Anna Pamic and Comcare
[2012] AATA 831
•23 November 2012
[2012] AATA 831
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4248
Re
Anna Pamic
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member
Date 23 November 2012 Place Melbourne The Tribunal:
1.sets aside the reviewable decision dated 11 August 2011 and in substitution decides:
a.the applicant suffered a fracture to her right patella on 24 November 2010 which arose out of her employment (the injury) and is entitled to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1998 (the SRC Act);
b.the applicant is entitled to be paid compensation in respect of the cost of medical treatment obtained for the injury pursuant to s 16 of the SRC Act; and
c.the applicant is entitled to weekly payments of compensation for all periods of incapacity for work from 24 November 2010 pursuant to s 19 of the SRC Act;
2.remits the application to the respondent for calculation of entitlement; and
3.orders the respondent pay the applicant’s legal costs and disbursements as agreed by the parties or taxed.
(sgd) John Handley
Senior Member
COMPENSATION – Applicant fell in car park adjacent to workplace after parking her car and when walking towards building intending to commence work – sudden back pain with referred pain into left hip and left leg – attempt to place weight onto right leg to regain stability unsuccessful – prior back and right leg injuries accepted by respondent – liability continuing at date of fall – similar symptoms experienced subsequent to the initial injuries – whether injuries arose out of employment – whether a causal connection ‑ chain of causation not broken – decision set aside.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 s 5A(1)(b)
CASES
Telstra Corporation Limited v Bowden [2012] FCA 576
Military Rehabilitation and Compensation Commission v Roberts (2007) 238 ALR 637
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
Mr John Handley, Senior Member
Mrs Pamic, the applicant in these proceedings, is an Audit Case Officer employed by the Australian Taxation Office (ATO) in Albury. She suffered a fractured right patella (the injury) on 24 November 2010 when she fell in a car park adjacent to her place of employment. The applicant was then walking towards the employer’s premises with the intention of commencing work. As a consequence of the fall and the resulting injury, she was incapacitated for work and incurred medical and like expenses for treatment. A delegate of the respondent denied liability under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) on 5 April 2011 (T20) and a review officer affirmed that decision on 11 August 2011 (T26).
The applicant sought review of that decision on 5 October 2011. The hearing commenced in Wangaratta and concluded in the following week in Melbourne. Subsequent to the conclusion of the hearing, counsel for both parties, at their request, provided written submissions.
There was no dispute between the parties that the applicant did fall in the car park and suffered an injury. The issue in dispute was whether it was an injury arising out of or in the course of her employment with the ATO (s 5A(1)(b) of the SRC Act).
The applicant contended that the injury:
a)arose out of her employment because it was a consequence of a previously accepted back injury (s 5A of the SRC Act); or
b)arose out of or in the course of the applicant’s employment (s 5A of the SRC Act); or
c)occurred in the course of her employment when she fell in the car park adjacent to her workplace (s 6(1)(b) of the SRC Act).
There is an overlap in meaning and concept between the expressions arising out of and in the course of. The circumstances of this case require that both expressions be distinguished. In very broad terms, an injury arising out of the employment occurs if there is a causal connection (Telstra Corporation Limited v Bowden [2012] FCA 576 at [32-35]). An injury in the course of the employment occurs if there is a temporal connection (Military Rehabilitation and Compensation Commission v Roberts (2007) 238 ALR 637 at [55]).
The applicant has a long history of injuries which arose out of or in the course of her employment with the ATO which the respondent has consistently accepted and compensated. The applicant contended primarily that the injury of 24 November 2010 was caused by the previously accepted injuries and therefore, arose out of her employment.
Alternatively and irrespective of the previous injuries, it was contended that the injury sustained on 24 November 2010 arose out of or in the course of the applicant’s employment. Having regard to the proximity of the ATO building to the car park (which had spaces reserved for ATO employees), it was further contended that the injury occurred at the applicant’s place of work. Therefore, the injury arose out of or in the course of her employment in accordance with s 6(1)(b) of the SRC Act. In those circumstances, it was argued, she is entitled to compensation.
For the reasons which follow, I am satisfied that there is causal connection between the pre-existing injuries, for which the respondent previously accepted liability and the fracture of the right patella. Therefore, the injury did arise out of the applicant’s employment and I will not consider the applicant's alternative arguments.
PRIOR INJURIES
From the late 1970s or early 1980s, the applicant had suffered back pain which was then mild and on occasions was relieved by acupuncture. The pain eventually settled. However, by early 1997 the applicant’s work required her to lift large bundles and boxes of financial records. As a consequence, she suffered a recurrence of back pain which extended to her legs.
Treatment was then undertaken by her general practitioner, a physiotherapist and an orthopaedic surgeon who was practicing in Albury. Compensation was claimed and rejected but upon reconsideration, liability was accepted. The date of injury was deemed to be 7 March 1997 (ST10, p. 16).
Thereafter, the applicant had continuing episodes of back pain until 2 June 1999 when she slipped in a hallway near the rear exit of the ATO building in Albury. The applicant fell forward onto her right knee and hands. Shortly thereafter, she suffered pain in her lower back, shoulders, neck and wrists. The applicant recalled that her major problem then was pain in her lower back. The respondent accepted liability for the consequences of those injuries (ST16).
A short time later the applicant noted a sensation of pins and needles in her fingers and hands. Decompression surgery of her right wrist was undertaken in October 1999, following a diagnosis of carpel tunnel syndrome as a consequence of the fall in June 1999. The respondent also accepted liability for that injury.
The applicant returned to work and gradually increased her working hours. The respondent accepted liability for household assistance which included the provision of gardening services.
After the episode in June 1999, the applicant continued to suffer back pain which extended into her thighs and legs. She also noted weakness in her left and right knees.
By 2005 the applicant had increased her working hours to 26 hours and 23 minutes per week. However, she continued to suffer low back pain which was exacerbated by bending and twisting, resulting in a greater level of back pain with pain also extending into her left leg. On those occasions she felt vulnerable because the left leg felt weak and she developed a practice of using her right leg and right foot to become balanced and to prevent falling (Exhibit A1 at paragraph 38).
The applicant purchased a single point walking stick which she held in her right hand to give her balance and support because of the weakness in her right knee. (She successfully claimed a refund of the cost of the walking stick from the respondent and was supported in that application by Dr Giddens her general practitioner).
An occupational therapist described the applicant as walking with a waddle (T7, p. 20) and the applicant agreed that when walking she was placing more weight on her left side because she felt her right leg to be weak.
INJURY ON 24 NOVEMBER 2010
On 24 November 2010 the applicant was walking through a car park adjacent to and at the rear of the ATO office, which is located on the corner of Smollett and Townsend Streets in Albury, with the intention of entering the building and commencing work. In her statement of evidence lodged prior to the commencement of the hearing (Exhibit A1), the applicant said at paragraph 9 that when she turned to her left to walk between two parked cars:
…I twisted my back and then felt an immediate sharp pain from the left hip into the left leg, down to the foot. My left leg went weak and wobbly from the pain and I became unbalanced and started to fall. I immediately tried to put the right leg down but the right leg was unable to stop my fall. My right knee hasn't been strong since the 1999 fall. I was still holding my bag in my left hand. I fell over, hitting my knees and hands on the ground then falling completely flat.
The applicant recorded in her statement that she suffered intense lower back and right knee and leg pain immediately after the fall. She was in shock and panicked. She cried out for assistance which was eventually provided by another person. An ambulance was called and she was admitted to the Albury Base Hospital. Surgery was performed on her right knee.
MEDICAL HISTORY
The applicant said that she has had continuous back pain since 1999. Pain has also radiated from her back into both legs with greater pain in her left leg. She associated that with favouring her left leg because of instability in her right knee. The applicant learnt pain management techniques in either 2000 or 2001, which have helped her cope and manage her pain. She has learnt to stand when pain increases after a period of being seated and to sit after periods of increased pain by standing. She has also learnt to bend and to twist without exacerbating her pain levels but there have been occasions when she has suffered sudden pain, immediately after such movements, similar to the precipitating event in the car park on 24 November 2010.
Prior to 2000, the applicant had been treated by Dr Gequillana in Yackandandah but when he ceased practice she commenced treatment under the care of Dr Giddens in Wodonga. The applicant has also attended Mr Steven Leitl, an orthopaedic surgeon in Wangarratta and Mr Max Wearne, in Melbourne on a medico-legal basis, having been referred by her solicitors and by the respondent, respectively. She was aware that Mr Leitl on 9 January 2002 reported that she was suffering intermittent right knee pain (ST41). On 5 April 2006 Mr Wearne reported that she had a normal gait, that is, she was not waddling (ST87). However, the applicant explained that the extent of back pain and weakness in her legs became greater after 2006.
The applicant said she coped with her left knee pain because of the techniques she had learnt through pain management. She acknowledged that her left knee became progressively worse but she did not necessarily complain about it until October 2010 when she was reviewed by a rehabilitation agency engaged by the respondent concerning the extent of household support services then being provided.
The applicant was asked to comment on a report written by Dr Christopher Steer, an oncologist, on 14 October 2010 (Exhibit R1) where he recorded that he consulted with the applicant on that day and her latest symptom of note is that she has new pain in her left knee. The applicant said that she was then having pain in her left knee which was becoming worse. She said she was also having left hip pain. She attended Dr Steer because she had previously been treated successfully for breast cancer and was concerned that she may have had secondary cancers in her hips and knees.
The applicant was also asked to comment on a report dated 21 October 2010 prepared by Ms Bohr of a rehabilitation agency engaged by the respondent (T7, p. 18) At page 20, Ms Bohr recorded that the applicant had an ache in her left leg, however the applicant said that was incorrect and should have been described as an ache in her left hip. She noted that Ms Bohr recorded that there had been some changes to her left knee and said that history was consistent with evidence she had given earlier, namely that the changes were a reference to pain in her left knee becoming worse.
In her claim for compensation (T10, p. 40), the applicant recorded that the cause of her injury was previous ongoing problems with her right knee causing her to fall when the knee gave way. In a supplement to the claim form (T10, p. 55) the applicant again referred to problems associated with her right knee. There is no reference to her back injury or back pain in either the claim form or the supplement. She pointed to her answer in the claim form at paragraph 25 (T10 p. 40 and her handwritten note at p.55) where she recorded please see original claim and intended those references to mean that the respondent’s officers should have regard to her previous claim forms which would disclose her prior back injuries.
In the clinical notes of the Central Medical Group in Wodonga, Dr Carmel Love, a colleague of Dr Giddens consulted the applicant on 19 January 2011. She recorded that the applicant attended on that day for a progressive medical certificate following her fall in the ATO car park on 24 November 2010. Dr Love recorded that the applicant told her that the reason that she fell is because her right knee locked and this was caused by the knee injury in 2000... The applicant said that history was incorrect and her right knee had not locked. She said, she told Dr Love that her right knee gave way (Transcript of 8 August 2012, p. 40).
Dr Love also recorded that the applicant has had pain in her left leg since the accident in 2000 because of extra load on the knee and since the recent fall it has got worse. The applicant said she could not recall giving that history to Dr Love (Transcript, p. 41).
In cross-examination the applicant demonstrated the location and path of the pain that she suffers. She indicated that the pain commences in the lower centre of her back and radiates into her left buttock, down to her outer left thigh to beyond her knee at which point the pain diminishes but then becomes a sharp burning pain in her toes.
CONCLUSION AND REASONS FOR DECISION
Mr Wallace, counsel for the respondent drew attention to differences in the description of the circumstances of the applicant falling in the car park as recorded by her in her claim form, her statement and in the histories taken by her doctors. It was submitted that there was an absence of evidence of a causal connection between the injuries in 1999 and the right knee injury sustained in the fall in the car park in 2010.
It is worth briefly revisiting the applicant’s medical history because I am satisfied that a causal connection does exist and becomes evident from a review of the clinical histories of the applicant as recorded by many doctors who have treated and assessed her from 1997.
A CT image of the applicant's lumbar spine taken on 11 March 1997 reported spinal canal stenosis at 4 levels between L2/3 and L5/S1 (ST2, p. 2). On 15 May 1997, Dr Gequillana reported the presence of advanced degenerative lumbar disease with a history of it dating back to 1987 (ST4, p. 4). A claim made in 1997 upon the respondent for her back injury, which was claimed to be aggravation of degenerative lumbar disc disease was denied but accepted on reconsideration with the injury then deemed to be strain lower back (ST10, p. 16).
Following the fall at work in June 1999, the applicant made a claim for compensation. On 7 July 1999 the respondent accepted liability for those injuries, namely, sacroiliac region sprain, aggravation of lumbar sprain, bruise of right knee and sprain of shoulder and upper arm (ST16, p. 26). In a report dated 19 October 1999 from the Commonwealth Rehabilitation Service, the consultant recorded a history from the applicant of pain in her right knee (ST19, p. 30).
Mr Terry Hillier, an orthopaedic surgeon, in a report dated 2 February 2000 addressed to Dr Giddens, recorded that the applicant had:
… limited forward flexion and she tends to prop on her legs to recover from that position suggesting that there is some anterior column pain and instability.
He interpreted an x-ray which showed that she was somewhat out of balance in that she has an ankylosed L5/S1 and marked collapse with stiffening of the L3-L5 segment (ST20, p. 33).
In March 2000 an occupational therapist assessed the applicant on behalf of the ATO and reported that the applicant:
… Whilst standing, she was observed to attempt some exercises to try and relieve pain symptoms that she reported across her lumbar spine area, on both (L) and (R) sides and radiating through her buttocks (ST23, p. 37).
On 7 June 2000 Mr Frank Combe, an orthopaedic surgeon, reported to the applicant's former solicitors that the applicant had experienced acute and severe back pain, which was continuing following her episode at work in 1997. In June 1999 the applicant fell taking most of her weight on her right knee … and when she arrived at home she had pain and swelling in the right knee (ST24, p. 41-44).
One month later, on 3 July 2000, Mr Leitl reported to the applicant's former solicitors that the applicant fell heavily onto her right knee in June 1999, that the knee became bruised and swollen a few days after the fall and although it settled down without any specific treatment, on examination the applicant reported to him there was no strength in the knee, but she also noted that this was similar to the trouble that she was experiencing in her left knee at the present time (ST27, p. 49). Mr Leitl concluded that the episode in June 1999 produced a jarring injury in the applicant’s right knee and that she had fully recovered (at p. 52). He also reported that the applicant suffered a further aggravation of her lumbar disease following the fall in June 1999 (at p. 51).
Mr Leitl assessed the applicant again on 10 May 2010, on that occasion at the request of the employer (T5, p. 11-15). When he asked the applicant about her previous injured right knee, he said she indicated that this was the least of her problems but from time to time she experienced occasional soreness. He concluded that the applicant’s lower back condition has slightly worsened over the last 4 years.
In a report dated 23 May 2003, Dr Giddens recorded that the applicant suffered chronic pain (ST58, p. 107). In another report dated 14 July 2003, Dr Giddens recorded that the applicant suffered chronic back pain (ST59, p. 108).
Dr Robert Hart a consultant orthopaedic surgeon and occupational physician examined the applicant on 23 March 2004 at the request of the ATO and prepared a report on 2 April 2004 (ST69, p. 134-142). He obtained a history of the episodes in 1997 and 1999 and reported the applicant suffered constant low back pain following the 1997 event despite being able to eventually return to work. Following the event in 1999, she suffered chronic back pain which was more severe, radiating down both of her legs, and she also experienced pain in her… right knee.
At the date of consultation, Dr Hart recorded that the applicant:
… still experiences chronic severe pain in her lower back, which radiates to her left lower limb, and occasionally to her right lower limb as far as her toes. The pain is described as being of a burning quality, though occasionally it is piercing, and prevents her walking (at p. 137).
On physical examination he noted that there was no history of locking or giving way in her right knee but there was tenderness over the medial right patella articular facet and over the medial and lateral joint line of the right knee (at p. 139). In concluding his report, Dr Hart noted that although the applicant has multi-level significant disc degeneration, there has been no specific disc protrusion for which she must remain at risk from a lifting or twisting injury (at p. 42).
On 24 March 2009, Dr Giddens, (who reported that the applicant had attended the clinic since October 1999), summarised the circumstances of the applicant’s injury and her symptoms following the events at work in 1997 and 1999. She noted that the applicant suffers from right knee pain which she states has been present since her fall, and also suffers from chronic low back pain (ST89, p. 196). Dr Giddens did not have a history of any disability before 1997 and it was her opinion that her falls at work have been the sole contributing factor. Therefore it is probable that Mrs Pamic’s current condition relates to a direct continuation of her 1999 injury (at p.196).
In a report to the applicant’s solicitors on 22 November 2011 (Exhibit A2), Dr Giddens concluded that the applicant had degenerative low back disease which caused low back pain and referred pain to her left hip and lower leg, but was unable to say whether the degeneration was purely due to age… or whether her pre-existing degenerative back disease has hastened the process. She also reported that the applicant had degenerative changes in her left knee.
The applicant was challenged about some of the entries in the medical records of doctors who had treated and assessed her. To the extent that those entries were inconsistent with the evidence given by Mrs Pamic in these proceedings, I am satisfied that they may be explained either by misunderstanding on the part of the practitioner in the recording of a clinical history or the symptoms expressed during the consultations.
The respondent made the primary determination on the basis of the claim form completed by the applicant, who was then without legal assistance. The decision-maker was entitled to assume that the circumstances of the injury, having occurred following a fall in a car park adjacent to the workplace in 2010, without any other information, did not satisfy relevant provisions within the SRC Act, because it was not, on the description given, an injury which arose out of or in the course of her employment (T20, p. 92). The applicant later obtained legal representation and the claim was modified in a request for reconsideration. However, the submission to the respondent which accompanied that request claimed that the applicant’s right knee gave way and she fell as a consequence of pre-existing back injuries (T22, p. 97). The respondent’s delegate who made the reviewable decision concluded, upon her understanding of the alternate basis upon which the claim was put, that there was no material before her in support of the fall in the car park having occurred as result of the applicant’s right knee giving way (T26, p. 106). (No criticism is intended of the respondent’s delegates or the applicant's solicitor concerning these observations).
The benefit of having observed the applicant in evidence satisfied me she was a witness of truth. She impressed me that nothing about her presentation indicated any exaggeration nor was I satisfied that her account of the injuries and the subsequent pain was false. Her history as a patient at the clinic of Dr Giddens and the opinion she expressed (refer above) reassures me of the consistency of symptoms from 1997 and especially from 1999.
The benefit also of the hearing and the submissions made by the applicant’s representative allowed me to learn, with precision, the basis upon which her claim was advanced. A distinguishing feature of merits review is:
…the Tribunal is not ordinarily confined to material that was before the primary decision-maker, or to consideration of the events that have occurred up to the time of its decision … the fact that the review contemplated by s 43 of the [Administrative Appeals Tribunal Act1975] is one addressed to a “decision” … makes it necessary in each case to identify the precise nature and incidents of the decision that is the subject of the review (Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [43]).
In reviewing the authorities, Kirby J said in Shi at [37]:
…ultimately, it was for the Tribunal to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.
I am satisfied that the right knee injury suffered by the applicant in the car park in 2010 had its genesis in the injuries previously suffered in the workplace for which liability was accepted and which is continuing.
In her statement, the applicant explained (Exhibit A1, at paragraph 38):
Ever since the 1999 injury I have had recurring low back pain which extends into the left leg from time to time if it is exacerbated. Actions like bending and twisting and lifting all cause exacerbations. When that happens I can get sudden, low back and left leg pain and I feel unable to hold myself up. I have to put my right foot down quickly to try and avoid falling to the ground but on 24 November 2010 I did not get my right foot into position to stop the fall… On this occasion, the right knee was either unable to get into position in time or was unable to support me. But the instability and start of the fall was when I had the low back pain that went down into the left leg causing it to become unable to hold me up.
The applicant also explained in her statement that the injury occurred on 24 November 2010 when she was in the car park adjacent to the ATO building. She recorded that when she attempted to walk between 2 parked cars, she twisted her back and felt immediate pain extending into her left hip and left leg and foot; her left leg became weak; she became unbalanced and as she was aware that she was about to fall, she placed her right foot on the ground but was unable to stabilise herself and she fell (at paragraph 9).
The description of the pain suffered by the applicant extending from her back into her left hip and left leg when she has undertaken a twisting type movement is consistent with the medical evidence found within the medical reports summarised above. Her description is also consistent with the evidence she gave at the hearing (Transcript of 8 August 2012 at p. 7, 8, and 12‑15). It should also be recorded that the applicant did not then have her walking stick when she fell, which she usually carried in her right hand and which she used for stability, support and which also gave her a degree of confidence when walking. She said she treated the walking stick as her third leg (Transcript, p.14). The applicant gave evidence that there were occasions when she did not use her walking stick in public because she was embarrassed to do so. She also thought that because she was walking a relatively short distance between her parked car and the ATO building, it would not be necessary to use it (Transcript, p. 8).
The respondent arranged for the applicant to be assessed on a medico-legal basis by Mr Clive Jones, an orthopaedic surgeon. In a report dated 11 May 2012, Mr Jones acknowledged that the applicant had suffered a fracture of her right patella when she fell in the car park (Exhibit R4). In his opinion, the fracture was unassociated with her previous back pain (at p. 5). Whilst he recorded that the applicant still experiences problems with lower backache, which is ongoing, I cannot discern from his report that he obtained any history from the applicant of lower back pain with pain radiating through her hip and into her left leg. He concluded at page 6 that he did:
… not believe the right patella fracture can relate in any significant way to her previous low back pain. On the balance of probabilities, Mrs. Pamic’s previous injuries would not have caused the fall. I suspect this was a completely separate incident and quite inadvertent.
In my view the report of Mr Jones was disappointing. He was given a number of medical reports ‑ some are summarised earlier ‑ and clinical files by the respondent’s solicitors prior to his examination. If he had obtained a history of the back injury and the consequent symptoms, he would have been assisted in comprehending, or at least making enquiry, into whether there was a connection between pre-existing back pain, the twisting movement when intending to walk between two cars, sudden referred pain through her hip into her left leg and the attempt to stabilise herself by placing her right foot on the ground and her right knee then subsequently not supporting her weight and causing her to fall.
Mr Jones gave evidence in this application when the hearing resumed. When he learnt that Dr Giddens reported on 22 November 2011 (Exhibit A2) that the applicant has accepted degenerative low back disease. This gives her low back pain and referred pain to the left hip and lower leg, he said the applicant may feel unstable when walking if she feels pain extending from her back into her left leg. When he was asked to consider that on the occasion the applicant fell in the car park, she had become unstable by referred back pain into her left leg, and had unsuccessfully attempted to use her right leg to avoid falling, he said I guess that's one, sort of, theory you could advance, yes (Transcript of 16 August 2012, p. 6).
When re-examined on the above response, Mr Jones said that in his clinical experience the mechanism of the applicant falling as described to him by counsel for the applicant, was a rather unlikely sort of scenario (Transcript, p.7).
As the examination of Mr Jones continued, he persisted in expressing an opinion that if he were to accept that the applicant suffered referred back pain into her left leg which caused it to become weak, it was more likely that she would have fallen and suffered a fracture of her left patella. He conceded that it was not improbable that the applicant did land on her right knee and it bore the brunt of the force of the impact which was responsible for the fracture. However, he thought the likely scenario here is this lady just lost her balance and fell down on to (her) knee (Transcript, p. 12).
Mr Jones in my view failed to either appreciate or acknowledge the mechanism of injury as described to him on a number of occasions during the hearing. When he was asked whether it was improbable that the applicant would attempt to put her right foot down to regain balanced having suffered pain in her left leg, he said:
… these injuries just don't happen this way, in my experience. I've seen a whole heap of them. People trip, stumble, lose their balance, fall over something, they come down on their kneecap and it fractures. That's what happened (Transcript, p. 13).
Later when he was asked to consider the actual events as described by the applicant, he said:
I can't tell you whether this lady did suffer left leg pain and what the consequences of that left leg was (sic). But I suspect it’s highly improbable that left leg pain would cause her right knee to fracture. Now, I can't make it any clearer than that (Transcript, p. 13).
Having regard to the evidence of the applicant and the medical evidence largely contained within the medical reports, I am satisfied that the applicant had low back pain referred through her left hip into her left leg following the injury suffered in 1997 and particularly 1999 which persisted and became greater in intensity and frequency until 24 November 2010 when the applicant fell in the car park.
Prior to that date, the applicant experienced left leg weakness and consequent instability by referred leg pain when she twisted her back. She also had considerable discomfort in her right leg as a result of falling onto her right knee in 1999. She noticed that she was transferring weight from her right leg onto her left leg. On occasions, she used a single point walking stick to give her a sense of stability and confidence when walking.
I am satisfied and find as a fact, having regard to the totality of the evidence, both oral and documented, that the sequence of events was the applicant suffered sudden low back and referred hip and leg pain when she twisted to her left with the intention of walking between 2 parked cars. She immediately sensed a weakness in her left leg which she had previously experienced in similar situations. In an attempt to arrest a perception, reasonably held, that she would fall, she immediately placed her right foot on the ground in the belief that she would become stable. She did not achieve stability because her right leg gave way or was unable to support her weight or she did not place her right foot on the ground in time to arrest her fall. The applicant was also vulnerable by the absence of her walking stick which she would have, on other occasions, held in her right hand. She fell forward, landing on the ground onto both of her knees and hands. As a consequence of falling in those circumstances, she suffered a fracture of her right patella.
For these reasons, I am satisfied that there is a causal connection between the fall on 24 November 2010 and the prior injuries for which the respondent has accepted liability. The chain of causation has not been broken. The respondent is therefore, liable for the compensable consequences of the injury which occurred on 24 November 2010.
DECISION
The reviewable decision is set aside and in substitution, I am satisfied that the respondent is liable pursuant to s 14 of the SRC Act. The applicant is entitled to compensation pursuant to s 16 and s 19 of the SRC Act. The application is remitted to the respondent for calculation of entitlement. The applicant is also entitled to have her costs and disbursements of this review paid by the respondent.
I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member........................[sgd]...........................
Associate
Dated 23 November 2012
Date(s) of hearing 8 & 16 August 2012 Date final submissions received 26 September 2012 Counsel for the Applicant Mr M. Carey Advocate for the Applicant Mr D. DeMarte Solicitors for the Applicant Nevin Lenne & Gross Counsel for the Respondent Mr J. Wallace Advocate for the Respondent Ms K. Latta Solicitors for the Respondent Sparke Helmore
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