Howard v Bede Murray Racing Stables

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Howard v Bede Murray Racing Stables [2023] NSWPIC 410
APPLICANT:	Joanne Howard
RESPONDENT:	E B Murray Family Investments Pty Limited t/as Bede Murray Racing Stables
MEMBER:	Paul Sweeney
DATE OF DECISION:	15 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation from 21 July 2022 as a result of proven injuries to the neck and shoulders 16 May 2009; worker also alleges that as a consequence of the respondent’s failure to provide domestic assistance she sustained further injury; employers case primarily based on credit and surveillance; consideration of inconsistencies in worker’s evidence; finding that the worker had no current earning capacity after 21 July 2022; worker had not proven that she had sustained further injury as a result of the injury of 16 May 2009 or the respondent’s failure to provide domestic assistance; Held – award for worker for weekly compensation on the basis of total incapacity.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to her neck and both shoulders arising out of and in the course of her employment on 16 January 2009. 2. As a result of these injuries the applicant has had no current earning capacity since 21 July 2022. 3. The applicant has not proven the injuries she sustained in falls in April 2018 and April 2020 resulted from the injury on 16 January 2009 or from the respondent’s failure to provide domestic assistance consequent upon that injury. 4. Respondent to pay the applicant weekly compensation on the basis that she has no current earning capacity as follows: (a) $731.20 per week from 21 July 2022 to 30 September 2022: (b) $738.68 per week from 1 October 2022 to 31 March 2023, and (c) $755.58 per week from 1 April 2023 to date and continuing. 5. Liberty to apply in respect of the above calculations. 6. Respondent to pay the applicant’s medical and hospital expenses in respect of the injuries found in [1] above pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Following an earlier arbitration hearing in these proceedings, I issued a Certificate of Determination (COD) dated 2 December 2022 by which I found that E.B. Murray Family Investments Pty Limited t/as Bede Murray Racing Stables (the respondent) was estopped from denying that Joanne Howard (the applicant) suffered injury to her neck and both shoulders as a result of an incident in the course of her employment on 16 January 2009. These reasons are to be read in conjunction with those reasons. By that COD, I gave the parties liberty to apply in respect of any outstanding issue.
At a further telephone conference on 13 February 2023, I was informed by the solicitors for the parties that there were two outstanding issues on which they could not reach agreement. First, the issue of the applicant’s capacity for work and entitlement to compensation after 21 July 2022. Secondly, whether injuries sustained by the applicant in April 2018 and April 2020 to her left wrist, shoulders, and other body parts resulted from the proven employment injuries in 2009. Mr Franco, the respondent’s solicitor renewed an application to cross-examine the applicant at the arbitration hearing. That application had first been made prior to the earlier arbitration hearing. It was not opposed. Accordingly, subject to the respondent identifying the areas on which it sought to cross-examine the applicant, I granted leave to both parties to adduce oral evidence.
When the matter came on for a further arbitration hearing in the Personal Injury Commission (Commission) on 14 April 2023, Mr Hickey of counsel appeared for the applicant and
Mr Talintyre of counsel appeared for the respondent. I am satisfied that over the long course of this matter the parties have had ample opportunity to settle their dispute. I have previously used my best endeavours to bring them to agreement. However, they have not been able to fashion a mutually acceptable outcome in the circumstances of the case.
The entirety of the time allocated for the arbitration hearing was occupied with the oral evidence of the applicant. At the conclusion of that evidence, I directed that the parties lodge written submissions. While they were unable to comply with the timetable contained in the direction, the submissions of both parties have now been received by the Commission.

SUBMISSIONS

The submissions of the parties are in writing, and I do not propose to canvass each of the arguments put by counsel in these short Reasons. I will attempt to grapple with the issues raised by counsel in determining the issues in dispute below.
I should record that Mr Talintyre submitted that the applicant’s evidence was “a constellation of exaggeration, boasting, advocacy, and deliberate untruths designed to advance her claim”. He submitted that the inconsistencies in the histories she had given to medical practitioners, and in her written and oral evidence, infected her account of pre-injury health, the circumstances of her work and injury, the extent of her capacity for work following the injury, and her account of the alleged consequential injuries. Her evidence in respect of her capacity for work should not be accepted.
Mr Hickey submitted that the applicant’s evidence was “forthright and reasonable” and should be accepted. He argued that many of the alleged inconsistencies in the applicant’s evidence concerned events which occurred many years ago. It was understandable that there would be variable accounts of these events and that the recollection of witnesses would be imperfect. He also submitted that there were inconsistencies in the evidence of the respondent’s witnesses. He specifically submitted that the Commission should not accept the evidence of Courtney Gravener (formerly Gillmam).
It will be necessary to return to the arguments of the parties below. First, it is convenient to compendiously set out the written and oral evidence of the applicant and the medical evidence which addresses her pre-injury health. What follows is not intended to be a comprehensive account of that evidence. Rather, I set out the salient points so that the parties can understand the way in which the Commission has resolved the dispute.

Applicant

By her statement dated 22 August 2022, the applicant stated that by 2008 she had “accumulated approximately 25 years’ experience” in the racing industry. From the commencement of her employment with the respondent, on 27 October 2008, she worked as a “trackwork stable hand/labourer”. She continues, “My job was very physically demanding and for the most part I worked alone”.
On the instructions of Bede Murray, she states she also performed some trackwork and looked after a horse named “Coniston Bluebird”.
The applicant states that on Christmas Eve 2008, she experienced a severe abdominal pain while lifting a mower. She states that she was unable to take time off work as she had no accumulated sick leave.
On 1 April 2009, the applicant underwent a hernia repair at Nowra Private Hospital which was paid for by the respondent’s workers compensation insurer.
On 16 January 2009 at approximately 3.30pm, the applicant says she slipped and fell on an embankment while she was operating a whipper-snipper. The applicant says that she fell backwards onto the motor of the whipper-snipper “which hit me between my shoulder blades and into the back of my neck”.
The applicant recounts that Hayley Humphry, a stable manager, attended to her after the fall. She was unable to continue with her work.
That evening she experienced pain in both shoulders, the right worse than the left, and “considerable pain in my neck”.
The applicant says that she returned to work on the following Monday but “struggled” until she went to see her general practitioner. She states that she left work approximately one week after the accident.
The applicant says that on 28 January 2009, she attended her general practitioner “who simply thought I had strained a few muscles”.
The applicant says that while her shoulders and neck were painful she was “focused” on obtaining treatment for her hernia. Accordingly, it was not until 16 March 2009, that she informed a general practitioner, Dr Hayden, that her “right shoulder pain was becoming worse”.
The applicant recounts that she underwent hernia repair surgery on 1 April 2009. Thereafter, she was investigated for a condition of her right shoulder. On 25 May 2009, she gave her employer a Report of Injury form asserting injury to both shoulders.
The applicant says that she underwent a right rotator cuff repair under Dr Jarman on 19 October 2009. When she attended on Dr Jarman in respect of her left shoulder, he told her that she had also damaged her neck as she was “experiencing weakness on my left side and numbness in both arms”.
Then, the applicant underwent an MRI which demonstrated pathology at C5/6 and C6/7. She recounts that she underwent a cervical fusion and discectomy under Dr McDowell on
10 July 2013.
The applicant recounts that on 7 November 2016 she underwent further cervical surgery at C6/7 and C7/T1 under Dr Peter News.
On 26 June 2018, she underwent a right shoulder open cut revision after she tripped in long grass at her home in April 2018. On 11 November 2019, she underwent a fusion of her left wrist which she says was injured in the fall in April 2018.
The applicant says that she had falls on two occasions, in April 2018 and April 2020 when she “tripped in long grass at my home”. She says that these falls were caused by the failure of the respondent’s insurer to provide “regular garden maintenance at my home”.
The applicant notes that while the respondent’s insurer had initially approved “a small amount” of domestic assistance including four hours lawnmowing fortnightly, or monthly during winter, it, subsequently, “withdrew these services”.
The applicant recounts that her dispute with the respondent over the provision of domestic assistance proceeded to the Commission where the insurer agreed to reinstate the services.
By her initial statement, the applicant also comments on the written evidence of two employees who worked with her at the time, Hayley Humphry ( statements dated 30 April 2015 and
25 March 2022) and Courtenay Gillman, who provided a statement of 1 June 2022 and a video interview which was relied on by the respondent.
By her supplementary statement dated 15 November 2022, the applicant addresses her pre-injury work history, some aspects of the medical evidence, and the surveillance video obtained by the respondent’s insurer.
The applicant recounts that following an injury to her lumbar spine while performing track work for Hardwicke Racing Stable at Yass in 1987, she was unable to work until she resolved her claim for common law damages in 1992.
Thereafter, she attempted to work at Hardwickes as a casual stable-hand but found that she was unable to do the work as it was “too physically demanding”.
Subsequently, she worked at New Haven Park at Boorowa for a season “handling yearlings in preparation for sale”.
In 1996, she commenced a business known as Yass Yard Doctor providing gardening services. Her husband did most of the gardening and labouring while she performed “mowing and whipper-snippering”. She notes:
“The work that I undertook was flexible and allowed me to undertake jobs that I felt that I was capable of doing at my own pace.”
In approximately 2002, the applicant moved to the South Coast following the breakup of her marriage where she looked after her children, undertook some foster care, and commenced a course at Wollongong University in Indigenous Health and Science.
In 2005 or 2006, the applicant commenced employment with Meals on Wheels. She says that she was “obliged to take redundancy” after an argument with the treasurer of that organisation.
Subsequently, she worked as a dairy hand on a farm near Milton. That job ended after a short trial period and, after obtaining a favourable reference from her former employer, she commenced work with the respondent on 27 October 2008.
The applicant then addressed a clinical note of Dr Riegelhuth dated 31 January 2009 “with focus on the injury sustained to my back at Hardwickes”.
The applicant continues:
“Whilst I have no memory of instructing Dr Riegelhuth what to do it is apparent from medical notes that on 29 January 2009 that I did attend upon Dr Riegelhuth to make application for the DSP based on the injury sustained to my back (see annexure M of my earlier statement which makes reference to ‘review of old notes’).
I can only assume that I sought to rely upon the injury to my back for the Centre (sic) benefits…….I did not want to confuse my application for the DSP by raising the possibility that I may have had potential workers compensation rights for the accidents on 24 December 2008 and 16 January 2009.
It is correct to note that in his report Dr Riegelhuth made no mention regarding either my hernia injury sustained on 25 December 2008 or the injuries sustained by me in the subject accident of 16 January 2009.
Despite my application, I did not receive the DSP as Racing NSW eventually approved my workers compensation claims.”
In response to the surveillance evidence, the applicant sets out the list of “painkillers, anti-inflammatories and steroids” which she has taken or continues to take to manage pain. She continues:
“The surveillance reports and videos capture me undertaking activities such as shopping, attending music festivals and/or working on my farm.
I have grown up and worked in the rural farm sector for most of my life. I consider my farm at Bookham to be a hobby.
I acknowledge that the various videos of me on the farm show me undertaking various tasks such as mowing lawns, driving a tractor or bending down and picking up material from the ground.
As I did when I was self-employed with the Yass Yard Doctor (after the injury to my back sustained with Hardwickes I undertake duties on my hobby farm when I am able. When I feel up to it, in my own time and at my own pace I will work because I enjoy it because it makes me feel useful and lets me forget about how difficult my situation (both medical and legal) has, and remains to be for a while.”
The applicant continues:
“What the surveillance reports and various videos do not show is that after exerting myself I would often take myself to bed and rest up, take my medication and on some occasions I would lay low for 3 to 4 days recovering from the work or social event that I attended.”

Oral evidence

At the commencement of her evidence, the applicant said that she no longer lived at the property at Hume Highway Bookham. She was living in a caravan at her daughter’s residence. She states, “I still own the property, but I wasn’t coping”.
The applicant said that she was using Fentanyl patches, taking an anti-inflammatory, Valium and steroids.
The applicant gave a brief account of the surgical procedures she had undergone since the injury. She stated that it was proposed that in due course she undergo bilateral shoulder replacement surgery.
The applicant said that her partner died in 2016 “and it was from there I needed help”. She stated that a cleaner, Nancy Walker, had come to assist her in 2020. But she became aware of the presence of an investigator and “gave her resignation”.
Subsequently, a woman named Margaret White replaced her. The applicant initially paid her. However, she was then paid by the respondent’s insurer.
The applicant told Mr Talintyre in cross-examination that she had been using a mobility scooter for “a couple of months”. She agreed that it was because of problems with her hips “since I had a fall in 2018”.
Mr Talintyre cross-examined the applicant to suggest that aspects of her initial statement were false. He suggested that her work for the respondent did not involve mowing or tending of lawns and driveways. The applicant confirmed that she did this work “maybe every 7 days”. She agreed that during her employment she was not the only one cutting grass.
The applicant agreed that there were other people on the premises working in and around the stables. However, she said “I wasn’t always at the stables”.
The applicant was cross-examined to suggest that other employees, Hayley or Courtney would clear the silo out when the oats were low. The applicant denied that either woman had “done it while I was there”.
It was suggested to the applicant that she tailored her work to manage her back pain. The applicant responded, “No. My back was fine. I’d ridden track work, I’d never complain about my back”. She agreed with the proposition that her back was “perfectly fine” when she started work at the respondent.
It was put to the applicant that Bede Murray never directed her to take over the mowing and that work was performed by Courtney or Hayley. The applicant did not accept either proposition.
The applicant was cross-examined to suggest that it was “not true that Courtney and Hayley couldn’t control the younger horses?” She responded that those horses were not in when Hayley came back to work and that Courtney was “useless”.
It was put to the applicant that she did not like the idea that Courtney could give her directions in view of her age. The applicant responded that it did not worry her.
The applicant was then challenged in respect of her evidence that she rode horses at the respondent. She stated that Bede Murray “put me on a horse”. It was put to the applicant that she was not looking after a horse named Coniston Bluebird. She rejected this proposition.
Mr Talintyre also suggested to the applicant that it was not true that Bede Murray had told the other girls not to feed that horse. The applicant again did not agree with this proposition.
It was put to the applicant that she had lied about the hours that she worked, about lifting a lawnmower on Christmas Eve and the fact that there was a push mower on the respondent’s property at that time. The applicant rejected each suggestion. She said:
“There is a push mower at Bede’s place which I used for the cemetery and I used for Bede’s place. I, I mowed three areas, all the stable area, the cemetery and Bede Murray’s house.”
The applicant was cross-examined to suggest that there was not a steep embankment at the site where she had fallen on 16 January 2009. She was cross-examined to suggest that no one had told her to mow on the afternoon of her injury. She did not accede to these propositions.
Mr Talintyre put to the applicant that every day during her employment with the respondent the applicant was “managing an ongoing back pain condition”. The applicant responded that she did what she was asked to do.
The applicant was cross-examined to suggest that the whipper-snipper she was using at the time of the injury was not turned on, that the motor of the whipper-snipper was not behind her, that a witness, Hayley, was not there on the day and could not have helped her. She did not exceed two these propositions.
The applicant was then cross-examined on her evidence that she saw a doctor within seven days of the injury and her evidence that Haley will was present when she fell. The following exchange occurred:
Mr Talintyre:   Well, didn’t you say earlier that Hayley only worked with you there for a couple of week:
Applicant:Yes.
Mr Talintyre:   After you first started?
Applicant:Yes.
Mr Talintyre:   So, she couldn’t have been there in the middle of January, could she?
Applicant:She was there.
Mr Talintyre suggested to the applicant that her written evidence was an attempt to discredit Courtney Gilman. The applicant did not accede to the proposition but said that Ms Gilman was young and “pretty naïve”.
It was then put to her that Bede Murray was on the property on the day of her injury and attended the scene of the accident. The applicant denied this.
The applicant was cross-examined on her absences from work following the injury. She maintained that she was certified as unfit for work from shortly after the injury by reason of her neck and shoulder problems. She maintained that she had provided the respondent with a Report of Injury form before May of 2009.

The applicant was cross-examined on her fall in 2018. It was put to her that she was capable of mowing the grass at her own pace. She responded “No, not any more”. She had been advised by doctors not to mow the lawn “unless you have to, don’t mow”.
In respect of the incident in April 2020 she said that she did not slip on long grass. She said that she had let the cattle in, which caused the ground to become uneven and it gave away when she stood on it.
It was put to the applicant that cattle being on her property had nothing to do with Racing New South Wales. The applicant maintained that the reason she let the cattle in was because the grass had been too long and she had fallen already.
It was put to the applicant that she was perfectly capable of cutting that grass herself. She responded, “No, I had times when I could cut and I have times when I can’t”.
The applicant was cross-examined to suggest she did not see a doctor named “Evelyn” following her injury. The applicant said that she was “pretty sure” she saw her on 17 January. She said that she was told by the medical practice that these records “belong to the doctor and Racing”. They were not coming up on her Medicare statements “and that’s why I don’t have them”.
The applicant was cross-examined in respect of her consultation with Dr Riegelhuth on 22 January 2009 where the subject of a disability pension was recorded. The applicant said that she told the doctor that:
“Centrelink had told me to do, not to claim that I had just hurt myself because the claim had not gone through. So just claim my old injury, which was quite savage, and that I’ve got and I did have sciatica when I, when I, after I fell.”
The applicant said that she had not reported an injury to her neck as a result of the incident in January 2009 because “Centrelink told me what to do”.
It was then put to the applicant that she had not complained of any body part injured in the accident until 16 March 2009 when she made a complaint that she had right shoulder pain. The applicant did not accept this suggestion.

Pre-injury health

The applicant had a significant injury to her low back when she was thrown from a horse on 20 July 1987. Following that injury, she underwent a very extensive surgical procedure under Dr Robson, a neurosurgeon, at Canberra Hospital.
As she experienced severe back pain and bilateral sciatica following her discharge from hospital, Dr Robson performed revision surgery on 26 February 1998 but it was not until another neurosurgeon, Dr Sears carried out further surgery on 10 August 1988 that she experienced some improvement in her back condition.
On 28 January 1994, more than five years after the third surgical procedure, the applicant saw Dr Luba Eikens, a rehabilitation physician at the request of her then solicitors. Dr Eikens recorded the following:
“Current problems in order of priority were outlined as upper lumbar back pain, mid-thoracic back pain radiating to the neck, pain in the legs, numbness of the legs, headaches, bowel problems, rib pain and drug dependence. The upper lumbar back pain was described as a constant “dead ache” aggravated by walking over uneven terrain, bending, housework or driving a car for more [sic] half an hour.”
Dr Eikens offered a pessimistic prognosis for the future. In respect of vocational qualifications she noted that the applicant did not have good “reading and writing skills”. She continued:
“I feel that Mrs Howard is currently not fit for employment on the open labour market, even in a lighter capacity. This situation is unlikely to improve in the future, particularly in view of the demands in care of her family and house. The presence of depression is also likely to continue into the future, and may actually worsen as she develops further complications and increasing disability.”
At about the same time the applicant saw Dr Peter Henke, a rehabilitation physician, at the request of a conciliation officer in respect of her claim for compensation. He also recorded that the applicant continued to have severe symptoms and a very restricted capacity to sit or stand.
Dr Henke expressed the following opinion in respect of the applicant’s capacity for work:
“At the present time this woman’s potential for work appears marginal. I do not believe that the control of her psycho-social aspects of her problem is optimal. If this was optimised then the possibility of her being fit for duties would be increased.
She will never be suitable to return to work such as horse-riding, or where there is significant jarring or loading of the spine.
This would leave the options in terms of her employment restricted to clerical type duties and perhaps some limited amount of shop assisting or similar type work. Farm duties and work around animals would appear to be unacceptable. As you will appreciate this fitness is based upon obtaining some degree of reasonable pain management.”
Dr Henke also referred to the opinion of Dr Lowy, a medical practitioner who had seen the applicant at the request of the insurer. Dr Lowy had expressed the opinion that the applicant was “totally and permanently unemployable”.
While there are other medical opinions in the material before the Commission, the above gives some flavour of the applicant’s complaints and the impact of the earlier injury on her capacity for work.
On 27 September 2002, the applicant saw Dr Nguyen at the Atherfield Medical Service complaining of back pain and sciatica. She was treated with Tramal.
On 6 August 2003, Dr Nguyen reported that the applicant had started work “one day a wk and developing more back pain”. She was treated with Tramal, Diazepam, MS Contin and Voltaren.
On Friday 21 November 2003, Dr Nguyen recorded that the applicant was experiencing chronic pain from a spinal crush injury in 1987. He recorded:
“She is now on 14 Doxylene daily and trial of MS Contin 30mg bd made her drowsy and unable to drive. Dr Stewart to advise on comprehensive pain management plan?”
On 13 April 2006, Dr Dawn Woods referred the applicant for physiotherapy because of severe upper thoracic/lower cervical pain with pain and paraethesia in the left arm. The doctor recorded that “unable to sleep and described the pain as severe”.
In July 2008, Dr Mark Rathbone reported that the applicant had chronic low back pain “but main problem is severe bilat neurogenic leg pain”. She was trialled with Epilim.

FINDINGS AND REASONS

While the respondent enthusiastically submitted that the Commission should find that any incapacity suffered by the applicant as a result of the proven injury to her neck and shoulders in 2009 had ceased, the medical evidence it relied on to establish that proposition is outdated and unsatisfactory. Dr Anthony Smith, an orthopaedic surgeon, saw the applicant on
19 August 2014, at the request of the respondent’s insurer. In a report of that date, he expressed the opinion that the applicant did not suffer a shoulder injury at the time of the incident of 16 January 2009. He accepted that she suffered an injury to her neck in that incident but opined that,
“Any aggravation sustained to her cervical degenerative disease on 16 January 2009 would have settled after a few weeks.”
Dr Smith’s opinion in respect of the medical condition of the applicant’s shoulders and neck cannot be accepted. It is incompatible with the earlier findings of injury by Members of the Workers Compensation Commission as I explained in the earlier COD in this matter.
By a supplementary report dated 9 September 2014, Dr Smith commented:
“I have reviewed the surveillance videos and would consider that there is no likelihood of there being anything wrong with her and once again, as far as I can tell, she is fit to do any work suitable for women her age without any restriction whatsoever.”
Dr Smith’s opinion was given some eight years before the respondent denied liability to pay weekly compensation. In the years since he issued the report, the applicant has undergone several significant operative procedures. These matters cast doubt on Dr Smith’s opinion on the incapacity issue in this case.
However, there are other aspects of Dr Smith’s reports that are difficult to accept. First, he does not identify what aspects of the surveillance videos led him to the opinion that there was “no likelihood of there being anything wrong with her”. Secondly, it is extremely difficult to reconcile that conclusion with the applicant’s long surgical history. It is true, as Mr Talintyre submitted, that a finding of permanent impairment does not prove incapacity. On the other hand, it would be surprising if a patient who had undergone a cervical fusion would be certified fit for work without restriction. Thirdly, Dr Smith’s opinion is very different to the conclusion reached by Dr Bentivoglio.
Dr Bentivoglio, a neurosurgeon, saw the applicant at the request of the respondent on
16 March 2016. He noted the applicant’s history including the anterior cervical discectomy and fusion at C5/6 and C6/7. He continued:
“At this stage I cannot understand why her symptoms in her arms are related to the injury in 2009 especially as she had a good and successful operation at the C5/6 and C6/7 level.”
Dr Bentivoglio expressed the opinion that the applicant did not require further surgery as recent MRI scans did not show pathology “which supports surgical intervention”. However, he expressed the opinion that the applicant would only be fit for light duties work on a part-time basis.
Dr Bentivoglio saw the applicant again on 19 June 2017, all following the cervical surgery performed by Dr News on 7 November 2016. He could find no evidence of neurological dysfunction on his examination. He noted that the applicant had persistent neck pain and some radicular symptoms in her left hand. He also thought that the applicant suffered bilateral shoulder capsulitis.
Dr Bentivoglio expressed the opinion that there was ongoing incapacity. He stated that “the best that she can hope for is to run her small property”. He continued:
“Unfortunately, I do not believe there will be any significant improvement in her prognosis. She will have persistent neck pain and all the symptoms in her arms. It is now 7 months since her second operation. If after 5 more months there is no further improvement, I do not anticipate there will be. Unfortunately, she is going to be left on significant pain medication and drug dependence will also become an issue.”
There is more recent medical evidence in the applicant’s medical case. Her general practitioner, Dr Herath issued a WorkCover certificate of capacity on 4 July 2022 which merely stated that the applicant was permanently incapacitated. It did not address the extent of the incapacity. He noted that she was being treated with Oxynorm, Naproxen, Fluoexatine, Fentanyl and Valium, although it is not clear whether the applicant was being prescribed these drugs concurrently. It also noted that she was under the care of Dr Gordiev, an orthopaeadic surgeon, and Dr Jain, a pain specialist. It noted that the applicant was having panic attacks and referred her for a psychiatric review.
Dr Mark Porter, an orthopaedic surgeon, treated the applicant from 1 June 2019. He took a history that the applicant had significant pain in her right shoulder “for the last 18 months”. He diagnosed a recurrence of a “previous supraspinatus tear” and recommended surgical treatment. Dr Porter performed a right shoulder open cut revision repair at the Canberra Private Hospital on 26 June 2018.
On 12 October 2018,Dr Porterv recorded that the applicant’s right shoulder was improving following revision surgery, but she was experiencing increasing difficulties with her left shoulder.
On 17 June 2021, Dr Herath referred the applicant to another orthopaedic surgeon,
Dr Hamish Rae in Goulburn. Dr Rae recommended that the applicant undergo a “reverse total shoulder replacement”. He placed her on the public hospital wait list and noted that the applicant may “initiate an approval process through the WorkCover in the interim”.
On review of the applicant on 28 October 2021, Dr Rae noted that the applicant presented “with severe pain and distress”. He continued:
“She has had a long time history of chronic pain and strong analgesics and has care directed through a chronic pain clinic in Canberra which she has not found helpful. She is greatly restricted by her bilateral shoulder problems with the right being very severe and the left being moderate to severe. They both have glenohumeral arthritic change and signs of chronic rotator cuff tears. Her pain sensitisation and complex history in terms of analgesics is concerning for surgery, but with the severe changes seen on x-rays and MRI, there is no other option and it is the only way to potentially address her chronic pain issues.”
Subsequently, the applicant saw Dr Gordiev for a second opinion. She also diagnosed bilateral shoulder arthritis associated with a rotator cuff tear on the right and a relatively intact cup on the left. Dr Gordiev stated in her referral to Dr Jain, a pain specialist:
“Joanne is quite young and would like to ‘get back on her horse and mower’. She is young and active and I have recommended that she pursue non-operative treatment for as long as possible.”
On 14 February 2020 and 22 April 2020, Dr Patrick, a general surgeon saw the applicant at the request of her solicitors. Dr Patrick had previously provided reports of 23 April 2014, 8 July 2014 and 28 March 2017. The doctor recorded a lengthy history of the circumstances in which the applicant sustained a “quite nasty fall in the long grass which had not been mowed” in April 2018. He recorded that:
“She hurt mainly her left knee, but also her left wrist in particular, and she was aware of significant jarring at the neck, and she became aware also of pain at left hip and both shoulders, which were increasingly painful.”
After examining the applicant, he expressed the following opinion:
“I believe that the surgical intervention at Joanna Howard’s right shoulder on 26 June 2018 has arisen as a consequence of both the frank injury of 16 January 2009, as well as the aggravation which has taken place at the time of the fall forwards in April 2018. It is noted that MRI right shoulder has been carried out on 7 March 2018, a month or so prior to the fall in 2018, and it was noted that there had been a prior rotator cuff tear, and repair right shoulder in 2010 at that stage.”
Dr Patrick also expressed the opinion that the surgery carried out by Dr Policinski to fuse the applicant’s left wrist was a consequence of the fall in April 2018.
The respondent submitted that the video surveillance of the applicant revealed “much more than typical light day to day activities”. The respondent gave examples of tasks which required physical exertion including:
·        on 25 October 2012 manoeuvring, lifting and carrying a 25kg box from a hardware store;
·        on 19 January 2016 lifting a chair overhead;
·        between 6 to 8 August 2020 carrying bags of shopping, lifting and carrying pieces of wood some of them large;
·        between 10 and 12 September 2020 carrying bags of shopping and cases of beer, carrying her grandchild, operating a ride-on mower, operating a tractor and picking up debris from her property, and
·        between 1 and 4 October 2020 picking up large garbage bags and boxes, stepping up and down off trucks, lifting and securing a large tarpaulin overhead, unloading goods from the truck, riding a quadbike, carrying her grandchild and carrying out other activities which involved lifting and carrying.
Mr Talintyre submitted that the video evidence of the applicant’s physical activities was inconsistent with her presentation to medical practitioners. He did not attempt to correlate the particular activities shown on the surveillance with a specific medical examination.
I doubt whether the surveillance footage taken before 6 August 2020, is of significant value in assessing the applicant’s capacity. While some of the actions depicted are surprising, the observations taken were undertaken prior to the cervical surgery performed by Dr Mews on 17 November 2016 and well prior to the further shoulder surgery performed by Dr Porter.
I have carefully considered that video in the context of the medical evidence and conclude that it would be wrong to reach a conclusion adverse to the applicant’s credit on the basis of these limited observations. On the other hand, the video evidence of the applicant taken in September and October 2020 casts doubt as to whether the applicant’s recent presentations to medical practitioners including Dr Patrick, Dr Rae and Dr Gordiev is entirely reliable. It also suggests the possibility that the applicant has some capacity for work, a subject to which I will return later in these reasons.
While the surveillance evidence does show the applicant driving a tractor, driving mower, and, at intervals, using her arms at and below shoulder height in a fairly fluent fashion, to pick up debris on her property, it cannot nullify the medical evidence which suggests that the applicant does have significant pathology in her shoulders and has undergone two bouts of cervical surgery.

Credit

The main thrust of Mr Talintyre’s cross examination of the applicant was directed towards the state of her back prior to the injury of the 16 January 2009, the nature of the work that she performed for the respondent, and irregularities in reporting the ramifications of the incident of 16 January 2009 to her employer and to medical practitioners. Obviously, much of the cross examination canvassed events which occurred more than 14 years ago. It is to be expected that there will be very different recollections of what occurred at that time. Generally, I would be reluctant to make a finding adverse to the applicant’s credit on the basis of discrepancies between her evidence and the evidence of Hayley Humphrey, Courtney Gilman, and the Murrays.
By reason of the earlier findings of the Workers Compensation Commission it is not open to the respondent to adduce evidence to contradict the findings that the applicant suffered injury to her neck and shoulders in the course of employment on 16 January 2009. In my view, much of the cross examination of the applicant on the circumstances of the injury was intended to achieve that end under the guise of cross examination as to credit. It is undoubtedly the case that significant parts of the cross examination were intended to establish that the injury could not have occurred in the circumstances previously proven. If there was an objection to these aspects of the cross-examination, I would have disallowed those questions.
Even if one approached the issue without considering the estoppels, however, the respondents lay evidence does no more than raise a scintilla of doubt as to the circumstances of the injury. Neither Jack or Bede Murray, nor Hayley Humphrey dispute that it occurred. There is also an inexplicable inconsistency between Ms Gilman’s note on
4 June 2009 and her subsequent statement evidence. Some six months after the injury,
Ms Gilman signed a note saying that she had witnessed the applicant’s slip “on the wet grass and graze her elbow”. It is true that the note also adds that , “She never told me she was injured or in any pain”.
Mr Hickey submitted that I would find Ms Gilman an unreliable witness on the basis of this note. I suspect, however, that the discrepancy it is merely another example of a witnesses’ memory becoming impaired by the passage of time.
On several occasions during his cross-examination, Mr Talintyre suggested to the applicant that throughout the short period she was employed by the respondent she was “managing” significant back pain. The purpose of the cross examination was to support a submission that the applicant’s incapacity largely, if not entirely, resulted from injury in 1987. If one considered the medical evidence and the applicant’s spasmodic work history after the 1987 injury in isolation one might readily conclude that the applicant was not fit for the work of a stable hand by reason of her previous back injury and the surgical procedures undertaken to treat it. The medical evidence suggests a continuation of low back and bilateral leg pain, which her doctors have treated with a variety of potentially addictive drugs.

However, the medical evidence cannot be considered in isolation. In his written evidence of 23 April 2015, Mr Graeme Murray states that the applicant performed the duties of a stable hand in a satisfactory manner. She had a good attendance record and was “not subject to any disciplinary warnings”. Mr Murray also stated that the applicant was knowledgeable about the work “involved with racehorses”. This evidence suggests that at the time she commenced work with the respondent the applicant was capable of performing moderately arduous work on a full-time basis.
While the passage of time may explain many of discrepancies in the evidence, the applicant was not a completely satisfactory witness. Her evidence that she had ridden trackwork before commencing work for the respondent and would “never complain about her back” is difficult to accept in the context of the contemporaneous medical record. Similarly, the applicant’s account of seeing a doctor named Evelyn (probably Dr Fui-Ling Kong) following the injury and her account of why there was no record of this consultation in the clinical notes of the Atherfield Medical Service seems improbable.
Equally, I find it difficult to accept her explanation for requesting certification for a disability pension from Dr Riegelhuth, on the basis of the 1987 injury on 28 January 2009. On 30 January 2009 Dr Riegelhuth issued an application for a disability pension that made no reference to the injury on 16 January 2009.The contents of the clinical notes and the Centrelink application form establish that the applicant did not report her recent injury to Dr Riegelhuth at these consultations. I doubt that an employee of Centrelink would have told her not to raise the consequences of the 2009 injury with her doctor, when applying for the invalid pension, as the applicant stated in her evidence.
Bearing in mind these and other answers which the applicant gave during cross-examination, I have concluded that her evidence is not completely reliable and I should carefully scrutinise her evidence when it is not corroborated by other evidence.

Falls in April 2018 and April 2020

There can be little doubt that the applicant had falls on her property at Bookham in April 2018 and April 2020. On 30 April 2018, she saw Dr Marun at the Atherfield medical practice at Yass and complained that she had fallen on her outstretched left hand two days previously and injured her left arm, neck and shoulder. Subsequently, she reported to Dr Marum that she had injured her left knee. As Mr Hickey submitted there are multiple references to the falls after the initial consultation.
The applicant provided further information about the falls during her cross-examination:
“APPLICANT: I’ve had falls but not, no injuries. Like, I, I’ve tripped. I gather we’ve all tripped, and I avoided uneven ground most of the time. This is right at my house where I fell, a metre from my house with foot high grass.
MR TALINTYRE: You say you also tripped in long grass in April 2020,
APPLICANT: The grass wasn’t long. I’d let the cattle in. Where I stood it was a, well a long clump. I thought it was stable and it wasn’t, and I went down on it.”
The applicant’s case is that the sequelae of the falls are compensable as they result from the respondent’s failure to provide lawn mowing services at the applicant’s property at Bookham. The causal connection is supported by the applicant’s qualified specialist, Dr Patrick, who describes the injuries as “consequential” on the 2009 injury.
In matter number W2772/21 the applicant claimed from the respondent the cost of domestic assistance pursuant to s 60 AA of the 1987 Act. On 13 September 2021, those proceedings were settled between the parties and the consent orders made by a Member of the Commission. By those orders the Application was discontinued and it was noted that the respondent was to indemnify the applicant in respect of the cost of mowing four hours per fortnight “‘during October to March and four hours once a month during April to September”.
The application of the law of estoppel was considered at length in the earlier reasons. There is no estoppel arising from the orders of 13 September 2021. The issue of the need for domestic assistance as a result of the injury was neither determined by the Commission nor the subject of consent orders. Rather, the respondent agreed to pay for the cost of services. An agreement to pay compensation does not rise to an estoppel.[1] It may be an admission. If so, its weight must depend on the entirety of the evidence in the case. In my opinion, it does not assist in determining whether the applicant’s falls in April 2018 and 2020 can be said to result from the 2009 injury.
[1] Department of Education & Training v Sinclair [2005] NSWCA 465 at [90-93].
There is no reason to doubt that the respondent had provided, probably irregularly, domestic assistance, including lawn mowing, to the applicant at the time of the falls and that this was not forthcoming in April 2018 and April 2020. Applying the common sense test of causation mandated by the High Court of Australia in March v Stramare Pty Ltd[2] and stated to be the appropriate test of causation in workers compensation disputes by the Court of Appeal in Kooragang Cement Pty Ltd v Bates,[3] I am not persuaded that the applicant has proven a relevant causal connection between her injuries and the falls.
[2] (1991) 171 CLR 506.
[3] (1994) 35 NSW LR 452.
In the surveillance video taken on 12 September 2020, the applicant is shown driving a ride on lawn mower to mow the lawn in the vicinity of home at Bookham. In my opinion, it is probable that the applicant was physically able to mow the lawn in the vicinity of her home at the time of the incidents in April 2018 and 2020. She has not adduced evidence that she was less capable of performing that activity in 2018 and 2020 than she was at the time of the video evidence. Thus, it is not evident that at the time of these incidents the applicant was incapable of mowing the lawn in the vicinity of the home or that the employer was legally obliged to provide assistance to perform that task. Secondly, given the view I have taken of the applicant’s evidence, there is not a straightforward account of the precise mechanism of each injury which I can accept. Finally, respect of the April 2020 incident, the applicant’s evidence may lead to the conclusion that it was letting her cattle into the yard of her house which led to fall, rather than the length of the grass.
There is no satisfactory basis to find that the applicant’s proven injuries and their sequelae caused her to fall in April 2018 or April 2020. It is not the case where an accepted or proven injury has caused a vulnerability to further injury. Even excepting the applicant’s evidence in its entirety it is not clear that the fall resulted from the 2009 injury, rather than from the circumstances which she encountered on her small property on the day of the fall. Any causal connection between the respondent’s failure to provide domestic assistance is speculative and does not prove a sufficient nexus with the work injury.[4]

Right shoulder surgery

[4] Faulkner v Keffalinos (1970) 43 ALJR 80.

Mr Hickey submitted, that the cost of right shoulder surgery undertaken by Dr Porter on
26 June 2018 was compensable as the need for surgery also resulted from the original injury in 2009. The submission is undoubtedly correct. The only medical evidence that addresses the cause of the surgery plainly attributes it to the 2009 injury and the aggravation in April 2018. When the applicant saw Dr Porter on 1 June 2018, she told him that she had “right shoulder pain of the current severity of the last 18 months”. That would seem to exclude the 2018 incident as a significant cause of the surgery. Dr Porter expressed the opinion that the need for surgery was primarily the consequence of the” failure or recurrence of previous tear”. Dr Patrick expressed the opinion that it resulted from both the 2009 injury and the subsequent incident in April 2018. There is no evidence to the contrary.
In these circumstances, the respondent is clearly liable for the cost of the treatment. However, as I understand the applicant’s evidence the respondent has indemnified her in respect of the cost of this surgery. If that is correct it is unnecessary to make any further order.
Conversely, the respondent is not liable in respect of the surgery to the applicant’s left wrist and for treatment of injuries which only arise from the falls in April 2018 and April 2020.
Mr Hickey referred to the reasoning in Ozcan v Macarthur Disability Services Ltd[5] and Secretary, New South Wales Department of Education v Johnson.[6] These cases may be relevant to medical treatment of body parts/systems which result both from the proven injuries in 2009 and a subsequent event. Other than the applicant’s right shoulder and left wrist, it is not evident that there are outstanding medical expenses which have been declined on the basis that they result from the April 2018 or April 2020 injuries rather than the compensable injury. In the circumstances, I intend to make the general order pursuant to
s 60. If specific items medical treatment remain disputed after these proceedings are finalised, they can be the subject a further application.

Incapacity

[5] [2021] NSWCA 56 (12 April 2021).

[6] [2019] NSW CA 321.

in respect of the assessment of weekly compensation, Mr Hickey relied on the reasoning of Roche DP in Wollongong Nursing Home Pty Ltd v Dewar.[7] He referred to the recent reports of Dr Jain and Mr Dennett, physiotherapist. He submitted that:
“It is difficult to conceive of a theoretical real job for her to perform with continuity in her injured state and whilst continuing to take the level of medication which is set for her to control her pain.”
[7] [2014] NSW WCC PD 55 at [62 and 63].
In a report dated March 2023, in answer to a question posed by the applicant’s solicitor,
Dr Jain said this:
“It is very common for people with chronic pain to overdo things that would exacerbate the pain and to counteract that they would take large doses of short-acting opioids; however, when the effect of medication wears off it is quite common that it would exacerbate their pain further and incapacitate the patient. This leads to further sensitisation and deconditioning and is counter-productive to pain management. We regularly educate people to pace their activities; however, Jo-Anne being a farmworker it is very hard for her to grasp this concept and she tends to overdo things on a regular basis.”
I doubt that the ingestion of medication adequately explains the range of activities demonstrated by the surveillance in 2020. It is beyond doubt, however, that the applicant has been consistently prescribed opioid medications since, and probably before the injury in 2009.
Reservations concerning the reliability of a worker’s evidence may lead to a finding that they have not proven total or partial incapacity. The circumstances of this case do not readily lend itself to such simplistic analysis. With the exception of the short period when she worked for Meals on Wheels the applicant has worked with horses or in other rural work during her adult life. She told Dr Henke that she left school before obtaining her School certificate. Dr Eikens recorded that she was not dyslexic, but she was not accomplished at reading or writing.
Plainly, the applicant’s constricted capacity to work was diminished by the 1987 injury and further diminished by the subject injury and the multiple operative procedures that she has undergone following the injury. The fact that she has not worked many years, is dependent on medication, and is in the last term of her working life further detracts from her capacity to obtain a real job. While he did not have access to the surveillance videos, I suspect that the views of Dr Bentivoglio are an accurate assessment of her situation and the best that can be hoped for is that the applicant can maintain her small property. There is no further medical evidence in the respondent’s case after this time which might suggest a different outcome.
Considering the applicant’s capacity in the context of the definition suitable employment in s 32A (a) and the reasoning Dewar leads to the conclusion that the applicant has had no current capacity since the cessation of weekly compensation. Her total incapacity results from the subject injury. While the applicant had significant restrictions before that time, she was able to perform full time work to the satisfaction of employer.
In reaching this conclusion, I have not been influenced by the applicant’s dire presentation at the arbitration hearing. I am unable to relate the applicant’s use of a walking frame to ambulate to the injuries to her neck and shoulders in the subject accident.

[2023] NSWPIC 410

15 August 2023