Pen Ultimate for Windows Pty Ltd v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pen Ultimate For Windows Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Anor [2024] NSWPIC 693
APPLICANT:	Pen Ultimate For Windows Pty Limited
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
SECOND RESPONDENT:	Gerard Kohne
SENIOR MEMBER:	Elizabeth Beilby
DATE OF DECISION:	12 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim made in disputing liability to pay a section 145 Statutory Notice; the second respondent suffered an injury within the meaning of sections 4 and 9A; the provisions of section 9B did not apply; Department of Corrective Services v Clifton applied; Held – applicant directed to pay the statutory notice.
DETERMINATIONS MADE:	The Commission determines: 1. The second respondent suffered an injury in the course of his employment within the meaning of s4 and s9A of the Workers Compensation Act 1987. 2. The provisions of s 9B of the Workers Compensation Act 1987 are not engaged. 3. The applicant is directed to pay the s145 Notice dated 8 April 2024.

STATEMENT OF REASONS

INTRODUCTION

Pen Ultimate For Windows Pty Limited (the applicant), employed Mr Gerard Kohne (the second respondent).
Mr Kohne sustained an injury on 21 November 2024 when he fell whilst carrying a bed up stairs, striking his head. A claim for workers compensation was made.
At the relevant time for the purposes of this Application, the applicant did not hold a policy of workers compensation insurance. Accordingly, iCare NSW, on behalf of the Workers Compensation Nominal Insurer (the first respondent), hereafter referred to as the Nominal Insurer, responded to Mr Kohne’s claim and made payments to him for weekly compensation and medical treatment.
The Nominal Insurer has sought reimbursement from the applicant in these proceedings in the total of $18,678.54 by way of notice issued pursuant to s 145(1) of the Workers Compensation Act 1987 (the 1987 Act) on 8 April 2024, on the basis the applicant was the employer liable at all times to pay Mr Kohne workers compensation.
The applicant disputes its liability to pay this reimbursement in the Personal Injury Commission (the Commission) by way of miscellaneous application (the Application) under s 145 of the 1987 Act, seeking orders the amount sought by the insurer was not recoverable.

BACKGROUND

Mr Gerard Kohne was commenced employment with the respondent in 1980.
Unfortunately, in 2012, Sean Howard, one of the owners of the second respondent became ill in Fiji and had to be medevacked to Royal Brisbane Hospital. Mr Howard had consequential injuries arising from that illness which included reliance on other substances, such as alcohol, to alleviate his condition.
In about 2022, Mr Kohne’s position became that of a full-time employee and carer and personal assistant to Mr Sean Howard, through his employment with Pen Ultimate For Windows Pty Limited (the applicant). This included care, transport and support when and where required.
Mr Kohne was injured on 20 November 2023 whilst he was at his employer’s home. Mr Kohne was carrying a bed upstairs with Dani Howard (Sean Howards wife) when he suffered an injury. The facts disclose that something occurred in the process of carrying the bed upstairs to the extent that Mr Kohne was then transported to hospital.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) was employment a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act?
(b) Are the provisions of s 9B of the 1987 Act engaged.

Matters previously notified as disputed

Mr Macken, who appeared on behalf of the applicant, did not dispute that the second respondent was totally incapacitated for work or direct any dispute to the reasonable necessity of received treatment.

PROCEDURE BEFORE THE 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.

LEGISLATION

The relevant legislation is as repeated below.
WORKERS COMPENSATION ACT 1987 - SECT 145
Employer or insurer to reimburse Insurance Fund
(1)     The Nominal Insurer may serve on a person who, in the opinion of the Nominal Insurer, was-
(a) in respect of an injured worker to or in respect of whom a payment has been made by the Nominal Insurer in respect of a claim under this Division, an employer at the relevant time, or
(b) an insurer under this Act of such an employer,
a notice requiring that person, within a period specified in the notice, to reimburse the Insurance Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.
(2)     The Nominal Insurer may, by instrument in writing, waive the liability of an employer under subsection (1) to reimburse the Insurance Fund an amount, if the Nominal Insurer, in respect of the amount, is satisfied that--
(a) the amount is beyond the capacity of the employer to pay,
(b) the employer could not reasonably have been expected to regard himself or herself as an employer at the relevant time,
(c) the employer, not being a corporation, is bankrupt and the liability under this section is not provable in the bankruptcy,
(d) the employer, being a corporation, is being wound up and the liability under this section is not provable in the winding up,
(e) the employer, being a corporation, has been dissolved, or
(f) it would not be commercially feasible for the Nominal Insurer to attempt to recover the amount.
(3)     A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person's liability in respect of the payment concerned.
(4)     The Commission may hear any such application and may--
(a) make such determination in relation to the application, and
(b) make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned,
as the Commission thinks fit.
(4A) The Commission is not authorised to make a determination that waives the liability of an employer under subsection (1) to reimburse the Insurance Fund or that limits or otherwise affects any function of the Nominal Insurer to decide whether or not any such liability should be waived.
(5)     In any proceedings under subsection (4), a certificate executed by the Nominal Insurer and certifying that--
(a) the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and
(b) a person named in the certificate was, in the opinion of the Nominal Insurer, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages,
is (without proof of its execution by the Nominal Insurer) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.
(6)     The Nominal Insurer may recover an amount specified in a notice served under subsection (1) (being a notice in respect of which an application has not been made under subsection (3)) from the person to whom the notice was given as a debt in a court of competent jurisdiction.
(7) An order by the Commission that the Nominal Insurer is to be reimbursed by a person named in the determination concerned may be enforced under section 59 of the Personal Injury Commission Act 2020 .
“WORKERS COMPENSATION ACT 1987 - SECT 4
‘injury’ --
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a
‘disease injury’ , which means--
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.
WORKERS COMPENSATION ACT 1987 - SECT 9A
No compensation payable unless employment substantial contributing factor to injury
(1)     No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note : In the case of a disease injury, the worker's employment must be the main contributing factor. See section 4.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)--
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment,
(e) the worker's state of health before the injury and the existence of any hereditary risks,
(f) the worker's lifestyle and his or her activities outside the workplace.
(3)     A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following--
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment,
(b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.
WORKERS COMPENSATION ACT 1987 - SECT 9B
No compensation for heart attack or stroke unless nature of employment results in significantly greater risk
(1)     No compensation is payable under this Act in respect of an injury that consists of, is caused by, results in or is associated with a heart attack injury or stroke injury unless the nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature.
(2)     In this section—
‘heart attack injury’ means an injury to the heart, or any blood vessel supplying or associated with the heart, that consists of, is caused by, results in or is associated with-
(a) any heart attack, or
(b) any myocardial infarction, or
(c) any myocardial ischaemia, or
(d) any angina, whether unstable or otherwise, or
(e) any fibrillation, whether atrial or ventricular or otherwise, or
(f) any arrhythmia of the heart, or
(g) any tachycardia, whether ventricular, supra ventricular or otherwise, or
(h) any harm or damage to such a blood vessel or to any associated plaque, or
(i) any impairment, disturbance or alteration of blood, or blood circulation, within such a blood vessel, or
(j) any occlusion of such a blood vessel, whether the occlusion is total or partial, or
(k) any rupture of such a blood vessel, including any rupture of an aneurism of such a blood vessel, or
(l) any haemorrhage from such a blood vessel, or
(m) any aortic dissection, or
(n) any consequential physical harm or damage, including harm or damage to the brain, or
(o) any consequential mental harm or damage.
‘stroke injury’ means an injury to the brain, or any of the blood vessels supplying or associated with the brain, that consists of, is caused by, results in or is associated with-
(a) any stroke, or
(b) any cerebral infarction, or
(c) any cerebral ischaemia, or
(d) any rupture of such a blood vessel, including any rupture of an aneurism of such a blood vessel, or
(e) any subarachnoid haemorrhage, or
(f) any haemorrhage from such a blood vessel, or
(g) any harm or damage to such a blood vessel or to any associated plaque, or
(h) any impairment, disturbance or alteration of blood, or blood circulation, within such a blood vessel, or
(i) any occlusion of such a blood vessel, whether the occlusion is total or partial, or
(j) any consequential physical harm or damage, including neurological harm or damage, or
(k)    any consequential mental harm or damage.”

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    A Reply to the Application to Resolve a Dispute, and
(c)    Applications to Admit Late documents dated 3 September 2024, 10 September 2024 and 20 November 2024.
The parties filed submissions in relation to the effect of Department of Corrective Services v Clifton [2006] NSWCCPD 310 as follows:
(a) applicant dated 28 November 2024, and
(b) first and second respondents dated 4 December 2024.
I will now turn to the filed evidence.

Dani Howard

Mrs Howard has prepared a statement dated 20 December 2023.[1] Mrs Howard’s evidence is obviously relevant as she was there at the time when the fall occurred. Mrs Howard discloses that she asked Mr Kohne if he was going to stay that night and if he was then the fold-up bed needed to be moved upstairs to the office.
[1] Reply page 29.
The bed was in the hallway and Mrs Howard and Mr Kohne started to take it upstairs. Mrs Howard was holding the top end of the bed, and she dragged it up the first few steps and Mr Kohne got hold of the bottom and they were getting it up the second set of steps. She observed Mr Kohne bend over to pick up the bed and he just fell over. She says that she doesn’t know why he just collapsed.
When Mrs Howard went to see if Mr Kohne was ok, she observed him sitting on the landing and she felt his head and couldn’t find anything wrong. She assisted him to a bathroom as Mr Kohne was feeling sick and sweating profusely.
She then went back to check on him and he was standing up and sweating so she told him to take his shirt and trousers off and get a wet cloth and wiped him down. Mrs Howard had concern about Mr Kohne’s cognitive state and after asking him straightforward questions she observed him to be confused and upset. She then called for an ambulance.
Mr Kohne was then transported by ambulance to hospital.
Mrs Howard says that she noticed that Mr Kohne had been falling over a lot, he would come into work and had marks on his head, and she would ask him what had happened. She recalls at Edgecliff something had hit him on the head and it had opened his scalp up and he had gone to the doctors, and they glued his scalp down.
She recalls that on another occasion Mr Kohne came to work after he had smashed his thumb, and she had fixed it up for him. She also recalls Mr Kohne coming to work and telling her when using a chainsaw he lost his balance, running down the hill and then landing headfirst into a drainage ditch.

Gerard Kohne

Mr Kohne has provided a statement dated 16 December 2023.[2] Mr Kohne clearly outlines his previous employment together with his medical history in that statement. So far as his medical history is concerned, there is nothing disclosed to indicate that there was any pre-existing condition that is relevant to this dispute.
[2] Reply page 12.
Mr Kohne explains that on 20 November 2023 he was performing his duties as a carer when he returned to Mr Howard’s home at North Turramurra. Mr Howard was unable to get out of the car at that stage and his wife Dani Howard assisted him into the house.
Mr Kohne says that Dani Howard asked him to assist with getting a fold-up bed upstairs which as the facts disclosed, he agreed to do.
Mr Kohne says that when the bed was being taken upstairs something occurred with the result that his next recollection was waking up in Royal North Shore Hospital with no recollection as to what had occurred. Mr Kohne was discharged from hospital on Tuesday, 12 December 2023 after having been transferred to Wyong Hospital.
Mr Kohne was prepared a second statement of 6 August 2024.[3] In that statement Mr Kohne addresses his pre-injury medical circumstance.
[3] Application to Admit Late Documents dated 3 September 2024, page 1.
Mr Kohne states that he has never signed a syncope (blackout) before the relevant event on 21 November 2023. He does disclose however that he did have other various medical conditions which included gastroesophageal reflux disease (GORD), depression, obsessive compulsive disorder (OCD) and attention deficit disorder (ADD), diabetes, hypertension, hypercholesterolaemia, psoriasis, gastroparesis, obstructive sleep apnoea and Sjogren’s disease.
Mr Kohne addresses the allegations of prior falls directly in this statement. He rejects the allegation that he fell over a lot causing marks on his head.
He refers to the incident where his head was split open, this occurred on 5 October 2022. At that time, he was moving things from one room to another room in the house. Forward and side panels from a couple of disassembled bookcases were stacked up beside another tall bookshelf. Mr Kohne assumed these panels were secured and when he moved a box they suddenly fell and hit him on the head tearing some skin. He did not lose consciousness.
In relation to the incident with the chainsaw, this occurred on 2 October 2017. Mr Kohne explains it was bushfire season and he was at home undertaking some outdoor maintenance. He was walking down a slope, and his feet became caught in weeds, and he tripped over down the hill and hit his head. Once again, he did not lose consciousness.
It should be observed that Mr Kohne’s history in relation to this is consistent with a clinical entry in notes from St Vincent’s Hospital dated 5 October 2022.[4]
[4] Application to Admit Late Documents dated 3 September 2024, page 14.
Mr Kohne also refers to a period when the Howards were moving from Edgecliff to North Turramurra. He outlines all the heavy work that he was required to do to assist in the move which included packing and cleaning the garage, organising cleaners and coordinating cleaners, assisting with packing things in the trailer and van and carrying a number of heavy boxes downstairs. He then assisted with unpacking at Turramurra, carrying various boxes and items. Mr Kohne also describes assisting with a painting project which included some heavy work which is disclosed in the statement.
Mr Kohne then describes the day of his fall on Monday 20 November when he drove some 284 kilometres without any difficulty.
Mr Kohne explains that he was able to do all these jobs without any fainting episodes at all.
I accept Mr Kohnes evidence in relation to these issues. He is on the best position to be able to describe what has occurred so far as previous injuries and what caused them.

Mr Kohne also outlines his current disabilities and impairments which seem to be quite pervasive however as incapacity is not in dispute in this matter, I do not need to outline what is said in his statement.

Jenny Kohne

Ms Kohne is the wife of Gerard Kohne and has provided an account of events leading up to her husband’s accident.[5] The account appears to be in a typed note form and does not assist with particulars of before the relevant fall on the staircase and the circumstances of Mr Howard’s health.
[5] Reply page 55.
Ms Kohne refers to a conversation she had with Dani Howard who said that she was carrying the fold-up bed up the stairs with Gerard Kohne, and they were talking, the next minute Mr Kohne falling backwards on the staircase landing with Mr Kohne’s head on the landing floor.

Sean Howard

Sean Howard has prepared a statement dated 20 December 2023[6]. The statement outlines the circumstances of his employment but does not provide any assistance in relation to what occurred in the relevant fall.

MEDICAL EVIDENCE

[6] Reply page 24.

Dr David Williams (neurologist)

Dr Williams has prepared a report dated 9 July 2024.[7] Dr Williams understood that the relevant event occurred on 21 November 2023 when Mr Kohne was assisting Mrs Howard in moving a fold-up bed upstairs. He understood whilst helping to move the bed upstairs, Mr Kohne fell and struck his head and was then taken by ambulance to Hornsby Hospital. The hospital notes indicated that Mr Kohne had a syncopal episode and collapsed suddenly while moving furniture upstairs.
[7] Application to Admit Late Documents dated 3 September 2024, page 15.
Dr Williams referred to a letter dated 10 January 2024 from Dr Huang, neurosurgery registrar. Dr Huang described Mr Kohne as suffering a syncopal episode with a head strike causing a mild head injury. His CT brain injury had demonstrated a bilateral shallow acute subdural haematomas with traumatic subarachnoid haemorrhage, a left temporal occipital bone fracture.
Dr David Williams also had an assessment letter from Dr Maged Williams, cardiologist who had written a letter dated 20 February 2019. In that correspondence, Dr Maged Williams identified multiple cardiovascular risk factors and evidence of a 40% stenosis of his left anterior descending coronary artery. He recommended pharmacotherapy and lifestyle modifications.
In a follow-up letter dated 3 March 2020, Dr Maged Williams continued the then current management. In a further correspondence Dr Maged William said that Mr Kohne had passed a stress echocardiogram without any problem and the current management was to continue. Ongoing treatment was carried out by Dr Maged Williams, and it is indicated that there was no record of any significant ongoing cardio rhythm disturbance.
Dr Williams also had a report from Dr M Parkinson, cardiologist dated 24 January 2024. Dr Parkinson had concluded that Mr Kohne had a fall which may have been due to syncope, but there was no evidence of cardiac arrythmia or pauses following investigation.
In the examination, Dr Williams asked Mr Kohne to demonstrate how he would go about lifting a piece of heavy furniture. Dr Williams observed that Mr Kohne did so by taking a large breath and holding it while he exerted physical effort (known as a Valsalva manoeuvre). Mr Kohne appeared to be unaware that he was performing this action.
Dr Williams opined that Mr Kohne had an episode of syncope due to a combination of underlying autonomic dysfunction associated with his Type 2 diabetes mellitus (T2DM) and an “unconscious” Valsalva manoeuvre in the act of lifting the bed. The syncope then caused him to fall and suffer a traumatic brain injury.
Dr Williams explained that the second respondent was a diabetic and had probably undiagnosed cardiovascular autonomic neuropathy affecting his cardiovascular function which occurred in the context of Mr Kohne performing an unconscious Valsalva manoeuvre prior to the next step in moving the bed up the stairs.
Dr Williams explains that the Valsalva manoeuvre which occurs when someone takes a longer than normal breath and then forcefully attempting to breathe out against strong resistance or undertaking other forceful muscular exertion can cause a sudden rise in blood pressure at the same time as a venous return to the heart is blocked. This may signal the heart has slowed its rate. When the person next breathes the venous returns to the heart is restored, tending to lower the blood pressure, and these signals of the vagus nerve return to normal. Even in a normal individual, this manoeuvre can cause a feeling of faintness, and in extreme cases, syncope.
In conclusion, Dr Williams clearly articulates his opinion to explain the fall in terms of Mr Kohne having abnormal cardiovascular response as a result of being a diabetic and being at higher risk of syncope due to the Valsalva manoeuvre. Dr Williams observes that Mr Kohne’s notable sweating following the syncope is consistent with a catecholamine response to a significant fall in blood pressure. He stated that Mr Kohne syncopal episode was triggered by a specific task, which is moving a bed upstairs which is in the course of his employment.

Dr Mark Herman (cardiologist)

Dr Herman has produced a report dated 17 July 2024.[8]
[8] Application to Admit Late Documents dated 3 September 2024, page 29.
Dr Herman understood that the second respondent had multiple cardiac risk factors including hypertension, type 2 diabetes and dyslipidaemia. Dr Herman opined that the syncope was non-cardiac in nature as Mr Kohne had a structurally normal heart, the absence of coronary artery disease and a normal ECG and normal loop recording. That is, there was no suggestion of underlying cardiac arrythmia on subsequent evaluation of the circumstances of the fall. Dr Herman did comment that it was possible that Mr Kohne had a hypotensive (low blood pressure) episode while stooping forward, this would not be uncommon in a 65-year old diabetic gentleman on anti-hypertensive therapy.
Dr Herman was asked to assume that if the second respondent did suffer a primary syncope, he was asked what would be the trigger for the syncope. Dr Herman opined that the trigger would be orthostatic hypertension in response to stooping forward in a 65-year old diabetic gentleman on anti-hypertensive therapy.
Dr Herman has prepared a second report dated 2 September 2024.[9] In that report Dr Herman was asked to consider the provisions of s 9B of the 1987 Act. Dr Herman opined that he did not feel that Mr Kohne suffered a heart attack falling within the provisions of s 9B of the 1987 Act. Specifically, there was no permanent injury to the heart, or any other blood vessels supplying or associated with the heart, but rather transient loss of blood pressure provoking the syncope.
[9] Application to Admit Late Documents dated 3 September 2024, page 38.

Associate Professor John England (cardiologist)

A/Prof John England has prepared a report dated 16 August 2024.[10]
[10] Application to Admit Late Documents dated 10 September 2024, page 1.
A/Prof England took a history consistent with that of the applicant’s evidence and that of Mrs Howard to the extent that Mr Kohne suffered a fall when carrying a bed upstairs and lost consciousness at that time.
A/Prof England took some time looking through the provided clinical material. He concluded that there was no definite evidence of a heart attack injury as outlined in s 9B of the 1987 Act. A/Prof England referred to the clinical notes of Mr Maged William and also Dr Michael Parkinson in his report.
A/Prof England explained that he considered the possibility of a syncopal fall due to either a cardiac arrythmia or a drop in blood pressure or a drop in blood sugar, but he could find no evidence of any definite cause for the fall which could have added to the syncope. He opined that as there was no definite evidence and it was possible that it was simply an accident on the stairs. A/Prof England thought it was relevant that prior to the fall, on 17 July 2023 Dr Parkinson had performed a stress echo for over 9 minutes which was extremely normal with no evidence to suggest any cardiac arrythmia or syncope.
A/Prof England formed the view that the worker’s physical exertion did not give rise to a significantly greater risk of a heart attack or stroke injury consistent within the wording of s 9B. In forming this view, he took into account previous falls at Edgecliff and that his blood pressure had always been border to high rather than low and that the ECG at that time was stable.
A/Prof England has prepared a second report dated 5 September 2024.[11] A/Prof England provides commentary on the meaning of syncope which relates to passing out or fainting in which a person may lose consciousness and lose muscle power. He observes that often the term syncope and fall are used interchangeably by junior hospital medical officers. A/Prof England describes that with a true syncope with a cardiovascular basis there are features of vasovagal syncope with a slowing of the pulse and a drop in blood pressure. There is usually a warning aura and symptoms before a fall such as a feeling of light-headedness, dizziness, sweating, nausea and visual flashes.
[11] Application to Admit Late Documents dated 10 September 2024, page 7.
A/Prof England forms the view that the fall was due to misadventure on the stairs and going backwards and not being able to see or feel where his feet were on the stairs, and he fell backwards and hit his head without any preceding cardiovascular trigger. A/Prof England relies upon Dr Parkinson finding no predisposition to syncope in thorough testing just before the incident.

Dr Ron Granot (neurologist and neurophysiologist)

Dr Granot has written a report dated 1 July 2024 to the second respondent’s general practitioner, Dr Mateo.[12]
[12] Application to Admit Late Documents dated 3 September 2024, page 79.
The second respondent was referred to Dr Granot in respect of his traumatic brain injury. Dr Granot understood that the second respondent fell whilst helping with a bed. Dr Granot understood that the circumstances of the fall were unclear, he thought that a primary neurological cause merited excluding and suggested an EEG in that regard. He also suggested an MRI of the brain to gauge the degree of change since the injury.

SUBMISSIONS CONSIDERED

It is important to point out who holds regarding the onus of proof in these cases. The applicant employer in these cases bears the onus of proof as well established by authorities such as A1 Granny Flats v Workers Compensation Nominal Insurer.[13]
[13] A1 Granny Flats v Workers Compensation Nominal Insurer (icare) [2023] NSWPICPD 69.
The applicant in these proceedings raises concerns about the payment of compensation to the second respondent on the basis of s 9A and s 9B. I understand that s 4 is not raised however my findings in relation to s 9A are relevant to s 4 in any event,
In respect of the capacity of Mr Kohne, it was conceded by the applicant that the present certification indicates there is no capacity for work and as such that wasn’t an issue. The effect of this is that no part of the Statutory Notice is challenged separately, that is if the applicant succeeds it will pay no part of the Notice, if the applicant is unsuccessful, it will pay all the Notice.
The applicant submitted that what is required in a case such as this is to establish injury it is necessary to determine the pathology that results from it. It was submitted that the syncopal episode itself had nothing to do with employment or the activity engaged in at the relevant time. That is, there is an incident without pathology resulting from it.
In relation to the opinion of Dr Williams, so far as the second respondent was engaged in a Valsalva manoeuvre in the context of physical exertion, the applicant submits that is mere speculation in relation to what occurred at that time.
The applicant submitted that what occurred was simply an incident in the course of employment with no pathology resulting from it. That is, if he suffered a syncopal episode then that stands by itself and is unrelated to his employment and as such the provisions of s 9A of the 1987 Act are not met on the basis that there was no substantial contributing factor to the injury from employment.
In relation to the report of Dr Herman, the applicant concedes that there is a rather comprehensive history with no suggestion underlying cardiac arrhythmic or pathology. Dr Herman had said that there was no suggestion of underlying cardiac arrhythmia at the time of event or on subsequent evaluation, essentially, his opinion being the syncopal episode at work was non-cardiac in nature. It was possibly due to a hypertensive low blood pressure episode whilst stooping forward which is not uncommon in a 65-year old diabetic gentleman on anti-hypertensive therapy. It is then submitted on that basis that s 9A once again is not met on the basis that employment was not a substantial contributing factor to the injury.
The applicant referred to a subsequent episode on 25 March 2024 which is contained in the treating hospital notes at page 32. What is said at that stage was the patient was sitting in a chair in the living room and noticing the onset of dizziness and unsteadiness of his feet at approximately 9am when getting out of bed.
The difficulty with the submission that there was no medical opinion as to the basis of that symptomatology, whether it arises from the accepted head injury the second respondent has suffered or if it something entirely different.
In essence, the applicant’s submissions were that it concedes that Mr Kohne struck his head while falling down the stairs, but this is not an injury that is compensable.
One submission that was raised by the applicant is that there was no identifiable pathology. I reject this submission, the obvious answer is that there is indeed pathology, and that is an accepted head injury requiring hospitalisation and treatment.
The first respondent submitted that there was no evidence presented by the applicant employer that supports the submissions made by Mr Macken, particularly relating to the substantial contributing factor argument.
The first respondent conceded that there is no issue that the second respondent had existing medical issues and indeed some cardiovascular issues which predated the incident in November 2023. Indeed, the treating cardiologist, Dr William’s notes have been obtained which go back to 2019. Those notes outline a stress ECG carried out in 2019 and 2020 and then in July 2023. The results of those investigations are all normal as are the regular check-ups.
The first respondent referred to the claim form[14] dated 29 November 2023 which is completed relatively shortly after the subject incident occurs. The claim form confirms the date of injury and time of injury. The description in the form indicates a brain injury which occurs during the time of the second respondent’s employment with the applicant in these proceedings.
[14] Reply page 14.
The submission was made that the second respondent has experienced these types of episodes in the past is something that needs to be considered. The second respondent has provided a thorough statement which says that he has never suffered from similar issues in the past. He directly addresses the history provided by Mrs Howard in respect of the chainsaw incident and the cut to the head which appear to me to be incidents that have occurred in the absence of any syncopal episode at all.
The first respondent referred to the evidence of Mrs Howard who is the only person that has a recollection of any of the relevant events and submits that what her evidence confirms is that the second respondent was holding the bottom of the bed as they were getting ready to get up the next steps. The second respondent bent over and fell, and Mrs Howard did not understand why he fell. What is obvious from her evidence is that the fall occurred in the context of moving a bed upstairs when Mr Kohne leaned forward.
It was submitted that the medical evidence also demonstrates that the second respondent did not experience any cardiac arrhythmia or problems with his heart that may explain the cause of the fall or the episode as it has been described. Dr Williams has investigated that.
So far as substantial contributing factor is concerned, the first respondent refers to the evidence of Dr Williams who says that the syncopal episode was triggered by the specific task of moving the bed up the stairs in the course of his employment and the subsequent traumatic injury was a consequence of that syncopal episode. Therefore, employment is a substantial contributing factor to is syncope and a traumatic brain injury.
The first respondent said that for slightly different reasons, the same conclusion was reiterated by Dr Herman who talks about stooping over and lifting the bed which caused an aggravation of an underlying orthostatic hypertension with a diabetic background. That is, had he not been lifting the bed he may not have sustained the fall and the head injury subsequent, therefore employment was a substantial contributing factor.
The first respondent referred to the opinion of A/Prof England who has a slightly different view and comes to the conclusion that it was more of a misadventure, a fall down the stairs rather than any episode in any way. If that is the case, then the misadventure has occurred when he was carrying the bed up the stairs and in the process of doing so, he has tripped over his feet or a like event. In those circumstances, the A/Prof’s view leads to a conclusion that employment is a substantial contributing factor to the injury.
The first respondent concluded that there are three medico-legal opinions which all come to the same conclusion and that is that employment was a substantial or main contributing factor to the injury.
The second respondent endorsed the first respondent’s submissions.
The first respondent and the second respondent relied on the authority of Department of Corrective Services v Clifton.[15] The circumstances in Clifton concern an injury where Mr Clifton suffered a coughing fit and as a result blacked out and fell to the ground. He sustained a fracture to the right femur. The claim was disputed on the basis of s 9A of the 1987 Act.
[15] Department of Corrective Services v Clifton [2006] NSWCCPD 310.
In Clifton, Deputy President Roche found that there were three main factors that contributed to Mr Clifton’s injury. They were the coughing fit which caused him to black out, the fall from a standing position and coming into contact with a concrete floor. Deputy President Roche described the first factor, which is the coughing fit and the blacking out were clearly unrelated to his employment. The second and third factors were directly relevant in causing the injury. Whilst the concrete floor could not be said to something that was peculiar to Mr Clifton’s workplace, it was a feature of his workplace with which he came into contact while doing something that was incidental to his work injuries, that is walking to his desk. It was on this basis that Deputy President Roche found that employment was a substantial contributing factor to the injury.
The applicant submitted that the decision of Clifton is distinguishable from the present situation in this dispute. In the matter of Clifton it was said that there was no evidence to suggest that the fall was likely to have happened in any event whereas in the present matter there is such evidence. The applicant relies on submissions made at the arbitration in respect of what is noted in ambulance records[16] “patient is also sweating experiencing what is described as similar episodes of today’s presentation, the frequency and severity of which have been increasing over the last 12 months”. It was therefore said by the applicant that the facts and circumstances in this case stand in marked contrast to those that were being considered in Department of Corrective Services and Clifton.
[16] Application to Admit Late Documents dated 20 November 2024, page 15.

In relation to the entries relied on by the applicant, the observations in the New South Wales Ambulance records on the day of the subject injury, I am reminded by authorities such as Mason v Demasi[17] that treating practitioners are not necessarily concerned with the causation of the condition, rather they are seeking to treat the condition in order to alleviate or eliminate symptoms. It is difficult for me to rely on such evidence without caution as counselled in Mason.
[17] Mason v Demasi [2009] NSWCA 227.
The ambulance records, in circumstances where the second respondent has suffered a traumatic brain injury, are records to which I do not wish to give significant weight in the circumstances of the second respondent having sustained a head injury in a short period of time before
I reject this submission as there is no medical evidence to support it. To be clear, there is no medical evidence of any weight that I can rely upon to establish that a fall was likely to have happened in any event.
Having considered Clifton in the circumstances of this case, it is quite clear that Mr Kohne has suffered both a fall from a standing position and has come into contact with the floor or stair edge causing a brain injury. The fall occurred in a time when he was clearly carrying out his workplace duties assisting carrying a bed upstairs.
On that basis alone the applicant’s case must be rejected based on Clifton.
In the circumstances of this case, the ‘first factor’ does not need to be resolved, what is clear is that the second respondent either was bending over in the circumstances of his employment to lift up something which caused a blackout, or another reason caused the blackout.
Dr Williams opinion was that the second respondent was a diabetic and had probably undiagnosed cardiovascular autonomic neuropathy affecting his cardiovascular function which occurred in the context of Mr Kohne performing an unconscious Valsalva manoeuvre prior to the next step in moving the bed up the stairs.
If Dr Williams opinion is accepted that the manoeuvre, performed whilst executing moving a bed upstairs was causative of the fall against a background of other health conditions. This satisfies s9A of the 1987 Act to the extent that employment, which is the act of lifting the bed, was a substantial contributing factor to the injury.
Dr Herman’s opinion was that the second respondent had orthostatic hypertension in response to stooping forward in a 65-year old diabetic gentleman on anti-hypertensive therapy. The stooping over was in an effort to lift the bed, once again leading to a finding that employment was a substantial contributing factor to the injury.
A/P England also considered all the clinical material before him and formed an opinion that it was most likely a case of misadventure causing the fall. Once again, in those circumstances it is misadventure in carrying a bed and as such leads to a fining that employment was a substantial contributing factor to the injury.
The basis of the medical opinion all supports a finding against the applicant and as such it has not discharged the onus of proof it wears. The applicant has denied the claim on the basis of s 9A(d) and s 9A (e). For reasons that are apparent in the body of this decision, this is rejected.
The applicant also made submissions to the effect that the provisions of s 9B of the 1987 Act are engaged. There is no medical evidence before me that establishes such as submission. A/P England and Dr Herman have both closely considered this issue and firmly rejected it. I find their medical opinion persuasive on this issue.

[2024] NSWPIC 693

12 December 2024