Ross v Homestead Home Builders Pty Ltd
[2023] NSWPIC 570
•30 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ross v Homestead Home Builders Pty Ltd [2023] NSWPIC 570 |
| APPLICANT: | Oliver Ross |
| RESPONDENT: | Homestead Home Builders Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 30 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Weekly compensation; whether cause of accepted aggravation to underlying condition was work-related; applicant suffered pre-existing condition in his right knee, which was aggravated in or about 2020; he claims the aggravation was caused by his duties as an apprentice carpenter; the respondent alleges the aggravation was caused by the applicant playing basketball; Held – the applicant must establish the cause of the aggravation was work-related, not the cause of the underlying condition; Federal Broom Co Pty Ltd v Semlitch, Anton Mitic v Rail Corporation of NSW, Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd, and Cant v Catholic Schools Office followed; the evidence discloses the applicant ceased playing basketball in or about early 2020, however, his symptoms continued to worsen up to and including mid-2020, consistent with his employment being the main contributing factor to the aggravation; the evidence also discloses the applicant was totally incapacitated for the period claimed; respondent ordered to pay weekly compensation as claimed. |
| DETERMINATIONS MADE: | The findings and orders are: 1. The applicant suffered an injury in the course of his employment with the respondent by way of aggravation of an underlying condition to his right knee, with a deemed date of injury of 27 November 2020. 2. As a result of the injury referred to in [1] above, the applicant suffered total incapacity for employment from 23 April 2021 to 4 February 2022. 3. At the date of injury, the applicant’s pre-injury average weekly earnings were $698.80. 4. The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 for the period 23 April 2021 to 4 February 2022 at the rate of $559.04 per week. |
STATEMENT OF REASONS
BACKGROUND
Oliver Ross (the applicant) suffers from a condition known as bilateral Osgood-Schlatter Disease (OSD); a genetic condition of the knees caused during growth spurts. He brings these proceedings seeking payment of weekly compensation by his former employer, Homestead Home Building Pty Ltd (the respondent) alleging a work-related aggravation to that condition said to have been caused by the nature and conditions of his employment as an apprentice carpenter.
The applicant was a basketball prodigy, and a dispute has arisen in this matter as to whether his employment was the main contributing factor to the aggravation of the OSD or whether it was caused by his having played basketball.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant’s employment was the main contributing factor to the aggravation of his OSD, and
(b) the nature and extent of any incapacity caused by any such work-related aggravation.
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 before me on 20 September 2023. The applicant was represented by Mr Barter of counsel instructed by Ms Alawie. The respondent was represented by Mr Grant of counsel instructed by Ms Faapito.
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);
(b) Reply, and
(c) respondent’s Application to Admit Late Documents (AALD) dated 4 September 2023.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
The cause of the aggravation of the applicant’s OSD
There is no issue the applicant suffered an aggravation to the underlaying OSD in his right knee. The issue is the cause of that aggravation. As both counsel helpfully submitted, the applicant carries the onus of demonstrating on the balance of probabilities that the main contributing factor to the aggravation of the condition was the applicant’s employment.
There is no dispute the employment must be the main contributing factor to the aggravation, rather than to the underlying condition: see Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; Anton Mitic v Rail Corporation of NSW (8497 of 2013, 8 April 2014); Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606 and Cant v Catholic Schools Office [2000] NSWCC 37.
The authorities are clear in establishing that the test is in relation to the main contributing factor of the increase in symptoms of the underlying condition, rather than the condition itself.
It is not necessary for the particular disease to be made worse in a pathological sense: Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSW WCCPD 132. In AV v AW [2020] NSWWCCPD 9, Deputy President Snell discussed the meaning of the term “main contributing factor”. The deputy president noted the test is a more rigorous one than “substantial contributing factor” found in s 9A of the Workers Compensation Act 1987 (the 1987 Act). As Snell DP noted:
“…the requirement in s4 (b) inserted by the 2012 amendments, that employment be the ‘main contributing factor’ permits the existence of only one such factor. The ‘main contributing factor’ involves a more stringent connection with the employment than the requirement of a ‘substantial contributing factor’ which applied to ‘disease’ injuries prior to the 2012 amendments.”
For the applicant, Mr Barter submitted the contemporaneous treating evidence revealed an exacerbation of symptoms suffered by the applicant as a result of his employment. He referred to the applicant’s statement and also to contemporaneous medical records placed into evidence of the applicant’s general practitioner (GP). For the respondent, Mr Grant noted the applicant made no mention of basketball in his statement despite a clear and uncontested history of basketball having previously caused symptoms in his knees.
Mr Barter submitted the applicant played basketball up till approximately January 2020, at which time it plainly ceased being a causative factor in any aggravation of his symptoms. He noted various contemporaneous records from the GP and specialist post-dating January 2020 which referred to the applicant’s work as being an issue in causing his symptoms. In particular, Mr Barter noted an entry of GP Dr Sison on 10 February 2020, in which the following notes were taken:
“Came with mum:
1. six years of recurrent and each time worsening pain of right knee at infra-patella area. Points to prominent area at tibial tuberosity and medial knee as such of pain.
Past right Osgood-Schlatter.
Carpenter.
Plays basketball regularly and has stopped due to pain.”
Mr Barter submitted that from February 2020, basketball was no longer a factor in the cause of any ongoing aggravation, however, the applicant’s employment duties were. There is no issue as to the nature and conditions of the applicant’s employment. He was employed as an apprentice carpenter, and he states that his symptoms continued and worsened in his right knee up to 19 June 2020. The applicant further referred to his issues at work as follows:
“26. I had suffered a right knee [injury] in February 2020 when I was going down a ladder and slipped causing my right knee to hit a rung on the ladder. I already had a lump on my right knee which was a standard Osgood-Schlatter injury. I had this disease from when I was about 12 years to 13 years of age going through my growth spurt.
27. I did not have to get any immediate medical attention for this particular injury and it just needed some time to heal.
28. It did heal over a period of time and I got to work on full strength. Then it was around the end of March or early April 2020, when as I said earlier, the pain in my right knee started to become worse.
29. Then from that April date to 19 June 2020 my right knee was just getting worse. I ended up having to tell my boss, Wayne, that my right knee was very painful and I had booked in with a specialist to assess what was wrong with my knee.”
For the respondent, Mr Grant noted that specialist opinion relied upon by the applicant did not include an accurate history of the applicant’s consistent playing of basketball over many years. He submitted that absent such history, the opinions of the doctors could not be accepted.
I note, however, there is contemporaneous record of the applicant having stopped playing basketball in or about January 2020, and his symptoms not only persisted but worsened from February to June of that year while he continued working as an apprentice carpenter.
The respondent’s case is the main contributing factor to the applicant’s aggravation was his playing basketball, however, I do not find this to be the case for the following reasons.
Mr Grant noted a contemporaneous record at page 111 of the Application in which treating specialist Dr Coghlan made handwritten notes concerning the applicant’s onset of injury. The doctor noted a long history of anterior right knee pain and made a note which Mr Grant submitted read the applicant “ceased basketball 2M ago”.
To my reading, that note is not particularly clear. The entry which Mr Grant submitted read “2M ago” could, in my view, just as easily read “2YR ago”, which, given the notes were taken in or about October 2021 would appear to be more consistent with the known history set out in the contemporaneous GP and specialist records from early to mid-2020 and 2021, when the applicant states he in fact stopped playing basketball.
The test of causation in this matter is one of a common-sense evaluation of the causal chain in accordance with the oft-cited passage of his Honour Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). Applying such a common-sense evaluation to this matter and acknowledging that correlation does not always account for causation, I nevertheless note the applicant continued to carry on heavy work for a period of some months after he ceased playing basketball. His evidence is, and I accept, that his condition continued to worsen as a result of and as he continued to carry out his duties as an apprentice carpenter. That much is consistent with GP notes throughout 2020 and into 2021.
There is no issue the applicant has a long history of a pre-existing condition, however, to my mind the main contributing factor to the aggravation of that condition which led to the applicant’s incapacity for employment was the nature and conditions of his work up to June of 2020. Were it the case his playing basketball was the main contributing factor, one might expect the applicant’s symptoms to at least plateau if not alleviate after he stopped playing in early 2020.
Accordingly, I find the applicant suffered an injury in the course of his employment with the respondent by way of aggravation of his OSD condition. At the hearing, Mr Barter was granted leave without objection to amend the deemed date of injury to 27 November 2020. I therefore find the applicant suffered such injury as I have set out on that deemed date of injury.
Incapacity for employment
Mr Grant submitted the applicant had capacity for employment at least on a partial basis and submitted the Commission would find the applicant had some residual capacity for the period claimed. However, I note the applicant had been certified as unfit for employment during the period claimed on a total incapacity basis by his general practitioner. As a treating practitioner, the applicant GP’s opinion is entitled to be given significant weight, and I do so noting he had a long history of having treated the applicant over many years. The applicant’s medical certificates make clear that he was totally incapacitated for the period claim from 23 April 2021 to 4 February 2022.
At the hearing, the parties agreed the applicant’s pre-injury average weekly earnings (PIAWE) were $698.80 per week. The period claimed by the applicant in this matter is entirely subsumed by s 37 of the 1987 Act. Accordingly, he is entitled to receive weekly compensation at the rate of 80% of his PIAWE, being $559.04.
Accordingly, having found the applicant was totally incapacitated for employment for the period claimed, I order that the respondent pay the applicant weekly compensation at the rate of $559.04 per week from 23 April 2021 to 4 February 2022.
SUMMARY
For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.
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