall? The argument is valid but on reflection, one-dimensional. Certainly, the fall on 7 July 2020 occurred independently of any workplace event. The initial catalyst of the fall was a trip over camping gear. However, the evidence demonstrates to protect the injured left shoulder the right arm was relied upon to grab gym equipment to prevent a pivot to the left and further injury to the left shoulder, which was already painful on that day. The respondent submits, quite correctly, it is a natural reflexive response in such a situation to rely on the upper limbs to break a fall but argues this bears no connection to the accepted left shoulder injury. I agree, but only to a point. I find that based on the applicant’s recall of events (in a situation that likely lasted only seconds) and the contemporaneous medical reports, that the desire to protect the left shoulder resulted in him placing strong reliance on the right arm which materially contributed to the right elbow injury.
The respondent was critical that the applicant’s statement did not clearly articulate the elements of the fall, such as where was the applicant standing and the location of the gym equipment etc. This is again a reasonable criticism but one that does not really advance the defence as the applicant reported the events and mechanism of the fall to his doctor on 7 July 2020 and the doctor clearly records the injury to the right arm occurred because of a wish to protect the left shoulder.
The medical evidence immediately before the fall documents the applicant was still undergoing rehabilitation and had made various complaints to his treating doctors about the slow progress of his recovery, ongoing pain and restriction and the shoulder was easily aggravated by day-to-day activities (undisputed by the respondent).
In my view it is a common sense proposition that the applicant, a heavy set man, who was experiencing ongoing pain and discomfort in the left shoulder, would have placed greater stress upon his right arm to protect himself from falling onto his left side, given that both upper limbs could not be relied upon and to protect the left shoulder. I accept that evidence.
I agree with the respondent that Dr Bokor has incorrectly advanced that the events on 7 July 2020 happened in the workplace. Nothing turns on this as, quite correctly, the respondent submits the medical evidence is of no assistance in determining the causal connection between the accepted injury of 25 September 2019 and events on 7 July 2020. However, in this case the medical evidence reinforces the applicant’s credibility, as his contemporaneous statements are consistent with his claim.
The report of Dr Breit, fails to consider the mechanism and likely force of the fall, particularly given the applicant’s habitus. He rejects on a wholesale basis, any contribution of workplace injury on the basis that the left shoulder injury did not cause the fall. This is correct, but he fails to consider the applicant’s statement that as he was about to fall onto his left side/shoulder, he was keen to protect it, thereby relying exclusively on the right arm.
I am therefore satisfied applicant has a consequential condition affecting his right elbow which “results from” the injury to the left shoulder.
Although I have found that the applicant has a consequential condition affecting his right elbow which “results from” the injury to the left shoulder, I also consider the injury to left shoulder injury has “materially contributed” to the applicant’s right elbow injury, consistent with the principles in Ozcan.
I have found the need to place additional reliance and strain upon the right arm to protect himself from falling due to the ongoing effects of the left shoulder injury is a material contribution to the right elbow injury in 2020, consistent with the contemporaneous medical reports. I am satisfied that the second principle of Oakley[15] has been established which allows for one assessment of impairment for both upper limbs.
[15] This is where the further injury results from a subsequent accident, which would have occurred had the applicant been in normal health, but the damage sustained is greater because of aggravation of the earlier injury.
Overall, for the reasons given above, I find that the applicant has established on the balance of probabilities (Kumar), and with a degree of actual persuasion and affirmative satisfaction (Nguyen) that the right elbow symptoms “result from” and were “materially contributed” to by the left shoulder injury. I make this finding based on consistent reporting of symptoms by both the applicant and general practitioner and with a ‘common sense’ evaluation, which has involved scrutiny of the chronology, medical evidence, and factual statements.
SUMMARY
Accordingly I make the findings and orders set out on page 1 of the Certificate of Determination.
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