Buksh v Programmed Skilled Workforce Ltd
[2021] NSWPIC 36
•22 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Buksh v Programmed Skilled Workforce Ltd [2021] NSWPIC 36 |
| APPLICANT: | Rameen Damien Buksh |
| RESPONDENT: | Programmed Skilled Workforce Ltd |
| MEMBER: | Ms Jaqueline Snell |
| DATE OF DECISION: | 22 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for weekly benefits and medical and related treatment expenses resulting from injury sustained on 12 June 2020 due to the nature and conditions of the applicant’s employment; the respondent placed injury and incapacity in issue; Held– the applicant sustained injury to his right knee on 12 June 2020 in the course of his employment with the respondent and the applicant’s employment with the respondent was a substantial contributing factor to injury; the applicant had no current capacity for work between 16 June 2020 and 27 January 2021 and the respondent is to make payments of weekly benefits under section 36 and section 37 of the 1987 Act accordingly; the applicant required medical treatment and services as a consequence of the injury he sustained to his right knee and the respondent is to pay the applicant’s medical and related treatment in the sum of $2,079 in accordance with section 59 and section 60 of the 1987 Act. |
| DETERMINATIONS MADE: | 1. The applicant sustained injury to his right knee in the course of his employment with the respondent on 12 June 2020 and the applicant’s employment with the respondent was a substantial contributing factor to the injury. 2. The applicant has no current capacity for work resulting from the injury he sustained to his right knee. The applicant has an entitlement to weekly benefits payable under ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act). The applicant’s pre-injury average weekly earnings (PIAWE) is agreed at $560.50. The respondent is to make payments of weekly benefits to the applicant in accordance with s 36(1)(a) of the 1987 Act from 16 June 2020 to 15 September 2020 (13 weeks) at the rate of $532.48. The respondent is to make payments of weekly benefits to the applicant in accordance with s 37(1)(a) of the 1987 Act from 16 September 2020 to 27 January 2021 at the rate of $448.40. The applicant’s PIAWE will be adjusted in accordance with s 82A of the 1987 Act. 3. The applicant requires medical treatment and services as a consequence of the injury he sustained to his right knee. The respondent is to pay the applicant’s medical and related treatment in the sum of $2,079, in accordance with ss 59 and 60 of the 1987 Act. |
STATEMENT OF REASONS
BACKGROUND
Rameen Damien Buksh (the applicant) is 22 years of age. At the time the applicant sustained injury the subject of these proceedings, the applicant was employed by Programmed Skilled Workforce Ltd (the respondent) as a spray painter, having commenced his employment with the respondent in or about September 2018.
The applicant sustained meniscal tear to his left knee when playing football in September 2019, being injury which is not a work-related injury.
The applicant said that his work duties with the respondent required him to perform repetitive tasks, which included climbing up and down ladders. The applicant alleged that on 12 June 2020 he was required to climb up and down a ladder continuously to spray paint a bus, which resulted him in sustaining right lateral meniscal tear. In the alternative, the applicant alleged that as a result of the repetitive nature and conditions of his employment with the respondent, he sustained a lateral meniscal tear in his right knee.
The applicant came to bilateral knee arthroscopies and bilateral meniscectomies under the care of his treating orthopaedic surgeon, Dr Chin, on 27 January 2021.
The claim for compensation in these proceedings involved the following:
(a) weekly benefits payable under s 36 and 37 of the Workers Compensation Act 1987 (1987 Act) from 16 June 2020 ongoing, and
(b) medical treatment expenses relevant to the past, which are particularised at $2,079.
The respondent issued notices in accordance with s 78 of the Workplace Injury
Management and Workers Compensation Act 1998 (1998 Act) on 6 August 2020 and
again on 4 December 2020 following a request for review of the decision to decline his claim, with injury placed in issue. The initial decision to dispute the applicant’s claim with injury in issue was maintained. While not in evidence before the Commission, it appeared the respondent also forwarded correspondence to the applicant on 28 August 2020 in which
the respondent maintained denial of the decision to decline his claim, with a report of Dr Ridhalgh dated 24 August 2020 included with that correspondence.The matter proceeded to Arbitration hearing on 23 February 2021. Eraine Grotte of counsel appeared for the applicant instructed by Richard Dababneh, solicitor. Campbell Robertson of counsel appeared for the respondent instructed by Michael Lee, solicitor. The applicant was present.
Respondent’s application for leave to put the applicant’s capacity for work in issue
Through Mr Robertson of counsel, the respondent made application for leave under s 289A of the 1998 Act to place the applicant’s capacity for work in issue.
The respondent said it was clear that injury had been placed in issue by the respondent and as the respondent did not dispute the applicant had a residual capacity to earn, which was the applicant’s own case, the respondent said there was no prejudice to the applicant in granting the leave sought by the respondent.
Applicant’s opposition to the respondent’s application for leave to put the applicant’s capacity for work in issue
Through Ms Grotte of counsel, the applicant said there was prejudice to the applicant by the issue of incapacity having not been raised earlier, in that the applicant had not been able to turn his mind to obtaining further medical evidence that addressed what the applicant may or may not have been able to do. With such prejudice to the applicant, the respondent should not be granted the leave now sought.
Determination of the respondent’s application for leave to put the applicant’s capacity for work in issue
The applicant’s claim before the Commission was discussed at teleconference on 1 February 2021 with the respondent’s application having been foreshadowed at that time, and I carefully considered the submissions made by counsel and was mindful of the exercise of discretion contained in s 289A(4) as set out in Mateus v Zodune Pty Limited t/as Tempo Cleaning Services[1].
[1] [2007] NSWWCCPD 227.
I noted Dr Gehr had provided comment relevant to the applicant’s capacity for work in his report dated 13 October 2020, as had Dr Ridhalgh whose report dated 24 August 2020 was served on the applicant by the respondent under cover of correspondence dated 28 August 2020. I noted too there were a number of medical certificates before the Commission relevant to the applicant that addressed the applicant’s capacity for work. In such circumstances, if there was prejudice to the applicant occasioned by the fact that he had not sought any further medical opinion that addressed the issue of incapacity as submitted by Ms Grotte, I was of the view the general conduct of the respondent relevant to this discrete issue had been good, and there had been opportunity prior to the conciliation/arbitration listing on 23 February 2021 to obtain such further medical opinion that addressed what the applicant may or may not have been able to do.
For the reasons referred above, I granted leave to the respondent to allow the previously unnotified issue relevant to the applicant’s capacity for work up until he came to arthroscopic surgery on 27 January 2021 to be placed in issue in these proceedings.
ISSUES FOR DETERMINATION
The parties agree that the following issues are not disputed:
(a) pre-injury average weekly earnings (PIAWE) is agreed to be $560.50.
(b) In the event there is a finding of injury in favour of the applicant, treatment is reasonably necessary resulting from the injury.
The parties agree that the following issues are in dispute:
(a) injury, and
(b) incapacity for work resulting from injury up until the applicant came to arthroscopic surgery on 27 January 2021.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents (save for pages 44 and 85 as these documents are relevant to a person other than the applicant and should be removed from the ARD);
(b) Reply and attached documents;
(c) Application to Admit Late Documents (AALD-1) dated 9 February 2021 lodged by the applicant, and
(d) Application to Admit Late Documents (AALD-2) dated 22 January 2021 lodged by the applicant.
Oral evidence
Neither party sought leave to adduce oral evidence or cross-examine any witnesses.
FINDINGS AND REASONS
Review of the evidence
A brief summary of the evidence follows.
Applicant’s statement
In his statement dated 4 December 2020[2] the applicant said he commenced employment with the respondent in around September 2018, and was lent on hire to Transit Systems at the Hoxton Park bus depot. He said he was employed on a full-time basis and worked about 40 hours each week. He said as a second year apprentice he earned approximately $580 each week.
[2] ARD at page 1.
The applicant explained that in late September 2019 he was playing football with some friends when he twisted his left knee, which resulted in a meniscal tear. At the time the applicant made his statement, he was on a waiting list with Dr Chin, orthopaedic surgeon, to undergo arthroscopic repair of his left knee. The applicant said this left knee injury did not cause him any incapacity for work and he continued working in his pre-injury capacity and underwent little treatment. He said the respondent was aware of the injury he had sustained to his left knee.
The applicant relevantly said his work as a spray painter required him to spray paint buses, which were about three meters tall, and as a consequence he needed to frequently climb up and down ladders to undertake his work duties. He was required to stand for prolonged periods of time, he was required to carry tools up and down ladders, and in order to reach the middle of the roof of buses. The applicant said his work duties were “repetitive and laborious in nature” and as a consequence he noticed an aggravation of symptoms in his left knee and began to experience symptoms in right knee.
In so far as 12 June 2020 was concerned, the applicant said his assigned job on that day was to spray paint a bus. He said he commenced work at 5.30 am and cleaned and sanded the bus before he started the spray painting at about 12.00 pm. The applicant explained that in order to reach the top of the bus, he used a platform ladder. He said he positioned the ladder next to the area of the bus he was working on, climbed up the ladder, stood on the ladder while spray painting that area and then climbed back down the ladder in order to reposition it so he could spray paint the next area. The applicant said he undertook this particular exercise “numerous times”. The applicant said that part way through this assigned job, he “began climbing up the ladder when I experienced pain and tightness in my right knee”. His supervisor had left for the day and the applicant finished his assigned job before leaving for the afternoon. Over the weekend the applicant’s right knee deteriorated and when he returned to work on the Monday, he reported his right knee injury to his supervisor. The applicant said when he “attempted to climb the ladder to complete the job I was performing on Friday, however I experienced a severe pain in my right knee and I was unable to continue climbing the ladder” and when he told his supervisor of his difficulties, he was told to undertake light duties for the rest of the day. That evening the applicant reported his right knee injury to the respondent, and the following day he attended on his general practitioner, Dr Li, who certified him unfit for work for the remainder of the week.
With the applicant’s right knee failing to improve, Dr Li referred him for MRI and subsequent orthopaedic specialist review with Dr Chin, who recommended arthroscopic repair of the applicant’s right knee. At the time he made his statement, the applicant was on a waiting list with Dr Chin to undergo arthroscopic repair of his right knee also as well as his left knee.
The applicant said that his work ceased in July 2020, and he has not worked since then. He said he was able to continue at TAFE until his banked leave became exhausted, following which he was placed on mandatory leave. At the time of making his statement the applicant said his employment and apprenticeship was in the process of being suspended.
With the applicant’s right knee reportedly acutely symptomatic, the applicant said at the time he made his statement he was “eager to undergo the recommended surgery as I feel it is the only way in which I will be able to regain a sense of normalcy and have any prospect of returning to the workforce”.
Worker’s injury claim form
In his injury claim form dated 15 July 2020[3] the applicant indicated that at the time he sustained injury to his right knee he was respraying a bus “which required me to climb up and down a ladder”. As of his assigned job on 12 June 2020, the applicant said “[P]art way through the job, I began climbing the ladder when I experienced a tightness in my right knee and an onset of pain”. Relevant to specific questioning as to whether the applicant had “previously had another injury/condition or personal injury claim that relates to this injury/condition” the applicant provided no comment.
Treating medical evidence
[3] ARD at page 4.
Dr Li
Dr Li practises out of Prestons Medical Centre. He is the applicant’s general practitioner, and in his letter dated 26 August 2020[4] Dr Li provided a history of the applicant having stated during consultation on 16 June 2020 that he had right knee lateral side pain after climbing up and down a lot on 12 June 2020 and denied any injury/fall. Di Li noted the MRI of the right knee on 8 July 2020 demonstrated undisplaced horizontal lateral meniscus tear. While he said he was not sure if the applicant’s employment was a substantial contributing factor to injury, he accepted frequently climbing up and down the stairs could cause pain and could be one of the contributing factors to injury.
[4] ARD at page 37.
The clinical note relevant to the applicant’s right knee injury was noted by Dr Li on 16 June 2020 in the following terms:
“R knee pain after friday climbing up and down stairs a lot,
lateral side pain
no injury”
Dr Chin
Dr Chin is the applicant’s treating orthopaedic surgeon, and in his report dated 4 August 2020[5], he provided a history of the applicant having been spray painting a bus on 12 June 2020. He reported that the applicant was climbing down from the ladder “he had a twisting injury” with “pain in the back of his knee and in the posterolateral aspect of his knee”. Following clinical examination and review of the MRI of 8 July 2020, Dr Chin recommended right knee arthroscopy plus or minus meniscus repair or a meniscectomy, if the applicant’s symptoms failed to settle with conservative treatment.
Independent medical evidence
[5] ARD at page 36.
Dr Gehr
The applicant was assessed by Dr Gehr, independent medical examiner, and he provided a report dated 13 October 2020 [6]. At the time of reporting Dr Gehr had a number of documents available to him, including the applicant’s workers injury claim form, the report of Dr Chin dated 4 August 2020, the report of Dr Ridhalgh dated 24 August 2020 and the clinical file of Prestons Medical Centre.
[6] ARD at page 21.
Dr Gehr noted the pre-existing injury the applicant sustained to his left knee while playing football and at the time of reporting the applicant had not come to the planned arthroscopy for his left knee.
Dr Gehr reported a history of injury having occurred in the following terms:
“On 12/6/2020 he was spray painting the bus. He was required to position the ladder next to the area he was painting, climb up the ladder and paint the area before climbing down and repositioning the ladder. Part way through the job, he began climbing the ladder when he experienced an onset of pain in his right knee. He finished the job before leaving for the afternoon.
Over the weekend, his knee began to swell and the pain increased. He went back to work on Monday and reported the injury to his supervisor.
He attempted to climb the ladder to complete the job that he had been doing the previous Friday, however he experienced severe pain in his right knee and he was unable to continue climbing the ladder. He remained at work that day, but on light duties”.
Following clinical examination, Dr Gehr accepted the applicant sustained injury to his right knee at work on 12 June 2020, with such injury being in the nature of a lateral meniscal tear. In response to specific questioning Dr Gehr provided opinion the applicant’s employment with the respondent was a substantial contributing factor to injury. He also provided opinion the requirement for arthroscopic surgery was “reasonable and necessary” and in his short supplementary report dated 8 February 2021[7] Dr Gehr confirmed that as at the time he assessed the applicant, it was “a good idea now to move to surgery”. At the time he assessed the applicant, Dr Gehr was also of the opinion the applicant suffered an incapacity for work as a result of the injury.
[7] AALD – 2 at page 12.
In so far as Dr Ridhalgh’s report was concerned, Dr Gehr disagreed with his opinion as to causation of injury to the applicant’s right knee. While Dr Gehr also found a similar body mass index of 55kg.m2 and valgus knee, unlike Dr Ridhalgh, Dr Gehr he was of the view that at the age of 22 “it is far too early to consider this as the only cause of his problems with his knee”. Dr Gehr said:
“Most likely cause remains the injury at work, also with respect, I disagree he would have suffered the same condition irrespective of his employment. The onset of symptoms related to body mass index and valgus knees would be more likely when he gets to 30 or 40.
I also disagree this early degeneration of lateral meniscus, I would expect at a later age as already outlined”.
Dr Ridhalgh
The applicant was assessed by Dr Ridhalgh, independent medical examiner, and he provided a report dated 24 August 2020[8]. At the time of reporting, Dr Ridhalgh also had a number of documents available to him, including diagnostic imaging relevant to the applicant’s right knee, the applicant’s workers injury claim form and the clinical file of Prestons Medical Centre. It is not apparent he had the report of Dr Chin dated 4 August 2020.
[8] Reply at page 1.
Dr Ridhalgh noted the applicant denied any previous problems with his right knee but was on Dr Chin’s waiting list for left knee arthroscopy after his left knee became symptomatic while playing football. Dr Ridhalgh considered this proposed arthroscopy to the applicant’s left knee “is likely to have a poor prognosis”.
The applicant presented at assessment with complaint of pain in the anterior aspect, the lateral aspect and the medial aspect of is right knee.
Dr Ridhalgh reported a history of injury occurring on 12 June 2020 in the following consistent terms:
“Mr Buksh in his work as an apprentice spray painter was preparing a bus to be sprayed. He spent the initial morning masking and sanding the bus. Then in the afternoon he had to work on the top of the bus which involved moving a ladder stand around, walking up the ladder stand, working on the bus, climbing down, moving the ladder stand and repeating.
Towards the end of the Friday, 12 June he started to feel tingling in the back of the right knee and pain. He stopped work at the time and rested and the pain eased off. He finished the job and he had pain after work and he went home. He woke up the next day with pain and swelling in the right knee and he applied an anti-inflammatory gel.
He returned to work on Monday, 15 June and reported the accident to his supervisor. When he attempted to work again, the knee hurt him.
He attended to his local doctor, Dr Li at Prestons, the next day 16 June and Dr Li gave him a certificate to rest the knee for the remainder of the week.
…
He returned to light duties and tried this for two weeks. He had light duties for a while because he had not put in the claim. He was then put off work. He was told to return to his doctor for clearance. Since then he has been having annual leave”.
Following clinical examination and review of the diagnostic imaging made available to him, Dr Ridhalgh noted the applicant had reported his right knee having become symptomatic at work without fall, stumble or collapse with subsequent diagnosis of undisplaced tear of the lateral meniscus of the right knee, and provided opinion the injury was most likely due to his body max index being 55kg/m2 and a valgus knee. Dr Ridhalgh did not believe the nature and conditions of the applicant’s employment with the respondent was consistent with the injury he had sustained to his right knee, but rather he considered the applicant’s right knee injury was in the nature of early degeneration of the lateral meniscus.
At the time of assessment, Dr Ridhalgh noted the applicant was undertaking theory work at TAFE relevant to his apprenticeship, and in response to specific questioning provided opinion the applicant could return to work in the next six weeks on restricted duties. Dr Ridhalgh suggested the applicant initially return to work for four hours a day, three days a week with a view to upgrading “as pain allows”. He recommended the applicant avoid squatting, kneeling and repetitive climbing up the stairs. He anticipated the applicant would return to his per-injury duties in the next three months.
Relevant to treatment for his right knee injury, Dr Ridhalgh recommended the applicant continue with physiotherapy treatment. He said that even if the applicant’s condition did not improve with conservative treatment he would not recommend arthroscopy as he considered prognosis would be poor, with the applicant developing arthritis in his knee following arthroscopy.
Submissions
Both parties made oral submissions and a copy of the recording is available to both parties.
Respondent’s submissions
Through Mr Robertson of counsel, the respondent pointed out that while the applicant alleged in his application that he had sustained injury to his right knee on 12 June 2020 with the nature and conditions of his employment alleged in the alternative, there was no independent medical expert opinion that supported the allegation of “nature and conditions”.
Mr Robertson noted that although the applicant said in his statement dated 4 September 2020 that he had noticed symptoms prior to 12 June 2020, Dr Chin, Dr Gehr and Dr Ridhalgh had not obtained a history of the applicant being symptomatic prior to 12 June 2020. None of the medical evidence indicated the nature and conditions of the applicant’s employment resulted in injury, and the applicant’s comment to this effect is inconsistent with contemporaneous material.
Mr Robertson provided comment the first doctor with who the applicant consulted relevant to his right knee injury was Dr Li and he recorded no history of prior symptoms. It was well Mr Robertson said to keep in mind that Dr Li was the applicant’s treating doctor, with who the applicant consulted in 2019 relevant to his left knee problems.
Mr Robertson argued Dr Chin did not assist the applicant’s claim as Dr Chin reported the applicant sustained a twisting injury climbing down the ladder with pain in the back of his knee. Nowhere is there a history of a twisting injury.
Relevant to Dr Gehr’s opinion, Mr Robertson confirmed Dr Gehr did not provide a history of symptoms prior to June 2020 or a twisting injury and said that in addition to that Dr Gehr did not explain how climbing down a ladder gave rise to the torn meniscus the applicant sustained. In dealing with the opinion provided by Dr Ridhalgh, Mr Robertson said Dr Gehr merely pointed out the applicant was far too young to accept that his body mass and valgus knee was the cause of his injury.
Relevant to the opinion provided by Dr Ridhalgh, there was again no history of symptoms prior to June 2020 and no history of a twisting injury. Dr Ridhalgh considered the applicant’s valgus knee and his body mass to be important, and Mr Robertson pointed out that the clinical records demonstrated that as early as 11 years of age the applicant weighed 82 kgs, at 16 years of age he weighed 147 kgs, and ever since 17 years of age he has weighed about 160 kgs. Mr Robertson said this was a substantial body mass. Mr Robertson submitted Dr Ridhalgh was of the view that what happened on 12 June 2020 was “revelation not genesis”.
Mr Robertson submitted the applicant had failed to discharge the onus required of him to establish he had sustained injury to his right knee on 12 June 2020 arising out of or in the course of his employment with the respondent, and that his employment was a substantial contributing factor to injury.
Mr Robertson accepted that if I was against him relevant to the issue of injury, relevant to the applicant’s capacity for work, he noted the applicant ceased work in July 2020 because his duties were withdrawn and there was a residual capacity to earn from 10 August 2020. There are WorkCover Certificates of Capacity that relevantly covered the period of the applicant’s alleged incapacity for work up until he came to surgical treatment on 27 January 2021 and the opinion offered by Dr Gehr was of no further assistance over and above that provided by the WorkCover Certificates of Capacity.
Applicant’s submissions
Through Ms Grotte of counsel, the applicant says it is his case he has sustained injury to his right knee due to the nature and conditions of his employment on 12 June 2020. He explained while he finished working his job that day, over the weekend his right knee symptoms deteriorated and when he attempted to return to his job on the Monday, he couldn’t manage and he ceased work. He was then placed on restricted duties until they were withdrawn.
The applicant saw his general practitioner, Dr Li, on 16 June 2020 and reported lateral side right knee pain while climbing up and down a lot on Friday. There was a note there that said “no injury” but there was no event as such – the applicant experienced pain in the course of climbing up and down a lot that particular day. In his report Dr Li accepted that frequently climbing up and down stairs could cause pain on the knee. He also accepted that frequently climbing up and down stairs could be one of the contributing factors to the applicant’s right knee injury.
While the respondent said Dr Chin’s opinion was not reliable because of his reference to twisting injury, Dr Chin was the orthopaedic surgeon who was going to treat the applicant and he merely recorded what he was told. Dr Chin’s opinion cannot be dismissed because he reported an incorrect history. Dr Chin reported what he understood the applicant to have had, that was, a twisting injury climbing down the ladder, and considered the best course of treatment for the injury was right arthroscopy. While an ultrasound was initially carried out, this was followed by an MRI, which recorded a history of going up and down stairs, and which demonstrated an undisplaced horizontal cleavage tear.
Dr Gehr provided opinion about causation and mechanism of injury. With Dr Gehr having set out in his own report the opinions of others, one can be assured, Ms Grotte said, that Dr Gehr considered the information he had been provided with, which included the other doctors’ opinions and the contents of the applicant’s claim form, in forming his own conclusion. Following his examination of the applicant, Dr Gehr noted the history of injury and noted the mechanism of injury, being the constant repositioning and going up and down the ladder for a number of hours on 12 June 2020, and provided his conclusion. Dr Gehr provided opinion the applicant’s employment with the respondent was a substantial contributing factor to injury and also provided opinion the injury resulted in an incapacity for work. It is not necessary for Dr Gehr’s reasoning to be extensive, all that is required is that he provide explanation for his opinion and it is clear he had considered the nature and conditions of the applicant’s work duties on 12 June 2020 and concluded that these duties caused his right knee injury. Ms Grotte submitted that it was evident from his report that Dr Gehr had considered all relevant factors when providing opinion. Furthermore, she said, Dr Gehr addressed Dr Ridhalgh’s opinion and explained why he did not accept it.
That the applicant was carrying out the duties that he said he was on 12 June 2020 is not challenged, and Ms Grotte submitted I should be comfortable with the opinion provided by Dr Gehr rather than that provided by Dr Ridhalgh as it was evident that Dr Gehr had considered other medical opinion, including that of Dr Ridhalgh, whereas Dr Ridhalgh did not have Dr Gehr’s opinion at the time he provided his opinion.
Ms Grotte submitted that on balance there was sufficient evidence before the Commission to establish the applicant did sustain an injury to his right knee during the course of his employment with the respondent on 12 June 2020 and that he suffered an incapacity for work as a result of the nature .
Relevant to the applicant’s incapacity, the WorkCover Certificates of employment demonstrated certification for restricted duties “for normal hours and normal days” up until the applicant came to surgical treatment, with total incapacity thereafter to date. It is the applicant’s case that he was placed in a difficult position when his restricted duties were withdrawn as he could not look for work because his employment (which was linked to his apprenticeship) was not terminated and as a consequence he could not realise his capacity as assessed by his general practitioner. It was Ms Grotte’s submission that in such circumstances the applicant should be compensated as if he was totally incapacitated for work.
Respondent’s submissions in reply
Through Mr Robertson of counsel, the respondent pointed out that Dr Ridhalgh had clearly set out what the applicant was doing when he experienced symptoms on 12 June 2020 but had concluded that the condition the applicant suffered in his right knee was not caused by his employment with the respondent. While Dr Gehr had answered questions, Dr Gehr had failed to reason why he concluded the condition the applicant suffered in his right knee was caused by his employment with the respondent. It was true Dr Li accepted that climbing a ladder could cause pain, but Dr Li never said it caused the meniscal tear the applicant sustained.
Determination
Injury
Section 4 of the 1987 Act defines “injury” to mean personal injury arising out of or in the course of employment and includes a disease injury. Section 4 of the 1987 Act must be read together with s 9A of the 1987 Act, which essentially provides no compensation is payable under the 1987 Act in respect of injury if the employment was not a substantial contributing factor to injury.
The law in relation to “substantial contributing factor” was considered by the NSW Court of Appeal in Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited[9] and Da Ros v Qantas Airways Ltd[10]. It was said that for employment to be “a substantial contributing factor” to the injury for the purposes of s 9A the causal connection must be “real and of substance” and in determining whether a worker’s employment was a substantial contributing factor the matters specified in s 9A(2) must be taken into account to the extent they are relevant.
[9] [2009] NSWCA 324; DDCR 75.
[10] [2010] NSWCA 89.
Relevant to the issue of causation, in Kooragang Cement Pty Ltd v Bates[11] Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation”.
[11] (1994) 35 NSWL 452; 10 NSWCCR 796at [463] (Kooragang).
As noted, the respondent placed injury in issue and the applicant has the onus of proving he sustained injury to his right knee on 12 June 2020. This is a question of fact, and in this matter a consideration of the lay evidence and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[12] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and Mc Tierman JJ) in Helton v Allen [1940] HCA; (1940) 63 CLR 691 at 712.”
[12] [2008] NSWCA 246.
While in his statement the applicant made reference to experiencing pain in his right knee due to the repetitive climbing of ladders, lifting, squatting, bending and twisting that was required of him during the course of his employment with the respondent and Mr Robertson pointed out that the applicant failed to mention this prior symptomology to his treating doctors or the independent medical examiners, in the context of the more significant symptomology specifically occurring on 12 June 2020 as the applicant “began climbing up the ladder” partway through his assigned job, I do not believe this omission on the part of the applicant to be of any great moment in circumstances where the applicant was able to seamlessly undertake the work duties required of him by the respondent up until he “experienced pain and tightness” in his right knee when he began climbing up the ladder partway through his job on 12 June 2020.
Mr Robertson also pointed out that the circumstances of injury described by the applicant’s treating surgeon, Dr Chin, in his report dated 4 August 2020 was inconsistent with that described elsewhere, in that Dr Chin reported the applicant as having sustained “a twisting injury when he was climbing down from the ladder”. It is true that in his statement and his claim form the applicant made no reference to having sustained a twisting injury when climbing down from the ladder, and neither do Dr Li, Dr Gehr and Dr Ridhalgh record this described mechanism of injury. While it may be difficult to understand why Dr Chin recorded the mechanism of injury in this manner (particularly so in circumstances where the clinical history recorded on the MRI report dated 8 July 2020, being the MRI report referred to by Dr Chin in his report dated 4 August 2020, made reference to “right pain after climbing up and down stairs. No history of injury”) I am not prepared to dismiss Dr Chin’s opinion as unreliable in circumstances where the applicant consistently reported elsewhere that he felt pain in his right knee when climbing the ladder part way through his assigned job and Dr Gehr had Dr Chin’s report available to him at the time he prepared his independent medical report relevant to the applicant. The weight given to the opinion provided by Dr Chin is a matter for the Commission[13].
[13] Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351.
Dr Gehr provided opinion the applicant sustained an injury in the nature of a lateral meniscus tear to his right knee on 12 June 2020 and provided opinion that the applicant’s employment with the respondent was a substantial contributing factor to injury. Although Mr Robertson was critical of Dr Gehr’s opinion in that he said Dr Gehr had not explained how it was the applicant climbing the ladder gave rise to the lateral meniscus tear, it is evident from Dr Gehr’s report that in providing the opinion he did, Dr Gehr had considered significant information made available to him (which included but was not limited to the applicant’s claim form, the report prepared by Dr Ridhalgh, the diagnostic imaging and the clinical file of Prestons Medical Centre, all of which described to some degree the nature and conditions of the applicant’s duties on 12 June 2020) and reached conclusion “the circumstances of his work was enough to cause his right knee injury”. Dr Gehr also usefully explained why it was that his opinion as to causation differed to that of Dr Ridhalgh. While Dr Ridhalgh provided opinion the applicant’s right knee injury, which he described as being in the nature of early degeneration of the lateral meniscus, was most likely due to the applicant’s body mass and valgus knee and Dr Gehr said that he too found “a similar body max index and similar valgus knees”, Dr Gehr provided opinion that at the age of 22 years “it is far too early to consider this as the only cause of his problems with his knees”. Although I agree Dr Gehr’s reasons going to the issue of causation could have been more extensive, Dr Gehr is not required to “offer chapter and verse” in support of his opinion[14] and I accept he had all the relevant evidence before him when he formulated his opinion.
[14] Sydney Wide Distributers Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [89].
The clinical records of Dr Li and the clinical history provided with the MRI right knee are consistent with the applicant having experienced pain in his right knee associated with climbing up and down stairs and both Dr Gehr and Dr Ridhalgh have recorded a history of the applicant having experienced pain in his right knee associated with his work duties on 12 June 2020, being duties which included climbing up and down ladders. Although Dr Gehr and Dr Ridhalgh do not agree as to the cause of the applicant’s right knee injury, I prefer the opinion provided by Dr Gehr over that provided by Dr Ridhalgh because it is evident that at the time he formulated his opinion, Dr Gehr considered the opinion provided by Dr Ridhalgh and provided reasoned explanation as to why his own opinion differed from that of Dr Ridhalgh.
I am of the view the applicant provided a credible history regarding the symptoms he experienced in his right knee as a result of the nature and conditions of his work duties on 12 June 2020, being work duties that are not challenged, and I am of the view the medical evidence, particularly the opinion provided by Dr Gehr, demonstrates connection between the applicant’s employment with the respondent and the onset of symptoms that day.
Considering the credible explanation given by the applicant regarding the symptoms he experienced on 12 June 2020, the support to some extent afforded him by Dr Li who accepted that frequently climbing up and down stairs could cause knee pain and that frequently climbing up and down stairs could be one of the contributing factors to injury, the support to some extent afforded him by Dr Chin, and the support afforded him by Dr Gehr in particular, I am of the view the applicant suffered injury to his right knee as a result of the nature and conditions of his employment with the respondent on 12 June 2020 as alleged.
In the circumstances and having regard to the authorities and evidence discussed, I accept the applicant has discharged the onus of proof required of him. I accept the applicant suffered an injury to his right knee in the course of his employment with the respondent on 12 June 2020 and that his employment with the respondent was a substantial contributing factor to injury.
Capacity
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during incapacity”.
As I accept the applicant sustained injury to his right knee on 12 June 2020 in the course of his employment with the respondent and I accept the applicant’s employment with the respondent was a substantial contributing factor to such injury as prescribed by s 9A of the 1987 Act, it follows the applicant may have an entitlement to weekly benefits payable under the 1987 Act.
Assessment of the applicant’s capacity for work since 16 June 2020 requires consideration as to whether he has “a current work capacity “or has “no current capacity” as defined by s 32A of the 1987 Act:
“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment either in the worker’s pre-injury employment or in suitable employment”
‘Suitable employment’ is relevantly defined in s 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a) Having regard to:
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify and
(b) regardless of:
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place or resident.”
It is apparent assessment of the applicant’s capacity for work since 16 June 2020 up until he came to arthroscopic surgery on 27 January 2021 requires consideration of the applicant’s capacity to undertake not only his pre-injury duties, but also suitable duties, and suitable employment, irrespective of its availability. This was accepted by former Deputy President Roche in Wollongong Nursing Home Pty Ltd v Dewar[15].
[15] [2014] NSWWCCPD 55 (Dewar).
The respondent has appropriately conceded the applicant would necessarily undergo a period of convalescence consequent on surgical treatment on 27 January 2021 during which time he will suffer a total incapacity for work, and accordingly I am only required to determine the applicant’s capacity for work (if any) during the period between 16 June 2020 and 27 January 2021, although it is my understanding the applicant did return to work restricted duties with the respondent for a short period of time in late June and early July 2020. There is however no evidence before the Commission which addresses the nature of the restricted duties the applicant was undertaking with the respondent during this period or which addresses whether this “suitable employment” was employment that was real and available in the labour market at large[16].
[16] Dewar.
The WorkCover Medical Certificates of Capacity issued over time by the applicant’s general treating doctor, Dr Li, certified the applicant fit for his normal hours and normal days with a large number of restrictions, including lifting up to 10 kgs, standing “as tolerance”, pushing/pulling ability up to 10 kgs, no twisting/squatting and avoiding uneven ground up until he came to arthroscopy on 27 January 2020. The first WorkCover Medical Certificate of Capacity before the Commission is dated 10 August 2020. Relevant to these certificates I note there is no report provided by Dr Li that specifically addressed the applicant’s capacity for work and I am mindful of what was said by former President Keating in DHL Excel Supply Chain (Australia) Pty Ltd v Hyde[17]:
“The certificates are of little probative value in the absence of a medical report to explain them or to set out the history of which they are based: Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 229; 6 DDCR 46”.
[17] [2011] NSWWCCPD 22 at [93].
Dr Ridhalgh assessed the applicant on 13 August 2020, at which time he noted the applicant was not working but was studying theory for his apprenticeship. Dr Ridhalgh noted the applicant’s symptoms on presentation to include pain in the posterior aspect, the lateral aspect and the medial aspect of his right knee. There was reported cracking and catching of the knee with pain that lasted for about a second. The applicant had a “giving way sensation” when walking, an activity he could only do for about 15 minutes. The applicant experienced difficulty kneeling and squatting. Relevant to the applicant’s capacity for work at that time, Dr Ridhalgh said the applicant could return to work in the next six weeks, initially working 4 hours each day for 3 days a week for 6 weeks “increasing as pain allows”. Dr Ridhalgh accepted the applicant should avoid squatting, kneeling and repetitive climbing up of stairs.
Dr Gehr assessed the applicant a little later on 13 October 2020 and noted the applicant’s symptoms at that time included pain over the anterior aspect of the right knee that was intermittent in nature. Dr Gehr reported an ability to sit for 20 minutes, an ability to stand for 30 minutes, an ability to walk for only 15 minutes, and stiffness of the right knee. Dr Gehr noted it was some 4 months since the applicant had sustained his injury on 12 June 2020 with “the symptoms remaining the same”. Dr Gehr also noted a decreased range of motion on examination. Dr Gehr provided opinion the applicant suffered an incapacity for work a result of the injury he sustained on 12 June 2020, and while he made no reference to whether such incapacity was partial or total, in response to specific questioning he suggested rehabilitation/retraining should be considered once the outcome of the arthroscopy was apparent.
While in his statement the applicant did not specifically address his capacity for work, the applicant said when he consulted with Dr Li when he was unable to successfully undertake his work duties after becoming symptomatic on 12 June 2012, Dr Li certified him totally incapacitated for work for the rest of the week. The clinical records of Dr Li indicated that when the applicant consulted with him on 24 June 2020 the applicant had returned to work the previous day on restricted duties, and when the applicant returned for further consultation on 13 July 2020 the respondent had reportedly “told him not to go to work this week unless fully recovered”.
At the time he signed his statement on 4 December 2020, the applicant talked of constant pain in his right knee, a difficulty with sitting or standing for prolonged periods, with swelling in his right knee that only subsided with rest if he was on his feet for a prolonged period, an ability to walk short distances only and an avoidance of going up and down stairs. He said too that he was heavily reliant on analgesic medication on a day to day basis to assist with pain.
I have considered the evidence before the Commission relevant to the applicant’s capacity for work since he sustained injury on 12 June 2020 and also counsels’ submissions. Dr Ridhalgh provided opinion following assessment on 13 August 2020 that relevant to the applicant’s right knee injury the applicant could return to work within the next six weeks and I accept the applicant had no current capacity for work up until 24 September 2020 (being six weeks after Dr Ridhalgh assessed him). Dr Ridhalgh is an orthopaedic surgeon and I prefer his opinion relevant to the applicant’s capacity to work during this period over that of Dr Li who is a general practitioner.
Noting Dr Ridhalgh also provided comment at the time of assessment on 13 August 2020 that the applicant had restrictions and any upgrade from an initial 12 hour week for six weeks was dependent on tolerance of “pain”, with Dr Gehr providing comment following assessment on 13 October 2020 that the applicant’s symptoms had remained the same since he sustained injury on 12 June 2020 and opinion the applicant suffered an incapacity for work as a result of his right knee injury, I do not accept the applicant would have been able to return to work as optimistically anticipated by Dr Ridhalgh.
While it is apparent the applicant returned to work on restricted duties with the respondent for a short period in late June and early July 2020 there is no evidence that this suitable employment was “real” and I accept the applicant had no current capacity for work from 16 June 2020 up until he came to arthroscopy on 27 January 2021. I am comforted in reaching such conclusion by the description of significant ongoing debilitating symptoms that the applicant gives in his statement dated 4 December 2020.
Quantification of entitlement to weekly benefits
The applicant’s PIAWE is agreed at $560.50.
In accordance with s 36(1)(a) of the 1987 Act the applicant’s entitlement to weekly benefits is:
$560.50 x 95% - $0 = $532.48
In accordance with s 37(1)(a) of the 1987 Act the applicant’s entitlement to weekly benefits is:
$560.50 x 80% - $0 = $448.40
The applicant’s entitlement to weekly benefits is to be indexed in accordance with s 82A of the 1987 Act.
Treatment
The respondent does not dispute medical and related treatment costs claimed by the applicant in the sum of $2,079[18] were for reasonably necessary treatment for the injury the applicant sustained to his right knee.
[18] AAALD – 2 at page 14.
As I accept the applicant suffered injury to his right knee on 12 June 2020 in the course of his employment with the respondent and I accept the applicant’s employment with the respondent was a substantial contributing factor to injury, it follows he has an entitlement to compensation for the cost of medical or related treatment payable under ss 59 and 60 of the 1987 Act for that injury.
SUMMARY
The applicant sustained injury to his right knee on 12 June 2020 in the course of his employment with the respondent and the applicant’s employment with the respondent was a substantial contributing factor to injury.
The applicant has no current capacity for work resulting from the injury he sustained to his right knee. The applicant has an entitlement to weekly benefits payable under ss 36 and 37 of the 1987 Act. The respondent is to pay weekly benefits to the applicant, in accordance with ss 36 and 37 of the 1987 Act. The applicant’s PIAWE is agreed at $560.50. The applicant’s PIAWE will be adjusted in accordance with s 82A of the 1987 Act.
The applicant requires medical treatment and services as a consequence of his injury he sustained to his right knee. The respondent is to pay the applicant’s medical and related treatment in the sum of $2,079, in accordance with ss 59 and 60 of the 1987 Act.
Jacqueline Snell
MEMBER
22 March 2021
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