Watson v P & MJ Cox Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Watson v P & MJ Cox Pty Ltd [2023] NSWPIC 681
APPLICANT:	Peta Adel Watson
RESPONDENT:	P & MJ Cox Pty Ltd
MEMBER:	Jane Peacock
DATE OF DECISION:	19 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Lumbar spine injury; injury disputed; evidence weighed in the balance and satisfied on balance of probabilities that injury occurred; Held – award for the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. On the application of the applicant, the applicant has leave to amend the Application to Resolve a Dispute as follows: (a) to withdraw the claim for weekly compensation; (b) to withdraw the claim for injury to and/or consequential condition of her bladder; (c) to discontinue any claim based upon the nature and conditions of her employment; (d) to withdraw the allegation of injury consisting in the aggravation, acceleration, exacerbation or deterioration of a disease with a deemed date of 25 October 2012, and (e) in respect of the claim for s 60 expenses, to seek a general order. 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 13 April 2011; (b) Body systems/parts: lumbar spine, and (c) Method of assessment: whole person impairment. 3. The documents to be forwarded to the Medical Assessor are as follows: (a) the Application to Resolve a Dispute and all documents attached; (b) the Reply and all documents attached, and (c) late documents filed by the respondent with an Application to Admit Late Documents dated 13 September 2023. 4. The respondent pay the applicant’s medical expenses on production of accounts and/or receipts.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (the Application), as amended, Ms Peta Watson
(Ms Watson) seeks lump sum compensation and medical expenses as a result of injury alleged to her lumbar spine on 13 April 2011 in the course of or arising out of her employment as a shop assistant at a bottle shop.
The respondent is P & MJ Cox Pty Ltd (the respondent). The respondent was insured at the relevant time for the purposes of workers compensation.
The respondent denied liability for the claim.

ISSUES IN DISPUTE

Ms Watson was granted leave to amend the application at the conciliation/arbitration as follows:
(a)    to withdraw the claim for weekly compensation;
(b)    to withdraw the claim for injury to and/or consequential condition of her bladder;
(c)    to discontinue any claim based upon the nature and conditions of her employment;
(d)    to withdraw the allegation of injury consisting in the aggravation, acceleration, exacerbation or deterioration of a disease with a deemed date of
25 October 2012, and
(e)    in respect of the claim for s 60 expenses, to seeks a general order.
Ms Watson alleges that she injured her lumbar spine at work on 13 April 2011 when lifting casks of wine.
The respondent denies that Ms Watson injured herself as alleged. Essentially the respondent denies the alleged injurious event took place at all.
The respondent says that if a finding of injury is made in favour of the applicant, the applicant is in any event precluded from the recovery of compensation because of the late notice and late claim provisions of the Act.
These proceedings involve a claim for lump sum compensation. In the event it is found that Ms Watson was injured as alleged and if she is found not to be barred from the recovery of compensation due to lateness, it is agreed that the matter would need to be remitted for referral to a Medical Assessor to assess the degree of permanent impairment, if any, of the lumbar spine as a result of injury on 13 April 2011.
In the event of a liability finding in favour of the applicant, a general order for the payment of medical expenses would follow.

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.
Written submission were directed at the request of the parties and timetabled. The parties approached the Personal Injury Commission (Commission) more than once for extension of the timetable which was granted on each occasion. The parties ultimately each filed written submissions which included the applicant’s submissions in reply.

EVIDENCE

Documentary evidence

The following documents were admitted into evidence before the Commission by consent and considered in making this determination:
For Ms Watson:
(a) Application and attached documents, and
For the respondent:
(a) Reply and attached documents.

Additional Late documents

The respondent filed an application to admit late documents dated 13 September 2023 which was comprised of documents produced under direction by Maclean District Hospital, Clarence Medical Centre, and Princess Alexandra Hospital. The applicant does not object to the documents produced by Princess Alexandra Hospital. The applicant objects to the admission of the documents produced by Maclean District Hospital and Clarence Medical Centre asserting prejudice. The applicant cannot succeed in this objection. The documents sought to be admitted are clinical records. Direction for production were granted by leave by consent at the first conference. The applicant at all times had first access to the documents produced under direction as per the Commission’s usual processes. If there was something in the applicant’s clinical records that the applicant needed to respond to or traverse, it was open to the applicant to seek to file further evidence and seek leave to rely on same. The applicant did not do so. There is no basis on which to assert prejudice at this stage about the admission of the applicant’s own clinical records. Accordingly I will admit the late documents filed by the respondent.

Oral evidence

Ms Watson did not seek leave to adduce oral evidence.
Counsel for the respondent did not seek leave to cross-examine Ms Watson.
Counsel for Ms Watson did not seek leave to cross-examine the witnesses in the respondent’s case.

FINDINGS AND REASONS

Ms Watson alleges that she injured her lumbar spine at work on 13 April 2011 when lifting boxes of cask wine in the course of or arising out of her employment with the respondent as a sales assistant in a bottle shop.
The respondent denies that Ms Watson injured herself as alleged. Essentially the respondent denies the event took place at all.
In this matter, the crux of the dispute is whether Ms Watson suffered injury to her lumbar spine at work on 13 April 2011 when she says she was lifting casks of wine when she felt sudden pain, a pop, in her lumbar spine.
Ms Watson filed an application in which she “pleaded” injury as follows:
“the worker suffered an injury to her lumbar spine when lifting at work necessitating surgery and resulting in a neurogenic bladder. Further the worker was required to perform duties of a heavy and repetitive nature placing strain in her lumbar spine resulting in the aggravation, exacerbation and/or acceleration of an underlying disease condition.
1. Lumbar spine injury; and
2. Neurogenic bladder- bladder dysfunction”
The bladder claim and any claim relying on the nature and conditions of employment aggravating an underlying condition have been withdrawn. The applicant relies on the injurious event alleged to have occurred on 13 April 2011, which is disputed.
There is a factual dispute between the parties that that the injury did not occur at all as alleged on the day alleged and/or that Ms Watson has not, for reasons of various inconsistencies in the evidence, discharged the onus of proving that it did.
If the liability dispute is determined in the applicant’s favour, the respondent says that she did not give notice of the injury or make a claim for compensation within the times prescribed by the workers compensation legislation and she is barred from the recovery of compensation.
There is a factual dispute in this regard also because the applicant says she did give notice of injury. This is disputed.
If found that she did not give notice of injury, the applicant says that she did not do so or make a claim for compensation within the time limits prescribed by the legislation because of ignorance.
In the event that the factual dispute is resolved in the applicant’s favour, that is, if it is found that she injured her lumbar spine as alleged on 13 April 2011 whilst at work and if it is found that she is not precluded from the recovery of compensation by the late notice and claim provisions of the Act, it is not disputed that, as this is claim for lump sum compensation, the matter would be remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment, if any, of the lumbar spine resulting from injury on
13 April 2011.
I must first decide on the balance of probabilities whether Ms Watson suffered injury to her lumbar spine in the course of or arising out of her employment with the respondent on
13 April 2011. This determination must be made in the evidence and in accordance with the law.
Turning now to a careful examination of the evidence.
Ms Watson has given four statements of evidence, dated 29 January 2014, 15 August 2017, 25 July 2019 and 4 May 2023.
Ms Watson gave evidence in her statement dated 29 January 2014 that she was initially employed as a cleaner for the respondent, a bottle shop which was a small business owned by husband and wife team Peter and Mel Cox. Ms Watson says she moved into her role as a sales assistant in about June 2011.
She would still help stack shelves as a cleaner.
On 13 April 2011, she was rostered on with someone she remembers as Michael. She remembers this to be a Wednesday.
She gave evidence about the injury as follows:
“At the time of my injury, I was restocking the shelves in the shop.
I can even remember the wine I was stocking, it was a sovereign point wine and it was four pack of four litre wine.
I remember getting the boxes of wine from the back store room and placing them on a trolley. I had two or three four packs on the trolley, due to the position of the wine and as described earlier, it was awkward to get the wine out. After they were placed on the trolley, I pulled the loaded trolley inside the store where I commenced to repack one of the lower shelves. I squatted down and picked up an individual pack, placed it on its side and pulled off the plastic wrap. I did the top two okay, it was the last pack which caused me the problem.
I picked up the pack which was about 18kg from the trolley while squatting down. I have placed it on its side o9n the floor so I could take the plastic wrap off. It was while picking up the pack and placing it on the floor while squatting , this is when I felt my back give way.
When I say I felt it give way, I heard a noise like a pop followed by severe pain to my lower back. I leant on the package of wine to get my breath back, I reloaded the packs individually onto the shelf. There are four litre individual casks. This was after getting my breath and composure back. During thus time I remained in a squatting position.
I sued a shelf to help me get p. My back was sore and I knew I had injured it. There was just a constant throbbing pain. I used the trolley to assist me in taking the trolley out the back, I was upset and I cried.”
There were no witnesses to the injury.
Ms Watson says that she reported her injury verbally to her colleague Michael as follows:
“I came into the store and from memory I told Mel and/or Michael, “I just hurt my back lifting those casks of wine.” At the time I was stooped over and bent out of shape. I continued for a few hours and avoided heavy lifting. During this time my back felt very sore but I soldiered on.”
Ms Watson account that she reported the injury to Mel (the owner and licensee) is denied in statements filed by Ms Mel Cox who says she was not in the store that day and was away camping.
Mr Michael Hoffman has given a statement of evidence which denies that any injury was reported to him by Ms Watson. He says that she was rostered on with him, he was the manager on duty and if an injury had been reported to him he would have taken steps as per the requisite procedure to fill out a report of injury form. He denies he was told about the injury by Ms Watson.
Ms Watson says she drove herself home. Her back continued to be sore.
She says that on the Saturday (which would be 16 April 2011) she went into the store with her partner Peter Nielsen. She bought alcohol from the bottle shop and pain killers (Panadeine forte and Neurofen plus) from another shop.
Ms Watson says she spoke to Mel and Peter at the store. She says Peter offered her the use of their inversion table (which allows you to be suspended upside down to take pressure of the back). She says she went to their house at Yamba to use the inversion table which helped for a few hours but then the pain returned and she was hunched over again.
I note that in a later statement the applicant says that this conversation and use of the inversion table actually took place on the following weekend which was 23 April 2011.
I note that Mel and Peter Cox have given statements of evidence in which they have admitted that Ms Watson used their inversion table but not at this time, that is not in April 2011, and not with any disclosure of injury at work. They have given evidence that she used the inversion table in about 2009.
On Monday 18 April 2011 Ms Watson attended McClean District hospital and in this regard gives evidence as follows:
“On Monday 18th April 2011, I went to Maclean District hospital as I was still hunched over and in pain, the medical staff took an Xray and I was given stronger pain killers, in respect to my injury that was the only treatment I received at the time.
I remember that I was asked at the hospital if I wanted to make a workers compensation claim, I didn’t want to as I thought the pain would go away. I was hoping it would settle down.”
The clinical notes of the Maclean District Hospital record on 18 April 2011 as follows:
“Started at work on Wednesday when she squatted to pick up something and she felt her back give way. She has been on light duties since then and yesterday swept the house and the pain became very severe”.
That is there is contemporaneous record of a complaint of having injured her back at work
five days earlier lifting wine casks. This entry supports the applicant’s case.
The respondent submitted as follows:
“It is submitted that the Member would have some difficulty, feeling an actual persuasion, that the Applicant in fact sustained an injury to her back at work on
13 April 2011. This is particularly because there are no complaints to any doctors of any injury to her back or any further investigations of the Applicant’s back (apart from the x-ray taken at the hospital on 18 April 2021) until June 2012, more than a year after the alleged incident on 13 April 2011.”
Ms Watson was not cross-examined about her evidence. She says she injured her back on 13 April 2011 lifting a pack of four wine casks. Supportive of her evidence is the history of this injury that she gave to MacLean Hospital five days later. If the injury did not occur why did Ms Watson tell the hospital that it did when she was seeking their treatment and help for back pain. This question of why she would tell the hospital about a fictious injury would seem particularly pertinent given she then didn’t make any report of the work injury to work or seek to take any workers compensation leave. For me to find the injury did not occur as alleged when there is a contemporaneous report to the hospital that she injured her back at work would essentially mean that I am finding that she went and lied to the hospital about having injured her back at work when seeking their help for back pain and that she lied to the hospital about having hurt he back at work in the context of not seeking to take any workers compensation paid leave at that time.
Ms Watson says that she returned to work the following week. She says work knew about her injury but she wasn’t given an injury notification form. She gave evidence in this regard as follows:
“The following week I returned to work. I may have been called in or it may have been a rostered shift, I’m not sure. While I made it known at the time I injured my back work never did anything. There was no injury notification recorded for what occurred. I also did not pursue this issue at the hospital as I was hoping it would go away and this would not be necessary,. I did not know it was a serious injury.”
I note the evidence of Ms Watson that the respondent was aware she had been injured at work, is traversed by statements of Mel Cox, Peter Cox and Michael Hoffman, all of whom deny that Ms Watson reported the injury of 13 April 2011.
Ms Watson gave evidence that she continued with her usual duties and she would get flare up of her back pain. She gave evidence as follows:
“At work I continued my usual duties. This included restocking the store and again, lots of lifting as I have described. Over time I would get flares up with my back and feel pain in my lower back. I would end up hunched over and feeling very sore I would take over the counter pain medication, the issues with my back would come and go.
On Tuesday which is a delivery day would come home in a lot of pain and go to bed. As I have indicated Tuesdays involve a lot of lifting.”
The next date of note that the applicant refers to is June 2012 (some 14 months after the alleged injury). The applicant gave evidence:
“In June 2012 the pain became more consistent and I found that I was living on pain medication. In fact I was on the strongest over the counter medication which was panadine forte.
I didn’t see a doctor as around this time we ere having some staffing issues, we were one staff member down as he had injured his knee and one of the others had to work at another store, we were basically two down and I felt obliged to centime working.”
On 5 October 2012 (some 18 months after injury) the applicant couldn’t take the pain anymore and consulted Dr Gregor, general practitioner (GP) who prescribed her stronger medication.
The pain continued so she went back to Dr Gregor who ordered a CT scan and prescribed more medication.
Ms Watson says she was booked in for the CT scan the following week but before she could have it done, her back ruptured. This occurred on 26 October 2012.
She called Mel Cox (her employer) and said her back has “gone altogether” and she wouldn’t be at work.
She called the radiologist who agreed to see her that day and her partner drove her to Grafton to have the scan.
Her GP admitted her to Maclean Hospital and she was there from 26 October 2012 to
3 November 2012. She was bedridden.
She never returned to work. She was referred to Dr Campbell in Brisbane who she saw on 27 November 2012 who told her that the action should have been taken soon and that she now had cauda equina.
She came to two operations on 30 November 2012 and 30 August 2013.
On 12 June 2013 she called workcover as she did not know process for claiming a workplace injury.
On 16 July 2013 she attended the store and spoke to Mel and Peter separately. She asked who the workers compensation insurer was. She was told Mel would ring her with the information. She says she didn’t receive a call back. She texted Mel who eventually advised her it was CGU. Ms Watson gave evidence:
“Mel eventually gave me the information for CGU. In her final text she stated ‘I don’t know how you can claim this because you were not at work.‘ I last saw her a few weeks ago in town and I kept the conversation short. I am extremely upset as I injured my back at work while being a good and hard worker for them. I am also upset as continued to work and help them out even after having injured my back.”

Ms Watson gave evidence she had not prior problems with her back. She did have Q fever contracted in 2007. She says she didn’t know to whom to report workplace injuries because she had never been injured at work previously. She says he had no training in safe work practices and no training about notifying workplace injuries. She gave evidence:
“I first reported my injury at the time and day I injured my back, they were well aware of the circumstances of my injury as I used their inversion table which was in their garage at Yamba.”
In a statement dated 15 August 2017 Ms Watson gives further account of her injury. The account is basically consistent with her first statement. She identifies the Michael as Michael Monkton. The respondent says that the shift records show it was Michael Hoffman who has given evidence which denies any injury was reported to him.
She says she continued to work after her injury but avoided heavy lifting. She went to the hospital on 18 April 2011. It is the weekend of 23 April 2011 that she spoke to Mel and Peter and they offered her the use if the inversion table.
In a supplementary statement dated 25 September 2019 Ms Watson addresses a clinical record from MacLean Hospital dated 23 January 2011 which records a complaint of back pain. She says this occurred whilst lifting while camping. She says she fully recovered after seven days.
Ms Watson in her statement dated 25 September 2019 responds to the evidence in the respondent case.
The worker injury claim form is written by Ms Watson, is dated 10 March 2014 and describe the injury as:
“On 13/04/2011 I initially squatted down to pick up a 4 pack of 4 litre wine casks when I felt my back give/pop, I continued to work using pain killers to get through the days of work when eventually the disc ruptured on 26/10/2012.”
The claim form asks a series of questions which are answered by Ms Watson as follows:
“what was the date and time the injury/condition occurred?
13/04/2011
When did you first notice the injury/condition
13/04/2011
If you stopped work what was the date and time?
26/10/2012 AM
When did you report the injury/condition
26/10/2012
What is the name and position of the person you reported the injury condition to
Melinda co-owner, employer, licensee”
The claim form filled out by Ms Watson on 10 March 2014 is instructive because Ms Watson does not identify that she reported the injury until 26 October 2012. This is consistent with the evidence from the respondent’s witnesses including Ms Cox.
She does say that it was the weekend of the 23 April 2011 that she was invited to use the inversion table.
Michel Hoffman has given evidence and he notes he was than manager on 13 April 2011 and if he had been told Ms Watson injured her back whilst lifting he would have implemented injury reporting protocols.
Mel Cox has given a statement of evidence that essentially says she was never informed that Ms Watson had injured her back at work and bever received any medical certification to that effect.
Ms Watson relies on the IME opinion of Dr Stephen orthopaedic surgeon. This was in fact the IME qualified on behalf of the insurer. Dr Stephen saw Ms Watson at the request of the insurer and provided a report dated 25 August 2017.
Dr Stephen took a history that included the alleged work injury and continuing to work up until 26 October 2012. She denied any prior problems with her back. I note that the clinical records of Maclean Hospital show a report of prior problems when she attended on them reporting having injured her back while camping. The respondent says that Dr Stephen’s opinion has not been given in a fair climate because of the inaccuracy of the history.
He attributed causation to the workplace injury of 13 April 2011 as follows:
“Ms Watson sustained a left sided lumbo sacral disc prolapse which, having reviewed the evidence, I am of the opinion was the product of the work injury of 13 April 2011. This produced in the first instance back pain and later back and left leg pain and necessitated the first of the two operative procedures performed, the second procedure being necessary because of recurrence of disc prolapse, which appears to have taken place very early post operatively.”
The insurer also qualified a neurologist Dr Walker to provide an IME opinion on their behalf. Dr Walker produced three reports.
The first report dated 2014. Dr Walker diagnoses a lumbar strain in the alleged incident on 13 April 2011 but the disc prolapse occurred on October 2012 prior to her admission to hospital and subsequent surgery and was unrelated to the work injury.
Dr Walker accepts the history given of the work injury of 13 April 2011 and notes the normal X-ray taken at the MacLean district hospital.
The respondent points out that there is no other record of injury occurring on 13 April 2011 in any of the clinical notes.
The respondent submitted:
“The history in the contemporaneous material discloses that following the injury on 13 April 2011 (which is not admitted) the Applicant was seen at Maclean District Hospital 5 days later ie on 18 April 2011. The history recorded at Maclean District Hospital as referred to above did not refer to her climbing a ladder. More importantly there is no evidence that “she was treated as an outpatient for severe low back strain which persisted and increased in intensity, requiring hospitalisation”. As referred to above, there are no clinical records of attendances between 18 April 2011 and June 2012 and from June 2012 to October 2012 where there were no complaints of back pain recorded. It is only on 15 October 2012 that the Applicant complains to Dr. Gregor of low back pain – see paragraph 35 above, and there is no history recorded of continuing pain from April 2011 to October 2012, as is suggested by the Applicant.”
Dr Campbell was the treating surgeon but he did not provide a report despite being asked by Dr Davey to advise whether the back injury was work related.
Dr Darvenzia, neurologist was qualified by the applicant’s lawyers. He provided a report dated 27 October 2015. He records a consistent history of the applicant bending down to lift the cask wine on 13 April 2011 and feeling a popping sensation in her back. He noted the attendance at Maclean District hospital and the treatment by analgesics and X-ray.
Dr Darvenzia notes “over the next year or so the low back pain continued requiring strong analgesics for her to continue her usual activities of daily living and working”.
The respondent says there is no clinical evidence that corroborates this history.
The respondent submitted:
“The Respondent submits that there is however no medical evidence of the Applicant complaining of pain in her back and seeking strong analgesics to manage her pain from any treating medical practitioners before the Commission.
Dr. Darveniza’s opinion is based upon a continuation of the Applicant’s symptoms from the initial incident to the rupturing/herniation of her disc on or about 26 October 2012. It is submitted however that this history is not borne out by the contemporaneous medical evidence as referred to above.”
What I have to determine on the balance of probabilities is whether it is more likely than not that Ms Watson suffered an injury to her lumbar spine on 13 April 2011 in the course of or arising out of her employment with the respondent.
When I weigh all of the evidence in the balance I am satisfied that Ms Watson suffered an injury to her lumbar spine on 13 April 2011 whilst lifting cask wine. I have taken particular account of her presentation five days later to the Maclean District Hospital reporting that injury.
I am not satisfied that she reported her injury to either Michael Hoffman or Ms Mel Cox or
Mr Peter Cox at the time or proximate to the time it occurred as alleged. They deny she did so and I consider their denial is consistent with the applicant’s completion on the claim form on 10 July 2014 that she first reported the injury on 26 October 2012 to Ms Cox.
I am satisfied that as to Ms Watson’s evidence that she was ignorant of any of the reporting procedures. Her evidence of her ignorance has not been adequately traversed by the evidence of the respondents that they had in fact instructed her in injury reporting procedures and on this basis the out of time provisions do not bar her from the recovery of compensation.
These findings mean that a general order for the payment of medical expenses will follow and the matter will be remitted for referral to a Medical Specialist in respect of the lump sum claim. The orders will accordingly be as follows:
(a) The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
(i)Date of Injury: 13 April 2011;
(ii)Body systems/parts: lumbar spine, and
(iii)Method of assessment: whole person impairment.
(b) The documents to be forwarded to the Medical Assessor are as follows:
(i)the Application to Resolve a Dispute and all documents attached;
(ii)the Reply and all documents attached, and
(iii)late documents filed by the respondent with an Application to Admit Late Documents dated 13 September 2023.
(c) The respondent pay the applicant’s medical expenses on production of accounts and/or receipts.

[2023] NSWPIC 681

19 December 2023