Taylor v John Thompson Racing

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Taylor v John Thompson Racing [2025] NSWPIC 424
APPLICANT:	Teena Taylor
RESPONDENT:	John Thompson Racing
MEMBER:	Adam Halstead
DATE OF DECISION:	21 August 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 pursuant to section 66 of the 1987 Act; whether bilateral knees and left shoulder injuries arose from the nature and conditions of employment with the respondent employer; late notice of injury; section 254 of the 1998 Act considered on special circumstances; late claim for compensation made more than three years after injury; section 261 of the 1998 Act considered on whether serious and permanent disablement in relation to knees; Held – special circumstances for late claim established; insufficient medical evidence to support finding of serious and permanent disablement for knee injury; also insufficient medical evidence to support claim for knee injury; claim for left shoulder impairment below greater than 10% threshold; no basis for referral to medical assessor for left shoulder; award for the respondent.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. Award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Teena Taylor, was employed by the respondent, John Thompson Racing, as a stable hand from around the start of 2007 until 23 June 2013 (or thereabouts). She contends a left shoulder injury and injury to both knees arose due to the nature and conditions of employment. The applicant submitted a claim for lump sum compensation on
2 October 2024. The claim is disputed by the respondent. The applicant lodged an Application to Resolve a Dispute (ARD) at the Personal Injury Commission (Commission) on 5 May 2025, that initiated these proceedings.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

A preliminary conference occurred on 4 June 2025, when the matter was referred for conciliation conference and arbitration hearing. The Commission convened for arbitration 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.
The applicant sought leave to amend the ARD at the commencement of the hearing, the respondent did not object and leave was granted. The amount of lump sum compensation claimed was changed to $38,500 by amendment to the “Total WPI Amount”.[1] Reference to “right upper extremity” was deleted as a “Systems Claimed” and reference to “both shoulders” in the “Injury Description” was amended to “left shoulder”.[2] The effect of the amendment was to confine the ARD to left shoulder and bilateral knees injuries.
[1] ARD Form 2 at p 6.
[2] ARD Form 2 at p 6.

ISSUES FOR DETERMINATION

The respondent confirmed at the preliminary conference, and reiterated at the arbitration hearing, that the applicant’s claim for left shoulder injury was not in dispute.
The issues for determination relate to the claim for injury to both knees and are whether:
(a) the applicant provided notice of injury within the period provided by s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
(b) the applicant submitted a claim for compensation within the period provided by s 261 of the 1998 Act, and, if so
(c) the nature and conditions of employment with the respondent were the cause of the applicant’s bilateral knee injury.

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 262 pages, and
(b) Reply lodged by the respondent and attachments of 49 pages (Reply).
There was no application to call oral evidence or cross-examine any witness at the hearing.

FINDINGS AND REASONS

Notice

As a threshold issue, the Commission is required to determine whether the applicant gave notice of injury to her knees in accordance with s 254 of the 1998 Act, which provides that an injured worker must give notice of injury to the employer as soon as possible after the injury happened. A further requirement is that notice is to be given “before the worker has voluntarily left the employment in which the worker was at the time of the injury”.
It was submitted for the applicant that she first became aware of her knee condition, as it related to her employment with the respondent, on 12 March 2018 during a discussion with her treating doctor.[3] She is contended to have a disease injury in her knees (osteoarthritis) that has been aggravated, accelerated or exacerbated through that employment for the purposes of s 4(b)(2) of the Workers Compensation Act 1987 (the 1987 Act).
[3] ARD p 84.
Given the nature of the injury, it would not have been possible for notice to have been given before the applicant ceased working for the respondent, which she refers to as having been sometime during mid-2013.[4] The ARD suggests her last day of work was 23 June 2013,[5] which is also apparently the basis for the claimed deemed date of injury. It was therefore not possible for her to have given notice of the injury to the respondent in the circumstances and so that part of the requirement at s 254 is not applicable. It is noted that while the respondent submitted earlier dates are likely to be relevant given the clinical history of the applicant’s knee condition, the 12 March 2018 date contended by the applicant was accepted as an appropriate reference point to consider for the purpose of the dispute about notification and claim requirements.
[4] ARD p 45 at [13].
[5] ARD Form 2 pp 5 and 6.
The applicant must therefore have given notice to the respondent “as soon as possible after the injury happened” according to s 254 of the 1998 Act. There are conflicting potential relevant dates relied upon by the applicant, the first is the 23 June 2013 deemed date of injury as pleaded in the ARD. The other is the date that was the subject of submissions at the arbitration hearing, 12 March 2018, when the applicant is said to have first become aware of the work-related nature of her knee condition.
There is no dispute the applicant first gave notice of her bilateral knee injury to the respondent on 2 October 2024, the same date she submitted the claim for compensation. That was 11 years, three months and nine days after the pleaded deemed date of injury
(23 June 2013). Alternatively, it was six years, six months and 20 days after the date referred to during the hearing as the date she became aware of the employment connection. Even taking the most generous and liberal view, neither period could be found to have been “as soon as possible after the injury happened” as is required by s 254 of the 1998 Act.
The applicant referred to s 254(2) of the 1998 Act that provides a failure to given notice on that basis “is not a bar to the recovery of compensation … if in proceedings to recover the compensation … it is found that there are special circumstances”.
Various matters are defined as “special circumstances” at s 254(3) and the applicant relies upon s 254(3)(a) that the respondent has not been prejudiced in respect of the proceedings by the failure to give notice of injury”. There was apparently also indirect reference by the applicant’s counsel to s 254(3)(b) in relation to her failure to give notice of injury that was “occasioned by ignorance … or other reasonable cause”. Although the second is understood to have been referenced in submissions on s 261 (consideration of that follows).
Dealing first with the submission of s 254(3)(a) as being special circumstances, the applicant argued that there was no evidence the respondent has suffered prejudice because of late notification. Although that submission was not specifically addressed, the respondent’s position was that none of the exceptions in s 254(3) had been established by the applicant. I was not taken to any evidence either way, that is, about whether there had been prejudice to the respondent or not. The evidentiary burden lies upon the applicant, however as she would in effect be required to prove a negative, that is, that the respondent did not suffer prejudice, it is ostensibly a challenging undertaking.
While the respondent’s submission about the applicant not having established any of the
s 254(3) criteria is noted, there was not any specific claim of prejudice arising made by the respondent. Given the respondent was ably represented before the Commission and material was in evidence on the substantive dispute about knee injury, it can reasonably be inferred there has been no prejudice to the respondent or, if there was, it has been overcome during the proceedings.
In these circumstances, I am reasonably satisfied the special circumstances exception at
s 254(3)(a) of the 1998 Act can be applied to the early notice requirement. Accordingly, the applicant’s late notice is not a bar to the recovery of compensation.

Claim

Section 261 of the 1998 Act requires a claim for compensation to be made within six months after the date of injury, where that date can be when an injured worker first becomes aware of their work-related injury.[6] The six-month limit can be extended to three years if the failure to make a claim “was occasioned by ignorance, mistake, absence from the State or other reasonable cause”.[7] The applicant’s claim for compensation was submitted after even the extended three-year period.
[6] Section 261(6) of the 1998 Act.
[7] Section 261(4) of the 1998 Act.
Section 261(4)(b) provides that in such circumstances, failure to make a claim within the required period is not a bar to the recovery of compensation if the claim is also in respect of an injury resulting in the “serious and permanent disablement of a worker”.
The applicant bears the onus of proving, on the balance of probabilities, that her failure to make the claim within the six-month period was due to “ignorance, mistake, … or other reasonable cause”.[8] In Gregson v L & MR Dimasi Pty Ltd[9] (Gregson) Burke J said:[10]
“The ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the Court is required to be satisfied that the applicant was unaware of those rights and obligations and thus failed to make the requisite claim.”
[8] Absence from New South Wales is not a relevant consideration in this case.
[9] [2000] NSWCC 47.
[10] At [61].
In Westlake v Sydney Symphony Subscribers Committee,[11] O’Grady DP considered Gregson and said:
“It is my opinion that the Arbitrator’s findings with respect to the Appellant’s knowledge of his hearing difficulties over a period of time do not directly address the question as to ‘ignorance’ of the matters enunciated by Burke J in Gregson.
There is no evidence of any weight before the Commission which addresses the question as to the Appellant’s state of knowledge concerning his rights and obligations under the relevant compensation law at various times since 1978. The onus is upon the Appellant, and such evidence is essential to enable a determination as to his entitlement to be relieved, by reason of ignorance, from the obligation of compliance with the notice provisions. The Appellant has failed to establish such entitlement and, in those circumstances, I respectfully agree with the Arbitrator’s conclusion that the Appellant is debarred from recovery of compensation by reason of his non-compliance with the relevant provisions concerning notice of injury and making of claim.”[12]
[11] [2009] NSWWCCPD 12 (Westlake).
[12] Westlake v Sydney Symphony Subscribers Committee [2009] NSWWCCPD 12 [65]-[66].
In Burke v Suncorp Staff Pty Ltd[13] Snell DP confirmed a member’s findings that a worker being aware of workers compensation but not pursuing those entitlements was “a different proposition from being ignorant of the existence of those rights”.
[13] [2021] NSWPICPD 6 at [25].
It was submitted for the applicant that she was ignorant of her rights regarding workers compensation until the consultation with her treating doctor on 12 March 2018. After that date she consulted a solicitor, BTC Lawyers (BTC), for advice. If 12 March 2018 is accepted as the date the applicant’s ignorance of rights ended, as has been contended, a claim should have been made by no later than 11 September 2018, which was not done.
Although the precise date cannot be determined on the available evidence, it is obvious she retained BTC sometime before 22 February 2019, which is the date the applicant attended a medical examination arranged by her solicitor. She could therefore not be said to have been properly informed of her workers compensation rights from February 2019 at the very latest.
There was then a failure to pursue those rights for well over five years, which the applicant explains by way of a chronology attached to her 29 April 2025 statement,[14] including a change of solicitor during May 2023 and various procedural and funding issues. It is however the nature and extent of the applicant’s knee condition that needs to be examined to determine whether it causes her serious and permanent disablement because, if not, there is no further scope for compensation to be recovered from the 2 October 2024 claim.
[14] ARD p 49 at [14] adopting chronology at p 51.
The applicant’s counsel submitted that she is seriously and permanently disabled due to the injury affecting her knees on the basis she requires knee replacement surgery and has not worked since 2013. The respondent argues there is no evidence that the applicant has serious and permanent disablement from a work-related knee condition.
In Handley v Canterbury City Council[15] Wood DP outlined with reference to s 261 that a determination of whether an applicant worker “suffers a serious and permanent disablement is a factual determination which is very much dependent upon the facts of each case”. According to Gregson,[16] relevant matters for consideration to determine if the applicant suffers a serious and permanent disablement are whether she has a disability, whether it serious, whether it is permanent and if so whether it adversely affects her capacity to work. Where the disablement must arise from the injury, which is the subject of the claim, in this case the applicant’s bilateral knee condition. The medical evidence therefore needs to be examined to ascertain the nature of the applicant’s disablement.
[15] [2020] NSWWCCPD 59 at [168].
[16] At [78] per Cripps JA.
The applicant qualified Dr Loretta Reiter, rheumatologist, to conduct an independent medical examination and report in relation to her knee condition (as well as other matters). In her
23 July 2024 report, Dr Reiter took a history that the applicant “injured both knees when she was working as rider and a trainer many years ago”.[17] The applicant was found to have:[18]
“… severe right knee osteoarthritis and mild left knee osteoarthritis, which has been contributed to by her employment given that her role involved a lot of bending, squatting and kneeling to oil the horses’ feet.”
[17] ARD p 2.
[18] ARD p 6.
Dr Reiter considered the applicant “had developed bilateral knee problems and left shoulder problems due to her work as a track rider and stable hand”.[19] She opined the applicant “has not been fit for work since 2013” and “requires a right total knee replacement”.[20]
[19] ARD p 7.
[20] ARD p 9.
As was highlighted by the respondent’s counsel, and it is not in dispute, the applicant did not work as a track rider or trainer for the respondent, but rather, as a stable hand.
The history outlined by Dr Reiter refers to the applicant’s work as a rider and trainer, which is relevant to her prior employment, but not that with the respondent. Dr Reiter apparently conflates the applicant’s prior work as a track rider and trainer with her work with the respondent as a stable hand. There is no explanation about how, if at all, the applicant’s prior employment was taken into account by Dr Reiter when forming her opinion. It cannot be determined from that opinion whether the applicant’s stated incapacity for work and requirement for right knee replacement surgery is a result of her duties as a stable hand with the respondent, her prior employment as a track rider and trainer, the underlying osteoarthritis condition, or some combination of those, and, if so, the extent of each.
While Dr Reiter referred to “bending, squatting and kneeling to oil the horses’ feet”, which appears to refer to the applicant’s work as a stable hand, the extent of contribution to any injury that her earlier work as a track rider and trainer may have been is not addressed. It was undoubtedly relevant because Dr Reiter specifically refers to knee injury in the historical context of track riding and training work. Delineation of the impact from each type of work is essential given they were markedly different duties for different employers at different times. The nature and degree of the pre-existing osteoarthritis is also not explained. It is therefore not possible to determine from Dr Reiter’s report the effect the applicant’s work as a stable hand had on the claimed bilateral knee condition.
According to Dr Robert Powell, orthopaedic surgeon, the independent medical examiner qualified by the respondent, there was no contribution from employment:[21]
“In relation to the knees, taking into account the nature of the duties she has performed in the course of her employment, I do not believe there is sufficient evidence to conclude that her employment represents the main contributing factor in the development or aggravation of the degenerative disease process involving the knees. This is likely to be constitutional in nature.”
[21] Reply p 46 at [7].
In a 10 January 2008 report of Dr Loretta Rozario, a consultant rheumatologist treating the applicant at the time, there was then a “3-4 month history of pain” in the right knee and where there had been no injuries reported. There was no connection made by Dr Rozario between the applicant’s right knee condition and employment at the time.
More recently, the orthopaedic surgeon treating the applicant, Dr Wisam Ihsheish, reported on 27 July 2023 following an MRI scan, that her right knee “had symptoms suggestive of degenerative change”.[22] Again, no connection was made to the applicant’s prior employment, but it was reported by Dr Ihsheish on 7 December 2023 that she had been encouraged to pursue “weight control measures” to “help with symptomatology”,[23] which would seem entirely unrelated to employment almost 10 years before.
[22] ARD p 195.
[23] ARD p 197.
Dr Hamish Rae, orthopaedic surgeon, had treated the applicant earlier and in his 8 January 2018 report it was recorded she had “a history of right knee pain for the last three to four months following a fall”. The applicant’s employment with the respondent had been over by more than four years at the time of that reported fall.
The medical evidence establishes the applicant has a knee condition that causes disability, the right more so than the left. The disability is apparently serious, according to Dr Reiter a total right knee replacement will be necessary, and it can be reasonably inferred from the various medical reports that the condition is permanent given it has been longstanding and there is no indication it will resolve. Although the knee condition was not specifically identified as the cause, Dr Reiter considered the applicant unfit for employment, the extent to which the knee condition is responsible for that incapacity is unclear.

In any event, the medical evidence does not establish the applicant’s knee condition is attributable to her employment with the respondent. Dr Reiter’s evidence is not specific, and the other reports do not make any connection with the applicant’s work for the respondent. I am not reasonably satisfied on the available evidence that any serious and permanent disablement the applicant may experience from a bilateral knee condition arose from her employment with the respondent. This means that the essential requirement at
s 261(4)(b) of the 1998 Act is not present and so there is no basis for the applicant’s late claim to be accepted. The applicant’s failure to make a claim within the period required by
s 261 thereby acts as a bar to the recovery of compensation.

Bilateral knee injury

Even in the event the applicant’s claim was made within the required time, or the exception at s 261(4) of the 1998 Act could be applied, the medical evidence is not sufficient to establish her employment with the respondent was the main contributing factor that caused the worsening of an existing condition as is required by s 4(b)(ii) of the 1987 Act.
The test of “main contributing factor” was considered at length by Snell DP in AV v AW [24] and he identified it as one of causation involving consideration of the evidence overall rather than as a purely medical question. An evaluative process must be applied, considering the causal factors to the aggravation, both work and non-work related. It is “necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole”.
[24] [2020] NSWWCCPD 9 at [65]-[78].
For the reasons already outlined above, Dr Reiter’s findings lack sufficient precision, and I am unable to determine the extent to which, if any, the applicant’s employment with the respondent contributed to her knee condition. There is no support for a work-related link from Dr Powell or the treating specialists.
The extent of the applicant’s evidence is that her work with the respondent “involved a lot of bending down to clean the stables” and that she “had to do a lot of bending … to put oil on the feet of the horses” and she “also had to kneel”.[25] Although she formed the view that “bend[ing] down to clean stables caused [her] knee problems”,[26] the applicant also referred to the “problem with [her] knee” that “started when [she] was riding because [she] had to ride short and that meant keeping [her] knees up high”,[27] which was reference to work she did prior to commencing with the respondent. While the applicant’s view may be that her work as a stable hand for the respondent was the cause of her knee problems, the medical evidence does not provide sufficient support for that proposition.
[25] ARD p 44 at [10].
[26] ARD p 44 at [8].
[27] ARD p 43 at [8].
The expert opinion provided by Dr Reiter suggests the applicant’s work as stable hand for the respondent is a relevant consideration for determining the cause of any worsening of an underlying osteoarthritis condition. It is not possible though, based on the specialist’s report, to determine the extent of contribution from that employment. She did not adequately address the other factors relevant to the applicant’s knee condition and provided no proper explanation for how the applicant’s pre-existing condition was impacted by the various periods of work with different employers. I cannot determine whether the applicant’s period of employment with the respondent would have been the main contributing factor in the circumstances and on the available evidence. In short, and on balance, the medical evidence does not support the applicant’s claim that her employment with the respondent was the main cause of any worsening of her bilateral knee condition.

Left shoulder injury

It is undisputed that the applicant’s left shoulder condition arose from the nature and conditions of the applicant’s employment with the respondent. She seeks lump sum compensation for impairment caused by that condition. Section 66 of the 1987 Act provides that a worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive compensation from the employer.
The expert medical opinion relied upon by the applicant for assessment of permanent impairment, the 23 July 2024 report of Dr Rieter, assessed the applicant at 9% whole person impairment (WPI) for the left shoulder condition. Dr Powell’s report prepared for the respondent on 30 January 2025 assessed the applicant’s left shoulder with WPI of 6%. Neither assessment is greater than 10% as required by s 66 of the 1987 Act.
Accordingly, there is no valid claim for permanent impairment compensation, and, in the circumstances, it is not proper for the matter to be referred pursuant to s 322 of the 1998 Act for medical assessment of permanent impairment: Voudouris v TDV Constructions Pty Ltd.[28]

SUMMARY
[28] [2023] NSWPICPD 53 at [49] to [51].

The applicant’s claim for lump sum compensation in relation to her bilateral knee condition was not made within the period required by s 261 of the 1998 Act. The exception for a late claim made more than three years after the date of becoming aware of injury is not available because the evidence does not establish the applicant is seriously and permanently disabled due to the claimed injury. Even in the event the claim could be accepted, there is insufficient evidence to establish the claimed injury arose from the applicant’s employment with the respondent.
The applicant’s claim for permanent impairment arising from left shoulder injury is not valid because the evidence does not establish the greater than 10% threshold requirement at
s 66 of the 1987 is satisfied.
Given neither part of the applicant’s claim can succeed, there is an award for the respondent.

[2025] NSWPIC 424

21 August 2025