Bradley v Direct Freight (Aust) Pty Limited
[2022] NSWPIC 102
•11 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Bradley v Direct Freight (Aust) Pty Limited [2022] NSWPIC 102 |
| APPLICANT: | Patrick Bradley |
| RESPONDENT: | Direct Freight (Aust) Pty Limited |
| MEMBER: | Paul Sweeney |
| DATE OF DECISION: | 11 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Worker alleges rupture of previous anterior cruciate ligament |
| DETERMINATIONS MADE: | 1. The applicant suffered injury to his right knee namely a rupture of a previous anterior cruciate ligament graft arising out of and in the course of his employment on 9 November 2020. 2. As a result of that injury year the applicant has been incapacitated for work from 9 November 2022 date and continuing. 3. Respondent to pay the applicant weekly compensation in accordance with his pre-injury average weekly earnings. 4. Liberty to apply in respect of this entitlement. 5. Respondent to pay the applicant’s medical and hospital expenses pursuant to section 60 to include the cost of and incidental to surgery to the right knee proposed by Dr Dao. |
STATEMENT OF REASONS
INTRODUCTION
Unwitnessed injuries which occur early on a Monday morning always attract suspicion from an employer. More so when closed-circuit television (CCTV) footage demonstrates the worker limping on his arrival at work, shortly before the alleged injury. This is such a case.
Patrick Bradley (the applicant) has a significant medical history in respect of his right knee. In 2015 he suffered an injury to the right knee while playing soccer. On 16 August 2016, Dr Sunner, an orthopaedic surgeon carried out a right anterior cruciate ligament reconstruction of the knee at the Nepean Hospital. At the time of surgery, Dr Sunner also performed a sub-total lateral meniscectomy and a partial medial meniscectomy. The applicant appears to have made a reasonable recovery from surgery.
On 9 November 2020, at approximately 7.30am, the applicant was loading a truck preparatory to performing his work as a delivery driver at the premises of Direct Freight (Aust) Pty Ltd at Warwick Farm. He says that while performing that work he twisted his right knee. He experienced acute pain in the knee and was unable to continue work.
The applicant was taken to the surgery of Dr Lieng, a medical practitioner approved by the respondent. His symptoms did not improve, he was referred to Dr Quang Dao an orthopaedic surgeon who expressed the opinion that the applicant had ruptured his ACL graft and suffered a full thickness osteochondral injury of the lateral femoral condyle. He recommended that the applicant undergo a two-stage surgical procedure to repair the ruptured graft. He arranged for the first stage to take place on 18 December 2020.
In the meantime the officers of the respondent company had the opportunity to review the CCTV footage of the applicant on the morning of the alleged injury. On 11 December 2020, the respondent’s insurer wrote to the applicant and informed him that it denied liability for the alleged injury and its sequelae.
The insurer stated that its investigator had obtained a copy of the CCTV footage from the respondent’s premises on the date of the injury. It continued:
“The footage obtained from 12 different cameras throughout the site, shows you parking your vehicle in the car park at approximately 6.43am and proceeding to walk through the premises with a distinct and pronounced limp of the right knee. Accordingly, the evidence supports that your right knee was already injured at the time of commencing work.”
The insurer stated that it denied that the applicant suffered injury arising out of or in the course of his employment and that the employment was a substantial contributing factor to the injury in accordance with ss 4 and 9A of the Workers Compensation Act 1987.
PROCEDURE BEFORE THE COMMISSION
By these proceedings, the applicant claims weekly payments of compensation and an order that the respondent pay the costs of an incidental to the surgery proposed by Dr Dao. He alleges his incapacity and need for treatment result from one or both of two injuries. The injury alleged to have occurred on 9 November 2020 and an earlier injury when he twisted his knee in the course of his employment on 29 October 2020. If the applicant establishes injury, it is not disputed that he is incapacitated for work or that the surgery proposed by Dr Dao is reasonably necessary as a result of injury.
When the matter came on for conciliation and arbitration in the Personal Injury Commission (the Commission) on 8 February 2022, Mr Hickey of counsel appeared for the applicant and Mr McEnaney of counsel appeared for the respondent. Unsurprisingly, I was informed by counsel that the parties were unable to reach a mutually satisfactory resolution of the issue in dispute. I am satisfied that the parties, who were represented by experienced workers compensation lawyers, had ample opportunity at the telephone conference and in conciliation to reach a settlement of the dispute.
The conciliation conference and arbitration hearing were wrecked conducted audio visually.
EVIDENCE
The evidence before the Commission is as follows:
(a) the Application to Resolve a Dispute and the documents attached;
(b) the Reply and the documents attached;
(c) Applications to Admit Late Documents dated 3 February 2022 (x 2) and 11 February 2022 and the documents attached to each, and
(d) 12 surveillance DVDs being the CCTV footage exposed of the applicant prior to his alleged injury on the morning of 9 November 2020.
With the exception of one sentence in paragraph 5 of the statement of Mr Formosa there was no objection to the evidence set out above. As Mr McEnaney conceded that the second sentence of paragraph 5 of Mr Formosa’s statement was not admissible, I ruled that it should be excluded from the evidence in the matter. Otherwise, there was no application to adduce further written or oral evidence.
SUBMISSIONS
The submissions of the parties are recorded and I do not propose to reiterate each of the arguments put by counsel at the arbitration hearing. The submissions of both counsel were concise. I should record, however, that the respondent relied primarily on the CCTV footage. I was invited to conclude that the video evidence demonstrated conclusively that the applicant limped from the time he alighted from his car in the respondent’s car park shortly before 6.45am on 9 November 2020 and throughout the subsequent short sequences which recorded aspects of his activity within the respondent’s depot prior to the injury.
That evidence was to be contrasted with the applicant’s initial statement evidence that he could move “freely and without restriction” on his arrival at work. While it was not decisive, the fact that the applicant suffered his alleged injury in a place that was not covered by the respondent’s surveillance cameras was at least curious. Mr McEnaney stated that the respondent’s case was put on the basis that the applicant brought a knee injury to work on the morning of 9 November 2020 and after entering the respondent’s premises feigned an injury for the purposes of obtaining compensation. He submitted that the applicant’s subsequent statements were “back filling” in an attempt to explain away the damaging evidence of the CCTV footage. He submitted that the medical evidence was of little assistance. It suggested that the applicant may have suffered the injury in the circumstances alleged. Whether he did or not was dependent on a consideration of his evidence and that of the other witnesses.
Finally, Mr McEnaney submitted that the injury of 29 October 2020 on which the applicant belatedly relied in these proceedings, as an alternative cause of injury was no more than a distraction. The applicant himself stated that he made a very quick recovery from that incident and experienced no further symptoms.
Mr Hickey submitted that it was open to the Commission to find that the applicant suffered injury on either 29 October or 9 November 2020 or by a combination of both incidents on his previous knee surgery. In respect of the injury of 29 October 2020, he relied on the analysis of Dr Powell, the respondent’s orthopaedic surgeon, who expressed the opinion that the applicant may have suffered damage to his ACL in that incident and carried it for a number of days until his knee collapsed on 9 November 2020.
Mr Hickey submitted that the CCTV video evidence should be treated with caution in accordance with the reasoning of the Court of Appeal in Angel v Hawkesbury City Council [2008] NSWCA 130 (25 June 2008). He disputed that the video evidence demonstrated the applicant limping. Rather, he stated that when the video evidence was viewed as a whole, it demonstrated the applicant carrying out his ordinary duties prior to the alleged injury without any suggestion that he was in pain.
It was improbable that the applicant could have performed these activities if he had the pathology in his knee that had been demonstrated following the incident. He relied particularly on the evidence of Dr Lieng, the respondent’s doctor, who considered the video evidence and said that he did not believe that the gait shown on the CCTV footage was consistent with the applicant’s clinical presentation later on the morning of 9 November 2020 or with the pathology found on radiology.
It will be necessary to return to these submissions in resolving the issues in dispute between the parties. It is first necessary to set out the evidence of the applicant, his wife, and of the other witnesses who have provided statement evidence in the matter. What follows is not intended to be a comprehensive survey of the lay evidence. Rather I set out the salient points of that evidence so that the parties can understand the way in which the Commission has resolved the dispute between the parties.
Applicant
By his initial statement dated 26 November 2020 the applicant described the nature of his work as a delivery driver. He states that it involved loading a vehicle and unloading it when he arrived at the premises of a client. He says that generally the weights that he was required to lift had a range of “between 5 and 30 kilograms” although on occasions he was required to lift a weight of well over 50kg.
The applicant says that he commenced employment with the respondent in March or April 2020. He states that he was “fit and healthy. I could move freely and without restriction. I had no injuries or disabilities in particular, to my right knee.”
The applicant gave an account of the injury to his right knee while playing soccer in mid-2015. He states that he made a full recovery and did not “suffer any lasting effects from the injury”. He states that when he presented to work on 9 November 2020, he was “fit and healthy”. He says that he could move “freely and without restriction” and had no injuries or disabilities to his right knee. He says that he worked his normal duties until 7.30am.
At that time, the applicant says that he was picking up a box from the ground which weighed approximately 25kg. As he bent to pick up the box:
“I felt a pinching sensation behind my right kneecap. When I stood up to an upright position the sensation and pain persisted. It felt like my right kneecap had clicked out of place and needed to be clicked back into place. The pain initially was not excruciating rather it was uncomfortable.”
The applicant says that shortly after this incident, as he was stepping on to the loading dock, “my right knee gave way and collapsed causing me to fall to the ground on to my right hand side.”
At that stage the pain in his knee was more severe. He says that he was lying on the ground after his leg collapsed. He called out to a colleague Michael Avery, a truck driver, for assistance. He says that his supervisor, Steve, assisted him to lodge an incident report form, after which Joe Formosa drove him to the surgery of Dr Tom Lieng at Liverpool.
By a supplementary statement of 19 August 2021, the applicant says that he had viewed the CCTV footage of him walking prior to the injury in and around the warehouse. He says this:
“Although I do not spend a lot of time watching myself walk, it looked normal to me.
Since 2015 when I injured my right knee I never completely straightened my leg to walk.
I intermittently wore a knee brace to work if my knee was aggravated which may have caused me to limp more. My team leader David was aware of this. I passed all of the physical tests required of me by Direct Freight Express, however I always treaded with caution. I believe calling my walking style a limp is a gross exaggeration.
I confirm that CCTV footage showed how I usually walk.”
By a further supplementary statement of 29 January 2022, the applicant says that since 9 November 2020 he had remained unfit to work. He says that it is his belief that the injury to his knee occurred on 9 November 2020 and not on 29 October 2020.
The applicant continues that he is only able to stand upright for brief periods. He says that his leg catches when he walks and that he cannot bend, squat or run. He also refers to a statement of Adam Younes. He states:
“Adam Younes had very little to do with me at work. He definitely wasn’t in a position to observe me on a daily basis and I am very surprised to learn he has an opinion about my gait. I am of the view that he is either mistaken or being untruthful to assist Direct Freight in continuing to deny my claim.”
Renaie Evans
Renaie Evans is the applicant’s former partner. She says that she continues to see him regularly. She states that she has viewed the CCTV footage. She continues:
“I did not see Patrick walk with a limp. I confirm the CCTV footage showed how Patrick always walked.
I noticed a slight adjustment to his walking style when he was walking over a yellow bridge however he was wearing a bag on his side and it looked awkward to walk with.
Other than that the CCTV footage was a true depiction of how Patrick walked.”
Steve Zirilli
Steve Zirilli the respondent’s operations supervisor was interviewed by a loss assessor retained by the respondent on 4 December 2020. He was asked whether the applicant limped before 9 November 2020 and responded as follows:
“No, not really well, like, all my team leaders are on the dock and that I’ll probably end up [3.03] more so I know he’s had days off and that, but it could be that, but I don’t know, they ring up as sick when they’re sick so not too sure”.
When pressed as to whether he had noticed him limping before the day of the injury, he responded as follows:
“Not really. They’re in pretty confined space, I mean, they all look like they’re limping but no, nothing out of the ordinary, no.”
Mr Zirilli then gave his account of attending at the site of the alleged injury after the fall. He said the applicant told him that he was “just loading the boxes” when he felt a twinge. Subsequently, “he just stepped out of the way and it just went”.
Joe Formosa
Mr Formosa is the respondent’s morning shift operations manager. He was the applicant’s manager throughout the course of his employment. The second sentence of paragraph 5 of his statement of 22 September 2021 was expunged following Mr Hickey’s objection. Relevantly, he states:
“I do recall the worker talking about injuring his knee at soccer. This information came from the worker at a time I do not accurately recall, but it was prior to his alleged injury on 9 November.
I have never seen the worker walk with a limp throughout his time of employment until the day of the worker’s alleged injury when I saw him after the incident. I have never seen the worker wear a knee brace or had any supervisors or team leaders report that the worker was wearing a knee brace.”
Adam Younes
Mr Younes is the respondent’s morning shift coordinator. He reports to a Mr Formosa. He states that David Elliott was the applicant’s team leader at the time of the injury in November 2020 but had subsequently left the employment of the insured. Relevantly, he says this:
“At the time that the claimant alleges that he was injured I worked as a team leader for the 600 line and Elliott was the team leader for the 500 line. Our lines were adjacent. I would see the claimant every day. It is nonsense that the claimant would walk with a limp at work before he was allegedly injured whilst working for the insured. The claimant always moved freely and without restriction.
I can confirm that I have viewed CCTV footage from 9 November 2020. Such footage shows the claimant moving with a limp. The claimant never moved normally in such a manner. I had never seen him at any point prior walk with such a limp.”
Mr Younes states that the applicant never spoke to him about a previous knee injury or about any “issues with his knee” at work prior to going off following the alleged injury. He also states that the applicant was a good worker and that he was not aware of him having any “issues with his work performance”.
Michael Avery
By a statement dated 10 November 2021, Mr Avery states that he used to work “side by side” with the applicant on the 500 line. He continues:
“It is not true that the claimant would walk with a limp at work before he was allegedly injured whilst working for the insured. The claimant always moved freely and without restriction.”
Mr Avery states that on the morning of 9 November 2020 he noticed the applicant sitting on the ground at the rear of his parked truck. He recounts that the applicant told him that he had injured his knee but did not tell him “what had happened”. After calling Mr Zirilli, the morning shift coordinator, he resumed normal duties. He continues:
“I can confirm that I have viewed CCTV footage from 9 November 2020. The footage shows the claimant moving with a limp. The claimant never moved normally in such a manner. I had never seen him at any point prior walk with such a limp.”
Mr Avery states that approximately two weeks before the incident of 9 November 2020, the applicant had told him over the telephone that he had hurt his knee while performing his delivery work. He did not however provide any details of the circumstances of the matter. Mr Avery continues:
“The claimant never spoke to me about this matter again and certainly he never came to work after this incident with a limp. To my knowledge the issue with the knee was minor because the claimant never again spoke to me about the matter – in this job one often gets little injuries that pass in a day or two.”
Mr Avery also says that the applicant was a good worker and that he had never spoken to him about a pre-existing knee injury.
By a further statement of 10 December 2021, Mr Avery states that when the applicant “yelled out” to him on the morning of 9 November 2020 he appeared to be “in a lot of pain in his knee (he was grimacing and indicating his knee hurt) and I called out supervisor Steve over”. He also states that in December 2020 he was asked to make a statement and shown some video footage. He says that the first footage they showed him was of “someone they called Pat pulling into the car park and entering our facility”. Mr Avery says that he thought they identified the wrong person in this video. He continued:
“They then showed me footage of Pat actually walking up the steps to the belt and was saying to me words to the effect of ‘Can you see Patrick’s limp’ to which I replied with the words to the effect of ‘I don’t think there’s a limp’. You can see Pat go up over the ladder with some hesitation, but to me it does not look like he had any limp and he appears to be walking completely normal to me.”
By a third statement dated 10 January 2022, Mr Avery said that the evidence he gave in his statement of 10 December 2021 that he “viewed footage showing Pat walking with a limp” was incorrect. He continues:
“I can remember that the investigator was suggesting to me that Pat had a limp in the video, which I disagreed with.
Pat did not have a limp before the accident and as far as I was concerned and could observe he was entirely normal.”
Mr Avery states that he viewed 7 of the 12 DVD recordings taken on the morning of 9 November 2020. He says that the film taken from the camera at “Bldg 2 Gatehouse” may not be the applicant. He reiterates that the videos show the applicant “walking normally” and that he would not describe him as limping in the CCTV footage.
Mr Avery states that he chatted briefly with Adam Younes before he spoke to the investigator concerning this case and Adam said to him words to the effect of “I can’t remember who Pat is”.
Discussion and findings
At the arbitration hearing Mr Hickey submitted that the CCTV footage did not show the applicant walking with a limp. That is, of course, the opinion of Mr Avery after viewing the CCTV footage. My impression of the video footage is quite different. Having viewed the short videos on several occasions, I was left with the distinct impression that the applicant limped when leaving his car and entering the premises of the respondent on the morning of 9 November and in subsequently ascending stairs at the breakdown line.
However, it is unnecessary to rely on my impression of the video to conclude that the applicant limped on the morning prior to his alleged injury. Both Dr Lieng, the general practitioner who treated the applicant following the alleged injury and Dr Stephenson, the applicant’s qualified orthopaedic surgeon, have viewed the video footage and expressed the opinion that the applicant limped prior to the injury.
In his supplementary report dated 11 August 2021, Dr Stephenson refers to the CCTV footage at some lengths. He states that in viewing the footage:
“I have noted he is walking with a limp with the right leg which is consistent with a 10º flexion contractual loss of extension of the right leg, thus shortening effectively the leg and causing the limp which is evident when seen.”
Dr Stephenson continues thus:
“He is seen moving about, lifting what appear to be fairly light boxes of product and evidently placing them in the truck where he is seen to the left in the distance doing so. He is using a scanning device rather like a mobile phone in his hand, scanning the particular product or parcel he has to pick up to confirm it is correct. He is walking steadily, perhaps slowly or deliberately but in my opinion it is a genuine limp related to the fact that he has a flexion contractural inability to fully extend the right knee.”(my emphasis)
While it must be accepted that the applicant walked with a limp as described by both Dr Lieng and Dr Stephenson, it is not evident from the video footage that the applicant was in pain while walking and performing his work prior to the alleged injury on 9 November 2020. Mr McEnaney submitted that after leaving his vehicle the applicant appeared to support his leg with his arm but I believe that it would be unsafe to draw such an inference. Certainly, the medical practitioners do not comment on it in their reports.
At the arbitration hearing, both counsel submitted that the medical evidence was inconclusive on the important issues in the case, including whether the applicant’s injury occurred in the manner he alleges. Obviously, whether the applicant suffered injury on the morning of 9 November 2020 at about 7.30 is a matter for the Commission. The medical evidence can only state that the circumstances were or were not consistent with injury or were or were not capable of causing the pathology subsequently found on examination. In my opinion, however, the medical evidence in particular Dr Stephenson’s reference to a “contractural” inability to extend the right knee in the CCTV footage is important.
In his report of 31 August 2016, Dr Sunner noted that prior to the operation of 16 August 2016 the applicant had a“ fixed flexion deformity for quite some time now”. It was, therefore, necessary for him to undertake a vigorous rehabilitation regime with a view to regaining full extension. That, of course, raises a question of whether fixed flexion is a residual effect of the earlier injury or, alternatively, a condition that only affected the applicant’s right leg and knee in the hours or days before the alleged incident at work.
One might have thought that this issue could be addressed by a consideration of the medical record of the applicant’s treatment between 2016 and 2020 and/or by medical opinion addressing the question. However, the parties did not approach the case on this basis. I was not referred to the clinical records of the treating doctors and/or physiotherapists during argument and my brief foray into the clinical record did not reveal any information relevant to this issue.
Thus, I am left to determine the case on the basis of the lay evidence and the evidence of Dr Lieng, who is the only medical practitioner who addresses the video evidence in any meaningful way. The lay evidence is, of course, contradictory. It is not always satisfactory. Because of this, I listed the matter for an audio-visual hearing. However neither counsel sought leave to cross examine. I do not criticise counsel for that decision. But it does make my task of reconciling contradictory and unsatisfactory evidence more difficult.
Mr Avery’s evidence is internally inconsistent and I doubt that any weight can be given to it. His explanation for this inconsistency is quite curious. He says that he signed his initial statement of 10 December 2021 after misreading the paragraph in which he stated that the applicant walked with a limp in the CCTV footage. This is hardly credible.
Both Mr Younes and Mr Formosa state they did not observe the applicant did to walk with a limp prior to the time of the injury. Their evidence is consistent and there is no obvious reason to reject it. The applicant says that Mr Younes “wasn’t in a position to observe him on a daily basis” and that there is a malign motive for his evidence. However, Mr Younes says that he worked on the adjacent line and that he could see the applicant “every day”. Certainly, this suggests that he had the opportunity to observe the applicant.
Mr Zirilli’s evidence is of little assistance. While he stated that he did not notice the applicant limping prior to 9 November 2020, he also stated that, as the workers were in a confined space, they “all look like they are limping”. I doubt that the latter statement advances the argument of either party.
Several of the witnesses refer to David Elliott, who was the applicant’s team leader at the time of the injury. For that reason he may have been in the best position of the any of the witnesses to address the question of the applicant’s gait prior to the injury. However, it is quite clear that he has had a falling out with the respondent. It is inappropriate to draw any adverse inference based on the absence of his evidence.
As Mr McEnaney argued the applicant’s evidence is not entirely consistent. His initial statement taken only a few weeks after the injury says that he made a “full recovery” from the 2015 injury and did not suffer any “lasting affects” following the surgery. He also said that on his arrival at work he was able to move “freely and without restriction”. In both his subsequent statements and in his histories to medical practitioners the applicant has given a different account of the condition of his knee prior to the injury.
In his initial report of 16 April 2021, Dr Stephenson took a history of the applicant’s previous injury and the surgery under Dr Sunner in 2016. He recorded that:
“He indicated he confirmed this in his statement that he felt much better after the reconstruction but always treated it with caution and has not engaged in sporting activities. He also indicated that he adjusted the way he walks to ensure that his heel was on the ground first but when he was tired sometimes he would forget.”
Dr Powell saw the applicant initially on 18 February 2021 and provided a report of 6 April 2021. The doctor also recorded a history of the earlier injury and the surgery under Dr Sunner. He recorded that following the surgery:
“He completed a rehabilitation program and although the treatment was responsible for improvement in his symptoms and function, Mr Bradley was unable to play sport. The knee remained intermittently symptomatic with pain and a limp. He was unable to run.”
By his statement of 19 August 2021 the applicant says that he has reviewed the footage taken on the morning of 9 November 2020. He states that his gait as depicted in the CCTV “looked normal to me”. He says that his knee never completely “straightened my leg up to walk “after the 2015 injury. It was these subsequent accounts of how he walked before the alleged injury that Mr McEnaney described as “backfilling”.
Obviously, the outcome of the case depends on whether one accepts the applicant’s latter accounts of his mode of walking or gait or, alternatively, the evidence of Mr Younes and Mr Formosa. On balance, I have chosen to accept the applicant’s account, flawed as it might be, in preference to that of Mr Younes and Mr Formosa. There are several reasons for this.
First, the applicant’s account of the way he walked before the alleged injury is supported by Ms Evans in her statement. I accept that that the evidence of a partner ought generally be viewed with some scepticism. However, Ms Evans was undoubtedly in the best position of all the witnesses to observe the applicant’s gait prior to the alleged injury. While it is doubtful that either Mr Younes or Mr Formosa had good reason to carefully observe the applicant’s gait prior to the injury, during their relationship Ms Evans spent a significant part of her daily life in proximity to the applicant in the period leading up to the alleged injury. No particular attack was made on her reliability.
Secondly, and of critical importance, is the evidence of Dr Lieng. In his supplementary report of the 22 August 2021, he states:
“I have reviewed the CCTV footage of Mr Bradley presenting to work on 9/11/2020. The footage showed Mr Bradley walking from his car in the carpark through the building to his workstation and performing his normal daily duties. I agree with Mr Smith that Mr Bradley has a slight limp as he walked. I have not seen Mr Bradley prior to the injury to provide comment if his limp was consistent with his pre-9/1/2020 state. I do not believe the limp presented on the CCTV footage is consistent with the clinical presentation and the MRI finding. He was clinically much worse at the surgery than presented on the CCTV footages.”
Obviously, this evidence is not determinative of the issue of whether the applicant suffered injury as he alleges on 9 November 2020. An injury before the commencement of work may have worsened with the passage of time. On the other hand, it is plainly consistent with an intervening injury at work which has caused the applicant’s gait and condition to be “clinically much worse” than it was at the time of the year CCTV footage.
Thirdly, an acceptance of the respondent’s evidence involves an acceptance of the assumption that the applicant suffered a very significant and painful injury to his knee some days before 9 November 2020 and carried it to work, where he feigned injury shortly after arrival. That must entail the applicant deciding to refrain from obtaining medical treatment for the undoubtedly very significant pathology in his knee following the injury, pending his arrival at work. It would also entail the applicant concealing his pain during the admittedly relatively short period that he worked prior to the alleged injury.
I accept that such a scenario is possible. I have no doubt that workers have feigned injury on Monday morning to obtain compensation. My impression, however, is that the nature of the injury and the pathology in this case makes it unlikely. While it is not possible to reach any conclusive view as to whether the worker is suffering pain from the video evidence, I saw no evidence of it. Certainly, no witness suggests that this is the case. While he does have a limp, he appears to go about his work during the short periods it is recorded on CCTV in a deliberate and efficient fashion. If he is concealing a significant injury to his knee it is a bravura performance.
Accordingly, I have reached the conclusion that I should accept on the balance of probabilities the applicant’s account of the circumstances in which he suffered injury on 9 November 2020. That necessarily involves an acceptance of his later evidence that he walked with a slight limp before the alleged injury. While the discrepancies between his initial statement and his subsequent evidence are quite marked, I do not believe that they are fatal to his case. Phrases such as a “full recovery” and “no lasting effects” are hardly relative terms. They are difficult to reconcile with the applicant’s later evidence. None the less, weighing the entirety of the evidence seems to support, on balance, the conclusion that I have reached.
That finding, of course, necessitates a rejection of the evidence of Mr Younes and Mr Formosa. It is plausible that neither noticed the applicant limping previously. It is equally plausible, however, that the applicant’s gait might only attract attention when one is specifically directed to it.
It follows that it is unnecessary to consider the alternative argument that the applicant suffered injury on 29 October 2020 which manifested itself at work on the morning of 9 November 2020. While Dr Powell has expressed the opinion that this is medically possible, it seems to me to be highly improbable. The applicant’s evidence is that his knee symptoms rapidly abated after the earlier incident.
It was not suggested in argument that that the applicant’s employment was not a substantial contributing factor to the injury in accordance with them section 9A. I, therefore, find that the applicant suffered injury to his right knee namely rupture of the previous ACL graft on 9 November 2020. As a result of that injury, he has been incapacitated from 9 November 2020 to date and continuing.
As the parties did not address the quantum of weekly compensation, I propose to simply make a general order. It is tolerably clear that the applicant has had no current earning capacity while he awaits knee surgery. I propose to make an order that the respondent pay the applicant’s medical and hospital expenses including the cost of and incidental to the surgery proposed by Dr Dao.
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