Dellar v State of New South Wales (NSW Police Force)
[2022] NSWPIC 19
•14 January 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Dellar v State of New South Wales (NSW Police Force) [2022] NSWPIC 19 |
| APPLICANT: | Shane Peter Dellar |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| MEMBER: | Philip Young |
| DATE OF DECISION: | 14 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Section 4(b)(ii) of the 1987 Act; prior left knee injury and surgery; claim for section 66 & 67 compensation; whether aggravation, acceleration, exacerbation, or deterioration of underlying degenerative condition and/or prior injury; late notice and late claim alleged; Held- applicant had work-related PTSD as reasonable cause to explain late notice/claim; high tibial osteotomy results from aggravation, acceleration, exacerbation and deterioration; reasonably necessary; matter remitted to the President for referral to Medical Assessor for WPI determination. |
| DETERMINATIONS MADE: | 1. The applicant in the course of his employment with the respondent between December 2012 and 6 April 2018 suffered injury to his left lower extremity (left knee) namely aggravation, acceleration, exacerbation or deterioration of his underlying degenerative knee condition within the meaning of section 4 (b) (ii) of the Workers Compensation Act 1987 (1987 Act) by reason of the nature and conditions of his employment (the injury). 2. The applicant’s employment was a substantial contributing factor to the injury within the meaning of the 1987 Act. 3. The applicant’s employment aggravated and accelerated the injury such that a left knee high tibial osteotomy was reasonably necessary medical treatment. 4. The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant’s whole person impairment, if any, which results from injury to the applicant’s left lower extremity (left knee) with deemed date of injury 6 April 2018. 5. The President’s delegate is requested to place before the Medical Assessor a copy of the Application to Resolve a Dispute and attachments, a copy of the Reply and attachments, a copy of the Application to Admit Late Documents and attachments and a copy of these Reasons for Decision. 6. The respondent is ordered to pay the applicant’s costs. 7. The parties are granted liberty to apply concerning the section 67 claim and/or any claim for costs uplift, if necessary, following receipt of the Medical Assessment Certificate. |
STATEMENT OF REASONS
Background
Shane Peter Dellar (the applicant) is a 36 year old man who was employed by the State of New South Wales (the respondent) as a police officer. He alleges injury to have occurred to his left knee by reason of the “nature and conditions” for want of a better expression of his employment between December 2012 and 6 April 2018. He was engaged by the respondent during this period of time and was officially medically discharged in 2019.
Apart from the general nature and conditions of his employment allegedly aggravating (etc) underlying degenerative disease, the applicant points to a special police course which he underwent in 2014 or 2015 in his attempt to be accepted to the State Police Protection Unit. The applicant says that this was an intensive physical course over a period of about six weeks which aggravated his left knee condition.
The applicant brings claims pursuant to sections 66 and 67 of the Workers Compensation Act NSW (1987) (1987 Act).
Issue
The issues in this matter are as follows:
(a) Is any failure of the applicant to give notice of injury and make a claim for compensation disentitling because of sections 254 and/or 261 of the 1987 Act?
(b) Did the applicant suffer any aggravation (etc) of underlying disease in respect of his left knee?
(c) Was the surgery undergone by the applicant reasonably necessary as a result of an injury within the meaning of sections 59 and 60 of the 1987 Act?
Evidence before the Commission
The following documents were admitted into evidence and were before the Commission:
(a) Application to Resolve a Dispute and attachments lodged 16 September 2021 (Application).
(b) Reply and attachments lodged 30 September 2021 (Reply).
(c) Application to Admit Late Documents filed by the applicant’s solicitor on 2 December 2021 and attachments (AALD).
Oral evidence
No oral evidence was given.
Procedure before the Commission
The matter came for conciliation and arbitration hearing before the Commission by telephone conference on 7 December 2021. Mr M Hammond of counsel instructed by Mr B Bourke appeared for and with the applicant. Mr F Doak of counsel instructed by Ms K Ralph appeared for the respondent.
The matter initially proceeded to conciliation but regrettably was not capable of resolution. I was satisfied that the parties to the dispute understood the issues relevant to the dispute and that I had used my best endeavours to attempt to effect settlement. That being the case, the jurisdiction of the Commission to proceed to arbitration hearing was enlivened.
Submissions
Counsel for both parties made oral submissions. I will refer briefly to the submissions where appropriate but do not propose to set them out in detail as a sound recording is available to the parties on request.
DISCUSSION AND REASONS
Section 254 of the 1987 Act
This section is in the following terms:
“Notice of injury must be given to employer
254 NOTICE OF INJURY MUST BE GIVEN TO EMPLOYER
(1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3) Each of the following constitutes special circumstances--
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act,
(e) the employer has contravened section 231,
(f) the injury has been treated in a first aid room at the place of work…”
It will be seen from section 254(3) that where a worker does not give notice of injury there is an “escape clause” concerning special circumstances[1]. The respondent points to West Lake v Sydney (2009) WCCPD 69 to suggest that the onus to prove the absence of prejudice is on the applicant. This submission was in response to the applicant suggesting that the respondent does not rely on prejudice such as absence of witnesses or loss of documents, or the like.
[1] Section 254(3)(a) 1987 Act.
A second escape clause is provided by section 254(3)(b) where the applicant’s failure to report the injury was because of ignorance, mistake or other reasonable cause. The respondent says that there was no reason between 2013 and 2017 why the applicant would not mention problems with his left knee as being related to work. The applicant claims that the applicant’s statement of 1 December 2021[2] makes it clear that the applicant was suffering from serious psychological injury, namely post-traumatic stress disorder (PTSD) near the end of his career. The medical evidence confirms that PTSD was complained of in 2017 and indeed was the subject of consultations the applicant had with his lawyers in 2018 and 2019 in circumstances where the applicant’s alleged left knee problem was not mentioned.
[2] AALD at page 9.
The extent of the applicant’s PTSD during this “non reporting” period (my words) is demonstrated by a number of medical records as follows:
(a) “Surgery consultation Recorded by: Dr Christopher McKenzie Visit date: 21/02/2017 Recorded on: 21/02/2017 History: Unable to sleep at all last m night? anticipatory Anxiety re Police Work Has happened before Reason for visit: Insomnia Shift Work Actions: Prescription printed: Temaze 10mg Tablet (Temazepam) 1 Before bed prn for sleep Letter printed. Letter written re. Medical Certificate. Management: Discussion Re Managing Anxiety/Insomnia techniques Review interval: Review if problem persists. XXX
(b) Surgery consultation Recorded by: Dr Christopher McKenzie Visit date: 07/03/2018 Recorded on: 07/03/2018 History: 1-2 year feeling anxious Insomnia Miserable Policeman Homelife Happy Psychiatric: Poor sleep. Early morning wakening. Depressed mood. Anxious. Stress at work. Irritability. No suicide attempts. No substance abuse. Reason for visit: Anxiety/Depression
(c) Surgery consultation Recorded by: Dr Christopher McKenzie Visit date: 19/03/2018 Recorded on: 19/03/2018 History: Presents for Results Management: Results Discussed Reason for visit: Depression Actions: Social history updated. Occupational history updated. Smoking history updated. Alcohol history updated. Results of S-HDL-CHOLESTEROL given to patient. Results of S-_ROUTINE CHEMISTRY given to patient. Results of BLOOD COUNT given to patient. Prescription printed: Lexapro 10mg Tablet (Escitalopram Oxalate) 1 In the morning Management: advice given Sites Beyond Blue etc”
Thereafter at Lennox Head Medical Centre: Consultations:
(a) Surgery consultation Recorded by: Dr Jonathan Evans Visit date: 06/04/2018 Recorded on: 06/04/2018 Reason for visit: Depression History: been feeling not good in the head anxiety/depression not well for 18/12 months has been started on Lexapro no SI no previous depression not enjoying things anymore not motivated has been socially withdrawn has been using sleeping tablets taking palexia for numbness at the moment not wanting to work next due at work next week in Jan started part time doing two days a week at the moment- two 12 hr shifts teary in consult Actions: K10 Assessment: Score 39. Impression: acute depression Plan: mhcp cont Lexapro
Quite apart from these initial consultations, the clinical records of Lennox Head Medical Centre confirm many attendances almost monthly on Dr Evans, general practitioner, for monitoring and treatment of the applicant’s PTSD between April 2018 and June 2019.
In the circumstances it is readily apparent in my mind that the applicant had an “other reasonable cause” for not giving notice of his left knee injury, namely his pre-occupation with his PTSD from 2017 throughout the end of his career in April 2018 and beyond and during litigation and treatment regarding this condition in 2019. I am satisfied that this PTSD condition accounts for a major reason why the applicant did not during that time report his left knee condition. The medical records and the applicant’s evidence demonstrate that the applicant’s PTSD during that period was dominating his need for treatment such that it explains why he did not give notice of injury.
Section 261 of the 1987 Act
This section is in the following terms: -
“WORKPLACE INJURY MANAGEMENT AND WORKERS COMPENSATION ACT 1998 - SECT 261 Time within which claim for compensation must be made
(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death…
(3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person's claim did not relate to the particular compensation in question.
(4) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either--
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker”.
Because of the nature of the injury, the date of injury in this matter is deemed to be the date of the applicant’s claim, namely 22 June 2021. If, for the purposes of section 261 (4) (a) the relevant date of injury is, however, the applicant’s last day of employment, then for similar reasons although the applicant did not strictly comply with the six-month limitation on making a claim, the applicant’s awareness of the need to make a claim occurred and was fulfilled in a claim made, in 2019 within three years of the applicant’s injury. In this regard, the applicant’s supplementary statement[3] confirms that during the period he was suffering PTSD his mental condition was such that he was planning on recovering money for his family and ending his life. I accept that evidence and I further accept that the applicant’s psychological condition was extremely unstable given this intention, sufficient to explain the existence of an “other reasonable cause”.
[3] AALD page 9.
Injury and substantial contributing factor
Because the applicant is an exempt worker, in the case of aggravation (etc) of a disease the employment need only to be a substantial contributing factor, not the main contributing factor to the aggravation (etc).
There is clear evidence that the applicant had problems with his left knee before joining the police force in late 2012. He was, however, on his own evidence experiencing pain from 2016 and as early as 2013 noted regular knee pain.[4] The pain became significant in 2016 as a result of violent arrests and he would often end up with a sore knee. This notwithstanding, the applicant was aware of the connection between his knee pain and his duties[5] and the respondent does not cavil with the applicant’s description of the physical nature of his duties. Clearly the applicant remembers significant stresses on his knee in his participation in the selection course and training course concerning the State Protection Group. The fact that he was able to participate in the physical activities associated with police work demonstrates in my view the substantial contribution made by this work to his deteriorating left knee condition. In other words, in my view the medical history is not consistent with ongoing gradual deterioration, but rather improvement following 2006 and then a return of problems from about 2013.
[4] Statement at [35].
[5] Statement at [46]
The prior condition
The applicant underwent previous surgery which was noted in 2002. In May 2006 he suffered an injury playing football and there is medical mention of degenerative changes and discussion concerning his left knee meniscus in October 2006. By March 2007 the applicant was experiencing an occasional twinge and his general practitioner’s notes[6] refer to long term issues with the applicant’s knee when referring the applicant to an MRI scan for chronic knee pain.
[6] Application at page 126.
The respondent has pointed to the fact that on several entries in the general practitioner’s notes in 2020 and 2021 in the context of the applicant’s psychological injury the applicant had (23 March 2020) surfed for four hours the other day and (on 24 March 2020 and 18 May 2020) was “surfing a lot”. By 18 December 2020 the notes described that the applicant’s “knee is good”.[7]
[7] Application at page 134.
There are earlier complaints of knee pain but also earlier notations to the effect that the applicant was surfing and was doing gymnasium work and these appear in entries of 4 June 2019, 9 October 2018 and 27 October 2018. These activities suggest that the applicant was able to surf and attend the gym but do not in my view necessarily mean that the applicant’s left knee was totally unaffected. The applicant’s initial statement[8] gives a clear picture of the applicant’s very high level of fitness as a professional footballer, then in his general police activities and application to the State Protection Group and training for it. The ability to surf and attend the gym must I believe be considered as a matter relative to his very high levels of fitness prior to this time.
Medical reports
[8] Application pages 5-7 at [34] to [43].
Dr S Rackemann
Dr Rackemann saw the applicant on 7 October 2002. He obtained a history that the applicant had injured his left knee five months ago whilst playing football. Dr Rackemann thought that the applicant may have sustained a lateral meniscus tear and/or anterior cruciate ligament injury and referred the applicant to an MRI scan.[9]
[9] Application at page 68.
The MRI scan was performed the following day, 8 October 2002 and showed a tear of the lateral meniscus and some associated tears in other positions but no tear to the anterior cruciate ligament.
Dr Rackemann provided on 29 November 2002 an arthroscope which did however demonstrate the torn anterior cruciate ligament (ACL) as well as the lateral meniscus tear. Dr Rackemann thought that reconstructive surgery would be necessary.[10]
[10] Application at page 47.
The applicant returned to see Dr Rackemann on 17 May 2006 by which time the applicant had been continuing to attempt to play football. Dr Rackemann noted that ACL reconstruction was necessary and this was performed on 23 May 2006.[11] At operation a graft was provided, tension and fixation with screws and staples.[12]
[11] Application at pages 47-48.
[12] Application at pages 49-50.
The applicant returned to see Dr Rackemann on 9 October 2006 at which time he reported a relatively asymptomatic left knee and Dr Rackemann noted a full range of movement and no effusion. The applicant at that time was back in the construction industry and Dr Rackemann felt that he could return to surfing in a further eight weeks.[13]
[13] Application at page 51.
The applicant again saw Dr Rackemann on 26 March 2007 by which time he was working and surfing and only experienced an occasional twinge at his left knee.
The reports of Dr Rackemann demonstrate in my view that the applicant had a significant prior left knee injury but surgery was successful so that by March 2007 the applicant was able to engage in rigorous physical activity.
Dr C Vertullo
The applicant was referred by his general practitioner to Dr C Vertullo, specialist orthopaedic knee surgeon. By this time (March 2020) he had just recently left the police force because of PTSD but had noted that his left knee problem was becoming worse. Dr Vertullo thought the applicant was probably “a candidate for an osteotomy”[14] and noted the applicant was going to lose some weight before that occurred.[15]
[14] Application at page 54.
[15] Application at page 54.
The applicant returned to see Dr Vertullo on 3 August 2020. Dr Vertullo recommended a closing wedge proximal tibial osteotomy.[16] That operation occurred on 13 August 2020[17] at which time bone grafts were applied as well as distal lock-in screws.[18]
[16] Application at page 55.
[17] Application at page 56.
[18] Application at page 56.
On 26 August 2020 Dr Vertullo reported to the applicant’s general practitioner that he had encouraged the applicant to start riding an exercise bike.[19] By 27 January 2021 the osteotomy had healed, and arrangements were made for surgery to take out the plate.[20] Some surgery occurred on 14 August 2020.[21]
[19] Application at page 58.
[20] Application at page 59.
[21] Application at page 62.
Further surgery occurred on 10 February 2021 for removal of loose bodies and the tomofix plate.[22]
[22] Application at page 65.
Dr J Clayton
Dr Clayton has provided three independent medical reports which were requested by the applicant’s solicitors. In his first report[23] Dr Clayton had before him Dr Rackemann’s reports, and consultation note, various radiological reports as well as Dr Vertullo’s reports. The applicant gave Dr Clayton a history of the football injury in 2002, his subsequent partial lateral menisectomy, a further football injury in 2006 and further surgery from which he fully recovered.[24]
[23] Application at page 34.
[24] Application at page 36.
The applicant told Dr Clayton that whilst training for the State Protection Unit he was involved in extensive gym work, weighted runs including carrying a sledgehammer and aggravation of his knee pain and swelling as well as further recurrent aggravations chasing offenders.[25]
[25] Application at page 36.
The applicant told Dr Clayton that he no longer surfs like he did before his injury but had commenced exercise in a commercial gym to attempt to regain fitness.[26] Following examination and consideration of the radiology Dr Clayton confirmed that the applicant’s injuries involved “significant workplace contributions”[27] such that he cannot physically undertake physical duties.[28]
[26] Application at page 37.
[27] Application at page 41.
[28] Application at page 42.
Dr Clayton’s second report of 21 June 2021 merely clarifies his earlier whole person impairment assessment.
Dr Clayton has provided a supplementary report dated 4 November 2021. In it he confirms his opinion that the applicant’s duties were a substantial contributing factor to the permanent aggravation and acceleration, and not simply a temporary exacerbation or deterioration of the applicant’s left knee arthritis.[29] Dr Clayton confirms that the applicant would have eventually developed systematic osteoarthritis, but the applicant’s general duties and physical training brought on the earlier need for the tibial osteotomy. He believed that the applicant underwent many permanent aggravations which accelerated the osteoarthritic disease process.
[29] AALD at page 6.
Dr S Kinny
Dr Kinny saw the applicant at the request of the respondent’s solicitors on 28 July 2021. Dr had before him the historical reports of Dr Rackemann, some reports of Dr Vertullo, the report of Dr Clayton and various radiology. The applicant gave Dr Kinny a history of the 2002 left knee injury and the ACL reconstruction in 2006 and confirmed that he was able to play touch football and OZ tag and surfed regularly after 2006.[30]
[30] Reply at page 3.
The applicant told Dr Kinny that he then noted left knee symptoms attending the State Protection course and that his left knee again became sore in late 2016 or early 2017.[31] The symptoms included pain after continued walking, swelling, clicking of the knee and aching at night.[32] Dr Kinny noted some loss of left knee extension and some crepitus.[33]
[31] Reply at page 3.
[32] Reply at page 5.
[33] Reply at page 5.
In Dr Kinny’s opinion the applicant had “significant prior damage” to his left knee when he joined the police service and some particularly physical aspects of his duties “resulted in a temporary aggravation of symptoms”.[34] Dr Kinny diagnosed progressive lateral compartment osteoarthritis following the events of 2002 and 2006.[35] He concluded:
“There is no history of any specific injury event which caused further damage to his left knee”.[36]
[34] Reply at page 6.
[35] Reply at page 8.
[36] Reply at page 10.
DISCUSSION
Although Dr Vertullo does not deal with the involvement of the applicant’s work in his symptoms over time, it is tolerably clear that the applicant notwithstanding his prior left knee problems was able to participate in police work for a period of five and half years between December 2012 and April 2018. There is no challenge to the applicant’s complaint regarding the nature of those duties. By 27 March 2007 the applicant was surfing and performing his construction work and indeed able to perform a number of light jogs. Dr Kinny records that after the earlier operations the applicant was able to play touch football and engage in surfing.
Dr Kinny does not appear to address the correct question concerning whether the applicant’s work has aggravated the underlining arthritic process. His conclusion, mentioned above, focusses on the need in the doctor’s opinion for “a specific injury event” causing further damage.
THE HIGH TIBIAL OSTEOTOMY
Whilst accepting that the applicant’s employment as a police officer resulted in temporary aggravations of his left knee, Dr Kinny ascribes the need for the high tibial osteotomy to the applicant’s prior injuries and asserts that it is probable that the applicant would have required this operation at about the same time in his life. Dr Kinny does not, however, provide any specific explanation as to how the applicant’s physical activity could have increased remarkably following his ACL reconstruction such that by March 2007 the applicant could play touch football, OZ tag and go surfing[37]. Dr Kinny also does not say that the surgery was not reasonably necessary.
[37] Reply page 9.
Dr Clayton specifically addresses the need for the surgery as follows:
“Was the need for Mr Dellar's high tibial osteotomy brought forward or hastened due to any aggravation or exacerbation or deterioration of any lateral compartment osteoarthritis caused by Mr Dellar's duties as a Police Officer?
The high tibial osteotomy that Mr Dellar underwent in August 2020 was reasonably necessary because of the permanent aggravation and acceleration caused by Mr Dellar's duties as a Police Officer. While it is expected that Mr Dellar would have eventually developed symptomatic knee osteoarthritis associated with his knee injury and the requirement of a partial lateral meniscectomy prior to entering into service for the NSW Police Force, his general duties and physical training (as outlined in my previous report), aggravated, and accelerated his knee osteoarthritis, bringing on the requirement for the tibial osteotomy at a much younger age than if he was in employment in a more sedentary position[38]”.
[38] AALD at page 7.
In my view the unchallenged ability of the applicant by March 2007 to perform physical activity as well as his ability to work as a police officer without major left knee complaint and his eagerness to enlist for the State Protection Group is not consistent with Dr Kinny’s reliance on a non-work- related gradual deterioration of the applicant’s arthritis. I accept Dr Clayton’s opinion concerning the need for the surgery because it accords with the objective facts regarding what the applicant was able to do.
Findings and Orders
The applicant in the course of his employment with the respondent between December 2012 and 6 April 2018 suffered injury to his left lower extremity (left knee) namely aggravation, acceleration, exacerbation or deterioration of his underlying degenerative knee condition within the meaning of section 4 (b) (ii) of the 1987 Act by reason of the nature and conditions of his employment (the injury).
The applicant’s employment was a substantial contributing factor to the injury within the meaning of the 1987 Act.
The applicant’s employment aggravated and accelerated the injury such that a left knee high tibial osteotomy was reasonably necessary medical treatment.
The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant’s whole person impairment, if any, which results from injury to the applicant’s left lower extremity (left knee) with deemed date of injury 6 April 2018.
The President’s delegate is requested to place before the Medical Assessor a copy of the Application to Resolve a Dispute and attachments, a copy of the Reply and attachments, a copy of the Application to Admit Late Documents and attachments and a copy of these Reasons for Decision.
The respondent is ordered to pay the applicant’s costs.
The parties are granted liberty to apply concerning the section 67 claim and/or any claim for costs uplift, if necessary, following receipt of the Medical Assessment Certificate.
0
0
0