Bell v Armidale Regional Council
[2022] NSWPIC 149
•7 April 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Bell v Armidale Regional Council [2022] NSWPIC 149 |
| APPLICANT: | Kirsten Nea Bell |
| RESPONDENT: | Armidale Regional Council |
| MEMBER: | Philip Young |
| DATE OF DECISION: | 7 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for total right knee replacement surgery; applicant pleads specific date of injury and respondent relies on prior incidents of right knee injury. application by applicant to amend to include section 4 (b) of the Workers Compensation Act 1987 (1987 Act) allegation after respondent’s submissions; application to amend refused due to injustice; applicant on the evidence establishes frank injury pursuant to section 4 (a) of the 1987 Act occurring on 15 October 2020 and that work a substantial contributing factor per section 9a of the 1987 Act; Aon Risk Services, Smith v Cropper, Mecha Engineering, Hussey, Hankinson, Hockey, Rootsey considered; Held- surgery proposed is reasonably necessary medical treatment which results from frank injury on 15 October 2020. |
| DETERMINATIONS MADE: | 1. The applicant in the course of her employment with the respondent on 15 October 2020 suffered injury to her right knee within the meaning of section 4(a) of the Workers Compensation Act 1987 (1987 Act) (injury). 2. The applicant’s employment on 15 October 2020 was a substantial contributing factor to the injury. 3. The surgery proposed by Dr Rooney in his quotations of 1 November 2021 and 1 December 2021 is reasonably necessary medical treatment which results from the injury. 4. Pursuant to section 60 (5) of the 1987 Act it is declared that the respondent is to pay the costs of and incidental to right knee surgery proposed by Dr Rooney in his quotations of 1 November 2021 and 1 December 2021 respectively. |
STATEMENT OF REASONS
BACKGROUND
Kirsten Nea Bell (the applicant) is a 60-year-old lady who was employed by Armidale Regional Council (the respondent) as a librarian. She commenced work in December 2003.
The applicant makes a claim for a declaration pursuant to section 60 (5) of the 1987 Act that the respondent is liable to pay the costs of proposed total right knee arthroplasty in accordance with the quotations of Dr Rooney dated 1 November 2021 and 1 December 2021.
ISSUES
As the matter unfolded, the following issues emerged:
(a) Should the applicant be permitted to amend the Application to Resolve a Dispute (Application) to add an additional or alternative allegation that the nature and conditions of the applicant’s employment prior to 15 October 2020 constituted aggravation, acceleration, exacerbation or deterioration of the applicant’s right knee condition pursuant to section 4(b) of the 1987 Act?
(b) To what extent can the applicant establish injury within the meaning of the 1987 Act?
(c) Is the surgery proposed by Dr Rooney reasonably necessary medical treatment resulting from injury within the meaning of section 60 of the 1987 Act?
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)
The matter came for conciliation and arbitration hearing by teleconference on 24 February 2022. On that occasion Mr S Hickey of counsel instructed by Ms Waters, solicitor, appeared for and with the applicant. Mr Robison of counsel instructed by Mr Van der Hout, solicitor, appeared for the respondent. Ms Payne and Ms Caldwell were present representing Statecover.
The matter proceeded to conciliation but regrettably was not capable of resolution. I was satisfied that I used my best endeavours to attempt to bring the parties to an agreement to no avail and accordingly the jurisdiction of the Commission to proceed to arbitration hearing was enlivened.
Oral submissions were made by both counsel but because of the late emergence of the issue concerning amendment identified in 3(a) above, the matter was stood over for written submissions.
DOCUMENTS BEFORE THE COMMISSION
The following documents were in evidence before the Commission.
(a) Application and attachments lodged 2 December 2021;
(b) Reply and attachments lodged 20 December 2021, and
(c) Application to Admit Late Documents and attachments lodged 21 January 2022 admitted into evidence without objection.
ORAL EVIDENCE
No oral evidence was given.
SUBMISSIONS
Counsel for both parties made oral submissions which have been sound recorded and are available to the parties on request. After the respondent’s submissions an application was made by Mr Hickey to amend the Application to allege an alternative deemed date of injury under section 4(b) of the 1987 Act. The respondent objected to this late amendment and the Commission directed that the parties file and serve written submissions on the question as to whether leave to amend should be granted. Written submissions were received from the applicant dated 11 February 2022 [sic – 11 March 2022] and from the respondent dated 22 March 2022.
DISCUSSION AND REASONS
Proposed amendment to the Application
The applicant’s application to amend came after the respondent had concluded its submissions on the question of injury. Fundamental to the respondent’s oral submissions were the following assertions:
(a) The applicant had many years of history of pathology in her right knee up until 15 October 2020. The applicant had undergone physiotherapy in September 2020, just some weeks before the pleaded incident of 15 October 2020.
(b) Before 15 October 2020 the applicant was already waiting for surgery.
(c) The applicant in her claim form[1] concedes that she was experiencing pre-existing bilateral osteoarthritis of her knees.
(d) Dr Rooney records the fact that the applicant had been under the care of Dr Cross some years previously for which she had some surgery and an excellent outcome. Dr Rooney received a history that her knees had deteriorated over the previous four years.
(e) Dr Ferguson by report of 19 November 2017[2] notes a history of bilateral knee pain for at least two years, that is from 2015.
(f) Dr Nutukakona recorded a history of bilateral knee pain in the two years to 2019.
(g) Consultation notes record several difficulties with the applicant’s knees prior to 15 October 2020. These include reduced ability to walk,[3] physiotherapy and hydrotherapy for the applicant’s knees 5 October 2018,[4] recommend knee brace and exercise before future total knee replacement 20 September 2018,[5] knee pain but some improvement with orthotics,[6] and an X-ray of knees 8 March 2018 revealing osteoarthritic changes.[7]
(h) Prof Miniter expresses his opinion against a background history of years of profound changes in the applicant’s knees to support his conclusion in his 9 December 2021 report that the applicant is experiencing a natural progression of a constitutional condition.
[1] Application at page 41.
[2] Application at page 63.
[3] Note 8 February 2019 at page 84, Application.
[4] Application at page 86.
[5] Application at page 87.
[6] Application at page 89.
[7] Application at page 90.
It is against the above background that Mr Robison of counsel by written submissions of 22 March 2022 points to clear prejudice to the respondent if the amendment was to be permitted. Mr Robison points out that the respondent “ran a positive defence that the right knee was symptomatic before the pleaded date of injury”.[8] The prejudice is “forensic in the sense of the submissions advanced”.[9] Additionally, the respondent’s submissions made before the amendment application could be regarded as unintended admissions.[10]
[8] Respondent’s written submission at [3].
[9] Respondent’s submission at [4].
[10] Respondent’s submissions at [7].
Section 354 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) sets out principles concerning procedure before the Commission which include a requirement that the Commission act[11] “according to equity, good conscience and the substantial merits of the case…”. That has been said to give rise to a “tension between the rules applying to tribunals and those obligations applicable to courts of law”.[12]
[11] Section 354 (3).
[12] Michelle Gai Weston t/as Northmead Beauty Therapy v Szenczy [2019] NSWWCCPD 38 (President Judge Phillps at [166]).
In considering an Application for Late Amendment the plurality in AON[13] said as follows:
“It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right” (emphasis added).
[13] AON Risk Services Australia Limited v Australian National University [2009] HCA 37 at [74]-[78] cited the decision of Bowen LJ in Smith v Cropper (1884) 26 Ch D 700.
The applicant’s written submissions[14] concentrate on the issue of prejudice to the respondent having regard to, inter alia, the respondent’s knowledge of the effects of the nature and conditions of the applicant’s work in terms of her right knee injury in the period up to (and including) 15 October 2020. The applicant asserts that it is clear from the Application as well as the applicant’s section 287A request for review, the respondent’s denial notice[15] and medical reports that the respondent was aware of the effect of the nature and conditions of employment.
[14] Pages 7-16.
[15] Reply at page 1.
In my view, however, for the reasons advanced by the respondent it is clear that allowing the proposed amendment would deny the respondent proper opportunity to defend the matter having regard to the fact that the respondent’s submissions have already focused upon the case pleaded (injury on 15 October 2020).This is to the respondent’s disadvantage because those submissions point to medical conditions in existence before 15 October 2020 which, put simply, are the exact matters now sought to be pleaded by the amendment. In those circumstances my view is that the rider advanced by Bowen LJ in Cropper[16] as cited by the plurality in AON is particularly apt: “if it can be done without injustice”. To my mind, given the timing of the proposed amendment, being after the respondent’s submissions in this particular matter, would create an injustice for the respondent. That being the case, the proposed amendment is disallowed.
[16] Smith v Cropper (1884) 26 Ch D 700.
Does the applicant establish injury?
There is no evidence from the respondent disputing the applicant’s account of her duties at work in 2017, between 2017 and October 2020 and on 15 October 2020. The applicant’s statement of events and incidents to which she was subjected is therefore largely unchallenged.
Some important factual matters emerge from the applicant’s statement. In terms of the events prior to 15 October 2020 the following statements emerge. First, in 2017 the applicant was tasked with setting up a new library.[17] At that time she noticed pain using the stairs because there was no operational lift.[18] She ultimately came to specialist care in that regard. Second, although the applicant reportedly had significant knee symptoms in the 1990’s leading to surgery by Dr Cross,[19] it would seem that the applicant had quite a good result from surgery up until 2017, in particular in September 2017 when she saw Dr Ferguson and was diagnosed with bilateral knee pain, worse on the right.[20]
[17] Applicant’s statement at [41].
[18] Applicant’s statement at [42].
[19] Dr Rooney report 20 July 2018 at Application page 54.
[20] Application at page 63.
Second, the applicant in her statement refers to the installation of a passenger lift in the library in August or September 2017[21] and then in October 2019 a direction from the respondent that the passenger lift should not be used.[22]
[21] Applicant’s statement at [44].
[22] Applicant’s statement at [46].
Third, the applicant had treatment for osteoarthritis in her knees in 2017/2018[23] to the extent that even then surgery was contemplated “down the track”.[24]
[23] Applicant’s statement at [109]-[117].
[24] Applicant’s statement at [117].
The applicant gives evidence that she had been moving “an excessive number of books in the three weeks up until the reopening of the library in June 2020”.[25] However, the applicant “did not encounter any problem with [her] knees during that period and was not taking any pain killers for her knees”.[26] Finally, in the period prior to 15 October 2020 the applicant does not recall making any comment to any co-workers that her knees “were unusually sore in that period June to the beginning of October 2020”.[27]
[25] Applicant’s statement at [99].
[26] Applicant’s statement at [100].
[27] Applicant’s statement at [100].
Factors emerging from the applicant’s statement which I believe support the existence of injury on 15 October 2020 include the following. First, the applicant states that she had been able to perform her work prior to her injury on 15 October 2020. No restrictions, pain or disability is mentioned. Second, at [65]-[76] of her statement the applicant provides specific and detailed information concerning the onset of her pain on 15 October 2020 whilst moving her body on a specific occasion when attending to rearrange the shelves to accommodate a large return of books.[28] It is significant in my view that the applicant states that she was able to regularly walk for exercise, but not since October 2020.[29] In the period up until 15 October 2020 she was able to work 28 hours per week, 9.00am to 3.30pm Monday to Friday. Importantly, the applicant states that she was feeling fit and well at the commencement of her shift at 9.00am on 15 October 2020 and her “knees were feeling ok at the time”.[30] Additionally, the applicant states that since 15 October 2020 the right knee pain “is … in the back of my right knee, not like the osteoarthritis pain which was manageable”.[31]
[28] Applicant’s statement at [63]-[64].
[29] Applicant’s statement at [28].
[30] Applicant’s statement at [53].
[31] Applicant’s statement at [121].
There are further reasons to support the view that the applicant suffered a significant right knee injury on 15 October 2020. The respondent in its submissions refers to consultation notes from the general practitioner and these have been set out above in the context of the argument concerning whether amendment to the Application should be granted. There are consultation notes in reverse chronological order which appear at pages 83 to 67 of the Application. In summary, the dates of consultation of the applicant with her general practitioner and the complaints raised are as follows:
(a) 12 April 2019: prescriptions;
(b) 11 June 2019: prescriptions and family stress;
(c) 5 August 2019: headaches/ migraines;
(d) 20 September 2019: fatigue and sore throat;
(e) 3 October 2019: sore throat and productive cough;
(f) 7 November 2019: prescription;
(g) 23 December 2019: constipation and vomiting;
(h) 23 January 2020: itchy underarms, not sleeping well;
(i) 28 February 2020: follow up re underarms;
(j) 20 March 2020: scripts and dry cough;
(k) 4 June 2020: scripts and migraines;
(l) 21 July 2020: stressed at work, glands up in armpits;
(m) 27 July 2020: blisters, migraines and headaches;
(n) 27 August 2020: migraine;
(o) 21 September 2020: migraine, and
(p) 22 October 2020: knees aggravated through work.
It is notable that from 12 April 2019 through to 22 October 2020 on 15 occasions the applicant whilst regularly consulting her general practitioner did not have any occasion to complain about her knees, in particular her right knee, pain, symptoms or disability. This history in my view is simply inconsistent with the applicant suffering any significant knee symptoms during this period. It is also consistent with the applicant’s factual account concerning her knees through this period. There is an entry on 8 February 2019 concerning the applicant’s knees[32] but prior to 8 February 2019 the previous knee complaint was on 11 September 2017,[33] over three years prior to 15 October 2020.
[32] Application at page 84.
[33] Application at page 89.
Having regard to the contemporaneous evidence of the consultation notes, the existence of the applicant’s specific complaint of trauma on 15 October 2020 and her consistent account of the facts, I am comfortably satisfied that the applicant suffered injury to her right knee in a frank traumatic incident of personal injury within the meaning of section 4(a) of the 1987 Act on 15 October 2020.
Discussion regarding personal injury simpliciter
The Court of Appeal in Mecha Engineering[34] discussed the authorities relating to frank injuries which also might be said to be aggravation (etc) of pre-existing disease. Although this was in the context of apportionment of compensation between two employers, the discussion is helpful in terms of the nature of personal injury simpliciter, namely frank injury.
[34] Australian Conveyor Engineering Pty Limited v Mecha Pty Limited [1998] NSWCC 51.
Several High Court decisions dealt with the tension between personal injury simpliciter and aggravation (etc) of a disease.[35] In Hankinson[36] Barwick CJ said in relation to a worker who had suffered a long-standing spinal infection and subsequently felt acute pain while lifting a heavy package at work:
“At the outset, I would wish to say that I do not think that the facts of the matter were rightly analysed as establishing an injury by aggravation, acceleration, exacerbation or deterioration of a pre-existing disease rather than an injury in the unextended sense of the statutory definition which itself led to incapacity.” [37]
[35] See Darling Island Stevedoring & Lighterage Co Limited v Hussey [1959] HCA 55, Hetherington v Amalgamated Collieries of WA Limited [1939] HCA 36, Commonwealth v Ockenden [1958] HCA 37 (though a difference test) and other cases.
[36] Darling Island Stevedoring &Ligherage Co Limited v Hankinson [1967] 117 CLR 19 (Hankinson).
[37] Barwick CJ at [23].
A similar conclusion was arrived at in Hankinson by Taylor J,[38] namely that personal injury simpliciter can occur notwithstanding that a worker suffers from underlying disease and by Owen J[39] who observed that the collapse of the applicant’s vertebrae:
“…was as much an ‘injury’ in the ordinary sense of the word as would have been the fracture of a bone in the respondent’s leg, a bone which had been weakened or ‘honeycombed’, as one doctor described it, by some infective process”.
[38] Taylor J at [31].
[39] Owen J at [34].
Subsequent cases including Hockey[40] approved Hankinson in concluding that (Gibbs CJ at [18]) “… a sudden identifiable physiological change may be an injury if it results from some external cause during the course of employment”.
[40] Hockey v Yelland [1984] HCA 72.
The applicant’s statement provides the key to the “external cause during the course of employment”. It is clear that she had no or minimal right knee symptoms prior to attending work at 9.00am on 15 October 2020. Her injury occurred between 9.00am and 10.15am on that day.[41] The applicant in her statement says:
“75. … I recall that I had filled two bottom shelves in the 800 section. I think I was standing up and in the process of starting to fill the next shelf up, with my knees bent, when I felt a deep pain in my right knee. It felt as if something had gone in my right knee.
76. I immediately stopped what I was doing because of the pain”.
[41] Applicant’s statement at [61].
The fact that the applicant had been able to work for about 30-40 minutes without apparent disability[42] and then had a sudden deep pain in her right knee whilst standing up from a bent knees position is consistent with a sudden physiological change which to my mind is in the nature of frank injury or personal injury simpliciter, even though it might arguably be superimposed on asymptomatic or occasionally symptomatic degenerative changes in the applicant’s right knee.
[42] Applicant’s statement at [74].
The medical case and section 9A of the 1987 Act
Dr Rooney is the applicant’s treating orthopaedic surgeon. In his report of 20 July 2018[43] he noted that the applicant’s symptoms varied according to her activity levels, she was functionally independent and although keen for surgery in 2018 Dr Rooney recommended supervised physiotherapy and conservative treatment.
[43] Application at page 54.
In April 2018 Dr Rooney also saw the applicant and indicated that surgery may be required but did not proceed with that recommendation at that time. A report of Dr Rooney of 26 February 2021 records that since the initial onset of osteoarthritis the applicant had been tolerating her knee pain but significantly contains a history of the specific incident involving a sudden onset of pain in the applicant’s right knee in October 2020. Dr Rooney refers to the results of an MRI scan of 12 January 2021 noting significant arthritis, but in addition a tear of the medial meniscus and a sub-chondral fracture of the right knee. Dr Rooney in this 26 February 2021 report noted a history that the applicant’s symptoms had been unchanged up until October 2020.
Dr Rooney’s acceptance of the applicant’s unchanged symptoms up until October 2020 provides support for the applicant’s case, in my view, that the sudden episode of injury on 15 October 2020 was of some significance. Additionally, Dr Rooney’s recording of the medial meniscus tear and sub-chondral fracture of the right knee in addition to the applicant’s degenerative arthritis indicates that these additional pathologies were probably of some moment in the applicant’s overall presentation and occurred on 15 October 2020.
Dr Hopcroft examined the applicant for independent medical opinion. He noted that X-rays of 8 March 2018 confirmed osteoarthritic changes, slightly worse on the right. He noted the applicant had opted for conservative treatment up until October 2020 and then the history of the incident on 15 October 2020 when the applicant suffered severe sudden pain in the right knee. Dr Hopcroft specifically noted the results of the MRI scan of 12 January 2021 which in addition to osteoarthritic changes exhibited specific right knee pathology. Dr Hopcroft agreed with Dr Rooney’s recommendation of right knee total knee replacement surgery which he thought was a result of the applicant’s work activities on 15 October 2020 which had caused superimposed pathology and aggravated and exacerbated pre-existing pathology.
The applicant’s general practitioner, Dr Fisher, by certificate dated 5 February 2021[44] refers to the applicant’s physiotherapy with Ms Maunder and comments that the MRI “suggests knee replacement needed as the tears have pushed timeframe for replament [sic, replacement] forward”.
[44] Application page 45.
Prof Miniter saw the applicant at the insurer’s request on 11 March 2021. The history given included that the applicant experienced more pain in her right knee in October 2020. He thought it possible that her employment was an aggravating factor but more likely that the applicant was experiencing a natural progression of osteoarthritic changes.
A significant difficulty with Prof Miniter’s opinion is that on the single consultation of 8 March 2021[45] he only obtained a history in relation to the 15 October 2020 incident as follows:
“She was involved in reorganising a substantial number of books and she told me that as she was doing so, she found significant increase of pain in her right knee”.
Prof Miniter’s consultation was on 8 March 2021. He could not have had the benefit of the description of the precise mechanism of injury set out in the applicant’s statement at paragraphs 65-76 because his consultation and report occurred about a week before the insurer received the applicant’s statement. His opinion is therefore at the disadvantage of not knowing (beyond the history set out above) that the applicant suffered a sudden severe pain in her right knee, referred to by Dr Hopcroft in his report of 21 July 2021.[46] Dr Hopcroft was able to note “sudden severe pain in her right knee”.[47] Prof Miniter, if he obtained that history, does not record it and his conclusion in the absence of that history must be in my view a deficient conclusion.
[45] Application at page 95.
[46] AALD at page 3.
[47] AALD at page 3.
For that reason, I am inclined to prefer Dr Hopcroft’s opinion over that of Prof Miniter, especially having regard to the applicant’s uncontested factual evidence in her statement and the absence of any significant right knee complaint for a long period as I have referred to in discussing the consultation records. Additionally, it is notable in my view that Prof Miniter in his report of 11 March 2021 fails to take into account the sub-chondral fracture and medial meniscus demonstrated in the MRI of 12 January 2021, whereas Dr Hopcroft in his report of 21 July 2021 makes specific reference to this obvious pathology. Additionally, the recommendation of Dr Rooney after consultation on 26 February 2021 was that the sudden deterioration “in her right knee function (is) due to the superimposed pathology on her past historical changes”.[48]
[48] AALD at page 3.
With those matters in mind and having regard to the test in section 9A of the 1987 Act, I have come to the view that the applicant’s employment on 15 October 2020 was a substantial contributing factor to the applicant’s injury. There is in my mind a “direct chain of causation” between the event described by the applicant and her compensable injury.[49] I am therefore of the view that section 9A of the 1987 Act is satisfied.
[49] Rootsey v Tiger Nominees Pty Limited (2002) 23 NSWCCR 725 (Neilson J) at [731].
Section 60 and the need for surgery
The respondent referred to paragraph 119 of the applicant’s statement in submitting that whilst the applicant claims that it was not until 15 October 2020 that the urgency for surgery was more apparent, the facts are that the applicant was already waiting for surgery and had been receiving physiotherapy a few weeks earlier.
I have already outlined Dr Rooney’s position concerning surgery before 15 October 2020 and factual matters detailed in the applicant’s statement concerning how she was physically coping before 15 October 2020. The medical evidence consists of Dr Rooney’s current recommendations for surgery to the applicant’s right knee as well as Dr Hopcroft’s opinion that right knee total knee replacement is reasonably necessary as a result of her work activities on 15 October 2020. In addition, there is Dr Fisher’s opinion[50] that the specific pathology noted on the MRI scan of 12 January 2021 has pushed the timeframes for this surgery forward.
[50] Application at page 41.
Prof Miniter’s opinion concerning surgery does not cavil with the need for surgery itself other than to say that the applicant has a constitutional issue which is not work related. The respondent did not advance in its submissions any suggestion that the surgery itself was not reasonably necessary. In those circumstances and in view of what I have decided regarding the significance of the 15 October 2020 injury I accept Dr Hopcroft’s opinion that the proposed total knee replacement surgery is reasonably necessary as a result of the applicant’s injury which occurred on 15 October 2020.
FINDINGS AND ORDERS
(a) The applicant in the course of her employment with the respondent on 15 October 2020 suffered injury to her right knee within the meaning of section 4(a) of the 1987 Act.
(b) The applicant’s employment on 15 October 2020 was a substantial contributing factor to the injury.
(c) The surgery proposed by Dr Rooney in his quotations of 1 November 2021 and 1 December 2021 is reasonably necessary medical treatment which results from the injury.
(d) Pursuant to section 60 (5) of the 1987 Act it is declared that the respondent is to pay the costs of and incidental to right knee surgery proposed by Dr Rooney in his quotations of 1 November 2021 and 1 December 2021 respectively.
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