Bartlett v Secretary, Department of Communities and Justice
[2021] NSWPIC 239
•12 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Bartlett v Secretary, Department of Communities and Justice [2021] NSWPIC 239 |
| APPLICANT: | Donna Louise Bartlett |
| FIRST RESPONDENT: | Secretary, Department of Communities and Justice |
| SECOND RESPONDENT: | Australian Unity Home Care Services Pty Ltd |
| MEMBER: | John Wynyard |
| DATE OF DECISION: | 12 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Argument between two respondents as to liability for accepted injury; frank injury in 2016 to left knee caused treatment but no time off; no treatment or complaint from June 2016 to March 2019 when symptoms in same knee began; worker doing care work requiring bending and squatting; imaging in 2016 showed pathology that had resolved by the time further imaging was taken in 2019; 2019 imaging showed degenerative change in the knee; first employer denied liability for weekly payments & section 60 expenses, claiming second employer liable through section 16 of the 1987 Act; Held- medical expert for the second respondent’s opinion that the 2016 accident caused the onset of the osteoarthritis rejected as speculation; no basis in fact for assumption that worker was symptomatic over period; no basis for finding the injury of slipping over on to the knee had the equivalent force of a head-on motor vehicle accident at moderate speed; award against second employer in favour of worker |
| DETERMINATIONS MADE: | 1. The second respondent will pay weekly compensation as follows: (a) for the period 10 October 2020 to 8 January 2021 at the rate of $238.92 pursuant to s 36 of the Workers Compensation Act 1987, and (b) for the period 9 January 2021 to date and continuing at the rate of $191.82 pursuant to s 37 of the Workers Compensation Act 1987. 2. The second respondent will pay the applicant’s reasonable s 60 expenses on production of accounts and receipts and/or HIC notice of charge. 3. There is an award in favour of the first respondent. |
STATEMENT OF REASONS
BACKGROUND
Donna Louise Bartlett, the applicant, brings an action for weekly payments of compensation and by amendment at the hearing, for payment of medical expenses.
Dispute notices were issued, and proceedings were duly commenced.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) who is liable to pay compensation?
(b) what is the quantum of Mrs Bartlett’s entitlement?
PROCEDURE BEFORE THE COMMISSION
The matter was heard by telephone conciliation and arbitration conference on 23 April 2021. Mr Digby Dunn of Messrs Stacks The Law Firm instructing Mr Stuart Grant of counsel appeared for the applicant. Ms Christine Bellemore of Messrs HWL Ebsworth instructing Mr Fraser Doak of counsel appeared for the first respondent. Mr Mitchell Strachan of Messrs Hicksons Lawyers instructing Mr Graham Barter of counsel appeared for the second respondent. Representatives from EML and QBE were also in attendance. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply from the first respondent and attached documents, and
(c) Reply from the second respondent and attached documents
No application was made in relation to oral evidence
FINDINGS AND REASONS
Mr Grant sought to amend the ARD to claim medical and associated expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act). That application was not objected to and accordingly becomes part of the claim.
The parties in this matter relied on written submissions. I am grateful to counsel for their detailed consideration of the relevant issues.
The facts were conveniently set out by Mr Grant for the applicant, and accepted by the second respondent. The first respondent did not suggest that the account was incorrect, and it is convenient to adopt Mr Grant’s summary (without his subjective commentary from time to time) as it accords with my review of the evidence:
· The applicant, Donna Bartlett, now aged 59 years, was employed by the first respondent as a Grade 2 Care Worker in about January 2012. The work that she performed concerned the care of incapacitated patients in their homes and was heavy in that it involved bending, lifting and squatting.
· On 25 January 2016 Mrs Bartlett suffered a frank injury to her left knee when she slipped and fell whilst working at a patient’s home. Despite suffering pain in her knee she kept working and shortly after sought medical attention which led to an MRI investigation being conducted on 16 March 2016, which revealed prepatellar bursitis and a likely meniscal tear.
· On about 17 March 2016 Ms Bartlett consulted Dr White an orthopaedic specialist. She was referred to a physiotherapist who treated her up to May 2016. She kept working through this period of treatment, attending the physiotherapist after hours. The cost of the physiotherapy was paid for by the insurer of the first respondent.
· By May 2016 the applicant had improved. She was examined by Dr Salmon, another Orthopaedic Surgeon on 15 June 2016 and was found to be pain free and possessed a good range of movement in her knee.
· On or about 19 February 2019 the applicant and a number of her fellow employees were transferred to the employ of the second respondent but continued working in the same capacity.
· The applicant on 13 March 2019, whilst squatting to shower a patient, suffered sudden burning pain in her left knee which she reported to her employer but kept working although in continuous pain.
· By 16 April 2019 the pain in her left knee had increased to the point that she had to pull over whilst driving home from attending to a patient and use her hands to lift her leg to enable her to exit her car. This led her to consulting her General Practitioner, Dr Dissanayake who ordered another MRI scan, which revealed patellofemoral joint compartment degeneration.
· Mrs Bartlett ceased work on 17 April 2019.
· On 4 May 2019 the applicant returned to restricted duties.
· Dr Hyde-Page examined the applicant on 21 May 2019 which consultation was arranged by the insurer of the second respondent.
· Dr Caldwell, another orthopaedic specialist, examined the applicant on 22 May 2019 on referral from Ms Bartlett’s GP. The doctor commented on patella-femoral joint compartmental degeneration.
· On 11 June 2019 the insurer of the second respondent accepted her claim.
· Dr Roux, yet another orthopaedic specialist, examined the applicant on or about 12 June 2019 and noted that she was not keen on having an operation. He initially advised her to continue with physiotherapy however when he examined her on 31 July 2019 found that she was limping, had meniscal pain and required an arthroscopy.
· An arthroscopy was performed on 9 September 2019 by Dr Roux at which time he resected a fat pad.
· On 11 November 2019 the applicant returned to restricted duties in the form of office work, working three hours a day five days a week. The hours worked by the applicant were increased on 9 December 2019 to four hours a day five days a week then on 5 January 2020 to five hours on five days a week and finally on 3 February 2020 to six hours on five days a week.
· On 28 July 2020 her physiotherapist noted that she was working performing suitable duties but was having problems when she needed to kneel or squat.
· Dr Hyde-Page provided two further reports dated 30 July 2020 and 24 August 2020.
· The insurer of the applicant declined liability on 16 September 2020 and payments of compensation ceased on 9 October 2020.
· The applicant continued working with the applicant performing reduced duties and reduced hours until 9 February 2021 when her services were terminated.
· Mrs Bartlett continues to receive Medical Certificates certifying her as capable of performing suitable work on the basis of six hours work five days a week. She is certified as restricted in her ability to lift above 10 kgs, she has a reduced capacity to push or pull and is unable to squat of kneel.
· Unfortunately her knee has not improved and she has been advised to undertake further investigations in regard to whether she should undertake further operative treatment.
The principal issue for determination is as to which of the respondents is liable for Mrs Bartlett’s claim – or whether liability should be apportioned, and in what proportion. The secondary issue relates to the quantification of Mrs Bartlett’s earning capacity.
The principal issue requires an analysis of the opinions of the medical experts.
Mrs Bartlett was firstly referred by her GP Dr George Castillo to Dr Bruce White, who reported on 17 March 2016.[1] Regrettably, only the first page of Dr White’s report was lodged, but it recorded a consistent history that Mrs Bartlett slipped whilst straightening up a pot plant, did the “splits” and landed on her left knee. She iced her knee regularly following the accident, and she had swelling and bruising. The knee improved after a week but Mrs Bartlett reported continuing trouble with it. The last entry on the page stated:
“MRI scan confirms prepatellar bursitis.”
[1] ARD page 31.
The MRI had been taken on 16 March 2016 and was lodged.[2] It found that there was “extensive prepatellar bursitis.” It concluded that in addition to the prepatellar bursitis, there was “likely medial meniscal tear.”
[2] ARD page 32.
When Mrs Bartlett attended Dr White’s rooms on 15 June 2016 she was seen by his locum, Dr Babatunde Salman, Orthopaedic Surgeon. Dr Salman noted that there had been a diagnosis of “parapatella bursitis” by Dr White. Dr Salman said:
“At the time of my assessment [Mrs Bartlett] was pain free. She has a good range of motion… The quadriceps strength was normal. There were no signs of infection.”
Dr Salman therefore discharged Mrs Bartlett, advising her to contact Dr White again as required. As has been noted, she did not seek further medical attention for another two years or so.
In her statement, Mrs Bartlett said that her medical expenses were paid by QBE, which included physiotherapy until about the end of May 2016. She said thereafter she kept working until 13 March 2019 when she felt sudden burning pain in her left knee whilst squatting to shower a patient. In the meantime the second respondent had become the employer.
She self-managed her injury until it got to be so bad that on 17 April 2019 she initially consulted the physiotherapist she had been seeing in 2016, Mr Matt Doherty.
On that date Mrs Bartlett also attended her GP, who was then Dr Sujeewa Dissanayake. She was referred to Dr Johan le Roux, Orthopaedic Surgeon, who reported on 12 June 2019. [3]
[3] Reply first respondent page 6.
Dr le Roux took a history of the 2016 left knee injury. He noted that Mrs Bartlett’s knee had now started to ache again, and her knee had locked some weeks before. Mrs Bartlett had returned to physiotherapy, with good results at that stage, but her knee was still painful when she did deep squats which she was required to do as part of her employment duties.
Dr le Roux noted that x-rays showed a “well enough preserved knee” and that a 2019 MRI showed a chondromalacia patella. He thought that there was no obvious medial meniscus tear although there was some signal shown in the medial meniscus. Dr le Roux said:
“It is interesting that the report from MRI taken in 2016 does not stipulate much in the way of chondromalacia patella.”
Dr le Roux saw Mrs Bartlett again on 31 July 2019.[4] Mrs Bartlett was observed to be limping and she complained of “quite a lot of pain in the medial side of the knee.” Dr le Roux reviewed her MRI again and diagnosed a medial meniscal tear. He observed that the patellofemoral joint was certainly not normal and was the primary reason for her symptoms. Arthroscopic surgery was discussed with Dr le Roux noting that “PF JOA” (patellofemoral joint osteoarthritis) would most probably not be addressed with arthroscopic surgery. Surgery was booked and took place on 9 September 2019 at the Mayo Private Hospital[5].
[4] Ibid page 8.
[5] Ibid page 10.
In his final report dated 27 September 2019 Dr le Roux noted that Mrs Bartlett was two weeks post surgery and was quite sore and tender over her knee, and her patella tendon particularly.
In the meantime Mrs Bartlett had undergone further MRI of the left knee on 26 April 2019 which was arranged by Dr Dissenayake. She had also attended an assessment with Dr Murray Hyde-Page on 21 May 2019 which was arranged by QBE. She was also referred by Dr Dissenayake to Dr Bruce Caldwell on 22 May 2019.
Mrs Bartlett said that on 27 May 2019 her claim was denied, but she was advised by QBE to start a new claim. She was then told by the Claims Manager with EML that her claim had been accepted. She attended Dr Hyde-Page again on 30 July 2020, and her claim was declined again on 16 September 2020.
In his first report of 23 May 2019 Dr Hyde-Page recorded a history that Mrs Bartlett had slipped on water, done the splits and “landed heavily on the front of her flexed left knee.” He took a consistent history of Mrs Bartlett’s symptoms and treatment, noting Dr Salman’s report in June 2016 that her knee had “settled down completely.”[6]
[6] ARD page 47.
He noted that over the past three years Mrs Bartlett’s knee “had really not caused her any significant discomfort or pain.” He noted that she was able to do her normal work 30 to 50 hours a fortnight, that she had no restrictions on her work activity and had not needed to seek any further treatment since June 2016.
The onset of left knee pain in March 2019 was noted and a consistent history was taken that she kept working until she had to seek treatment on 16 April 2019. Dr Hyde-Page noted that Mrs Bartlett had been off work undergoing physiotherapy and quadriceps strengthening exercises, but that she had resumed on light duties doing office work a week before the consultation.
On examination Dr Hyde-Page noted that Mrs Bartlett walked with a painful limp due to her left knee, that she had patella femoral discomfort and did not like being touched around the patella on the medial para patella area. The examination indicated significant patello femoral and parapatellar discomfort. Dr Hyde-Page noted that there was no patella tendonitis or quadriceps tendonitis and that there was “no longer” any evidence of pre-patella bursitis. The patella was stable and not lateral tracking.
Dr Hyde-Page had available the MRI scans of March 2016 and April 2019. His opinion was that the injury of “25 March 2016” (in fact 25 January 2016) had caused Mrs Bartlett to develop a significant pre-patella bursitis confirmed on MRI. There was no evidence of any underlying internal derangement and the patellofemoral joint was normal. There had been “possibly” a small tear of the medial meniscus. The MRI scan of April 2019 showed some early degenerative changes developing in the patello femoral joint, and there was still evidence of a small meniscus tear.
Dr Hyde-Page diagnosed a condition of “early patello femoral osteoarthritis of the left knee.” He said there was no longer any pre-patella bursitis. He said:[7]
“Mrs Bartlett has persistent anterior left knee pain and tenderness related to the patellofemoral joint and quadriceps mechanism. Ongoing symptoms here are consistent with her having suffered a further strain to the patella and quadriceps mechanism, when she squatted in March 2019 to assist a client. The MRI scan confirms there is subchondral marrow oedema in the patella that supports this diagnosis as well.”
[7] ARD page 52.
He said further:
“Mrs Bartlett’s left knee condition now is related to her injury in January 2016, in that she has now developed degenerative changes in the patello femoral joint of the left knee, that has been noted in the most recent MRI scan and 2019 and were not evident in her MRI scan in 2016. The nature of her injury in January 2016 that led to her developing an acute pre-patellar bursitis would have at the same time injured her patellofemoral joint. This along with the nature of her work as a Homecare Worker, such as squatting and kneeling constantly helping her clients would have led to her developing the patellofemoral degenerative changes now seen on the MRI scan. This would have happened over the last three years.”
Dr Hyde-Page considered that the current left knee condition was an aggravation of her pre-existent knee condition from 2016. He thought she was unfit to return to her pre-injury duties and was only capable of clerical type work, or office work, which she was then doing.
As indicated, Mrs Bartlett was referred by her GP to Dr Bruce Caldwell, Orthopaedic Surgeon, who reported on 22 May 2019.[8] Dr Caldwell took a consistent history that at the time of the accident in 2016, on a wet floor Mrs Bartlett’s right leg went out to the side and she landed heavily on the front of the left knee. He noted that Mrs Bartlett attributed her current left knee problems to that fall.
[8] ARD page 37.
Dr Caldwell noted that the knee had fully settled in 2016, and he said:
“To be fair, I don’t think there is probably any connection between this injury and her current situation.”
On examination Dr Caldwell found the patellofemoral joint to be somewhat irritable and there were some skin marks he noticed from previous taping. He reviewed “her MRI scan,” which I presume to be the 2019 scan, and said that some patellofemoral joint compartment degeneration was noted but that the previous documented prepatellar bursitis had resolved. Dr Caldwell could not find any support for the radiologist’s finding of a suggested small tear in the medial meniscus. Dr Caldwell thought that “the problem is all patellofemoral.”
Dr Hyde-Page gave a further report on 5 August 2020.[9] He obtained a further history from Mrs Bartlett that she had come to surgery with Dr le Roux and that he had excised a medial meniscus tear, and shaved the fat pad, but had not done anything else. Dr le Roux had noted some patellofemoral osteoarthritis.
[9] ARD page 39.
Dr Hyde-Page noted that Mrs Bartlett had started to do home visits but that the problems with her left knee were continuing to constitute a barrier to her successfully doing so. Dr Hyde-Page was asked for a diagnosis and he said that since last seeing her in May 2019 Mrs Bartlett was showing deterioration in her left knee. Her increasing symptoms, which were suggestive of the worsening of her underlying osteoarthritis in the patellofemoral joint, had become more symptomatic. Dr Hyde-Page noted that the prepatellar bursitis had settled down but that the patellofemoral osteoarthritis, which had been caused as a direct result of the 2016 fall, had deteriorated. Dr Hyde-Page thought that it would not be expected that an arthroscopy would improve patellofemoral joint osteoarthritis.
Dr Hyde-Page was asked to provide a supplementary report, which he did on 5 August 2020.[10] He repeated his diagnosis, confirming that the development of Mrs Bartlett’s patellofemoral osteoarthritis in her left knee was a consequence of the injury of 25 January 2016. He thought that the impact on the left leg on Mrs Bartlett was “very similar to a moderate-speed head-on motor vehicle accident where there is a dashboard injury to the flexed knee.” Dr Hyde-Page thought that Mrs Bartlett’s symptoms from the patellofemoral osteoarthritis were getting progressively worse.
SUBMISSIONS
[10] ARD page 44.
First respondent
Mr Doak for the first respondent contrasted the opinions of Dr Bruce Caldwell, to whom Mrs Bartlett had been referred for treatment, and Dr Murray Hyde-Page, who was retained by the first respondent.
Mr Doak stressed that Mrs Bartlett took no time off work following the 2016 injury, and that her treatment ceased on 15 June 2016 when Dr White’s locum, Dr Salman, discharged her from further care, as she was then pain free.
Mr Doak noted that Mrs Bartlett suffered no further symptoms for almost three years, whilst she persisted in the same kind of employment.
Mr Doak argued that the assumption made by Dr Hyde-Page upon which he based his opinion had not been established as a fact. Dr Hyde-Page found that the 2016 incident of 15 January had caused patellofemoral damage, but the contemporaneous MRI scan did not confirm that diagnosis. Mr Doak also argued that such a condition would also have caused continuing and developing symptoms. Dr Hyde-Page himself acknowledged that the degenerative changes shown in the 2019 MRI scan were not present in the 2016 MRI scan.
Moreover, Mr Doak argued, Dr Hyde-Page did not provide a properly reasoned explanation for his opinion that the nature of the 2016 injury would have caused the degenerative change later seen to have occurred. This was based on speculation and rendered his opinion of little weight.
Mr Doak referred to Rolleston v Insurance Australia Ltd[11] as authority for the proposition that an opinion expressed in an expert report should expose the author’s reasoning to demonstrate the particular specialised knowledge on which the opinion was based.
[11] [2017] NSWCA 168.
Dr Caldwell’s view was preferable, Mr Doak submitted as it was supported by the evidence that Mrs Bartlett’s knee had been asymptomatic. Mr Doak submitted that the circumstances of the 2016 injury constituted a frank injury to the left knee. The subsequent discovery of degenerative pathology in 2019 did not affect such a finding. He referred to NSW Police Force v Gurnhill[12] in that regard.
[12] [2014] NSWWCCPD 12.
Mr Doak submitted as an alternative approach (although I think it must follow if I accept his first submission) that the provisions of s 16 of the 1987 Act apply to make the second respondent liable exclusively, as the first incapacity Mrs Bartlett suffered as a result of her knee injury was whilst the second respondent was on risk, and at a time when no contribution could be claimed from the first respondent.
Second respondent
Mr Barter firstly addressed the quantum of any award in favour of the applicant. He said that the wage records indicated that there had been a wage loss of $240 per week between 10 October 2020 and 9 January 2021 and, by virtue of the operation of s 37 of the 1987 Act, $86 per week thereafter.
Mr Barter submitted that there was no explanation as to why Mrs Bartlett had suffered a drop in earnings in January 2021 and there is therefore no reason to suggest that her ability to earn was not any lower than that suggested by the figures.
Mr Barter observed that although the current claim was only for weekly payments, other consequences will probably follow in the form of an application pursuant to s 60(5) of the 1987 Act, and indeed s 66.
It was useful, Mr Barter suggested, to consider this claim from the point of view of Mrs Bartlett undergoing surgery, with the resultant period of total incapacity, and then bringing a claim pursuant to s 66.
The current incapacity, Mr Barter argued, and the need for medical treatment resulted from the pathology established during the course of Mrs Bartlett’s employment with the first respondent. Mr Bartlett referred to s 22A of the 1987 Act with regard to the power to apportion.
Mr Barter submitted that by applying the well-known principles in Kooragang Cement Pty Ltd v Bates[13] I would be satisfied that the pathology was caused by “only one injurious event.” Mr Barter observed that there was no history of any other injurious event and that the present condition of Mrs Bartlett’s knee was the inevitable outcome of the 2016 incident. Mr Barter averred that the causal chain was “unbroken.”
[13] (1994) 35 NSWLR 10: (1994) NSWCCR 796.
The nature of the injury suffered in 2016 Mr Barter described as a “serious blunt force injury”. The subsequent history regarding the development of the symptomatology in the left knee represented “transient increases in symptomatology” which demonstrated the real extent of the damage caused by the 2016 event.
Mr Barter acknowledged Mrs Bartlett’s stoicism in the history of her subsequent employment in the face of her injury. He said although she noticed immediate swelling following the contortions involved in the accident itself, she continued to work with little complaint, which he said was a tribute to her character. The fact that Mrs Bartlett took no time off and made no complaints regarding her injury did not detract from its seriousness Mr Barter argued. Rather, it demonstrated her resilience.
Mr Barter said that the subsequent onset of symptoms on 13 March 2019 was not accompanied by any “blunt force trauma”, neither was there any history of any subsequent injurious event. There was, Mr Barter said, “no other history of injury or description of work that may have contributed to the pathology established in the 2016 injury in Ms Bartlett’s statement.”
Mr Barter referred to contemporaneous medical evidence about the 2016 injury, noting that the MRI investigation indicated “extensive prepatellar bursitis” which had subsequently resolved. Further, there was a possible meniscus tear which was probably repaired by
Dr le Roux on 9 September 2019.
Dr Caldwell’s opinion could be distinguished because he did not have access to the 2016 MRI scan and discounted the suggestion that there had been a medial meniscus tear at that time. Mr Barter submitted that Mrs Bartlett’s complaints to Dr Caldwell demonstrated the existence of a painful condition which Dr Caldwell described as patellofemoral in nature, which was consistent with Dr Hyde-Page’s view that Mrs Bartlett was suffering underlying osteoarthritis in that joint.
DISCUSSION
I am unpersuaded by the reports of Dr Murray Hyde-Page. His diagnosis was predicated on an assumption that the fall suffered by Mrs Bartlett on 25 January 2016 was the equivalent of a head-on motor accident at moderate speed. I find that analogy to be somewhat ambitious. The histories taken were consistent with Mrs Bartlett’s own account that she slipped on a wet floor and fell directly onto the left knee with her right leg splayed out behind her. Whilst there is no doubt that there was some force involved, I doubt whether the physics involved would equate to the kinetic force of a motor vehicle colliding head-on at a moderate speed. If Dr Hyde-Page meant that the head-on collision was with another motor vehicle, which seems likely, then there is even further, no co-relation with the mechanics of Mrs Bartlett’s fall.
Of perhaps more moment however is that I also have reservations as to other assumptions upon which Dr Hyde-Page’s diagnosis was based. It was common ground that the 2016 injury caused prepatellar bursitis, and perhaps a small meniscal tear.
Dr Salman, whilst noting the earlier diagnosis of parapatellar bursitis, found that Mrs Bartlett had recovered.
When she sought treatment after the onset of her condition in 2019, it was common ground that the bursitis had resolved. Dr Caldwell noted the suggestion in the 2019 scan of meniscal involvement, but discounted it on the basis of his clinical findings.
Dr Hyde-Page noted that Mrs Bartlett had suffered a “significant” prepatellar bursitis in 2016 injury, but that it had settled. He did not implicate the suggested medial meniscal tear as being causative of Mrs Bartlett’s condition. He did however find that the 2016 injury was relevant because he said that it injured the patellofemoral joint and caused, as a direct result, the development of osteoarthritis therein. He conceded that the imaging in 2016 did not reveal any osteoarthritis, but only, relevantly, the bursitis. He based his assumption that the force of the blow had caused osteoarthritis to develop on the history he took in his report of 23 May 2019.
None of the histories taken, nor the account given in Mrs Bartlett’s statement, support Dr Hyde-Page’s history that between 2016 and 2019 her knee had “really” not caused her any “significant discomfort or pain.” It is clear from the conclusion Dr Hyde-Page reached that he assumed that there had been some discomfort or pain that had been caused during that period. Although he made an assumption, he did not record any history from Mrs Bartlett to that effect, neither was there any suggestion elsewhere in the evidence that she had suffered any symptoms at all between June 2016 and March 2019.
Moreover, Dr Caldwell remarked that Mrs Bartlett thought the reappearance of her symptoms was connected to the 2016 injury. However his opinion was that there was no connection. Mrs Bartlett had every opportunity to complain to Dr Caldwell that she had been symptomatic during the period, but made no such report. Further, in her statement, which I found to be informative and considered, she made no such complaint. Dr Hyde-Page’s assumption is thus unsubstantiated, and I do not accept that the injury of 25 January 2016 resulted in the development of osteoarthritis in the injured left knee. Dr Hyde-Page has simply speculated, as indeed did Mrs Bartlett herself, that because the same knee was implicated, it therefore followed that the symptom complex discovered by MRI in 2019 was connected, notwithstanding that it demonstrated different pathology from that shown in the MRI of 2016.
It follows that liability for the payment of compensation lies with the second respondent. Section 16 of the 1987 Act provides, to paraphrase, that where a disease injury as defined in s 4(b)(ii) of the 1987 Act has occurred, the employer on risk at the time of the onset of incapacity is liable, as the onset of incapacity is the date that this type of injury is deemed to have happened.
I am satisfied that the nature of the injury was the aggravation, acceleration, exacerbation or deterioration of a disease injury, namely the osteoarthritis in the patellofemoral joint compartment of Mrs Bartlett’s left knee. I endorse Mr Barter’s submission that Mrs Bartlett has shown a strong work ethic and that her stoicism is a tribute to her character. That is clear from her actions when she kept working following the 2016 injury, and indeed her attempts to keep working following the 2019 injury. I agree with Mr Barter that Mrs Bartlett showed commendable resilience in those actions, however I do not agree that I can speculate that her stoicism masked symptoms of which she made no mention.
The second issue relates to the quantum of weekly compensation to which Mrs Bartlett is entitled. The PIAWE was agreed at $1,021.67, 95% of which, pursuant to s 36 is $970.58, and 80% of which pursuant to s 37 is $817.37. The wages schedule was also not challenged, so that I accept that Mrs Bartlett’s capacity to earn in employment to which she is currently suited is represented by her actual earnings.
Mr Grant submitted that such was the proper calculation, as did Mr Barter, although his calculations were incorrect, with respect. I note that Mrs Bartlett was terminated on 9 February 2021 because she was unable to return to her full work duties, but I am satisfied that the work she was doing on light duties, namely six hours of office work per day, five days per week represents a proper measure of her ability to earn in suitable employment pursuant to s 32A of the 1987 Act.
Mr Barter suggested that there was no explanation for the drop in weekly earnings in January 2021 from $731.66 to $625.65. These amounts were alleged in the wages schedule filed by the applicant with the ARD. They were not contradicted by the second respondent. The wages schedule is prima facie evidence which I accept, and I was not referred to any evidence by the first respondent that would displace the calculations therein. Mr Barter’s submission was unsupported by evidence.
Accordingly the second respondent will pay weekly compensation as follows:
(a) for the period 10 October 2020 to 8 January 2021 at the rate of $238.92 pursuant to s 36, and
(b) the period 9 January 2021 to date and continuing at the rate of $191.82 pursuant to s 37.
The second respondent will pay the applicant’s reasonable s 60 expenses on production of accounts and receipts and/or HIC notice of charge.
There is an award in favour of the first respondent.
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