Taylor v Australian Turf Club
[2025] NSWPIC 418
•19 August 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Taylor v Australian Turf Club [2025] NSWPIC 418 |
| APPLICANT: | Teena Taylor |
| RESPONDENT: | Australian Turf Club Limited |
| MEMBER: | Adam Halstead |
| DATE OF DECISION: | 19 August 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; ‘injury’; section 4; claim for permanent impairment; fall at work undisputed; claim for frank injury to right shoulder and cervical spine; injury claim disputed; jurisdictional dispute on nature of claim; claim as made said to be defective; medical report submitted with claim refers to thoracic spine injury; section 43 of the Personal Injury Commission Act 2020 considered; Held – jurisdiction to deal with disputed claim found; right shoulder and cervical spine conditions determined to arise from work injury; remitted to President for referral to Medical Assessor in relation to assessment of whole person impairment for right shoulder and cervical spine conditions. |
| DETERMINATIONS MADE: | The Commission determines: 1. The matter is remitted to the President for referral to a Medical Assessor for assessment of the right upper extremity (shoulder) and cervical spine arising from injury on 15 June 2004. 2. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Application to Admit Late Documents made by the applicant dated 24 June 2025 (being the 6 June 2025 report of Dr Hugh English), and (d) this Certificate of Determination. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
While at work as a track rider on 15 June 2004, the applicant, Teena Taylor, fell from a horse that was being trained. She asserts neck and right shoulder injuries resulted from the fall. The workplace incident was reported at the time, and she received medical treatment. A claim for lump sum compensation was made by the applicant on 19 May 2020. The claim is disputed by the respondent, Australian Turf Club Limited. The applicant lodged an Application to Resolve a Dispute (ARD) at the Personal Injury Commission (Commission) on 1 May 2025, that initiated these proceedings.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
Following a preliminary conference on 4 June 2025, when procedural directions were made, the matter came before the Commission for arbitration hearing on 10 July 2025. Mr Epstein of counsel, instructed by Mr Nicolopoulos of EPP Law solicitors, appeared for the applicant, who was also present. The respondent was represented by Mr Saul of counsel, instructed by Mr Marsh of Bartier Perry Lawyers, and its delegate was also present, Mr Mitchell.
I am satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I endeavoured to bring the parties to the dispute to an acceptable settlement. The parties had sufficient opportunity to explore settlement. They were unable to reach an agreed resolution of the dispute.
ISSUES FOR DETERMINATION
The issues for determination are whether:
(a) the Commission has jurisdiciton to deal with the dispute based upon the claim made by the applicant on 19 May 2020;
(b) the applicant injured her right shoulder at work on 15 June 2004, and
(c) the applicant injured her cervical spine at work on 15 June 2004.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission, without objection, and considered in making this determination:
(a) ARD and attached documents of 53 pages, and
(b) Reply lodged by the respondent and attachments of 33 pages (Reply).
The respondent objected to the admission into evidence of the:
(a) Application to Lodge Additional Documents made by the applicant on
24 June 2025 with six-page annexure (ALAD-A)For the reasons given at the arbitration hearing, ALAD-A was received into evidence in the proceedings. In summary, the material in that document, a medical report of Dr High English dated 6 June 2025, was relevant to the real issues in dispute between the parties and had been lodged and served in accordance with the directions made by the Commission on
4 June 2025. The submissions made by the respondent related to the content of the report and were determined to be a matter for the weight to be given to it during the proceedings on the substantive matter in dispute regarding injury.There was no application to call oral evidence or cross-examine any witness at the hearing.
JURISDICTIONAL DISPUTE
The respondent submits the Commission does not have jurisdiction to deal with the ARD on the basis the applicant’s claim from which the dispute arises was defective. The applicant rejects the respondent’s submission.
According to the respondent, a claim has not been duly made because the applicant brought a claim for cervical spine injury based on an assessment of the thoracic spine by her independent medical examiner. That is, the medical evidence relied on by the applicant refers to an assessment of impairment made with reference to the thoracic spine rather than the cervical spine as claimed.
The claim forms submitted to the respondent’s insurer on 19 May 2020 refer to injury of the applicant’s “neck and right shoulder”[1] and “Right Shoulder and Neck”.[2] The accompanying cover letter from her then solicitor[3] cites to “injury to her neck and right shoulder”. In support of the claim the applicant provided the “Medico-Legal Report, Dr Hugh English, 9 May 2019”.[4]
[1] ARD p 15.
[2] ARD p 20.
[3] ARD p 12.
[4] ARD p 22.
In his 9 May 2019 report,[5] Dr English opines the applicant “sustained a neck injury (presumably actually a superior endplate T4 fracture)”.[6] He also referred to a “major injury to the right shoulder and neck”.[7] In making his assessment of whole person impairment,
Dr English proceeded pursuant to Chapter 4 of the NSW workers compensation guidelines for the evaluation of permanent impairment (the Guidelines), which applies to “The spine”. However, his determination of impairment was then made with reference to “table 15.4 of AMA5”. AMA5 refers to the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment. Table 15.4 of AMA5 is relevant to the determination of impairment for the thoracic region of the spine.[8] This is the central point of the submission made for the respondent.[5] ARD p 44, which was apparently prepared on (and dated) 27 February 2019 and amended on 9 May 2019.
[6] ARD p 48.
[7] ARD p 48.
[8] Guidelines at [4.25].
It is undisputed the applicant’s claim relates to neck and right shoulder injury. The respondent’s undated dispute notice[9] issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) refers to “cervical spine and right shoulder” as the applicant’s injury. Various medical reports cited in that notice and relied upon by the respondent as related documents[10] refer to cervical spine injury. The independent medical examiner qualified by the respondent, Dr Richard Powell, orthopaedic surgeon, assessed the applicant’s impairment with respect to cervical spine injury according to the Guidelines. Although the report of Dr English submitted with the applicant’s claim referred to presumed thoracic spine injury, and he assessed her impairment on that basis at the time, it is obvious the respondent relied on contra medical evidence and adopted a different view. Although it has not been submitted there has been, there could be no prejudice to the respondent in these circumstances.
[9] ARD p 39 and Reply p 28.
[10] For example, reports of Dr Richard Powell and Dr Loretta Rozario.
As to whether the claim is defective on the basis of the 9 May 2019 report of Dr English, I consider that it is not. The applicant’s claim refers to neck and right shoulder injury, it was not confined to a specific section of her spine. The supporting medical evidence from Dr English did refer to the thoracic spine, but that was clearly stated as being based on a presumption at the time. In the 6 June 2025 supplementary report now in evidence in these proceedings,
Dr English reconsidered his earlier view based on the presumption and provided a revised assessment of impairment related to the applicant’s cervical spine.In the course of the claim and dispute process, the respondent had the opportunity to test the applicant’s claim, which is what occurred when the report was obtained from Dr Richard Powell. Whether the applicant’s claimed neck injury is impairment to be assessed under a particular table according to AMA5 is a matter for medical assessment, that is, it would correctly fall within the definition of a medical dispute according to s 319 of the 1998 Act. It is not a matter to impugn the applicant’s claim for jurisdictional reasons.
Moreover, the issue raised by the respondent would be properly categorised in the nature of a deficiency in the applicant’s claim. Such deficiencies are relevant to the parameters of the dispute rather than to a lack of jurisdiction according to Mason P in the Fletcher International Exports Pty Limited v Barrow[11] (Barrow). In that matter, the Court also observed that the Commission has “ample powers to resolve…confusion” arising from such deficiencies. Although an equivalent provision was then in effect, s 43 of the Personal Injury Commission Act 2020 (the PIC Act) now provides for such matters.
[11] [2007] NSWCA 244 at [39].
In relation to the nature of a claim, and referring to now repealed provisions in the 1998 Act, for which equivalents are found at s 43 of the PIC Act, in Tan v National Australia Bank Ltd[12] (Tan), Basten JA, reaffirming the view expressed in Barrow, stated:[13]
“Because the Commission is required to operate with as little formality and technicality as the proper consideration of matters before it permits (s 354(1)) [now s 43(1) of the PIC Act] and without regard to technicalities or legal forms (s 354(3)) [now s 43(3) of the PIC Act] the legislative scheme should be understood to confer on the Commission the power to determine whether or not a dispute has arisen or a claim has been made. That is not to say that the statute may not impose legal constraints, but the Commission is entitled to determine these matters for itself and an error will not be jurisdictional.”
[12] [2008] NSWCA 198.
[13] At [38].
While it is accepted the applicant’s 19 May 2020 claim lacked precision and the supporting medical evidence may have contained deficiencies, such matters fall within the scope of the Barrow and Tan dicta. To the extent it may be necessary, s 43 of the PIC Act is relevant and applied to the submission made by the respondent on the issue of jurisdiction. I find that the Commission has jurisdiction and the respondent’s submission fails accordingly.
CONSIDERATION, FINDINGS AND REASONS
The applicant contends her cervical spine and right shoulder were injured on 15 June 2004 after she fell from a horse during track work.
Section 4 of the Workers Compensation Act 1987 (the 1987 Act) is relevant and provides that an injury must have arisen out of, or occurred in, the course of employment for compensation to be available. Section 9A of the 1987 Act requires employment to also be the substantial contributing factor to the injury.
The applicant bears the onus of establishing her case of workplace injury on the balance of probabilities with reference to s 4 of the Act: Department of Education and Training v Ireland [2008] NSWCCPD 134.
An ‘injury’ refers to both the event and the pathology arising from it: Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422.[14] This meaning has consistently been applied to ‘injury’: Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6.
[14] At 429.
The meaning of a personal injury was considered 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), with Roche DP observing:
“The authorities establish that a ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286] at [39]). In other words, as stated at [81] in [North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 (Felstead)] it is “a sudden identifiable pathological change”
The applicant’s primary contention is about frank injury to her cervical spine and right shoulder when she fell at work on 15 June 2004. Although the event is undisputed, the cause of the pathology related to the injury is not. Examination is therefore required about whether there was a sudden and ascertainable or dramatic physiological change or disturbance in the state of the applicant’s neck and right shoulder.
Applicant’s statement evidence
In her 18 August 2023 statement, the applicant recounts that she:[15]
“2. … started working at Warwick Farm and was working for Gary Portelli. When I started working for him I had no problems.
3. The first fall I had was with Gary Portelli on 15/6/04. I was at Warwick Farm training a horse when ducks ran out in front of me and I was thrown off the horse. This was because the horse stopped suddenly. I did not go to hospital. I injured my neck and right shoulder. I did have some time off work and lodge a workers compensation claim.
4. I was referred to Dr Rozario who sent me for physiotherapy on my neck. The physio did help. I was off work for about 3 or 4 months.”
[15] ARD p 28.
The respondent submitted the applicant’s statement should be given no weight since it was made in 2023, some 19 years after the 2004 incident, and she had been identified as a “poor historian” according to medical evidence.
I acknowledge the concerns expressed in the respondent’s submission on the nature of the applicant’s statement evidence are valid. To the extent the content of that evidence is not supported by contemporaneous records, it is given little or no weight as the applicant is unlikely to have independent recall of events some 19 years ago, save perhaps for the fall incident as it would have been a significant event to her.
As to the 15 June 2004 incident and events that followed, the statement evidence is corroborated by various other documents created at the time of that incident and immediately following, including the employer notification on 16 June 2004,[16] worker declaration dated
18 June 2005,[17] X-ray report dated 18 June 2004,[18] ultrasound report dated 21 June 2004[19] and the 26 July 2004 report of Dr Loretta Rozario.[20] I accept the version provided by the applicant in her statement evidence as extracted above is a reliable account of events.[16] Reply p 1.
[17] Reply p 2.
[18] ARD p 1.
[19] ARD p 2.
[20] ARD p 4.
Although I understand it to be uncontroversial that the incident occurred, the evidence overwhelming establishes the applicant fell from a horse while at work on 15 June 2004.
Dr Loretta Rozario
Radiological investigations of the applicant’s neck and right shoulder were conducted following the 15 June 2004 incident and she attended Dr Loretta Rozario, rheumatologist, for treatment. Following their first consultation in relation to that incident, Dr Rozario recorded the applicant as having:[21]
“…had a fall off her horse. She landed in such a way that it was on her head and neck. Since then she has been having pain I her neck, shoulders, right chest wall and also in her right arm. She notes paraesthesiae radiating into her right arm right down into the forearm and hand and involving all of her fingers. She has constant pain in the areas mentioned and is unable to sleep at night. She has started physiotherapy at rehab solutions. Initially she was going on a daily basis but currently is attending three times a week. She is in tears because of this constant pain.”
[21] ARD p 4.
In relation to the radiological investigations, Dr Rozario noted:
“She has had a bone scan which shows no fractures. An x-ray of the right shoulder was reported to be normal. X-rays of the left ribs are normal and no fracture are noted. An ultrasound of the right shoulder shows possible tendonitis on a partial tear. There was also subdeltoid bursitis and fluid around the biceps tendon. A CT scan of the cervical spine showed a posterior disc protrusion encroaching onto the thecal sac at C4/C5.”
After noting the applicant had “longstanding problems with fibrositis on the right shoulder” that at the time required “recurrent steroid injections”, Dr Rozario concluded the applicant’s:
“… symptoms are due to a combination of right shoulder pathology as well as cervical disc pathology. I have suggested an MRI scan of the cervical spine as well as the right shoulder. I am seeking approval from the insurance company to finance an MRI of both the cervical spine as well as the right shoulder to facilitate further treatment. I have in the meantime requested the physiotherapist to do gentle traction of the cervical spine. I have also recommended a steroid injection for the right shoulder subacromially and hopefully will organise this in the next few days.”
Dr Rozario saw the applicant again on 13 October 2004 when it was reported that physiotherapy was beneficial, in that the applicant “appear to be 97% good”, although there was “some discomfort on full range of movement of the right shoulder”.[22] The applicant was then cleared “to go back to full pre-injury duties” at the consultation with Dr Rozario on
29 October 2004.[23][22] ARD p 6.
[23] ARD p 7.
Dr Hugh English
The applicant qualified Dr Hugh English, orthopaedic surgeon, to provide an independent medical examination and report. He saw the applicant and later provided a report on
27 February 2019.[24] At the time of that report, it seems Dr English had available a3 September 2015 X-ray report of the applicant’s cervical and thoracic spine as well as a CT scan report from 8 October 2015, again of the cervical and thoracic spine.[24] ARD p 44.
Dr English noted “the CT in 2015 suggesting an old mild T4 superior endplate fracture which certainly would be potentially in keeping with the injury”.[25] The “injury” referred to in the report cites a 2006 event when the applicant “was galloping at half pace when some ducks ran across in front of the race horse which threw” the applicant and that she “landed on her head and right shoulder on the sand track”. His supplementary report of 6 June 2025 corrects the year reference as the “date of injury does appear to be 2004 not 2006”.[26]
[25] ARD p 46.
[26] ALAD-A p 3.
The initial findings and opinion provided by Dr English were that the applicant had “a neck injury (presumably actually a superior endplate T4 fracture)” and “a right shoulder injury” and he attributed those to her falling from the horse.[27] He noted “progressive generalized osteoarthritic process both in relation to the neck” and the right shoulder. The neck injury was assessed as a “T4 superior endplate fracture”.[28]
[27] ARD p 48.
[28] ARD p 50.
As already been identified, that finding has been the source of significant dispute between the parties, including on the issue of jurisdiction. It is evident however that Dr English did not at that time have available relevant medical records, including the radiological investigations reports prepared in the weeks following the 15 June 2004 incident. That material was to hand by the time Dr English prepared his supplementary report of 6 June 2025, as were the reports of Dr Rozario and other radiological evidence.
With the benefit of the additional medical records, Dr English revised his initial opinion as to likely injury and diagnosis and instead proffered “cervical disc protrusion at C4-5 and soft tissue injury to the right shoulder with bursitis”.[29] The respondent argues that finding and opinion is merely a reference to radiology rather than an explanation about how injury arose from the 15 June 2004 incident. When read in conjunction with the first report though, a causal link might be reasonably inferred.
[29] ALAD-A p 3.
Dr Richard Powell
The respondent qualified Dr Richard Powell, orthopaedic surgeon, to conduct an independent medical examination of the applicant, which occurred on 11 November 2024. In his report dated 30 January 2025, Dr Powell identified the applicant’s “history of previous problems in the right shoulder”, referring to the report of Dr Francis Teng dated
27 October 2004, which is evidently the “longstanding problems with fibrositis on the right shoulder” that were noted by Dr Rozario.In relation to the applicant’s cervical spine, Dr Powell diagnosed:[30]
“In the cervical spine, investigations revealed evidence of a C4/5 disc lesion. Management has been conservative. Ms Taylor remains symptomatic with persisting neck pain and stiffness. Examination today was characterised by diffuse tenderness and restricted range of motion, though without definitive features of radiculopathy.”
[30] Reply p 23.
And for the right shoulder:[31]
“In the right shoulder, investigation in 2004 with an MR arthrogram was unremarkable. Management has been conservative. Ms Taylor has experienced fluctuating bilateral shoulder symptoms. Although she indicated her right shoulder injury had settled following a recent corticosteroid injection, clinical examination today was characterised by diffuse tenderness and a generalised restriction in range of motion with some observed inconsistency.”
[31] Reply p 23.
In relation to the 15 June 2004 incident, Dr Powell concluded:[32]
“Based on the available information I believe it is reasonable to conclude that Ms Taylor did sustain injury to the neck and right shoulder in the workplace incident on 15 June 2004. The mechanism of injury described is sufficient to have resulted in the injuries claimed. These injuries are diagnosed above.”
[32] Reply p 25.
The evidence from Dr Powell establishes a direct connection between the applicant’s claimed injuries and her fall from the horse that is said to have caused those injuries.
Findings on injury
The respondent contends the applicant cannot prove neck and right shoulder injury following the 15 June 2004 incident. It argues that the initial report of Dr English referred to thoracic spine injury, which is correct. As already discussed, Dr English did not have all relevant medical records available to him at the time of reaching that opinion and it was later revised. His later opinion was consistent with the opinion of the expert briefed by the respondent,
Dr Powell, as well as the findings of Dr Rozario soon after the relevant incident.Although the respondent criticises the supplementary report of Dr English as addressing radiological matters, those findings are nonetheless relevant. While Dr English may not have addressed the causation issue directly, Dr Powell did and he confirms the link between the 15 June 2004 incident and the applicant’s cervical spine and right shoulder conditions. I am reasonably satisfied on the basis of the evidence from Dr Powell, Dr English and Dr Rozario that the applicant’s fall from a horse on 15 June 2004 was the cause of injury to her cervical spine.
In relation to the applicant’s right shoulder, the respondent contends the 27 October 2004 report of Dr Francis Teng,[33] demonstrates the pre-existing nature of her condition. There is no doubt the applicant had a problem with that shoulder before the 15 June 2004 fall. That is a matter that was known to Dr Powell when he formed his opinion about the basis for the applicant’s right shoulder injury being attributable to the fall incident. It was also known to
Dr Rozario, given it seems she had been involved in the treatment of the applicant’s pre-existing fibrositis condition, when she noted in her 26 July 2004 report a range of right shoulder symptoms that were apparently new since the time of the incident.[33] Reply p 15.
Given the opinion evidence from Dr Powell and the treating specialist evidence of
Dr Rozario, the 15 June 2004 fall was likely the cause of a new injury to the applicant’s right shoulder, but could have been an aggravation or exacerbation of an underlying disease condition, or it may also have been both.The evidence establishes to my reasonable satisfaction that the applicant sustained injuries to her cervical spine and right shoulder on 15 June 2004 when she fell off a horse and there was a sudden and ascertainable or dramatic physiological change or disturbance in the state of those parts of her body. The effect was immediately known to the applicant, she sought medical assistance soon after and was the subject of various radiological investigations and referral to a specialist (Dr Rozario). There may have been an underlying condition in her right shoulder, however a new injury is more likely than not to have arisen as a result of the fall. The definition of injury at s 4(a) of the 1987 Act is satisfied accordingly with respect to both the applicant’s cervical spine and her right shoulder. An aggravation or exacerbation of an underlying disease condition may also be relevant to the latter, where s 4(b)(ii) of the 1987 is applicable.
Assessments of impairment arising from those injuries have been provided by Dr English and Dr Powell. Those assessments differ as to opinion on the applicant’s level of whole person impairment. A medical dispute arises in the circumstances according to the definition at s 319(c) of the 1998 Act. It is necessary for the matter to be referred for medical assessment in accordance with s 322 of the 1998 Act.
SUMMARY
The applicant suffered injury to her cervical spine and right shoulder after falling off a horse while at work on 15 June 2004. The extent of impairment arising from those injuries requires medical assessment and the matter is referred accordingly.
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