Gosper v Pilbara Iron Company (Services) Pty Ltd: No known date of injury? No problem!

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By Mark Civitella, Partner 

In Gosper v Pilbara Iron Company (Services) Pty Ltd [2021] WADC 47, the District Court of Western Australia allowed an appeal, ruling that a vague injury date does not preclude a finding of an injury under section 5(1) of the Workers’ Compensation and Injury Management Act 1981 (“the Act”).

Background facts

The appellant, Mr Gosper, was employed by the respondent, Pilbara Iron Company (Services) Pty Ltd, as a machine operator. He lodged a workers’ compensation claim on 5 July 2019 claiming he had sustained injuries to his left shoulder at some point after he had an ultrasound on 19 January 2019 and before he underwent a MRI on 6 June 2019 in the course of his employment. Although Mr Gosper recorded on his claim form that the date of injury was 6 June 2019, he accepted that that date was not the actual date that he sustained an injury, rather it was selected as being the point in time where the totality of his injuries was identified by a MRI. On 10 January 2019 Mr Gosper had an ultrasound of his left shoulder which identified subacromial bursitis and bursal impingement but no other abnormalities. On 6 June 2019 he underwent an MRI scan which confirmed the presence of bursitis but also a high-grade partial tear of the left subscapularis tendon.

WorkCover WA Arbitration

At Arbitration, the Arbitrator determined a factual inquiry into whether Mr Gosper had sustained compensable injuries could not begin without first knowing the date of injury. He considered that as he was unable to determine when the injuries might have been sustained, he was unable to determine what might have caused them. As a result, he held that Mr Gosper had failed to prove on the balance of probabilities that he had sustained an injury caused by his employment and dismissed the claim.

Appeal to District Court of Western Australia

Counsel for Mr Gosper argued that the Arbitrator had erred in law on four grounds, but most pertinently in relation to his finding that an investigation as to what might have caused the injury could only commence once the date of injury was identified.

Lemonis DCJ emphasised that “the seminal issue on this appeal is directed to what a worker must prove in order to establish that they suffered a defined injury”.  His Honour noted that the term “personal injury” in part (a) of the definition of injury is not separately defined, and that the word “disease” in parts (c) and (d) is defined very broadly to include ”any physical or mental ailment”. He accepted that there was no question that Mr Gosper’s injuries were physical ailments and thus met the definition of disease.

Lemonis DCJ pointed to the fact that the definition of injury in section 5(1) was directed towards the cause of an injury, not the date on which it occurred. His Honour highlighted that in circumstantial cases where the cause is not readily apparent, proof of the cause will most likely depend on the overall circumstances, and he made reference to the Supreme Court of WA Court of Appeal decision in BWS v ARV [No 2][1] where the Court stated:

“In considering a circumstantial case all the circumstances are to be considered and weighed in deciding whether the relevant inference is made out. The evidence is not to be looked at in a piecemeal fashion”.

His Honour emphasised that when assessing how an injury was caused it is essential to take into account matters such as the nature of the work activities carried out by a worker, as well as the use of the injured body part in their personal life. His Honour considered that the Arbitrator had erred in not making any findings in relation to Mr Gosper’s work duties or the nature of his personal activities outside of work. Although the fact that there was no significant change in Mr Gosper’s symptoms and no evidence of any particular incident that could cause a tendon tear were relevant factors in assessing whether or not he had sustained an injury, they did not compel a finding that the tear did not constitute an injury. The worker’s appeal was allowed and the Arbitrator’s decision set aside.

[1] BWS v ARV [No 2] [2021] WASCA 62 [56].

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