Masina v Beak & Johnston Pty Limited
[2021] NSWPIC 158
•1 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Masina v Beak & Johnston Pty Limited [2021] NSWPIC 158 |
| APPLICANT: | Tolotea Masina |
| RESPONDENT: | Beak & Johnston Pty Limited |
| MEMBER: | Philip Young |
| DATE OF DECISION: | 1 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- section 60 claim for costs incurred in left ankle reconstruction; applicant history of left ankle injury but issue re credit because of alleged fall on holidays soon prior to last day worked; GP consultation record against applicant; consideration of all histories given and applicant’s unwillingness to provide confirmation regarding taking of holidays; Held- award for the respondent. |
| DETERMINATIONS MADE: | 1. Award in favour of the Respondent. |
STATEMENT OF REASONS
BACKGROUND
Tolotea Masina (the applicant) is a 49 year old lady who was employed by Beak & Johnston Pty Ltd (the respondent) as a packer. She commenced employment in 2011 and alleges injuries to her left ankle.
The first injury occurred on 11 July 2015 when the applicant slipped on a mat. A further injury occurred on 16 November 2016 which the applicant claims included not only injury to her knees but also a twisting of her left ankle. The third episode of injury is a reliance upon the nature and conditions of the applicant’s employment between 11 July 2015 and 30 October 2017. This latter injury is pleaded as an aggravation, acceleration, exacerbation or deterioration of a disease, namely underlying left ankle osteoarthritis.
The applicant came to left ankle surgery performed on 25 May 2020 by Professor (Dr) R Kuo at Norwest Private Hospital. That surgery involved arthroscopic lateral ligament reconstruction which the applicant paid for herself because the insurer had denied liability.
This matter resolves to a claim by the applicant for reimbursement of the costs which she paid for that (25 May 2020) surgery.
ISSUE
The issue is whether the surgery undertaken by Dr Kuo on 25 May 2020 was reasonably necessary surgery which results from injury to the applicant within the meaning of the Workers Compensation Act 1987 (as amended) (1987 Act).
PROCEDURE AND DOCUMENTS BEFORE THE COMMISSION
The matter came for conciliation and arbitration hearing on 27 May 2021. Mr V Jurisic of counsel instructed by Mr S Lemoto appeared for and with the applicant. Ms L Goodman of counsel instructed by Ms C Blake, solicitor, appeared for the respondent. Ms K Ruhl represented the insurer.
The documents before the Commission were as follows:
(a) Application to Resolve a Dispute lodged 16 March 2021 and attachments (Application);
(b) Reply lodged 6 April 2021 and attachments (Reply);
(c) Application to Admit Late Documents lodged 14 May 2021 and attachments (AALD 1);
(d) Application to Admit Late Documents lodged by the applicant on 13 April 2021 and attachments (AALD 2).
The parties participated in conciliation in an effort to seek common ground for resolution of the matter. I am satisfied that the parties to the dispute understand the nature of the issues. I used my best endeavors to attempt to effect resolution of the matter, to no avail. The jurisdiction of this Commission to proceed to arbitration hearing was therefore enlivened.
SUBMISSIONS
Both parties made oral submissions during the arbitration hearing. Those submissions were sound-recorded and I therefore propose to not repeat them in detail as that sound-recording is available to the parties on request to the Commission.
DISCUSSION AND REASONS
There was initially some issue concerning the date on which the applicant ceased work with the respondent, but ultimately the parties expressed their submissions in terms consistent with 30 October 2017 being the applicant’s last day worked.
In relation to the injury on 11 July 2015 when the applicant slipped on a mat, the applicant in her second statement dated 2 March 2018 confirms that no time was lost. No doubt that led independent medical examiner Dr J Bodel to conclude that this incident provided the applicant with no disability. There being no other evidence concerning any lasting symptoms or disability after11 July 2015 and in fact the applicant’s return to normal duties for the next 16 months until 16 November 2016, this injury was of no ongoing moment.
The next pleaded injury is 16 November 2016. Although the applicant in her statement of 29 January 2021 says she ceased work on that date and performed no work since then, this information is factually incorrect. The applicant did “cease work” but she returned to normal duties. The timing is unclear but the reason for cessation of work is a knee injury, as to which see below.
The applicant evidently told Dr Bodel[1] that she stopped work in February 2017, but again this cannot be factually correct. The applicant suffered a number of injuries to her left knee, including 24 February 2017[2] and 16 November 2016 and those knee injuries have been the subject of prior determinations before Arbitrators Harris and Rimmer in the Workers Compensation Commission.
[1] Dr J Bodel report of 16 November 2020.
[2] See Dr Kuo report of 21 November 2017.
One of the principal reasons advanced by the insurer for not meeting the costs of the left ankle surgery relates to a suggestion that whilst on holidays in October 2017, bearing in mind that the applicant ceased work on 30 October 2017, the applicant sustained a fall whilst on holidays which was responsible for her left ankle condition after that time.
The “Holiday fall” issue
The applicant’s further statement attached to AALD 1 contains denials that she suffered any fall whilst on holidays in October 2017 and a denial that she gave such a history to Dr Patu, her general practitioner, on 19 October 2017. Dr Patu’s consultation note of 19 October 2017 is “had a fall one week ago while on holidays”. This is in the context of a referral by Dr Patu for radiology which is the subject of a report fourdays later on 23 October 2017. That study was of the applicant’s left foot and ankle and contains a history “pain and tenderness following a fall one week ago”.
This radiology report of 23 October 2017 by Dr J Masesa references osteoarthritic changes. The history I am prepared to infer comes from the referral to Dr Masesa by Dr Patu. However, that referral letter is not in evidence.
The applicant underwent an MRI scan by Dr R Ward on 7 November 2017. This contained no history of any recent fall. Again, the Commission does not have before it a copy of any referral letter for this MRI scan.
The applicant’s statements of 28 November 2017 and 2 March 2018 contained no history of any injury to her left ankle on holidays in October 2017.
AALD 2 contains a note from Dr Patu to the effect that on 1 March 2021 the applicant spoke to him to advise that his prior entry of 19 October 2017 (a fall one week again while on holidays) was incorrect. AALD 1 contains the applicant’s further statement, lodged less than two weeks before the conciliation and arbitration hearing and confirming that she said no such thing to Dr Patu. The evidence from the applicant is silent as to whether she was, in fact, on holidays in October 2017. Ms Goodman fairly and squarely raised issues as to credit and that being so, at the conclusion of his submissions in reply I requested Mr Jurisic to address the credit issue in the context raised by Ms Goodman.
Mr Jurisic’s submissions were that whether the applicant was on holidays or not was not relevant because the applicant has clearly denied that she had a fall and clearly denied that she told Dr Patu any such thing (referring of course to the applicant’s final statement in AALD 1). But it seemed to me that where the existence or non-existence of a relevant factual matter (holidays or not) had relevance to a factual record (Dr Patu’s notes) and the applicant was asserting that no such comment had been made, the factual matter (holidays) was highly relevant. Relevant, I would add, in terms of credibility.
The Production Manager of the respondent, Mr Chris Verma, has provided a statement dated 27 November 2017. His duties included supervision and overall management of 110 staff.[3] Relevantly, he offers the following:
(a) He would see the applicant at work regularly every day.[4]
(b) There are rest breaks provided to employees with two 30 minute breaks for meals and two 5 stretching breaks at 7am and 11am.[5]
(c) The applicant had been provided with a warning concerning her attendance.[6]
(d) In October 2017 the applicant had been on annual leave for four-five weeks.[7] The applicant was due to return to work on 16 October 2017 but did not attend and he called her to question why she did not attend. The applicant replied that she was sick overseas “or something” and that her flight was delayed.
(e) The applicant came to work on 20 October 2017 and Mr Verma called her to his office and showed her the applicant’s leave record. The applicant said nothing about a sore ankle or any other pain.[8]
(f) At no time before the applicant ceased work did she advise Mr Verma of any injury or pain.
[3] Mr Verma’s statement dated 27 November 2017 at Reply page 69.
[4] Reply at page 69 .
[5] Ibid at page 70.
[6] Ibid.
[7] Ibid at page 71.
[8] Ibid.
It appears clear from Mr Verma’s statement that the applicant was in fact on leave until her return to work on 20 October 2017.
A statement was provided by Kaisala Alofa dated 27 November 2017. That witness confirms that whilst working with the applicant on the same production line the applicant at no time complained of any pain or problem with her ankle except for the time when she was off for one or two days after falling on the step. It would seem that this conversation (fall on step) was not specific to the applicant’s ankle.
Based upon the above evidence, I am satisfied the applicant was in fact on holidays and absent from work up until 20 October 2017. I am satisfied that she saw Dr Patu on 19 October 2017 and that Dr Patu’s consultation record is so specific “had a fall one week ago while on holidays” that the applicant must have given this history to Dr Patu. Dr Patu had an opportunity (AALD 2) to correct the history but rather than correct the history, he simply recorded the applicant’s complaint. It is of course the position that this Commission does not know what effect, if any, the applicant’s fall in October 2017 had on her left ankle or any other body parts, if any. But the onus is on the applicant to satisfy this Commission, in the presence of evidence relating to a fall, whether or not such a fall occurred.
This position adopted by the Commission is not done from the point of any shifting of the onus of proof. Rather, it goes to the credibility of the applicant of the account she now offers concerning the holiday. The applicant steadfastly refused to concede whether she was on holiday and one would have thought that the matter could have been easily clarified by the applicant saying firstly whether she was on holidays at the relevant time, and/or secondly, by her producing some corroboration of this fact. In saying this, I fully appreciate that corroboration is not required in civil cases such as this, but in the face of the consultation note of 19 October 2017 the applicant was in a position to obtain corroboration concerning her not having had a fall during her holidays recent to that time in October 2017, just before she stopped work.
The medical evidence
Dr Bodel has provided a report dated 16 November 2020. He did not regard the injuries of 11 July 2015 nor 16 November 2016 to be of any lasting significance concerning the applicant’s left ankle pathology. He concludes that the applicant’s left ankle pathology was because of aggravation (etc) due the nature and conditions of her work up until 30 October 2017. This is a section 4(b)(ii) (1987 Act) allegation. The difficulty with his opinion is that he obtained no history of the specific duties, tasks and functions performed by the applicant in the course of her employment up until 30 October 2017. There is a reference to “arduous” work but no reference to what this means in any of the evidence.
The Commission has no detailed information concerning the applicant’s various complaints regarding her left ankle during the period identified by Dr Bodel. Dr Kuo in his report to Dr Patu of 21 November 2017 refers to an MRI scan of 11 July 2017 which is not in evidence. The incident report completed by the respondent following the 16 November 2016 incident refers only to the left knee, with no mention of the left ankle. Extensive clinical notes from Dr Patu are not in evidence so this Commission cannot determine whether during the period claimed the left ankle was the subject of specific ongoing treatment at times and with content. Dr Bodel when he saw the applicant in November 2020 did not have Dr Patu’s clinical notes. He also does not express any specific opinion on the reasonable necessity of the applicant’s surgery relative to her work activities. Dr Bodel’s opinion on “nature and conditions” (for want of a better expression) is therefore a broad-brushed conclusion. Most of the available consultation notes from Dr Patu concern the applicant’s treatment for diabetes, with very little if any reference to the left ankle.
In the result, the Commission does not accept the incidents of 11 July 2015 or 16 November 2016 had any involvement whatsoever in the applicant’s pathology and symptoms beyond 30 October 2017. Additionally, the applicant has not identified complaints of symptoms between 11 July 2015 to 30 October 2017 sufficient to establish any aggravation (etc) by reason of the nature and conditions of her employment. For example, there are no recorded complaints to the general practitioner of any moment. That may be because the applicant is a stoic individual, but no such submission has been made.
Complicating the whole medical picture is a reference to a fall on holidays in circumstances where the applicant denies having told Dr Patu this history but does not comment on whether at that time she was in fact on holidays, when the respondent’s Production Manager gives evidence that she was on holidays. Why the applicant will not concede that she was on holidays, returning to work 20 October 2017 and finishing work 30 October 2017, is unexplained.
It is for the applicant to establish an entitlement on the balance of probabilities. There are in my view so many uncertainties and inconsistencies to which I have referred that the applicant in my view has not satisfied the required onus of proof.
Because the causal nexus between work and the left ankle injury is not established, it follows that the left ankle surgery which was undertaken by Dr Kuo is not reasonably necessary medical treatment resulting from injury within the meaning of the 1987 Act.
In the circumstances there will be an award for the respondent.
0
0
0