Kennedy v Boral Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kennedy v Boral Limited [2022] NSWPIC 312
APPLICANT:	Francis Kennedy
RESPONDENT:	Boral Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	21 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for 52 weeks of weekly compensation; accepted injury to left hamstring and left shoulder; whether the applicant sustained separate injuries to the left knee and hip in the same event; extent of incapacity resulting from injury; Held– award for the respondent on the allegation of left knee and hip injury; knee and hip symptoms attributed to the left hamstring injury; the applicant had in the relevant period no current work capacity; award for the applicant with respect to the claim for weekly compensation.
DETERMINATIONS MADE:	1. Award for the respondent in respect of the claim of a separate “injury” to the left knee and left hip in the event on 20 April 2020. 2. The applicant has, in the period of 52 weeks commencing on 20 April 2020, had no current work capacity as a result of the injury on 20 April 2020. 3. The respondent to pay the applicant weekly compensation pursuant to ss 36(1) and 37(1) of the Workers Compensation Act 1987 for a period of 52 weeks commencing on 20 April 2020, based on a pre-injury average weekly earnings (PIAWE) rate of $1,422, as periodically indexed. 4. The respondent to have credit for payments already made subject to ss 49 and 50 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Francis Kennedy (the applicant), who is currently 70 years old, was employed as a concrete agitator truck driver by Boral Limited (the respondent). On 20 April 2020, the applicant was helping another driver load concrete blocks onto a trailer when he tripped and fell.
Liability for an injury in that event was disputed by the self insurer in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 28 April 2020. In particular, it was determined that the injury did not occur in the course of employment or arise out of employment for the purposes of s 4 of the Workers Compensation Act 1987 (the 1987 Act), and that employment was not a substantial contributing factor to the injury as required by s 9A of the 1987 Act.
The decision to dispute liability was maintained following internal review in a further notice issued on 6 August 2020.
A further dispute notice was issued pursuant to s 78 of the 1998 Act on 28 July 2021, disputing that the applicant sustained any injury or consequential condition to the left knee, left hip or left shoulder as a result of the event on 20 April 2020. The applicant’s entitlement to weekly compensation and compensation pursuant to ss 60 and 66 of the 1987 Act was also disputed.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 15 March 2022.
The applicant seeks weekly compensation on an ongoing basis for a period of 52 weeks, commencing on 20 April 2020.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 24 May 2022 via Microsoft Teams. The applicant was represented by Mr Ross Goodridge of counsel. The respondent was represented by Mr James McEnaney of counsel, instructed by
Mr Glen Dolan. A representative from the insurer was also present.
During the proceedings, the respondent informed me that the following notified disputes were withdrawn:
(a) whether the applicant sustained an injury “in the course of or arising out of employment” for the purposes of s 4 of the 1987 Act;
(b) whether employment with the respondent was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act; and
(c) whether the applicant sustained an injury to the left shoulder in the event on 20 April 2020.
The parties additionally informed me that agreement was reached that the applicable pre-injury average weekly earnings (PIAWE) rate was $1,422.
Despite being able to narrow the issues, the parties were unable to reach agreement to resolve the dispute in its entirety.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained injury to his left hip and left knee on 20 April 2020; and
(b) the extent and quantification of any entitlement to weekly compensation.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents; and
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 19 May 2022.
Neither party applied to adduce oral evidence or cross-examine any witness.

Incident report

An incident report form completed on 20 April 2020 by the applicant’s production manager, Mr Jamie Keys, described an incident involving the applicant at a Boral site occurring at 9:30am that day as follows:
“The driver was manual handling concrete products when he has slipped and fallen to the ground feeling his left hamstring pull.”
The report recorded that the applicant was sent to ‘Macksville Hospital Outpatients’.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 21 September 2020 and 21 September 2021.
In his first statement, the applicant stated that after attending the Emergency Department at Macksville Hospital, he was given a certificate putting him off work for four days.
The applicant said he had been helping a worker who was not working on that date put fence posts made of concrete into his vehicle when the injury occurred. The applicant said that workers had poured unused concrete that was otherwise going to be disposed of into moulds to make fence posts. These were taken off-site to be used on their own properties. The applicant said this was an accepted practice and, even after a memo was issued in September 2017 regarding the disposal of excess concrete, the practice continued. The applicant said Mr Keys was aware of the practice and would have walked past the moulds and posts every day.
The applicant said his immediate supervisor, Mr Hayden Gibson, was also aware of what was taking place and had on a number of occasions helped make the posts and load them up to take home. Another supervisor, Mr Lachlan Thompson, did the same.
Given that his supervisors were aware of the practice and had no objection to it and had indeed availed themselves of several posts over the years, the applicant did not think there was any issue with the practice.
On 11 May 2020, the applicant was given a warning letter in relation to the incident but refused to sign it.
In his supplementary statement, the applicant stated that on the day of the injury, he was treated at Macksville Hospital for an injury to his left knee. The applicant also complained of problems with his left lower posterior thigh. The applicant advised the hospital that it was painful to bend his knee. Although the hospital had referred to the right knee in their records, the applicant said this was a typographical error as the injury had always been to his left side.
After one week, when he had not recovered, the applicant consulted his doctors at Star Street Medical Centre. The applicant complained of pain in his left leg from his knee to buttock with swelling of the entire leg. Although the doctor referred to pain in the applicant’s buttocks, in fact, this was a reference to pain at the rear of his left hip.
On 6 May 2020, the applicant consulted a doctor as the pain was keeping him awake and he was having difficulty sitting comfortably or doing his usual activities as a result of left buttock pain. The applicant also consulted with the doctor about left shoulder pain since the fall.
By 29 May 2020, the applicant’s hip and buttock pain was feeling better but the left knee and shoulder were still causing problems.
Following the injury, the applicant was off work for approximately two weeks of pre-planned leave. The applicant returned to work but aggravated the condition and was unable to continue working. After only a week, the applicant went back off work. The applicant had been unable to return to work as a result of the ongoing problems caused by the injuries.
The applicant said he had used all of his holiday and long service leave and as a result had to resign at the end of July 2021.
The applicant said he had no ability to do his pre-injury work. That work required him to attend site every day and do a pre-start on the trucks. This required the applicant to bend, squat and move around the truck freely, which he would struggle to do. Driving would be a big problem because the applicant was unable to sit for long periods and bouncing in the truck could aggravate his hip condition. The applicant would be unable to manage the manual handling involved in setting up the chute to pour the concrete from the truck as this involved use of his injured shoulder. The applicant would also find it difficult to scale up and around the truck due to his knee and hip injuries.
On some jobs, the applicant would be required to pour concrete into wheelbarrows by scraping concrete from the chute into the wheelbarrow and then cleaning the chute. This was physical, heavy and repetitive work. The applicant said he would do five to six deliveries a day in the manner required. Simply getting in and out of the truck would be difficult due to the issues with the applicant’s knee. The applicant said he would also be unable to do yard work at the depot, involving shovelling spillages and cleaning in and around the load bins.
The applicant described his current disabilities as including swelling in his knee, pain on standing for long periods, and inability to squat, intermittent sharp shooting pain in the knee and the knee occasionally giving way. The applicant had difficulty climbing stairs or walking on uneven ground. The applicant’s difficulties with his hip made it difficult to sit for prolonged periods will drive any distances. The applicant had difficulty getting in and out of chairs and difficulty using the applicant’s left arm repetitively or above the shoulder.
The applicant said he had been employed for 18 years as a concrete agitator driver. The applicant completed his formal education to Year 10. The applicant had always performed manual work. On leaving school, the applicant started an apprenticeship as a mechanic, then worked in a pub for approximately two years. The applicant bought a concrete truck and was self-employed for approximately 10 years. The applicant then bought a milk run, which he undertook for 15 years before returning to driving concrete trucks.
Having regard to his age, education, training and experience, the applicant said he was unable to undertake any suitable work and was restricted in the use of his arm, hip, knee and leg.

Treating evidence

A clinical record from Macksville Hospital Emergency Department on 20 April 2020 stated:
“Fell at work while carrying a concrete block, grazed right knee and felt right lower posterior thigh hurt, brief episode of foot drop but now resolved. feels like 'hamstring' strain to him. pmh ni of note
meds lipitor
nkda
work for Boral
OE
Looks overall well
Stable vitals
right leg - appears normal with no bruises, swelling or deformity normal movements and gross sensation
painful to bend knee at lower third of post thigh
no calf pain
imp
hamstring sprain
plan
advised to rest, ice, take simple pain relief
advised to see physic if not improving in 2-3 days time”
Clinical records from Star Street Medical Centre include a note recorded on 27 April 2020 by Dr Frances Gosewisch as follows:
“ISSUES
1/ Hamstring/ Glut injury
- one week ago with fall at work
- presented to ED, likely hamstring injury
- ongoing pain, swelling, bruising
- able to mobilise with pain
- off work on two weeks annual leave currently
EXAMINATION
Tender posterior left leg from knee to buttock.
Large haematoma and echymosis posterior left thigh
Swelling entire left leg to toes
Able to extend leg and pull toes back
IMPRESSION
1/ Likely upper hamstring or glut tear”
The applicant was referred for an ultrasound.
On 6 May 2020, the applicant reported ongoing issues with his left leg and left shoulder:
“ISSUES
1/ Hamstring injury
- buttock pain keeping him awake
- still unable to walk comfortably
- couple of doses nurofen
- not able to sit comfortably
- not able to do any activity because of pain
2/ Shoulder
- left shoulder pain since fall
- initially less noticable due to distracting leg injury
- keeping him awake with pain
- worst when lying on it”
The report of an ultrasound of the applicant’s left leg was reported to show extensive Grade 2 haemorrhagic tearing. An MRI was suggested for further evaluation. The applicant was also referred for an ultrasound and x-ray of the shoulder.
On 29 May 2020, the applicant reported that his left hip and buttock were feeling better but he was experiencing pain behind the left knee. At the left shoulder, the applicant was unable to lift. On examination, Dr Gosewisch recorded tenderness at the posterior knee around the area of haematoma in the distal hamstring. Dr Gosewisch recorded the impression that the applicant had acromial bursitis and a resolving hamstring haematoma. The applicant was referred for x-rays of the left shoulder and knee.
On 18 June 2020, Dr Gosewisch recorded that the applicant was able to do most things with his left leg and was experiencing only occasional pain. The applicant’s antalgic gait was improving.
On 1 July 2020, Dr Gosewisch recorded that the applicant had returned to work for one week:
“Returned to work post injury - back for 1 week
- tripped over whilst using wheelbarrow at work
- too stressful, cameras watching every move
- stress being taken home from work, nil signs depression currently”
On 24 July 2020, a clinical note was recorded as follows:
“1/ Hamstring injury
- workers compensation claim still in dispute
- pain ongoing
- new bruising after reinjury at work (as discussed last appointment)
- still unable to perform full work duties ---> ie climbing in and out of trucks
- otherwise feeling well
- discussed graded use/ movement of limbs including shoulder
- gentle walking appropriate as long as doesnt cause significant pain
2/ Shoulder also still sort but slowly impriving
IMPRESSION
1/ Ongoing injuries preventing work”
On 21 August 2020, Dr Gosewisch recorded:
“ISSUES
1/ Sore Shoulder
- much better
- still pain on abduction
- able to use it but with pain
2/ Leg Injury
- able to walk now every day
- still gets pain on daily basis
- feels like would retear if exerts self
- pain on trying to climbing steps”
At a consultation on 21 September 2020, it was noted that the applicant was still experiencing left posterior leg pain and struggled with stairs and other climbing. The injury was not otherwise hampering day-to-day life. Secondary mental health issues were noted.
On 16 October 2020, the applicant’s hamstring was reported to be still sore after standing up but settled quickly. The applicant was experiencing ongoing shoulder pain which was limiting his activity. The applicant continued to report symptoms of stress. An ultrasound of the left shoulder was reported to show a full thickness tear of the supraspinatus, biceps tendinosis and bursitis. A cortisone steroid injection was discussed.

Certificate of capacity

A SIRA certificate of capacity was issued on 20 April 2020 by a doctor at Macksville Emergency Department, certifying the applicant as fit to light duties until 26 April 2020 due to a posterior thigh (hamstring) sprain.

Dr Patrick

The applicant relies on a medicolegal report prepared by general, vascular and trauma surgeon, Dr WGD Patrick, dated 1 March 2021.
Dr Patrick summarised the nature of the injury as follows:
“Slip and fall accident sustaining injuries to left lower extremity including left hamstring injury, left hip, and particularly left knee and also left shoulder, and with aggravation of old left elbow injury.”
Dr Patrick took an employment history that was consistent with the applicant’s evidence, noting that the applicant worked in the hotel industry for two years before driving trucks for the rest of his working life. The applicant had been driving concrete trucks for much of that time, having commenced employment with the respondent in 2002.
Dr Patrick noted that on 20 April 2020 the applicant had a slip and was immediately aware that he had sustained an injury to his left leg. Within a very short period, the applicant was aware of injury to his left shoulder, which had stiffened up significantly.
Dr Patrick referred to the records of Macksville Hospital and the applicant’s general practitioner, which referred to a hamstring/gluteal injury with a tender left leg from knee to buttock and guarding in the left shoulder.
The applicant’s situation worsened rapidly and because of the problems with his left knee, hip and left shoulder, the applicant was not able to get back to work. The applicant also noted some problems with his left elbow which had previously been injured.
The applicant complained of pain in the posterior thigh on the left and left hip stiffness. The applicant had ongoing pain and stiffness and loss of confidence with his left knee. The applicant’s left shoulder had become a real problem with marked limitation of movement
Dr Patrick recorded a physical examination of the left lower extremity as follows:
“The left lower extremity has been injured. At the left hip there is a very definite limitation in regard to left hip extension when lying prone, and there is a readily demonstrated Grade 4 when testing lower extremity muscle weakness of the hip. This is as a direct consequence of his workplace accident of 20 April 2020.
Also at the left lower extremity, with regard to left knee there is a readily demonstrated mild cruciate and collateral ligament laxity. At the left knee there is a 4 degrees varus alignment.
Range of active motion at left hip is reasonably satisfactory, but there is the abovementioned weakness with manual muscle strength testing with left hip extension.”
Dr Patrick referred to radiological imaging reports being attached and gave an opinion as follows:
“The diagnoses now of his injuries comprise a problematic left shoulder which has now significant limitations in range of active motion at this left shoulder in all directions of motion. There is likely significant cuff tendinosis and there is a known full thickness anterior insertional tear supraspinatus with subacromial bursitis and thickening. There has also been significant left lower extremity injury and he has a significant weakness of left hip extension to manual muscle strength testing as shown below. There is also a readily demonstrated both collateral laxity and cruciate laxity left knee only. He does have some complaint also-of increased pain about the left elbow which had been subjected to a dislocation as long ago as when he was in his 20's. It cannot be certain that there is further problem at this left elbow resulting directly from injuries of 20 April 2020, notwithstanding that this is a possibility.”
Dr Patrick gave the opinion that the cause of the applicant’s conditions was the frank workplace accident on 20 April 2020. Employment was a substantial contributing factor to the injuries.
With regard to the applicant’s capacity for work, Dr Patrick stated:
“I do believe that the situation now is that Mr Frank Kennedy is essentially totally incapacitated for work. I do believe that it is the case that I am of the opinion that
Mr Frank Kennedy now does not have any "real chance" to return to regular employment, based on his education, training or experience, day in and day out, without requiring significant time off work because of aggravations of flare-ups, or his inability to work consecutive days. This opinion is based on the details of the findings on clinical examination now, supported by his significant ongoing symptomatology as outlined above.”

Dr Powell

The respondent relies on a medicolegal report prepared by orthopaedic surgeon,
Dr Richard Powell, dated 23 June 2021.
Dr Powell took a history of the applicant’s employment and the incident on 20 April 2020 that was consistent with the other evidence. Dr Powell recorded:
“He was unsure of the mechanism of injury though CCTV footage has indicated he tripped over a bucket and fell to his left. He sustained a muscular injury of the left proximal thigh with the subsequent development of significant swelling and bruising. He was diagnosed with a hamstring injury. He has also attributed the subsequent development of left shoulder symptoms to the incident.”
Dr Powell noted that the applicant reported intermittent pain over the anterior superior aspect of the left shoulder, aggravated by activities that involve repetitive use of the upper limb. The applicant was aware of stiffness and restriction in range of motion.
In the left lower limb, the applicant reported aching pain, posteriorly, extending from the upper hamstrings to the popliteal fossa. The pain was intermittent and accompanied by stiffness and restriction in range of motion in the hip and knee. On occasions, pain extended to the lateral aspect of the knee.
Dr Powell noted that the applicant was not currently receiving any specific treatment in relation to his left upper and lower limb conditions.
Dr Powell performed an examination of the left shoulder in the left lower limb and noted no investigations or reports were available.
Dr Powell diagnosed the following injuries in the incident at work on 20 April 2020:
“• Soft tissue injury of the left shoulder for which no definitive clinical diagnosis has been made. His presentation is consistent with the presence of underlying rotator cuff pathology.
• Soft tissue injury of the left thigh most likely representing a hamstring tear in association with the development of significant bruising and haematoma.”
Dr Powell confirmed that the mechanism of injury described to him was sufficient to have resulted in the soft tissue injuries, diagnosed by him.
Dr Powell confirmed that the applicant remained symptomatic in relation to the injuries. The condition had improved. Though not resolved.
With regard to the applicant’s capacity for work, Dr Powell gave the opinion:
“Based on my examination today, I believe that Mr Kennedy is fit to return to work on suitable duties. I would recommend he avoid activities involving repetitive use of the left upper limb, particularly above shoulder height. He should alternate his tasks where possible and have the opportunity for regular rest breaks. I would not place any specific restrictions on him in relation to his left lower limb. Within the recommended restrictions he should be able to work pre-injury hours.”
Dr Powell said he would be cautiously optimistic that with treatment,the applicant’s symptoms and function would improve:
“His overall prognosis is a little guarded. Mr Kennedy has elected not to proceed with any specific treatment. It has now been over 12 months since the subject incident and he remains symptomatic in relation to the left shoulder and left lower limb. These areas are likely to remain a source of ongoing symptoms into the future.”

Applicant’s submissions

The applicant confirmed that as he was over retirement age, the period of weekly compensation was limited by operation of s 52 of the 1987 Act.
The applicant noted that a claim for lump sum compensation relying on an assessment by
Dr Patrick had been made on 5 March 2021. Dr Patrick assessed permanent impairment at the hip and knee. The respondent denied injury to those body parts relying on the opinion of Dr Powell.
The applicant noted that Dr Powell recorded the mechanism of injury and noted that the applicant complained of intermittent pain and stiffness at the hip and knee. Dr Powell’s report contained only a description of the complaints made by the applicant on that day and the applicant’s hip was not specifically examined. Dr Powell diagnosed a soft tissue injury of the left thigh most likely representing a hamstring tear in association with the development of significant bruising and haematoma.
The applicant submitted that Dr Powell did not explain why there was no injury to the hip or knee. He simply did not address that issue, referring only to the hamstring. Dr Patrick on the other hand, took a history and gave an opinion accepting injury to the knee and hip.
On the issue of incapacity, Dr Powell suggested the applicant had some capacity but did not consider two of the four injured body parts in giving his opinion.
Immediately following the incident, the applicant was taken to hospital and remained off work other than a medical trial for one week. The applicant had used up all of his sick pay. The allegation that the applicant had capacity to work should not be accepted.
The applicant referred to Dr Patrick’s opinion that the applicant was essentially totally incapacitated for work, based on his education, training and experience.

Respondent’s submissions

The respondent confirmed that it had withdrawn the disputes as to whether the applicant was “in the course of employment” and whether employment was a substantial contributing factor to the injury for the purposes of ss 4 and 9A of the 1987 Act. That left only disputes as to the alleged injury to the hip and knee and a dispute as to the quantum of the applicant’s entitlement to weekly compensation in issue. Injury to the left shoulder and left hamstring were not disputed.
The respondent noted that the general practitioner’s records recorded a hamstring/gluteal injury with ongoing pain, swelling and bruising. There was no injury described to the hip and knee joints.
Similar submissions were made in relation to the records from Macksville Hospital. The respondent conceded that the references to the “right” leg in the hospital records appeared to be incorrect.
The respondent submitted that there was no complaint or finding by a treating doctor of a hip or knee injury. The clinical notes before the Commission were of a good standard. Although there was reference to shoulder symptoms, there was no reference to the knee or hip.
The respondent noted the reference to a further fall at work following a return to work in the clinical records and the references to stress and other psychological symptoms. The further incident was not addressed in the applicant’s evidence and the clinical records suggested that this might be an intervening event raising doubt as to the contribution of the primary injury to the applicant’s incapacity.
The respondent noted that no claim of a secondary psychological condition had been made and the applicant’s psychological symptoms should be disregarded in considering the present claim.
The respondent submitted that Dr Patrick was the first doctor to diagnose a knee or hip injury. There was no support for a knee or hip injury in the general practitioner’s records or the applicant’s statement. The respondent referred to the authority in Arquero v Shannons Anti Corrosion Engineers Pty Ltd[1].
[1] [2019] NSWWCCPD 3.
The respondent noted that Dr Powell diagnosed a soft tissue injury to the left thigh. Although Dr Powell referred to the applicant’s knee and hip in his examination, the only doctor to have found any diagnosable injury at the knee or hip was Dr Patrick. No diagnosis of a knee or hip injury was made by Dr Powell and no radiological investigations of the hip or knee had been obtained, despite referrals. If those investigations did take place, the evidence of them was not before the Commission.
The respondent submitted that the applicant bore the onus of demonstrating that the cause of the applicant’s incapacity was the injury on 20 April 2020 and not some intervening fall or psychological symptoms.
The applicant sought reimbursement for a year of compensation with an inadequate case on incapacity.
Prior to the applicant’s return to work, evidence had been provided of only two weeks of incapacity. The Commission would have serious trepidation in making an award for weekly compensation for the 52 weeks claimed.
The Commission was not obliged to accept the diagnosis of Dr Patrick and was required to consider the evidence of some competing condition. There was no suggestion by the applicant that he had a consequential condition at either the left knee or hip which resulted from the injury on 20 April 2020.
The respondent submitted that Dr Patrick had identified an injury of his own volition, which was unsupported by the treating evidence.
The respondent submitted that injury to the knee and hip structures were in dispute notwithstanding the evidence of symptoms experienced in those areas. The applicant did not rely on a secondary condition to those body parts.
In relation to the injury on 20 April 2020, Dr Powell considered the applicant to be fit for suitable duties.
The respondent had provided the applicant with suitable duties. The medical records suggested that these could have continued if not for the subsequent fall and stress.
Dr Powell noted that the applicant had ceased work for reasons that were not clear. The applicant had been offered treatment but had declined this.
No statement evidence had been provided by the applicant as to what happened. All that was known was that the applicant was off work for two weeks, returned to work and aggravated his condition. This suggested a new event.
The respondent submitted that the Commission would limit any award of weekly compensation to the date of the further fall.

Applicant’s submissions in reply

The applicant noted references to knee pain in the clinical records, particularly on 29 May 2020.
The applicant noted that the section 78 notice did not raise the issue of a further fall constituting an intervening event.
With reference to the High Court decision in Purkess v Crittenden[2] the applicant submitted that the insurer bore the onus of proving an intervening event. No evidence of an intervening event had been provided.
[2] [1965] HCA 34.
The applicant submitted that there was no expert evidence or other medical evidence that the further fall overwhelmed or overtook the original injury in causing incapacity.
Noting the applicant’s age and multiple injuries, the applicant submitted that he had no capacity to perform his pre-injury duties and, in reality there was no residual earning capacity which could have been exercised.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The respondent has not relied, in these proceedings, on any dispute as to an injury to the applicant’s left hamstring or left shoulder in the event on 20 April 2020. What is in issue is whether the applicant sustained an injury to his left hip and left knee in the same event.
It is the applicant who bears the onus of establishing on the balance of probabilities that he sustained an injury to his left knee and left hip for the purposes of s 4 of the 1987 Act on 20 April 2020. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[3] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[3] [2008] NSWCA 246.
The applicant’s statement evidence does not describe his experience of symptoms immediately following the fall on 20 April 2020 but the applicant has given evidence that he complained of an injury to his left knee whilst being treated at Macksville Hospital that day. The applicant also gave evidence that he complained of pain at his knee and the rear of his left hip when he saw his general practitioner around a week later. The applicant described experiencing ongoing symptoms at his hip and knee, which he said would impact on his ability to perform his pre-injury duties or perform other suitable work.
A contemporaneous account of the injury sustained by the applicant is set out in the incident report form completed on the day of the event by Mr Keys. That report described the applicant falling to the ground and feeling his left hamstring pull. The incident report made no reference specifically to knee and hip symptoms.
The clinical record from Macksville Hospital Emergency Department on the same day described a grazed knee and the applicant feeling like he had a hamstring strain. The applicant’s leg appeared normal with no bruises, swelling or deformity. It was noted, however, that it was painful to bend the applicant’s knee at the lower third of the posterior thigh. The doctor who saw the applicant formed the impression that the applicant had a hamstring sprain. A posterior thigh (hamstring) sprain was the diagnosis given in the SIRA certificate of capacity issued by the hospital.
The applicant’s general practitioner saw the applicant a week later and, on examination, noted tenderness to the posterior left leg from the knee to the buttock. Consistently with the records from Macksville Hospital, Dr Gosewisch also formed the impression that the applicant had a likely upper hamstring or gluteal tear.
The applicant was referred by Dr Gosewisch for an ultrasound of the left leg which was later reported in the clinical records to show extensive Grade 2 haemorrhagic tearing in the distal biceps myotendinous unit and semimembranosus/semitendinosus muscle bellies.
The clinical records suggest that the applicant may also have been referred for an MRI of the left leg and an x-ray of the left knee. There is, however, no reference in the clinical records or elsewhere in the ARD to the results of any such investigations.
Significantly, the clinical records from the applicant’s general practitioner refer consistently to a “hamstring tear” or “hamstring injury” (as well as a left shoulder injury) when describing the work injury. This is so, notwithstanding the recording of complaints of symptoms and findings on examination of the left knee and buttocks.
When the applicant was seen by Dr Patrick, he took a history of symptoms of pain and stiffness in both the left hip and left knee. Dr Patrick recorded that the applicant was unable to get back to work because of problems with his left knee, hip and shoulder. The applicant’s complaints of symptoms in the knee and hip appeared consistent with Dr Patrick’s physical examination of the left lower extremity. Dr Patrick recorded his finding of limitation in extension and muscle weakness of the hip. Dr Patrick also found mild cruciate and collateral ligament laxity and a varus alignment at the left knee.
In giving a diagnosis, Dr Patrick described the injury to the left lower extremity as a left hamstring injury, left hip, and particularly left knee injury. Dr Patrick described significant weakness of left hip extension to manual muscle strength testing and collateral laxity and cruciate laxity in the left knee. Dr Patrick gave the opinion that the cause of the applicant’s conditions was the frank workplace accident on 20 April 2020.
In giving his opinions, Dr Patrick noted that he had referred to radiological investigations but did not specify what investigations were before him. In particular, it is not known whether any MRI or x-ray of the left knee were provided to Dr Patrick. As indicated above, the only radiological results for the left lower limb reported in the clinical records were those of the ultrasound, which showed tearing of the hamstring.
Dr Patrick’s report must be viewed in the context of the whole person impairment assessment he was asked to perform. In this regard, Dr Patrick can be seen as assessing impairment in the form of symptoms or restrictions at relevant parts of the lower extremity. It remains unclear, upon reading Dr Patrick’s report, what particular diagnosis he made at the left knee and hip. It is unclear how the fall caused pathological change at the left knee and hip. The report does not address the absence of diagnosis of a knee and hip injury in the treating evidence. The report focuses more on the effects of the injury.
Dr Powell’s report is much clearer in identifying the nature of the injury. Dr Powell diagnosed a soft tissue injury of the left thigh most likely representing a hamstring tear in association with the development of significant bruising and haematoma. Dr Powell made no diagnosis of an injury to the left hip or knee.
Like Dr Patrick, Dr Powell did record reports of pain from the upper hamstring to the knee. The applicant also reported stiffness and restriction in the hip and knee to Dr Powell. Dr Powell accepted that the injury to the lower limb remained symptomatic.
On reviewing the evidence as a whole I prefer the diagnosis of the injury on 20 April 2020 given by Dr Powell. Dr Powell’s diagnosis is consistent with the treating medical evidence set out in the hospital records, the SIRA certificate of capacity and the general practitioner’s notes, including the results of the ultrasound of the applicant’s left leg.
I am not satisfied on the evidence before me that there was any separate injury or pathological change to the left knee or hip in the event on 20 April 2020, although I do accept that the applicant experienced symptoms at both sites from the time of that event. Reports of symptoms and findings on examination at the left knee and in the region of the left hip or buttocks are consistently recorded in the treating evidence and medicolegal evidence. Other than Dr Patrick, all of the doctors involved in the applicant’s case, including Dr Powell, have attributed those symptoms at the knee and hip or buttocks to a haemorrhagic hamstring tear.
Given the lack of clarity in Dr Patrick’s diagnosis and opinion on causation and in the absence of evidence of radiological investigation at those sites, in weighing the evidence, I remain unsatisfied that there was a separate or additional injury or pathological change involving the left knee or hip in the injurious event.
As indicated above, there is no dispute that the applicant’s left hamstring and shoulder were injured on 20 April 2020. What remains is to consider the effect of the applicant’s injury on his capacity to work during the period of 52 weeks commencing on 20 April 2020.
There is before me only one SIRA certificate of capacity, covering the period 20 to 26 April 2020.
The clinical records from Dr Gosewisch suggest there was initially some improvement in the applicant’s symptoms albeit no complete recovery. By 18 June 2020, for example,
Dr Gosewisch recorded that the applicant was able to do most things with his left leg and was experiencing only occasional pain. The applicant’s antalgic gait was said to be improving.
The clinical records suggest that the applicant returned to work for one week sometime in June 2020 but tripped over whilst using a wheelbarrow. A clinical record made on 24 July 2020 described “new” bruising at the left leg after a re-injury at work and “ongoing” pain.

Neither the applicant’s evidence nor the histories provided to Dr Patrick or Dr Powell address the “re-injury” at work in June 2020 described in the general practitioner’s notes. The respondent’s submissions suggest that any incapacity after that date may result not from the original injury on 20 April 2020 but the subsequent event or “re-injury”. Psychological symptoms, which have not been the subject of a claim, are also described in the clinical records in the context of the applicant’s capacity for work.
In considering this submission, I note that incapacity may arise from multiple causes. In Calman v Commissioner of Police[4] (Calman), the High Court referred to a passage in Salisbury v Australian Iron and Steel Ltd[5] at [20]:
“It is not necessary that the employment injury should be the sole cause of disability. It is sufficient if it is a contributing cause. It may be the catalyst which precipitates disability in a medium of disease. But when the stage is reached at which the employment injury ceases to produce effects and could therefore no longer be a contributing cause to any incapacity which may then exist, the right to compensation ceases.”
[4] [1999] HCA 60; (1999) 19 NSWCCR 40.
[5] [1943] NSWStRp 50; (1943) 44 SR (NSW) 157.
Calman was referred to in McCarthy v Department of Corrective Services[6], where Roche DP made observations concerning the appropriate test on causation for establishing an entitlement to weekly compensation:
“It is trite law that a loss can result from more than one cause (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; (2009) 83 ALJR 986). The authority of Calman is also instructive on this issue. The Court held (at [38], excluding footnotes):
‘Once the appellant established that his underlying anxiety disorder was an injury within the meaning of the Workers Compensation Act, he was entitled ‘to compensation ... under [that] Act’ upon proof that his total or partial incapacity for work resulted from that injury. The question then for the Tribunal was whether the appellant’s incapacity was causally connected to the underlying anxiety disorder. It has long been settled that incapacity may result from an injury for the purposes of workers’ compensation legislation even though the incapacity is also the product of other - even later - causes. Indeed, death or incapacity may result from a work injury even though the death or incapacity also results from a later, non-employment cause. Thus, in Conkey & Sons Ltd v Miller, Barwick CJ, with whose judgment Gibbs, Stephen, Jacobs and Murphy JJ agreed, held that it was open to the Workers’ Compensation Commission to find from the medical evidence in that case ‘that the death by reason of myocardial infarction when it did ultimately occur, ‘resulted’ from the work-caused injury of the first infarction, even if it could not be said that the final infarction was itself caused by work-caused injury.’”
[6] [2010] NSWWCCPD 27.
Similarly, in Accident Compensation Commission v CE Heath Underwriting and Insurance (Australia) Pty Ltd[7] Brennan J said:
“Similarly, liability under the Act to make weekly payments during incapacity or to pay a lump sum in redemption of that liability arises from each of the injuries which caused or materially contributed to the incapacity. Any employment in the course of which the worker sustained an injury causing or materially contributing to his incapacity attracts liability to the employer and to the insurer on risk at the time of the injury ...”.
[7] [1994] HCA 68; (1994) 121 ALR 417.
Both Dr Patrick and Dr Powell gave opinions accepting that the applicant’s injury remained symptomatic and affected his capacity for work. Dr Patrick accepted that the injury had left the applicant totally incapacitated, whereas Dr Powell accepted that the applicant had a capacity to work in suitable duties for full pre-injury hours. Notably, Dr Patrick and Dr Powell gave their opinions towards the end of or after the conclusion of the 52-week period in issue in these proceedings.
The opinions given by Dr Patrick and Dr Powell as to the ongoing effects of the injury are consistent with the limited clinical records before the Commission, which included ongoing reports of symptoms to varying degrees.
It is significant that nothing in the clinical records suggest that any re-injury at work affected or changed the nature of the symptoms experienced by the applicant at his left shoulder, as opposed to his left leg. The incapacity described by both Dr Patrick and Dr Powell arose both from the injury to the left leg and the left shoulder.
For these reasons, I am satisfied that whilst the histories provided to Dr Patrick and
Dr Powell were not perfect, insofar as they omitted any reference to the event described as a re-injury in the clinical records in around June 2020, both histories were sufficiently consistent with the other evidence available so as to provide a proper foundation for the acceptance of the doctor’s opinions.
As noted above, whilst both Dr Patrick and Dr Powell appeared to accept that the applicant had no capacity to perform his pre-injury duties, they differed on the question of whether there was capacity to perform suitable duties.
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 the incapacity.”
Section 36 of the 1987 Act provides:
“36   Weekly payments during first entitlement period (first 13 weeks)
(1)    The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(2)    The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—
(a)95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
After 13 weeks, s 37 of the 1987 Act provides:
“37   Weekly payments during second entitlement period (weeks 14–130)
(1)    The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2)    The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)  95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)  the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3)    The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)  80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)  the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Both ss 36 and 37 of the 1987 Act require consideration of whether the applicant had at all relevant times, “no current work capacity” or “current work capacity”. Those expressions are relevantly defined in item 9 of schedule 3 to the 1987 Act as follows:
“9   Meaning of “current work capacity” and “no current work capacity”
(1)    An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2)    An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The expression “suitable employment” is defined in s 32A of the 1987 Act as:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a)     having regard to—
(i)  the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)  the worker’s age, education, skills and work experience, and
(iii)  any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)  any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)  such other matters as the Workers Compensation Guidelines may specify, and
(b)     regardless of—
(i)  whether the work or the employment is available, and
(ii)  whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv)  the worker’s place of residence.”
In giving his opinion that the applicant could return to work in suitable duties, Dr Powell has not given any indication in his report of the kinds of employment that would be suitable in the applicant’s circumstances.
The applicant is now 70 years old. The applicant’s evidence is that he completed a Year 10 education. After leaving school, the applicant always performed manual work. Apart from a brief period working towards an apprenticeship as a mechanic, and two years in a pub, the applicant’s work had always involved driving trucks, particularly concrete trucks.
In his statement evidence, the applicant described the impact of his symptoms on his ability to perform the tasks of a truck driver. The applicant described difficulties he would experience in getting in and out of the truck; bending and squatting to inspect the truck; and difficulty sitting for long periods and bouncing in the truck whilst driving. The applicant described difficulties due to his shoulder injury in managing the manual handling involved in setting up concrete chutes, using wheelbarrows and cleaning.
Dr Powell’s evidence does not address how the applicant’s ongoing symptoms would affect his capacity to perform the work of a truck driver. Nor is there any suggestion of what other kind of employment would be suitable having regard to the nature of the applicant’s incapacity and taking into account the applicant’s age, education, skills and work experience.
There are before me no return to work or injury management plans. There is no evidence of any occupational rehabilitation services that have been provided to the applicant.
Having regard to the applicant’s age, education, skills and work experience and the nature of the applicant’s incapacity as a result of the injury on 20 April 2020, I accept Dr Patrick’s opinion that in the relevant period, the applicant had a present inability arising from the injury such that he was not able to return to work, either in his pre-injury employment or in suitable employment.
The applicant’s PIAWE rate has been agreed at $1,422.
In view of the findings above, there will be an order for the respondent to pay the applicant weekly compensation pursuant to ss 36(1) and 37(1) for a period of 52 weeks[8] commencing on 20 April 2020, based on a PIAWE of $1,422, as periodically indexed.
[8] See s 52(2) of the 1987 Act.
The respondent will have credit for any payments already made during that period. To the extent that the applicant was paid sick leave and other forms of leave in that period, ss 49 and 50 of the 1987 Act will apply.

[2022] NSWPIC 312

21 June 2022