Wilson v Cessnock City Council
[2021] NSWPIC 497
•2 December 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Wilson v Cessnock City Council [2021] NSWPIC 497 |
| APPLICANT: | Troy Wilson |
| RESPONDENT: | Cessnock City Council |
| MEMBER: | Philip Young |
| DATE OF DECISION: | 2 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Credibility of witness; capacity and economic loss; council worker alleging frank injury right hip and leg; respondent attacks absence of complaint and performance under cross examination and late reporting; Held - applicant’s history hampered by applicant’s understanding level; award in favour of the applicant. |
| DETERMINATIONS MADE: | 1. The applicant in the course of his employment with the respondent on 17 June 2020 suffered injury to his right hip and right leg. 2. Award in favour of the applicant in respect of weekly payments of compensation from 3. Award in favour of the applicant in respect of weekly payments of compensation pursuant to section 37 of the 1987 Act from week 14 to date and continuing at 80% of the PIAWE namely $1,129.11 less $312.50 per week namely $816.61 per week. 4. General award in favour of past and future section 60 medical expenses concerning the applicant’s right hip and right leg injuries including a declaration pursuant to section 60 (5) that the proposed right hip replacement surgery is reasonably medical treatment resulting from injury of 17 June 2020. |
STATEMENT OF REASONS
BACKGROUND
Troy Wilson (the applicant) is a 41 year old man who was employed by Cessnock City Council (the respondent) as a team leader in its maintenance section.
The applicant alleges that on 17 June 2020 whilst getting out of a truck he fell and landed on his right leg and suffered a jarring injury to his right leg and hip.
The applicant makes claims for weekly payments of compensation pursuant to sections 36 and 37 of the Workers Compensation Act 1987 (1987 Act) as well as section 60 claims for past treatment expenses and future right total hip replacement surgery.
The claim for weekly payments was pleaded as commencing on 17 June 2020, however, the applicant’s written submissions choose 28 July 2020 as the commencement date. The applicant’s pre-injury average weekly earnings (PIAWE) are agreed.
ISSUES
The issues appear in the respondent’s written submissions. In general terms they are:
(a) Is the applicant a reliable historian and did he suffer any injury on 17 June 2020? It is suggested that although the applicant saw his long-standing general practitioner, Dr Wang, on several occasions after 17 June 2020 it was not until 13 August 2020 that the applicant informed Dr Wang “this maybe work-related injury”.
(b) The applicant’s credit is challenged for other reasons, including his performance under cross-examination.
(c) The applicant was late in reporting his injury to the respondent, notwithstanding that he was aware of the operation of the workers compensation system.
(d) The applicant’s medical opinion should be rejected, or given little or no weight, because it relies upon an incorrect history.
(e) The Commission should accept Professor Cumming’s opinion because he had a more extensive history.
(f) The applicant has capacity for work in suitable employment comparable to his sections 36 and 37 calculations of economic capacity.
EVIDENCE BEFORE THE COMMISSION
The following documents were admitted into evidence and were before the Commission:
(a) Application to Resolve a Dispute and attachments lodged 21 June 2021 (Application).
(b) Reply and attachments lodged 9 July 2021 (Reply).
(c) Application to Admit Late Documents by the applicant’s solicitor lodged 18 August 2021 and attachments (AALD1).
(d) Application to Admit Late Documents filed by the applicant’s solicitor on 8 September 2021 and attachments (AALD2).
The document the subject of AALD2 was an injury report form which the respondent originally sought to tender but subsequently withdrew this tender. The applicant sought to tender the document and leave was granted on the proviso that the applicant’s solicitor lodge the document with the Commission, which subsequently occurred.
Oral evidence
The matter was heard in audio visual fashion via “MS Teams” and the applicant gave evidence and was cross-examined.
PROCEDURE BEFORE THE COMMISSION
The matter came for conciliation and arbitration hearing before the Commission by audio visual link on 31 August 2021. Mr L Morgan of counsel instructed by Mr H Kaur, solicitor, appeared for and with the applicant. Mr D Saul of counsel instructed by Mr M Franco, solicitor, appeared for the respondent. Mr Payne and Ms Huttnance were present from StateCover and Ms Bennett from the respondent.
The matter initially proceeded to conciliation, but regrettably was not capable of resolution. I was satisfied that the parties to the dispute understood the issues relevant to the dispute and that I had used my best endeavours to attempt to effect settlement. That being the case, the jurisdiction of the Commission to proceed to arbitration hearing was enlivened.
SUBMISSIONS
Counsel for both parties prepared written submissions as follows:
(a)applicant’s written submissions dated 17 September 2021;
(b)respondent’s written submissions dated 5 October 2021 and
(c)applicant’s written submissions in reply dated 15 October 2021.
The respondent’s submissions noted that a request for transcript had been applied. The respondent asked that it be given leave to file further submissions on receipt of the transcript. That occurred.
DISCUSSION AND REASONS
I have briefly mentioned the involvement of AALD2 above. At the outset of the arbitration hearing there was discussion about whether its attachment should be admitted into evidence, and if so, on what understandings. Ultimately, Mr Saul withdrew his application to admit the document and Mr Morgan was granted leave to tender it, there being in my view no prejudice to the respondent. The document was in the respondent’s possession and had been served on the applicant by the respondent the evening before the conciliation and arbitration hearing.
Some time was taken in calling the applicant to give evidence so that he had an opportunity to explain the apparent lodging of a complaint regarding an injury of 9 July 2019 in circumstances where the incident currently pleaded (2020) was not reported to the respondent until two months later. As I understood the argument, it was that in the previous year the applicant by lodging a claim for an injury to his chest had demonstrated an awareness of the workers compensation claims procedures, so that his failure to report the subject injury in 2020 illustrates that he may not have suffered the injury on 17 June 2020, at all.
Having said that, the matter came down to the applicant giving evidence and being extensively cross-examined about these issues and his lack of reporting generally.
Was the applicant a reliable historian who suffered an injury on 17 July 2020?
In his statement the applicant describes the incident as follows:
“2. To the best of my recollection it was on 17 June 2020 at approximately 6:45 AM that I sustained an injury. On that day I was scheduled to perform some whipper snipping near the Council depot on Old Maitland Road. I had forgotten something from the office and was getting out of the truck. I had already got in the truck and was about to drive off when I realised that I had forgotten something. As I was stepping out of the truck I grabbed the handles and twisted my body out of the truck however in doing so I slipped from the truck and landed with a jarring sensation on my right leg which took all of my weight. I am reasonably heavy and weigh around 96kg. In nearly the same motion I then fell to the ground onto my right hip. At the time I was a little bit embarrassed but did notice some pain. It felt like I had strained a muscle. I took a Panadol and kept working.
3. Some time went by and I noticed that my symptoms were not settling. There are occasions where there would be a really sharp pain in certain body positions. There were activities that I would be performing where I experienced a stabbing pain. If I put a lot of weight onto my right leg I would notice an increase in pain and if I was sitting for too long the pain would also increase. At that time it wasn't extreme but it was enough to slow me down”.
The respondent has taken issue with what it says are varied descriptions of the applicant’s injury. The applicant’s statement includes slipping, twisting his body (twisting) and landing on the ground on to his right hip “in nearly the same motion”. Without being disparaging of the applicant’s lack of understanding of the legal significance of words, it is clear from my observations of the applicant’s explanations, both in the histories given, in his general demeanour and in his answers under cross-examination, that he indeed suffers from the “disability” which he forcefully outlined under cross-examination as follows[1]:
“Q. But you do know, because we’ve established that you didn’t see Dr Wang until the 14th of July, which is nearly a month after the injury, not a week. Do you accept that?
A. Yeah, I - I don't know, mate. You’ve - yeah. You’ve lost me, I’m sorry.Q. I see. You’re not lost, sir. You understand exactly what the question is, don’t you?
A. No, I don’t. I’m a council worker, I’m not a fucking lawyer.”[1] Transcript at p 84.
I came to the view, listening to and watching the applicant’s body language, that he was simply out of his depth in understanding much of the cross-examination. I was satisfied that the applicant knew the importance of telling the truth on his oath but in many responses that he gave was having difficulty expressing himself, not because of evasion, rather because of levels of knowledge, experience and intelligence.
The applicant in evidence confirmed that he could not recall how long after 17 June 2020 he first went to his general practitioner (GP) but subsequently confirmed this was (previously) on 21 May 2020 (pleurisy)[2], then 14 July 2020 (no complaint of hip injury).[3]
[2] Transcript at p 49.
[3] Transcript at pp 50-51.
The applicant said that although he “can’t be exactly sure of (the) date” he did tell Dr Wang that he had slipped while working and injured his hip.[4]
[4] Transcript at p 52.
The respondent has made mention of the applicant’s criticism in cross-examination of the competence of Dr Wang. The applicant said that he was “not a big fan of (Dr Wang)”.[5] He said that Dr Wang was “the only doctor in town I could get into”.[6] Dr Wang “doesn’t write down everything that happens when I am there”.[7] The applicant said that he believed that he would have told Dr Wang about the work-related injury earlier than 13 August 2020 but could not be certain whether he did tell him.[8] During this time the applicant saw Dr Wang on more than one occasion for pleurisy[9] but maintained that he had problems with his hip including pain in his right leg ever since 17 June 2020.[10]
[5] Transcript at p 54.
[6] Transcript at p 55.
[7] Ibid
[8] Transcript at p 56.
[9] Ibid
[10] Transcript at pp 57-58.
The applicant maintained in cross-examination concerning his right hip that Dr Wang told the applicant “it was a pulled muscle or a – or some ligament damage”. The applicant conceded[11] that a few days off work from 16 July 2020 may have been because of pleurisy.[12]
[11] Transcript at p 60.
[12] Ibid
The applicant said that Dr Wang told him to rub Deep Heat or Dencorub into his right hip, but he could not recall specifically on which date this advice was given.[13]
[13] Transcript at p 61.
It was put to the applicant that he did not give the account of falling out of his truck to Dr Wang and the applicant denied that he was lying and affirmed that he was telling the truth.[14] He also denied that the evidence that he was giving was to try and “bolster” his case.[15] He denied that 28 July 2020 was the first time he mentioned his right hip problems to Dr Wang.[16] He also did not agree with the suggestion that he had told Dr Wang that he woke up six weeks ago with pain in his right hip.[17]
[14] Transcript at p 63.
[15] Transcript at p 65.
[16] Ibid.
[17] Transcript at p 66.
I apprehend that it might be the two consultations on 14 and 16 July 2020 in the context of a diagnosis of pleurisy that the applicant was, the respondent alleges, not complaining to Dr Wang about his right hip pain and symptoms.
The applicant was asked extensively about the history he gave to Dr Ghabrial, including a history he told Dr Ghabrial that he saw his GP a week after the 17 June 2020.[18] He said that he could not recall, but he may have said that.[19]
[18] Transcript at p 84.
[19] Ibid.
The applicant was questioned whether he had in the past suffered alcohol abuse, which he denied.[20] When asked about his capacity for work, he indicated that he could do some light work if he was sitting down all day[21] or some unskilled assembling work.[22] The applicant when asked about his left hip in the period of eight weeks after the fall confirmed that he did develop similar symptoms to the right hip, but not as great.[23]
[20] Transcript at p 86.
[21] Transcript at p 88.
[22] Ibid.
[23] Transcript at p 92.
The applicant’s performance under cross-examination and late reporting
The applicant’s evidence is that he did remember the (previous) incident of 9 July 2019 and the mechanism of it as well as his reporting of it to Mr Jarvis. He confirmed that he did not make a workers compensation claim in the following circumstances:
“Q. And why didn’t you make a compensation claim?
A. Well, I reported the injury to my safety advisor and my coordinator, but my doctor sent me for an x-ray and realised it was just a bit of bruising and advised me that I’d be O.K. in a couple of days so I just offered to take sick leave without going through the rigmarole of workers comp, going through all the paperwork.
Q. When you say you offered, what, you told work that did you or - - -
A. Yes, yes. They, they offered me workers comp but I just said there’s no point for two days. I’m happy to use my sick leave without causing any trouble”.[24]
[24] Transcript at pp 18-19.
It will be seen from the above exchange that the applicant in respect of the 2019 incident did not wish to go through “the rigmarole of workers comp” because he took the view that the injury was only “a bit of bruising” for which he was happy to use his sick leave. The applicant by this time had been working for the respondent for about four years.
Later[25] under cross examination the applicant gave evidence as follows:
“Q. Now, scrolling forward to this injury, 17 June 2020, on that day could you tell the Member what you did as far as reporting the injury on that day is concerned? If you just take, if you did or did not, if you just take yourself off mute and tell the Member what happened on that day as far as whether you reported the injury or not.
A. Right. So I didn’t officially report the injury that morning. I jotted it down in me diary but as I slipped out of the truck and fell onto the ground. I just put it down to a, maybe a pulled muscle. So I kept on working and then went and seen the doctors”.
[25] Transcript at p 40.
Under cross-examination, the applicant confirmed that he had been given an induction at both Councils in which he had worked. He said that he believed that this induction included relating to reporting of incidents.[26] He said that incidents, however minor, had to be reported but:
“A. That is what they say at inductions, but the bosses don’t always tell you that”.
[26] Transcript at p 42.
Again, later the applicant gave evidence under cross examination as follows:
“Q. Thank you. Now, in your statement, you say - and as you said today, that on the day itself, when you say you were injured on the 17th of June, you thought you’d only pulled a muscle and thought it would get better. Is that right?
A. Yes, that’s correct.Q. And that was one of the reasons that you said that you didn’t report the injury, because you thought it was minor, and it would just resolve. Is that correct?
A. I didn’t think it was minor, but I just worked on with it, because I didn’t want to go on compo or anything like that, I just wanted to keep working, so I just persisted with the pain”.
The applicant’s approach to the 17 June 2020 incident is very similar to the approach he adopted in respect of the 9 July 2019 injury. I had the benefit of being able to observe visually and audibly the applicant under pressure as well as hearing the tone of the applicant’s responses to questions under cross-examination. I concluded that the applicant was a stoic individual who was keen to work and not inclined to exaggerate or embellish his pain and symptoms. I noticed during cross-examination that the applicant was not evasive, made appropriate concessions when he could not recall matters and answered the questions directly and without hesitation.
The respondent has made mention of the applicant’s criticism in cross-examination of the competence of Dr Wang. The applicant said that he was “not a big fan of (Dr Wang)”.[27] He said that Dr Wang was “the only doctor in town I could get into”.[28] Dr Wang “doesn’t write down everything that happens when I am there”.[29] The applicant said that he believed that he would have told Dr Wang about the work-related injury earlier but could not be certain whether he did tell him.[30] During this time the applicant saw Dr Wang on more than one occasion for pleurisy[31] but maintained that he had problems with his hip including pain in his right leg ever since 17 June 2020.[32] These answers that the applicant gave in cross-examination were only extracted by Mr Saul after pointed questioning and the applicant did not appear to me to be keen to go down the path of voluntarily criticising Dr Wang.
[27] Transcript at p 54.
[28] Transcript at p 55.
[29] Ibid.
[30] Transcript at p 56.
[31] Ibid.
[32] Transcript at pp 57-58.
The applicant maintained in cross-examination concerning his right hip that Dr Wang told the applicant “it was a pulled muscle or a – or some ligament damage”. The applicant conceded[33] that a few days off work from 16 July 2020 may have been because of pleurisy.[34]
[33] Transcript at p 60.
[34] Ibid.
The applicant said that Dr Wang told him to rub Deep Heat or Dencorub into his right hip, but he could not recall specifically on which date this advice was given.[35]
[35] Transcript at p 61.
It was put to the applicant that he did not give the account of falling out of his truck to Dr Wang and the applicant denied that he was lying and affirmed that he was telling the truth.[36] He also denied that the evidence that he was giving was to try and “bolster” his case.[37] He denied that 28 July 2020 was the first time he mentioned his right hip problems to Dr Wang.[38] He also did not agree with the suggestion that he had told Dr Wang that he woke up six weeks ago with pain in his right hip.[39]
[36] Transcript at p 63.
[37] Transcript at p 65.
[38] Ibid.
[39] Transcript at p 66.
The applicant maintained[40] that Dr Wang asked him in late July 2020 whether it was Work Cover or not and the applicant in thinking it was a pulled muscle which would get better replied in the negative because he did not want to go on workers compensation. The applicant denied that he did not tell Dr Wang about his work injury so that by 7 August 2020 the doctor had no idea about it.[41] He gave evidence that he had no prior pain until slipping out of the truck.[42] The applicant was sure that he told Dr Wang about his injured right hip before 13 August 2020.[43] He conceded that he did not report the injury to the respondent until 13 August 2020 and claimed that he was under the assumption that he had three months to hand in a certificate if he was hurt at work.[44] The applicant thought he was going to get better and was not aware of the extent of his injury until after the MRI scans.[45] The applicant maintained that he had been honest with the Commission, that all he wants to do is to get better and get back to work.[46]
[40] Transcript at pp 68-69.
[41] Transcript at p 71.
[42] Transcript at pp 71-72.
[43] Transcript at p 73.
[44] Transcript at p 75.
[45] Transcript at p 76.
[46] Transcript at p 79.
The applicant was asked extensively about the history he gave to Dr Ghabrial, including a history that he told Dr Ghabrial that he saw his GP a week after the 17 June 2020.[47] He said that he could not recall, but he may have said that.[48]
[47] Transcript at p 84.
[48] Ibid.
The applicant was questioned whether he had in the past suffered alcohol abuse, which he denied.[49] When asked about his capacity for work, he indicated that he could do some light work if he was sitting down all day[50] or some unskilled assembling work.[51] The applicant when asked about his left hip in the period of eight weeks after the fall confirmed that he did develop similar symptoms to the right hip, but not as great.[52] The applicant’s concessions in relation to his capacity for work were, I thought, honest and appropriate.
Medical opinion and “incorrect history”
[49] Transcript at p 86.
[50] Transcript at p 88.
[51] Ibid.
[52] Transcript at p 92.
Dr Y Ghabrial
Dr Ghabrial saw the applicant on 27 January 2021. The history given would appear to be incorrect in that Dr Ghabrial recorded the applicant falling when doing whipper snippering but it is clear from the second part of the history that the applicant was in fact at the depot and slipped as he got out of his truck.[53] The next part of the history is that the applicant continued work for another six weeks[54] and this does not take into account the applicant’s absence for pleurisy during that time.
[53] Application at p 25.
[54] Ibid.
Dr Ghabrial considered the radiological investigations and noted avascular necrosis of the hips as well as boney oedema in the right hip joint. He was of the view that the applicant had pre-existing avascular necrosis in both hips but that the applicant’s injury produced a fracture of the head of his femur which resulted in him needing a right total hip replacement (at some stage). Dr Ghabrial considered that the applicant’s employment was the main contributing factor “to the present clinical features, disabilities and impairment”.[55]
[55] Ibid at p 27.
Dr R Harbury
Dr Harbury reported to the applicant’s solicitors on 29 April 2021.[56] The history is that when seen on the 26 August 2020 the applicant presented with eight weeks of pain primarily in the right groin which occurred when he got out of his truck and fell down a couple of steps, striking the ground. The diagnosis of avascular necrosis was noted and Dr Harbury agreed that the applicant had a pre-existent asymptomatic avascular necrosis which was made symptomatic by the incident of 17 June 2020 when he sustained a subchondral fracture of the femoral head and an oedema in addition. Dr Harbury believed that the applicant’s employment was the main contributing factor to the aggravation.
[56] Ibid at p 28.
Dr Harbury reviewed the applicant on 26 August, 2 September and 18 November 2020. Various treatment options were discussed.[57] Ultimately, Dr Harbury concluded in April 2021 it was probable that the applicant would require a total hip replacement.
[57] Ibid at p 29.
By 19 May 2021 Dr Harbury was recommending right total hip replacement and provided the applicant’s solicitor with a surgical quotation.
Clinical notes Dr Y Wang and others
The applicant has been attending Dr Wang’s practice since about 18 October 2010. The consultation records of this practice include the following:
(a) A note of 27 June 2016, about four years before the subject injury, concerned a fracture the applicant sustained to his left foot. Although unrelated to the current claim, there is specific mention in the consultation note that the applicant did not want to divulge this injury to his employer (the respondent). The nature of the injury and whether it was work related is unclear, however, what can be inferred is that the applicant at least on that occasion was hesitant for some reason to disclose to the respondent details of any potential disability.[58]
(b) There is a note of 12 October 2017 where the applicant presented to Dr Wang concerning right ankle pain and swelling. Again, whist not directly related to the subject injury, there is a comment that “right ankle pain and swelling, nil obvious injury, but PT is constantly at work on foot”.[59] It would seem that although this pain and swelling meant that the applicant was off work with a medical certificate, again no workers compensation claim would appear to have been lodged.
[58] Ibid at p 82.
[59] Ibid at p 91.
From the above consultation records it is reasonably clear that consistent with the applicant’s injuries in 2019 and 2020, the applicant was not a person eager to instigate workers compensation claims, or at least (in respect of the 27 June 2016 note) was concerned not to divulge to the respondent his disabilities from time to time.
In addition to the applicant’s reluctance to claim workers compensation is another observation which emerges from Dr Wang’s consultation records. The applicant saw Dr Wang on 16 December 2016 for depression and reflux and Dr Wang recorded the following.[60]
“I also find PT is still smoking. Today, I had a detailed discussion on the harmful effects of smoking. I suggested to the PT, if she wants to do anything to improve her health quit smoking is probably is the most important step, and this will also help her to increase her chance of pregnancy, and reduce the harmful effects to the baby. pt acknowledged that”.
[60] Ibid at p 86.
The entry just mentioned is obviously in relation to some other patient, but has found its way into the applicant’s consultation notes. That suggests to me that Dr Wang’s notes are not always entirely accurate. I make that observation without in any way attempting to disparage Dr Wang, but rather to illustrate, as mentioned in a number of occasions in case law[61], the caution that must be adopted when relying upon consultation notes of practitioners who may be busy, otherwise occupied, and the like, understandable in modern medical practice.
[61] Mason v Demasi [2009] NSWCA 227.
Professor W Cumming’s opinion
Dr Cumming saw the applicant at the request of the insurer on 29 September 2020. The history of mechanism of injury was gathered from photographs of the applicant using two hands and one leg to step down and the applicant told Dr Cumming that he twisted his right leg and fell to the ground.
Dr Cumming comments on the causes or relationships with the avascular necrosis[62] as being excess alcohol or taking prescribed steroids. Dr Cumming does not know the actual statistics associated with these relationships.[63] Dr Cumming then says:
“I believe the prognosis is extremely guarded in the presence of bilateral avascular necrosis and a patient on steroids and with alcohol excess”.
The difficulty with this statement in my view, is that the applicant denied alcohol abuse and the steroid consumption was prednisolone on two or three occasions for two or three days over eight years previously when the applicant suffered gout.[64] There is no specific reference in Dr Cumming’s report to the quantity and frequency of steroid injection nor how, on the balance of probabilities, that consumption translates to the condition in terms of dosage.
[62] Reply at p 15.
[63] Ibid.
[64] Ibid at p 23.
Dr Cumming concludes that the avascular necrosis “is clearly bilateral, symmetrical and constitutional”.[65]
[65] Ibid.
Dr Cumming does not exclude whether the applicant’s boney oedema on the right side indicates that there may have been a traumatic episode.[66] He accepts, however, that regardless of whether the applicant twisted his leg in the air or hit the ground, it is likely that the applicant’s condition was made symptomatic by the incident at work.[67]
[66] Ibid at p 17.
[67] Ibid.
After reviewing the consultation notes of Dr Wang, Dr Cumming noted that the history given by the applicant to him of consulting Dr Wang within days of the incident was questionable but the applicant noticed pain when he woke up in the morning. Dr Cumming on examination noted the applicant to be “an extremely pleasant gentleman who was totally compliant during the interview and examination”.[68]
[68] Ibid at p 22.
Dr Cumming accepts that the bone oedema in the applicant’s right hip could indicate trauma in the right hip consistent with the history of the applicant falling and striking the ground on 17 June 2020.[69] Because spontaneous fractures can occur in avascular necrosis Dr Cumming does not offer any opinion concerning the significance of the bone oedema.[70]
[69] Ibid at p 23.
[70] Ibid a p 24.
Dr Cumming provided a further report dated 2 October 2020. He highlighted that the causes of bone oedema are many and both traumatic and non-traumatic causes exist.[71] Dr Cumming thought the appropriate treatment for the applicant was conservative and the suggestion of bilateral forage was not appropriate. He thought that the pain the applicant was experiencing was not avascular necrosis, but rather the bone oedema, which may “subside spontaneously with conservative care”.[72]
[71] Ibid at p 29.
[72] Ibid at p 30.
The claim for surgery
The applicant claims a need for future right total hip replacement surgery. As earlier mentioned, Dr Harbury’s view as treating specialist is that the applicant had a pre-existent asymptomatic avascular necrosis which was made symptomatic by the incident of 17 June 2020 when he sustained a subchondral fracture of the femoral head and an oedema in addition. Dr Harbury believed that the applicant’s employment was the main contributing factor to the aggravation of this condition.
Dr Ghabrial also noted avascular necrosis as well as boney oedema in the right hip joint. He was of the view that the applicant had pre-existing avascular necrosis in both hips but that the applicant’s injury produced a fracture of the head of his femur which resulted in him needing a right total hip replacement (at some stage).
It is only Dr Cumming who argues otherwise. Dr Cumming thought that the applicant’s pain was not coming from avascular necrosis, but rather from bone oedema, so conservative treatment should continue.
In this matter I am persuaded that the opinions of the applicant’s treating surgeon should be preferred. Dr Harbury in that capacity is best placed to advise the appropriate treatment because he has reviewed the applicant on many occasions, assessed his progress and consequently I infer has the best understanding of the applicant’s treatment needs. He is supported in his opinion by Dr Ghabrial concerning surgery and that opinion of Dr Ghabrial adds weight to the reasonable necessity of the proposed right hip surgery.
INTERIM SUMMARY
The applicant was observed to be a reliable historian. Any inconsistencies in the history of the mechanism of his injury can be readily explained partly by his difficulty in expressing himself and partly by his own insight that he is not a lawyer. The applicant made appropriate concessions and was disadvantaged by his memory but presented as an honest and reliable witness.
Suggestions that the applicant gave incorrect histories are explained by the matters just mentioned as well as Dr Wang’s understandable lack of precision in record keeping. Dr Cumming’s conclusions regarding causation of avascular necrosis for this applicant are deficient for the reasons mentioned above.
The surgery proposed by Dr Harbury is reasonably necessary medical treatment as a result of the applicant’s injury of 17 June 2020 in accordance with section 60 of the 1987 Act.
CAPACITY AND ECONOMIC LOSS
The applicant’s claim is for weekly payments of compensation from 17 June 2020 to date and continuing. The applicant’s PIAWE have been agreed at $1,411.38 per week. For the purposes of section 36 of the 1987 Act 95% of that figure is $1,340.81 per week. For the purposes of section 37 of the 1987 Act 80% of PIAWE is $1,129.11 per week.
Page 1 of the respondent’s Reply itemises reimbursement weekly payments from the insurer to the respondent from about August 2020 to November 2020 so it may be that the first entitlement period of 13 weeks has in fact expired.
On the issue of the applicant’s capacity, this interchange occurred during cross-examination:
“(Saul): Yes. And, sir, since the 17th of June, have you looked for any work of any kind?
A. No, sir.Q. Do you believe that you could do any work of any kind?
A. No, sir.Q. Nothing?
A. Maybe - well, I don’t really know how to use a computer that well, but any, like, manual or physical work, I wouldn’t be able to, no.Q. Could you do, like, processing work - that is, some assembling work, where you didn’t have to bend and twist and do heavy lifting?
A. I guess if I was sitting down all day, or - - -Q. Yes. So any kind of unskilled work where you were sitting down, you could do?
A. Well, possibly, but the doctors have told me I’ve got to keep weight off my hip.Q. I’m asking about you, sir. Do you believe that you could do unskilled work assembling stuff, answering telephones, doing that kind of work, where you didn’t have to weight-bear on your right hip?
A. Yeah, I believe so.”[73]
[73] Transcript p 87.
Part of the applicant’s explanation for not exploring alternative work was given during re-examination by Mr Morgan[74]. The evidence was that the applicant was still employed by the respondent and would need to seek approval for secondary employment. I inferred that he saw himself in a quandary because he liked his Council work and was not allowed to go back to it unless he was 100% fully fit. The applicant’s inability to return to work with the respondent is not, however, the sole test.
[74] Transcript p 103.
In my view there are some, albeit limited, real jobs[75] which the applicant would be capable of doing. Light processing work and casual customer service roles where the applicant does not need to weight-bear on his right hip are examples which the applicant himself believed he could actually perform.
[75] Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120.
Dr Harbury unfortunately does not comment on the applicant’s capacity for work. In my view the best evidence is from the applicant himself and the restrictions identified by Dr Ghabrial[76]. Based on the applicant’s skills and experience and all of the criteria for the “suitable employment” definition I take the view that he has capacity for work of 12.5 hours per week at $25 per hour, namely $312.50 per week. This figure may well vary depending on future events and circumstances, but for the period since 28 July 2020 I regard it as the proper assessment of economic capacity.
[76] Application page 25.
FINDINGS AND AWARDS
The applicant in the course of his employment with the respondent on 17 June 2020 suffered injury to his right hip and right leg.
Award in favour of the applicant in respect of weekly payments of compensation from
28 July 2020 pursuant to section 36 of the 1987 Act for a period of 13 weeks at 95% of the applicant’s PIAWE of $1,340.81 less $312.50 per week namely $1,028.31 per week.Award in favour of the applicant in respect of weekly payments of compensation pursuant to section 37 of the 1987 Act from week 14 to date and continuing at 80% of the PIAWE namely $1,129.11 less $312.50 per week namely $816.61 per week.
General award in favour of past and future section 60 medical expenses concerning the applicant’s right hip and right leg injuries including a declaration pursuant to section 60 (5) that the proposed right hip replacement surgery is reasonably medical treatment resulting from injury of 17 June 2020.
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