Bogdanovic v Transdev Melbourne
[2021] VMC 18
•20 December 2021
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION OF COURT
Case No. M10408797
| VERA BOGDANOVIC | Plaintiff |
| v | |
| TRANSDEV MELBOURNE PTY LTD | Defendant |
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MAGISTRATE: | M A HOARE |
WHERE HELD: | Melbourne (via WebEx) |
DATE OF HEARING: | 24, 27 – 28 September 2021 |
DATE OF DECISION: | 20 December 2021 |
CASE MAY BE CITED AS: | Bogdanovic v Transdev Melbourne |
MEDIUM NEUTRAL CITATION: | [2021] VMC 18 |
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CATCHWORDS – Workers Compensation – Rejected Claim – Right knee and consequential psychological injury – Bus driver involved in motor vehicle accidents on multiple dates in course of employment - Whether injury in the course of or arising out of employment – Whether employment a significant contributing factor to a recurrence, aggravation, acceleration, exacerbation or deterioration of pre-existing injury or disease - Capacity – Delay in lodgement of claim - Credit of the Plaintiff – Workplace Injury Rehabilitation and Compensation Act 2013, ss 3(1), 20(8), 39(1), 40(3)(c), 160, Sched.1, Clause 25.
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APPEARANCES: | COUNSEL | SOLICITORS |
For the Plaintiff | Mr B Johnson | Arnold Thomas & Becker |
For the Defendant | Mr B McKenzie | Minter Ellison |
HER HONOUR:
Introduction and Overview
1 For over forty-five years, Ms Bogdanovic was a bus driver for her employer, Transdev Melbourne Pty Ltd (or prior owners) (‘Transdev’), having commenced in 1977. By Amended Statement of Claim dated 7 May 2021, Ms Bogdanovic pleads injury to her right knee and consequential psychological injury against Transdev as follows:
a. As a result of transport accidents that occurred in the course of employment, including an incident on or about 9 October 2019 (‘the first accident’);
b. Arising over the course of employment due to the accidents that occurred on 9 October 2019 (‘the first accident’); 17 April 2019 (‘the second accident’); and 6 July 2020 (‘the third accident’).
2 Relief is sought under the Workplace Injury Compensation and Rehabilitation Act 2013 (Vic) ‘the Act’ in respect of two WorkCover claims, both rejected, as follows:
a.A claim for ‘right leg – knee’ dated 17 July 2020 (‘the first claim’) relating to the first accident was rejected by notice dated 17 April 2019.
b.A claim for ‘right knee’ dated 26 February 2021 (‘the second claim’) relating to ‘throughout the course of employment on the dates of each of the first, second and third accidents’.
3 By way of Amended Notice of Defence dated 24 August 2020, Transdev relied on the following grounds: no injury had been sustained; employment was not a significant contributing factor; she was not incapacitated; or, any such incapacity, did not result from nor was materially contributed to any work-related injury. Transdev also relied on a defence under s.20(8) of the Act in relation to the delay in lodging the claim.
Evidence of Ms Bogdanovic
Born in former Yugoslavia, Ms Bogdanovic, now aged 76 years, came to Australia in 1970 having previously worked as an accountant. Her long service as a bus driver had been acknowledged over the years with two ‘years of service’ awards. In 2019, she featured in a Transdev internal promotional exercise as an example of a good driver.
At the time of the events that were the subject of this claim, Ms Bogdanovic had been in minor accidents whilst driving buses although none causing injury. She had experienced prior intermittent right shoulder symptoms. There was no history of prior complaints of right knee symptoms.
First Accident - 9 October 2019
On 9 October 2019, at about 2:35 pm, Ms Bogdanovic was driving a bus for Transdev when she collided with the rear of a stationery vehicle that had braked due to a car in front of it stopping. She applied the brakes hard, feeling under extreme pressure to avoid the collision.
Ms Bogdanovic was wearing a lap seat-belt. She is not a tall person and tended to position the driver’s seat positioned quite close to the steering-wheel. Her whole body moved to the front and her right knee hit the steering-column.
When asked about any pain immediately afterwards, she described ‘extreme stress, I experienced something I cannot explain, my whole body was in shock’.
After the impact, the bus could not be driven due to the automatic door not working. She called Transdev’s operation centre to report the collision.
During examination-in-chief, two CCTV films (‘the CCTV films’) from cameras on the bus were shown.
In the first film (date-stamped 9 October 2019 and commenced at 2:36 pm), the bus is proceeding along the road with built-up traffic ahead. There is an apparent disruption in the footage. The bus is then stationary behind two other stopped vehicles. There are two men standing on the road talking and Ms Bogdanovic is seen walking around the road area taking photos of the bus and the other vehicles.
The second film, also date-stamped 9 October 2019 and commences at 2:36 pm, is from a different angle. Ms Bogdanovic is seated in the driver’s seat and the bus is proceeding along the road. Again, there is an apparent disruption in the footage. Then the bus is stationery. Between 2:39 pm and 2:41 pm, Ms Bogdanovic is on her mobile phone, standing on the bus near the driver’s seat. She gets off the bus and comes back in. She stands on her right foot with her left leg in the air and leans forward over the barrier reaching for something.
In cross-examination, Ms Bogdanovic was questioned regarding the CCTV films showing her walking around outside the bus without apparent pain or difficulty, walking up and down the curb and standing on both legs. Ms Bogdanovic denied she had experienced no pain. She said she had pain, was in shock and was stressed. When it was put to her there was no sign of right knee pain, she said she had pain in her whole body.
In response to her call to the operations centre, Mr Kodi Kulatunga, a Transdev manager from the nearby Sunshine West depot, attended the scene. He drove her back to the depot in a car.
Back at the depot, Ms Bogdanovic signed a Transdev ‘vehicle accident claim form’ dated 9 October 2019 which was completed by Mr Kulatunga based on what she told him. The hand-written description stated: ‘front vehicle suddenly stop. I braked even ending up collided with the front vehicle (Taxi) ending up Taxi’. There was a diagram to mark the damage to the bus. Mr Kulatunga had also signed the form.
In cross-examination, Ms Bogdanovic said the reason she hadn’t filled in the form herself was because she was in bad shape. She disagreed the reason there was no mention of injury was because there was no injury.
After spending a while at the depot, she drove herself home. She took the next day off work and resumed her normal duties and hours.
In cross-examination, Ms Bogdanovic agreed Ms Huseinovic, another manager, telephoned her to see how she was feeling. She told Ms Huseinovic she felt stressed but okay. She agreed she did not tell Ms Huseinovic about any right knee trouble. That was because she did not tell anyone.
Disciplinary Meeting - 22 October 2019 (‘October 2019 Meeting’)
In cross-examination Ms Bogdanovic agreed that on 22 October 2019 she participated in a meeting with Mr Kulatunga and Ms Huseinovic about the first accident (‘the October 2019 meeting’). A co-worker, Mr Rajwinder Singh, was present as her support person. After a discussion, the decision was made that Ms Bogdanovic was ‘completely at fault’ and she was issued with a ‘first written warning’.
That outcome was contained in the document headed ‘Team Member Disciplinary Notice’ of the same date. The two-page Notice tendered into evidence had a ‘DRAFT’ water-mark printed in diagonal across each page. It recorded that Ms Bogdanovic was ‘apologetic and took full responsibility for the accident’ and also that she ‘agreed and accepted’ the outcome including the issuing of the warning.
In cross-examination, Ms Bogdanovic disagreed that the form that was an accurate record of what was discussed.
Ms Bogdanovic agreed she didn’t mention any right knee injury or problem at the October 2019 meeting. The reason for avoiding mention of having suffered an injury because she wanted to work.
Other Events after the First Accident
On 19 February 2020, she saw her usual GP, Dr Frank Marano, at the High Street Medical Centre complaining of a painful, swollen right knee. A history was recorded as follows: ‘[H]ad MCA with bus a couple of months ago when went into back of car but didn’t have problems then; is on holidays now and has been doing a lot of walking…’ Anti-inflammatory medication was prescribed and an x-ray and ultrasound was arranged.
In cross-examination, she denied having told Dr Marano she had been doing a lot of walking while on holiday.
At the time, Ms Bogdanovic tried to get Dr Marano to fill out WorkCover forms, but he told her he ‘did not do WorkCover’. Then, due to the COVID-19 pandemic restrictions from March 2020, she was unable to see doctors in person and didn’t do anything more.
Prior to the 19 February 2020 GP attendance, she had pain in right knee and took Panadol daily. However, she didn’t take it seriously and thought the knee would get better. The swelling in her right knee had begun early in the New Year in 2020.
In cross-examination, Ms Bogdanovic was questioned about three attendances at the High Street Medical Centre in the intervening period between the first accident and the 19 February 2020 GP attendance.
On 21 November 2019, she saw a Dr Wu complaining of being tired and stressed at work. She was issued with an ordinary medical certificate. In cross-examination, Ms Bogdanovic denied that if she had knee trouble after the first accident, she would have told Dr Wu. The reason she didn’t tell the doctor about her knee was that he would have stopped her working.
On 16 December 2019, she saw a podiatrist at the High Street Medical Centre regarding nail care and a corn.
On 28 January 2020, she saw Dr Marano for a ‘Drivers Medical’ involving completion of a driver’s medical form for renewal of her licence. He certified her fit to drive. In cross-examination, she agreed she made no complaint about her knee to Dr Marano. That was because she might not have been cleared as fit to drive nor get renewal of her licence. She was wearing slacks on 28 January 2020 and Dr Marano would not have noticed any knee swelling.
Second Accident - 17 April 2020
On 17 April 2020, Ms Bogdanovic was driving a bus across the Westgate Bridge when a truck moved into her lane and cut her off. She had to hit the brakes hard. One of the mirrors on the side of the bus was clipped and broke. She was wearing a lap seat-belt and her body moved forward. She hit the steering-column with her right knee when applying the brakes. She was able to keep driving the bus.
After this incident, she had knee pain which was worse than before.
During cross-examination, a CCTV film date-stamped for 17 April 2020 was shown. Ms Bogdanovic was seen from a side-profile seated in the driver’s seat at the time the bus is clipped. She disagreed the film did not show her body moving forward.
A Transdev ‘vehicle accident claim form’ dated 17 April 2020 was completed by Ms Bogdanovic which stated: ‘On Westgate Bridge van was travelling in high speed hit mirror – not stopping…’
In cross-examination, Ms Bogdanovic was taken to clinical records of various telephone consultations (because of the pandemic) on Dr Marano between 6 May 2020 and 23 June 2020. On these dates, she complained of right knee pain and swelling. She agreed there was no history of the second accident. On 6 May 2020, there is a reference to WorkCover for the first time. Dr Marano records telling Ms Bogdanovic that he does not do WorkCover or TAC matters. On 14 May 2019, she complained of knee pain after a nine-hour shift the day before.
In cross-examination, Ms Bogdanovic agreed that she continued her normal duties but had knee pain and was limping from about January or February 2020. It was put to her that Mr Harpreet Singh (who took over Mr Kulatunga’s role) had never observed her limping. She said that was incorrect and ‘everybody could say she was limping’.
Reporting on 26 June 2020
On 26 June 2020, Ms Bogdanovic reported right knee symptoms from the first accident to Mr Harpreet Singh. Mr Singh told her she needed to see her GP. She saw Dr Marano and obtained a letter from him dated 26 June 2020 which she gave to Transdev. The letter referred to a diagnosis of ‘osteoarthritis of the knee’ and stated that she was ‘fit to perform her normal bus driving duties’.
Third Accident - 6 July 2020
On 6 July 2020, Ms Bogdanovic was driving the bus on the exit ramp of the Westgate Bridge making a right-hand turn when a semi-trailer changed into her lane. She swung the bus to the right to avoid a collision. She went hard on the brakes and twisted her leg in the process. The bus clipped the side-barriers.
When asked about pain afterwards, she had more pain in her right knee. She could no longer walk and had to be on medication constantly.
In cross-examination, a CCTV film date-stamped 6 July 2020 was shown. Ms Bogdanovic was seen from a side-profile seated in the driver’s seat at the time. She disagreed that the film did not show her body moving forward saying it was not a true video.
A Transdev ‘vehicle accident claim form’ dated 7 July 2020 was completed by Ms Bogdanovic which described turning right from the freeway and scratching the panel of the bus on a barrier.
Meetings in July 2020
In cross-examination, Ms Bogdanovic agreed that she participated in two meetings after the third accident (‘the July 2020 meetings’). She was shown a document headed ‘Meeting Record’ dated 13 July 2020 signed by her and two other employees of Transdev.
On 10 July 2020, she met with the area manager, Mr Moazzam Mohammed and the driver manager, Mr Harpreet Singh. After a discussion, the meeting was deferred so a training/assessment session could take place that day. On 13 July 2020, she again met with Mr Harpreet Singh and also a support person, Mr Jaspreet Singh. It was confirmed that she had been assessed as competent at the training/assessment session. Accordingly, the decision was to re-issue the prior written warning.
In cross-examination, Ms Bogdanovic agreed there was no mention by her of any right knee issue. That was because they only discussed the bus and there was nothing about whether she had been injured.
Accident on 14 July 2020 and Ceasing Work
Whilst driving a bus, Ms Bogdanovic was trying to do a U-turn when she clipped and broke a side-mirror. After this, she felt stress and pain in her right knee and stopped work.
In cross-examination, she agreed that she didn’t suffer any injury in the accident on 14 July 2020, saying that she had already suffered the injury.
Ms Bogdanovic did not work again for Transdev after 14 July 2020. This was because of pain in her right leg. She could not walk. She was limping as she had been from about February 2020. She was under heavy stress.
Subsequent Events and Treatment
In July 2020, Ms Bogdanovic began seeing another GP, Dr Samuel Youssef, at the Calder Medical Centre. In September 2020, she consulted Mr David Booth, orthopaedic surgeon, having been referred to him by Dr Youssef.
On 25 January 2021, she underwent arthroscopic surgery to her right knee performed by Mr Booth.
By letter dated 19 February 2021, Transdev informed Ms Bogdanovic her employment was terminated following a medical assessment on 12 January 2021. Transdev advised that ‘due to physical injury’ she was unable to perform the inherent requirements and duties of a bus driver.
Since that time, she had worked for no other employers, nor had she looked for work.
In cross-examination, Ms Bogdanovic was questioned about whether she intended to retire prior to the first accident. She was taken to two clinical notes of the High Street Medical Centre.
On 26 April 2017, she had seen Dr Marano about various medical issues including blood pressure management. The history recorded that she was planning to retire next year and wanted to use up her sick leave.
On 2 July 2018, she saw Dr Marano about medical issues. The history included work stress and thinking that ‘people wanted to get rid of her’. It was recorded that she planned to work until the end of the year, taking long service leave then retiring. The history also recorded that she loved her work and had decided she wasn’t going to stay home after her mother died in 2009.
Ms Bogdanovic denied having any plans to retire in the months prior to the first accident. She loved work and did not want to stop.
Defendant’s Lay Evidence
Mr Kulatunga’s evidence
Mr Kulatunga had been a training coordinator with Transdev until late November 2019 when he took a voluntary redundancy package.
He recalled attending the scene of the first accident with the workshop manager. The bus could not be driven and the vehicle struck by the bus had to be towed from the scene. When he arrived, Ms Bogdanovic was standing on the road directing traffic around the bus. He asked her whether she was okay. She had told him she was okay and didn’t need medical assistance.
Mr Kulatunga drove her back to the depot. Ms Bogdanovic had seemed ‘kind of freaked out’ and so he filled out the vehicle accident form. She had said sorry and that she felt bad about the bus. Mr Kulatunga had offered to drive her home but she drove herself after an hour or so at the depot.
Mr Kulatunga called her the next day to see whether she was okay and able to return to work. At no stage at the depot nor on the phone did Ms Bogdanovic mention anything about a right knee injury or any other injury.
Mr Kulatunga was based at the depot. Through the windows, he watched the drivers going to and from the buses. He also spent time around the drivers on breaks in the lunch-room. At no time had he noticed Ms Bogdanovic limping between the time of the first accident and November 2019 (when he finished up).
In cross-examination, he conceded that if a driver such as Ms Bogdanovic had been limping, he would not have much opportunity to see that.
As for the reporting of injuries by staff, forms were always available outside the office window for employees to pick up and complete at any time. There was no basis for employees to be fearful or reluctant about reporting any injuries. For a time, there had been an issue for Transdev involving employees going on WorkCover and falsely staying on light duties.
In cross-examination, Mr Kulatunga denied Ms Bogdanovic would have any reason to be fearful about reporting an injury. There were various managers whom employees could approach.
As for the October 2019 meeting, Mr Kulatunga had conducted the meeting during which the CCTV film was viewed. Ms Huseinovic took hand-written notes of the discussion and outcome. Afterwards, the type-written Notice was created.
In cross-examination, Mr Kulatunga could not explain why the Notice had the ‘DRAFT’ watermark across it, saying that was the template. If Ms Bogdanovic had not agreed with the decision and the issuing of a warning, then it would have been recorded that she did not agree.
Mr Kulatunga agreed, in cross-examination, that the CCTV film shown in the October 2019 meeting had an apparent disruption at the point of collision. What was important was that the film had showed the bus continuing to proceed even though the traffic in front of it had stopped.
Mr Singh’s evidence
Mr Harpreet Singh, currently unemployed, had been a driver manager employed by Transdev from November 2019. He had finished up in the role in June 2021. Part of his role at the depot level was responsibility for injury management including WorkCover issues.
Mr Singh had been notified by Ms Bogdanovic of her right knee problem when she spoke with him on 26 June 2020. She reported a right knee injury from the accident on 9 October 2019. Ms Bogdanovic described having to stop suddenly and her right leg being pushed into the section under the steering-wheel. She told him about having a ‘bone crushed’.
In cross-examination, Mr Singh was questioned about a prior signed statement made by him on 11 August 2020 to an investigator for the WorkSafe agent (which was tendered into evidence by the plaintiff). He agreed he had declared at the time the statement was true and correct. He had then stated that Ms Bogdanovic explained to him on 26 June 2020 that she hadn’t reported the injury earlier because ‘she was more worried about the accident’. Ms Bogdanovic had also told him she wanted to continue to work and she had been ‘worried she would be in trouble’.
Once she reported the injury, Ms Bogdanovic was asked to see her GP. That was the usual practice for employees when an injury was reported. This was to ensure employees were fit to carry out their duties. Mr Singh had given her a form to complete if she wished to proceed with WorkCover.
Ms Bogdanovic was a well-known staff member to everybody. Mr Singh would see her around the depot many times. At no stage between November 2019 and 14 July 2020 had he noticed her having any trouble walking.
As for the July 2020 meetings, Mr Singh had written up the document headed ‘Meeting Record’. After the first meeting on 10 July 2020 and the assessment that Ms Bogdanovic was competent, the meeting resumed on 13 July 2020. The first warning was then re-issued. Mr Singh’s recollection was that Ms Bogdanovic had understood the outcome and signed the ‘Meeting Record’ document.
In cross-examination, Mr Singh said employees could refuse to sign such documents if they did not agree with what was recorded.
In cross-examination, Mr Singh was asked whether there was a known issue with employees falsely claiming light duties. He agreed there were people who took advantage, however there was a system for people who genuinely require assistance.
Ms Huseinovic’s evidence
Ms Huseinovic, a driver manager currently employed by Transdev, recalled the October 2019 meeting with Ms Bogdanovic. She had taken contemporaneous hand-written notes which she used to prepare the type-written Disciplinary Notice. She did that the same morning. It was an accurate record of what had taken place at the October meeting and she could not explain the presence of the ‘draft’ water mark.
Ms Bogdanovic never reported any injury at the time of the October meeting or any time thereafter. She had never observed her limping or having any problem with her right knee or leg.
In cross-examination, Ms Huseinovic agreed that after an injury, medical clearance would be required. As for whether there had been a problem with false light duties claims, she said agreed there may have been a perception of that. As for what followed if a view was formed an employee maybe falsely claiming light duties, there would be an investigation and it could lead to someone not being able to work.
In re-examination, she said that if a light duties certificate was provided by an employee, then suitable duties would be arranged.
Medical Evidence Tendered by the Plaintiff
Mr David Booth, orthopaedic surgeon, prepared letters to Dr Youssef dated 28 September 2020; 6, 25 and 30 November 2020; and 7 and 14 December 2020. The history was of driving a bus in October 2019 which ran into the back of a car which had stopped suddenly. She had stress and some pain, with symptoms starting in January 2020. He was unable to comment on the particulars of the accident due to ten months having elapsed. The diagnosis on the MRI scan of 20 July 2020 was of a medial meniscal tear and effusion. Arthroscopy on 25 November 2020 also revealed severe osteoarthritis and severe articular cartilage damage which was impinged upon by the tear. He opined that it was hard to tell what had come first, which was probably all part of the degenerative process. The osteoarthritis was a combination of traumatic as well as degenerative. On examination in December 2020, the knee remained swollen and Ms Bogdanovic was having difficulty.
Dr Samuel Youssef, treating GP, prepared reports dated 22 October 2020 and 15 September 2021, as well as a practitioner form dated 12 January 2021. The history was of injury while driving a bus on 9 October 2021. She continued working, informing her employer and former GP, Dr Marano. After another accident on 6 July 2020, she was unable to keep working. As for causation, he opined that injury was related to work to his knowledge and based on the patient’s reporting. The diagnosis was a complex crush-type tear of her right knee. As of 15 September 2021, anti-inflammatory medication was being prescribed and she remained unfit for her pre-injury duties.
Mr John O’Brien, orthopaedic surgeon, prepared medico-legal reports for the plaintiff dated 14 April 2021 and 6 May 2021. On 9 October 2021, the bus she was driving collided with a stationery vehicle. She was shocked and stressed. At the time she was not aware of any physical injury. After that, she had mild right knee pain but no swelling. She resumed normal duties which she was able to do because she was seated. Knee pain slowly increased until she became aware of a limp. There was a history of the second accident (on 17 April 2020) after which her GP told her to continue with Panadol and anti-inflammatories. She kept working with increasing right knee pain. After the accident on 6 July 2020, she returned the bus to the depot and stopped work. As for diagnosis, he viewed the radiology including the MRI and opined there was aggravation of pre-existing osteoarthritis. The first accident was the cause of the aggravation and the precipitating cause of the symptoms. Neither subsequent accident appeared to play a causal role. There was a permanent incapacity for pre-injury employment and a low probability of resuming any employment.
Radiology reports were tendered including an initial x-ray of 19 February 2020 and ultrasound of 27 February 2020 showing joint effusion and the MRI scan of 20 July 2020.
Medical Evidence Tendered by the Defendant
Dr Frank Marano, former GP, prepared an orthopaedic referral letter dated 23 June 2020 noting increasing right knee pain and swelling although actively working. There was the letter of 26 June 2020 confirming fitness to work referred to in the evidence of Ms Bogdanovic.
Dr Umberto Boffa, occupational physician, prepared an initial medico-legal report of 12 August 2020 following a telephone interview (due to the pandemic). She reported driving with her seat adjusted fully forward. She gave a history of injury on 9 October 2019 when striking her knee against the dash when braking in traffic. Symptoms were aggravated in accidents on 17 April 2020 and 6 July 2020. The diagnosis was of a new or traumatic medial meniscal tear of the right knee with aggravation of previously asymptomatic pre-existing right knee osteoarthritis. The condition was caused by the first accident and aggravated by the subsequent accidents. She was fit for part-time non-driving duties.
In a supplementary report of 21 August 2020, Dr Boffa revised his opinion after viewing the CCTV films for all four accidents. He observed she was tightly held in her seat by the lap seat belt and, while her seat bounced, she did not move forward relative to her seat. He noted no discernible knee injury when she was walking around afterwards. He concluded that he could not see how she could have struck her knee against the dash and opined that the knee was not injured in the various accidents.
Dr Dush Shan, psychiatrist prepared a medico-legal report of 25 May 2021 after a telephone interview. There were no problems driving prior to the accident on 9 October 2019. She had wanted to keep working both before and after that accident. When the bus hit the rear of the car in front, her knee hit a part of the dashboard beneath the steering-wheel. It was opined that there was no diagnosable psychiatric disorder nor any incapacity related to psychiatric symptoms.
Dr Ian Dickinson prepared a medico-legal report of 21 July 2021 and a supplementary report of 28 July 2021. The CCTV films for all four accidents were provided. There was a history of the first and subsequent accidents. There had been right knee pain after the first accident and she thought she must have hit her knee under the steering column. After the second accident, she was worried about her job and wanted to stay at work. After the third accident, she had a lot of stress and was limping. On examination, there was pain and swelling typical of osteoarthritis. Having viewed the CCTV films of the accidents, he opined there was no likelihood of a right knee injury with any of the accidents. As for capacity, he concluded there would be restricted capacity for pre-injury employment. None of the accidents materially contributed to any incapacity for pre-injury employment.
Legislative Framework
The legal and evidentiary onus of proof rested with Ms Bogdanovic to establish, on the balance of probabilities, an entitlement to compensation for injury in accordance s.39(1) of the Act. She needed to discharge the burden of proof in relation to incapacity for pre-injury employment. She also had to prove that incapacity resulted from or was materially contributed to by the injury pursuant to s.160 of the Act.
The starting point was to determine the nature of ‘injury’ under the Act as that is the basis for deciding the correct test as to causation. Injury, as defined in s.3(1) of the Act, includes a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
In the event of a finding of a pre-existing, degenerative condition of the right knee, Ms Bogdanovic was not entitled to compensation unless she established, on the balance of probabilities, that employment was a ‘significant contributing factor’ to the diagnosed injury. That was in accordance with s.40(3)(c) of the Act.
Factors that must be considered in determining whether employment is a ‘significant contributing factor’ are set out in Clause 25 of Schedule 1 to a worker’s injury. Those are:
a. the duration of the current employment;
b. the nature of the work;
c. the particular tasks of the employment;
d. the probable development of the injury occurring if that employment had not taken place;
e. the existence of hereditary risks;
f. the lifestyle of the worker; and
g. the activities of the worker outside the workplace.
Legal Principles
It is well-established, as the Court of Appeal made clear in St Mary’s School v Askwith, that consideration of the ‘significant contributing factor’ test involves resolution of an essentially factual enquiry, the question being one of degree, requiring evaluation[1]. As Ginnane J stated in Sensis Pty Ltd v Jones, in applying Ashley JA’s analysis in Askwith: ‘The existence of other contributing factors does not preclude a finding that a worker’s employment was a significant contributing factor’.[2] Certainly, it is well-established law that the Act recognises ‘a multiplicity of causes’.[3]
[1][2011] VSCA 90 at [13]
[2][2018] VSC 754 at [93].
[3]Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [58]
As for what is meant by the adjective ‘significant’ in terms of assessing the weight of the contribution of employment, the Court of Appeal has held that it must be of ‘considerable amount or effect.’[4]
[4][2011] VSCA 90 at [14].
In assessing the medical evidence, I am guided by the principles in Pulling v Yarra Ranges Shire Council.[5] In particular, I note the obligation to examine the whole of the medical evidence even where it may have been undermined by other evidence, including evidence that the worker may not have been fully frank with a doctor.[6]
[5] [2018] VSC 248 at [50] to [55]
[6] Ibid at [50]
In discharging the burden of proof, Ms Bogdanovic needed to persuade me that her evidence was credible and reliable. She also needed to establish the reliability of the histories given to the medical witnesses, whose opinions were premised on the accuracy of her accounts to them. The plaintiff’s credit was therefore of critical importance. That has been confirmed by the Court of Appeal in cases of this kind many times, most recently in Johns v Oaktech Pty Ltd.[7]
Analysis
[7][2020] VSCA 10 at [76]
The primary basis for the attack on Ms Bogdanovic’s credit related to the lack of any contemporaneous complaint of injury, the lengthy delay in the reporting of any injury and delayed lodgement of the claims. Accordingly, Ms Bogdanovic was cross-examined rigorously regarding her account of the circumstances of each of the accidents, the onset and progression of symptoms and the other factors in Clause 25.
In essence, the defendant submitted that the Court ought to find, on the whole of the evidence, that Ms Bogdanovic was not a credible nor reliable historian. This was apparent from the lack of any contemporaneous or corroborative complaint of injury as well as the various inconsistencies in her evidence on disputed matters.
Certainly, it is true that some inconsistencies and apparent contradictions arose in Ms Bogdanovic’s evidence under cross-examination. These included:
a. Her denial that the ‘Disciplinary Notice’ of 22 October 2019 was an accurate record of the discussion at the meeting. That was in contradiction of her confirmation of her signature on the Notice that she ‘agreed and accepted’ the outcome of the October 2019 meeting including the warning. In this regard, I prefer the evidence of both Mr Kulatunga and Mr Singh that it would be recorded in the document if an employee either did not agree or disputed the outcome.
b. Her denial that in the GP attendance on 19 February 2019 she told Dr Marano she had been doing a lot of walking on holiday.
c. Her evidence of her knee pain being worse after the second accident was not corroborated in histories in attendances at Dr Marano’s clinic between 6 May 2020 and 23 June 2020. In contrast, she does mention knee pain and swelling after a nine-hour shift.
d. The apparently contradictory history obtained by Mr O’Brien on 14 April 2021 that Ms Bogdanovic was ‘not aware of any physical injury’ after the first accident. That was in contrast to her evidence of pain at the time and taking Panadol for knee pain prior to seeing Dr Marano on 19 February 2020.
e. Various inconsistencies in the histories regarding the mechanism of the accidents from ‘no physical injury’ to Mr O’Brien, ‘striking her knee against the dash’ to Dr Boffa and ‘she thought she must have hit her knee under the steering column’ to Dr Dickinson. There was also a muddled history to Dr Youssef with no reference to the second accident and the reporting that the third accident was the trigger for ceasing work when that was later.
Having the benefit of observing Ms Bogdanovic whilst she was giving evidence to the Court, I formed the view that she was an honest witness. I accept that there were inconsistencies in her evidence particularly in relation to the different accidents which in part I attribute to the inevitable lapse in memory over time and in part to the pressures of sustained cross-examination. I accept there is a basis for some reservations on some aspects of her evidence given these inconsistencies.
An example was her evidence that ‘she could not walk’ by the time she ceased work. In my view, she did not intend to convey she literally could not walk but rather that by then she could not walk without some pain or difficulty. At no stage did I gain the impression that she was attempting to deliberately mislead the Court or to exaggerate her symptoms or lack of work capacity.
Similarly, when Ms Bogdanovic gave a history to Mr O’Brien in April 2021 that she was ‘not aware of any physical injury’ after the first accident, that accords with her evidence that she did not take it seriously and thought her symptoms would go away. It is also consistent with the initial history taken by the treating surgeon, Mr Booth, ‘of stress and some pain, with symptoms starting in January 2020’.
Of course, it was submitted further by Counsel for Transdev that the CCTV films not only did not corroborate – but squarely contradicted - Ms Bogdanovic’s account of injury being causally related to the first and subsequent accidents. That was certainly the basis for Dr Boffa reversing his initially supportive opinion in terms of causation. The films were also influential in Dr Dickinson’s opinion there was ‘no likelihood of a right knee injury with any of the accidents’.
In essence, there were two grounds of attack based on the CCTV films particularly of the first accident. Firstly, there was a lack of observable movement of Ms Bogdanovic’s body moving forward relative to the seat. Secondly, the films showed her afterwards walking without apparent difficulty, standing, leaning and moving up and down the curb.
It is convenient at this point, therefore, to make some observations on the CCTV films. In his opening address, Counsel for Ms Bogdanovic contended that the apparent disruption in the films at the critical point of impact compromised the overall evidentiary value of the films.
Having viewed the films, I am not able to agree with Ms Bogdanovic’s Counsel at least in regard to the apparent disruption. I agree there was apparently some malfunction or jolt at the moment of impact that disrupted the CCTV films.
However, as Mr Kulatunga said in evidence, the films of the first accident do show the bus proceeding forward whilst the line of traffic in front had come to a halt. That has led to Ms Bogdanovic having to apply the brakes apparently with some suddenness. That conclusion was recorded by Mr Kulatunga in the contemporaneous account (as told by Ms Bogdanovic) in the vehicle accident form.
I formed a favourable impression of Mr Kulatunga who I considered to be as a credible witness. He had ceased to be employed by Transdev and so was impartial in that sense. He made appropriate concessions such as saying, if Ms Bogdanovic had been limping, he would not have had much opportunity to see that.
Overall, in terms of the CCTV films, my opinion was that they were of little real assistance in relation to the mechanism of the injury in the first (and subsequent) accidents. On the one hand, I accept there was no observable view of Ms Bogdanovic moving forward in her seat (although it could have occurred at the point of disruption). However, equally importantly, there is simply no line of sight or visibility of the lower body or legs behind the barrier to the driver’s seat.
I find that the CCTV films – as well as the promotional photographic material featuring Ms Bogdanovic tendered into evidence – do corroborate Ms Bogdanovic’s evidence that it was her habit to sit in quite close proximity to the steering-wheel.
I find that the first accident involved a collision of reasonably substantial impact requiring the vehicle in front needing to be towed and the bus not being driveable (on Mr Kulatunga’s evidence).
Accordingly, weighing the whole of the evidence, I find it not only plausible, but likely, that Ms Bogdanovic’s knee did hit or was pushed into the steering-column in the first accident.
On the other hand, it is apparent, as Counsel for Transdev also submitted, that Ms Bogdanovic is not obviously or immediately affected by pain or symptoms giving rise to any observable physical consequences. That is apparent from the CCTV films of her walking around taking photographs, standing while on the phone and going up and down the curb. She even took on the role (as Mr Kulatunga confirmed) of standing in the middle of the road directing traffic.
Having found Ms Bogdanovic was an honest witness, I accept her account (repeated at several points of her evidence) that her immediate reaction to the first accident involved ‘stress’ or ‘shock’. Her evidence in examination-in-chief was of feeling ‘extreme stress… something I cannot explain, my whole body was in shock’. She also said at one point she had pain in her ‘whole body’. Her evidence was that the reason she did not fill in the vehicle accident form herself was due to being in ‘bad shape’. That was corroborated by Mr Kulatunga who said she seemed ‘kind of freaked out’ afterwards. There is reference to stress or shock in the histories of Mr Booth, Mr O’Brien and Dr Dickinson.
In my view, weighing the whole of the evidence, I am not persuaded that there is necessarily a contradiction, as was suggested by Counsel for Transdev, between Ms Bogdanovic’s seeming composure after the first accident and her evidence of being shocked and stressed. I accept the evidence was that her immediate concern was the damaged bus, reporting the collision and damage to the bus and, as a conscientious bus driver, taking all appropriate steps. That accords with Mr Kulatunga’s account that she said she was ‘sorry and felt bad about the bus’.
It seems to me that Ms Bogdanovic’s immediate shock or stress at least in part explains some of her subsequent confusion regarding the precise mechanism of the first accident. For example, she openly says to Dr Dickinson ‘she thought she must have hit her knee on the steering-column’.
Weighing the whole of her evidence, I find Ms Bogdanovic’s state of shock or stress was a plausible consequence of the unexpected collision itself. I also find her stress was likely connected to her worrying about the implications of the accident on her employment. As it happened, on the evidence of what followed, Ms Bogdanovic’s worry was well-founded. Within days of the first accident, a disciplinary meeting was conducted at which she was issued with a first written warning.
Another attack on Ms Bogdanovic’s credit related to the apparent implausibility of, first, her repeatedly saying she was okay or fine on the day of the first accident and thereafter and, second, of making no report of injury from the first accident to her employer until 26 June 2020.
It seems to me, after a consideration of all of the evidence, that there were, broadly, three explanations for this.
Firstly, in terms of her initial lack of reporting, I have already referred to Ms Bogdanovic’s shock and stress and her concern about having been in an accident at all, the damage to the bus and any impact on her employment.
On that issue, I also rely on Mr Singh’s evidence. I formed a favourable impression of Mr Singh as a truthful witness. Like Mr Kulatunga, he had ceased to be employed by Transdev and was therefore impartial in that sense. In my view his evidence (contained in his prior statement) was corroborative of Ms Bogdanovic’s own evidence about why she hadn’t reported any injury sooner. His evidence was ‘she was more worried about the accident’, that she wanted to keep working and she was ‘worried she would be in trouble’.
Secondly, in terms of the delayed reporting, I find that Ms Bogdanovic had a strong and genuine motivation to keep working, as Dr Shan recorded, ’both before and after [the first] accident’. Ms Bogdanovic was working well beyond what might be termed the usual age of retirement. I accept her evidence that she had no plan to retire, loved her work and had no wish to leave the workforce.
In further support of that finding, I also rely on the evidence that, once she reported the injury (on 26 June 2019) to Mr Singh, she sees her GP the same day. When she saw Dr Marano, she asked him for a ‘statement to say she can work’.
Thirdly, in terms of Ms Bogdanovic’s delayed reporting of injury because of a fear it would stop her working, the evidence was that once there was a report of injury, a medical clearance would be required (as occurred on 26 June 2020). That was also the evidence of Ms Huseinovic who said a medical clearance was needed after an injury report. That was Ms Bogdanovic’s evidence, in cross-examination, that she didn’t mention any injury during the October 2019 meeting because she wanted to work and feared having to stop.
Fourthly, I refer to the evidence (according to the High Street Medical Centre records) that Ms Bogdanovic needed to undergo an annual ‘Drivers Medical’ on 28 January 2020 (some three months after the first accident). It seems likely, based on the whole of evidence, that a long-standing employee such as Ms Bogdanovic would have had an awareness of an upcoming annual renewal of her licence.
For completeness, I note that all three lay witnesses for Transdev gave evidence about an actual or perceived problem at the depot with some employees falsely claiming light duties. I do not make a finding one way or another about that matter as it is unnecessary to do so. What was important, as I have already stated, was the evidence of both Mr Singh and Ms Huseinovic that a medical clearance would be required in the event of an injury being reported.
It is convenient to state at this point that, whilst Ms Huseinovic’s evidence was of limited scope, I found her to be a credible witness who, whilst still a current employee of Transdev, gave her evidence in a direct and open manner. I accept her evidence that the Disciplinary Notice was an accurate record (notwithstanding the ‘draft’ watermark) of the discussions at the meeting about the first accident.
Finally, in terms of the plaintiff’s credit and her continuing to work without reporting or complaining of injury, I find that Ms Bogdanovic was a stoic individual who was determined to keep working in spite of right knee symptoms. In this regard, I refer to Dwyer v Calco Timbers Pty Ltd (No 2) where Nettle JA remarked: ‘it would be unfortunate, and in [our] view wrongheaded … if such an applicant were treated less favourably than another who, being of less strength of character simply resigned himself to his injury.’[8]
[8] [2008] VSCA 260 at [3]
Having made findings in relation to credit, I now turn to firstly to injury and then causation.
Nature of Injury and Diagnosis
Radiological reports referred to various diagnostic findings of the right knee. The initial ultrasound of 27 February 2020 showed mild to moderate joint effusion. The MRI report of 20 July 2020 included a complex crush-type tear of the medial meniscus, moderate chondral wear and moderate to marked joint effusion.
Opinions as to diagnosis were provided by two orthopaedic surgeons: Mr Booth and Mr O’Brien. The other orthopaedic surgeon, Dr Dickinson, does not appear to make a formal diagnosis. In my view, Mr Booth was best placed, as the treating surgeon, to arrive at a diagnosis which was based not only on the MRI report of 20 July 2020 but also the November 2020 arthroscopy. He found additional pathology including severe osteoarthritis with articular damage impinged upon by the meniscal tear. His opinion, which I accept, was that the pathology was ‘probably all part of the degenerative process’ and also that the osteoarthritis was ‘a combination of traumatic as well as degenerative’. Mr O’Brien’s opinion was also that a diagnosis involved an of aggravation of pre-existing changes based on the MRI.
Whilst Dr Boffa (as an occupational physician) was not an orthopaedic specialist, he also makes a diagnosis in a similar vein to that of Mr Booth. He opined there was a ‘new or traumatic medial meniscal tear’ with aggravation of previously asymptomatic pre-existing right knee osteoarthritis.
I find that the nature or diagnosis of Ms Bogdanovic’s injury was of a right knee condition involving an operated complex crush-type tear of the medial meniscus and aggravation or exacerbation of pre-existing degenerative change including osteoarthritis.
While Ms Bogdanovic’s pleadings referred to a ‘consequential psychological condition’, that was not the subject of either of the claim forms nor, therefore, of the WorkCover Agent’s notices. Accordingly, I do not consider that is a matter about which I have jurisdiction to make a finding.[9]
[9]Robinson v SPI [2012] VMC 30
In any event, for completeness, I note that, Dr Shan, the only psychiatrist to provide an opinion, considered there was no diagnosable psychiatric disorder.
Causation and Significant Contributing Factor
Having found the diagnosis of the right knee condition involved aggravation of underlying and pre-existing degenerative change, the legal and evidentiary burden of proof to be discharged by Ms Bogdanovic was that her employment was a significant contributing factor to the aggravation of underlying degenerative pathology.
In terms of causation, the plaintiff’s case relied on three separate incidents or events as having been causative of her injury: the first accident and/or the second accident and/or the third accident.
I will deal with each of the accidents in turn as that is the basis on which the plaintiff’s case is pleaded. I will also consider the medical evidence in relation to causation.
Role of first accident
In relation to causation and the medical evidence, Counsel for Transdev submitted that it was ‘very significant’ that Dr Marano was not called to give evidence. That was because Dr Marano was the treating GP of many years who had treated Ms Bogdanovic before and after the first accident, also the subsequent two accidents.
Counsel for Transdev relied on the authority of O’Donnell v Reichardt[10], particularly the following statement of Gillard J:
[T]he defendant should as a matter of commonsense be entitled to rely on the absence of proof of the treating doctors as a basis for the jury to draw an adverse inference that the plaintiff’s advisers were afraid to call the doctors, that if they had done so and the doctors had gone into the witness box that evidence would probably be unfavourable to the plaintiff…[11]
[10] (1975) VR 916
[11]Ibid at p.921
It would be entirely inadequate for the plaintiff to submit that Dr Marano ‘did not do WorkCover’. Irrespectively, Dr Marano ought to have been called.
Counsel for Ms Bogdanovic submitted that Dr Marano’s unwillingness to involve himself in the Workcover process was very plain from clinical notes of discussions with Ms Bogdanovic on various dates: 6 May 2020; 26 June 2020; and 4, 5 and 6 August 2020.
Further to that, it was submitted, Dr Marano’s scepticism was apparent from the clinical notes. For example:
·On 6 May 2020: ‘…says can’t walk – as she walks up the steps from her car to accept the CT scan referral I’ve just done!’
·On 3 August 2020: ‘She went to another doctor and had MRI which shows “crush around knee” and referred her URGENTLY to specialist. Yeah right!’
However, it was submitted that it did not necessarily follow that Dr Marano’s view was that Ms Bogdanovic’s knee injury was not work-related. As for his ‘yeah right!’ response to Ms Bogdanovic’s reporting of the ‘crush’ diagnosis, the evidence was that the MRI report (which he did not see) did describe the pathology as a ‘complex crush-type tear of the medial meniscus’.
Regarding Dr Marano, I accept the submissions of both Counsel.
Dr Marano was the treating GP for at least a decade and until the end of Ms Bogdanovic’s employment with Transdev. With the consent of the plaintiff, the defendant tendered into evidence his clinical records for over a decade going back to 2010. The plaintiff, with the defendant’s consent, tendered all the notes relating to complaints of the knee (including those referred to previously expressing scepticism). The plaintiff, as I noted, did not resile from Dr Marano’s apparent scepticism.
In any event, as I have found Ms Bogdanovic to be an honest witness, it is of course a matter of evaluation of the whole of the medical and other evidence in accordance with the guidance referred to previously in Pulling.[12]
[12]Ibid
In my view, Dr Youseff’s evidence was of minimal evidentiary weight on the issue of causation given he does not commence treating Ms Bogdanovic until 15 July 2020 (the day after she ceased work). He had accepted what she had reported to him.
On causation, it is true that Mr Booth, as the treating surgeon, did not feel able to comment on the particulars of the first accident due to ten months having elapsed. On the other hand, he assessed the nature of the pathology in a considered way. His opinion, which as I have said I found persuasive, was whilst it was probably all part of the degenerative process, the osteoarthritis was a combination of traumatic as well as degenerative.
I find, based on Mr Booth’s opinion, that Ms Bogdanovic’s right knee condition was contributed to by trauma as well as underlying degeneration.
Of course, the question still remains as to the role of the first accident in terms of the ‘evaluation’ exercise referred to in Askwith.[13] That is particularly so given the following evidence:
[13][2011] VSCA 90 at [13]
· Mr Booth obtained a history of ‘symptoms starting in January 2020’ following stress and some pain after the first accident;
· The first complaint to Dr Marano of knee problems was not until 20 February 2020. On that date, the history is of a road accident with a bus ‘a couple of months ago but didn’t have problems then’ and then of being ‘on holidays now and … doing a lot of walking’;
· Mr O’Brien’s history of not being ‘aware of any physical injury’ after the first accident but of ‘mild right knee pain’ without swelling.
Ms Bogdanovic’s evidence was that she took Panadol and believed she would recover. In January 2020, her symptoms had progressed so that she had swelling and increased pain. I find it likely that when she was on annual leave she would do more walking than when sedentary for most of the week as a bus-driver. I find that her increased walking at this time was a contributing factor in terms of sub-clauses 25 (f) the life-style of the worker; and 25(g) activities outside the workplace.
Of course the existence of other contributing factors does not preclude a finding that employment (specifically the first accident) was a significant contributing factor.
I turn to sub-clause (d) and the probability of the injury occurring if the first accident had not occurred.
Also in relation to this factor, whilst the evidence is that Ms Bogdanovic had seemingly advanced underlying degeneration of her right knee, I find persuasive the absence of any documented prior complaints of right knee symptoms in a decade of attendances at the High Street Medical Centre.
As for the other medical opinions on causation, I have already referred to Dr Boffa’s opinion that the meniscal tear was ‘new or traumatic’ with aggravation of the underlying degeneration. His original view was that the condition was ‘caused by the first accident’. Given my findings about the CCTV films earlier, I do not accept his later revised opinion nor the opinion of Dr Dickinson that ‘the knee was not injured in the various accidents’.
Finally, weighing the whole of the evidence, I consider that the first accident was significant in the sense of being of ‘considerable amount or effect’. In this regard, I refer to my findings that: the first accident was a collision of reasonably substantial impact; and that it was not only plausible, but likely, that Ms Bogdanovic’s knee did hit or was pushed into the steering-column in the first accident.
In arriving at that finding, I am also persuaded by Mr O’Brien’s opinion, based on a detailed history, considered that the first accident was ‘the cause of the aggravation’. For completeness, I note that Mr O’Brien (unlike Mr Boffa and Dr Dickinson) did not see the CCTV films but against that I refer to my findings about the evidentiary value of the films themselves.
I also refer to my acceptance of Ms Bogdanovic’s credible account that she worked on with some mild or intermittent pain. That was her consistent account to Dr Marano, Mr Booth and Mr O’Brien and also Dr Dickinson.
Again, in light of my previous findings in relation to Ms Bogdanovic’s credit as a witness and weighing the whole of the evidence, I find that the first accident was a significant contributing factor to the diagnosed injury or condition.
Role of second and third accidents
Weighing the whole of the evidence, I find that the second and third accidents were probably contributing factors to the right knee condition, but neither was significant in the sense of being ‘of considerable amount or effect’ as was the first accident. I make that finding based on the following evidence:
·Unlike the reporting of the first accident, there is no history of the second accident (on 17 April 2020) given to Dr Marano in attendances about her knee between 5 May 2020 and 23 June 2020. Whilst she does refer to having done a nine-hour shift the day before on one occasion, she does not mention the second accident.
·In reporting the injury to Mr Singh on 26 June 2020, she mentions the first accident but the second as being related to her symptoms.
·The second accident is not contained in the initially history to Dr Youssef in July of 2020.
·Mr O’Brien’s opinion that ‘Neither subsequent accident appeared to play a causal role’.
·The evidence regarding the actual circumstances of the second and third accident support a finding of much lesser impact collisions involving in the second, a broken side-mirror and in the third, clipping a side barrier.
Capacity
161 The weight of evidence satisfies me that Ms Bogdanovic has no capacity for her pre-injury full-time duties as a bus driver. There was no real dispute on that issue as there was no medical opinion to the contrary on that question.
162 Additionally, essentially for the reasons previously stated, I find that employment (the first accident) was a material contributing factor to her incapacity.
Conclusion
163 Ms Bogdanovic suffered injury to her right knee in the nature of an operated complex crush-type tear of the medial meniscus and aggravation or exacerbation of pre-existing degenerative change including osteoarthritis and her employment with Transdev (with a nominated injury date of 9 October 2019) was a significant contributing factor to her injury.
164 She had an incapacity to perform her pre-injury duties from 15 July 2020 and such incapacity resulted from or was materially contributed by the injury. She is entitled to weekly payments of compensation in accordance with the Act.
165 She is also entitled to reasonable medical and like expenses in accordance with the Act.
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