Mackintosh v Ian Cubitts Classic Home Improvements Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Mackintosh v Ian Cubitts Classic Home Improvements Pty Ltd [2023] NSWPIC 150
APPLICANT:	Alex Mackintosh
RESPONDENT:	Ian Cubitt’s Classic Home Improvements Pty Limited
Member:	Paul Sweeney
DATE OF DECISION:	12 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation and the cost of proposed surgery; worker provides a late and variable account of the circumstances of injury; argument in respect of an admission allegedly made by insurance agent; Lustre Hosiery Ltd v York considered and applied; Held – finding of injury; award for applicant for cost of surgery.
determinations made:	The Commission determines: 1. The applicant suffered injury to his right hand/wrist arising out of and in the course of employment with the respondent on 10 November 2021. 2. As a result of that injury it is reasonably necessary that the applicant undergoes arthroscopy and TFCC repair as proposed by Dr Smith. 3. Order the respondent to pay the costs of and incidental to this surgery in accordance with s 60 of the Workers Compensation Act 1987. 4. Liberty to apply in respect of the closed period of weekly compensation.

STATEMENT OF REASONS

BACKGROUND

Alex Mackintosh (the applicant) was formerly employed by Ian Cubitt’s Classic Home Improvements Pty Limited (the respondent) as a delivery driver. His work included the unloading of freight which he delivered to various sites. On 15 November 2021, he informed his employer that he suffered injury to his right wrist while unloading a truck at Wallsend on 10 November 2021.
The respondent’s insurer, Employers Mutual Limited (EML), accepted provisional liability for the injury and paid the applicant weekly compensation until 28 March 2022.
On 16 March 2022, EML, issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) by which it denied that the applicant suffered injury in the course of his employment on 10 November 2021. The denial was based on a factual investigation carried out by Advance Investigations dated
22 December 2021 and the opinion of an orthopaedic surgeon, Dr James Masson, in a report dated 22 February 2022.
The applicant found suitable employment on 10 November 2022. However, he says that he continues to experience difficulties with his right wrist and wishes to undergo surgery proposed by his treating orthopaedic surgeon, Dr Nicholas Smith.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

By these proceedings, the applicant claims weekly payments pursuant to s 37 of the 1998 Act from 29 March 2022 to 10 November 2022. He alleges his pre-injury average weekly earnings (PIAWE) were $1,538.06. He also claims the cost of a right wrist arthroscopy and open TFCC repair recommended by Dr Smith.
When the matter came on for a conciliation conference and arbitration hearing on 23 February 2023, Mr Parker of counsel represented the applicant and Mr McMahon of counsel represented the respondent. While there were extensive settlement discussions, I was ultimately informed by counsel that the parties were unable to settle the threshold issue of injury. I am satisfied that the parties, who were represented by experienced lawyers, had ample opportunity to resolve the claim but were unable to fashion a mutually acceptable outcome.
At the commencement of the arbitration Mr McMahon indicated that both injury and incapacity during the period claimed were disputed by the respondent. He indicated that the respondent had issued a subsequent s 78 notice by which it asserted that the applicant’s PIAWE was less than the sum of $1,538.06 claimed in the Application to Resolve a Dispute (the Application). The respondent also pressed for production of statements from two bank accounts in the name of the applicant which it argued should have been produced pursuant to a Notice to Produce served on the applicant.
I provisionally admitted the further s 78 notice, the Notice to Produce, and bank statements already produced by the applicant into evidence. I ordered that the respondent lodge those documents under cover of an Application to Admit Late Documents at the conclusion of the hearing.
As the parties could not agree on the applicant’s PIAWE at the arbitration hearing and as there was an outstanding issue in relation to incapacity, should the applicant be successful on the injury issue, I gave the parties leave to lodge written submissions on these issues. Neither party has lodged submissions. As I understand the position the respondent now accepts that the applicant’s PIAWE is as stated in the Application and the issue of outstanding bank statements is no longer pressed. The Direction, however, also requested submissions on the incapacity issue on which neither party had addressed at the arbitration. It is not clear that this has been conceded or agreed between the parties.

EVIDENCE

The documents before the Personal Injury Commission (Commission) are as follows:
(a)    the Application and the documents attached;
(b)    the Reply and the documents attached, and
(c)    an Application to Admit Late Documents lodged in accordance with my direction and the documents attached.
There was no objection to the evidence contained in either the Application or the Reply at the arbitration hearing. There was no application to adduce further written or oral evidence.

SUBMISSIONS

The submissions of the parties are recorded and I do not propose to recite each of the arguments of counsel in these short reasons.
Mr McMahon relied on the various inconsistencies in the applicant’s reporting of the time and circumstances of his injury and on the evidence of the respondent’s lay witnesses to submit that the applicant’s version should not be accepted. He also relied upon the opinion of Dr Masson which he submitted was consistent with the lay evidence.
The nature of the applicant’s injury was not consistent with the work he was performing on the morning of 10 November 2021. It was more consistent with a supervening injury over the weekend, possibly while the applicant was pushing or riding a motorbike. He argued that the pushing of a motor bike over the weekend must have involved the applicant in applying force with both his hands. This was inconsistent with the allegation of injury.
Mr Parker relied on a question posed by the respondent’s insurer to Dr Smith and recorded in his report of 17 January 2022. The question and answer are as follows:
“It has been confirmed that Alex was lifting a door that was approximately 15kg in weight when he felt pain in his right wrist. Are current symptoms and diagnosis consistent with the reported mechanism of onset of injury? Please give reasons for your opinion.
Yes, the symptoms and diagnosis are completely consistent with the reported mechanism of injury.”
Mr Parker submitted that the question posed to the doctor by the insurer constituted an admission by the respondent that the applicant was lifting a weight of 15kg at the time of his injury and that admission was fatal to the respondent’s case. He argued that the respondent’s case was based on “suspicion”.
Before attempting to resolve the issues in dispute it is necessary to set out the evidence of the applicant and of the respondent’s lay witnesses and the evidence of the qualified specialists on which the parties relied in their arguments. What follows is not intended to be a complete survey of this evidence. Rather, I set out the salient points so that the parties may understand the way in which the Commission has resolved their dispute.

Applicant

By his initial statement obtained by Ms Mills, an investigator retained by the respondent’s insurer, on 7 December 2021, the applicant gave the following account of the injury:
“On 10 November 2021 I started work around 7am at Emu Plains and the job was at Newcastle where the injury happened. I started at 7am and then drove to Wallsend and got there around 10am. I was offloading internal doors and then I got this sharp stabbing pain in my right wrist when I was carrying the doors. It was my right wrist. I am normally right-handed.
I lost my grip strength with that I struggled to hold on to the door so I dropped it at the time.”
The applicant says he thought that it was “just a strain”. He says that he experienced pain whenever he was lifting doors or packets of floorboards but he:
“didn’t think too much if [sic] it until the following Monday when it got worse. I then went to a doctor”.
The applicant recounts that the doors would have weighed about 10 to 15kg each and that he had only unloaded one door when he felt pain in his wrist. He was carrying the doors 20 to 30m from a tabletop truck. He states that there were other trades working at the site at the time but no one from the respondent.
The applicant also stated that he was not engaged in any activity outside work that would have contributed to or caused the injury. He states that after work he “just sit at home watching TV”.
The applicant says that he reported the injury to Harry Kim by text message on the following Monday. He records that he saw Dr Maw, a general practitioner, who referred him to
Dr Nicholas Smith and for hand therapy at Norwest Private Hospital.
By a supplementary statement dated 22 November 2022, the applicant elaborates on the nature of his injury on 10 November 2021 and states:
“I was carrying an internal wooden door weighed approximately 10 to 15kg. When I carry doors, I was holding the door horizontally with my left hand on top and I positioned my right hand gripping with four fingers to the side facing away and my thumb towards the top side with my right hand behind me and underneath the door, this supports the weight in both hands and an extension to my right wrist.”
The applicant says that in retrospect the doors may have weighed “closer to 5kg each however, I did carry multiple doors at the time that weighed 10-15kg together”.
He also says that he did a Google search of internal timber doors of the type and brand used by the respondent and the weight was approximately 15kg based on a standard door size 2040 x 840 x 35mm. By that statement the applicant also acknowledges that on Saturday, 13 November 2021 he attended a motorbike course. He says that as the course was expensive and there were long waiting periods to gain entry into the course he decided “to attend and push through my symptoms of pain and finish the course”.
The applicant recounts that he was required to push the bike around the course while seated on the bike, and to ride the bike around in a circle on a track. However, the course did not require any form of heavy lifting or physical labour apart from pushing with his legs.
The applicant says that he consulted Dr Smith on 22 December 2021 and was advised that he should undergo a right wrist arthroscopy and open TFCC repair. The surgery was initially scheduled for January 2022 but was postponed given the insurer’s denial of liability.
The applicant commenced part-time selected duty work on 31 January 2022. He continued this work up until 24 March 2022 when liability was declined and his employment terminated.
The applicant then addresses the evidence of Meegan Pathuis and Russel Benney. In respect of Ms Pathuis’ statement, he says this:
“As for the correct dates stated I had mistaken as I was delivering to multiple sites that week and was mistaken for it being Monday when in fact it was Wednesday.
In regard to the motorbike course section of the statement I’ll refer back to me believing that I had only strained or pulled a muscle in my arm and thought nothing of it until I consulted with my general practitioner on Monday when I was told that it was a much greater injury.”
In respect of Mr Benney’s statement, the applicant says:
“He mentioned that I never said anything about being injured in the days leading up to the weekend but again it was because I thought it was only a muscle issue and I thought my injury would resolve.
He also states that I wouldn’t have been able to perform the motorbike course being injured which is incorrect as the mechanism of injury is different in my understanding to what is needed to be performed in the motorbike course. Unless he was present at the motorbike course and saw me injure myself and I made complaints about it he should not assume that it is related.”
In respect of the statement of Alan Ili, the applicant agrees that he may have been mistaken in saying the doors weighed 10 to 15kg. However, he says that the mechanism of injury had very little to do with the weights and more to do with the mechanism of the injury.

Meegan Pathuis

Ms Pathuis is the respondent’s head of systems and compliance. By her statement dated
9 December 2021, she states that she didn’t hear about the injury until Monday 15 November 2021 when the applicant called in sick. He was asked to come into the office. She continues:
“He then came into the office and wouldn’t remove his arm from his hoodie and so I had to fill out the form on his behalf and he signed it with his left hand. Then he gave me wrong dates, he said he injured himself on the Monday, so I completed the form for him and did my due diligence and looked up where he was on Monday and he wasn’t even at the site he alleges he was at on the Monday.”
When subsequently challenged as to the date of the injury the applicant said if it wasn’t Monday, it must have been Tuesday. She recounts that the applicant said that:
“He didn’t know when he was at that site and that he would find the email and send it to me but it was early in the week. Then he found the email and forwarded it to me and it was Wednesday. So he couldn’t even tell me what day it was that he injured himself so that was a red flag for me.”
Subsequently, Ms Pathuis ascertained from a delivery driver and warehouse manager, Russell Benney that he had attended a course to obtain his motorbike licence on the weekend following the injury.

Russell Benney

Mr Benney is the respondent’s storeman. He states that:
“It was a Friday arvo and we were loading a truck up ready for Monday run and he came out for a smoke and he said that he had his bike test tomorrow. He told me all about how he had it before and it expired and he as (sic) off to do it again. He said the test was on the Saturday morning.
He didn’t say anything about having injured his wrist. Never heard anything about that until the Monday.
I loaded the truck on the Friday with the fork and Alex was helping with the straps to tie everything down. I didn’t notice him having any trouble doing that.”
The witness says that he has done the bike test himself and it was unlikely that someone would be able to push a motor bike around with an injured right hand.

Alan Ili

Mr Ili is employed by the respondent as a truck driver. He states that the doors that were delivered on Wednesday 10 November 2021 were internal doors. He continues:
“Alex told me that on Wednesday 10^th or Thursday 11^th November 2021 when I was telling him how to strap the load that he had his motor bike licence test on the Saturday and that was basically it. He never said that his arm was sore.
The internal doors are very light, they would be 5kg in weight if that. The external doors might be 30kg but I know that the house that he delivered to on Friday before he claimed he injured himself he only delivered internal doors. There were no external doors that he had to deliver as they were all sliding doors.”

Dr Masson

Dr Masson saw the applicant at the request of the respondent on 16 February 2022 and provided a report bearing date 22 February 2022. The doctor recorded the following mechanism of injury when recording a history of injury:
“He demonstrated to me the position that his hands were in as he was doing this. The door was on the right-hand side with his right hand behind him and underneath the door supporting the weight in both hands with his right wrist in extension.
Mr Mackintosh said that nothing happened while he was carrying the door. He did not slip or trip and the door did not move. He just developed a shooting nerve pain up his little finger which radiated to his wrist. He also lost grip strength when it happened. No-one on the work site witnessed the injury.”
After examining the applicant, Dr Masson expressed the following opinion:
“The current diagnosis is one of a peripheral tear of the TFC in the right wrist. The presentation would be unusual for this injury. TFC tears normally occur following a fall or a twisting injury. Mr Mackintosh was carrying a wooden door with his wrist in extension with no sudden change in movement. Therefore, his description of the injury would not fit in with a TFC tear. He has symptoms consistent with a TFC tear with pain on the ulnar side of the wrist.
Given Mr Mackintosh’s presentation today and his claimed decreased wrist range of motion and deceased grip strength, I do not believe it would have been possible for him to continue to work for 2 days after an alleged TFC injury with no issues.”
In answer to a question posed by the respondent Dr Masson said he was unable to say whether there was any relationship between the motorbike course undertaken by the applicant and the injury to his wrist. He reiterated that it was highly unlikely that carrying a light wooden door with no specific injury at the time would cause a TFCC tear. He also expressed the opinion that surgery would increase the probability of a durable return to work but without that surgery he would be unable to return to his pre-injury duties.

Dr Graham Gumley

Dr Gumley, a hand surgeon, provided a report to the applicant’s solicitors dated
30 June 2022. He recorded a slightly different version of the circumstances surrounding the injury to Dr Masson. It is as follows:
“At one point, he was unloading an internal door from the flat bed of a truck. To do this, the door is initially lying flat on the truck bed. He reaches with both hands, grasping the door on either side. He then pulls it towards himself levers it into a more vertical upright position and then rotates the door such that his initially pronated right hand and forearm supinates and his wrist extends whereas his left hand and wrist initially in a mid-pronated position rolls over to the top of the door in pronation and some wrist flexion. He had not delivered any other doors that particular day but had delivered doors within the previous week with no pain or discomfort.”
The doctor recounts that on this occasion the applicant felt pain in the right ulnar aspect of his wrist “as he carried the door for some 20 metres or so”.
Dr Gumley also recorded that while the applicant was able to continue work with some discomfort he noticed a gradual increase of pain during the rest of the work week. He sought medical attention on the following Monday. He expressed the following opinion:
“Based on the history provided and the absence of any reported wrist discomfort or impairment of function prior to 10 November 2021 and noting the rotary motion of his wrist with weight and movement into extension, on the balance of probabilities, it is my opinion that Mr Mackintosh’s triangular fibrocartilage disruption is causally related to the incident as noted on 10 November 2021 and described above.”
Dr Gumley noted that his history differed from that of Dr Masson. The description of injury he recorded did not involve “a static move” but rather involved moving the wrist from a flexed pronated position to a supinated extended position.

DISCUSSION AND FINDINGS

Mr Parker submitted that the issue of injury could be determined in the basis of an admission contained in a question posed to Dr Smith by the EML case manager, which confirmed that the applicant was “lifting a door that was approximately 15kg in weight” when he felt pain in his right wrist.[1] I do not accept that submission.
[1] Question four in the report dated 17 January 2022 at p100 of the Application.
It is probable that the question was posed after the claims officer had access to the factual report of advanced investigations dated 21 December 2021 and had read the report. In Courts in New South Wales, admissions are governed by part 3.4 of the Evidence Act 1995 (Evidence Act). The parties did not specifically refer to the provisions of the Evidence Act. Obviously, it does not apply to proceedings in the Commission. Nonetheless, an analysis of its provisions may be a useful starting point for an inquiry as to whether the question posted by the claims officer was an admission. I intend to assume that the question can be construed as an admission. However, I do not believe that the admission is of sufficient weight to influence the outcome of the issue of injury. In Lustre Hosiery Ltd v York[2] the High Court of Australia said this:
“No doubt an admission made by a party as to the correctness of a fact is admissible in evidence notwithstanding that the party has no direct knowledge of the fact and must rely for his belief upon the statements of others, or upon inferences from circumstances which he knows, or which have been reported to him. But such an admission may indicate a state of mind varying from a firm belief based upon a thorough investigation of the existence or occurrence of the fact down to a wavering preference for one of two or more possible hypotheses none of which have been tested or determined. It is apparent that the admissibility of the evidence must be distinguished from its sufficiency to establish or support an affirmative conclusion in favour of the party who tenders it, when the burden of proof lies upon that party. It does not follow that, because such evidence is admissible, it is enough to prove the issue.”
[2] (1935) CLR 134 at 138-139.

This reasoning has been repeatedly applied. An admission is only one piece of evidence, and its weight depends upon the circumstances in which it is made and, of course, the other evidence in the case. In this case, the admission relied on is inconsistent with both Mr Ili’s evidence and aspects of the applicant’s own evidence. Even if one assumed that the weight of the door which the applicant was carrying at the time of his alleged injury was 15kg, it does not inexorably follow that he suffered an injury at that time. Before reaching a conclusion on injury all the relevant evidence must be considered
As Mr McMahon submitted there are certainly aspects of the evidence which appear inconsistent with the occurrence of an injury in the circumstances alleged by the applicant. First, when interviewed by Ms Pathuis on Monday 15 November 2021, the applicant initially asserted that he had been injured on the previous Monday, then on the previous Tuesday, before identifying the date of injury as Wednesday 10 November 2021. Secondly, the applicant performed some physical work with Mr Benney on Friday 7 November 2021 “helping tie down the straps” of a load to be delivered on the following Monday. He made no complaint of inability to use his hand at that time. Over the weekend, he was able to push a motorbike, although the evidence is silent on the distance. By contrast, when he presented to
Ms Pathuis on the following Monday morning he was unable to remove his hand from his hoodie to sign his name. That suggests the possibility of a significant change in his physical circumstances over the weekend.
The applicant’s case is made more difficult by the inclusion in his supplementary statement of opinion evidence, speculation, and argument. Solicitors should not utilise statements to make submissions as it detracts from the reliability of their client’s evidence.
There is also the conflict of opinion on causation between Dr Masson, who thought that it was highly improbable that the applicant could injure his Triangular Fibrocartilage complex while it was in a static position carrying the door and Dr Gumley who thought that the overall process of lifting the doors from the truck and carrying them in the manner described by the applicant was consistent with such an injury. But that is less difficult to resolve.
It is likely that Dr Masson assessed the likelihood of injury by reference to what the applicant was doing at the precise moment he reported pain in his right hand. Dr Gumley assessed the likelihood injury by reference to the whole of the activity which the applicant told him he was engaged in at the time commencing when he lifted a door from the tray of the delivery truck. In my opinion, Dr Gumley’s approach is preferable. His opinion that the activity of lifting and carrying the door/s may cause a TFCC injury is a consistent with the opinion of Dr Smith, the treating orthopaedic surgeon.
On the first occasion, on which he saw the applicant, Dr Smith recorded the following:
“He injured his right wrist when he was carrying a heavy door on 10 November, the wrist was in a dorsiflexed position, he felt a pop, had ulnar sided wrist pain, which radiated towards his elbow. The pain is worse and it has not improved at all. He has tried hand therapy and has been in a wrist splint.”
On review of his reports there is doubt that Dr Smith thought that activity was capable of causing the TFCC tear.
I have found it difficult to determine the precise weight of the door/s which the applicant was carrying on the morning of 10 April 2021. The evidence of Mr Ili is of little assistance as he refers to the houses that doors were “delivered to on the Friday”. That may be a mistake. But it does result in his evidence being ambiguous. The applicant has given several different accounts of the weight of the doors which are recorded in the evidence above. In my experience, witnesses often give wildly conflicting evidence of the weight of an item and it is rare that an individual is able to accurately assess weight without specifications or scales.
Nonetheless, on the balance of probabilities, I am inclined to the view by a very small margin that the applicant did suffer an injury at work on that morning as he alleges. While the applicant may well have seen Dr Maw after his attendance on Ms Pathuis, he gave her a reasonably consistent account of the circumstances of the injury and the fact that he had worked on with increasing pain. On the morning of 15 November 2021, Dr Maw recorded the following history:
^“Sudden, sharp pain to right wrist whilst carrying a heavy door at work
Was lifting the door up onto truck at the time. Weight of door around 30kg
Had intermittent pain for 1-2 days, then constant pain from Friday onwards until now
Not taking any pain relief for it
Unable to attend work today Went to work on Thursday and Friday and tried to push through Right hand dominant
Pain down the wrist (predominantly radial and medial aspects, paraesthesia over fingers, except thumb).”
Dr Maw made the following findings on examination:
“Non-tender to palpate
Intact vascularly
Sensation NAD
Wrist dorsiflexion 30 deg
Wrist palmar flexion 30 deg
Lateral flexion 40 deg bilaterally
Pain and limitation on lateral flexion and extension of fingers
Grip strength 2/5
Pincer strength 3/5.”
The doctor’s clinical note is not entirely free of the inconsistencies that appear in the evidence. However, there is nothing in the note which would suggest an injury over the weekend. There is, for example, no laceration or bruising. Workers do not always report an injury on the day of its occurrence. They may wait several days in the hope that symptoms will improve.
While I accept the worker gave a vacillating account of aspects of the case, the evidence does not lead to the conclusion that he purposely set out to deceive his employer and Dr Maw on the morning of 15 November 2021. In those circumstances, the better view is that the applicant suffered injury his right hand and wrist in the course of his employment on 10 November 2021.
It is unclear whether the parties have agreed on the issue of capacity for work during the period claimed. It does appear an issue on which the parties may be able to reach agreement. I am reluctant to determine it in the absence of submissions. I propose to give liberty to the parties to apply.
It is quite clear, however, that the surgery proposed by Dr Smith is reasonably necessary as a result of the injury. It is supported by each of the three specialists who have provided reports in this case.
Accordingly, I propose to order that the respondent pay the costs of and incidental to the arthroscopy and TFCC repair proposed by Dr Smith.

[2023] NSWPIC 150

12 April 2023