Cooper v Ventia Australia Pty Ltd

[2022] NSWPIC 281

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Cooper v Ventia Australia Pty Ltd [2022] NSWPIC 281

APPLICANT:

Jonathan Cooper

RESPONDENT:

Ventia Australia Pty Ltd

SENIOR Member:

Elizabeth Beilby

DATE OF DECISION:

9 June 2022

CATCHWORDS:

WORKERS COMPENSATION - Request for surgery to left knee; consideration of nature of heavy work performed by the applicant; award for the applicant.   

determinations made:

1.     1.           The applicant’s requirement for the total left knee replacement results from his employment with the respondent.

2.     2.           The respondent is to pay for the costs of and incidental to a total left knee replacement.

3.     3.           The applicant was unable to work due to his injury and as such there should be an Award for the applicant for the following periods:

a.   (a)       $780.33 from 3 February 2021 to 31 March 2021;

b.   (b)       $789.76 from 1 April 2021 to 5 May 2021;

c.   (c) $660.74 from 6 May 2021 to 30 September 2021;

d.   (d)       $665.06 from 1 October 2021 to 30 March 2022, and

e.   (e)       $679.37 from 1 April 2022 to date and continuing.

STATEMENT OF REASONS

BACKGROUND

1. 1.           The applicant seeks an order in relation to a total knee replacement of the left knee together with associated payments of weekly compensation for the period of incapacity following the surgery.

2. 2.           The applicant’s case is that whilst he was employed by the respondent as a school cleaner, he was required to undertake physically demanding duties. As a result of the nature and conditions of employment he developed pain through his left and right knees, with a consequential condition developing throughout the lumbar spine due to altered gait.

3. 3.           The applicant has provided a statement in support of the application. He says he commenced employment with the respondent in or around June 2019. The applicant describes that his hours at the Carrington Primary School were 20 hours per week. In 2020 his hours were extended to include a “COVID clean”.

4. 4.           The applicant describes his duties as physically demanding, he was the only cleaner at the school and was responsible for all classrooms, staff rooms, toilets and common areas. His duties included sweeping, mopping, vacuuming with a back-pack, cleaning all touch points, dusting, playground maintenance, picking up rubbish and clearing out bins. In addition he was responsible for all the classrooms and common areas such as hallways, lockers, hall and library, boys and girls toilets and canteen. Further, he also cleaned and maintained all staff areas including offices, dining areas, canteens and toilets. The applicant describes that he was under pressure to perform these tasks within tight timeframes and felt that he had to rush from task to task and felt exhausted.

5. 5.           The applicant says in approximately September 2020 he began to observe symptomatology in his left knee. He was able to push through the dull aching in the left knee and continued to work however observed that he started to favour his right knee in an attempt to take the weight off his left side.

6. 6.           The pain became unbearable in the period late November/early December 2020 and the applicant thought that given he had a Christmas break coming up he would be able to push through the pain even if it meant vomiting. He was looking forward to having an entire month off work to recover.

7. 7.           Over the Christmas break the applicant’s knees did feel better, however did not return to normal.

8. 8.           When the applicant returned to work in January 2021, he observed that the pain in his knees returned to the pre-break level.

9. 9.           The applicant consulted with his treating doctor on 3 February 2021 and was certified with no capacity for work. He was referred for an x-ray and MRI scan.

ISSUES FOR DETERMINATION

1. 10.         The parties agree that the following issue remains in dispute:

   a.   (a)       does the applicant’s need for a total knee replacement result from employment with the respondent?

Issues not in dispute

a.11.         One of the issues raised was the late making of the claim. This issue was not advanced in any submissions made by the respondent and as such I do not need to turn my mind to that potential issue.

PROCEDURE BEFORE THE COMMISSION

a.12.         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

a.13.         The following documents were in evidence before the Commission and considered in making this determination:

b.   (a)       Application to Resolve a Dispute (the Application) and attached documents;

c.   (b)       Reply to the Application to Resolve a Dispute and attached documents, and

d.   (c) late documents dated 2 March 2022.

Nature of the dispute

a.14.         It seems to me that the respondent takes issue with two aspects of the applicant’s claim. The first issue is the date of injury and the second issue is the nature of the applicant’s work with the respondent. It does not need to be said that there is a significant medical issue in relation to causation arising from that issue.

Respondents lay evidence

a.15.         The respondent has filed lay evidence from Ms O’Hearn, Ms Doran, and Ms Filippou. The evidence filed are transcripts of interview. It should be observed that all three transcripts are not sworn by either the person that took the transcript nor the interviewee.

b.16.         Whilst these documents are unsigned, I hold the view that they are to be admitted and it is a question as to the weight that I give them.

c.17.         Without delving into the minutiae of each statement, it is clear that the general consensus presented in those three records of interview is that the applicant’s work involved cleaning duties which were described as “emptying bins, vacuuming, damp wiping, dusting and some external cobwebbing, maybe some leaf blowing on school grounds, mopping floors and cleaning toilets”.

d.18.         Further, Ms O’Hearn describes that the heaviest the applicant would have to lift would probably be a 6 kg back-pack.

e.19.         Ms Doran describes that there was only ‘regular housework-type’ work done such as emptying bins, vacuuming floors and wiping tables. In addition, there was a vacation clean in the school holidays that was a little bit more detailed but at other times it is just cleaning the toilets, vacuuming the floors, mopping the floors, wiping tables and emptying bins. Ms Doran also describes the applicant as a good worker.

f.20.         Ms Filippou confirms that the applicant was a good worker however concedes that she did not look after the area he was working in since March 2020. She described him as conscientious and always willing to learn. She does recall on a Friday or a Saturday night the applicant called her to say he could not come to work because he had come off a brand new pushbike in the rain and hurt his arm and his leg.

g.21.         What can be seen from those three statements, even though they are unsigned, is that these three witnesses all confirm that the nature of work was of a cleaning nature. He was the only cleaner on site and the work increased for COVID.

Other lay evidence

a.22.         The applicant underwent a pre-employment medical on 30 April 2019. The Workforce health assessor’s report which was prepared following that assessment deemed the applicant to be medically fit and suitable for the proposed role.

b.23.         It should be observed in that document that the cleaner’s role was classified as “medium physical demand work”. It involved frequent bending, squatting and working at low levels and also above head height. The cleaner would not lift more than 10 kg however were required to lift and carry for long durations. The cleaner would undertake mopping, sweeping and vacuuming (with an 8 kg back-pack vacuum), cobwebbing, dusting and wiping, cleaning toilet blocks, strip and seal of floors and also perform waste collection. Cleaners were required to operate leaf blowers and also required to work on uneven ground at times.

c.24.         It was also observed in that report that the job role placed stress on the body in various areas which included the knees.

d.25.         The applicant completed a claim form dated 16 April 2021.

e.26.         The date of injury is indicated at page 5 to be 7 April 2021.

f.27.         The applicant says that he is asked in that claim form what tasks were you doing when you were injured? The applicant replied:

“Nature and conditions of employment as cleaner. Physical work, including bending, twisting, lifting, squatting, pushing, pulling, etc. Condition developed over time between April/May 2019-early February 2021.”

a.28.         The applicant then is asked what happened and how were your injured? The applicant replied:

“First noticed discomfort in left knee approximately one year into the job.”

a.29.         The respondent submits that the reference to April/May 2019 suggests that the applicant was experiencing symptomatology before he commenced work with the respondent.

b.30.         I do not agree with this submission. It is apparent when the document is read as a whole that the applicant placed his onset of symptoms approximately one year after he commenced with the respondent. It is quite clear and I accept, as the applicant’s submits, that the reference to April/May 2019 must be an error because it should be April/May 2020 which is approximately one year after he commenced with the respondent.

c.31.         In any event, the health examination that the applicant underwent before he commenced work with the respondent occurred on 30 April 2019 and the applicant had no problems with his knees at that stage.

d.32.         I therefore make a finding of fact that the applicant’s reference to April/May 2019 is an error and should indeed be April/May 2020. I accept the applicant’s evidence that he observed the onset of his symptoms approximately one year after he commenced work with the respondent which would have been in approximately April/May 2020.

e.33.         In relation to the duties the applicant has performed, I observe whilst I have admitted the transcripts of interview of the three respondent witnesses, I do observe that none of these statements have been signed by either the interviewer or the interviewee. I afford the evidence contained in those transcripts minimal weight accordingly.  In any event, I also observe that none of these witnesses actually performed the work of a cleaner and were not on site while the applicant did his work.

f.34.         I accept the applicant’s description of the heavy duties he performed as he was the best person to describe what he did whilst he worked for the respondent. There was no reason for me not to accept him as a witness of truth and I do so.

Medical evidence

a.35.         There is no dispute in this case that the applicant does require a total left knee replacement. What is in issue is whether that results from his employment with the respondent.

b.36.         I will now look at the medical evidence in this case.

Dr Murray Hyde Page

a.37.         Dr Murray Hyde Page has prepared a report at the request of the applicant’s solicitors dated 22 September 2021. Dr Page takes a history of the applicant working as a cleaner with work consisting of being on his feet mopping, vacuuming and doing general cleaning. He also takes a history that the applicant’s intensity of work as a cleaner put increasing pressure on his knees especially the left knee.

b.38.         No specific injury was recorded to the left knee but the applicant said that by September 2020 the applicant had developed constant pain with some swelling and stiffness.

c.39.         In respect of past history, Dr Hyde Page took a history of a fall from the applicant’s pushbike in 2019, also a minor twisting of the left knee at the end of 2021.

d.40.         After reviewing the treating notes, performing a physical examination and considering the radiology, Dr Hyde Page opined that the applicant presented with severe medial compartment osteoarthritis of the left knee with pain, stiffness and swelling. He thought that this appeared to have come on due to the nature of the work as a school cleaner from the middle of 2019. He explained that the nature of the work had put a lot of strain through the applicant’s left knee and he had developed increased pain, swelling and stiffness.

e.41.         Dr Hyde Page also opined that the applicant had suffered a consequential injury to the right knee however that is not an issue before me in this dispute.

f.42.         It is quite clear that his opinion was that the nature of the work as a cleaner where the applicant was constantly on his feet and doing physical tasks put strain through his knees, particularly the left knee resulting in him developing pain, swelling and stiffness in the left knee where he appears to have aggravated underlying osteoarthritis of the left knee that had previously been asymptomatic.

g.43.         In relation to capacity Dr Hyde Page said that the symptoms in the left knee were so severe by 2 February 2021 that the applicant could not work and he remained completely incapacitated for work since then due to the severity of his left knee symptoms.

h.44.         The doctor opined that the applicant should have a total knee replacement and then may be able to return to work as a school cleaner within a few months.

Dr Barnett

a.45.         Dr Barnett is the applicant’s treating general practitioner. The applicant consulted with 
Dr Barnett on 27 January 2021. Dr Barnett took a history that the applicant had been riding a pushbike home and his left knee which had been sore and manageable was now aggravated. He also took a history that the applicant had observed that there had been an aggressive worsening of the knee with work activities as a cleaner. Dr Barnett diagnosed the applicant as having  “severe symptomatic arthritis in the left knee” and certified him for no current work capacity.

b.46.         In a letter dated 13 August 2021, Dr Barnett diagnosed the applicant as having arthritis of the knee. He describes it as ‘severe’ with extensive meniscal change. Dr Barnett says that the applicant initially presented with a sore knee on 27 January 2021 and made mention of a pushbike that had triggered his presentation to him. Dr Barnett says that the applicant outlined his work as a cleaner, walking on stairs, carrying items etc which contributed to his knee problem and he suggests that repeated loads on the knees such as climbing stairs with loads can trigger degeneration and early arthritis.

Dr Harrington

a.47.         Dr Chris Harrington has prepared a report dated 20 August 2021. In that report 
Dr Harrington understands that the applicant developed gradual left pain around the middle of last year but denied any direct injuries. He understands that the applicant had passed a vigorous medical clearance prior to commencing employment with the respondent.

b.48.         Dr Harrington takes into account the applicant described his work as a physical job as a cleaner working 30 hours a week however says that bilateral arthritis of the knees is a constitutional condition and that one side being more symptomatic than the other is not uncommon.

c.49.         Dr Harrington opines that the applicant’s history is consistent with underlying arthritis becoming symptomatic. Whilst there may have been an aggravation due to the nature and conditions of employment, the underlying condition and the cause for treatment was constitutional. Dr Harrington said that despite the applicant not having worked since February 2020 (a period of 6 months), the applicant’s symptoms had not really changed which was a natural history of an arthritic joint. Indeed he says the condition was going to become symptomatic whether the applicant worked as a school cleaner or a bank teller because that is the nature of arthritis.

d.50.         Dr Harrington does agree that the applicant was a good candidate for a total knee replacement.

Consideration

a.51.         There is obviously a conflict between the opinions of Dr Harrington and Dr Hyde Page. What they both agree on is that there has been an aggravation to an underlying condition as a result of the applicant working as a cleaner. The divergence in opinion appears to be whether that type of condition tends to remain symptomatic once symptoms have commenced.

b.52.         To my mind it was clear that the onset of symptoms occurred at the time the applicant was doing work as a cleaner. The symptoms have persisted and the continuing symptoms I am persuaded are evidence of a continuing aggravation. The damage has been done while the applicant has worked for the respondent and that pain has continued.

c.53.         I also agree with the applicant’s submissions whilst that Dr Harrington does consider that the knee would have become symptomatic whether the applicant worked as a school cleaner or bank teller, he does not explain this clearly and as such it’s not persuasive. To my mind his opinion is not supported by any reasoning, it really does not explain to me, where he accepts the onset of symptomatology is at work as a cleaner, why that would occur in the work of a bank teller at that same time.

d.54.         Therefore, so where there is a conflict between the opinion of Dr Harrington and 
Dr Hyde Page, I prefer the opinion of Dr Hyde Page.

e.55.         I also observe the opinion of Dr Hyde Page is also consistent with that of the general practitioner. This to my mind adds weight to the conclusions therein.

f.56.         In those circumstances I find that the applicant’s requirement for the total left knee replacement results from his employment with the respondent and direct the respondent to pay for the costs of and incidental to a total left knee replacement.

g.57.         There is no issue that the applicant was unable to work as pleaded and as such there should be an award for the applicant for the following periods:

a.   (a)       $780.33 from 3 February 2021 to 31 March 2021;

b.   (b)       $789.76 from 1 April 2021 to 5 May 2021;

c.   (c) $660.74 from 6 May 2021 to 30 September 2021;

d.   (d)       $665.06 from 1 October 2021 to 30 March 2022, and

e.   (e)       $679.37 from 1 April 2022 to date and continuing.