Devenish v Kizlock Pty Ltd (NSWPIC 2021)

Link to Decision

Key Takeaways 

A lack of contemporaneous medical evidence can be very damaging for a worker’s claim when attempting to prove an injury or consequential condition.

Brief Facts

Liability was accepted for the worker’s claim of a left knee injury on 19 September 2012. The worker came to a left total knee replacement (TKR) on 7 November 2017. The worker claimed that, on 26 November 2017, his left knee gave way causing him to fall thereby aggravating a pre-existing lower back condition.

The first medical evidence to mention right-sided back pain was dated 10 January 2018. However, the worker consistently claimed he fell on his left side. The first medical evidence to mention left-sided back pain was dated 1 May 2018.

After undergoing lower back surgery in June 2018, the worker claimed a consequential lower back condition and also claimed the costs of the lower back surgery.

The employer disputed the worker’s claim of a consequential lower back condition primarily on the basis that the lower back condition was not causally related to the left knee injury and the fall.

Member Read of the Personal Injury Commission (PIC) was not satisfied on the balance of probabilities that the worker suffered an injury or consequential condition to his lower back as a result of the fall on 26 November 2017. It therefore flowed that the lower back surgery was not as a result of the accepted left knee injury.

Judgment

Member Read acknowledged that whether the worker suffered a consequential lower back condition as a result of the accepted left knee injury is a question of fact to be determined on the basis of the evidence. He also acknowledged the need to take a ‘common sense’ approach per the HCA decision in Kooragang Cement Pty Ltd v Bates (NSWLR 1994).

Member Read also cited and referred to the presidential decision of Keating J in Department of Education and Training v Ireland (NSWWCCPD 2008) especially Keating J’s reference to the relevance of contemporaneous evidence such as clinical notes and medical reports. Keating J warned against the dangers of decision makers relying on findings of credit rather than evidence and emphasised that all of the evidence must be weighed up in determining questions of fact.

A significant issue for Member Read was whether the worker had discharged his onus of proof given the absence of contemporaneous evidence corroborating the fall as being the cause of the worker’s lower back problems.

Despite being satisfied that the worker’s fall on 26 November 2017 was most likely due to the left TKR performed some 19 days earlier, Member Read was not satisfied that the worker’s lower back condition was due to or aggravated by the fall mainly because there was no contemporaneous medical evidence linking the fall with the onset of lower back pain. Member Read also noted the worker provided inconsistent evidence about the timing of the onset of his back pain. Member Read also considered it quite significant that the worker appeared to have reported lower back pain to his physiotherapist on 10 January 2018 due to no specific incident. Member Read concluded that the worker’s:

own evidence does not enable a positive conclusion to be drawn about whether the fall caused the onset of symptoms in his back (88).

The lack of any contemporaneous evidence corroborating [the worker’s] allegations that the fall caused the onset of symptoms in his back is a significant omission in his case (89) … this absence of any corroboration evidence causes significant doubt on [the worker’s] allegation that he suffered an injury or consequential condition to his back as a result of the injury to his left knee (93) … the evidence is neither cogent nor compelling (96).

Implications

On face value, the worker’s claim was compelling in that he claimed that a fall 19 days after a left TKR aggravated a pre-existing lower back condition. However, this case serves as a reminder of the importance of requesting, obtaining and carefully analysing medical records to verify a worker’s claim of injury.

Member Read was satisfied that the worker’s fall on 26 November 2017 was most likely due to the left TKR however, he was not satisfied that the worker’s lower back condition was due to or aggravated by the fall mainly because there was no contemporaneous medical evidence linking the fall with the onset of lower back pain.