Not Knee-ly Enough To Prove Injury

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By Danny Khoshaba, Partner and Jordan Mitchell, Senior Associate

Wafaa Gendy v Hillview Cottage Kindy Pty Ltd ATF Paul Partners Trust [2020] NSWWCC 361

Background

On 3 March 2017, the injured worker commenced employment with the respondent as a child educator. On 18 May 2017, the applicant had a fall at work involving a child on a bicycle knocking her over and striking a metal pole.

The respondent accepted that the applicant sustained an ‘injury’ to the lower back in that incident.

Over two (2) years later, the worker made a lump sum claim under section 66 of the 1987 Act alleging additional injuries to the left knee and left shoulder. The worker’s claim for 15% WPI, in accordance with the assessment of Dr Bodel.

The respondent disputed liability in respect of the alleged injuries to the left knee and left shoulder and also disputed that the applicant was entitled to lump sum compensation.

The parties agreed that in the event that the worker could not establish an injury to the left shoulder, that there could be no referral to an Approved Medical Specialist (‘AMS’) to assess permanent impairment as her claim for the lumbar spine alone (or even with the left knee) would not satisfy the 11% WPI threshold in order to receive lump sum benefits pursuant to section 66(1) of the 1987 Act.

The matter proceeded to an Arbitration hearing. We submitted, on behalf of the respondent that the Commission should not be satisfied that there had been an injury to the left shoulder and left knee as alleged.

Decision

Senior Arbitrator, Ms Josephine Bamber determined that the applicant had not discharged her onus of proof in respect of the allegations of injury to the left knee or left shoulder sustained on 18 May 2017.

The Arbitrator determined that there would be an award for the respondent in respect of the allegations of injury to the left knee and left shoulder.

In reaching her conclusion, the Arbitrator noted that:

  1. As the history reported by the worker to the various doctors differed in detail regarding the falling incident, the worker’s statement needed to be treated with caution. Also, it is relevant that her statement was made three years after the incident and was very brief.
  2. The clinical records of the worker’s treating general practitioner did not support the worker’s allegations as they made no reference to any impact to the knees or shoulder, in fact the records recorded that upon examination only days after the incident, the knees were ‘normal’ and pain was recorded only in the lower back.
  3. The clinical records also documented other causes of the symptoms to the knee and shoulder in addition to the incident of 18 May 2017. For example, there was reference in the notes to pain in the left knee resulting from a heavy workload in September 2017 and there was also reference in the clinical notes to the left shoulder hurting after changing nappies in November 2017.
  4. The applicant’s IME was the only doctor who advanced the opinion that the worker injured her left shoulder on 18 May 2017, however he seemed unaware that there had been a complete absence of complaints in the clinical records or in the other treating specialists’ initial examination and did not know that the first record of left shoulder symptoms was in September 2017 after the worker was changing nappies. The worker’s IME also did not have any radiological or ultrasound investigations in relation to the left shoulder and left knee.
  5. Without the worker’s IME being appraised of the facts and the ultrasound findings, weight cannot be afforded to his opinion as she did not know what his opinion would have been had he been aware of these relevant facts.
  6. Several of the GPs’ clinical entries were very detailed and she gained the impression that had the worker informed her GP of a blow to the knee, he would have recorded it.

Implications of Decision

The decision is a timely reminder that:

  1. Although while in various cases such as Davis v Council of the City of Wagga Wagga [2004] NSWCA 34, triers of fact are warned about the emphasis they place on clinical records, when there are clear inconsistencies in the history of injury reported by a worker, or there are drastic differences in opinions between medical experts in respect of causation, clinical material can still be persuasive evidence in terms of proving or disproving allegations of injury, especially in cases where injured workers attend their treating doctors shortly after the incident(s) and regularly thereafter.
  2. If case officers or their legal advisors suspect that a claimant’s forensic expert is not briefed with the correct history or the relevant radiological investigations when forming their opinions in support of a claim, then consideration ought to be given to declining liability and pressing with access to the worker’s complete clinical files.

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