Vae v Blue Star Painting
[2023] NSWPIC 103
•14 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Vae v Blue Star Painting [2023] NSWPIC 103 |
| APPLICANT: | Zu Wan Vae |
| RESPONDENT: | Blue Star Painting |
| Member: | Cameron Burge |
| DATE OF DECISION: | 14 March 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Claim for permanent impairment compensation; injuries to right elbow and left shoulder admitted; injury to left elbow in dispute; Held – the applicant has the onus of proving he suffered injury as alleged; in this matter, despite being taken to hospital following the injury at issue, there is no record of any complaint of left elbow symptoms or injury to either the hospital, the applicant’s general practitioner or any treating medical expert; the only evidence of left elbow injury is the applicant’s statement and the report of his Independent Medical Examiner (IME) Dr Bodel; the respondent’s IME Dr Muratore took an unchallenged history from the applicant that he did not suffer left elbow symptoms form the fall at issue, and instead attributed his problems to that body system to the ageing process; notwithstanding the usual caution to be taken regarding histories to treating practitioners, the preponderance of the medical evidence in this matter does not support a finding of injury to the left elbow; award for the respondent on the claim for left elbow injury; balance of the matter remitted to the President of the Personal Injury Commission for referral to a Medical Assessor to determine the applicant’s permanent impairment to the left shoulder and right elbow. |
| determinations made: | 1. The applicant suffered an injury to his right upper extremity (elbow) and left upper extremity (shoulder) in the course of his employment with the respondent on 6 October 2019. 2. Award for the respondent on the claim for injury to the left upper extremity (elbow). 3. The matter is remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment in relation to the following: Date of injury: 16 October 2019. Body systems referred: right upper extremity (elbow) and left upper extremity (shoulder). Method of assessment: whole person impairment. 4. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments, and (c) Reply and attachments, including the Medical Assessment Certificate of |
STATEMENT OF REASONS
BACKGROUND
On 6 October 2019, Mr Zu Wan Vae (the applicant) was working as a painter with Blue Star Painting (the respondent) when he fell down a set of stairs at a karaoke bar in Strathfield while attending a work Christmas party.
There is no issue the applicant suffered injury to his right upper extremity (elbow) and left upper extremity (shoulder) in the above fall. Those body systems will be referred for assessment by a Medical Assessor to assess the degree of the applicant’s permanent impairment.
The applicant also alleges he suffered an injury to his left upper extremity (elbow) in the fall at issue. The respondent denies liability for this injury, and relies on ss 4, 4b and 9A of the Workers Compensation Act 1987 (the 1987 Act).
ISSUES FOR DETERMINATION
The parties agree that the only issue for determination is whether the applicant suffered an injury to his left upper extremity (elbow) in the fall at issue.
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 8 March 2023. At the hearing, the applicant was represented by Mr Hickey of counsel instructed by Ms Yoon. The respondent was represented by Ms Balendra of counsel instructed by Ms Rafaelli.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the applicant suffered an injury to his left elbow
The applicant has the onus of proving he suffered an injury in the course of his employment to his left upper extremity (elbow) in the fall at issue. Injury is defined in s 4 of the Workers Compensation Act 1987 (the 1987 Act), and the authorities make it clear that what is required to constitute “injury” is a “sudden or identifiable pathological change”: see for example Castro v State Transit Authority (NSW) [2000] NSWCC 12.
An applicant is also able to rely on an aggravation to pre-existing pathology brought about by an allegedly injurious event. In such circumstances, the applicant must demonstrate their employment was the main contributing factor to the aggravation of the underlying pathology, not the pathology itself: see Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626.
In this matter, for the following reasons I am not satisfied the applicant suffered an injury to his left upper extremity (elbow) in the fall at issue.
There is no question the applicant’s fall was a serious one. He was unable to work for approximately six months and received ongoing treatment from his general practitioner (GP) and physiotherapist. Following the fall, the applicant presented to Royal Prince Alfred Hospital (RPA) on 8 October 2019 and remained in hospital until 10 October 2019. The principal diagnosis on that occasion was multiple non-contiguous rib fractures, comminuted left clavicle fracture and right elbow fracture.
The Discharge Summary and Referral from RPA are set out at page 22 of the Application. It sets out the applicant’s injuries and ongoing problems, including the fractures together with pulmonary contusion, left loculated haemothorax and airspace opacity against a background of previous left shoulder surgery in 2018.
The applicant was released into the care of his GP and prescribed oxycodone four times per day and Targin twice a day.
There is no mention of any injury to the applicant’s left elbow in the hospital records.
Likewise, there is no mention in the treating GP records of the applicant complaining of any left elbow symptoms. Nor do the records of his treating physiotherapist demonstrate any such complaint.
The only evidence which supports the applicant’s claim of injury to the left elbow is that contained in his statement. At [5] of his statement, the applicant states:
“On 6 October 2019, I fell down on a set of six stairs at a karaoke bar in Strathfield when I attended a work Christmas party, which caused me suffering from fractured clavicle, multiple rib fractures, a fracture of the coronoid process in the right elbow and aggravation of previously asymptomatic degenerative changes in both elbows.”
Additionally, the applicant’s Independent Medical Examiner (IME) Dr Bodel provided a report dated 29 August 2022 in which he summarised the applicant’s injuries as including “injury to both elbows with a fracture of the coronoid process in the right elbow”. Dr Bodel took a history relating to the injury of the applicant being “aware of an immediate onset of severe pain in the region of the left shoulder, the left side of the rib cage and both elbows”. The reference to the left elbow is not supported by the contemporaneous medical records.
When commenting on the relevant radiological material, Dr Bodel said:
“The report of the CT scan of the elbow on the right side dated 9 October 2019 is noted. This confirms a fracture of the coronoid process and severe tricompartmental degenerative change in that elbow and clinically it is also present in the left elbow.”
When asked to provide a diagnosis, Dr Bodel said:
“The diagnosis is a fracture of the clavicle, multiple rib fractures, the fracture to the coronoid process in the right elbow and aggravation…of previously asymptomatic degenerative changes in both elbows.”
In providing an impairment assessment, Dr Bodel noted both elbows were also restricted and a part of the alleged injury by way of aggravation to a disease process, namely arthritic change in the elbows.
IME for the respondent, Dr Muratore provided a report dated 15 November 2022. He took a history from the applicant of injuries to the clavicle and left chest wall, together with right elbow injury. Dr Muratore directly asked the applicant whether he had any other joint pain, to which the applicant said that he “has bilateral elbow pain, ‘which has nothing to do with the injury’.” Dr Muratore noted right elbow pain and loss of motion was worse than the left and was aggravated by attempting to fully extend the arm. Dr Muratore allegedly asked the applicant what made his left elbow pain worse to which the applicant replied “lots of ceiling work” and he thought “it was coming with the ageing”.
Dr Muratore noted the applicant suffered a fixed flexion deformity in both elbows of 20 degrees, and that on examination there was no tenderness to the left elbow and there were normal movements. Dr Muratore noted the history presented by the applicant differed to that presented to Dr Bodel, as the applicant did not recall any elbow pain other than that which he attributes to being a consequence of ageing.
Dr Muratore states the elbow symptoms were due to pre-existing degenerative changes which may have been aggravated in the right elbow by the subject fall. Dr Muratore stated
Dr Bodel’s conclusion that the applicant suffered an injury to his left elbow was mistaken, despite the applicant possibly reporting left elbow pain to Dr Bodel on the date of assessment.On balance, I find the preponderance of the medical evidence does not support a finding that the applicant suffered either a frank injury or an aggravation of his pre-existing condition to the left elbow. I do accept the applicant made some complaint of left elbow pain to Dr Bodel, as is self-evident from the doctor’s report, however, the absence of complaint to Dr Muratore of any left elbow pain occasioned by the accident is consistent with the lack of any complaint to the GP, physiotherapist or hospital in the aftermath of the fall at issue.
Mr Hickey submitted the other injuries suffered by the applicant were plainly very serious and it was understandable they were therefore the focus of his care. Whilst I accept those injuries were more serious, there is no doubt the applicant’s treating physiotherapist and the hospital both turned their attention to his bilateral elbows, and at no point was any complaint made by the applicant to those practitioners of injury-related left elbow pain.
A number of authorities make it clear that absence of complaint to a treating practitioner should not be regarded as the sole factor in determining whether an applicant has suffered an injury. In Baker v SouthernMetropolitan CemeteriesTrust [2015] NSWWCCPD 56, Deputy President Roche made it clear in the context of a psychological injury that lack of complaint is a factor which the Commission is entitled to take into account in considering whether to accept a worker’s assertion that certain events occurred and that they affected them in a certain way, however, on its own the absence of a complaint to a GP was not decisive of whether the events complained of caused an injury.
In my view, the circumstances of this matter are different to those in Baker, in that there is not merely an absence of complaint but physical examinations of the body part in issue (the left elbow) at RPA and also by Dr Muratore. The only medical practitioner, treating or IME, who makes any reference to a potential left elbow injury is Dr Bodel and he does so in the context of an aggravation to pre-existing pathology. That assertion by Dr Bodel is, in my view, met by Dr Muratore who elicited a direct history from the applicant that his left elbow pain was not brought about by the accident, but rather was the product of the ageing process.
That report of Dr Muratore is dated 15 November 2022, and notwithstanding this matter being heard on 8 March 2023, no supplementary statement from the applicant was presented to refute the accuracy of what he was said to have told the respondent’s IME. Additionally, the applicant was subject to a thorough course of radiological investigation which included CT scans of all affected body parts. In my view, one would expect after so serious a fall that if the applicant’s left elbow was indeed symptomatic, there would have been at least some reference to it and even some radiological investigation. There is none.
I am therefore not satisfied on the balance of probabilities, adopting a common sense approach to the totality of the evidence, that the applicant suffered an injury to his left elbow, be it by way of frank injury or aggravation of a pre-existing condition, in the fall at issue on 6 October 2019. Accordingly, there will be an award for the respondent on the claim for injury to the left elbow.
SUMMARY
31. As noted, the injuries to the right elbow and left shoulder are not in dispute. They will be the subject of a referral to a Medical Assessor in accordance with the findings and orders set out on Page 1 of the Certificate of Determination.
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