Bosevska v ISS Property Services Pty Ltd
[2021] NSWPIC 420
•19 October 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Bosevska v ISS Property Services Pty Ltd [2021] NSWPIC 420 |
| APPLICANT: | Slavica Bosevska |
| RESPONDENT: | ISS Property Services Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 19 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for permanent impairment compensation; whether applicant suffered injury to right knee in the course of her employment with the respondent; Held - the applicant suffered an injury in the course of her employment; although the precise date of injury is not known, the respondent does not allege any prejudice arises from that uncertainty, and the evidence relied on by the applicant in support of her claim was known to the respondent and dealt with by its medical expert before the commencement of proceedings; Castro v State Transit Authority (NSW) referred to; although the applicant had pre-existing degenerative changes in her right knee, the evidence discloses they were asymptomatic at the time of injury, and that those changes were aggravated by the injurious events at issue; as such, the applicant’s employment was the main contributing factor to the aggravation of that condition; Federal Broom Co Pty Ltd v Semlitch and Motor Body Repairers (NSW) Pty Ltd v Raymond referred to; Zickar v MGH Plastic Industries Pty Ltd (Zickar) referred to; matter remitted to the President for referral to a Medical Assessor to determine the applicant’s permanent impairment to the right lower extremity (knee). |
| DETERMINATIONS MADE: | 1. The applicant suffered an injury to her right lower extremity (knee) and scarring (TEMSKI) in the course of her employment with the respondent on or about 3 December 2014. 2. The matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: Date of injury: on or about 3 December 2014 Body systems referred: right lower extremity (knee) Method of Assessment: whole person impairment |
STATEMENT OF REASONS
BACKGROUND
The applicant in this matter seeks permanent impairment compensation in respect of an alleged injury to her right leg, said to have taken place on or about 3 December 2014 together with associated scarring brought about by surgery.
The applicant alleges that she was pulling a series of full, heavy bins to a bin station in the course of her employment with the respondent when she suffered an injury to her right knee. In September 2015, the applicant came to have arthroscopic surgery to her right knee at the hands of Dr Szonor.
The applicant reported the incident to the respondent on 8 December 2014 and in the incident report form indicated the date of incident on that 3 December 2014. There is, however, some confusion as to the precise date of injury. For reasons which follow, I do not consider that anything turns on the uncertainty surrounding the precise date of injury, and the respondent did not allege any substantive prejudice arose from it.
By section 78 notice dated 2 June 2021, the respondent disputed liability for the alleged injury, relying on section 4 of the Workers Compensation Act 1987 (the 1987 Act). The respondent also disputed whether the applicant's employment was a substantial contributing factor to any right knee injury, pursuant to section 9A of the 1987 Act In the case of any alleged injury by way of disease process or aggravation to a disease process, the respondent denied the applicant’s employment was the main contributing factor to her injury.
ISSUE FOR DETERMINATION
The parties agree that the only issue in dispute is whether the applicant suffered an injury to her right knee in the course of her employment, to which was either the main contributing factor or a substantial contributing factor.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 25 August 2021. 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.
At the hearing, Mr J Trainor of counsel instructed by Mr C Chidiac appeared for the applicant and Mr D Saul of counsel instructed by Mr T Murray appeared for the respondent.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents.
Oral Evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the applicant suffered an injury
The applicant submitted her case was a simple one, namely that she suffered an onset of symptoms to her right knee on or about 3 December 2014 while she was moving a number of large bins up a ramp in the course of her employment. The applicant's evidence concerning the onset of her injury was as follows:
"I work [sic] from 10:00 am to 1:00 pm doing my normal duties. About 1:00 pm, I had emptied about 24, 120 litre bins into a 240 litre bin and I was walking around the food courts pulling the 240 litre bin. I was at a small ramp that leads to the bin area and the 240 litre bin was full of rubbish. When it is full of rubbish it is heavy and harder to pull. In pulling the bin I had my right hand holding the top of the bin and I am walking to the side and slightly to the front of the bin dragging it along.
I had walked the area of the ramp where there is a slight incline. The flooring is smooth concrete. The ramp is about 15 m long, and at the end of the ramp is the area where the trucks reverse in to collect the bins. I had walked halfway up the ramp and pulling the bin and I then felt a sharp pain on the inside of my right knee. At the time that I felt the pain I was walking normally and I felt the pain when I put my right foot on the ground. There was no one else around at the time."
The applicant states that she ended up taking the bin to the top of the ramp and leaving it there, before taking hold of an empty 240 litre bin and walking it back down to the food court. She described the pain in her right knee as not being persistent, but rather being "off and on". She described the pain as being sharp to the inside of her right knee when she felt it, and it felt like it was inside the joint. The applicant stated she continued to work for the rest of her shift until 6:00 pm, and the pain continued on and off throughout the remainder of that shift. She states she did not report the occurrence of the pain to her right knee on the day of the injury because she thought was “nothing and would get better".
The applicant stated her symptoms persisted and she consulted her general practitioner, Dr Awada, who referred her for x-rays. She did have a cortisone injection on 7 December 2014 at her general practitioner Dr Awada’s surgery. She states the injection did not work.
Mr Trainor submitted that the evidence satisfied the test for an injury as set out in section 4 of the 1987 Act and this matter therefore fell within the decision of Roche DP in Jaffaire v Quality Castings Pty Ltd [2014] NSWWCCPD79 and should be the subject of a referral to a Medical Assessor.
For his part Mr Saul for the respondent submitted that the finding of injury can only be made when there was not only an injurious event but also relevant pathological change.
The respondent submitted that the general practitioner notes reveal complaints by the applicant of right knee pain, worse with walking and climbing on 29 November 2014. He noted there was no reference to any work-related incident in that clinical note.
I note, however, that caution must be taken when relying upon the notes of treating practitioners in terms of histories provided to them. Whilst it is true that there is no contemporaneous clinical record referring to an incident at work, it is apparent that the applicant reported the incident to the respondent within several days of it taking place.
The respondent provides no evidence or submission to the effect that anything of significance turns upon the precise date of injury. Nevertheless, it is true that the applicant bears the onus of proving on the balance of probabilities that the injury took place.
“Injury” is defined in s 4 of the 1987 Act as follows:
“In this Act: injury means
(a) personal injury arising out of or in the course of employment,
(b) includes a “disease injury”, which means:(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
There is a useful review of the authorities concerning the issue of injury in Castro v State Transit Authority (NSW) [2000] NSWCC 12; (2000) 19 NSWCCR 496 (“Castro”). That case makes clear that what is required to constitute “injury” is a “sudden or identifiable pathological change”. In Castro a temporary physiological change in the body’s functioning (atrial fibrillation: irregular rhythm of the heart), without pathological change, did not constitute injury.
Consistent with Castro, the decision in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (“Kear”) added:
“In any event, the authorities do not support the proposition that, on its own, an elevation in blood pressure is a personal injury. That is because, without more, it is not a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. It is no more than a temporary physiological change in the body’s functioning, similar to the atrial fibrillation that occurred in Castro, without any accompanying lesion or pathological change (Castro at [138]).” (at [60])
The respondent submitted that the history obtained by Dr Porteous concerning the applicant's injury being a frank incident is not born out by the radiological evidence. Dr Porteous took the following history in his report dated 16 March 2021:
“Mrs Bosevska said then on or around the end of November or beginning of December 2014, she was pulling a moderately-sized bin with her right hand on it and as she was pulling it about halfway up the ramp, she suddenly had sharp pain occur in the posterior lateral and anterior right knee and upper foreleg.
Despite the pain she said she was able to pull the bins to the top of the ramp but she was limping. She said she continued till the end of the shift but had ongoing pain. She said she thought it was going to go away and said she did not report it. The pain did not go away.
She said she continued working for a bit but when it was not getting better she attended her General Practitioner, Dr Awada, with pain in the knee. She said she then had cortisone injection into the knee. She had some blood tests. She was given pain relief.
With the ongoing pain, she was then referred to see Dr Geoffrey Rosenberg. He saw her on 4 February 2015. He noted that X-ray showed loss of the medial compartment height and an MRI showed degeneration of the medial compartment condyle and a degenerate posterior horn tear of the medial meniscus. He recommended a surgical knee arthroscopy.
Subsequently, she saw Dr Szomor in May 2015 at St George Private Hospital, who recommended initially non-operative management but then subsequently recommended arthroscopy.
Mrs Bosevska had a knee arthroscopy at Sutherland Hospital, with the operation record notes on file indicating it occurred on 10 September 2015. The arthroscopy report of the right knee noted a medial femoral condyle large chondral defect down to bone, which was debrided. In the medial meniscus, there was a tear of the posterior horn and there was a partial meniscectomy undertaken.
She said after she recovered from the surgery, it helped a bit for a while; however, she had ongoing knee pain and was not able to get back to work.”
The radiological reports in the matter confirm the findings as recorded by Dr Porteous.
The respondent submitted, there was very little which suggests a traumatic event which gave rise to the work injury. Rather, Mr Saul submitted that if there was an injury it was more in the nature of an aggravation of underlying degenerative process, and this type of injury has not been pleaded by the applicant.
The difficulty with that submission is, firstly, the Commission is not a court of strict pleading. Secondly, the report of Dr Porteous was served with the applicant’s letter of claim dated 31 March 2021, and as such the respondent was well aware from that time of the medical basis upon which the applicant brings her case. Thirdly, Dr Porteous’ report was provided to Dr Wilcox, the respondent’s IME. That much is clear from Dr Wilcox referring to Dr Porteous’ report in his own, which is attached to the Reply and dated 11 May 2021. Dr Wilcox concluded:
“As discussed in the 28 March 2015 report, this sequence of events does not indicate
that there was any specific work aggravation of the pre-existing degenerative arthritic disease affecting the right knee. Neither does it indicate that her duties as a cleaner would have been a substantial contributing factor for the development of advanced osteoarthritic change within the right knee as found by arthroscopic inspection in September 2015. This followed a period of being at home, mainly resting for the previous nine months.”
I note, however, that there is very little evidence which in anyway contradicts the applicant’s statements concerning the mode of her injury. The respondent offers no eyewitness evidence to contradict the applicant's version of events, save for the statement of Mr Germano, the applicant’s supervisor dated 28 January 2015. In that statement, Mr Germano states that the first knowledge he had of the applicant suffering an injury was when she approached him in the food court in or about mid-December 2014 and mentioned she had a sore knee but not know how she had suffered the injury.
I reject that statement of Mr Germano, as it contradicts the respondent's own contemporaneous document, namely the incident report – initial notification dated 5 December 2014, which reveals the description of injury as “Clearly she was taking full bins across to the bin area and felt cramp on right knee". It is therefore apparent his recollection of the applicant not reporting her injury until doing so verbally until mid-December 2014 is inaccurate, as is his evidence surrounding the mode of injury, given the incident report form dated 8 December 2014 specifically records the onset of symptoms as taking place while the applicant was “taking full bins across to the bin area and felt cramp on right knee.”
The applicant’s claim form dated 19 January 2015 noted the date of injury as 29 November 2014, however, despite this discrepancy with the incident report form, the mechanism of injury as described is consistent, namely “Pulling full 240LT bin to the bin station (area).”
The respondent noted the applicant attended her general practitioner again on 30 December 2014, at which time the clinical entry stated “right knee pain worse following further trauma: medial joint tenderness? meniscal lesion work is physically demanding arrow further trauma". Mr Saul submitted that absent a finding of trauma at or around the date of injury pleaded, the applicant's case must fail. However, it is noted that the GP entry on 30 December 2014 explains the trauma suffered by the applicant to which the entry refers is her work duties.
Mr Saul submitted the Commission would prefer the view of the respondent's IME Dr Wilcox. He first examined the applicant in January of 2015. In doing so, he noted the MRI of the right knee taken that month which showed:
“… extensive grade 3 chondral wear within the medial compartment. The degenerative changes extending to the sub articular bone where there is sclerosis and some possible marrow oedema. The medial meniscus is degenerate especially in the posterior horn where there is an undisplaced horizontal tear as well as a small vertical tear. The edge of the meniscus is truncated and frayed. Apart from the presence of fluid in the medial collateral ligament bursa suggestive of reactive bursitis, the rest of the knee appeared to be within normal limits".
Dr Wilcox was of the view the “main contributing factor producing the right knee pathology and her current complaints, is the pre-existing and progressive, degenerative disease within the medial compartment in the medial meniscus".
The difficulty with Dr Wilcox's opinion is that the medical and lay evidence establishes on balance that the applicant’s right knee was asymptomatic before the incident at work involving the bins. There is no evidence to suggest her knee was symptomatic before the incident where she was moving the bins, and it is trite to say a specific incident may cause an aggravation to an underlying condition. While there is reference to degrative changes present in a right knee X ray from 2009 against a background of nocturnal pain, there is no evidence of ongoing symptoms in any of the clinical records between that time and November 2014. I have no difficulty accepting the applicant’s right knee was asymptomatic up to the injury at issue.
The respondent also submitted that another reason to prefer Dr Wilcox’s views to those of Dr Porteous was that Dr Wilcox examined the applicant twice, including a short time after the incident at issue. However, Dr Wilcox’s first report primarily addresses the cause of the degenerative changes in the applicant’s knee rather than the reason for any aggravation. As noted in a long line of authority commencing with the High Court decision in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 through to Commission decisions such as Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132, it is necessary to examine the cause of an aggravation, rather than the underlying condition which it affects.
In my view, the facts of this matter are analogous to those in Gibson v Royal Life Saving Society of Australia [2009] NSWWCCPD137. Although the respondent in this matter argues that the applicant did not suffer an injury to her right knee because she has not demonstrated a pathological change in those parts of her body, I note that soft tissue strains are themselves pathological conditions capable of sustaining a finding of injury. Moreover, an injury may result from an aggravation of a disease process, such as degenerative changes in the right knee and is capable of sustaining finding of injury under section 4(a). See for example Rail Services Australia v Domovski and Another [2004] NSWCA267 at [68].
In light of the decisions in Gibson and that in Domovski, in my view the respondent's submission in this matter is not sustainable. As already noted, the applicant's version of events is not adequately challenged by any lay evidence on the part of the respondent. As noted by the applicant's general practitioner Dr Awada in his report, “the pathology revealed by the MRI indicates that the injury is developed over a period of time. The incident on 30/12/2014 [SIC] was a tipping point that uncovered the extent of the damage that was done to the knee over several months". The history recorded by Dr Awada and indeed by the other practitioners in this matter is consistent. That includes the history provided to Dr Rosenberg, treating orthopaedic surgeon and recorded in his report of 4 February 2015. In that report, Dr Rosenberg noted the applicant was carrying heavy bins up a ramp when she developed a sharp pain in her right knee.
On balance, I am of the view that the medical evidence in this matter supports a finding that the frank incident suffered by the applicant on or around 3 December 2014 in the course of her employment rendered symptomatic the underlying conditions of her knee, and as such, that she suffered an injury in the course of her employment to the body part on that day. That is, there was a symptomatic aggravation of an asymptomatic knee.
The facts of this matter are analogous to those in Zickar v MGH Plastic Industries Pty Ltd (Zickar) [1996] HCA 31; 187 CLR 310. In that case, the worker suffered brain damage due to the rupture, at work, of a congenital aneurism. The congenital condition could be characterised as a disease, however that would not have satisfied the requirements of clause (b) of the definition in section 4 as it then was. The worker succeeded in the High Court on the basis that the rupture itself could be described as an injury simpliciter. The Court held that the presence of a disease did not preclude reliance upon the event of the rupture as a personal injury. Toohey, McHugh & Gummow JJ agreed with a passage in Accident Compensation Commission v McIntosh [1991] 2 VR 253 that, “it is nonetheless a rupture – something quite distinct from the defect, disorder or morbid condition, which enables it to occur” (at [262]). The terms “personal injury” and “disease” are not mutually exclusive categories. A sudden identifiable physiological (pathological) change to the body brought about by an internal or external event can be a personal injury and the fact that the change is connected to an underlying disease process does not prevent the injury being a personal injury”.
In this matter, the medical evidence is sufficient on balance to establish the presence of an injury as that term is defined in section 4 of the 1987 Act. Whilst the radiological studies also demonstrate what appear to be longstanding degenerative changes, the clinical records make it clear the applicant had not complained of right knee changes before the incident at issue since approximately 2009.
Mr Saul submitted there was complaint in the clinical records in late November 2014, such as to cast doubt on whether the incident at issue in fact caused the applicant’s problems or whether they simply came upon her in the normal course of events. However, there is no question the precise date of injury in this matter is not known, but that it was on or around the date pleaded. Nevertheless, the applicant plainly reported the incident to the respondent, and her version of events is both consistent and substantively uncontested. In the circumstances, I am satisfied on the balance of probabilities that the evidence establishes the applicant suffered injury to her right knee as alleged in the course of her employment with the respondent.
SUMMARY
For these reasons, the Commission finds that the applicant suffered an injury to her right lower extremity (knee) in the course of employment with the respondent on or about 3 December 2014 and will order that the matter be remitted to the President for referral to a Medical Assessor to determine any whole person impairment arising from that injury.
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