O'Brien v Rosabella Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	O'Brien v Rosabella Pty Ltd [2024] NSWPIC 69
APPLICANT:	Neil O’Brien
RESPONDENT:	Rosabella Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	20 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and medical evidence in relation to alleged thoracic and lumbar spine injury; respondent denies injury and alleges workplace incident did not take place, and if it did, that there was no ongoing incapacity for employment as claimed; Held – the applicant suffered an injury as alleged in the course of his employment; his version of events being supported by the statement evidence of two independent lay witnesses whose veracity was not challenged; the effects of the applicant’s injury are ongoing; the applicant has suffered total incapacity form 26 April 2023 to date and continuing; respondent ordered to pay the applicant weekly compensation and section 60 expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to his lumbar and thoracic spines in the course of his employment with the respondent on 2 September 2021. 2. At the date of injury, the applicant’s pre-injury average weekly earnings were $593.35. 3. As a result of his injury, the applicant has suffered and continues to suffer total incapacity for employment from 26 April 2023 to date and continuing. 4. The respondent is to pay the applicant weekly compensation from 26 April 2023 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987 at the rate of $474.68 per week. 5. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses.

STATEMENT OF REASONS

BACKGROUND

The applicant, Neil O’Brien was employed at the IGA Supermarket in Gilgandra as a shop assistant by Rosabella Pty Ltd (the respondent).
The applicant alleges on 2 September 2021 he injured his back while walking through the cooking and baking aisle at the respondent’s premises when he slipped on white sugar which had been spilled on a white lino floor.
The respondent disputes liability for the applicant’s injury on two bases, namely that there was no injurious incident and secondly, if there was such an incident, it has not caused the applicant any incapacity during the period claimed.

MATTERS IN DISPUTE

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered an injury as alleged on 2 September 2021, and
(b) whether the applicant has incapacity for employment during the period claimed.

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.
The parties attended a hearing on 21 December 2023. On that occasion, Mr Jones of counsel instructed by Ms Pehm appeared for the applicant. Ms Balendra instructed by Ms Jenkins appeared for the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents, and
(c)    respondent’s Application to Admit Late Documents (AALD) dated 14 December 2023.

FINDINGS AND REASONS

Whether the applicant suffered an injury as alleged

The applicant gave the following evidence surrounding the circumstances of the alleged injury:
“8.     On 02 September 2021, I injured my back when I was walking through the cooking and baking aisle in the middle of unloading stock.
9.      White sugar had been spilled on the white lino floor, however, I was unable to see this at the time.
10.    As I approached the end of the aisle, I slipped on the sugar and my legs went up into the air and I fell hard on my back.
11.    I was not able to move for a couple of minutes. I laid on the floor in pain.
12.    I felt like the wind had been taken out of me.
13.    Some of the staff including Sarah Waring and Michelle Rewiri rushed over to assist me but I needed some time to compose myself and gather the strength to get back to my feet.
14.    The rest of the shift, I was in a considerable degree of pain, and I was holding my back a lot.
15.    The next morning, my back was really sore and I could hardly walk straight, however, given my work ethic, I attended my shift regardless.”
The applicant’s case also contained statements from Ms Waring and Ms Rewiri.
Ms Waring’s evidence, which was not contested was as follows:
“10. On 02 September 2021, I witnessed Neil’s injury. Neil was walking down the cooking aisle and a packet of white sugar had been spilled on the floor. There was poor visibility as it was white sugar spilled on a white floor. Coming down the aisle, Neil slipped on the sugar and his legs went up in the air, and he fell directly on his back.
11.    Neil laid there on the floor for a couple of minutes, unable to move. When I approached him he was very pale.
12.    I tried to help him up, but he said he hurt his back and needed a couple of minutes to compose himself. He looked to be in a lot of pain.
13.    I waited until he was ready and assisted him back to his feet.
14.    The next times I saw him throughout the shift, Neil was holding his back and appeared to be in a considerable degree of pain.
15.    The second time I asked him how he was feeling (on the same day), he said words to the effect of ‘I’m in a lot of pain’. I recommended that he go to the office and complete an incident report.”
Ms Rewiri provided the following evidence:
“7.     On 02 September 2021, I was on register two. I was checking out a customer and was finishing up before the incident occurred. I had a clear view of exactly what happened.
8.      Neil was walking around the store at a fast pace, almost power walking, which he often did. Neil was unloading the flatbeds, which contained new stock, he was restocking the shelves.
9.      Neil walked around the corner of the aisle that contained the baked goods at a fast paced and slipped on sugar that was spilled on the ground. His legs flew up and his back hit the ground hard. This was a significant impact.
10.    Neil while on the ground for o1-2 minutes. It looked like the wind was knocked out of him.
11.    My colleagues that were on shift that day rushed to Neil’s aid and helped him to sit up once he was ready to do so.
12.    My initial response was to laugh because of how quickly it happened and how his legs lifted into the air, however, upon realisation of how serious the fall was, I apologised for laughing as I could see he was in pain and this was not funny.”
For the respondent, Garth Mason provided a statement dated 23 November 2022. Mr Mason is the store manager of IGA at Gilgandra, the applicant’s former place of work. Mr Mason indicated he had no knowledge of the circumstances leading up to the lodgement of the applicant’s claim, which was filed nearly a year after the alleged injury, as there was nothing in the incident reporting system indicating there had been an injury on 2 September 2021. Mr Mason also denied that the applicant ever mentioned any injury to him.
Later in his statement, Mr Mason said:
“27. I do not believe that we have contributed anything to cause Neil O'Brien to claim the workplace injury against us as I am of the firm belief that no workplace incident occurred on or around 2 September 2021 in respect of him.”
Ms Uoya Aksu, Human Resource (HR) Manager of the respondent also provided a statement. She noted there were no incidents recorded in the store incident register surrounding the applicant’s alleged injury, and the first she had heard about it was when the respondent’s insurer contacted them. Ms Aksu stated she had checked with the store manager (Mr Mason) and confirmed no incident on 2 September 2021 was reported.
Additionally, a conversation log is presented into evidence by the respondent of a discussion had with Ms Kaitlyn Moss, formally employed by the respondent. The inquiry took place on 22 November 2022 and it is alleged Ms Moss stated she had no knowledge of the applicant sustaining any injury at work. The respondent relies on the lack of reporting by the applicant as being persuasive of the fact no incident took place.
The difficulty with that position is the statement evidence of Ms Waring and Ms Rewiri, each of whom gave direct evidence of having witnessed the incident at issue. Although it is understandable Mr Mason was unaware of any injurious event given the applicant did not report it at the time, there is no evidence Mr Mason was in the store at the time, or if so in the vicinity of the alleged injury.
In the circumstances, I prefer the evidence of the applicant, supported as it is by Ms Rewiri and Ms Waring, each of whom give evidence of having seen the incident at issue.
The applicant’s first visit to a doctor which is in evidence after the incident at issue was on 13 October 2021. That consultation was in relation to a psychological injury, and no reference was made to any back problems. Similarly, a further entry recorded by the applicant’s general practitioner (GP), Dr Bojanic on 19 October 2021 made no mention of any back issues.
The first recording of any complaint of back pain was on a visit to the applicant’s GP on 2 February 2022 when he saw Dr Pereira. That entry records “surgery consultation - working IGA - ongoing back pain worsening now 09/2021 - back pain started”.
The same entry records an examination revealing midline spine tenderness of the lower thoracic and lumbar area. The applicant was prescribed celecoxib capsules.
At a further visit on 8 February 2022, the applicant was noted to be awaiting X-rays and was unable to perform any work owing to his back pain. By 3 March 2022, the applicant again consulted Dr Pereira and, despite having been prescribed Lyrica, his back was unresponsive. The Lyrica was also said to cause the applicant headaches. An examination on that date still revealed tenderness over the mid thoracic and upper lumbar spine. The X-rays of the applicant’s spine did not reveal any fractures, and he agreed to undertake a CT scan.
By 31 March 2022, the applicant again consulted Dr Pereira and his pain was described as “unbearable”.
In May 2022, the applicant began consulting Gilgandra Local Aboriginal Medical Service and, on his first visit at that practice on 06 May 2022, the following entry was made:
“1. Back pain
Radiated to little toe on thigh, leg
No sign of cauda equina syndrome
Injury back last year in IGA
When pushing trolley grocery out, wheels were broken.
Bullying in job
Argument with employer
Patients said did not go back but did not resign.”
There is no issue the applicant had mental health issues and that he also had a difficult relationship with certain people in the workplace.
In a supplementary statement, the applicant traverses the issue of pushing a shopping trolley at work and suffering an injury. He admits such incident took place, however, he says that injury subsided.
On 8 July 2022, the applicant consulted Dr Nyo to discuss the results of a CT scan of his lumbar spine. That investigation revealed mild bulging of L4-L5.
Further light is shed on the shopping trolley incident in a consultation between the applicant and counsellor, Ms Gibson on 24 August 2022. In that entry, the applicant discusses the fall at issue, and additionally notes that in a separate incident there was a trolley out in the back area which had broken wheels which was used to bring stock into the supermarket from the trucks, “he stated it was dangerous and someone or a customer was at risk of injury.”
Additionally, in the progress notes of Gilgandra Hospital Physiotherapy dated 22 November 2022, the applicant reported the onset of thoracic and lower back pain after an incident while working with the respondent in Gilgandra. According to the entry:
“Patient reports that he slipped on spilled sugar and fell directly onto back. Patient reports that after this, he felt his back ‘give way’ while pushing an overloaded flat trolley.
Patient reports that back pain has been worsening since, as has his mental and physical health, and he has resolved to occasionally taking 10 milligrams SR Endone to ease the pain, however, it doesn't like how it makes him feel.”
In my view, the findings by the applicant’s treating doctor surrounding his thoracic and upper lumbar spines following the incident at issue which was witnessed by two independent witnesses is sufficient to make a finding on a reasonable basis of the applicant having suffered injury in the course of his employment with the respondent on 2 September 2021. Although the applicant did not report his symptoms for some time, it is, as noted by Mr Jones of significance that the first entry where the applicant’s back pain is referred to in February 2022 records him as having had “ongoing” back pain.
The respondent’s Independent Medical Examiner (IME), Dr Burrow, indicates there was no ongoing issue to the applicant’s back. In his report dated 27 July 2023, Dr Burrow was asked whether the applicant sustained frank injury to his lumbar and/or thoracic spine in the incident at issue and said:
“He suffered a temporary soft tissue injury to the thoracic spine, which was reasonably insignificant for which he did not seek medical attention, and when he did in mid-October did not mention any thoracic or lumbar symptoms, sought no investigations or treatment until some five months after the work incident.
This indicates the initial injury to the thoracic area was reasonably insignificant, non-structural and self-limiting. Ongoing complaints are not related to this relatively low energy injury.”
The notion that accepted injuries have passed is one commonly seen in the Commission. A party which asserts the effects of any injury have passed bears the onus of proving that is the case: see Commonwealth v Muratore (1978) 141 CLR 296. Moreover, without some explanation as to why, in the face of increasingly worsening back pain over the course of months and years, there is a reason why the alleged aggravation has ceased. Dr Burrow’s statement is, in effect, a bare ipse dixit statement. Dr Burrow provides no reason as to what the other cause of the applicant’s ongoing issues might be. In circumstances where he has provided a view that in fact the injury did take place but its effects have past, it is, in my view, incumbent upon him to do so.
In my view the preponderance of the medical evidence in this matter is clear. It supports a finding that the applicant suffered an injury to his spine in the course of his employment with the respondent as alleged.

Incapacity for employment

Notwithstanding that I have found the effects of the applicant’s injury are ongoing, the question of whether there is any incapacity from that injury is a separate one, and the applicant has the onus of proving there is such incapacity. In my view, he has discharged that onus of proof.
Whilst it is the case the applicant has other issues in relation psychological matters and did not leave work because of the effects of his injury, that does not preclude a finding of incapacity because of the injury in issue.
In this matter, the applicant did not report the physical injury until February 2022, however, it is apparent he was suffering from mental health issues at that time. From the time of his reporting back issues, there are consistent and worsening complaints of back pain from the applicant.
Whilst Dr Burrow for the respondent places a great deal of emphasis on the lack of contemporary GP complaint, this is not the relevant test. The contemporaneous records show the applicant’s condition has been ongoing and worsening.
Whilst the records also show the applicant has some addiction issues, the records clearly show the diagnosis of back problems and complaints thereof predate those.
On balance, I find the applicant to have suffered ongoing total incapacity for employment as a result of his injury, in accordance with the medical evidence of his treating practitioners, including his GP who continues to certify the applicant totally incapacitated. Although the opinion of a GP, that doctor has the benefit of consulting the applicant over a long period, and absent some basis for finding their opinion is not well founded, as a treating practitioner, their views are entitled to be afforded appropriate weight. That is particularly so when those views accord with those of the applicant’s IME Dr Gehr. Having set out the applicant’s ongoing complaints in his report dated 4 September 2023, Dr Gehr was asked his opinion on incapacity and replied as follows:
“7.     Your opinion on whether our clients’ injuries and symptoms have resolved;
His injuries and symptoms have not resolved.
8.      Your opinion as to fitness for employment. Please specify what restrictions you would place thereon;
His previous employment was a heavy physical job with physical demands, with lifting, kneeling, and squatting with the use of ladders. Basically, loading and unloading stock in the supermarket environment. Such employment would be impossible for him.
9.      Your opinion as to our client’s past, current and future likely capacity for work;
He has zero capacity for work.
Dr Gehr’s opinion is broadly consistent with the applicant’s GP, and I prefer it to that of Dr Burrow. It is also broadly consistent with my finding, set out above, that the effects of the applicant’s injury are ongoing.
There is agreement as to the applicant’s pre-injury average weekly earnings, and that the figure pursuant to s 37 of the 1987 Act is $474.68. There is also agreement that the period claim relates solely to s 37, and accordingly, the respondent will be ordered to pay the applicant weekly compensation at the rate of $474.68 per week from 26 April 2023 to date and continuing.

SUMMARY

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

[2024] NSWPIC 69

20 February 2024