Turner v Wickham Freight Lines Pty Ltd
[2024] NSWPIC 156
•28 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Turner v Wickham Freight Lines Pty Ltd [2024] NSWPIC 156 |
| APPLICANT: | Judith Anne Turner |
| RESPONDENT: | Wickham Freight Lines Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 28 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim in respect of alleged lumbar and left shoulder injury, with an alleged frank incident in January 2014 and an alleged work-related aggravation with a deemed date of injury of 27 November 2019; whether applicant’s employment had connection with the State of New South Wales (section 9AA of the Workers Compensation Act 1987); whether injurious events took place; whether applicant precluded from receiving compensation by virtue of sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998; whether applicant suffered incapacity for employment as a result of work injury; whether surgery to lumbar spine was reasonably necessary as a result of a work injury; Held – applicant’s employment was connected with NSW, as she routinely drove her truck between Tamworth and Warwick, where the injury took place, and was based in Tamworth for her employment; the applicant suffered injury to her back and left shoulder as a result of a fall on 1 January 2014 and as a result of an aggravation caused by the nature and conditions of her employment up to 27 November 2019; the defences under sections 254 and 261 fail; permanent impairment claim remitted to the President for referral to a Medical Assessor to determine permanent impairment arising from the injuries; the surgery carried out by Dr Coughlan was reasonably necessary as a result of the applicant’s lumbar spine injury; respondent to otherwise pay the applicant’s section 60 expenses; claim for weekly compensation and any argument concerning aggregation of impairment caused by the two dates of injury are adjourned for further preliminary conference after the issuing of the Medical Assessment Certificate. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered an injury to her lumbar spine and left upper extremity (shoulder) in the course of her employment with the respondent on 1 January 2014. 2. The applicant suffered an injury by way of aggravation to her lumbar spine and left upper extremity (shoulder) in the course of her employment with the respondent, with a deemed date of injury of 27 November 2019. 3. As a result of the injuries referred to above, the applicant has suffered incapacity for employment. 4. The applicant's pre-injury average weekly earnings were $1,421.57 per week. 5. The surgery to the applicant's left shoulder carried out by Dr Coughlan was reasonably necessary as a result of the applicant's injuries. 6. The respondent is to pay the applicant's reasonably necessary medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987. 7. The claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessor to determine the degree of impairment arising from the following: (a) Dates of injury: 1 January 2014 and 27 November 2019 (deemed); (b) Body systems referred: left upper extremity (shoulder) and lumbar spine, and (c) Method of assessment: whole person impairment. 8. The Medical Assessor is to provide assessments of impairment arising from each date of injury separately together with a combined assessment of the impairment arising from both dates of injury. 9. The documents to be referred to the Medical Assessor are to include the following: (a) this Certificate of Determination and the Statement of Reasons; (b) Application to Resolve a Dispute and attachments; (c) Reply and attachments, and (d) applicant’s Application to Admit Late Documents and attachments dated 24 January 2024. 10. The claim for weekly compensation is adjourned for further preliminary conference upon the issuing of the Medical Assessment Certificate, at which time the parties will be required to advise whether they wish to make any further submissions in relation to the weekly benefits claim in light of the contents of the Medical Assessment Certificate together with submissions in relation to whether any impairments found in relation to the separate dates of injury should be aggregated. |
STATEMENT OF REASONS
BACKGROUND
In or about October 2013, Wickham Freight Lines (the respondent) employed the applicant, Judith Anne Turner, as a long distance truck driver. The applicant was based in Tamworth and regularly drove B double trucks to and from Warwick in Southern Queensland. The applicant alleges that on 1 January 2014, she fell from the truck which she was driving while refueling it at the respondent's depot in Warwick. She claims injury to her left shoulder and lower back as a result of that fall.
The applicant alleges she reported the incident the following day and continued working. She states that from approximately 2016, she began experiencing increased levels of pain in her lower back. By January 2018, the applicant reduced the number of days she was driving from five nights per week to four, which she attributes to the pain in her back.
On 10 December 2019, the applicant underwent an L5-S1 spinal fusion at the hands of Dr Coughlan.
The applicant also alleges that the nature and conditions of her employment as a truck driver with the respondent aggravated, accelerated or exacerbated her left shoulder and lumbar spine injuries, with a deemed date of injury of 27 November 2019.
The applicant claims permanent impairment compensation, the payment of reasonably necessary medical and treatment expenses including the surgery at the hands of Dr Coughlan and weekly benefits as a result of her alleged injuries.
The respondent denies liability in respect of the injuries, despite offering no lay or medical evidence to contradict their occurrence. It also alleges the applicant has not complied with ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and that the applicant's employment is not connected with the State of New South Wales (s 9AA of the Workers Compensation Act 1987 (the 1987 Act)).
Additionally, the respondent says the issue of whether the applicant is incapacitated for employment as a result of any injury is also in issue.
ISSUES IN DISPUTE
The parties agree that the following issues remain in dispute:
(a) whether the applicant's employment has a connection to the State of New South Wales;
(b) whether the applicant is precluded from bringing her claim pursuant to ss 254 and/or 261 of the 1998 Act;
(c) whether the applicant suffered injury as alleged in the course of her employment, and
(d) if the applicant suffered injury as alleged, whether she has suffered an incapacity for employment and if so to what extent.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 24 January 2024. At the hearing, the applicant was represented by Mr Hickey of counsel and was instructed by Mr Grady. The respondent was represented by Mr Stockley of counsel instructed by Mr Mitas.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents, and
(c) applicant's Application to Admit Late Document (AALD) and attached documents dated 24 January 2024.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the applicant's employment was connected with the State of New South Wales
Section 9AA of the 1987 Act provides:
"(1) Compensation under this Act is only payable in respect of employment that is connected with this State.
(2) The fact that the worker is outside this state when the injury happens does not prevent compensation being payable under this act in respect of employment which is connected with the state.
(3) A worker's employment is connected with:
(a)The state in which the worker usually works in that employment, or
(b)If no state or no one state is identified by paragraph (a), the state in which the worker is usually based for the purposes of that employment, or
(c)If no state or no one state is identified by paragraph (a) or (b), the state in which the employer as principle place a business in Australia is located."
For the applicant, Mr Hickey submitted the applicant satisfied s 9AA(3)(a) as she usually worked in New South Wales with the respondent. Additionally, he submitted the applicant likewise satisfied sub-section (b) of s 9AA. In so submitting, Mr Hickey noted the applicant was based in New South Wales, changed over her shifts in the truck there and would both start and finish her workdays in Tamworth. He submitted it was entirely open to the Commission to find the applicant usually worked in New South Wales between Tamworth and Warwick in Queensland.
The applicant's evidence surrounding her normal duties is as follows:
"(9) My partner at the time, Bruce Miller was also given a job with Wickhams. I would complete the shuttle from Tamworth, NSW to Warwick, QLD and returning to Tamworth. Mr Miller would then perform the shuttle work from Tamworth to Sydney and return into Tamworth. I completed the same shuttle my entire employment with Wickhams, with the exception of one, possibly two shuttles which I completed from Tamworth to Sydney, and Sydney to Tamworth.
(10) I drove a B double from Tamworth to Warwick and back, five nights per week, a return trip that would generally take between 12 and 14 hours of working time. I would leave Tamworth between 2:00 pm and 3:00 pm and arrive at Warwick around 8:00 pm. I would then unhook the trailers and refuel the truck and trailers, hook up another set of loaded trailers, have dinner and then leave around 9:00 pm. I then arrived back in Tamworth at approximately 3:00 am.
(11) In terms of the day-to-day procedure for me, in 2013, I would do a changeover for the truck near Goonoo Goonoo station, on the outskirts of Tamworth, which is located near my property. Mr Miller would then take my car and drive home and I would then drive from Tamworth to Warwick, a total of approximately 420 km, which would take me five to five and three quarter hours depending on what I was carrying. I would then change over trailers at Wickhams Depot in Warwick and then drive the remaining shuttle from Warwick to Tamworth. I would only spend one hour maximum in Warwick during any shift. I would then return to the Goonoo Goonoo area and swap with Mr Miller, he would travel under Sydney, and I would then drive my car home."
In my view, there is plainly a connection between the State of New South Wales and the applicant's employment. Firstly, dealing with s 9AA(3), the applicant was usually based in Tamworth, New South Wales in the course of her employment. There is nothing to contradict her evidence in this regard.
Additionally, I am satisfied that s 9AA(3)(a) also applies. The applicant's uncontested evidence is that she would usually spend no more than an hour at the Wickham Depot. It is also apparent from a perusal of any map of the drive between Tamworth and Warwick that the majority of that drive takes place within New South Wales. Although the applicant's injury took place at the Warwick Depot, s 9AA(2) makes it clear the fact the worker is outside New South Wales when the injury occurs does not prevent compensation being payable under the 1987 Act if there is a connection between their employment and the State of New South Wales.
There was no issue the applicant was employed as a long-distance truck driver. There is also no issue that her regular employment took her between Tamworth in New South Wales to Warwick in Queensland and back on any given day. In my view, there can be no serious suggestion that the applicant's employment was thereby not connected relevantly with the State of New South Wales, given that she usually worked in her employment within New South Wales, or if that is not the case, she was plainly usually based in Tamworth for the purposes of her employment. For these reasons, the respondent's defence pursuant to s 9AA must fail.
Whether the applicant suffered injury on 1 January 2014 and/or on 27 November 2019 (deemed)
In relation to the alleged injury on 1 January 2014, the applicant states:
"(22) In 2014, I was at the depot in Warwick refuelling my truck. I was preparing to put the nozzle into the fuel tank when I slipped and fell heavily onto the ground from a height of over 1 m. I landed hard on my left side and was winded. I injured my left shoulder and lower back. As I was the only person at the depot, I stayed the night there and reported the incident the next morning to Jake Peisnell when he and the other staff arrived around 10:00 am.
(23) The next morning, I was unable to turn the steering wheel in the truck due to my lower back and shoulder pain. When I attempted to reverse my prime mover to the trailers, I accidentally backed into the first trailer and bent the bar on the passenger side holding the lights into the guard because I was unable to manoeuvre properly in my seat to see. This was the first time I ever damaged the truck. I reported the incident to my boss, Graham Keogh.
(24) Once the truck was fixed, I drove back to Tamworth, I drove for approximately six hours.
(25) Upon return from Warwick, my shoulder and back were still sore, and believing the injuries was muscular, I attended JT Chiropractic Clinic for treatment, believing it would resolve the injuries."
The clinical notes from JT Chiropractic are attached to the Application, however, they are handwritten and not especially clear. They disclose entries on 11 February 2014, 18 February 2014 and thereafter 4 April 2014, 2 May 2014 and 13 May 2014 before the next entry is in January 2015.
The applicant relies on the report of Independent Medical Examiner (IME), Dr Hopcroft dated 21 July 2021, together with a further report from Dr Hopcroft dated 22 June 2022.
In Dr Hopcroft's first report, the applicant provides a consistent history of injury. The doctor noted the applicant's chiropractor, Ms Schroeder, recommended a lumbar spine MRI on 22 June 2018 after the failure of conservative treatment to provide the applicant with significant relief.
The MRI of 22 June 2018 noted a history of six months of increasing pain with pins and needles over the L4/L5 distribution of the applicant's right leg with progressive weakness. The MRI disclosed a moderate left foraminal stenosis with endplate osteophyte and facet degenerative arthropathy at L4/5 together with disc bulging with moderate bilateral foraminal stenosis and facet arthropathy, worse on the right at L5/S1.
After examining the relevant radiological investigations and clinical records, Dr Hopcroft was of the view the applicant suffered significant injury to her left shoulder and lumbar spine in the incident on 1 January 2014. His view was the applicant "has been left severely compromised and should not return to truck driving activities due to the protracted sitting involved in that trade, and the necessity to secure loads and to climb into and out of high truck cabins."
Dr Hopcroft opined the applicant's employment with the respondent was the substantial contributing factor to the injuries which she sustained and, that the nature and conditions of her employment, namely ongoing protracted sitting whilst driving a truck together with the activities associated with loading and unloading them, was the main contributing factor to the aggravation of her injuries.
In his supplementary report, Dr Hopcroft expressed the view the applicant was permanently unfit for her pre-injury duties and was fit only for sedentary or light physical work where protracted standing and repetitive bending and lifting can be avoided. He also considered the applicant's left shoulder issues by way of damaged subscapularis muscle with restrictions in both flexion and abduction aggravate the applicant’s incapacity the applicant has in returning to work. Dr Hopcroft opined:
"I believe the nature and conditions of her employment with Wickham Freight Lines contributed to her lumbar spine injury, although even if she had not had pre-existent changes at the L5/S1 level, the impact of landing on her feet following a fall from the back of the prime mover she had been driving would have been enough to cause the problem at L5/S1 disc which lead to her surgery.
I believe her work with Wickham Freight Lines was the main contributing factor to be a aggravation and acceleration of her underlying spondylitis changes and the superimposed serious injuries in 2014."
The respondent provides no medical evidence to contradict Dr Hopcroft.
Dr Hopcroft's view is broadly supported by that of treating neurosurgeon Dr Coughlan, who provided a report to the applicant's general practitioner Dr Or dated 21 July 2019. He described the applicant as suffering "very significant ongoing axial back pain, marked discogenic changes at L5/S1." In that report, Dr Coughlan recommended a surgery. That surgery was eventually carried out on 10 December 2019 by way of L5/S1 anterior lumbar fusion.
In a report dated 8 May 2021 to the applicant's general practitioner, Dr Coughlan stated the applicant was doing very well after the fusion surgery but noted "her work pre-surgery was very physically demanding with long periods of sitting in the truck, and I have recommended that she desist from returning to this type of work for at least the next few months."
The records of Dr Coughlan clearly reveal that he treated the pathology which was present in the applicant's spine following her injury at work in January 2014 and the worsening of her symptoms over time as she continued to work as a long-distance truck driver. In my view, although Dr Coughlan does not provide a specific opinion as to causation, the pathology which he treated ties in with that referred to by Dr Hopcroft in his uncontested IME report, and is therefore consistent with the applicant having suffered injury as alleged.
I note, again, the respondent has not provided any medical opinion to contradict that of Dr Hopcroft. Likewise, there is no lay evidence to contradict that of the applicant regarding the injurious event in January 2014 or the nature and extent of her duties with the respondent as a long-distance truck driver. In these circumstances, on the balance of probabilities, I accept the applicant's version of events and the opinion of Dr Hopcroft regarding not only the lumbar spine injury but also that of the left shoulder. I am comfortably satisfied on a common sense basis that the injuries occurred as alleged by the applicant.
In so finding, I note the applicant provided the names of two potential witnesses regarding the reporting of the incident in January 2014, however, the respondent has provided nothing to explain the absence of any evidence from those witnesses which might contradict the applicant. I do not go so far as to draw any inference in relation to the evidence which might have been provided by those witnesses, however, it is not necessary to do so as the only lay evidence in the matter is that provided by the applicant herself. There is no suggestion the applicant is anything other than a witness of truth, and I have no difficulty in accepting her evidence.
For these reasons, I find the applicant suffered injury to her left upper extremity (shoulder) and her lumbar spine in the course of her employment with the respondent on both 1 January 2014 and due to the nature and conditions of her employment in aggravating the underlying pathology in both her lumbar spine and left shoulder, with a deemed date of injury of 27 November 2019, being the date the applicant last worked.
The defenses pursuant to ss 254 and 261 of the 1998 Act
The respondent relies on s 254 and s 261 of the 1998 Act to allege the applicant is precluded from claiming compensation as a result of failing to comply with relevant time limits. For the following reasons, I do not accept that those defences are made out.
In relation to the 2014 injury, the applicant's uncontested evidence is that she reported her injury to relevant representatives of the respondent the day after it took place. In a Supplementary Statement dated 24 January 2024, the applicant again set out the circumstances of the 2014 injury, then said:
"(3) The truck was due for a service the next morning, being the Saturday and I therefore had to wait around. I got up in the morning at about 10:00 am and I took the truck down to be serviced. I then went back up to the office and spoke to Jake Peasnell, who is the allocator. The allocator is the person that tells everybody what route and jobs they have and is basically the manager. I recall that I said to Jake 'I fell off the truck last night when I was filling up with fuel and I landed on my left shoulder and my back is a bit sore'. He said to me, 'Okay' and handed me an incident report form which I completed and handed back to him. I recall that whilst I was filling it out, I said to him, 'You can watch the cameras if you want to see what time it occurred'. I note that I was not in a hurry as I had to wait around for the truck to be serviced. I was not able to leave until about lunchtime."
There is no evidence to contradict the applicant's version of events. No statement or evidence has been completed by Mr Peasnell or indeed Mr Keogh, whom the applicant also apparently spoke to about reversing into and damaging a trailer the day after her alleged injury.
Indeed, no officer of the respondent has provided any evidence to the effect that they have searched their records and failed to find any incident report. The only evidence on the question of whether the applicant's 2014 injury was reported is that provided by her. It is uncontested and has not been traversed. This being so, I accept it. Given the applicant reported the incident the morning after it allegedly took place, in my view, s 254 has been satisfied in that she has reported the injury as soon as possible after it happened, and certainly did so before she voluntarily left her employment with the respondent.
The applicant in her Supplementary Statement noted she thought the issue with her back and shoulder were muscular and would repair themselves following chiropractic treatments. I accept she was mindful of being a female long-distance truck driver in a male-dominated industry and did not wish to complain. In her Supplementary Statement, the applicant noted she first found out the seriousness of her back problems in June 2018 and after the MRI scan. She provided non-WorkCover certificates to the respondent at that time in order that they would know why she was not working.
In terms of the provisions of s 261 of the 1998 Act, the applicant said in her Supplementary Statement:
"(11) In 2021, I spoke to a friend Paul Ward and I told him about the problems I was having with my back and he recommended that I speak to Libby Campbell at Everingham Solomons. I first went and saw Ms Campbell in May 2021 and put in a claim shortly thereafter. I did not know I could claim compensation for my back condition until I spoke to Ms Campbell."
Once again, that evidence is uncontested. In my view, it satisfies the requirements of s 261 of the 1998 Act in that the evidence discloses the failure by the applicant to make a claim with respect to her injuries was occasioned by her ignorance as to her rights under the workers compensation legislation. I reiterate, this evidence is uncontested.
For these reasons, the defences raised by the respondent pursuant to ss 254 and 261 of the 1998 Act must fail.
The claim for permanent impairment compensation will therefore be remitted to the President for referral to a Medical Assessor to determine the degree of whole person impairment suffered by the applicant in terms consistent with those set out on page 1 of the Certificate of Determination.
Claim for weekly compensation
Although permanent impairment and incapacity are plainly different concepts, the Commission has held that in contested matters such as the current proceedings where both claims for weekly and permanent impairment compensation are made, the preferred course of action where a Member has found a s 4 injury is to refer the proceedings for medical assessment of the whole person impairment before the final orders are made: Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie). Consistent with Deputy President Roche's comments in Jaffarie, I consider the appropriate course of action in this matter is to remit the claim for permanent impairment compensation to the President for referral to a Medical Assessor on terms consistent with my findings, and to stand over the claim for weekly compensation to a date after the issuing of a medical certificate.
The surgery carried out by Dr Coughlan
The applicant claims a general order pursuant to s 60 of the 1987 Act together with a specific order relating to the reasonable necessity of the surgery carried out by Dr Coughlan. In my view, the evidence in relation to that surgery is overwhelming.
As set out earlier in these reasons, the surgery treated the symptoms which arose because of the injury sustained by the applicant in the course of her employment both in 2014 and the aggravation caused by the nature and conditions of her employment thereafter. The opinion of Dr Hopcroft is not contested by any IME retained by the respondent. The MRI of June 2018 confirms the presence of pathology and an increase in the applicant's symptomology.
It is symptoms which give rise to the need for treatment, not pathology, and the applicant's evidence of a worsening in her lumbar spine and shoulder symptoms is consistent with the contemporaneous medical material and I accept it. Dr Coughlan's records also revealed that he treated the very pathology which Dr Hopcroft determined was causing the applicant's symptoms. The respondent has not made a substantive argument against the surgery from a medical perspective, instead relying, as is its right, on issues of causation and whether injury arose. Consistent with my findings on these issues earlier in these reasons, it follows that there will be an order that the surgery carried out by Dr Coughlan was reasonably necessary as a result of the injuries sustained by the applicant, and the respondent will be ordered to pay the costs of and incidental to that surgery.
Additionally, having found in the applicant's favour on the questions of liability regarding injury, orders will be made that the respondent pay the applicant's reasonably necessary medical and treatment expenses pursuant to s 60 of the 1987 Act.
SUMMARY
For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination. In the circumstances of this matter and given the overlay of two injuries to the same body parts, the Medical Assessor will be requested to assess impairment to the affected body systems on an overall basis, together with any attribution between the specific incident in January 2014 and the nature and conditions injury with a deemed date of 27 November 2019.
0