Papalia v Transom Services Pty Ltd t/as Transom Scaffolding

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Papalia v Transom Services Pty Ltd t/as Transom Scaffolding [2022] NSWPIC 628
APPLICANT:	Damien Papalia
RESPONDENT:	Transom Services Pty Ltd trading as Transom Scaffolding
Member:	Cameron Burge
DATE OF DECISION:	10 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits concerning multiple body systems; frank injury to left knee accepted and consequential conditions to lumbar spine, cervical spine and right knee as a result of over reliance and altered gait; applicant claims consequential condition to left shoulder as a result of trying to arrest his fall by grabbing a tree branch when his knee gave way; respondent disputes mechanism of injury and alleges applicant was swinging from tree when his left shoulder dislocated and as such there is no causal connection between the accepted injury and the shoulder dislocation; Held – the applicant’s version of events surrounding the left shoulder dislocation are accepted; the applicant suffered a consequential condition in his left shoulder; respondent ordered to pay the reasonably necessary medical and treatment expenses in connection with the accepted left knee injury and for each of the alleged consequential conditions.
determinations made:	1. The applicant suffered an injury to his left knee in the course of his employment with the respondent on 26 July 2018. 2. As a result of the injury referred to in [1] above, the applicant has sustained consequential conditions to his lumbar spine, cervical spine and right knee which resulted from overreliance and altered gait. 3. As a result of the injury referred to in [1] above, the applicant suffered a consequential condition to his left upper extremity (shoulder) on 12 October 2020. 4. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses in respect of the injury and consequential conditions referred to above.

STATEMENT OF REASONS

BACKGROUND

On 26 July 2018, Damien Papalia (the applicant) suffered an accepted frank injury to his left knee in the course of his employment as a scaffolder when he was required to carry heavy materials at a worksite over rough, uneven ground.
The applicant sought treatment for his injury and was referred to Associate Professor Ireland who confirmed a torn meniscus. On 25 January 2019, after a course of conservative treatment, the applicant underwent a left knee arthroscopy and medial meniscectomy. The left knee injury and consequential conditions to the lumbar and cervical spine together with the right knee are accepted.
The applicant also alleges that as a consequence of the accepted left knee injury, on
12 October 2020 he suffered a consequential condition to his right shoulder when, while out walking with a friend Mr Ben Gibbins, his left knee gave way and as a result, the applicant reached out to grab a tree branch to stop falling, suffering a serious left shoulder injury.
The fact of the left shoulder being hurt on 12 October 2020 is not disputed, however, the circumstances in which the injurious event on that date took place are keenly contested. The respondent alleges the applicant suffered the left shoulder condition as a result of swinging from a tree branch and says if that version is accepted, there can be no consequential condition as a result of the left knee injury. The respondent concedes that if the left shoulder condition was brought about in the circumstances alleged by the applicant, there would be a finding of a consequential condition arising as a result of the accepted left knee injury.
The applicant brings these proceedings against Transom Services Pty Ltd trading as Transom Scaffolding (the respondent) seeking payment of reasonably necessary medical and treatment expenses, including but not limited to those relating to the contested left shoulder. The applicant's claim originally included the costs of an incidental to proposed left shoulder surgery, however, that aspect of the claim was discontinued at the hearing.

ISSUES IN DISPUTE

The parties agree that the only issue in dispute is whether the applicant suffered a consequential condition to his left shoulder as a result of the accepted left knee injury.

PROCEDURE BEFORE THE COMMISSION

The parties attended a hearing on 10 October 2022. 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.
At the hearing, Mr Young of counsel instructed by Ms Pawlikowski appeared for the applicant. Mr Stockley of counsel instructed by Ms Tippett appeared for the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attachments;
(b)    Reply and attachments, and
(c)    Respondent’s Application to Admit Late Documents (AALD) and attachments dated 4 October 2022.

Oral evidence

At the outset of the hearing, Mr Stockley sought leave to cross examine the applicant as to the circumstances said have given rise to the alleged consequential condition. That application was opposed by Mr Young, however, after hearing submissions from both parties I determined that it was in the interests of justice for such cross-examination to take place.
The cross-examination is summarised and dealt with under the heading "findings and reasons" below.

FINDINGS AND REASONS

Whether the applicant suffered a consequential condition to his left shoulder

The dispute in this matter concerns purely whether the left shoulder was hurt in the manner described by the applicant or otherwise. The respondent appropriately concedes that if the applicant's version of events is accepted, then the left shoulder consequential condition will have been made out as a result of the left knee injury.
The applicant described the circumstances of his left shoulder being hurt in his supplementary statement as follows:
"8. On 12 October 2020, I was walking laps up and down a path to strengthen my lower back and left knee which were continuing to cause me pain. I was walking laps with my friend Ben Gibbins. Ben and I regularly walk together to help us stay fit as we both have workers compensation injuries.
9. A car was approaching behind me, so I stepped out the way up onto the embankment. In the process, my left knee and lower back gave way and I began to fall to the ground. My left knee was really weak at the time. I tried to brace my fall and reached out with my left arm to prevent myself from falling. I grabbed the nearby branch to stop my fall, however in the process, I ripped my shoulder out of its socket.
10. It was the most unbearable and excruciating pain I had ever experienced. It was like my arm was on fire. I was very concerned by the severity of my pain and decided to seek immediate medical attention. An ambulance was called and I was given a green whistle to manage the pain. It was an extremely strong analgesic used to administer emergency pain relief. It took a lot of my pain away however, it also made my memory very foggy. I was not in a clear state of mind and acted out of character due to the strong effects of the drug."
The applicant's stated version of the left shoulder injury contrasts with that contained in the records of the New South Wales Ambulance Service. Those records provide the following case description:
"Patient states swung on a tree branch and felt his left shoulder crack, then lowered himself to the ground with nil head strike or LOC. O/A patient lying on grass with pillows on the left shoulder, patient alert, speaking and orientated, obvious distress and deformity to left shoulder.”
The evidence in these proceedings would, however, suggest that entry is incorrect in that the call was made to the ambulance service by Mr Gibbins, not the applicant.
The ambulance incident detail report noted an ambulance was called at 6:04 pm. The evidence disclosed that the caller was in fact Mr Gibbins, and the recording made at 6:07 pm stated, "the patient is a 37 year-old male, who is conscious and breathing. Caller’s statement: dislocation tree after swinging. Patient dislocated shoulder when trying to swing from a tree". The entry in the notes at 6.09pm is “Pt dislocated shoulder when trying to swing from a tree”.
Mr Stockley cross-examined the applicant on these differing accounts and in relation to the circumstances of the alleged shoulder injury generally. The cross examination was thorough and appropriate.
The applicant stated he and Mr Gibbins have been walking for approximately 10 minutes before the incident at issue. He maintained that his left knee had given way causing him to reach for a tree branch, which in turn led to his left shoulder dislocation as he attempted to arrest his fall.
Mr Stockley suggested to the applicant that given his problems with his back and knee, it seems implausible he would have been walking down a semi-rural road where there was no footpath, and he was likely to encounter vehicles. The applicant replied that the area was suitable for the type of exercise which he was undertaking. When pressed, the applicant indicated he was walking up the embankment adjacent to the road for approximately three to four steps when his knee gave way, and he grabbed the tree branch as he fell, leading to the shoulder injury.
Mr Stockley suggested to the applicant his left knee had improved before the incident at issue as a result of surgery, which had been undertaken in January 2019. The applicant agreed that he had consulted a number of doctors after the surgery including Dr Wong,
Dr Berry and Dr Gothelf and that he at no stage told any doctor his left knee had been giving way since the original injury, either before or after the surgery.
The applicant conceded there was no reference in any of the medical histories to the doctors listed above or in his initial statement in these proceedings to his knee giving way. He said, however, that not notwithstanding such lack of reference, the knee did in fact give way from time to time.
The applicant conceded in cross-examination that Mr Gibbins had rung the ambulance but he was in too much pain to remember what Mr Gibbins had told the ambulance operator. The applicant denied the version of events recorded in the ambulance clinical records to the effect he had dislocated his shoulder swinging from a tree on the roadside. The applicant said the description in the ambulance records was not consistent with how the incident occurred.
The applicant also conceded that when the ambulance arrived, he did not seek any treatment for his left knee or his back despite indicating in his evidence that it was the left knee giving way which led to the shoulder condition. He explained this by indicating he was in so much shoulder pain he did not refer to a knee or back problems.
For the applicant, Mr Young referred the Commission to the applicant's initial statement where, at [36], he noted restricted movement in his left knee. Mr Young submitted such restriction of movement would be consistent with the left knee failing the applicant on the date at issue and noted the statement referring to restriction of movement was made before the event which has said to give rise to the left shoulder consequential condition. Mr Young noted the applicant's evidence to the effect his knee had not given way before the incident at issue, which he submitted explains why the applicant had not told any doctors of such a problem before the incident at issue.
Mr Gibbins, the applicant’s friend who was walking with him at the time of the shoulder dislocation provided a statement and was not required for cross-examination. In that statement, he set out the circumstances surrounding the applicant's left shoulder injury as follows:
"8. On 12 October 2020, Damien and I went on our usual walk to assist us both remain physically active. I cannot recall if I called Damien to walk, or whether he called me.
9. We had been walking together in the suburb of Leppington. On the date of the incident, we were walking on the street in Leppington just off Ingleburn Road. We were both looking at each other and talking to each other at the same time.
10. As I was talking to Damien, I noticed that his left knee gave way. I saw Damien falling over. I saw Damien reach out and grab the branch of a nearby tree with his left shoulder to break his fall. When Damien stood up, he was screaming in pain. I looked at his left shoulder and it was quite obvious to me that left shoulder was dislocated as the shoulder band was hanging down.
11. I called an ambulance for Damien and waited him.
12. When the ambulance arrived, the paramedic gave Damien the 'green whistle' to assist with his pain.
13. While Damien was sucking on the green whistle, I do recall the ambulance officers asking Damien what had happened. Damien said something like, 'I grabbed the tree over the air and hurt my shoulder'. I corrected Damien and said something like, 'no mate, you grabbed the tree tree branch to stop you from falling as your knee gave way'. Damien was in excruciating pain and had also been sucking on the green whistle. I do not think he was in the best state of mind to give specifics about exactly how his shoulder was injured.
14. As I witnessed Damien hurt his shoulder, I clarified exactly what had happened with the paramedics. …
15. I understand that iCare have indicated that Damien consumed three beers and smoked THC on the day he injured his shoulder. I confirm that Damien and I were not drinking alcohol or smoking marijuana whilst we were walking. I rarely drink as my GP has encouraged me to stay as healthy as possible to assist with my injuries.
16. I do not know whether Damien drank any beers or smoked THC before we went walking, however Damien did not appear to be drunk while we were walking, nor does he appear to be affected with an antibody drugs. He seemed his usual self."
Mr Young submitted that this evidence by Mr Gibbins is uncontested, and the version proffered by the respondent as its case theory has not been put to him. Whilst that maybe the case, in my view there is no obligation on a party to cross examine a witness in the Commission, and it is plain from the respondent's dispute notices and its conduct of the hearing that the applicant's version of events is plainly in issue. Nevertheless, Mr Gibbins’ evidence is entitled to be considered and taken into account when reaching a decision in this matter.
Mr Young submitted, and I accept that the evidence of Mr Gibbins corroborates the applicant's version of events. Mr Stockley submitted Mr Gibbins’ statement was carefully crafted in an attempt to bolster the applicant’s version of events, however, he supports in broad terms the version set out by the applicant not only as to the location, but as to the mechanism of the shoulder dislocation.
I note in his second statement, the applicant denied having consumed THC, stating that he had not done so since his late 20s. The applicant also indicated he cannot recall whether he had been drinking on the day of his shoulder injury, but if he had been it would have been much earlier in the day.
Mr Young also noted there is no issue the applicant has serious impairments to both knees, his lumbar spine and cervical spine. In those circumstances, Mr Young submitted, it would be unlikely the applicant would be swinging from a tree while out on a walk. He submitted the combined effects of the impairments to the other body systems would affect the applicant’s movements such as to be consistent with his version of how the incident at issue took place.
That submission is assisted by the report of Dr Gothelf, independent medical examiner (IME) dated 2 February 2022. In that report, Dr Gothelf accepted the applicant's version of events and indicated the investigations and his description of the left shoulder incident were consistent with the mechanism of injury.
The problems with the applicant’s left knee before the left shoulder incident are also set out in the report of Dr Wong, IME dated 25 October 2019 in which the doctor noted:
"Mr Papalia had stopped working since the subject injury. He experiences constant moderate to severe pain at the left knee and pain is aggravated by twisting the wrong way and by activities and there is stiffness at the left knee."
Dr Wong also noted moderate to severe pain in the lumbar spine with radiation down the back of the right thigh to the back of the leg.
The clinical notes of Campbelltown Hospital also record the applicant as "swinging from a tree when the injury occurred. Landed on his feet".
This history contrasts with that provided by the applicant to his treating neurosurgeon Dr Bazina who recorded in a report dated 1 October 2021 the following:
"Damien contacted our rooms to inform me that he has had three episodes of shoulder dislocation following a trivial injury last year. He lost his balance - his knee has had chronic instability, he deals with lower back pain on a daily basis, his leg gave way, as he tried to brace his fall and reached out with is arm, his shoulder dislocated."
It is noteworthy in my view that the recording of the mechanism of injury in the hospital clinical records closely mirrors that provided in the ambulance records. It is not uncommon for records in emergency departments to essentially recite the history provided by the ambulance.
In any event, I note the usual caution which must be taken when considering histories taken in clinical records generally.
The general practitioner (GP) clinical records in the lead up to the left shoulder incident note the applicant was trying to exercise to improve his mobility and fitness. Mr Young submitted, and I accept, that the entry of 20 September 2020 recording these efforts is consistent with the applicant's statement and that of Mr Gibbins concerning their attempts to improve their fitness in light of the injuries they had suffered. Likewise, in March 2020, Dr Ireland recorded the applicant was still experiencing significant problems in his knees post-surgery and did not feel stronger.
On balance, Mr Young submitted there was no medical evidence to challenge the applicant's medical case and submitted the Commission would accept the applicant's version of events, corroborated as it is by Mr Gibbins.
For the respondent, Mr Stockley noted the applicant had never complained of his knee giving way before the left shoulder incident and that such a complaint was not made to the ambulance officers after the incident at issue.
Whilst that may be correct, I note the applicant was clearly in a great deal of distress from his left shoulder and I do not find it surprising that in those circumstances he would be less likely to be complaining about his knee and back at the time the ambulance attended.
The respondent emphasised in its submissions there was no record of the applicant’s left knee being unstable and submitted it was unlikely the applicant would have had the misfortune of both the doctors at Campbelltown Hospital failing to record his knee giving way as a cause of the fall and his own GP not recording it at all.
Mr Stockley noted the clinical entries of the GP referred to "falling from a tree" not to the applicant grabbing a tree or his knee giving way. Rather, the relevant incident was recorded as falling from a tree in the GP clinical records taken by Dr Abi-Henna.
Mr Stockley submitted that the ambulance records, GP clinical history and Campbelltown Hospital notes do not constitute misreporting but rather provide a completely contrary version to that proffered by the applicant. Mr Stockley submitted these objective facts recorded in the clinical histories are totally at odds with the applicant's version of events, which should be dealt with by using significant caution and be rejected. Mr Stockley submitted Mr Gibbins’ version of events was a vain attempt to prop up the applicant's case.

Mr Stockley noted Mr Gibbins indicates that he saw the applicant’s knee give way, but makes no mention of the applicant walking on an embankment or a car proceeding towards him causing him to move up upon that embankment, which details were recorded.
In relation to the history taken by Dr Gothelf, Mr Stockley submitted the doctor was in no better position than the Commission as to the circumstances of the shoulder dislocation, as he was asked to make an assumption regarding the applicant's history, which he appropriately proceeded to do. The respondent submitted the Commission will not accept the applicant and find there was no causal connection between the left knee injury and the left shoulder consequential condition.
In reply, Mr Young noted that each of Dr Ireland, Dr Bazina and the GP had recorded in the months leading up to the left shoulder incident complaints of pain and restriction of movement in the left knee and back. He noted that whilst Dr Berry made an examination of the applicant only several weeks before the incident issue in which the doctor said there were no findings on examination to support issues in the left knee, that finding would not be preferred compared to the clinical history over many months and years of problems. That is a submission which I accept. I do not believe a single finding by one practitioner in the circumstances of this matter is sufficient to overcome the consistent history of longstanding back and knee issues.
Mr Young submitted the applicant and Mr Gibbins’ versions of events were plausible and were supported by the clinical evidence which demonstrated they were motivating each other by going for a walk to try to improve their circumstances. He submitted that to the extent the recording of the ambulance notes conflicts with the version of Mr Gibbins, the latter’s own version should be accepted. He noted, appropriately in my view, that someone writing down a version of events in a call centre is not as reliable a historian as the person who saw the incident at issue.
Moreover, Mr Young submitted, and I accept, that notes to the effect of the applicant "falling from a tree" are not inconsistent with his version of events. He noted the GP entry recording a fall from a tree referred also to a letter from the emergency department and asked the Commission to infer that the GP’s recording of a fall from a tree has in fact has its genesis in those GP records.
Mr Young submitted the applicant has never said he was swinging from a tree or fell from one, rather it was in the ambulance clinical record and has been repeated by third parties at the hospital and general practice.
On balance, I accept Mr Young’s submission. It is important to exercise caution when dealing with histories provided to treating clinicians. Moreover, it is not in my view implausible for the left shoulder incident to be described by a third person as the applicant hurting himself swinging from a tree when his evidence is he grabbed a branch to arrest his fall and this movement causing the injury in question.
The reason for the applicant being in the area where this incident took place is consistent with the earlier clinical records noting his attempts to walk and exercise in order to improve his condition. Mr Gibbins was not cross-examined, however, his version of events as with that of the applicant was plainly challenged by the respondent. Nevertheless, I accept the applicant and Mr Gibbins were in the area for the reasons stated – namely, to go for a walk to assist in their recovery from their respective injuries.
In balance, I am of the view the applicant has discharged the onus of proving a causal connection between the accepted left knee injury and the left shoulder consequential condition.
Having regard to the evidence, both lay and medical, including but not limited to the ambulance and hospital entries, I accept the applicant's version of events as to the mechanism of injury, supported as it is by Mr Gibbins.
When examining questions of causation, it is important to look at all of the lay and medical evidence and provide a commonsense evaluation of the causal chain. The respondent in this matter accepts that if the applicant's version of events is preferred, then there will be a finding of consequential condition.
I find the applicant did his best to answer questions concerning the incident in issue and his explanation of being under the influence of severe painkilling medication at the scene and in hospital is a plausible one for his failure to recall precisely what was said when the ambulance arrived and at the hospital.
To the extent it is suggested the applicant said he was swinging from a tree, I reject that contention. That theory has as its genesis the ambulance service record of the call out to the scene. In that document, it is stated the “patient said he swung on a tree branch”, however, the evidence discloses Mr Gibbins made the call to the ambulance service. In any event even if the applicant had told the officers on scene that he swung on a branch, that is not inherently inconsistent with his version of events that he reached out for a tree branch as he fell, and as he did so his shoulder dislocated. If the version of events in the ambulance notes was supplied by the applicant, it must be taken into consideration he was in severe pain and then under the influence of strong pain killing medication at the scene.
It seems to me the suggestion of the applicant swinging from a tree branch has come from the transcription of the call by an ambulance operator. The rules of evidence do not apply in this instance, however, it is plainly a second-hand account recorded by someone and, as I have already stated is not empirically inconsistent with the applicant and Mr Gibbins’ stated version of events. Caution must be taken in relying on the history contained within clinical records, and I place limited weight on the ambulance notes for this reason, particularly as in my view what is contained within them is not necessarily inconsistent with the applicant’s version of events.

SUMMARY

57. For these reasons, I find the causal connection between the accepted injury and consequential condition proven, and the Commission will therefore make the findings and orders set out on page 1 of the Certificate of Determination.

[2022] NSWPIC 628

10 November 2022