Thornton v Coles Supermarkets Australia Pty Ltd
[2022] NSWPIC 74
•22 February 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Thornton v Coles Supermarkets Australia Pty Ltd [2022] NSWPIC 74 |
| APPLICANT: | George Thornton |
| RESPONDENT: | Coles Supermarkets Australia Pty Ltd |
| MEMBER: | Michael Perry |
| DATE OF DECISION: | 22 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION – Claim under section 66 of the Workers Compensation Act 1987 (1987 Act) made, in November 2020, for lumbar spine injury from incident on 24 July 2014; liability accepted for payment of compensation since then; respondent files reply to application on 4 August 2021 noting quantum of the lump sum being the only issue; matter then referred to the medical assessor on 30 August 2021; respondent served notice under section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) on 14 October 2021 seeking to dispute previously notified matters including whether incident occurred at all, or in the manner alleged by applicant, and whether any incident caused the injury; Held- the leave sought under section 289A (4) of the 1998 Act to rely on section 78 of 1988 Act notice refused; application of Mateus v Zodune Pty ltd t/as Tempo Cleaning Services principles; in particular the merits and substance of the matter as well as the nature and extent of the delay producing likelihood of significant complexity and difficulty in a determination if the leave had been granted. |
| DETERMINATIONS MADE: | 1. The respondent’s application under s 289A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to rely on previously unnotified matters in the purported notice under s 78 of the 1998 Act by letter of 14 October 2021 is refused. 2. The referral for assessment of permanent impairment to the Medical Assessor, dated 30 August 2021 be supplemented by the following documents being provided to the Medical Assessor in addition to the Application to Resolve a Dispute and Reply (together with attachments to both): a. Respondent’s Application to Admit Late Documents dated 2 November 2021 (RLD1): (i) Dr Saad report 12 August 2012 (page (p) 26); (ii) Mr Hua report 28 November 2014 (pages (pp) 31-32); (iii) Dr Ketheswaran x-ray 24 July 2014 (p 36); (iv) Dr Wong x-ray 17 December 2014 (pp 44), and (v) Dr Gray report 19 August 2014 (p 46). b. Respondent’s Application to Admit Late Documents dated 26 November 2021 (RLD 2): (i) Dr Saad MCs 5 August 2014 (pp 5-7); (ii) Dr Kulkami MRI 8 August 2014 (p 21); (iii) Dr Saad notes 5-25 August 2014 (p 57); (iv) Dr Chadban CT scan 28 July 2014 (p 64); (v) Dr Cheng MRI 1 May 2015 (pp160-161); (vi) QBE file notes 7 November 2003 (pp 329-342); (vii) Dr Le Roux CT scan 29 September 2003 (p 343); (viii) Ms Bickley physio 28 September 2003 (p 344); (ix) Dr Le Roux x-ray 21 July 2003 (p 345); (x) Dr Arian report 1 August 2003 (pp 346-348); (xi) Dr Arian MCs 19 August 2003 (pp 349-358); (xii) SNP Rol 5 August 2003 (pp 359-360); (xiii) Applicant Rol 29 July 2003 (pp 361-362), and (xiv) SNP incident 2 July 2003 (p 363). c. Respondent’s Application to Admit Late Documents dated 10 December 2021: (i) Dr Arian Medical Certificates 2 February 2008 (pp 79-86). d. Respondent’s Application to Admit Late Documents (RLD) dated 14 December 2021: i. Medical records – various dates (pp25-355; pp 79-86; pp 89-91 and 3. That if the respondent wishes to request a direction for production of documents with a view to any such documents being provided to the Medical Assessor (but only consistently with paragraphs 104 -106 of the attached reasons), I direct the parties to: a. confer with a view to attempting to reach agreement about the issuing of any such direction for production sought, and b. communicate the results of such conference referred to in (a) above to the Personal Injury Commission including for the purposes of any such direction for production being issued by the Personal Injury Commission and any such documents produced being also referred to the medical assessor, or; c. whether either or both parties request a further telephone conference in the event of disagreement in these respects. |
STATEMENT OF REASONS
BACKGROUND
These proceedings were commenced by George Thornton (the applicant) on 14 July 2021 by an Application to Resolve a Dispute (ARD) claiming $54,905.17 (the claim), reflecting 28% whole person impairment (WPI) under s 66 of the Workers Compensation Act 1987 (the 1987 Act). The claim is based on alleged injury to his lumbar spine received in the course of his employment as a picker/Packer with Coles Supermarkets Australia Pty Ltd (the respondent) on 24 July 2014 (the injury). The allegation is of a personal injury that day when the applicant was “with the assistance of a co-worker required to lift 2 heavy crates at a time into the back of …delivery van …bottom crate had heavy objects… therein” (the incident).
Between about August and October 2014, the respondent assessed the applicant’s allegations about the injury and incident. It then accepted liability and has voluntarily paid him weekly payments and medical/ hospital expenses compensation since.
The respondent filed a Reply to the ARD (Reply) on 4 August 2021, confirming the “dispute” was “… as per exchange of offers referred to in the application”. The claim was the applicant’s “offer”. By letter of 29 June 2021, the respondent offered $51,880, reflecting a 21% WPI, to meet the claim. The only dispute identified was whether the claim was entitled to exceed the threshold under s 151H of the 1987 Act “in order to maintain a claim for work injury damages (WID)”. The respondent relied on reports from Dr James van Gelder dated 7 May 2021 and 28 May 2021 which apportioned the 21% WPI “as 40% attributable to the July 2014 injury, 20% to the January 2016 injury and 40% to the nature and conditions of employment”.
Given the terms of the ARD and Reply, Ms Trish Dotti, senior dispute services officer of this Persona Injury Commission (the Commission), effected a referral for assessment of the WPI issue to a Medical Assessor (the Assessor) pursuant to s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The referral identified a date of injury of 24 July 2014 and the lumbar spine and scarring as the body parts.
Medical Assessor Ian Meakin was appointed as the Assessor. The referral notes the Assessor was to be provided with the ARD and Reply.On 14 October 2021, the respondent issued a notice under s 78 of the 1998 Act (the s 78 notice) and emailed it to the applicant’s solicitor, but it was not lodged with the Commission until 2 November 2021. The s 78 notice disputes liability, essentially on all grounds – denying there was injury in the course of employment, and that the employment was a substantial, or the main, contributing factor to the contracting or aggravation etc of a disease; and denial of any liability for any compensation under the 1987 Act.
Both parties agree that the referral to the Assessor was competently performed. Therefore,
s 289A of the 1998 Act is relevant; the dispute raised in the s 78 notice is not able to be referred for determination because it concerns matters not previously notified as disputed – subject to s 289A (4), which allows for the hearing of a dispute relating to previously unnotified matters, if the Commission is of the opinion it is in the interests of justice to do so.Accordingly, these reasons deal only with the interlocutory application by the respondent to rely on the s 78 notice and the issues relevant to that notice. These reasons are lengthier than a usual interlocutory decision because both parties have provided lengthy written and oral submissions – essentially because the circumstances are such that this decision has the potential to be dispositive of most issues between the parties in the Commission.
ISSUES FOR DETERMINATION
The parties agree the issue in dispute is whether the respondent can rely on the s 78 notice.
PROCEDURE BEFORE THE COMMISSION
I attempted to deal with the issue, both in the initial telephone conciliation conference and at further telephone hearings on 15 December 2021 and 17 January 2022. The applicant was represented by John Dodd of counsel, instructed Anthony Macri, solicitor. The respondent was represented by Simon McMahon of counsel, instructed by Mersina Kikinis, solicitor.
Ms Monica Nguyen from the respondent’s insurer was also assisting.I am satisfied the parties understand the nature of the application and legal implications of any assertion made in the information supplied. I used my best endeavours to bring them to a settlement acceptable to each. They were unable to reach any settlement.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination – on this interlocutory application:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) Application to admit late documents by respondent dated 2 November 2021 (RLD1);
(d) Application to admit late documents by respondent dated 26 November 2021 (RLD2), and
(e) Application to admit late documents by respondent dated 13 December 2021 (RLD3).
The whole of the evidence referred to by counsel in their extensive oral and written submissions has been taken into account. The following is a summary. The respondent has helpfully provided a “Respondent’s Chronology” which lists important events (the chronology - RLD3). The applicant made no complaint about the chronology or the use of it.
The chronology notes a “previous injury to the neck and back” on 19 July 2003, including a GIO claim when the applicant was employed with “Sydney Night Patrol”. The relevant documents refer to him sustaining “soft tissue damage to neck and back” on or about that date “after not using a headset for an extended period … (or holding the phone and typing for extended periods)”. He appears to have had some limited time off work, returned soon thereafter to light duties, and then marked fit for his pre-injury duties on or about 19 October 2003 (RLD 2; pages (pp) 333-342 and page (p) 358).
The chronology also refers to a lumbar spine CT scan on 29 July 2003, summarising it as “mild broad based posterior disc bulging at L5/S1 level”. I have read that report. It goes on to note “no signs of disc herniation or nerve root entrapment … facet joints are normal. alignment is normal … normal appearance otherwise …”.
The respondent also refers to the applicant’s presentation to the Wallsend Family Medical Centre (WFM) on 5 February 2007. The full note of the relevant record that day from
Dr Arain reads “low back ache, injury 4/02, went to Wallsend Hospital, had x-ray, had Celebrex, past H/O back injury, 2yrs ago O/E local tenderness L4 L5, SLR 30 degrees 0 both sides, no neurological deficit, ref physio”. The WFM records show the next visit on 16 March 2007, being a complaint of central chest pain, with no mention of any low back problem. The next WFM record is on 13 June 2007 where reference is made to a complaint of worsening low back pain radiating into the left leg and noting the injury sustained four months ago was due to lifting a heavy weight (possibly the same injury as that noted on 5 February 2007).The chronology also refers to notes of the John Hunter Hospital emergency department (JHH) discharge notes on 23 January 2008, referring to a “crush injury to left flank… engine block fell onto the claimant … investigations…clear/NAD discharged with analgesia and rest”. The investigations appear to be an x-ray and an ultrasound of the applicant’s abdomen. Treatment is noted as analgesia and rest. There is also a medical certificate on 23 January 2008 from a JHH doctor – referring to the injury happening while working with “Economy Sweepers…” as a driver when a “motor rolled onto left side” and a “crush injury – soft tissue contusion”. The certificate marks the applicant fit for pre-injury duties on 29 January 2008.
The chronology also refers (RLD 2 p 367) to previous insurer records relating to an event on 23 January 2008. Clearly enough, this relates to the same matter for which the applicant presented to JHH on 23 January 2008. The records show the insurer paying $971.96 for total incapacity payments and a “grand total … $3,265.25” including medical and hospital expenses. The chronology also notes an attendance on Dr Arain at WFM on Sunday 27 January 2008. This presentation related to treatment or advice for the 23 January 2008 incident for which he presented to JHH. The chronology records Dr Arain noted left lumber tenderness; and that the tenderness did persist until he saw the applicant on 1 February 2008. Dr Arain also then records that tenderness as “mild” and that a “M/C final issued”.
The WFM notes show Dr Arain next saw the applicant, relevantly, on 4 August 2010. The doctor noted:
“injury at work 27/07/10 while lifting Whizz Bin with another person to the trailer, hurt his back … since then pain lower back … no radiation … feeling better now … mild tender … sacroiliac region … no neuro deficit ?? SOFT TISSUE PAIN …”
The WFM records show that the applicant continued to attend that practice, mainly seeing
Dr Arain, on a reasonably regular basis until near the end of 2011. All such attendances were for matters other than to do with his lumbar spine. I am unable to see any such references during that period to the lumbar spine, nor does the respondent point to any.In his 22 July 2019 statement, the applicant alleges he sustained his low back injury on 24 July 2014 when he was lifting delivery crates with a co-worker, “Chris”. On 5 August 2014, an incident report was created, noting an incident involving “strain/sprain … back – lower … left”. The report was created by Mathew O’Callaghan at 11.21 am on 5 August 2014. As to the “mechanism”, this report notes “… muscular stress while lifting, carrying, or putting down objects … carton”. The report also states a nurse was called and the applicant visited an “injury care doctor”. The “Reporting Person Details” is stated to be Naval Naidu, the “store support manager”. The incident description is “… lifted a crate while unloading a truck and experienced back pain. No treatment at the time of the incident. No emergency services”. The incident is noted to have occurred at 12am on 24 July 2014 (ARD pp 462-466).
The ARD (p 458) shows an x-ray report of the applicant’s lumbar spine on 24 July 2014. That report does not appear to identify any significant abnormality – but does suggest a CT or MRI scan be done “if clinically concerned or discopathy and/or nerve root impingement”. This report does not contain any clinical notes. But there is another version of the report of that x-ray appearing at RLD 2 p36. The content of that version appears identical to the ARD version. But there are differences. The ARD version appears to be a copy of the report from the radiologist to Dr Gore, with the insignia “Medical Imaging Bankstown” with address/contact details and members of that practice. It is also addressed “Dear Dr. U Gore”.
The reply version of the 24 July 2024 x-ray report does not include the insignia. But it does contain more information otherwise; including the applicant’s Medicare number, the time the report was requested (13:06 hours 24 July 2014), the “Lab reference” and also the following:
“Clinical Notes: pt had an accident 3 years ago and has LBP radiating down left thigh since.”
Ms Kikinis has stated (26 November 2021; RLD2) that she caused an authority to be sent to Dr Gore on 12 October 2021 and for Dr Gore to be contacted at Bankstown MedClinic to obtain a copy of clinical records. Her personal assistant, Ms Grundy, wrote to Dr Gore on 12 October 2021, noting she had spoken to him by telephone that day, and attached an authority to release clinical records. On 13 October 2021, “Jobfit Sydney Reception” wrote to Ms Grundy confirming “in archives, we do not have any other records/documents in relation to Mr George Thornton dob: …. pre 05 August 2014 … George Thornton was first seen by our clinic on 05/08/2014”. The records produced appear to be from 2019.
Ms Grundy then emailed Ms Kikinis on 14 October 2021 noting that Dr Gore:“worked in Yagoona at his own practice … doesn’t have any records from there of this patient just what he has already sent us … said … patient walked in and walked out, he only saw him once. So, he has nothing pre-2014 … said there has to be another dr with previous records … I referred him to the 2014 x-ray report and the comment of the previous injury, Dr Gore confirmed he has no idea of a previous injury and doesn’t have any records prior to 2014 so it would have to be another Dr.”
On 28 July 2014, there is a further radiological report, a CT lumbosacral spine. This was also requested by Dr Gore that same day. This CT appears to show a posterior disc bulge at the L4/5 level and a broad based central posterior disc protrusion at the L5/S1 level, and minimal early facet joint degenerative disease.
Between 14 October 2021 and 8 December 2021, the respondent made various attempts to obtain medical records from various doctors, including Dr Gore, Dr Havryliv and to obtain records from the insurers, GIO, Allianz, QBE and EML, particularly claim files. Authorities have been provided to both those insurers and the doctors. It appears in this respect the applicant has been cooperating with the respondent’s attempts to obtain this information. In effect, both Dr Gore and/or Dr Havryliv have provided information either formally or informally to the effect that whatever limited records that they do retain have been provided.
The remainder of the salient history appears in the chronology essentially starting from 5 August 2014 when the applicant first consulted with Dr Saad who took a history of the incident that was reasonably consistent with the content of the incident report form created on the same day. I have considered all such material, including the evidence referred to in the applicant’s submissions, and it is not necessary to trace through all of that. Much of it is noted in the submissions recorded below and the salient aspects for the purposes of this interlocutory application form part of the findings and reasons below.
Submissions
Each party provided lengthy written and oral submissions. It is unnecessary for me to set out the full detail of these submissions, although I have considered and taken into account all such submissions. However, the following is a summary of those submissions.
Submissions for the applicant
A claim for compensation was made on 5 August 2014 with the “reporting person” being
Mr Naidu (A462-466). Surprisingly, he is now being relied upon by the respondent as maintaining that the applicant told Mr Naidu he was injured at home. A consistent history of the injury was given to Dr Saad on 5 August 2014 and he was sent for an MRI of his lumbar spine that day. A consistent history was also given to a treating specialist, Dr Gray, on 19 August 2014. A consistent history was also given to Dr Stephenson on 1 October 2014. In the letter from the respondent to Dr Stephenson, doubt was expressed regarding the occurrence of the injury and whether it was caused by a sneeze.All WorkCover medical certificates provide for the worker to give consent for medical practitioners and insurers to exchange information.
The respondent paid compensation, including s 60 expenses in respect of surgery to the applicant’s lumbar spine on 17 October 2014. The respondent also accepted its obligation to provide the applicant with suitable duties. On 7 October 2015, the respondent considered the applicant’s claim arising from the 24 July 2014 incident was “finalised”, as he had returned to usual duties, but invited the applicant to contact his case officer if there was a recurrence of symptoms. So, the 24 July 2014 injury was still accepted and was not disputed.
There was an aggravation sustained by the applicant to his lumbar spine while on selected duties on 13 January 2016, amongst a number of “flare ups” of symptoms after his original injury and surgery.
On 26 May 2017, the respondent was put on notice of a possible work injury damages (WID) claim once the s 66 benefits were ascertained. The applicant came under the care of
Dr Donnellan and underwent lumbar fusion surgery on 14 December 2018. The applicant gave notice of a potential WID claim on 25 June 2019. Soon thereafter, the respondent obtained statements from Mr Naidu (6 September 2019) and Mr Fraser (20 September 2019). These were not served on the applicant’s solicitors until the s 78 notice of 14 October 2021. Apart from obtaining these statements, the respondent has not disclosed what other enquiries were made in 2019. The respondent did seek further and better particulars of the WID claim on 12 July 2019 and the applicant responded to that request by letter of 7 January 2020. It appears the respondent never determined the WID claim as required by this s 281 of the 1998 Act.In terms of Mateus v Zodune Pty ltd t/as Tempo Cleaning Services [2007] NSWWCCPD227 (Mateus), dealing with events from over seven years ago will be extremely difficult and complex. The applicant will have to recollect what conversations he had with Mr Naidu and Mr Fraser and whatever was said or recorded by a radiologist. Cross examination of
Mr Naidu and Mr Fraser will be difficult, with the witnesses trying to recall what was said over seven years ago and in dealing with various inconsistencies, such as Mr Naidu then noted as the “reporting person”, apparently in support of the applicant’s compensation claim. Whatever further enquiries and decisions were made by the respondent at the time which led to acceptance of the claim will also require examination. The first notice from the respondent was the s 78 letter of 14 October 2021 – seven years since the injury, and after the respondent had made enquiries regarding the injury at the time and accepted liability.The applicant also notified a possible WID claim on 26 May 2017 and a further notice for a WID claim was made on 25 June 2019. Still there was no notice of a dispute, even after it was clear there were further enquiries into the question of the occurrence of the injury, resulting in the statements from Mr Naidu and Mr Fraser. The respondent then failed to determine the WID claim after particulars were provided on 7 January 2020 and failed to advise that injury was in dispute after the s 66 claim was made on 18 November 2020. It also failed to place injury in dispute when the respondent’s solicitors made the offer of settlement on 29 June 2021 and when the Reply was filed on 4 August 2021. It is untenable for the respondent to now try and raise these issues after it has had many opportunities to do so over many years, and also after having conducted investigations.
As to the degree to which the insurer has otherwise fulfilled its statutory obligation, there is no evidence the respondent ever fulfilled its obligation to dispute liability until 14 October 2021. This is despite there being many opportunities to do so, as referred to above.
The applicant will be extremely prejudiced if the respondent is able to dispute the occurrence of the injury on 24 July 2014. Recollections will have to be made of conversations and sequences of events occurring over seven years ago. Corroborating evidence will be impossible to find. Dealing with cross examination arising from “verbals” attributed to the applicant by Messrs Naidu and Fraser and whatever is recorded in medical notes will be untenable.
A decision by an insurer to dispute a claim for compensation should not be made lightly or without proper or careful consideration of the factual and legal issues involved. There is no evidence from the respondent about its consideration of this claim – particularly over time. The fact that the respondent never disputed the claim over seven years, despite many opportunities to do so, indicates that it had made a careful consideration to accept the claim.
No explanation is given for the lengthy delays, save for the statement from the respondent’s solicitor and chronology. However, these documents fail to deal with the question of what was done to investigate the claim by the respondent’s solicitor after being engaged to do so in June/July 2019. There is no explanation of what occurred after the Naidu and Fraser statements were obtained and why a determination was not made of the WID claim in 2020, why the issue of injury was not notified to the applicant when the s 66 claim was made in 2020, why the issue of injury was not put in dispute in the offer letter of 29 June 2021, why the issue of injury was not put in dispute in the Reply filed on 4 August 2021 or what enquires were made by the respondent and the results of those in 2014 – as indicated in the letter of Dr Stephenson in 2014. There is also no explanation as to why the respondent did not make further enquiries over the last seven years when enabled to do so by the consent given by the applicant to liaise with his medical practitioners.
The statement by Ms Kikinis only points to a difference between the histories set out in different copies of the 24 July 2014 x-ray report to say she only received the later copy on 14 October 2021. This fails to provide any explanation for the delay. There is no explanation, nor is the Commission informed as to why enquiries were only commenced in mid-October 2021.
In terms of the merits of the case, the statement of Mr Naidu is contradicted by the contemporaneous records, including him being noted as the “reporting person”. It is now suggested by Mr Fraser that he was told that the applicant only injured his back when he sneezed. This is unbelievable compared with the respondent’s own report of injury and acceptance of liability.
It is suggested that a radiologist taking a one line “history” of the applicant suffering an accident three years ago with “LBP radiating down left thigh ever since” should be accepted, contrary to the applicant’s evidence that he worked for the respondent for three years prior to the injury on 24 July 2014. The evidence from Mr Fraser is that the applicant’s state of health appeared normal, although Mr Naidu said that the applicant’s state of health “did not appear normal” during the length of the employment. He thought the applicant “used to be a bit slow and was limping prior to the incident … he was slow in general”.
In terms of the conduct of the parties, the statement by Ms Kikinis seeking to portray the availability of additional evidence as only coming to light in October 2021 is problematic – there is a failure to disclose what investigations have been made by her over the years and/or why the additional evidence only then came to light, nor is there reference to the statements obtained from Messrs Naidu and Fraser, obtained in September 2019, and which formed the basis for the s 78 notice of 14 October 2021. The respondent has tried to make it look like it has been caught by surprise when in reality it has made many enquiries into the applicant’s claim already and had opportunity to make many more before October 2021.
Section 321A of the 1998 Act states that a medical dispute about WPI may be referred for assessment by a Court, the Commission, or the President. This case had not been allocated to a Member of the Commission as liability was not in issue. The referral of the matter to an Assessor was therefore done under the delegated power of the President. If the respondent were allowed to amend its Reply to put injury in issue, this could only lead to the referral of the medical dispute by the delegate being overridden by a Member of the Commission, who only has whatever jurisdiction is conferred from them pursuant to s 24 of the Personal Injury Commission Act 2020 (the PIC Act) and s 288 of the 1998 Act, which provides a dispute about a claim for compensation can be referred to the President for determination by the Commission.
There are no provisions in the 1998 Act, the PIC Act or the Personal Injury Commission Rules or procedures for a Member of the Commission to interfere with a decision of the President’s Delegate. Therefore, there is no jurisdiction to “overrule” the decision of the President’s Delegate.
Submissions for the respondent
The proposed s 78 Notice seeks to dispute liability both in terms of whether the event alleged by the applicant to have occurred on 24 July 2014 happened in the manner alleged or at all, and also in terms of causation; in the sense that there now exists evidence showing the applicant had previous problems with his back to the extent that it may be said the incident was not relevantly causative of the low back injury.
Since the decision was made in late 2014 to accept liability for the injury, the respondent:
“has received various material including … x-ray dated 24 July 2014 … provides a clinical history of ‘Pt had an accident 3 years ago and has LBP radiating down left thigh since’ … two previous claim files in relation to injuries to the lumbar spine … previously not disclosed … clinical file of the Wallsend Family Medical Centre (WFMC) … identifies two previous injuries to the lumbar spine for and various other incidents involving the lumbar spine.”
The Reply version of the 24 July 2014 x-ray was not received by the respondent until 14 October 2021. Noting the submission for the applicant that s 290(3) of the 1998 Act provides that any document or information that a party has failed to provide cannot be admitted (with certain limited exceptions) which provides, inter alia, that a party must lodge and serve all relevant information and documents, such material in the present case “did not become relevant until the respondent sought to put the question of injury, causation et al in issue … no breach of the statutory provision(s) … conceded however criticism … for delay”.
In terms of the Mateus factors:
(a) the issues of the case are neither difficult nor complex and concern determinations made by the Commission on a regular basis. It is accepted that the effluxion of time does cause a difficulty; however, the determination of events occurring some time ago is neither new nor novel to the Commission and this is not a circumstance where factual material is unavailable (leaving side the clinical file of Dr Gore);
(b) in terms of delay, the respondent received the factual material concerning “injury and whether the event had in fact occurred in late 2019” following a WID claim. Delay is conceded and is complicated by the fact the injury occurred some seven years ago; but this must be considered in the light of the respondent’s receipt of both factual material (statements) and medical material (Reply version of the 24 July 2014 x-ray), further claim files and clinical files. This material leaves no doubt that the plaintiff has suffered previous injuries to the lumbar spine. The delay is not unreasonable or unexplained in the light of that material and the respondent has sought to prosecute the issue and taken a multitude of steps concerning it. The matter is complicated by the applicant’s failure to disclose a long history of problems with the lumbar spine, and
(c) in terms of the merits, the Naidu and Fraser statements suggest the likelihood of the applicant not injuring his back. The same applies to the incident report form, showing the incident allegedly occurred at 12am on 24 July 2014, but was not reported until 5 August 2014. The Reply version of the 24 July 2014 x-ray report was done at 1:06pm. That report is consistent with him having long-standing back problems. The same applies to the clinical material produced by WFM. These matters have not been disclosed to Medical Assessors. The 29 July 2003 CT, 28 July 2017 CT, and the 8 August 2014 MRI scans identified low back pathology. There is limited change in the pathology shown on these scans between 2003 and 2014.
There are at least two previous claims for workers compensation the applicant had not previously disclosed – and he had provided a positive assertion that he had not been involved in other accidents (Reply p 73).
There is clear merit and substance in the dispute that is sought to be raised by the respondent. As to the degree to which the insurer has otherwise fulfilled its statutory obligation to notify the worker of its decision disputing liability, there has been compliance with the statutory obligations, though the respondent concedes criticism has been levelled at it due to the timing of that service.
In terms of prejudice, the respondent concedes that the effluxion of time and the fact that the applicant is alleged to have suffered injury to the lumbar spine causes prejudice to him – prima facie. But there is no real prejudice because the applicant would have the ability to traverse any evidence relied upon by the respondent. He has provided evidence concerning the alleged event already (ARD p 4). He has not identified any difficulty with his memory of the period or the factual circumstances and has not put on evidence that seeks to contradict the factual accounts of Mr Naidu or Mr Fraser. The fact that the applicant has been receiving weekly compensation alleviates the financial burden he might suffer as a result of the delay should the respondent be granted leave to dispute the claim.
There is a need to act according to equity, good conscience and the substantial merits of the case, although these matters will not be determinative. The respondent paid the applicant compensation on the basis of various positive but incorrect assertions made by him.
The applicant provided a statement to the effect that he has no history of prior complaints and refers to treatment occurring after the event of 24 July 2014, including scans of his spine, but makes no mention of the 24 July 2014 x-ray (ARD p 7). He also states that prior to the injury he was fit and well (ARD p 12). He has also provided a reply to the respondent’s request for particulars on 7 January 2020 and positively asserted he had not been involved in any other incidents (71 RLD and 73 RLD). He attended on Dr U Gore on a date unknown and then attended a medical imaging practice on 24 July 2014 at 1.06pm, then a further CT scan on 28 July 2014. He then changed to a different general practitioner and commenced attending upon Dr Saad from 5 August 2014 (ARD p 57). He has also provided positive histories of no previous problems with his low back to various doctors, including Dr Giblin,
Dr van Gelder, Dr Machart and Dr Stephenson (Reply p 52). Dr Stephenson did take a history of two previous events but such history is incomplete. The report is an “abrasion” on the left side of the flank and a “muscular strain”. There is no report of radiculopathy. The clinical material now available shows clear reports of radicular type complaints in the left leg and further pathology in the lumbar spine. The conduct of the applicant has, either deliberately or mistakenly, resulted in the respondent accepting liability for the claim of compensation.In terms of the respondent’s conduct, the delay as referred to earlier is accepted but it “has acted promptly upon it being properly alerted to the pre-existing clinical notes … took the unusual step of obtaining from SIRA a schedule of previous …claims advanced by the applicant and sought production of those files …”. The respondent conceded the applicant be referred for assessment by an Assessor, then “… further information has been made available … conducted a multitude of investigations which would not have been required at this stage had the applicant disclosed the previous injuries and claims … and clinical history …” . While the respondent did have opportunities to investigate the applicant’s claim, and did do so, those investigations were always hampered by the applicant’s deliberate or mistaken failure to disclose previous injuries and complaints upon which the respondent relied.
The applicant’s submissions in relation to the jurisdiction issue are incorrect. The only dispute, both before and after 14 October 2021, has been the degree of WPI suffered as a result of the injury. This is a “medical dispute” under s 319 of the 1998 Act. Section 293 of that Act provides that a referral for medical assessment can precede determination of the dispute by the Commission pending the outcome of that assessment. The referral in this case was not a “determination” of the Commission. The referral to the Medical Assessor, pursuant to s 321A of the 1998 Act, relates only to the medical disputes concerning the degree of WPI. Section 321A(3) provides that a medical dispute may be referred by a Court, the Commission or the President. Section 321(A)(2) provides that a medical dispute may not be referred for assessment if the dispute concerns permanent impairment where liability is in issue and has not been determined by the Commission. The current “dispute” is the degree of WPI said to arise from the injury. That dispute has not been determined. It will not be determined by the Commission until such time as a certificate is issued pursuant to s 294 of the 1998 Act.
The Commission has powers that are incidental and necessary to the exercise of its statutory jurisdiction (Patrick Stevedores Holdings Pty Ltd v Fogarty [2014] NSWWCCPD76 (Fogarty)). Under s 105(1) of the 1998 Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters under the 1998 Act and the 1987 Act (Fogarty). The terms of s 289A and corresponding provisions in the 1998 Act make it clear that once the matter has been properly referred to the Commission, it has exclusive jurisdiction to hear and determine all matters under the 1987 and 1998 Acts – and that jurisdiction is not removed when one of the parties concedes that the matters previously disputed are no longer in dispute.
FINDINGS AND REASONS
As to the first Mateus factor, I do not think any decision by the insurer to dispute the applicant’s claim has been made lightly or without proper consideration. The applicant submits the fact that the respondent never disputed the applicant’s claim for over seven years indicates it had made a careful consideration to accept the claim. This is beside the point – which relates to a decision to dispute a claim.
As to delay, the respondent is seeking to dispute an unnotified matter and to have a discretion exercised in its favour. It must act promptly to bring the matter to the attention of the Commission and the other party (Mateus at [48(b)]). The respondent has conceded delay. This was a proper and necessary concession. It says the previously unnotified matters were notified to the applicant on 14 October 2021. This is seven years after the respondent apparently accepted liability for the applicant’s claim in about October 2014 – some three months after the incident, during which time the respondent conducted an analysis of the question of liability, including by referring the applicant to Dr J. Brian Stephenson, orthopaedic surgeon. He saw the applicant on 1 October 2014 and reported to the respondent on 3 October 2014.
Clearly enough, the respondent had initial concerns about the incident and the injury, if only on the basis that the injury may have been caused by him sneezing; and even sneezing on 14 July 2014. Neither the respondent or Dr Stephenson have identified the documents he was provided with. The respondent also specifically asked him whether the injury could have been caused by a sneeze. He answered as follows (Reply p 56):
“I note with the documents there is an email from Hamid Amini, return-to-work advisor, regarding new claim for George Thornton … ‘14 July 2014, TM had flu … aggravated his back by sneezing and coughing, non-work-related … 24 July 2014 saw his own doctor about his flu and back hurts but did not want to report it at the time’ … there is reference then to CT scan and … has included L5/S1 disc protrusion with S1 irritation …I was not of the opinion that the injury could have been caused by a sneeze … likely the L5/S1 disc pathology would have been apparent if radiology had been taken earlier … Thornton advised me that he had been doing quite heavy work for 4 weeks prior to the date of injury, 24 July 2014 … would accept that the mechanism of lifting up the crates of groceries led to the onset of the degree of lumbar disc protrusion causing the nerve root compromise…”
Again, while I am not clear on what documents Dr Stephenson had, or the respondent was taking into account at that time, it does appear the respondent was likely aware, or at least ought to have been, that the applicant “saw his own doctor” on 24 July 2014, and there was reference (presumably in the material sent by the respondent to Dr Stephenson) to a CT scan which referred to an L5/S1 disc protrusion with S1 root irritation.
Dr Stephenson recorded this history (Reply p 53):
“Six years ago as a trades assistant, a motor tipped over on the bench … abrasion on the left side of the trunk which settled within a few weeks, he said. In 2002 or 2003, he had a muscular strain when he was putting up with a broken chair at work where it affected his posture temporarily. He recovered from that. That was in the lumbar region also...”
So, at least in terms of the causation of injury aspect of the respondent’s case, there is a period of delay starting from about October 2014, when the respondent was either in possession of information that the applicant “saw his own doctor” on 24 July 2014 and there was a “CT scan”. The next period of delay is from about September 2019, the time that the respondent obtained statements from Mr Naidu and Mr Fraser. There is no issue that the content of these statements at least raised serious questions as to whether, indeed, the applicant had injured himself at work. For example, Mr Naidu stated (RLD 1, p17-18):
“… recall the claimant approaching me as the assistant store manager …store manager was away … told me his back was sore and that he fell down the stairs at home. I said okay and to let me know if he needed to go home … cannot recall if he did or not but I know a couple of days later he did not come and see me but went to the online store manager and said he … had injured himself at work. When I heard … the story I went back to see him and said that he had told me he had fallen down the stairs at home. He denied he had ever said this. I asked him what he meant as we did have then [sic] conversation about him saying he fell down the stairs at home and he denied he ever saying that, saying he didn’t know what I was talking about … claimant took time off and went to the doctors. After reporting this to me, he had sick leave and from there he didn’t want to talk to me … pretty sure a week later he filed a bullying claim against me … he said … he could not talk to me … asked him what he meant as he reported to me and then a couple of days later there was a bullying complaint … from there my store manager said he would handle this … Hamid was looking after the case … cannot recall if I completed an incident report for this … claimant was the nicest, quietest guy and he would not do this on his own. His wife used to work at Coles at another store, but I think she left around that time … there was CCTV footage in the area … where he said he was injured … will no longer be available as it goes for 4 weeks.”
The other statement in possession of the respondent in September 2019 was from Mr David Fraser, who at that time was employed by the respondent as a caretaker and store manager. He was employed at the respondent’s Greenacre store between 2013 and 2015, in the role of “Online Department Manager … claimant reported to me directly and I would see him daily” (RLD 1, p21). Mr Fraser also stated the applicant’s “state of health while I worked with him did appear normal...”. This comment appears contrary to Mr Naidu’s statement that the applicant’s “…state of health at the time of commencement and during the length of employment did not appear normal … used to be a bit slow and was limping prior to the incident … slow in general”. However, Mr Naidu later stated (RLD 1, p17) that the applicant “did not complain about any issues prior to the injury that I can recall”. Mr Naidu does not appear to state how often he saw or worked with the applicant, at least not in the same detail that Mr Fraser has.
Mr Fraser also stated that the applicant had not been counselled for work performance issues or breaches in company policies or procedures, as far as he could recall. He remembered that there was an issue in relation to the incident:
“where the claimant had told me of a morning that his back was sore … asked him how he did this … remember this as it was very strange as the claimant said … he had sneezed and he felt a pain in his back … asked him if he was here when he did this and he said yes as it was in the morning load up … we went through the normal process … let the store manager … know … cannot remember who was the first aider … but … if we had an injury it was passed off to the store manager and they take him through the ropes, including going to see a doctor … read the claimant’s version of the incident … it would be a two man lift to get the crates back in the van but again the practice was if they felt it was too heavy to seek assistance … you have to be watching what was in the crate and if it was too heavy you could stop and get help … as always to have them look after themselves rather than the stock … do not have any recollection of the claimant’s incident being while lifting crates … it has been hard to recall the information due to the time that has passed, absolutely.”
There is then a further period of delay; from between about 18 November 2020 when the applicant’s solicitors wrote a letter claiming a lump sum under s 66 and relying upon the report of Dr Mathew Giblin, orthopaedic surgeon, and on or about 29 June 2021 when the respondent’s solicitors wrote to the applicant’s solicitors offering a lump sum settlement reflecting a 21% WPI – although disputing the ability of the applicant’s claim to overcome the threshold under s 151H, because of the apportionment of the WPI. Still no notice under s 78 of the 1998 Act was raised in relation to either causation of injury and/or whether the incident happened in the way the applicant had claimed.
The issues regarding causation of injury and/or the incident are not necessarily mutually exclusive as, of course, a question over whether an incident occurred or was relevant to a claim of a work-related injury has potential to influence analysis of whether an injury was caused by an incident. While the statements from Messrs Naidu and Fraser are signed and dated in September 2019, one would have expected that both may well have had an input to the analysis of the acceptance of liability in late 2014, because they were both involved with the applicant’s work at or about the time of the alleged incident and injury. Further complexity arises given that Mr Naidu stated he had “completed a prior statement in relation to the incident occurring in 2014. I cannot recall the date or anything … recall … claimant approaching me … told me his back was sore and that he fell down the stairs at home”. Counsel for the applicant submitted there had been unsuccessful requests for the production of this earlier statement by the respondent. The respondent has put nothing to the contrary. This is further complicated by the inference that has been drawn, if only because of the comment by Dr Stephenson in October 2014, that he did have certain documentation. The respondent has not provided any explanation in relation to these matters.
There is a further aspect to the delay from on or about the time that the respondent put on its Reply on 4 August 2021. Again, the only dispute raised was the apportionment issue, essentially for the purposes of the WID claim. The respondent then also offered $51,880 reflecting a 21% WPI. A referral to the Assessor was made on 30 August 2021. There was then a delay of a further six weeks, before the s 78 notice was served on the applicant.
The delay I have identified above is substantial and it is, to a large extent, unexplained. This is a factor that militates against the respondent case in the exercise of the discretion. But it is not solely determinative. The applicant has submitted the delay is unreasonable and that there is, in essence, no explanation at all for such delay. I agree to the extent that the delay identified above is unreasonable and not, relevantly, explained, and I so find. I do take into account the respondent’s submissions in this regard, including that the applicant’s failure to disclose his symptoms to medical reporters contributed to the delay. But I find the applicant did give a reasonably consistent history to Dr Stephenson about his injuries in about 2003 and then again in or about early 2008. However, he appears to have given no history about the incident involving him lifting a whiz bin in 2010. But I do not think this adequately explains the respondent’s long delay otherwise, particularly given the respondent appears to have conducted some sort of an investigation or consideration (I will refer to it for brevity as an investigation) in 2014. The respondent has also not adequately explained the extent or detail of that investigation, nor the “documents” apparently given to Dr Stephenson (see paragraph 59 above) or Mr Naidu’s first statement.
Otherwise, I have set out a summary of the applicant’s submissions above regarding the lack of any, at least relevant, explanation. I agree with these submissions and do not need to repeat those matters. The respondent has also submitted:
“…contrary to the submissions made by the applicant (it) has made efforts to obtain factual and clinical material concerning the question of injury … refers to (RLD) dated 24 November 2021 [sic] and the chronology contained within the same … has sought to prosecute the issue in the application and taken a multitude of steps concerning same.”
I have read the statement of Ms Kikinis and the chronology. The latter does set out various events, including the respondent’s obtaining the Naidu and Fraser statements in September 2019, and also the emails between 12 October 2021 and 14 October 2021 showing the attempts made to obtain information in relation to the records of Dr Gore. The chronology asserts the respondent’s solicitor first received the Reply version of the 24 July 2014 x-ray report on 14 October 2021. But in relation to the question of “unreasonable or unexplained delay”, none of this evidence, or the submissions, adequately address such question. As earlier noted, it is also unclear as to whether the respondent was in possession of material in relation to what Dr Stephenson described as “sneezing and coughing (non-work-related) … 24 July 2014 saw his own doctor about his flu”. It is at least possible that “his own doctor” was a reference to Dr Gore. Dr Stephenson was picking up what Mr Amini, an officer of the respondent, had written. I also note that Dr Giblin, albeit six years later in November 2020, took a history from the applicant that “he saw the company doctor, Dr Saad” (emphasis added - A13). The respondent in it’s written submissions stated that after attending on
Dr Gore on 24 July 2014 and then for a “further CT scan… on 28 July 2014…the applicant then changed to a different general practitioner and commenced attending…Dr D Saad…”.It is not clear what this observation, or even if it is a submission, is intended to insinuate. Even for that reason I find it unhelpful, particularly given that it appears the respondent knew or ought to have known, in late 2014, of a reference to the applicant having seen his “own doctor” on 24 July 2014. This observation does not advance the respondent’s case. The respondent, seeking the exercise of discretion in its favour, carries the persuasive onus.
The respondent has also not explained the circumstances surrounding how and why it came to be aware of concerns about general liability in the case, from on or about 14 October 2021, and why and how such matters were not able to be discovered before then, or what triggered the late flurry of activity between about 12 and 14 October 2021. There does not appear to be any evidence or a submission to say that these matters were even overlooked.
I do take into account the submissions for the respondent that it has:
“…proceeded on the basis that the histories and positive replies provided by the applicant were accurate … on further information being made available the respondent has conducted a multitude of investigations which would not have been required at this stage had the applicant disclosed the previous injuries and claims …”
I do not think these submissions adequately deal with the issue of unreasonable or unexplained delay. Again, it’s not clear as to when and in what circumstances that “further information” was made available – other than it was received following email communication to Dr Gore from the applicant’s solicitor on or about 14 October 2021. Also, apart from those investigations referred to in the chronology between 12 and 14 October 2021, it’s not entirely clear what “multitude of investigations” means. The submission also does not explain how and why those investigations would not have been required “at this stage” had the applicant disclosed the previous injuries and claims; nor what previous injuries or claims are being referred to. If it related to the injuries and claims of about 2003 and 2008, the applicant did, in essence, make such disclosure to Dr Stephenson at least. However, I understand a submission to the extent that questions still exist about the Reply version of the 24 July 2014 x-ray, and the 2010 whiz bin incident not appearing in the medical histories.
Nevertheless, I do not accept this submission in all the circumstances I have identified above. The respondent was aware of at least the history taken by, and documents given to, Dr Stephenson on 1 October 2014, and the statements signed and dated from Messrs Naidu and Fraser in and from September 2019. There is also no explanation about why those men were not able to give, in 2014 or shortly thereafter, the same statement they gave in 2019- or even whether they did or did not do so. It is clear enough at least with Mr Naidu that he made a statement then. There is also no explanation of the circumstances surrounding why the respondent accepted the claim in 2014.
The respondent also knew, from the history taken by Dr Stephenson, there were at least two previous episodes of back, or trunk, pain and injury before 2014 – namely, in 2003 and 2008. When the applicant went to see Dr Gray for the first time on about 19 August 2014 (A81), there is no mention of a history of back pain prior to the incident. However, there is no positive history either i.e. to record the applicant said there was no such history.
When the applicant saw Dr Machart on or about 7 April 2016 at the request of the respondent, a history is recorded by the doctor (R59) that “he was asymptomatic before he sustained the first injury to his back on 5 August 2014”. Later under the heading “Past Medical History”, the doctor only writes “Nil relevant”. This does raise a question about the accuracy of the history given by the applicant to the doctor. However, it’s not a clear situation. That he was asymptomatic before the incident does not ask the question, or provide an answer, as to whether there were any previous episodes of low back pain before then. As to the “Nil relevant” past medical history, it is not clear enough from the report as to the extent to which the answer came from the applicant and/or what the applicant actually said, if anything, or precisely how the question was put. So it is possible there could have been a misunderstanding or miscommunication between the doctor and the applicant without any fault or deliberate intent on the part of the applicant to mislead the doctor.
Dr van Gelder saw the applicant, also at the request of the respondent, for the first time on 10 July 2017 (R64). Interestingly, Dr van Gelder notes in the first paragraph of his report to the respondent “you provided me with a large collection of medical documents, which date after his work-related injury in January 2016 … does not appear to be documentation available prior to this injury”. However, he did note the applicant “denies any other relevant past medical history”. Clearly enough, that may be said to be raising a significant question as to whether the applicant misled the doctor, deliberately or otherwise. However, that may or may not be necessarily so, having regard to the use of the word “relevant”. Dr van Gelder stated he was hampered by the lack of adequate information from the respondent. He wrote:
“Because of the nature of his presentation today, it is not possible to assess his permanent impairment without medical records of his condition prior to the injury on 13/01/16 because he has a clear cut pre-existing condition … if you require assessment … would request access to prior medical records.”
The respondent did not have the applicant assessed again by Dr van Gelder again until 7 May 2021. Unfortunately, the doctor does not record what, if any, documents he was then provided with, nor does that information appear in the evidence otherwise. Nevertheless, he recorded this history “Mr Thornton explained that there is no prior history of back injuries”.
I also note that Dr Giblin took a similar history on 9 November 2020. I do acknowledge the respondent’s submissions about it proceeding on the basis that the histories and positive replies are a relevant matter. However, the extent to which the applicant did not provide a perfectly complete history of pre-existing problems should be seen in the context of him having given, in 2014, a history to the respondent of at least the two episodes of back pain, and the respondent’s knowledge of the content of the Naidu and Fraser statements in 2019, and lack of an explanation for why there is no further material from Mr Naidu’s earlier statement in 2014 or as to the circumstances surrounding the investigation in 2014.Also, the apparent “denials” of low back problems, pre-existing 24 July 2014, were mainly recorded in 2020 and 2021. In all these circumstances, I reject the submission for the respondent that the histories provided by the applicant to the doctors, or any of the other circumstances, add up to the delay being reasonable or being an adequate explanation. For that substantial delay. I find that delay was unreasonable and/or unexplained. Again, although overlapping with the factor discussed above, this is a substantial factor militating against the success of the respondent’s application; but not determinative per se.
The merit and substance issue in this case is both very important and problematical. The respondent submits there are two aspects to its application: whether the incident occurred in the manner alleged or at all; and the question of whether there was a causal connection between the alleged incident and the injury. In one sense, the s 78 notice does raise the causation point, in the context of a “catch all” set of “reasons for disputing liability, including denial of liability under ss 4, 9A,15 & 16 (disease), 33 (weekly payments) and 59A & 60 of the 1987 Act”. But under the heading “Issues relevant to the decision”, the reasoning really only deals with the question of whether the incident occurred in the manner alleged or at all.
An employer’s obligations under s 78 of the 1998 Act are not satisfied by a document that leaves “the worker to work out exactly which issues are disputed” (Mateus at [45]; Fairfield City Council v Arduca [2015] NSWCA166 at [35]). That is not to say that I will not consider the respondent’s “causation” submission. The “issues relevant to the decision” particularised by the respondent amounts to the respondent inferring that the applicant has not “sustained a compensable lower back injury arising out of an incident said to take place on 24/07/2014 – ‘based on the above information’”. That information essentially related to the applicant’s reporting of the “work incident” and the surrounding circumstances between 24 July and 5 August 2014 including attending on Dr Saad that day, a physiotherapist on 27 November 2014 and Dr Stephenson on 1 October 2014 – when “you advised the injury occurred whilst lifting two crates at a time with a colleague … reportedly took place on the second lift”. The
s 78 Notice then sets out the statements provided by Messrs Naidu and Fraser, particularly those parts relating to the allegations the applicant had stated (to Mr Naidu) that “he fell down the stairs at home” and (to Mr Fraser) that the applicant “said that he had sneezed and he felt a pain in his back … (and) do not have any recollection of the … incident …”.
So, a close reading of the s 78 notice shows that the dispute is underpinned by the issue surrounding the alleged (by the applicant) incident. Still, both the incident and causation issue will be dealt with because the words “do not consider you sustained a compensable lower back injury arising out of an incident” appear.
In my opinion, the merit and substance of the issue to be raised is significant, particularly given the Naidu and Fraser statements. Whether the incident occurred, or did so in the manner alleged by the applicant, is a fundamental issue going to the question of whether the respondent has any liability.
The content of the Reply version of the 24 July 2014 x-ray (“pt had an accident 3 years ago … LBP radiating down left thigh since”) is and was a very important piece of evidence, but the resolution of that question does not necessarily answer the question of whether there was any liability at all; given all the circumstances. For example, even it was ultimately found that the applicant did suffer an injury and/or incident about three years before 24 July 2014, and one which resulted in left-sided radiculopathy, such a finding would not necessarily foreclose the question of whether another incident and injury occurred in July 2014 which, for example, aggravated a pre-existing condition.
The particular circumstances of this case result in the merits and substance factor being bound up with another Mateus factor - complexity and difficulty. I believe the following matters would, if leave were granted for the respondent to rely upon s 78 notice, make any determination significantly complex and difficult.
In essence, both the Naidu and Fraser statements give rise to the respondent taking the position that the incident did not occur, at least in the manner alleged by the applicant. In the circumstances, this amounts to the allegation that he fabricated the incident (if not expressly, clearly enough by inference). Such an allegation is a serious one. Such an allegation, or subsequent finding, requires a high degree of satisfaction, and not by reasonable satisfaction based on “inexact proofs”, indefinite testimony or indirect inferences (Briginshaw v Briginshaw [1938] HCA34; 60CLR336 (Briginshaw) per Dixon J (at [361-362])).
One major potential difficulty with Mr Naidu’s statement is the reference to him completing a “…prior statement in relation to the incident occurring in 2014 … cannot recall the date or anything”. Again, applicant’s counsel has called for this statement and there has been no production or any explanation for the absence of such statement. This would most likely result in an attack on the reliability of Mr Naidu’s evidence, with care needing to be taken about the weight that could be given to his evidence otherwise. There is another difficulty with his evidence, which has already been criticised by counsel for the applicant, relating to the apparent inconsistency between him stating, in his 2019 statement, that the applicant told him the incident occurred when he fell down the stairs at home, and Mr Naidu being referred to on the (contemporaneous) incident report form as the reporting person. Whether this apparent inconsistency would, if the respondent did have the s 289A discretion exercised in its favour, end up being a true and substantially relevant inconsistency or being able to be explained cannot of course now be determined or speculated on. However, there has been no attempt by the respondent to explain or reconcile this inconsistency during this interlocutory application.
Mr Naidu also says in his 2019 statement that “it has been hard to recall the information due to the time that has passed, absolutely”. This matter goes to both complexity/difficulty aspect and also prejudice. If Mr Naidu had difficulties recalling the relevant information during the five years up to 2019, there can be little doubt that he would have at least those same difficulties if he were cross-examined about that information in 2022.
In circumstances where the applicant likely commenced employment with Coles in or about July 2011, Mr Naidu states that he did not think the applicant’s state of health appeared “normal … used to be a bit slow and was limping prior to the incident”. On the other hand, he also stated that the applicant “did not complain about any issues prior to the injury that I can recall”. While the latter comment is not necessarily inconsistent with the comment about the applicant limping, it appears likely the applicant would be cross examined about such matter. More importantly, the former comment is inconsistent with Mr Fraser’s statement. He stated that he saw the applicant daily, that the applicant’s “state of health while I worked with him did appear normal”. Mr Naidu’s does not give the same level of detail about the extent of his interactions with the applicant while at work in 2013/2014, and it is at least unclear about how often Mr Naidu did interact with the applicant – in stark contrast to Mr Fraser’s evidence.
Another matter going to the merits and substance – as well as complexity/difficulty- if leave was given for the respondent to rely on the s 78 notice, is the unexplained absence of any material from at least two persons who might have been thought to be important witnesses. The first is “Chris”, who the applicant identifies as a co-worker he was working with at the time of the incident. There appears no evidence from either party about whether there is any such evidence from this person or whether there were any attempts to obtain such material. It is also unclear in whose “camp” Chris was in. Dr Stephenson reports that the applicant told him, on 1 October 2014, that “he and a colleague were lifting crates of groceries to be delivered … two crates at a time … contents weighing 17kg”.
There is no statement or information otherwise regarding the “colleague” or “Chris”. While it is not clear whose “camp” Chris might be in, respondent carries the onus of persuasion for the relevant exercise of discretion under s 289A (4). Given the serious nature of the position put for the respondent in the s 78 notice, the absence of any material or submissions refuting there was any such colleague at the time is problematic for the respondent’s case.
Similarly, there has been no attempt by the respondent to deal with, whether by evidence or submissions, the content the email from Mr Amini (see paragraph 59 above, referred to in the passage extracted from Dr Stephenson’s report). Also, Mr Fraser apparently told a store manager, Mr Kyriazis, that the applicant told him “…he had sneezed and he felt a pain in his back … he was here when he did this … it was in the morning load up”. Mr Fraser’s statement goes on to say that he passed that information on to Mr Peter Kyriazis, the store manager. There are no submissions, and no evidence, in relation to Mr Kyriazis either.
Again, given the seriousness of the respondent’s position, and the need to apply the Briginshaw standard of proof, these matters do not advance the respondent’s case, which is, in essence, that “the factual material supports the proposition that the ‘injury’ (i.e. the event itself) did not occur or did not occur in the manner suggested”.
Mr Fraser also stated that he remembered “the incident in 2014 … as it was very strange as the Claimant said that he had sneezed and he felt pain in his back”. But Mr Fraser is not clear about precisely when he says that conversation occurred. That may be unsurprising given that his statement was made five years after that event. These matters constitute in my view “indefinite testimony” and “indirect inferences” referred to in Briginshaw.
The applicant started his employment part time with Coles at East Gardens in July 2011 and moved to the Coles Greenacre store in July 2012 doing full time picking and packing work. Therefore, from at least July 2012 until July 2014, the applicant was working full time with the respondent, without there being any complaints by him of any relevant injury. Mr Fraser, who saw the applicant daily, stated that he did not know of any problems with the applicant’s health. Mr Naidu states that the applicant was limping but for reasons expressed earlier, there is likely to be a significant attack on his evidence in terms of its reliability. I also note that there is no evidence the applicant had any attendance problems, nor do the report or complain of any difficulties he was having performing his work.
Mr Fraser’s evidence is less problematic than Mr Naidu’s. However, there is vagueness in terms of when he says the applicant complained to him about his back in the context of sneezing at work. His recollection is not necessarily inconsistent, and could even be consistent with the recording of Mr Amini’s email, by Dr Stephenson, where the applicant was said to have had the flu on 14 July 2014 when he aggravated his back by sneezing and coughing – then saw “his own doctor” in relation to this on 24 July 2014, but did not want to report it at that time. Dr Stephenson, with that history on board, provided an opinion that the sneezing would not have been responsible for the injury, but the incident would have been.
In all the above circumstances, “the interests of justice” requires, in my opinion, that the leave sought to rely upon the unnotified matters be refused. The respondent’s concern about whether there was any pre-existing injury, with or without persisting symptoms, is more properly part of any application of s 323 of the 1998 Act (which of course is a matter for the assessor), and I so find.
In relation to prejudice, there is no doubt the applicant has suffered presumptive prejudice. His counsel submits that he “will be extremely prejudiced if the respondent is able to dispute the occurrence of the injury of 24 July 2014 … recollections will have to be made of conversations and sequences of events occurring over 7 years ago … corroborating evidence (for example … co-workers) will be impossible to find”. But it is not clear to me whether it will be “impossible” to find witnesses and that recollections from seven years ago are something that only prejudices the applicant. I have already observed that Mr Naidu and Mr Fraser conceded in 2019 that they had difficulties with their recollections. However,
I have already taken that into account in my analysis of the merits/substance and complexity/difficulty of the case.Having regard to these difficulties, it is my opinion that the merits and substance of the issue is problematic. On the one hand, again, there is the Reply version of the 24 July 2014 x-ray indicating the possibility of the applicant suffering an injury to his low back three years before that with “LVP radiating down his left thigh since”, a history which is inconsistent with the applicant’s history and the way he has presented his case on this application. I do not think there appears to be a substantial difference between the history taken by Dr Stephenson of the applicant’s previous back problems in 2002/2003 and also 2007/2008 – except the 2010 injury involving the whiz bin is missing from that history (cf paragraph 18 above). However, the evidence, such as it is, shows that the applicant only suffered pain in his back at that time for about eight days at which time he was “feeling better” but still with “mild tender” symptoms in his sacroiliac region. The applicant then continued to present to WFM with medical problems other than with his lumbar spine, until near the end of 2011.
I have carefully considered the substance of the merits and substance/ complexity/ difficulty issue otherwise earlier in these reasons and even though this question is closely balanced,
I am of the opinion that the merit and substance of the issue does not positively support a contention that leave should be granted in favour of the respondent’s application. However, the analysis of the merits and substance of the case is not determinative (Office of the Public Guardian v Manning [2008] NSWWCCPD 94 at [68]).On the whole, I am mainly influenced by a combination of these factors: the respondent’s unreasonable delay and failure to explain, at least adequately, that delay, as well as the merits/substance of the issue and complexity/difficulty that is likely to arise if the discretion were exercised in favour of the respondent. My examination of the merit and substance of the issue does show, inter-alia, the respondent’s substantial delay, which I have found earlier, has either caused or substantially accentuated what appears to be a likely and significant level of complexity and difficulty in resolving the merit and substance of the case in a satisfactory way. The respondent carries the onus in the present application to show that the necessary leave should be granted. I am not persuaded it would be just to grant it.
In refusing leave under s 289A (4), I am conscious of the terms of s 43 (3) of the PIC Act requiring the Commission “to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” and the potential prejudice to the respondent in not being able to agitate the issues sought to be raised in the s 78 notice, resulting in inability to have such issue(s) determined in it or their intrinsic merit.
The particular circumstances here allow for some delineation between “the issue” – namely, the respondent’s point about “the incident” and its point about “causation”. Utilising the dictates of s 43(3) of the PIC Act, and the term “interests of justice” in s 289A(4) of the 1998 Act, I propose to allow the respondent some leeway to obtain further documents in relation to the clinical notes on the Reply version of the 24 July 2014 x-ray. However, it seems to me that the respondent might even have already exhausted its enquiries in relation to such matter (e.g. email Ms Grundy to Ms Kikinis 14 October 2021).
The most important part of the s 289A(4) discretion in deciding whether previously unnotified matters may be heard or otherwise dealt with is “if…it is in the interests of justice to do so …”. In my opinion, leave ought be refused for the respondent to rely on the s 78 notice. However, I believe the respondent should be given this leeway, being some limited further time, to have directions issued for further documents to be produced with a view to such documents being made available to the Medical Assessor, particularly to assist with respect to the analysis of any deduction under s 323 the 1998 Act. I believe such an approach is consistent with s 43 of the PIC Act. I also note Regulation 47 of the Personal Injury Commission Rules allows for a non-presidential Member to order, or refuse to order, the issue of a direction for production at a teleconference in the proceedings or, in a special case and for the avoidance of injustice, subsequently. In the presenting circumstances, I believe this to be, relevantly, a special case, and for the avoidance of injustice, the respondent should have some opportunity to have a direction for further documents to be produced – but only in relation to the clinical notes appearing on the 24 July 2019 x-ray in RLD 1, page 36.
This is not intended to allow the respondent to commence a whole new investigation at this stage; nor is it intended to give leeway to seek directions for the production from multiple producers. In other words, the intention is not to allow for a “trawling” exercise; rather, it is intended to allow for the respondent to complete its investigation by seeking, without delay, production of documents where it is “on the cards” that the producer would or should be in a possession of such documents.
Having regard to my reasons above, I will deal with the applicant’s jurisdictional arguments briefly. I do not agree with the submissions as to “lack of jurisdiction”, including in paragraphs 1-10 of the applicant’s written outline of submissions. I do so for reasons which accord with the outline of submissions advanced by the respondent and which are set out in paragraphs 25-32 of the written outline of submissions for the respondent.
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