CERTIFICATE OF DETERMINATION OF MEMBER  		

Citation:	
Watkins v Racing NSW [2022] NSWPIC 282	
		
APPLICANT:	Jasen Watkins 	
		
RESPONDENT:	Kempsey District Racing Club	
		
Member:	Philip Young	
		
DATE OF DECISION:	15 June 2022	
		
CATCHWORDS:	WORKERS COMPENSATION - Jockey suffered several falls in employment over many years; the applicant alleges one incident on 2 February 2009 being a fall from a racehorse; dislocated right shoulder (accepted); neck and lower back (disputed); review of contemporaneous complaints; Held- applicant succeeds on the issue of right shoulder and neck injuries but award for the respondent in respect of lower back; matter remitted to President for referral to Medical Assessor for whole person impairment (WPI) assessment; cervical spine and upper right extremity.   
	
determinations made:	1.	The applicant on 2 February 2009 in the course of his employment with the respondent fell from a horse and suffered frank injury to his right upper extremity (right shoulder) and cervical spine and award in favour of the applicant in respect of those injuries. 
2.	In respect of the applicant’s allegation of lumbar spine injury and/ or back injury generally and/or on 2 February 2009, award in favour of the respondent. 
3.	The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant’s whole person impairment (if any) which results injury to the applicant’s right upper extremity (right shoulder) and cervical spine which occurred on 2 February 2009. 
4.	The President’s delegate is requested to place before the Medical Assessor a copy of the Application to Resolve a Dispute and attachments, a copy of the Reply and attachments, and a copy of each party’s Application to Admit Late Documents and attachments and a copy of these Reasons. 

STATEMENT OF REASONS
BACKGROUND 
1.	Jasen Watkins (the applicant) is a 47-year-old man who was employed by Kempsey District Racing Club (the respondent) as a jockey. He alleges that on 2 February 2009 he suffered injury after his racehorse threw him off at the barrier, causing him to fall headfirst on to the ground injuring his neck, back and shoulders. The applicant offers an alternative allegation of a deemed date of injury of 2 February 2009 being aggravation, acceleration, exacerbation or deterioration (aggravation etc) of disease. 
2.	The applicant’s claim is pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) seeking lump sum compensation for whole person impairment in respect of the cervical spine, lumbar spine, right upper extremity and left upper extremity. 
ISSUES 
3.	At the commencement of the arbitration hearing the applicant formally discontinued any claim with respect to the left shoulder and the respondent conceded injury to the applicant’s right shoulder. The remaining issues were injury to the applicant’s cervical spine and lumbar spine and it particular whether these injuries occurred and if so, causation in respect of these conditions. 
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)
4.	The matter came for conciliation and arbitration hearing by teleconference on 9 May 2022. On that occasion Mr Santone, solicitor, appeared for and with the applicant. Mr Baker of counsel, instructed by Mr Dolan, solicitor, appeared for the respondent. Mr Pitt was present from the insurer and Mr De Paz from the Personal Injury Commission assisted with the technical aspects of MS Teams. 
5.	The parties participated in an extensive conciliation process but regrettably despite the exercise of my best endeavours to attempt resolution, the matter was not capable of settlement. In those circumstances, the jurisdiction of this Commission to proceed to arbitration hearing was enlivened. 
6.	The parties made oral submissions and ultimately the decision was reserved. After 9 May 2022 on 18 May 2022 Mr Santone wrote to the Commission seeking that a determination be delayed pending a fresh Application to Admit Late Documents (AALD2). Initially, AALD2 contained a series of clinical records of Dr Siu and submissions were directed in respect of that Application. 

THE APPLICATION TO ADMIT LATE DOCUMENTS (AALD2)
7.	AALD2 just mentioned was in respect of Dr Siu’s clinical notes requested by the applicant’s solicitor on 16 March 2022. The parties made written submissions concerning these records as follows:
(a)	applicant’s submissions dated 27 May 2022; 
(b)	respondent’s submissions dated 1 June 2022, and  
(c)	applicant’s submissions in reply dated 27 May 2022 [sic] but filed on 2 June 2022.  
8.	The submissions in reply noted at (c) above reduced the applicant’s position to three letters from Dr Siu to Dr Wulff dated 27 November 2012, 20 January 2013 and 26 February 2013. The respondent in its written submissions records that at the teleconference there was no submission made on behalf of the applicant that the applicant intended to rely on any further evidence. Further, no submissions were made in that regard at the conciliation and arbitration hearing on 9 May 2022. The applicant closed his case as had the respondent and no evidence has been provided concerning why Dr Siu’s records were not requested before 16 March 2022. The respondent makes the point that it did not have an opportunity to submit the documents to its independent medical examiner, Dr Bentivoglio, to seek a supplementary report. 
9.	In his submission in reply, the applicant’s solicitor claims that the respondent had these three letters in its possession and in those circumstances no prejudice could flow to the respondent from the admission of the documents. 
10.	The admission of late documents in the Commission is the subject of Rule 67 of the Personal Injury Commission Rules and Procedural Direction PIC 3. Importantly, clause 24 of PIC 3 notes that the “reasons for the lateness of the document and for its admission in the proceedings should be set out in the Application”. The Application in this regard simply confirms that the applicant “requested these clinical notes on 16 March 2022 and have only received them recently”. That date is the same date as the teleconference and whilst Mr Santone’s handwritten note contains a notation “get notes from…Dr Timothy Siu” my own notes make no mention of Dr Siu being the subject of any discussion at the teleconference, only the issue of a Direction for Production addressed to C3 Group Coffs Harbour (or relevant entity). The teleconference was not sound recorded and in my view the reference to “get notes from” is simply consistent with either a self-reminder notation for Mr Santone or an instruction to one of his staff. 
11.	The more important consideration, it seems to me, is that the applicant does not offer any explanation concerning what steps, if any, he took between 16 March 2022 and the arbitration hearing on 9 May 2022 to chase up Dr Siu’s practice for the relevant documents. In the absence of any explanation, it seems to me that the reasons for the delay in lodging the documents are inadequate. Additionally, both the interests of justice and the likely prejudice to the respondent must be considered. The respondent was entitled to assume that the three letters from Dr Siu were not relied upon and therefore entitled to assume that there would be no need to obtain any further report from Dr Bentivoglio. In this particular matter for those reasons I have come to the view on balance that the three letters should not be admitted into evidence and a ruling is made accordingly. 
DOCUMENTS BEFORE THE COMMISSION 
12.	The following documents were in evidence before the Commission: 
(a)	Application to Resolve a Dispute (Application) lodged 23 February 2022; 
(b)	the Reply lodged on 8 March 2022;   
(c)	Application to Admit Late Documents and attachments lodged on 27 April 2022 by the respondent (AALD1), and
(d)	AALD2 lodged on 29 April 2022 by the applicant.  
ORAL EVIDENCE 
13.	No oral evidence was given. 
DISCUSSION AND REASONS 
14.	The applicant has provided a statement dated 21 February 2022. He states that he had no issues with his neck, shoulders, back or legs leading up to the 2009 injury. 
15.	The applicant describes his accident on 2 January 2009 [sic – 2 February 2009] as follows: 
“6. 	I was waiting at the gates on my horse however, it was acting quite unruly and troublesome. As the race was about to start, my horse reared and caused me to fall off while it raced off down the track. I landed headfirst and impacted the back of my neck and shoulders. I felt severe pain particularly in my neck and right shoulder. I felt like I had broken my neck and shoulder. I also had back pain, but my main concern was my neck and shoulder.”
16.	It would appear that apart from consideration of the applicant’s neck at Kempsey District Hospital (see below) doctors who were treating the applicant including Dr Wulff and Dr Jovanovic paid particular attention to the applicant’s right shoulder. Reports from Dr Jovanovic to Dr Wulff and others dated 9 February 2009, 10 February 2009, 19 February 2009 and 30 March 2009 focus upon treatment of the applicant’s dislocated acromio clavicular (AC) joint.
17.	Although there appeared to be some issue concerning the relevant date of injury expressed by Mr Santone, the respondent’s submissions did not seriously challenge the fact that the applicant suffered a fall on 2 February 2009. The respondent has submitted that there was minimal reference to any neck problems since 2009 except for some radiating pain into the right side of the applicant’s neck following the 2009 episode and thereafter no neck pain reported to the applicant’s general practitioner or treating specialist. It is suggested that the absence of neck complaints is consistent with Dr Bentivoglio’s opinion that the only injury suffered by the applicant in 2009 was to his AC joint and that the applicant’s fall played no continuing role in any neck injury. 
18.	There may be some difficulties in accepting that the applicant suffered any serious injury to his neck or back on 2 February 2009 for a number of reasons. They are as follows: 
(a)	Certificates of Dr Wulff of 4 February 2009, 4 May 2009, 2 June 2009 and a referral to Dr Jovanovic of 4 February 2009 make no mention of neck pain. 
(b)	In June 2009 the applicant was certified fit for pre-injury duties. 
(c)	There is no evidence at all that the applicant had any back pain following the fall in February 2009. 
(d)	The applicant saw Dr Jovanovic on 9 February 2009 concerning his right shoulder. 
(e)	In September 2016 at Grafton Racecourse the applicant could not finish the race meeting and thereafter stopped riding for almost two years due to pain in his neck, back and left and right shoulders. 
(f)	The applicant was off work for about two years after the September 2016 incident and when he got back to work in 2018 he suffered a number of further falls from which he experienced neck and back pain. In September 2018 at Darwin the applicant had a fall and injured his chin and the front of his neck. In September 2020 the applicant again stopped riding due to a fall. 
(g)	The employee’s report of injury form simply records right shoulder AC dislocation. 
(h)	Dr Jovanovic provided an operation report of 10 February 2009 concerning the applicant’s right shoulder only and by 30 March 2009 certified the applicant fit for selected light duties. 
(i)	Although the notes of Dr Rajan of Casino Medical Centre record on 3 March 2010 that the applicant had a slightly stiffer neck over the last two weeks and mentions the 2009 fall, there is no reference to any consequential neck condition and by consultation note of 5 March 2010 no neck tenderness on examination.
(j)	The applicant was certified fit to retain his license as a professional jockey on 28 June 2010 which suggests that he was fit and well at that time. 
(k)	The applicant was injured riding track work in Ballina on 29 July 2010, but there is no mention of further neck injury in 2009. 
(l)	An injury management plan of 5 April 2012 records an onset of neck pain following an incident of 20 March 2012.
(m)	The applicant had seen Dr Wulff for cervical pain on 4 April 2018. He again saw Dr Wulff for stiffness in his neck on 4 May 2018, 31 May 2018 and 5 June 2018.
(n)	A physiotherapist report of April 2018 records that the applicant had been riding with nil major discomfort.
(o)	There are records of a fall at work on 1 April 2020.
(p)	There is a record of an attendance on Dr Wulff on 1 April 2020 because of a fall off a horse. The applicant was tender across his right shoulder but X-rays noted no fracture.
(q)	By 26 June 2020 the applicant was experiencing no pain and had undergone a full recovery and on examination Dr Wulff noted a full range of movement. 
19.	Notwithstanding the above matters, and the overall cloud they throw over any suggestion that the applicant suffered any serious ongoing cervical spine injury after 2 February 2009, what is clear is that when the applicant was taken by ambulance to Kempsey District Hospital on 2 February 2009 the clinical record was noted as follows: 
“Fall from horse onto right shoulder, neck and arm. Collar at triage. No tingling, no numbness”. 
The history given was that after the horse took off from the blocks it reared and the applicant rolled off backwards “onto head/ right shoulder”. It is recorded that the applicant experienced “pain right shoulder and right neck”. Tenderness was noted at C5/6 and the applicant was referred to radiology in respect of not only the right shoulder but also in respect of the applicant’s neck.
20.	Dr Bentivoglio does not appear to have ever been provided with the Kempsey District Hospital discharge notes. Dr Patrick although noting the incorrect date of injury does provide the applicant with support on causation. 
21.	Dr Patrick examined the applicant by tele-consultation on 20 August 2021 and on 20 October 2021. Prior to the incident on 2 January 2009 [sic – 2 February 2009] the applicant reported no problems with his neck except for a barrier incident when he was aged 15 and recovered well and quickly. 
22.	Dr Patrick concludes in relation to the nature of the injury the following:
“it is the situation that the incident in 2009 at Kempsey was the major incident leading to his ongoing problems with his neck and right shoulder, and subsequently back”.  
Dr Patrick’s report provides some support for chronic back pain but does not address how this back pain was related to the applicant’s fall on 2 February 2009. His reference to physical examination does not address the applicant’s back condition at all and whilst he refers to an MRI scan of the lumbar spine of 20 October 2020 showing a mild left paracentral disc protrusion at L5/S1, the relationship between this condition recorded in 2020 and the applicant’s fall on 2 February 2009 is not explained. 
It appears from the applicant’s solicitor’s referral letter to Dr Patrick dated 17 August 2021 that Dr Patrick was provided with the clinical notes of Dr Wulff but Dr Patrick does not deal with those notes in any detail in his report of 20 October 2021, simply accepting the applicant’s history that ever since his fall he has suffered “episodes where there has been radiation of pain down into the right arm associated with some numbness at times”. 
In the absence of some clear evidence of back problems on or near to February 2009 I am not satisfied that the applicant has established that the particular incident on 2 February 2009 caused or materially contributed to any back injury. I am also satisfied that no aggravation (etc) of any back condition occurred on or prior to 2 February 2009. 
5.	In terms of the neck and shoulder injury, I have already mentioned that there is some evidence of severe right shoulder injury on 2 February 2009 which the respondent has conceded. In terms of the applicant’s neck condition, the existence of the contemporaneous complaint at Kempsey District Hospital on the day of the alleged injury causes me to be satisfied that some cervical spine injury was the subject of the applicant’s fall on 2 February 2009, in the context of a series of further falls and complaints of neck symptoms on a number of occasions since that date.
FINDINGS AND ORDERS 
6.	The applicant on 2 February 2009 in the course of his employment with the respondent fell from a horse and suffered frank injury to his right upper extremity (right shoulder) and cervical spine and award in favour of the applicant in respect of those injuries. 
7.	In respect of the applicant’s allegation of lumbar spine injury and/ or back injury generally and/ or on 2 February 2009, award in favour of the respondent. 
8.	The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant’s whole person impairment (if any) which results injury to the applicant’s right upper extremity (right shoulder) and cervical spine which occurred on 2 February 2009. 
The President’s delegate is requested to place before the Medical Assessor a copy of the Application to Resolve a Dispute and attachments (Application), a copy of the Reply and attachments (Reply), and a copy of each party’s Application to Admit Late Documents and attachments and a copy of these Reasons.