Shields v State of New South Wales (Ambulance Service NSW)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Shields v State of New South Wales (Ambulance Service NSW) [2025] NSWPIC 234
APPLICANT:	Barbara Jayne Shields
RESPONDENT:	State of New South Wales (Ambulance Service NSW)
MEMBER:	Michael Moore
DATE OF DECISION:	29 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for lump sum compensation; event of injury admitted by the respondent; respondent conceded injury to the back but disputed injury to the left hip; Held – award in favour of applicant in relation to the alleged injury to the left hip on basis of applicant’s evidence and contemporaneous medical records and reports; matter referred to Medical Assessor; no issue of principle.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to her left hip in the nature of a soft tissue strain on 31 August 2009. 2. The injury was sustained by the applicant in the course of her employment with the respondent within the meaning of s 4(a) of the Workers Compensation Act 1987. 3. The applicant’s employment was a substantial contributing factor to her injury within the meaning of s 9A of the Workers Compensation Act 1987. 4. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 31 August 2009. Body systems/parts: Left lower extremity (hip). Method of assessment: whole person impairment. 5. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) respondent’s Reply and attached documents; (c) applicant’s Application to Admit Additional Documents dated 28 April 2025 and attached documents, and (d) a copy of this Certificate of Determination and short reasons. 6. The respondent is to pay the applicant’s costs of the proceedings. 7. I decline to order an uplift on the costs payable in the proceedings. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant Barbara Jayne Shields is a 57-year-old former paramedic who was employed by the respondent between September 2007 and July 2010.
The applicant was involved in an injurious event on 31 August 2009 when she and her work partner were moving a patient by stretcher which started to overbalance when the left hand wheels of the stretcher left the pathway upon which the stretcher was being wheeled. As the stretcher started to overbalance the applicant appears to have used considerable force to try and stabilise the stretcher and prevent the patient falling.
The applicant alleges that while stabilising the stretcher she suffered injury to her back and left hip.
The applicant has brought a claim for lump sum compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) alleging that she suffers from a whole person impairment of 6% as a consequence of her claimed left hip injury.
I note that the worker would be regarded as an emergency worker for the purposes of the 1987 Act and is not precluded from bringing the claim for lump sum compensation where the degree of whole person impairment is not greater than 10%
The respondent does not dispute that the applicant suffered injury to her back in the incident on 31 August 2009 and accepts that the incident arose in the course of the applicant’s employment but disputes that any injury was sustained to the left hip in that incident.
The applicant gave notice of her claim for lump sum compensation by way of a letter of demand forwarded to the scheme agent QBE Insurance (QBE) on 18 June 2024[1] which attached a forensic medical report prepared by Dr Murray Hyde Page dated
[1] Application pp 13-14.
19 February 2024 and which certified that the applicant suffered from a whole person impairment as a result of her alleged left hip injury of 6% whole person impairment.
A notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 14 January 2025[2] was issued by QBE in response to the applicant’s claim disputing the applicant’s claim that she had suffered an injury to her left hip in the incident on 31 August 2009.
[2] Application pp 15-19.
The matter came before me at a preliminary conference on 20 March 2025 when attempts to conciliate the matter were unsuccessful with the matter then being listed for hearing on
8 May 2025.
At the preliminary conference the respondent’s solicitor advised that there would not be any application for cross examination of witnesses at the conciliation/arbitration hearing.
At the preliminary conference leave was granted to the applicant to issue directions for production of medical records directed to various health providers that had treated the applicant with any application for the admission of any additional documents arising from responses to those directions for production to be dealt with at the conciliation/arbitration hearing.
At the conciliation/arbitration hearing Mr Dewashish Adhikary of counsel instructed by Ilyas Omari solicitor of Gerard Malouf and Partners appeared on behalf of the applicant and
Ms Kavita Balendra of counsel instructed by Kate Farrer solicitor of Turks Legal appeared on behalf of the respondent.
At the conciliation/arbitration hearing the matter was not capable of resolution in the conciliation phase.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered any injury to her left hip in the incident on
31 August 2009 (which incident is accepted by the respondent has having arisen in the course of the applicant’s employment) within the meaning of s 4 of the 1987 Act, and
(b) in the event that the applicant is found to have suffered an injury to her left hip on 31 August 2009. What, if any, whole person impairment does the applicant suffer from as a result of such injury.
I note that the issue as to the extent of any whole person impairment will be a matter for assessment by a Medical Assessor assuming that the applicant establishes that she suffered an injury to her left hip on 31 August 2009.

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.

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 (Application);
(b)    respondent’s Reply and attached documents (Reply), and
(c)    applicant’s Application to Admit Additional Documents and attached documents (AAAD 1).
AAAD 1 is admitted into evidence as containing material relied upon by both parties in their submissions and containing material that was relevant to the issues in dispute and is material that will facilitate the just, quick and cost effective resolution of the real issues in the proceedings.

Oral evidence

As noted earlier in these reasons the respondent’s solicitor advised at the preliminary conference that no application would be made to cross examine witnesses and Ms Balendra made no such application at the conciliation/arbitration hearing.

FINDINGS AND REASONS

I note that counsel’s submissions have been recorded and I do not propose to provide a detailed summary of same but I further note that I have carefully considered the submissions of each party and will refer to those submissions as appropriate in providing my reasons.
In her submissions Ms Balendra addressed the applicant’s case in what might be described as a sequence of considering the pleadings, the applicant’s statement evidence and the medical evidence in that order.
Given the limited nature of the issues in dispute I will similarly approach my consideration of the matter. In doing so I am not suggesting that I am approaching the case attempting to determine whether the respondent has proved its case in its submissions and evidence – quite clearly the respondent does not have to prove its case- that is a matter for the applicant. I am simply taking that approach as it seems to me to be a logical way to deal with the limited issues before me.

The pleadings

In her submissions Ms Balendra commenced by directing my attention to the pleading in the Application under the heading “Injury Details – 31/08/2009”.
Ms Balendra noted that nowhere in what is a lengthy description of injury did the applicant refer to having injured her left hip.
Ms Balendra noted that in terms of describing the parts of the body that were injured in the incident the applicant had pleaded:
“The twisting motion of the stretcher caused the applicant’s back to twist sideways. The applicant felt immediate pain in the middle of her back and a burning sensation in her muscles.”[3]
[3] Application.
Ms Balendra submitted that nowhere in that description of injury was a description of an injury to the left hip which pleading she noted was also consistent with the contents of the applicant’s statement of 4 February 2025.
I understand the thrust of the submission to be that I could not be satisfied on the balance of probabilities that the applicant suffered an injury to her left hip in circumstances where the applicant herself did not plead such an injury. (I will deal with the related submission in relation to the applicant’s statement below).
Certainly the form of the applicant’s pleading is, to say the least, unusual and in a court of strict pleading could cause the applicant some difficulty however the Personal Injury Commission (Commission) is not a court and the dispute between the parties to these proceedings is essentially defined by the applicant’s claim for compensation benefits and the contents of the s 78 notice.
In this case there is no doubt that the applicant’s notice of claim for lump sum compensation dated 18 June 2024 raises an allegation of an injury to the applicant’s left hip and claimed lump sum compensation for whole person impairment resulting from that injury. The respondent’s s 78 notice denied liability for that claim.
Further the form of the pleading of the description of injury is not inconsistent with an allegation of injury to the left hip as the phrase “burning sensation in her muscles” could well encompass an injury to the left hip as claimed by the applicant – indeed it is probably so broad as to cover soft tissue injuries almost anywhere in the body!
Accordingly I do not attach much significance to the applicant’s failure to specifically plead an injury to the left hip – it is quite clear from the claim for lump sum benefits and the s 78 notice issued by the respondent that all parties have proceeded on the basis that the applicant claims to have suffered an injury to the left hip in the incident on 31 August 2009 and suffers from a whole of person impairment as a consequence of that claimed injury and its sequelae.

The statement evidence

Attached to the Application are two statements from the applicant.
The first statement is dated 30 April 2024 and in that statement the applicant stated the following in relation to the events on 31 August 2009 (omitting the numeration in the original):
“I suffered an injury on 31.8.09 during the course of my employment as a Paramedic for NSW Ambulance.
On the day of the injury, I was taking a patient down a driveway on a stretcher and the driveway was uneven.
As I was attempting to get the patient down to the ambulance vehicle, the left hand wheels of the stretcher went into a ditch in the ground resulting in the stretcher starting to tip over.
I attempted to pull the stretcher back. The stretcher plus patient was weighing about 160kgs at the time. I attempted to pull the stretcher back so that the patient doesn’t fall to the ground.
My colleague was there at the time, and they did not help me, so I was left to bear the weight of the stretcher and the patient on my own. As a result of the incident, I felt immediate pain in my chest, lower back and left hip. The injury was reported on the Ambulance Service Intranet during that shift.”[4]
[4] Application p 2.
In that statement the applicant quite clearly records that in the course of the incident on
31 August 2009 she felt immediate pain in her chest, lower back and left hip.
The applicant’s second statement is dated 4 February 2025 and is obviously made around nine months after the first statement.
In her second statement the applicant set out the following narrative of the events causing the applicant’s injury on 31 August 2009 (again omitting the numeration of the original):
“On that date my partner and I had been called to the home of an elderly patient who was having breathing difficulties. The driveway to the patient’s home was fairly steep.
We treated the patient and then placed him on a stretcher with an oxygen mask. It is usual procedure, with patients who are having breathing difficulties, that the head of the stretcher is put in the upright position so the patient can sit up while being transported rather than lying flat on their backs.
My partner and I were at either end of the stretcher, whilst we wheeled the patient down the driveway.
We were taking the patient down a concrete driveway on the stretcher and the driveway was uneven. The patient was in the area Ryde, and we were taking the patient to Auburn Hospital. The driveway was very uneven and made of concrete and dirt.
The driveway had two strips of concrete the width of car tyres with dirt in the middle, only the right-hand wheels of the stretcher were on the concrete whilst the left-hand side wheels were on uneven ground.
The middle of the driveway did not have any concrete.
The driveway was not a full concrete slab, it was two separate strips of concrete, each about 30-40 centimetres wide, and these strips were about 1.5 metres apart, i.e. the distance of a normal car’s tyres from each other.
The actual stretcher itself was wider than either of the concrete strips, so we could not get all four wheels on the stretcher onto the concrete strips. We had to place the right-hand wheels of the stretcher on the concrete and the left-hand wheels then ran along on the rough ground between the two steps of concrete driveway. There were bushes and hedges along the outside of the driveway so we couldn’t go down the outside of the driveway either. The height difference made the stretcher unstable.
I was walking at the rear of the stretcher and my partner was guiding the front, as that was where the bulk of the patient’s weight was focused. I would estimate the stretcher weighed about 65kgs and the patient weighed about 90kgs.
The patient was sitting at the front end of the gurney, facing towards me, so I could not see what my partner was doing because the patient was sitting up blocking my view. When we reached the bottom of the driveway, I didn’t realise my partner had turned around to open the rear doors of the ambulance.
The stretcher tipped sideways suddenly, and I was left to take the full weight of the patient and the stretcher, whilst I tried to right the stretcher. The patient’s wife and daughter were walking behind us, and they were panicking because they thought the patient would be tipped onto the ground. The twisting motion of the stretcher caused me to twist my back suddenly sideways.
I felt immediate pain in the middle of my back and a burning sensation in my muscles. I was also having pain on breathing. I continued to manhandle the stretcher until I could get it upright again with my partner assisting me.
We continued transporting the patient to hospital, and I remained at work for the balance of my shift. (I didn’t want to leave my partner short staffed.) I did however report the accident to my supervisor as soon as we got back to the ambulance station.
I didn’t return to work the following day and in fact I didn’t actually return to work again until about January 2010 because I had so much pain in my lower back and left hip.”[5]
[5] Application pp 7-8.
Ms Balendra in her submissions directed my attention to the fact that in her statement dated 4 February 2025 did not specifically describe an injury to the left hip in the fairly fulsome description of the event of injury set out in that statement despite referring to feeling immediate pain in the left hip in her earlier statement of 30 April 2024.
Ms Balendra also pointed out the statements were both made around 15 years after the events on 31 August 2009.
In considering the weight to be given to the statements I accept that a statement made some 15 years after the events described therein is likely to be somewhat unreliable.
I also note that the two statements although made only nine or so months apart still contain inconsistencies despite having been clearly prepared for the purposes of the litigation.
In addition to the failure to specifically describe an onset of immediate pain in the left hip in the statement dated 4 February 2025 while doing so in the statement of 30 April 2024 I note that the applicant in her statement of 30 April 2024 refers to her having reported the injury on the Ambulance Service Intranet during her shift whereas in her statement of 4 February 2025 the applicant refers to having reported the accident to her supervisor as soon as she got back to the ambulance station.
Similarly in her statement of 30 April 2024 the applicant describes the event of the injury being precipitated when “ the left hand wheels of the stretcher went into a ditch in the ground resulting in the stretcher starting to tip over” whereas in the statement of 4 February 2025 the description is in the following terms “ When we reached the bottom of the driveway, I didn’t realise my partner had turned around to open the rear doors of the ambulance. The stretcher tipped sideways suddenly”. In one version the precipitating factor is described as the wheels going into a ditch I whereas in the second version the suggestion seems to be that the partner had let go of the stretcher to open the doors of the ambulance causing a lack of stabilisation of the stretcher.
Those inconsistencies are consistent with my concerns as to the reliability of statement evidence given some 15 years after the event and indeed normal human experience is that over time memories fade and become less accurate.
Accordingly any weight given to the applicant’s statement evidence will reflect those concerns.
I do note however that no application was made to cross examine the applicant and
Ms Balendra in her submissions appears to have accepted that the applicant developed pain in her left hip following the incident on 31 August 2009 although disputing that the pain was the consequence of a left hip injury.

The medical evidence

Turning to the medical evidence the applicant has relied upon the qualified opinion of
Dr Murray Hyde Page in his report dated 19 February 2024.
In his report Dr Hyde Page relevantly recorded the history of the event of injury in the following terms:
“The patient weighed about 90 kilograms and the stretcher weighs 60 kilograms. It was being pushed along a driveway but only the wheels on the right side where [sic] on the concrete, while the wheels on the left side were on the grass, between the concrete strips. Barbara Shields was pushing the stretcher while her colleague was in front. At the time of injury, the colleague had let go of the stretcher to open the ambulance door. It was at this moment, the stretcher started tilting and falling to the left. Barbara Shields had to use all her physical strength to stop the stretcher falling and the patient being injured. In doing this, she suffered a strain to her thoracolumbar spine and left hip.”[6]
[6] Application p 21.

The history of injury recorded by Dr Hyde Page is generally consistent with that recorded by the applicant in her statement of 30 April 2024 albeit that the estimate of the weight of the stretcher differs in each version.
Dr Hyde Page expresses his diagnosis as one where the applicant:
“suffered an acute injury to her back and left hip, working as a paramedic on 31 August 2009. This occurred when a stretcher carrying a patient weighing 90 kilograms, sitting up in the stretcher, started tilting and falling to her left. She struggled to hold the stretcher, so the patient would not be injured and in doing so, suffered the strain to her back and left hip. The soft tissue injuries were severe enough that she had to go off work and have a course of physiotherapy.”[7]
[7] Application p 24.
Dr Hyde Page clearly diagnosed a soft tissue strain to the left hip as having been sustained in the incident on 31 August 2009 (as I have noted it is accepted by the respondent that an injury to the back was sustained in the incident).
Dr Hyde Page then states in relation to the left hip:
“She suffered an acute injury to the left hip with the work injury on 31 August 2009 and this has lead to her now developing severe osteoarthritis of the left hip joint.”[8]
[8] Application p 24.
The applicant has not pleaded her case on the basis that as a consequence of the event on 31 August 2009 the applicant contracted a disease in the nature of osteoarthritis of the left hip within the meaning of s 4(b)(i) of the 1987 Act nor has she pleaded that she suffered an aggravation, deterioration, exacerbation or acceleration of osteoarthritis of the left hip within the meaning of section 4(b)(ii) of the 1987 Act – the applicant’s case is that her injury was an injury simpliciter within the meaning of s 4(a) of the 1987 Act.
Accordingly whether Dr Hyde Page’s view as to the cause of the osteoarthritis in the left hip is correct or not can only be a matter for the Medical Assessor in the event that the applicant establishes that she suffered an injury within the meaning of s 4(a) of the 1987 Act as his opinion on that issue is one as to the sequelae of the claimed injury.
In terms of treating medical evidence the applicant relies on a number of reports and records from the treating doctors and physiotherapists.
The records of Castle Hill Family Doctors are found at pages 87 to 284 of AAAD 1.
The first attendance by the applicant on her general practitioner Dr Ellen Conway appears to have occurred on 1 September 2009 on the day immediately following the work incident.
Dr Conway’s notes on that date refer to the applicant’s “Reason for visit” as being “back pain”[9] and there is no reference to left hip pain at that time.
[9] AAAD1 p 92.
The applicant subsequently consulted Dr Conway on 4 September 2009,
11 September 2009, 14 September 2009, 21 September 2009, 23 September 2009,
[10] AAAD1 pp 92-95.
2 October 2009, and 7 October 2009 where no complaint of hip pain was recorded.[10]
On 21 October 2009 Dr Conway recorded that the applicant was suffering pain in the left hip as well as the left sacroiliac joint.[11]
[11] AAAD1 p 95.
Significantly Dr Conway in her notes of a consultation on 11 September 2009 referred to the applicant as being treated by a physiotherapist.
In a report to Dr Conway and the GIO dated 3 November 2009 Mr Dennis Parlevliet physiotherapist records having first seen the applicant on 7 September 2009 (which attendance would be consistent with the note of Dr Conway referred to at point 60 above).
Mr Parlevliet recorded that on her initial presentation the applicant was, inter alia, suffering from “Pain in the left groin dure to irritable hip joint capsule”.[12] The applicant was also noted as having tight hip flexors.
[12] Application p 50.
A report from Ms Emily Poole physiotherapist (who appears to work at the same practice as Mr Parlevliet) dated 20 October 2009 to treatment being directed at and intended to “reduce her SIJ/hip pain”.[13]
[13] Application p 131.
On 18 January 2010 Dr Conway noted that the applicant was reporting “achy hip pain”[14] and recorded the applicant as having worked Wednesday day shift, Thursday night shift, Saturday night, Sunday night and day shift yesterday.[15]
[14] AAAD1 p 98.
[15] AAAD1 p 98.
I have some difficulty with the accuracy of that record in that 18 January 2010 was a Monday which means that the record of having worked Sunday night and a day shift yesterday must be incorrect.
While somewhat speculative I think that more logically Dr Conway forgot to record the work done on the Friday with the applicant then having last worked on Sunday 17 January 2010 on a day shift.
There is no record in the notes of the attendance on Dr Conway by the applicant on
18 January 2010 of the applicant reporting a further work injury.
However the applicant subsequently went off work on 26 January 2010 with an attendance on Dr Conway on 27 January 2010 with a report of significant back pain.[16]
[16] AAAD1 pp 98-99.
Dr Conway’s notes record a number of subsequent attendances for treatment of ongoing problems between 27 January 2010 and 19 April 2010.
In a note dated 19 April 2010 Dr Conway refers to having received a telephone call from “Tania frm GIO” and states “that Barbara is claiming hip injury as a separate claim and will require a separate certificate for hip injury. She apparently reported a specific incident that occurred on 18/01/2010. Will discuss with Barbara when she come [sic] in for appt.”[17]
[17] AAAD1 p 103.
It appears that the applicant consulted with Dr Conway the following day with Dr Conway recording the following history:
“On 18/01/2010 doing a lift with stretcher at half height did a squat and when standing experienced pain in left groin til the morning.
When lay down felt clunking movement.
Did have groin pain to this from previous injury
But has reported as separate claim GIO have advised needs separate certificate despite notes being made on other certs
MRI hip NAD
Still has this groin pain but not enough to prevent working
Mainly the lower back pain”[18]
[18] AAAD1 p103
Given my earlier observations as to the accuracy of the history of the applicant’s work schedule in the days prior to 18 January 2010 the history given by the applicant to
Dr Conway on 20 April 2010 only makes sense if either the applicant went to work a night shift after seeing Dr Conway during the day on 18 January 2010 and suffered pain while lifting a patient during that shift (which would be consistent with the history of having “pain til the morning” as recorded in the notes of Dr Conway’s consultation on 20 April 2010) or alternatively the incident occurred during a shift between 18 January 2010 and
26 January 2010 when the applicant went off work.
Dr Conway recorded a further incident involving the left hip at the time of a consultation on 24 May 2010 when the applicant (who appears to have been on light duties at the time) had reported:
“second PTO shift left hip played up. Slept overnight, awoke without pain.
1 lift with carry chair up stairs, 80kg”[19]
[19] AAAD1 p 105.
Dr Hyde Page recorded a general reference to the applicant having suffered an acute strain to her left hip while lifting a at some stage following her return to work but does not have a history of two incidents between January and May 2010. Further the applicant appears to have told Dr Hyde Page that she never returned to work as a hands on paramedic after the further incident[20] which does not appear to be correct if she was referring to the January 2010 incident.
[20] Application p 21.
In her submissions Ms Balendra highlighted the January 2010 incident and, as I understand it suggested that that incident really was the start of any problems with the left hip.
Certainly the January 2010 incident appears to have been a significant event and it is certainly the case that the records of both general practitioners[21]seem to confirm a worsening of left hip symptoms from May 2010 to date.
[21] AAAD pp 2-284.
I note that it is my view that the events of injury in January and May 2010 are unlikely to have been minor events of no great significance given the increase of complaints and treatment of left hip problems that appears to follow those events. Accordingly I find the records and reports from the treating doctors and other medical providers after January 2010 of very limited weight in deciding whether the applicant suffered an injury to her left hip on
31 August 2009.
The respondent relies upon the qualified medical report of Dr Richard Powell dated
8 January 2025.
In his report Dr Powell noted that:
“[22]Mrs Shields was a compliant, cooperative patient throughout today’s history and examination. There was no suggestion of overreaction or exaggeration. She was in mild discomfort at times during the assessment. She stands 167cm tall and weighs 78kg.”
[22] Application p 36.
In response to the question: “Please provide your opinion regarding diagnosis of any injuries affecting the worker’s left hip injury.” Dr Powell commented as follows:
“It is difficult to comment definitively on events that occurred 15 years ago. However I have reviewed all the available documentation and there is a consensus amongst doctors who provided that the initial incident in August 2009 resulted in a musculoligamentous injury of the thoracolumbar spine. She subsequently complained of left buttock and left groin pain, which appeared to become problematic after the second incident in January 2010; however I note the clinical findings of Dr Scott Harbison and Dr Andrew Cree in which they identified no irritability or localising signs in relation to the hip. Although her left hip symptoms persisted, an MRI arthrogram of the left hip performed by Dr Bruce White several years later in 2012 was unremarkable. This represents a highly sensitive and specific test and on balance, I believe that if Mrs Shields had sustained a significant injury to her left hip in the course of her employment in 2009/2010, then it would have been clinically apparent to the specialists who examined her at that time and in the results of the investigations performed. Although there is no doubt that she has subsequently developed left hip osteoarthritis, I do not believe there is sufficient evidence to conclude that this condition is the result of any injury sustained in the course of her employment with the New South Wales Ambulance Service.”[23]
[23] Application p 39.
As I read Dr Powell’s opinion he does not state that the applicant did not suffer any injury to her left hip in the incident on 31 August 2009 rather that any such injury would not have been serious enough to have given rise to the left hip osteoarthritis from which the applicant presently suffers.
In her submissions Ms Balendra argued that any pain being experienced in the area of the applicant’s left hip, buttock and groin following the incident on 31 August 2009 was the radiation of pain from the applicant’s accepted injury to the low back.
I note that Dr Powell does not appear to support that argument in his diagnosis and opinion and further I note he recorded in his report that at the time of his examination the applicant did not suffer any definitive signs of radiculopathy.[24]
[24] Application p 37.
Further in relation to Ms Balendra’s submission I note that Dr Conway specifically recorded on 21 September 2009 that there was “no radiation of pain into the buttock or thigh”[25] and an absence of neurological signs is repeatedly recorded in other consultations.
[25] AAAD p 94.

Consideration

I have noted my concerns with the reliability of witness statements prepared 15 or so years after the relevant event and have also noted my concerns as to the inconsistencies of two statements prepared less than nine months apart. However I note that no cross examination of the applicant was sought and no real challenge made to the applicant’s credit by
Ms Balendra in her submissions.
I also note that Dr Powell found the applicant to be compliant and cooperative without overreaction or exaggeration.
The records of the physiotherapists confirm that the applicant was making complaints of problems and pain in the left hip area in September 2009 and thereafter and prior to January 2010.
Dr Conway’s notes confirm the applicant complaining of left hip pain on 21 October 2009.
On the balance of probabilities I believe that Dr Conway’s notes also confirm the applicant as complaining of “achy left hip” immediately prior to the further injury in January 2010.
In my view the applicant’s claim of having suffered an injury to her left hip is corroborated by the notes of Dr Conway and the reports of the physiotherapists referred to above.
I accept the applicant’s evidence that she felt pain in her left hip at the time of the incident on 31 August 2009 given that her statement evidence is corroborated to a significant degree by the contemporaneous medical records and reports that I have referred to in these reasons.
Dr Hyde Page has diagnosed the applicant as having suffered a soft tissue strain of the structures of the left hip.
Dr Powell has not disputed that diagnosis rather he has asserted that any injury sustained in the course of the applicant’s employment in 2009/10 was not significant enough to be the cause of the applicant’s left hip osteoarthritis which is now present.
I accept the diagnosis of Dr Hyde Park that the applicant suffered a soft tissue strain to the left hip in the incident on 31 August 2009.
On the balance of probabilities I find that the applicant suffered an injury to her left hip in the nature of a soft tissue strain in the course of her employment within the meaning of s 4(a) of the 1987 Act.
I find on the balance of probabilities that employment was a substantial contributing fact to the applicant’s injury to her left hip within the meaning of s 9A of the 1987 Act.
I make no finding as to whether the osteoarthritis that the applicant now suffers from in the left hip results from or was caused by that soft tissue injury as that will be a matter for the Medical Assessor in assessing the extent of any whole person impairment resulting from the injury I have found that the applicant suffered.
Similarly the contribution of any subsequent events of injury in January and May 2010 to any whole person impairment will be a matter for the Medical Assessor.

Summary

I find on the balance of probabilities that the applicant suffered a soft tissue strain to her left hip on 31 August 2009 when wheeling a patient on a stretcher that started to overbalance and there will be an award in favour of the applicant accordingly.
I find that the injury was sustained in the course of her employment within the meaning of s 4(a) of the 1987 Act and that the applicant’s employment was a substantial contributing factor to the injury within the meaning of s 9A of the 1987 Act.
I remit the matter to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act.
The respondent is to pay the applicant’s costs of the proceedings.
The applicant’s counsel sought an uplift of 15% on the costs to be awarded in the event that the applicant succeeded.
The respondent submitted that any such uplift should also apply to the respondent’s costs in the event I found that an uplift was appropriate.
Although I recognise that this case is complicated by the delay between the event of injury and the date the proceedings were commenced I also have regard to the fact that the matter involved obtaining one qualified medical report and limited treating material. The issue in dispute was very limited and the quantum of the claim not great. Having regard to those factors I decline to order an uplift for the costs awarded in this matter.

[2025] NSWPIC 234

29 May 2025