Townsend v CPB Contractors Pty Ltd
[2024] NSWPIC 283
•28 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Townsend v CPB Contractors Pty Ltd [2024] NSWPIC 283 |
| APPLICANT: | Troy Townsend |
| RESPONDENT: | CPB Contractors Pty Ltd |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 28 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant sought an award for weekly payments of compensation or earning capacity rising after his resignation from employment; Held – finding that there was insufficient evidentiary material to find continuing capacity; an award for the applicant in relation to section 60 expenses. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained an injury to his right hip on 21 January 2020 whilst in the respondent’s employment. The Commission orders: 2. The respondent will pay all medical expenses for treatment of the applicants right hip pursuant to the s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Mr Troy Townsend (the applicant) was employed by CPB Contractors Pty Ltd (the respondent) as a construction worker from 3 July 2019. He injured his right hip as a result of an incident at work on 21 January 2021. He resigned his employment on 6 October 2023 following the commencement of disciplinary proceedings by the respondent.
The applicant claims weekly payments of compensation from 3 November 2023.
The applicant’sPre-Injury Average Weekly Earnings is agreed at $2,281.50.
Liability for weekly payments has been denied.
MATTERS IN DISPUTE
The issue in dispute is incapacity from the 3 November 2023 arising from the injury to the applicant’s right hip on 21 January 2020.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
Mr Bruce McManamey of counsel, instructed by of Ms Zahra Panju of Turner Freeman Lawyers appeared for the applicant. Mr Stuart Grant of counsel, instructed by Ms Jessica Liu of Hall and Wilcox Lawyers, appeared for the respondent.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I conferred with the applicant in private conference. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
There was no oral evidence.
There was no application to adduce oral evidence or cross examine the applicant or any other witnesses as to any dispute before Personal Injury Commission (Commission).
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply to ARD (Reply) and attached documents.
There was an Application to Admit Late Documents (AALD) lodged by the respondent on 8 May 2024. The applicant’s counsel opposed the application and the admission of the attached documents on the basis of late lodgement and relevance. The attached material was said to relate to relate to a psychological claim. The documents consisted of an email from the respondent’s solicitors seeking consent to late admission; an injury claim form for psychological injury lodged by the applicant on 29 December 2023; a certificate of capacity for psychological injury from the applicant’s general practitioner Dr Hosny Mechreky; and correspondence between the respondent and the applicant regarding disciplinary procedures dated 15 March 2023, 20 March 2023, 26 September 2023 and 27 September 2023.
The psychological claim was made in January 2023. It had not been accepted or rejected by the respondent at the time of the conciliation/arbitration. The present application was lodged in March 2023.
The respondent pressed the admission in the interests of justice.
The applicant’s counsel submitted that reference to the applicant’s psychological claim and any incapacity arising was not flagged in any of the respondent’s documents created prior to the conciliation/arbitration. It was an entirely new defence. The documents having been brought to the applicant’s attention immediately prior to the hearing date would, if accepted, give rise to difficulties in the matter proceeding and would not be in the interests of justice.
The application for admission of late documents was refused. The psychological claim was with the respondent and the respondent’s insurer in January 2023. Reference to the issue was in the applicant’s statement in the present matter. There was no justification for late service. Late service and admission of the documents would not be in the interests of justice.
The applicant’s evidence
In relation to his physical injuries
The applicant alleges that on 21 January 2020 he felt a sharp pain in his hip when the wet ground on which he was walking subsided when he placed his foot on it. His hip had been previously symptom-free.
The applicant attended the first-aid office and then consulted his general practitioner, Dr Mechreky, who recommended light duties. He was referred to a Dr Glezos, an orthopaedic surgeon. Dr Glezos indicated the applicant would experience pain from time to time and recommended analgesia.
The applicant’s evidence is that he was aware of general aches and pains after heavy work such as shovelling concrete from a steel skip bin and placing it under a concrete jersey curb to block holes.
The applicant was appointed as the occupational first aid officer. He performed this work at Campbelltown Hospital and then at the Pitt Street Metro project where he was appointed health and safety representative and Chairman of the Safety Committee. He was the union delegate.
In the course of his work the applicant walked the site to make sure everything was safe. He walked on uneven ground. He walked on the steel on the top floors before concrete was poured and up flights of stairs. He experienced pain. Every Wednesday he would have to walk down 32 flights of stairs. It was very painful. Sometimes his hip would lock up which was also very painful.
On another occasion he put out a fire with a fire extinguisher and fell down some stairs holding the fire extinguisher. After this incident he consulted his general practitioner.
The applicant identified the following symptoms as arising from the injury to his hip:[1] pain in the right hip; difficulty walking; difficulty walking on uneven surfaces; difficulty walking stairs; difficulty putting on shoes and socks; hips locking up putting shoes and socks on; difficulty bending at certain angles; locking up of the right hip; extreme pain and difficulty unlocking; overwhelming pain when unlocking the right hip; Instability; risk of injury; loss of confidence in walking; injury to the face/nose when falling onto coffee table due to the instability and locking up of the right hip; sleep disturbance due to pain and inability to lay on the right side.
[1] ARD pages 6-7.
The applicant was originally provided with a prescription or Oxycontin. He presently takes Diazepam.
Dr Jonathan Herald an Independent Medical Assessor (IME) for the applicant provided the following opinion:
“…He has advanced osteoarthritis of his right hip and he also has an associated labral tear on his right hip.
….
Given the fact that he was symptomatic with no pain in his right hip, I would suggest that his employment is a significant aggravation to his underlying osteoarthritis of his right hip and most likely in the form of the labral tear.
…
…suspect he will require a total hip replacement
…
His employment has contributed significantly to the need for the treatment. Prior to this, he was symptom-free in his right hip with no details of underlying osteoarthritis.”
In his Certificate of Capacity dated 3 November 2023[2] the applicant’s general practitioner Dr Mechreky diagnosed the applicant with “exacerbation of right hip pain – MRI - airing of the labral complex again/anxiety depression” and no current capacity for work from 24 November 2023.
[2] ARD page 89.
In relation to the disciplinary proceedings
The applicant’s evidence regarding this issue was:[3]
“35. There was a discrepancy between my actual hours worked and my hours that he entered on the system for Saturday 16 September 2023. This is because I told by the site manager, Steve Pratico, on the Friday that no-one is staying back on Saturday but just put the normal hours. The matter was escalated or came to the attention of management.
36. I was issued with a show cause notice on 26 September 2023. The show cause notice was regarding an allegation of serious and wilful misconduct.
37. Following that notice, I made a decision to resign from my employment on advice from the Union, to avoid any finding against me and due increasing pain and disability in the right hip and mental stress and difficulty sleeping I have been suffering with.
38. Immediately after sending my resignation I made the decision to withdraw it and deal with the unfounded allegations against me. However, in response to the withdrawal of my resignation minutes later, I received an email notifying me that my resignation was accepted.”
[3] ARD page 5.
The respondent’s evidence
In its Review Decision of 5 March 2023, the respondent provided the following reasoning for refusal of the applicant’s claim:
“Dr Herald provided an IME report dated 31/01/2024 wherein he noted that after the subject injury, you were working on essentially light duties as a first aid officer until January 2021. From January 2021 until 06/10/2023, you were back to your normal duties. Since then, you have been dealing with a secondary problem in relation to bullying and harassment, but the doctor noted this was not dealt with in his report. The doctor diagnosed you with advanced osteoarthritis in your right hip and associated labral tear on your right hip, for which you will require a total hip replacement. The doctor noted that he is uncertain as to whether Dr Glezos is appropriately qualified to provide an opinion on the causation of injury, and the insurer has not sent you to see an IME.
While we acknowledge the opinion of Dr Herald, we note that he did not comment on or provide an explanation as to the absence of any complaints in relation to your right hip in your clinical records, and the cause for ongoing symptoms following the certification of pre-injury duties from 06/04/2021. We reiterate that it is unclear as to whether your symptoms are related to your workplace injury, noting the significant lapse of time between 06/04/2021 and the downgrade in your capacity from 03/11/2023.”
(my emphasis)
SUBMISSIONS
The applicant’s submissions
The applicant’s evidence is that he is unfit for work as a result both his hip injury which was sustained in the course of his employment.
Applicants counsel submits that the fact that the applicant may be simultaneously suffering from anxiety and depression and incapacity from his injured hip is not relevant. It is only necessary that the hip injury has materially contributed to his ongoing capacity.
The applicant relies on the evidence of Dr Mechreky in his certificates of capacity as being consistent with the prognosis of Dr Glezos and the opinion of Dr Herald.
The respondent’s submissions
The respondent does not dispute that the applicant’s right hip was injured at work in 2020. Counsel submits that it is immaterial whether the labral tear occurred in the incident or not.
The applicant resigned on 26 September 2023 and ceased work for reasons unconnected to his right hip.
The applicant also has a psychological condition.
The respondent submits that the notes of the applicant’s general practitioner, who has treated the applicant for many years, does not note any exacerbation of the applicant’s hip symptomology in his practice records. He does note mental stress.
CONSIDERATION
The applicant did not cease work in September 2023 because his hip injury incapacitated him for work. He resigned as a result of a considered decision to avoid an adverse finding arising out of an investigation into his personal conduct. The applicant had been engaged on full-time ordinary duties until he resigned for reasons unconnected to any injury either to his hip or to a psychological injury.
The applicant subsequently sought to withdraw his resignation and return to work, but his resignation was accepted and the withdrawal refused. If the applicant had not considered he was fit for work at the time he made the application to withdraw his resignation it is reasonable to presume he would not have done so.
I am not persuaded that the applicant was unfit for work as a result of his injury when he resigned his employment.
I am not persuaded by the Certificates of Capacity provided by the applicant’s general practitioner regarding incapacity for work in November 2023. There is insufficient evidence before the Commission to establish that the applicant was incapacitated for work from 23 November 2023 as a result of the deterioration of his hip injury.
SUMMARY
For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
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