Niemi v Premier Labour Services Pty Ltd (under External Administration)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Niemi v Premier Labour Services Pty Ltd (under External Administration) [2024] NSWPIC 245
APPLICANT:	Timo Niemi
RESPONDENT:	Premier Labour Services Pty Ltd (in Liquidation) t/as BKH Group
MEMBER:	Parnel McAdam
DATE OF DECISION:	10 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; section 261; worker failed to make a claim within six months of date of injury; whether failure to make a claim was due to “other reasonable cause”; Albury Real Estate Pty Ltd v Rouse and Anor applied; Held – worker satisfied section 261(4); no bar to recovery; incapacity; gaps in evidence as to period of incapacity; worker was not incapacitated immediately following cessation of employment; totally incapacitated from 21 July 2021 to date; section 60 expenses; whether proposed surgery as a result of injury; medical opinion consistent that surgery was reasonably necessary; need for surgery arose as a result of injury.
DETERMINATIONS MADE:	The Commission determines: 1. The parties agree that the applicant’s pre-injury average weekly earnings (PIAWE) is $1,371.12. 2. The applicant failed to make a claim within six months of injury, but that failure was occasioned by other reasonable cause. 3. The respondent is to pay weekly compensation to the applicant in the following terms based on the PIAWE figure above, to be indexed from time to time in accordance with the legislation: a. pursuant to s 36 of the Workers Compensation Act 1987 from 21 July 2021 to 20 October 2021; b. pursuant to s 37 of the Workers Compensation Act 1987 from 21 October 2021 to 17 January 2024; c. pursuant to s 38 of the Workers Compensation Act 1987 from 18 January 2024 to date and continuing. 4. The respondent is to pay the applicant’s past medical expenses pursuant to s 60 of the Workers Compensation Act 1987 as claimed in the Application to Resolve a Dispute. 5. The respondent is to pay for the applicant’s proposed surgery, being bilateral total shoulder replacements, pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The workers compensation claims process is a complex one. Injured workers are required to notify their injury within a set period, and then, if so entitled, make a claim for compensation within six months of injury occurring. Making a claim for compensation involves forms, the provision of medical evidence, and at least a basic understanding of what is meant by legislative provisions with a long history of interpretation and disputation.
In the present case, Mr Niemi (the applicant) failed to comply with a legislated timeframe for making a claim for compensation. That does not finally determine the issues in dispute in this matter, as there exists a provision protecting a right to claim (or, more accurately, preventing the operation of a bar to compensation) in certain circumstances.
It is accepted that Mr Niemi suffered an injury arising out of or in the course of his employment. The index question in this matter is whether he is entitled to compensation or is barred from doing so due to his failure to make a claim within six months. If the answer to that question is “no”, then the dispute falls away and Mr Niemi has no entitlement to any compensation claimed. If the answer is “yes”, then there are questions that following on from that, relating to whether Mr Niemi had incapacity for certain periods and in relation to some medical treatment claimed.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether Mr Niemi has a reasonable excuse for not making a claim within six months after injury, enlivening the exception to s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
(b) if yes, whether and for what periods was Mr Niemi incapacitated for work pursuant to s 33 of the Workers Compensation Act 1987 (the 1987 Act), and
(c) whether surgery claimed (bilateral shoulder replacements) is reasonably necessary as a result of injury in accordance with s 60 of the 1987 Act.
There is no dispute under the injury provisions contained in ss 4 and 9A of the 1987 Act.[1]
[1] Page 25 of the Application to Resolve a Dispute (Application).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    the Application and attached documents;
(b)    the Reply and attached documents;
(c)    an Application to Admit Late Documents filed by Premier Labour Services Pty Ltd (in Liquidation) t/as BKH Group (the respondent) dated 17 April 2024, and attached documents, and
(d)    an Application to Admit Late Documents filed by the applicant dated 23 April 2024 and attached documents.
No objection was made to any of the material filed by either party.
During submissions, the parties took me to various aspects of the evidence filed in the Commission. Given the nature of the dispute, some of that evidence is relevant to the index issue (concerning s 261 of the 1998 Act), and some of it concerns the issue subject of the claim by the applicant, being weekly payments of compensation pursuant to s 33 of the 1987 Act, and medical expenses pursuant to s 60.
I will discuss the relevant material below in the context of all of the issues in dispute.

The applicant’s statements

Mr Niemi provides three statements in this matter.
The first is dated 22 February 2023.[2] This statement was provided to an investigator appointed by the respondent’s insurer. Mr Niemi explains that he was first aware of pain in his shoulders in April 2018, but continued with his work until 1 April 2021, when he was terminated. Mr Niemi was referred by his general practitioner to Dr Herald, who recommended surgery and suggested that he see a lawyer to make a workers compensation claim.
[2] Page 7 of the Application.
Mr Niemi first spoke to his current solicitors in early/mid 2022, but was confused about what information he needed, and his wife became quite ill and was hospitalised. This was later clarified, through the production of medical records, to have occurred on 3 August 2021.
Mr Niemi obtained a Certificate of Capacity from Dr Wan on 29 March 2022, which were provided to his lawyers in mid-late 2022.
In his second statement, dated 18 May 2023, Mr Niemi again sets out the nature of his work, the details of his accident, and his termination by the respondent. Mr Niemi states “They had advised that they no longer had enough work”, but then goes on to hypothesise that this termination was due to his performance, which had been diminished because of pain.
Mr Niemi explains that his wife suffered from mental illness for many years, making him the sole income earner. After his employment was terminated, she suffered a complete mental breakdown which resulted in her hospitalisation.
Mr Niemi provides a supplementary statement dated 31 January 2024. That statement addresses and provides an explanation for his failure to make a claim within the period required. Mr Niemi explains that he had a telephone conference with Mr Zacharia Gabriel of Turner Freeman on 9 August 2021, who advised him to pursue a workers compensation claim. A claim form was provided and he was asked to obtain a certificate of capacity. Mr Niemi states that the claim form required information about the date of injury and other things relating to employment that he was not sure about. Mr Niemi was very anxious. Mr Niemi also states at that time his wife was having a mental breakdown, and he was therefore preoccupied with her and concerned for her condition.
Mr Niemi states that his daughter was also having psychological issues at that time, and was not attending school. Mr Niemi eventually managed to complete the claim form on 5 October 2022, and then made a claim on or around 14 October 2022 through his legal representatives.

Statements from the applicant’s family

Two statements are attached to the Application to Admit Late Documents filed by the applicant – one from his wife, Natalie Niemi, and one from his daughter, Ebannie Niemi. These statements concern the issues that arise under s 261 of the 1998 Act and will be discussed below.

Report of Dr Bodel

The applicant relies on a report of Dr Bodel dated 20 June 2023 (a typographical error dates the report as 20 June 2013).[3] Dr Bodel takes a consistent history of injury, noting the initial awareness of symptoms in 2017 or 2018. He provides a diagnosis of post-traumatic osteoarthritis which has been aggravated by employment.
[3] Page 33 of the Application.
In terms of the medico-legal issues in dispute, Dr Bodel supports the claim for surgery as recommended by Mr Niemi’s treating doctors: “Both Dr Herald and Dr Dave have recommended total shoulder replacements. The degree of pathology makes it impossible for him to contemplate any other surgical intervention apart from the shoulder replacement.”
He also opines that Mr Niemi is permanently incapacitated for work for which he is qualified, including his pre-injury work. He suggests that he cannot work in any activity that requires lifting and places a nominal lifting limit of about 10kg to waist only.

Report of Dr Bentivoglio

Dr Bentivoglio provides a report on behalf of the respondent dated 14 March 2024.[4] He indicates that the only treatment option appropriate for Mr Niemi is bilateral shoulder replacement, but attributes the need for that surgery to degenerative osteoarthritis involving both shoulders. Dr Bentivoglio is also of the opinion that Mr Niemi is incapable of further work:
“With the gross restriction of movement present in his shoulders as well as the ongoing pain, I would not consider this gentleman is capable of returning to any form of employment for which he is suited by means of training, education or experience”.
[4] Page 10 of the respondent’s Application to Admit Late Documents.
He attributes Mr Niemi’s inability to return to the workforce as reasonable, but based on degenerative change and not as a result of any work injury.

Other medical evidence

The other medical evidence available includes the request for surgery from Dr Dave, the recommendation for surgery from Dr Herald, and the clinical notes from the various treating doctors. I have read those notes in detail and will refer to them where relevant in the reasons below.

FINDINGS AND REASONS

Section 261 of the 1998 Act

This is the index issue in dispute in this matter. If the applicant is unsuccessful in making out the exception to the bar to recovery in s 261 of the 1998 Act, the remainder of the claim will fall away.
Section 261 provides a bar to recovery if an applicant does not make a claim for compensation within six months after the injury or accident happened. There is a limited exception to the provision in favour of a worker, on the basis of “ignorance, mistake, absence from the State or other reasonable cause”. The section in full appears as follows:
“(1)    Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either—
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6)     If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7)     If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8)     In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9)     When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”
The critical sub-sections here are (1), which provides the bar to recovery, and (4)(a), which provides that section “is not a bar” to recovery.
The respondent submitted that the timeline of events is critical to the determination of the issue. I agree that a timeline is relevant, but it is not determinative of the issue in dispute, or the applicant’s contention that the exception in sub-s 4(a) applies. It is, however, appropriate that the relevant details in the timeline be provided. There is some inconsistency concerning the dates in relation to some of the relevant aspects of the timeline (mainly comparing parts of the statements of Mr Niemi with some of the contemporaneous evidence available). Doing the best I can to make sense of the material provided, the relevant details of the timeline are as follows:
(a)    9 April 2018 – Mr Niemi first attends on his general practitioner, reporting symptoms in his shoulders, but continues to work;[5]
[5] Page 1 of the Application.
(b)    24 April 2018 – Mr Niemi undertakes an X-ray and ultrasound, identifying tendon tears;
(c)    12 February 2020 – Ebannie Niemi, the applicant’s daughter, is diagnosed with major depression and anxiety;[6]
[6] Page 2 of the Application to Admit Late Documents dated 23 April 2024.
(d)    1 April 2021 – Mr Niemi is terminated by the respondent[7] (this is the claimed date of injury);
[7] Page 1 of the Application.
(e)    24 June 2021 – Mr Niemi attends his general practitioner, where his shoulders are discussed. The clinical notes record “affected his work as a carpenter”;[8]
(f)    July 2021 – Natalie Niemi, the applicant’s wife, is admitted to Campbelltown Hospital for approximately one week;[9]
(g)    3 August 2021 – Mrs Niemi is admitted to the mental health unit at Campbelltown Hospital;[10]
(h)    9 August 2021 – Mr Niemi has a telephone conversation with his solicitor;[11]
(i)    11 August 2021 – Mr Niemi was sent a letter by his solicitor, attaching a claim form;
(j)    1 October 2021 – the six-month period for Mr Niemi to make his claim in accordance with s 261 of the 1998 Act expires;
(k)    17 February 2022 – Mr Niemi returns to his general practitioner, who records “ongoing bilateral shoulder pain since last year” and “now wants to do WC report – explained the process – pt will talk to his lawyer first”;[12]
(l)    28 March 2022 – Mr Niemi obtains a certificate of capacity, certifying no current work capacity from 28 March 2022 to 24 April 2022. The date of injury was “a few years ago”;[13]
(m)     June 2022 – Mr Niemi asks for and receives assistance from his solicitor regarding completing the claim form[14], and
(n)    14 October 2022 – the claim is sent via post to the respondent.[15]
[8] Page 110 of the Application.
[9] Page 1 of the Application to Admit Late Documents dated 23 April 2024. It is noted that this earlier admission is not supported by contemporaneous medical records.
[10] Page 3 of the Application to Admit Late Documents dated 23 April 2024.
[11] Page 1 of the Application.
[12] Page 112 of the Application.
[13] Page 137 of the Application.
[14] Page 2 of the Application.
[15] Pages 6 and 7 of the Application, noting that this may have been deemed to have been made later, but no particular issue was taken with the date of 14 October 2022 being the date of claim.
I have highlighted three specific dates in the above chronology, being the date of injury on which the claim is based; the date on which the period set out in s 261 to make a claim expired, and the date on which the claim was made. Here, the applicant is relying on “other reasonable cause” in the section to make out his claim (for lack of a better word) in s 261(4) of the 1998 Act. In setting out this timeline, it is recognised that to simply focus on the timeline of events would be insufficient. It is a mixture of facts, circumstances and motive that is the relevant consideration.
The parties provided extensive submissions on this issue. The applicant referred to the case of Albury Real Estate Pty Ltd v Rouse and anor[16] (Rouse), noting that “other reasonable cause” is not to be read down by the other words in the section, but stands on its own and is of wide import. The reasonable cause is to be considered from the point of view of the applicant and what is reasonable for him. The applicant refers to the material before me that explains the issue, that he found himself in considerable distress, and in those circumstances it is entirely reasonable that a person would prioritise their health over making a claim for compensation.
[16] [2006] NSWWCCPD 139
The respondent, as I have pointed out, set out the timeline concerning Mr Niemi’s injury, the issues following his cessation of work on 1 April 2021, and the period before he made his claim on 14 October 2022. The timeline set out by the respondent in submissions was largely consistent with what I have provided above.
The respondent submits that it is the applicant that must prove, on the balance of probabilities, that he has a reasonable cause for not making the claim within the statutory time period. In submitting that the applicant had not satisfied that onus, the respondent referred to various gaps in the applicant’s evidence, in summary being:
(a)    there are no details in the applicant’s statement as to what took place from 29 March 2022 to October 2022;
(b)    there is no evidence as to what was discussed with Mr Niemi’s lawyer, and what advice the lawyer gave to Mr Niemi;
(c)    there is no medical evidence as to the consultations with the applicant’s general practitioner between the claimed date of injury until 21 June 2021, and the applicant does not explain why he did not speak to anyone in the period;
(d)    there is no explanation of what happened between obtaining the Certificate of Capacity in March 2022 and June 2022, when Mr Niemi speaks with his general practitioner, and
(e)    there is no evidence of what occurred between June 2022 and October 2022.

The respondent submits that when one looks at the mixture of facts, circumstances and motive, the applicant does not have a reasonable cause for failing to make a claim within the period identified.
In response, the applicant points out that 261(4) is not an “excuse” provision but the real issue is the failure to make a claim within six months. The applicant submits that there are explanations for the delay in 2021 that have been provided that seem to have been accepted by the respondent, but even if you take into account 2022, there was a reasonable cause for the whole period. However, the applicant submits that it would be an error to focus on whether there is an explanation for the delay in claim until October 2022, as the section is concerned with the six-month period. It is not a “delay” provision as provided for in Motor Accidents legislation, and the provisions are not a “council of perfection”. Ultimately, the factors after the expiration of the six-month period are a “red herring”.
To determine whether the exception to the bar in s 261 applies, one most look closely at the terms of the statue. I have set out s 261 in full above. Sub-section (1) provides that “compensation cannot be recovered”, creating an absolute bar to recovery. It provides a timeframe for a claim for compensation, being “within 6 months after the injury or accident happened”. In the present case, the claim was required to have been made by 1 October 2021.
The applicant did not make that claim, and now relies on sub-s (4). This has sometimes been referred to in case law and in the submissions before me as an “excuse” provision, although it is noted that the section does not refer to an excuse at all. I accept, as the applicant submitted, that it is also not a “delay” provision (as envisioned in the Motor Accidents legislation). I note that reference to other legislation as a guidance for interpretation should be undertaken cautiously. Here, I take it that the applicant’s example was illustrative rather than suggested as a guide to interpretation.
Section 261(4) essentially provides that s 261(1) has no operation: “The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause.”
The subsection invites consideration of the “failure to make a claim within the period required”, in terms of the cause of that failure. It is not, as the applicant points out, an analysis of the entirety of the period between the injury and the claim as made. It does not require, as the respondent’s submissions accept, a week-by-week interrogation of what the applicant was doing and a reason as to why a claim was not made at a particular point. The entire set of circumstances relevant to the question must be considered, but those circumstances must be considered in light of why the worker did not make a claim within six months, rather than why it took the worker 18 months (as in this case) to make the claim from the date of injury.
Rouse, referred to by both parties, considered the application of s 65(7) and (13) of the 1998 Act, which are identical in effect to the sections in consideration here. Deputy President Roche undertook an analysis of the section, as well as discussing relevant cases and commentary. There are a number of principles arising out of Rouse:
(a)    the words “other reasonable cause” should not be read ejusdem generis with “mistake” and “ignorance”, but should be given their ordinary meaning;
(b)    other reasonable cause “can be any other event, situation or circumstance that resulted in a claim not being made within six months of the date of injury”;[17]
(c)    it is the mixture of “facts, circumstances and motive” that must be considered, and
(d)    the consideration is not from the point of view of whether the worker thought he was acting reasonably, but rather whether the omission is reasonable in light of all of the circumstances in which the worker found himself.[18]
[17] Rouse at [35].
[18] Garratt v Tooheys Ltd [1949] WCR 80.
Undertaking an analysis of the circumstances of the failure of the applicant to claim compensation within the specified period, I am of the view that the following factors are demonstrated on the evidence, or can be reasonably inferred:
(a)    Mr Niemi has been the sole income earner in his family, supporting his wife and daughters for approximately 15 years;
(b)    Mr Niemi first noticed his symptoms in his shoulder in April 2018, but continued to work through that pain, with radiological investigations being undertaken, but no absence from work. This demonstrates a degree of stoicism in Mr Niemi;
(c)    both Mr Niemi’s wife and daughter have a history of significant psychological issues;
(d)    on 1 April 2021, Mr Niemi was terminated from his employment. There are a number of contributing factors to that termination, including the availability of work for his employer as well as Mr Niemi’s physical capacity to undertake that work;
(e)    due to the nature of the termination Mr Niemi received a lump sum payment of some kind, on which he and his family lived for a period;[19]
(f)    from the start of July 2021, Mrs Niemi was experiencing significant psychological symptoms, including paranoia and anxiety;
(g)    Mrs Niemi was hospitalised for a period of three weeks and discharged to the care of Mr Niemi in August 2021;
(h)    in August 2021 (overlapping with his wife’s admission to hospital), Mr Niemi was aware of some aspects of the requirements for making a claim, and had, in his possession, a claim form;
(i)    Mr Niemi did not obtain supporting medical evidence for his claim until 28 March 2022;
(j)    Mr Niemi obtained assistance to complete the claim form sufficiently in June of 2022, and
(k)    Mr Niemi did not make a valid claim until 14 October 2022, through his solicitors.
[19] Page 1 of the Application
The following factors are relevant but do not particularly weigh against a finding that Mr Niemi had a reasonable cause for failing to claim compensation within six months:
(a)    the lack of evidence from Mr Niemi or his solicitor concerning the questions asked and advice given regarding his claim;
(b)    the fact that Mr Niemi did not fill out the claim form to the best of his ability, and then send it to his lawyer;
(c)    the lack of discussion of ongoing issues with his shoulders or the mental health of his wife or daughter in clinical notes for other attendances (particularly COVID vaccinations).
I acknowledge that there are factors that weigh against a finding that Mr Niemi had a reasonable cause for failing to make a claim. These factors include that:
(a)    Mr Niemi was aware of a potential workers compensation claim in June of 2021, but wanted to “think about it”;[20]
(b)    the uncertainty of Mr Niemi’s incapacity in the period following his termination from employment, and whether that was due to injury or availability of work;
(c)    the failure of Mr Niemi to obtain supporting medical evidence until 28 March 2022, in spite of an awareness of ongoing pain in his shoulders from 2018, and in particular from June 2021, and
(d)    the lack of steps to pursue the claim, particularly in the period from June 2022, when Mr Niemi had received assistance to complete the claim form and had medical evidence in support of his claim, being a certificate of capacity.
[20] Clinical note of Dr Qin Wan dated 24 June 2021, page 110 of the Application.
Weighing all of the factors as set out above has been a challenging exercise. I have significant doubt about whether Mr Niemi ceased work due to incapacity, as opposed to the availability of work. It may be that Mr Niemi would have been able to continue on with his employment as he had done since 2018. The evidence of medical consideration of Mr Niemi’s shoulders, following his termination from employment, is absent until 24 June 2021.
I have no doubt that the loss of employment played heavily on the mental health of Mr Niemi’s family, and in particular his wife. Mr Niemi was the sole income earner supporting a family of four. Mrs Niemi’s mental health began to deteriorate in July of 2021, which is three months after Mr Niemi ceased employment. It can be reasonably inferred that from around this period any payout resulting from Mr Niemi’s termination of employment would be dwindling, and without any income, the family’s finances would be stressed.
At the same time, Ebannie’s mental health problems reached their zenith, requiring constant supervision due to the risk of self-harm or suicide. Towards the end of August, when Mrs Niemi was discharged from hospital, Mr Niemi was primarily responsible for the care of his mentally ill wife and daughter, whilst receiving no income and suffering from untreated but ongoing pain. These factors are relevant because of the additional responsibility Mr Niemi bore in that period, reducing his capacity to consider the issues concerning his injury and claim.
The respondent properly conceded that there were definitely periods where Mr Niemi had been preoccupied with other issues, mostly around the middle of 2021, but submitted that when one looks at the totality of the circumstances the reasonable cause test in s 261(4) was not met. I do not accept that (and again, the respondent conceded) the applicant must give a week-by-week account of what was occurring and explain why, on each occasion, a claim was not made.
The “cause” of Mr Niemi’s failure to claim, largely taken from his statement dated 31 January 2024, relies on the above circumstances creating an atmosphere where he “did not get my head around completing the necessary paperwork”. This persisted up until March 2022, when Mr Niemi “could still not get my head clear”. Mr Niemi was also said to be “very anxious” about completing aspects of the claim form. It was not until 5 October 2022 that Mr Niemi “eventually managed” to complete the form.
Having considered all of the circumstances as set out above, I am satisfied that Mr Niemi has demonstrated a reasonable cause for failing to make a claim within six months. The cause here being the surrounding circumstances of Mr Niemi’s life, including the mental health of his wife and daughter, his focus on being primary carer, and his general anxiety concerning the claims process and what specifically was required of him. In essence, Mr Niemi’s capacity to focus on or consider issues other than his familial responsibility was overborne.
Whilst there are potentially periods where Mr Niemi may have been able to make the claim earlier (particularly in the period from June 2022 until the claim was made on 14 October 2022), when one looks at the totality of the circumstances, I am satisfied that the applicant has demonstrated the exception provided in s 261(4) applies. As that claim was eventually made within three years, the bar within s 261(1) does not apply, and accordingly Mr Niemi is entitled to recover compensation (subject to the other relevant provisions being satisfied).

Incapacity

Mr Niemi’s claim, as set out in the Application, is for weekly compensation from 1 April 2021 to date and continuing. There is a dispute concerning incapacity; the applicant submits that I should make an award from 1 April 2021, but whilst the respondent accepts that there is evidence of total incapacity at some point, there is no evidence to support a finding of total incapacity for much of the period claimed from 1 April 2021 to date.
The applicant acknowledges that there is no medical certificate going to incapacity prior to 28 March 2022, but submits that Mr Niemi is currently totally incapacitated and that has been the case since 1 April 2021. The applicant refers to the evidence of his treating general practitioner, Dr Wan, who provides a medical report in support of incapacity from 1 April 2021.
The respondent refers to the applicant’s statement where he states he was terminated because there was no more work. This, it is submitted, does not mean that he has no capacity for work. The respondent also points out the periods in which there is no medical evidence as to capacity, from 29 March 2022 to 13 January 2023. It is submitted that I would not be satisfied that the applicant had no capacity in that period. The respondent refers to Mr Niemi being a carer for his wife and suggests that there may have been some suitable work he could do in the period. The respondent acknowledges that from 14 March 2024, Mr Niemi was totally incapacitated.
There are significant gaps in the evidence relating to incapacity in this case. I have discussed much of the medical attendances in considering the application of s 261 above. Suffice to say, for whatever reason, Mr Niemi did not regularly attend his general practitioner in relation to his shoulder symptoms, and relies largely on a reconstruction of capacity in the report of Dr Wan dated 3 October 2023.
I have already expressed doubt about whether Mr Niemi was unable to work immediately following his termination due to his work injury, or because of some other cause. There is no doubt Mr Niemi experienced symptoms in his shoulders in 2018. I accept that it was likely we worked for a long period, managing pain as best he could, until he was terminated on 1 April 2021. However, by his own admission, Mr Niemi was advised by his employer that “they no longer had enough work”.[21] In his statement dated 18 May 2023 Mr Niemi suggests that he was being closely watched by the head foreman in the leadup to his termination, and that it was a coincidence that he was terminated after he had trouble carrying plywood a week prior to his termination.
[21] Page 4 of the Application.
The only other piece of evidence discussing incapacity in the period around Mr Niemi’s termination that I was taken to is the report of Dr Wan dated 3 October 2023.[22] That report is a question-and-answer format, in response to inquiries made by Mr Niemi’s solicitor. In relation to incapacity, the following question was asked:
“Your opinion as to our client's capacity for work for the period 1 April 2021 to date. In this respect, we note our client's employment was terminated on 1 April 2021 and he has not been able to work in any capacity since then.”
[22] Page 43 of the Application.
To which the doctor replied: “Yes. I am aware the patient has not bee able to do his routine duty since April 2021.” I note that this question presupposes the answer given by the doctor, given that it is noted that he was terminated “and has not been able to work in any capacity since then”. Further, the doctor’s answer is equivocal and doesn’t really refer to his capacity for work, but rather an awareness of an ability to do his “routine duty”. The doctor, in response to a further question regarding some other periods of incapacity, sets out some “key time points”. These points explain why no certificate of capacity was provided as “patient did not want to do so at that time”. There is also reference made to the first certificate on 28 March 2022.
I am unable to accept that from 1 April 2021, Mr Niemi was totally incapacitated for work due to injury. The balance of evidence does not support that conclusion. Whilst Mr Niemi had complaints of pain prior to that time, he was able to work through that pain and was terminated for reasons of availability of work. Whilst he hypothesises that there may have been other causes for his termination, including relating to his capacity to perform the inherent requirements of his role, this is not supported sufficiently in the contemporaneous evidence. The best evidence tendered is the report of Dr Wan, which proceeds on a series of assumptions and retroactive reconstructions of capacity.
Accordingly, I am not satisfied that Mr Niemi had total or partial incapacity for the period from 1 April 2021 until (at the earliest) 24 June 2021.
The latter date is relevant as the first contemporaneous record of issues in the shoulder since Mr Niemi attended in 2018. On that date, Dr Wan records “both shoulder pain for a few years when moving” and “reduced ROM”. At this point, physiotherapy was recommended and a referral to Dr Herald was provided. No certificate of capacity was provided at that attendance, although “WCC” (which I take to be workcover certificate of capacity or the like) was recommended.
The next relevant date for consideration is 21 July 2021, when Mr Niemi attended on Dr Herald following the referral from Dr Wan. Dr Herald reports findings on examination including “end range stiffness and irritability of both shoulders and pain. Strength is difficult to test due to the pain”. He reports one attendance at physiotherapy without success. He takes an apparent incorrect history regarding cessation of work in “December last year”. Shoulder surgery is recommended.
Also included in the medical records from Dr Herald is a shoulder assessment sheet completed on 21 July 2021. This appears to be an intake sheet, although it is not clear if this was filled in by Mr Niemi or the doctor. In that sheet, it is recorded that Mr Niemi’s shoulder limits “my work” and “my sleep”, and that his shoulder feels like it may dislocate “every time I use it”. The pain is said to be, at its worst, severe. A restriction on reaching to chest height at maximum, and “only light activities possible” is recorded.
The applicant’s various statements do not deal with the issue in any specificity, although note that following attendance on Dr Herald, Mr Niemi “tolerated my shoulder pain over the next 12 months or so, and I took pain medication and anti inflammatory medication”.[23]
[23] Page 11 of the Application.
Given the absence of a Certificate of Capacity, until March 2022, I am only able to draw inferences from the evidence provided. I am not bound by the rules of evidence but may inform myself on any matter in the manner I think appropriate and as the proper consideration of the matter permits (s 43(2) of the Personal Injury Commission Act 2020). The best evidence I have of capacity in the period prior to the first certificate of capacity being issued on 28 March 2022 is the report of Dr Herald and the intake material filled around that period.
Based on that material, I am satisfied that Mr Niemi was totally incapacitated from work from 21 July 2021. That contemporaneous evidence shows an inability to lift arms beyond chest height, with only light activities possible. Mr Niemi felt as though his shoulder would dislocate every time he used it. There is no reasonable work Mr Niemi could have performed as a carpenter, or at all, with those restrictions. The respondent made an underdeveloped suggestion in submissions that Mr Niemi could have worked as a carer based on evidence that he cared for his wife following her hospitalisation for mental health issues. I do not find this submissions persuasive. There is no evidence to support it and no inference that I could draw on that a person that has spent his working career as a carpenter could perform work as a carer based on a period caring for his wife who had suffered a serious mental health issue.
Mr Niemi states that since stopping work “the pain in my shoulders have eased slightly”. He has attended physio since around February 2023, but it is agreed by all doctors that he now requires shoulder surgery.
I find I am unable to conclude that there were periods following 21 July 2021 when Mr Niemi had any capacity for work. Dr Herald first recommends shoulder surgery on that date, which as of the date of this decision has not taken place. I accept there are gaps in the reporting evidence, from 29 April 2022 to 14 January 2023, and then from 7 July 2023 onwards, where Certificates of Capacity are absent. In circumstances where there is a very guarded prognosis with the only viable treatment option being surgery (per Dr Bodel)[24], and that Mr Niemi is not capable “of retuning to any form of employment for which he is suited” (per Dr Bentivoglio)[25], I am satisfied that those gaps do not defeat Mr Niemi’s claim.
[24] Page 27 of the Application.
[25] Page 14 of the respondent’s Application to Admit Late Documents.

I am of the view that in the periods where Mr Niemi did not attend on his practitioners (those periods set out above), his circumstances would not have changed, and he continued to have total incapacity for work as a result of his injury.
Accordingly, I will make an award for weekly payments from 21 July 2021 to date and continuing.

Medical expenses

The Application claims medical expenses being past consultations at the Minto Family Medical Centre, and future treatment, being surgery to both shoulders as recommended by Dr Chandra Dave.
There was initially some confusion concerning the surgery, which was described by Dr Herald in his report of 21 July 2021 as “reverse total shoulder replacement”, recommended in the left shoulder.[26] Dr Bodel supports the “reverse total shoulder replacements in each shoulder” as the only viable treatment option.[27] Dr Dave then requested approval for a total shoulder replacement in both shoulders on 26 April 2023.[28] The claim made by the applicant is based on the request of Dr Dave and the fee estimate attached to that request, being for a total shoulder replacement (rather than reverse). Accordingly, I am satisfied that the claim being made is for bilateral shoulder replacements (to occur one after the other) and that is the medical treatment subject of dispute in this matter.
[26] Page 65 of the Application.
[27] Page 37 of the Application.
[28] Page 95 of the Application.
A s 78 notice concerning the claim for medical expenses was issued on 26 March 2024.[29] That dispute placed into issue s 60 of the 1987 Act, being that the surgery was not reasonably necessary as a result of injury. However, when one reviews the medical evidence available, the consistent opinion is that Mr Niemi requires the surgery (that is that it is reasonably necessary), but that Dr Bentivoglio is of the opinion that the need for surgery is not as a result of injury with the respondent. The medical evidence in support of the need for surgery is as follows:
(a)    Dr Herald, who recommends a reverse total shoulder replacement;
(b) Dr Dave, who requested the surgery subject of this dispute. Although he does not directly comment on the test in s 60, given that he has requested the surgery, it can be reasonably inferred that he is of the opinion that it is reasonably necessary. He states: “He will need a total shoulder replacement both shoulders”;
(c)    Dr Bodel, who states:
“His prognosis is very guarded. The only viable treatment option is the reverse total shoulder replacements in each shoulder. Hopefully this can be deferred as long as possible and if he can get another five to seven years, that would be helpful. Each shoulder will then need to be done one at a time”, and
(d)    Dr Bentivoglio, who opines: “The only treatment that is appropriate for this gentleman is to have bilateral shoulder joint replacements”.
[29] Page 1 of the respondent’s Application to Admit Late Documents.
The respondent in submissions was critical of the evidence in regard to the above, noting that Dr Dave does not deal with whether surgery is reasonably necessary. There is no evidence that the surgery is required now, there is no information about whether it is accepted by peers as appropriate, there is no information about alternatives to surgery. The evidence does not deal with the requirements of Diab v NRMA Ltd[30] and Rose v Health Commission (NSW).[31]
[30] [2014] NSWWCCPD 72.
[31] [1986] NSWCC 2; (1986) 2 NSWCCR 32.
I do not accept the respondent’s submissions in respect of whether the surgery is reasonably necessary. On the material before me, on the balance of probabilities, the evidence supports a conclusion that surgery is reasonably necessary. The overwhelming weight of medical evidence suggests that Mr Niemi needs the surgery. Whilst Dr Bodel tempers that with the potential of deferral for a period, that does not alter the requirement. I am also of the view, as submitted by the applicant, that Dr Bodel’s tempered opinion (as set out above) is one of hope, not of disagreement with the opinion that surgery is reasonably necessary. It is apparent when reading his opinion that is clear – he does not suggest that Mr Niemi should wait – but is hopeful that it can be deferred, and if so, that would be “helpful”.
The real crux of the dispute, as borne out by the medical evidence, is whether the need for surgery is as a result of injury. Dr Bentivoglio’s opinion is that the need for surgery “is as a result of the degenerative changes present in his glenohumeral joint and not as a result of any work-related injury”. The problem with Dr Bentivoglio’s opinion is that it proceeds on the basis of a hypothesis that is unsupported in the evidence. Dr Bentivoglio opines:
“This gentleman has quite gross degenerative osteoarthrosis involving both shoulders together with supraspinatus tendon tears. Some of these degenerative changes would have developed as a result of his employment with Premium Labour Services over a period of eight years.”
Dr Bentivoglio goes on to refer to the notation in the clinical notes from 9 April 2018, recording shoulder pain. He goes on to state:
“This gentleman only worked for Premium Labour Services Pty Ltd for a period of eight years up until April 2021. This would indicate he probably started work with them in 2013, and it is likely he was symptomatic (from his local doctor's notes) at the time he started work with them.”
This is entirely presumptive. This opinion also fails to consider that the injury as pleaded and accepted is an aggravation of degenerative change injury. The mere existence of degenerative changes prior to commencement of employment does not disentitle a worker to compensation.
I prefer the opinions of the treating specialists, Drs Dave and Herald, supported by the opinion of Dr Bodel, who states: “The need for this has arisen as a result of the nature and conditions of work which has materially contributed to the pathology and the injury that is present in both shoulders”.
Accordingly, there will be an award for the applicant in respect of the future medical treatment claimed. I will also make a general award for past medical expenses. I was not taken to any issue with those expenses as claimed (other than pursuant to s 261), and given the nature of the claim, am satisfied that they are reasonably necessary.

SUMMARY

I am satisfied that Mr Niemi had a reasonable cause for not making a claim within six months.
I am satisfied that from 21 July 2021 to date and continuing, Mr Niemi was totally incapacitated for employment.
I am satisfied that the surgery requested by Dr Dave, being bilateral shoulder replacements, is reasonably necessary as a result of injury.
Accordingly, I will make the relevant awards for the applicant pursuant to the above findings.

[2024] NSWPIC 245

10 May 2024