Petrovic v Aldi Stores

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Petrovic v Aldi Stores [2025] NSWPIC 51
APPLICANT:	Ljubinka Petrovic
RESPONDENT:	Aldi Stores
MEMBER:	Cameron Burge
DATE OF DECISION:	18 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; permanent impairment claim; certain body systems accepted while others in dispute; the applicant suffered accepted right knee injury and a consequential sleep apnoea condition as a result of a fall in the course of her employment; applicant also claims injury to the right hip, right ankle and lumbar spine; the respondent disputes liability with respect to those body systems; Held – the applicant suffered injury to her lumbar spine in the fall at issue; the applicant complained of lumbar symptoms only some weeks after the fall at issue and contemporaneous radiology shows the presence of pathological change to the lumbar spine at that time; such evidence is persuasive and discharges the onus of proof; the applicant suffered right ankle injury in the fall at issue; on the balance of probabilities and taking into account the mechanism of the fall and competing medical evidence the Commission is satisfied on a commonsense basis that there was injury to the right ankle; the applicant offers no medical evidence which substantively links her right hip problems to the injury at issue; her IME assesses 3% whole person impairment (WPI) for this body system however the body of the report contains no substantive reason why the right hip issues relate to the injury; the applicant has not discharged her onus of proof in relation to this body system; the right knee, right ankle, lumbar spine, and consequential respiratory condition are remitted to the President for referral to a Medical Assessor; award for the respondent in relation to the right hip.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to her right lower extremity (ankle and knee), lumbar spine and respiratory system (consequential condition) in the course of her employment with the respondent on 6 August 2019. 2. Award for the respondent in relation to the claim for injury to the right lower extremity (hip). 3. The matter is remitted to the President for referral to a Medical Assessor to assess the permanent impairment arising from the following: Date of injury: 6 August 2019. Body systems referred: right lower extremity (ankle and knee), lumbar spine and respiratory system (sleep apnoea). Method of assessment: whole person impairment. 4. The documents to be referred to the Medical Assessor to assist with the determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments, and (c) Reply and attachments. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Ljubinka Petrovic suffered an injury in the course of her employment with the respondent, Aldi Stores Limited on 6 August 2019.
On that date, the applicant was lifting a cabinet from a shopping trolley when her foot became caught in the trolley, causing her to fall to the floor. The applicant's foot was stuck, and her leg was pulled by the trolley.
The injurious event is not in issue. The respondent accepts liability for the applicant’s right knee injury and for a consequential sleep disorder. There is no question those body systems will be the subject of a referral to a Medical Assessor.
The respondent denies liability with respect to the claimed injuries to the right lower extremity (hip and ankle) and lumbar spine, on the basis these body systems were neither injured in the incident issue nor the subject of consequential conditions which arose as a result of the applicant's injury.

ISSUE FOR DETERMINATION

The parties agree that the only issue for determination is whether the applicant suffered an injury and/or consequential condition to the right hip, right ankle and/or lumbar spine.

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 13 February 2025. Mr Necovski of counsel instructed by Mr Bell appeared for the applicant. Mr Stockley instructed by Ms Horne 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
(b) Reply.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered injury to the disputed body systems

Before embarking on an analysis of the separate body systems, it is appropriate to briefly set out the principles relating to questions of injury in the workers compensation context.
The applicant alleges her injury was caused by a frank incident. There is no question the alleged incident took place or that the event could be described as injurious. The question for determination is whether the body systems in dispute were injured in that incident, or whether a consequential condition to those body systems developed as a result of the injurious event.
Injury is relevantly defined in s 4 of the Workers Compensation Act 1987 (the 1987 Act) as follows:
“In this Act: injury means
(a) Personal injury arising out of or in the course of employment”
In this instance, there is no suggestion any of the alleged injuries are in the nature of a disease or aggravation to a disease.
The applicant carries the onus of proving she suffered an injury to the allegedly affected body systems. There is a useful review of the authorities concerning the question of injury in Castro v State Transit Authority (NSW) [2000] NSWCC 12 (Castro). That case makes clear what is required to constitute “injury” is a “sudden or identifiable pathological change.” In Castro, a temporary physiological change in the body's functioning by way of atrial fibrillation – irregular rhythm of the heart, without pathological change, did not constitute an injury.
Consistent with Castro, the decision in Trustees of the Society of St Vincent De Paul (NSW) v Maxwell James Kear as administrator of the Estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear) added:
“In any event, the authorities did not support the proposition that, on its own, an elevation in blood pressure is a personal injury. That is because, without more, it is not a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. It is no more than a temporary physiological change in the body's functioning, similar to the atrial fibrillation that occurred in Castro, without any accompanying lesion or pathological change.”
The applicant's evidence in relation to the circumstances of her injury is undisputed. In her statement, she said:
“11 On 6 August 2019, I started my shift at 6:00 am. The accident occurred at about 11:50 am. I was due to finish my shift at 12:00 pm. I was lifting a cabinet from a shopping trolley with my manager, Lisa King. The cabinet was for storing the displaying shoes. It was very heavy. Lisa and I were moving the cabinet from the trolley to put it on the floor. I was on one side of the trolley and Lisa was on the other side. We picked up the cabinet. The trolley started to move. I put my foot on the trolley to try and stop it from moving. The trolley moved and my foot got stuck. The trolley pulled my leg. I fell down on the floor. I heard something crack in my right knee. I felt big pain in my right knee and my low back. I had never had such pain in my knee and back before. Lisa helped me up. I tried to walk to the lunchroom very slowly. I sat in a chair in the lunchroom for a while. I then made my way slowly to my car to drive home. I didn't feel safe on my leg. I didn't feel safe driving. I almost had an accident. I felt like my leg would collapse. I had pain in the knee, ankle and hip.”
The respondent submitted the applicant has not discharged the onus of proving the disputed body systems were injured as alleged. In particular, the respondent notes a lack of complaint surrounding the body systems in issue at or around the time of the alleged injury.
Mr Stockley noted that despite the injury occurring on 6 August 2019, no complaint was made in relation to the applicant’s lower back until 13 September 2019. Up until that point, the applicant’s complaints as reflected in the clinical notes of her general practitioner (GP) related to her right knee.
It is axiomatic to note the authorities make it clear care must be taken in relying on histories contained within the clinical records of treating practitioners as evidence of lack of complaint. Nevertheless, the material in this matter discloses that the applicant visited her GP Dr Shah on 6 August 2019, 8 August 2019, 13 August 2019 and 6 September 2019 without reference to any body system other than the right knee. The clinical entry of 13 September 2019 noted as follows:
“LBP
Since fall
L/S spine CT,
Having physio
R/V after CT scan
Actions:
Diagnostic imaging requested: L/S spine CT scan.”
The applicant returned to see Dr Shah on 19 September 2019, at which time a small disc bulge on her lumbar spine was diagnosed and the GP recommended physiotherapy for it and her right knee.
Notwithstanding the respondent’s submissions regarding delay in lumbar symptoms being reported, in my view the period of only five weeks between a plainly severe injury at work and the reporting of lumbar spine pain which was described as having been present since the injury is not excessive.
Additionally, it is perfectly feasible that Dr Shah's focus was on the applicant’s right knee, which was the area of concern causing her the most difficulty. Whilst it is the case the GP’s records do not record immediate complaint of lumbar spine symptoms, the clinical injury of 13 September 2019 does record the applicant is stating that symptoms had been present since the fall at issue.
This being so, I do not believe the suggestion of lumbar spine pain can be said to be a recent invention on the part of the applicant and I accept her complaints that it arose in the immediate aftermath of the accident, albeit overshadowed by her right knee problems. Additionally, the presence of a disc protrusion shortly after the fall is also consistent with it having caused the applicant’s difficulties and, in my view, provides radiological support for a finding of lumbar spine injury in the forward issue.
It should also be noted that even if the respondent’s submission regarding lack of complaint in relation to the lumbar spine was accepted, the absence of complaint to a treating practitioner is not itself the sole factor in determining whether an applicant has suffered a psychological injury. In Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD56, a case concerning an alleged psychological injury, Deputy President Roche said:
“80. It was correct that Mr Baker did not complain to his general practitioner of bullying until 26 September 2013. However, that fact was not determinative of whether Mr Baker suffered a psychological injury as a result of events that were up to and including that date. The lack of complaint to a general practitioner is a factor an Arbitrator is entitled to take into account in considering whether to accept a worker’s assertion that certain events occurred and that they affected the worker in a certain way.
81.    However, on its own, the absence of such a complaint to Mr Baker’s general practitioner until 26 September 2013 was not decisive of whether the events complained of caused a psychological injury and the arbitrator erred in treating it as if it was. That is especially so in circumstances where there is evidence not referred to by the Arbitrator, that Mr Baker had complained to the respondent’s representatives of bullying and harassment from as early as July 2012.
82.    Whether Mr Baker suffered a psychological injury as a result of the events at work up to 26 September 2013 depended on an assessment of all the evidence. This included the evidence of the co-workers that there were significant issues between them and Mr Baker that created conflicts at work, … and the evidence from Dr Stevens. In the circumstances, it was not appropriate to conclude that Mr Baker suffered no injury solely because he did not complain of bullying to a general practitioner until 26 September 2013.
83.    The Arbitrator’s conclusion, on this issue, really amounts to a finding that he did not accept Mr Baker suffered a psychological injury because there was no corroboration of his complaints, from a general practitioner, until 26 September 2013. There is no requirement for corroboration in a civil case (Chanaa v Zarour [2011] NSWCA199 at [86]) and, to the extent that the Arbitrator thought that such corroboration was necessary, he erred.
84.    Moreover, as Beazley JA (as her Honour then was) (Campbell and Macfarlan JJA agreeing) explained in Patrech v State of New South Wales [2009] NSWCA118 at [77], [91] and [105], it is unlikely that it is necessary (or even a relevant consideration) that a person must identify themselves as psychologically ill (that is, to have understood or believed his or her symptoms to constitute a mental illness) to find a psychological illness. The true question is whether the person was suffering symptoms, which properly diagnosed, constitute an illness.”
In the circumstances of this matter, I do not regard the lack of recording of complaints regarding the lumbar spine for a period of approximately six weeks as fatal to the applicant’s claim of injury to that body system. On balance, I am of the view the totality of the evidence supports a finding of injury to the lumbar spine, and this body system will therefore be referred for assessment.
In relation to the right hip, the first substantive reference to any issues with it is contained in the report of treating orthopaedic surgeon Dr Herald dated 30 November 2020. On that occasion, Dr Herald recorded the following findings on examination:
“On examination, she has stiffness of her lumbar spine with restricted range of motion of only about 10 to 15 degrees of lateral flexion to the right and has a fixed flexion deformity at her hip. She is unable to reach extension. She walks with a limp.”
The alleged right hip problem is pleaded as both a consequential condition and an injury. Mr Stockley pointed out there was a large effluxion of time between the injury in August 2019 and the first reporting of hip discomfort recorded in November 2020.
While this is plainly the case, it does not of itself mean the right hip was neither injured nor a condition consequent upon the injury at issue.
There is no question the applicant suffers from right hip symptoms. They have been demonstrated as long ago as November 2020 by treating surgeon Dr Herald and also were found by Independent Medical Examiner (IME) Dr Dixon who examined the applicant before providing a report on 1 May 2024. In that report, Dr Dixon noted:
“The Trendelenburg test was positive on the right and negative on the left and she indicated that while walking with a limp on the right that there was pain at the trochanteric region of her right hip.
Hip flexion today was 100 degrees on the right with external rotation 20 degrees, internal rotation 20 degrees, abduction 30 degrees, adduction 20 degrees and no flexion contracture.
She had a full range of motion of her left hip.”
Neither Dr Herald nor Dr Nair as treating surgeons refer to the applicant's right hip in the context of any symptomology being caused or contributed to by the injury at issue. Dr Dave, treating surgeon who provided a series of reports from August 2019 does not record any hip symptoms, let alone attribute them to the injury at issue.
The applicant underwent an MRI of her hip on 18 August 2023, which demonstrated pathology in the nature of a lump at the femoral head anteriorly at the head neck junction together with a cyst and fluid in the trochanteric bursa.
The difficulty for the applicant in relation to her right hip claim is that although there is no record of prior complaint before the injury at issue, none of her treating or IME evidence directly links her hip problems to the injury at issue. Indeed, Dr Dixon who took a detailed history and record of body systems which he opined were affected by the injurious event made no substantive mention of the hip in the body of his report despite assessing a 3% whole person impairment of it. Whilst one can infer from the provision of an impairment assessment that Dr Dixon is of the view the hip was injured in the injurious event, or issues with it arose as a consequence thereof, he provides no substantive reason as to why this is the case.
Although Dr Dixon recorded findings, when asked to provide a summary of injuries and diagnoses, he only recorded injuries to the right knee, lumbar spine, right ankle and hind foot. That is, as Mr Stockley pointed out, although the symptoms have developed in the applicant's right hip over time since her injury, there is no medical evidence which supports a causal link between the injurious event and the onset of the hip symptoms.
As with all matters of causation in the workers compensation context, one is required to examine the totality of the evidence on a common-sense basis. I have no difficulty accepting the applicant's evidence as to the onset of her symptoms and find that she is a witness of truth. However, absent medical evidence which supports a causal link between symptoms in an allegedly affected body part and an injurious event, whether that link is by way of consequential condition, frank injury or injury in the nature of a disease process; on balance I am unable to find the applicant has discharged her onus of proof with respect to the alleged right hip injury or consequential condition.
Although there is undoubtedly right hip pathology present from 2023, there is no evidence that pathology was brought about by the injury at issue. Insofar as the right hip is said to be in the alternative a consequential condition, there is still a lack of evidence which supports any such finding.
In my view, the applicant has not discharged the onus of proof with respect to the right hip, and accordingly, there will be an award for the respondent in relation to this claimed body system.
In relation to the right ankle, however, there is medical opinion which supports a finding of a causal link between the fall at issue and the right ankle problems. In his report, Dr Dixon notes the pain and stiffness present in the right ankle but relevantly says the findings on examination and found in the MRI of the applicant’s right ankle are consistent with the mechanism of the fall. That is an opinion which is absent in relation to the right hip.
Dr Dixon has, in my view, plainly considered the question of causation in providing his opinion, and the fact he has specifically found a causal link between the mechanism of injury and the ankle pathology is, in my view, persuasive, particularly in circumstances where he has not merely acted as an advocate in excluding by omission the alleged hip injury.
As noted, the applicant underwent an MRI of her right ankle and foot. That examination took place in August 2023. On that occasion, the findings were anterior 2.6 cm of loculated fluid, together with posterior subtalar joint effusion, tibialis posterior tendinosis with increased sheath fluid. Dr Dixon is of the view that pathology is consistent with the injury at issue, a finding which, in my view, is consistent with the findings on examination of treating surgeon Dr Dave in his report dated 25 November 2019.

In that report, the treating surgeon noted the applicant had pain in her lower back radiating into her ankle. Mr Stockley submitted that finding did not suggest the ankle as the source of pain, however, in my view Dr Dixon's opinion is persuasive and, examining both the lay and medical evidence on a common-sense basis, it seems to me perfectly plausible that a fall in the nature of that which the applicant had where her leg became trapped in and under a shopping trolley which pinned it and twisted it would cause her ankle injury.
The respondent relied upon IME Dr Wallace, who concluded there was no injury to the right ankle. Dr Wallace indicated there was no causal link between the applicant's complaints of right ankle symptoms and her work injury in August 2019. However, Dr Wallace does not provide a reason as to why this is the case, other than that bald assertion. He had before him the MRI of the right ankle and noted the presence of the pathology but does not provide a reason why such pathology could not have been caused by the fall at issue. As such, in terms of substantive question of causation in relation to the ankle condition, Dr Wallace has effectively vacated the field and the only qualified medical opinion is that of Dr Dixon who states there is a causal link between the mechanism of fall and the pathology seen in the right ankle.
This being so, I prefer the views of Dr Dixon to those of Dr Wallace concerning the right ankle, and there will accordingly be a referral of this body system to a Medical Assessor.

SUMMARY

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

[2025] NSWPIC 51

18 February 2025