Long v Tyco International Pty Ltd t/as O'Donnell Griffin

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Long v Tyco International Pty Ltd t/as O'Donnell Griffin [2024] NSWPIC 690
APPLICANT:	Jamie Francis Long
RESPONDENT:	Tyco International Pty Ltd t/as O'Donnell Griffin
MEMBER:	Diana Benk
DATE OF DECISION:	11 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; accepted injury to lumbar spine on 8 March 1995 and 14 August 1995 when the applicant was employed as a labourer for the respondent; whether the right hip also injured in frank incident or due to the nature and conditions of employment ending on 14 August 1995; lack of contemporaneous evidence linking hip symptoms to the incident; inconsistent reporting of injury; other possible explanations for the applicant’s condition; Nguyen v Cosmopolitan Homes and Watson v Foxman discussed; Held – not satisfied that applicant discharged onus of proof with regards to injury; award for respondent with respect to claim for section 60 expenses with regards the right hip.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Mr Jamie Long (the applicant) claims medical expenses both past and future relating to a hip injury which he claims to be the result of the nature and conditions of his employment almost three decades ago with (Tyco International Pty Ltd) (the respondent) specifically between 4 February 1995 to 20 August 1995.
The respondent’s insurer denied liability on the basis that the applicant had not sustained an injury to his right hip, [1] relying on s 4 of the Workers Compensation Act 1987 (the 1987 Act), prompting this application to the Personal Injury Commission (Commission).
[1] Section 78 notice dated 20 November 2023 – Folio 33 of the ARD.
The matter proceeded through the usual pathways eventuating in Arbitration when the parties indicated the dispute was not amenable to conciliation, as ‘live issues’ pertaining to issue estoppel, injury and causation, credibility and possible novus actus interveniens required determination.
The applicant was represented by Mr Carney of counsel instructed by Ms Dulichan. The respondent was represented by Mr Barnes of counsel instructed by Mr Gorsevski.
Mr Mackle was the insurer representative.
The ultimate issue for determination is whether the applicant suffered an injury to his right hip whilst employed by the respondent. Depending on findings, it will then be necessary to explore whether the treatment claims are reasonably necessary.
In assessing the matter, I had regard to the oral submissions of counsel, the Application to Resolve the Dispute (ARD) and the Reply. No oral evidence was called.

EVIDENCE

Applicant’s evidence

In a statement dated 18 January 2010, the applicant confirms he commenced work installing power poles for the respondent on 4 February 1995.
On 8 March 1995, he suffered injury to his neck, right shoulder, right arm and back when he was struck by the handle of a large industrial mixer. He kept working despite pain and did not seek medical attention because he was working in a remote area, approximately 140km from Broken Hill.
The work was performed in unforgiving terrain including hills, swamps, stone, open salt pans and rough bush. He worked seven days per week and did not have ‘a day off’ until about the end of July 1995, having worked five months straight despite ongoing back pain. Then on 14 August 1995 whilst shoveling cement in the mixer he felt a sharp pain in his lower back and hip area and reported it to his coworker Eddie Oldfield. He ceased working shortly thereafter. He suffered injuries to his ‘neck, right arm, right shoulder, back, right leg with loss of bowel function and loss of sexual function’[2] which he attributed to either frank injury or nature and conditions, specifically where he was required to install between 14 to 16 power poles per day and was ‘shoveling approximately 8-10 ton of fill per day seven days per week during that period of time’. He saw many specialists and was off work for about two years.
[2] Paragraph 48 Folio 10 of the ARD.
In early 1996 he enrolled as a volunteer coach for self defence and boxing instruction at the PCYC but stopped in about July 1996 as his injuries prevented him for pursing this.
The applicant recalls settling his compensation claim arising from the above injury, receiving weekly compensation and a lump sum payment for impairment of the back following proceedings commenced in the Compensation Court of NSW in about 1998.[3] Deterioration of his condition prompted further proceedings in the Workers Compensation Commission[4] where he received lump sum compensation for loss of use of the right arm, loss of use of the right leg above knee and loss of sexual function.
[3] Matter Number 18028 of 1996.
[4] Matter Number 15442-06.
As regards post injury employment, the applicant states he worked as a tow truck driver between 1997 to 2000 which he did concurrently whilst studying at TAFE full time. He earned about $40 per week. Pain prevented continuation of work and studies. He was granted a disability support pension and ‘I have not worked in any form of employment since that time’.
Relevantly as regards treatment, the applicant attended rehabilitation at the Broken Hill Hospital in February 1996 and had physiotherapy with Tom Hughes specifically (unedited):
“He pin pointed the problem area and named what he believed to be the damaged areas surrounding the problem, with his report clearly naming and identifying my lower back and hip/pelvis areas right from the beginning…. His report is important because of its original content which confirms the 2007 MRI findings countering claims by the insurer the hip injury was never mentioned or included in the original complaint.
[5] Paragraph 97 of the ARD.
Dr Crowley first saw me in 1997-8 with the same findings.” [5]
The applicant nominates his various treating doctors and specialists and further states (unedited):
“none of the doctors who examined me were aware at that time there was any significant injury to my right hip but it was recorded in the report of physiotherapist Tom Hughes from Broken Hill Hospital in February 1998.”[6]
[6] Paragraph 111 – Folio 21 of the ARD.
In a statement made on 24 September 2024[7] (14 years after the original statement and
[7] Folio 470 of the ARD.
29 years post injury), the applicant states “since my last award, my right hip has gotten worse”. He describes the impact on his activities of daily living and specifically, “I have problems holding on to jobs because of the ongoing pain”.

Qualified evidence

Dr Nigel Hope, orthopedic surgeon, reported on 10 July 2023.[8] Specifically, he reported (unedited):
“the history is of a work related right hip injury sustained whilst shoveling road base constantly in August 1995…
Right hip surgery is required due to work related injury. The right hip was previously symptom free. A well described work related task in August 1995 caused permanent right hip symptoms which gradually progressed.
Right hip osteoarthritis is the diagnosis. The MRI and the x-ray confirm right hip osteoarthritis. Right total hip arthroplasty is required and the requirement for surgery is work related”
[8] Folio 36 of the ARD.
The report provides few particulars of the ‘well described work related task’, progress or treatment. It neglects to consider the contribution, if at all, of domestic activities, other injuries, employment or aging over the ensuing three decades and does not provide any real medical reasoning to account for his conclusion that the need for hip arthroplasty arose out of injury with the respondent.

Treating evidence

Dr Ronald Haig, orthopedic surgeon reported on 14 May 1996[9] to Dr Gan, who was the general practitioner at the time. He took a history that the applicant could not straighten his back due to back pain after a prolonged period of heavy shovelling at work. There were complaints of low back pain since with some radiation out to the right thigh but not beyond the knee with the pain tending to be shooting in nature. Pins and needles in the toes were documented. The right leg was said to give way at times. There was an occasional limp.
[9] Folio 59 of the ARD.
Dr Haig concluded the pain was discogenic in nature. No findings were made with regards to the right hip.
Greg Lovell, physiotherapist reported on 31 July 2002.[10] He initially examined the applicant on 21 September 2000 with a complaint that he had hurt his back five years earlier when working with concrete poles and shovelling, complaining of right sided low back pain that was constant with pins and needles in the right foot. The report is silent on any right hip symptoms.
[10] Folio 56 of the ARD.
In his report dated 15 November 2002,[11] the history of back injury was again recorded and the report focused on treatment to the lumbar spine. He recorded sleep problems, right groin and right thigh pain and depression. The back pain was related to the work injury. It was recorded (unedited):
“Mr Long is suffering from chronic groin pain, the aeitiology of which is unclear at present but may be back related.”
[11] Folio 57 of the ARD.
Dr Sekel, orthopaedic surgeon, reported on 7 June 2010[12] following referral from general practitioner, Dr Nachiappan. The reason for referral was noted as (unedited):
“Longstanding history of low back pain which has apparently kept him out of the workforce for the last fifteen years since a possible work injury
Gradually increasing degenerative arthritis of the right hip clinically and radiologically.”
[12] Folio 49 of the ARD.
As regards the back he considered there was definite functional overlay and reported (unedited):
“After many years of working in spine, over the last decade I have specialized in hip and knee but I do not believe Mr Long has a significant back problem sufficient to take him out of the work force on clinical findings today.”
As regards the right hip, he reported:
“…serial MRI studies over a four year period show gradually increasing degenerative arthritis developing probably following a labrum tear initially in 2006…
It is most unusual for hip pain to be present for fifteen years from a labral tear without having undergone degenerative changes earlier than 2006.
As he appears not to have worked for fifteen years I doubt that his hip problem is related to any work injury fifteen years ago.”
In summary, Dr Sekel concluded (unedited):
“Bottom line : LBP has a large functional element, and no objective abnormal findings.
Hip not due to a work injury.”
On 3 June 2010,[13] Dr Abraszko, neurosurgeon, following referral from Dr Nachippan reported the applicant had ‘a work related injury to his lumbar spine in 1995.’ On examination he complained of back pain radiating down to his right leg to the level of the mid-thigh and also has right hip pain and was considering surgery for his right hip.
[13] Folio 55 of the ARD.

Clinical notes – Dr Nachiappan’s practice

The clinical notes of this practice commence on 10 May 2006 where a complaint of ‘ongoing back pain’ was recorded said to arise from a “1995 WC injury”.[14] Consultation on
[14] Folio 72 of the ARD.
[15] Folio 73 of the ARD.
12 December 2006 related to back pain however as an MRI indicated a right hip labral lesion, referral was sought to an orthopaedic specialist. [15]
At assessment on 20 March 2007, it was recorded “right hip MRI indicated advanced OA changes and a labral tear”.
Presentations on 10 October 2007,[16] 18 October 2007[17] refer to back pain. At consultation on 20 February 2008 the reason for visit was recorded as “right Labral injury (hip) – had a pain in groin to back, dry wretching”.[18]
[16] Folio 77 of the ARD.
[17] Folio 78 of the ARD.
[18] Folio 82 of the ARD.
WorkCover Medical Certificates issued by the practice as early as 6 May 2008[19] report ‘surgeon recommend THR’.
[19] Folio 361 of the ARD.
A further presentation was noted on 29 January 2009 with the reason for visit being right labral injury (hip).[20] Endone was prescribed.
[20] Folio 89 of the ARD.
On 3 February 2010,[21] it was recorded “getting cramps in upper and mid back. If leans forwards gets this repeatedly. Hip been better”.
[21] Folio 92 of the ARD.
On 15 February 2012[22] it was recorded:
“pain is worse apparently, and as a result less mobile. Slip-on on concrete now L hip soreness. To trial heated pool.”
[22] Folio 101 of the ARD.
At consultation on 17 February 2014[23] (unedited):
“documented labral hip injury R hip 2007 and L345 disc degeneration with annular tears since 2010. For follow up of conditions.
Got under car to check indicator, after twisting spine, L hip stiffened after this. Slowly getting better.”
[23] Folio 109 of the ARD.
On 13 May 2015,[24] it was recorded “gets sharp pains in R hip and sometimes collapses”. On 13 August 2015[25] it was recorded “pain in both hips, alternating sides”.
[24] Folio 141 of the ARD.
[25] Folio 142 of the ARD.
On 11 February 2016[26] it was recorded, “bent down to pick up tool box, sore again in mid back”. On 12 May 2016,[27] at consultation it was recorded “feels joints are worse, after helping friend shifting”.
[26] Folio 145 of the ARD.
[27] Folio 146 of the ARD.
In a referral for physiotherapy on 8 January 2020, [28] the past history was recorded by
Dr Nachippan as follows (unedited):
“Date  Condition
1986  Mycoplasma pneumonia infection
August 1995  Back pain – chronic
20 March 2007                Labral injury (hip) (Right)
20 March 2007                Osteoarthritis – Hip (Right)
2014   2010  L345 – disc degeneration with annular tears.”
[28] Folio 51 of the ARD.
On 25 May 2021,[29] a fall in the backyard was recorded with injury to the right elbow tip and upper back.
[29] Folio 208 of the ARD.
WorkCover Medical Certificate dated 25 May 2021,[30] Dr Nachiappan recorded the stated date of injury is August 1995:
“surgeon recommended THR, x-rays confirm OA hips R>L. Further fall in backyard on 24 May 2021 increased pain, provided Panadeine Forte to use prn short term only. “
[30] Folio 275 of the ARD.
WorkCover Medical Certificate dated 24 April 2024, [31] records injury to low back, right hip labral injury, reactive depression – recurrence – Recent exacerbation working casual as postal delivery person. (my emphasis). Certified unfit for work between 24 April 2024 to
[31] Folio 374 of the ARD.
24 May 2024.

Broken Hill Hospital

At assessment on 1 April 1996[32] in the Emergency Department it was recorded (unedited):
“Long H/o back pain. Presents as had exacerbation of pain over past 1-2 weeks.”
[32] Folio 389 of the ARD.
Progress notes of the orthopaedic department dated 16 November 1998[33] record lower back pain only. Dr Richard Crowley, orthopaedic surgeon reported on 18 November 1998.[34] He recorded the applicant to be a former heavy machinery driver and athletic coach/participant with lumbar back pain due to a work injury in August 1995. Conservative management was recommended. The spine was examined. There is no mention of hip pain or pathology.
[33] Folio 403 of the ARD.
[34] Folio 53 of the ARD.
Dr Smith, Locum Surgeon, Broken Hill Hospital assessed the applicant on 25 May 2006[35] and reported limited flexion of the lumbar spine. No hip pain was reported or recorded. Conservative treatment was recommended.
[35] Folio 48 of the ARD.
On 20 July 2006,[36] Dr Crowley noted the applicant requested MRI scan. He reported back to the treating doctor that as he was not a back surgeon, referral a neurosurgeon or orthopedic back surgeon pending findings of the MRI should be arranged.
[36] Folio 54 of the ARD.
In 2008, the applicant was treated by the physiotherapy department who recorded injury “ten years ago to right hip and pelvis with chronic lower back pain”.[37] It was noted the applicant was a graphic artist and had a history of “extreme sports and body building etc”.
[37] Folio 378 of the ARD.
Discharge summary on 11 November 2015 recorded that the applicant presented with a back injury following being struck by a large BBQ lid.
Dr Robert Din, orthopaedic surgeon,[38] on 25 January 2023 reported that he reviewed the applicant who presented with problems with the right hip with pain and limited walking mobility and sleep disturbance. A total right hip replacement was recommended under WorkCover. The report does not provide any history of injury, mechanism of injury, opinion about the relationship between the need for surgery and any alleged work injury or matters external to the subject employment which may have contributed to pathology. He records his examination findings and the reports of the X-rays demonstrating “end stage osteoarthritis of the right hip”. He concludes (unedited):
“in view of his persistent pain and tenderness in the right groin, I have arranged for him to have a hip replacement done under WorkCover.”
[38] Folio 384 of the ARD.

Radiology

An MRI of the lumbar spine and pelvis was undertaken on 26 July 2006. Clinical details were “11 year old injury. Complaints of persistent right flank and groin pain. Right hip joint effusion was reported”.[39]
[39] Folio 45 of the ARD
X-ray of hips and pelvis dated 3 June 2010[40] recorded degenerative changes present in both hips particularly on the right side.
[40] Folio 46 of the ARD.
An MRI was undertaken of the lumbar spine and both hips on 28 February 2014.[41] The clinical information provided in the referral was;
“documented labral injury hip 2007 on the right…”
[41] Folio 43 of the ARD.
The findings were compared to a previous MRI dated 29 May 2010. Similar subchondral cysts were identified with new cyst formation said to be indicative of progressive chondral disease. (There is no MRI report dated 29 May 2010 in the evidence, however I note that the medical assessment certificate of Dr Byok on behalf of the Workers Compensation Commission notes an MRI report of 21 May 2010 which reported “Degenerative changes of the right hip with adjacent labral fraying only minor synovitis – Dr S Fowler”.[42]
[42] Folio 424 of the ARD.

Litigation history

In compensation court proceedings matter no 18028/96, the applicant was awarded 10% permanent impairment of the back.
In Workers Compensation Commission proceedings matter no 15442/06 the applicant received an award for 2% loss of the right arm at or above the elbow; 10% loss of efficient use of the right leg at or above the knee and 30% loss of sexual organs.
On 20 January 2010, in Workers Compensation Commission proceedings matter no 007969/09 a Certificate of Determination[43] recorded the following (unedited):
“Consent orders
1.     The Applicant elects to discontinue the claims for weekly benefits compensation, for additional lump sum compensation and for section 60 expenses and I dispense with the need to file a Notice of Discontinuance pursuant to Rule 15.7.
2.     The Respondent is to pay the Applicant’s costs as agreed or assessed.
Notation
1.     The Respondent will continue to pay the Applicant’s section 60 expenses in accordance with the Award of the Compensation Court dated 9 September 1998 but does not admit liability for treatment to the right hip. (my emphasis).
2.     By agreement the matter is to be referred by the Registrar to an Approved Medical Assessor for assessment of the degree of whole person impairment for the purposes of resolution of a threshold dispute for work injury damages. That assessment is to be made in respect of the lumbar spine, right upper extremity, and right lower extremity (including the hip) but without any admission as to causation of any condition of the right hip. (my emphasis).”
[43] Folio 442 of the ARD.
Dr O’Keefe, Approved Medical Specialist reported on 23 February 2010[44] and found a 13% whole person impairment. He also reported (unedited):
“Whilst in the employ of Tyco International, this man sustained an injury to his right shoulder on 08.03.1995 consisting of a fractured right clavicle, and initially what he thought was an injury to his back in fact has turned out to be an injury to his hip and back pain is purely due to muscle spasm from his hip problem. His original hip injury occurred on 25.08.1995 and by the time he had had his MRI scans 10 and 11 years later in 06 and 07 he has developed arthritic changes in his right hip….
I have read all the other medical reports and most agree that this man did in fact sustain a hip injury rather than a back injury at the time and this has developed into arthritis over the ensuing 10 to 12 years as evidenced on the most recent MRI scan.”
[44] Folio 438 the ARD.

On 13 December 2016, Workers Compensation Commission proceedings matter no 007969/09 were finalised by a Certificate of Determination[45] reflecting the applicant had no further entitlement to lump sum compensation for injury on 8 March 1995 and
[45] Folio 442 of the ARD.
20 August 1995 as the Medical Assessment Certificate of Dr Byok found no increase in impairment from that previously awarded. In addition, Dr Byok recorded the applicant’s recollection of injury was poor. She did not make any findings on the genesis of the hip complaint but diagnosed right hip osteoarthritis and a labral tear.

Respondent’s evidence

Dr Robert Breit, orthopaedic surgeon reported on 31 October 2023.[46] He recorded that at the time of his assessment that hip replacement was not proposed (however I note that this is incorrect as Dr Din on 25 January 2023 recommended the surgery). The report refers to a report of Dr Bodel (however this is not in evidence).
[46] Folio 14 of the Reply.
Dr Breit recorded that despite the history of unemployment that he was told that since August 2023, the applicant had been employed as a postal delivery officer conducting deliveries on small motorcycles.[47]
[47] Folio 17 of the Reply.
As regard the opinion of Dr O’Keefe and the past history, Dr Breit recorded (unedited):
“I also reviewed an assessment of impairment by Dr O'Keeffe in his role as an AMS for the Compensation Commission on 03/03/2010. Dr O'Keeffe seems to have decided the hip was somehow related to this man's injury despite the clear-cut history of back pain as defined at the time by Dr Haig. He then proceeds to improperly assess his hip, talking about rotation in hip flexion. The solicitors at the time did not apparently pick up this issue. Hip rotation needs to be assessed in the prone position, that is the hip is out straight as per the Guides.
There is also a report to the solicitors by Dr Ormandy from 16/10/1996. He goes on to note that after this claimed injury, Mr Long went on to renovate his home, including re-roofing with iron. ‘He said that when he bent down to do this work, his back was painful.’ That is not surprising. He also did some kitchen renovations, including cabinet making. He did this at bench level. He also mentions that there was a motorcycle accident in 1984 in which he injured his right leg and groin. Dr Ormandy then elicits symptoms of back pain extending into the right leg to the foot with pins and needles, but no neurological abnormality or evidence of sciatic nerve root irritability was noted”
In response to the opinion of Dr Hope, Dr Breit reported (unedited):
“To put it politely, the report is brief. The mechanism of injury is one line and two words long. There is no worthwhile historical information or opinions/assessments from other. He has not taken into consideration many other issues such as being a martial artist for years, which certainly requires more force and more likely to cause injury than any of his employment. The report of the investigations which he apparently saw simply states osteoarthritis. The reports that | read were also deficient because in particular they make no mention of the other possible causes of arthritis and in particular femoroacetabular impingement. They are a common cause of this problem but not necessarily so.
On the basis of this minimal history, minimal assessment, he blithely states that this is all work-related, etc, etc.”[48]
[48] Folio 20 of the Reply.
As regards causation, it was reported (unedited):
“The only injury sustained was a strain to the lumbar spine. It may have resulted in some disc damage. It has been clearly recorded by two surgeons close to the time of injury. There was no recurrence in July 2020, but rather the refreshing of the claim by Mr Long…
I have already indicated the earlier histories. The mechanism of injury, that is shovelling dirt or cement, does not lead to hip arthritis. It is less strenuous than jogging where there is a high spike pressure. He is simply applying his body weight to the shovel. That weight is not any greater than his normal body weight when walking about. He did not have a fall, he did not wrench in injury to the hip (at least at work), he just had some back pain which in retrospect Dr O'Keefe states was a hip injury. That possibly exceeded his authority as an AMS and the evidence is the contrary.
Hip arthritis is a constitutional degenerative phenomenon in most instances, as is the case with Mr Long
There has never been an injury to the hip, he claims that his back injury has not settled, and he has been awarded increasing impairment assessments for what was a trivial episode…
The hip replacement is not reasonably necessary because it is not related to his work. | also have doubts as to the true state of symptomatology in his right hip which would inevitably require replacement surgery.”

Submissions

When summarised, the mainstay of the applicant’s submissions were;
i)     the applicant was involved in heavy hands on physical labour and has been consistent in his history of injury to all practitioners;
ii)     the lack of contemporaneous complaint or treatment to the hip should not disadvantage the applicant as it is explained by his statement, the focus of treatment was the back at the time and it was only after exhaustive investigation that it was considered that the hip was involved;
iii)    there is nothing of substance in the respondent’s case that suggests a substantial competing theory for causation;
iv)    the respondent’s previous concessions enlivens ‘issue estoppel’ as it allowed the hip to be referred for assessment to a Medical Assessor in 2010;
v)     the report of Dr Breit should be given little weight as he has not acknowledged the previous findings made by the Commission as they relate to the hip, and
vi)    the pathology of a labral tear is consistent with the injury in August 1995 and there is medical evidence to support that a hip arthroplasty is the only form of treatment to address the pathology now arising from the injury.
When summarised, the mainstay of the respondent’s submissions were;
i)     the applicant bears the onus of proof to establish injury in the course of his employment and this has not been discharged;
ii)     the applicant’s statement should be given little weight as the original statement in these proceedings is made 15 years after the injury is alleged and the most recent statement is made 29 years after the alleged incident and his recollection of events is at odds with the contemporaneous medical evidence, which may or may not be deliberate but is somewhat confused due to the passage of time;
iii)    the report of Dr Haig is inaccurate and should be given little weight. He has failed to take a proper history of events both at the time of the alleged injury and subsequent thereto;
iv)    the respondent accepts that clinical notes are not determinative on the issue of injury as doctors sometimes misunderstand or mis record the histories, however, in this case, whilst it is acknowledged that the applicant only commenced consulting with Dr Nachiappan in 2006 at that time, the records show that the practice was informed of a work place back injury in 1995. The first complaint of hip injury was not until much later in the piece with a formal diagnosis of labral tear being made on 20 March 2007;
v)     if injury is found, the claim cannot succeed against this respondent as the evidence demonstrates the applicant suffers from a disease process which is likely to have been aggravated or exacerbated by subsequent employment;
vi)    issue estoppel does not arise. At no stage has there been a formal finding or concession made by the respondent in relation to the hip and the notations recorded in the previous consent orders of the Commission clearly reflect that;
vii)   the respondent accepts the applicant suffered an injury to his back but there is no contemporaneous evidence that he suffered injury to the hip concurrently or shortly thereafter. Whilst reports gathered over the past 25 years now referred to a hip injury, this is on the basis of the applicant’s recollection commencing 10 years post injury. Such statements are inconsistent with the initial complaint of injury and medical records. At best the statements can be said to be vague and self-serving;
viii)     the applicant has failed to account for his subsequent employment which may have contributed to the progression of the degeneration of the hip which could give rise to exacerbation of the well-established disease process; or other injuries that he has had in private circumstances. It is arguable that there has been a novus actus interveniens, and
ix)    the report of Dr Bodel has not been served in evidence and given the history of this matter; it was appropriate for an adverse inference to entertained.[49]
[49] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
In response, the applicant submitted;
i) referral to a Medical Assessor could not have eventuated without an acknowledgement of injury. The determination disputes causation but not injury, and
ii) there is nothing in the medical material that suggests that any subsequent employment or domestic activities have caused an aggravation or increase in symptomatology in the hip.

APPLICATION OF THE LAW, FINDINGS AND REASONS

The definition of injury within the meaning of s 4 and 9A of the 1987 Act.
In assessing injury, authorities demonstrate:
(a)    in order to be satisfied that an injury has occurred, there must be evidence of a sudden or identifiable pathological change: Castro v State Transit Authority (NSW),[50] or as stated by Neilson CCJ in Lyons v Master Builders Association of NSW Pty Ltd,[51] “the word ‘injury’ refers to both the event and the pathology arising from it”;
(b)    the issue of causation must be determined based on the facts in each case and the application of the common sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates,[52] and
(c)    the applicant bears the onus of establishing injury on the balance of probabilities, and in order to discharge that onus, I must be satisfied that the case has been proved on the balance of probabilities. I must feel an actual persuasion or comfortable satisfaction of the existence of a fact. The Court of Appeal in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen) summarised the approach as follows:
“(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[50] [2000] NSWCC 12; 19 NSWCCR 496.
[51] (2003) 25 NSWCCR 422, at [429].
[52] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), [463].
(At [55].)
They key issue for determination is whether the applicant suffered injury as a result of his employment with the respondent. To resolve that issue, I need to examine whether there was a sudden and ascertainable or dramatic physiological change or disturbance in the state of the applicant’s right hip.
Here the applicant says that issue estoppel relieves me of the burden to make findings in relation to injury, as the respondent has, by its conduct in previous proceedings, accepted that the applicant sustained a hip injury.
Careful review of the Certificate of Determination dated 20 January 2010 and specifically the notations confirms the respondent stipulated it was not liable for treatment to the right hip and the matter was to be referred without the respondent admitting causation in relation to the right hip.
Issue estoppel can be activated in circumstances where in previous proceedings, the same question was decided; the decision which is said to create the estoppel was final and finally the parties to the dispute are the same. [53]
[53] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [90].
There is no dispute the parties are the same. The key question is was the same question decided and further did any orders bring finality in terms of the awards?
On review of the consent orders, I cannot be satisfied that the same question was involved or that an actual final decision was made regarding liability and causation. The matter was referred to an Approved Medical Specialist for the purposes of whole person assessment for threshold purposes. I find it was not the same question and no formal findings were made with regards injury. Further the referral clearly articulated that treatment with regards to the hip was in dispute as was causation. I appreciate that the applicant maintains that the matter could not have been referred without the injury dispute being determined, however this is not reflected in the notations of the Certificate of Determination. In short, the same issue had not been determined and so issue estoppel does not arise. Given this finding, I must now determine the issue of injury.
The difficulty of resolving historical disputes and issues of fact particularly where there is conflict has been the subject of much judicial discussion. It is well established in such cases that time can distort events leaving little more than an impression from which plausible details, often subconsciously are constructed.[54] I find that this has occurred in the circumstances of the case. The applicant in his statement seems to have a vivid recollection of the advice given to him regarding the hip by Dr Crowley, however this is inconsistent with Dr Crowley’s contemporaneous reports. Further, the applicant is adamant that Tom Hughes physiotherapist identified the problem in the hip in 2007 and agreed with Dr Crowley’s opinion in 1997/8. The evidence confirms Dr Crowley has not made an opinion or even commented in regards to the hip and I can only conclude that the applicant’s recollection is inaccurate. Both parties confirmed the report or clinical notes of Tom Hughes were not in evidence.
[54] Watson v Foxman (1995) 49 NSWLR 315.
Case law impresses upon a decision maker to reach conclusions as far as possible, on the basis of contemporaneous materials, objectively established facts and apparent logic of events, in cases where credibility is in dispute, but also promotes such discernment be undertaken in conjunction with well-established principles about witness credibility.[55]
[55] Fox v Percy [2003] HCA 22.
The respondent also maintains that little weight must be afforded to the applicant’s qualified evidence and the reports gathered over the last two decades as the history given to the practitioners is inaccurate or incomplete. The ultimate principles arising from case law is that an expert’s opinions must be capable of being “appraised” by the tribunal of fact. The extent to which such appraisal will be required will depend upon the circumstances of the case, including whether there is other expert evidence which contradicts or challenges the opinion under consideration, the focus is not on the admissibility of the expert evidence opinion but on the weight that should be accorded to it.[56] A bare ipse dixit[57] (an opinion where there is a failure to provide a clear explanation of the underlying reasoning) is insufficient given that the assumptions and findings cannot be independently appraised with reference to the evidence globally.
[56] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11.
[57] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16.
Further, the respondent encouraged me to make adverse inferences as there had been a failure to serve the report of Dr Bodel (an expert qualified by the applicant), suggesting that perhaps the report was not advantageous to the applicant’s claims. It is certainly open for me to do so, but the reference to Dr Bodel arises from Dr Breit’s report. Dr Breit records that it was part of his brief and the s 78 notice also refers to the report. Why the respondent elected not to file the report given its claims is unclear. I have elected to refrain from making adverse inferences given these circumstances, however, overall nothing turns on this, but I raise it as it was part of the submissions.
In this case, where the experts differ, I am required to apply logic and common sense in deciding which view is to be preferred or which parts of the evidence are to be accepted, an exercise which cannot be carried out without knowing the essential integers of the expert opinion.[58]
[58] Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260.
The foundation of the applicant’s case are his statements. The first is dated 2010 (that is 15 years after the alleged injury) which does not specifically express injury to the hip although does refer to pain down the leg including the hip. His statement was updated presumably for these proceedings in 2024 (that is 29 years after the events in question) and provides a paucity of evidence in relation to the symptoms and intervening events except to say that his condition has deteriorated. There has been a failure to disclose subsequent employment as recently as 2023 as a postal worker and specifically that he was certified unfit for work for one month after suffering an increase in back and hip symptoms. The statements provide no insight as to his symptoms or situation over the past three decades and fail to disclose domestic injuries documented in the medical evidence. The respondent alleges the statements are self-serving and not credible. I agree. I conclude the statements are inaccurate, incomplete and self serving. The omission of subsequent employment and other domestic injuries is disingenuous and disadvantage the applicant as his omissions have compromised a complete and proper assessment of his claim by those who have examined him. For these reason I have given greater weight to the medical evidence at the time of the injury and shortly thereafter.
I have slavishly extrapolated the clinical notes. These clearly establish a workplace lumbar spine injury in 2005. Extensive medical assessment was undertaken and complaints and histories given to the doctors at that time including those made to Dr Haig, Greg Lovell, the Broken Hill Hospital and Dr Nachiappan (until 2007) do not disclose any hip injury. Greg Lovell does record symptoms in the groin but as at 2002 the aetiology was not clear. I acknowledge that little reliance should be placed on clinical notes in isolation, as omissions have been known to occur in busy practices where the focus is on treatment. However, the notes of several practitioners are consistent concerning the absence of complaint of injury to the hip and this consistency causes me to find that the applicant did not suffer hip injury in the period claimed.
The records then show the applicant commenced consultations with Dr Nachiappan 10 years post injury. Dr Nachiappan records at initial consultation that there was a back injury in 1995. Some hip symptoms are recorded at a subsequent consultation with a labral tear reported on 20 March 2007. The significance of this date is unknown.
In response to ongoing complaints, and given that Dr Crowley at the Broken Hill Hospital was not a back specialist, Dr Nachiappan referred the applicant to an orthopaedic surgeon
(Dr Sekel) and neurosurgeon (Dr Abrazsko) in 2010. Dr Abrazsko does not refer to hip injury, whereas Dr Sekel quite strongly asserts that the hip was not due to back injury.

The significant absence of complaint of hip injury between 1995 to 2006 causes me to find that the applicant did not suffer any frank injury or indeed aggravation to the hip whilst employed by the respondent. I note the complaints of referred pain to the right leg which included the hip and the groin, but this does not reflect an injury to the hip but was considered to be radiating pain from the back.
With reference to Dr Haig’s report, I find this to be largely ipse dixit, preventing proper appraisal. He fails to provide a pathway of reasoning as to how he reached his conclusions on right hip injury in the workplace, presumably accepting the applicant’s historical statements. His report hastily concludes that the presentation in 2023 was entirely related to workplace events in 1995 without canvasing or eliminating any contribution of activities be it employment or otherwise to the ongoing progression of the osteoarthritis. I place little weight on this report. I accept that the diagnosis is osteoarthritis but I find that the report gives me no insight as to how the condition in its present form is related to events that occurred 28 years ago!
Overall, I find the contemporaneous and qualified medical evidence establish the applicant did not sustain injury to the right hip whilst employed by the respondent because;
(a)    initial complaints to orthopaedic surgeon’s Drs Haig, Crowley and Smith shortly after the workplace events are silent on any hip injury or symptoms, referring solely to back injury;
(b)    Dr Sekel, on referral from the general practitioner, was asked to assess the back and hip symptoms. He expressly submitted the hip symptoms were not related to employment and reported that it was “most unusual for hip pain to be present for fifteen years from a labral tear without having undergone degenerative changes earlier than 2006 and further as the applicant had not worked for fifteen years, he doubted that the hip problem was related to any work injury fifteen years ago”;
(c)    on first consulting Dr Nachiappan’s surgery in early 2006, the applicant informed the doctors that he suffered a back injury in 1995 and did not report any hip symptoms until December 2006 with a ‘labral injury’ (hip) (right) being recorded on 20 March 2007;
(d)    the report of Dr Haig does little to support a finding of injury in 1995 as it fails to take into account a proper history of the mechanism of injury, subsequent treatment and the influence or otherwise of any non-work related factors over the ensuing three decades. His conclusions are without reasoning and ipse dixit;
(e)    likewise the report of Dr Din fails to explain why he concluded that the need for arthroplasty was related to workplace events almost three decades ago. He does not record a history of injury and does not reconcile any pathology to workplace events or even exclude/include other factors as impacting presentation given three decades have elapsed;
(f)    I accept that reports dated post 2010 record the applicant sustained a hip injury in 1995, but these conclusions appear to have been made on the applicant’s self-reporting of symptoms, without recourse to any contemporaneous notes. They are also based on inaccurate and incomplete histories as the applicant has failed to disclose injury both in private and subsequent employment circumstances, for example falls and exacerbations of pain arising out of his work as a postal courier, (which resulted in him being certified unfit for work for a period of one month!) which could have implications in relation to liability relative to the disease provisions in the 1987 Act, and
(g)    I acknowledge that Dr O’Keefe suggested that the right hip injury was related to workplace events in 1995, however this opinion is not binding and is at odds with the evidence summarised above.
As indicated above, the applicant carries the onus of establishing on the balance of probabilities that he suffered injury as defined in the 1987 Act to the right hip. The content of the standard of proof has been the subject of much judicial discussion and consideration but, for present purposes, it is sufficient to say that I must be satisfied to a sense of actual persuasion or affirmative satisfaction that his case has been made out (Nguyen). It is not necessary that I be satisfied to a degree of medical or scientific certainty but, on the other hand, it will not be sufficient if I am merely satisfied that it is possible that the applicant’s employment caused “injury” of the relevant time.
For the reasons above, I find the applicant has not discharged his onus in establishing injury to the right hip, as I am not satisfied to a sense of actual persuasion or affirmative satisfaction that his case has been made out. It follows that consideration of novus actus is redundant in these circumstances, however, there are certainly circumstances that the applicant has not disclosed that would have more likely than not resulted in such a finding, had injury been found.
It follows that I do not need to consider the question of whether medical treatment proposed is reasonably necessary.

SUMMARY

For the above reasons, I make the findings and orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 690

11 December 2024