Greater Western Area Health Service v Mackay - [2012] NSWWCCPD 33

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Greater Western Area Health Service v Mackay [2012] NSWWCCPD 33
APPELLANT:		Greater Western Area Health Service
RESPONDENT:		Dennis Terry Mackay
INSURER:		Employers Mutual Ltd NSW Treasury Managed Fund No 2
FILE NUMBER:		A1-9469/11
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:		8 March 2012
DATE OF APPEAL DECISION:		18 June 2012
SUBJECT MATTER OF DECISION:		Evaluation of evidence
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Hicksons Lawyers
Respondent:	Slater & Gordon Lawyers
ORDERS MADE ON APPEAL:		1. The Arbitrator’s determination of 8 March 2012 is confirmed. 2. The matter is remitted to the same Arbitrator to determine the remaining issues in dispute. 3. The appellant employer is to pay the respondent worker’s costs of the appeal.

INTRODUCTION

On 13 November 2008, the worker was injured when he was attempting to restrain a patient in the course of his employment. He suffered an accepted left elbow injury.
This appeal concerns whether, in the same incident on 13 November 2008, the worker also suffered an injury to his right knee, resulting in instability in the knee and consequential injuries.

BACKGROUND TO THE APPEAL

Mr Mackay was employed by the appellant employer as a health and security assistant at Bourke Hospital. On his days off from the hospital, Mr Mackay worked for the local IGA supermarket on a casual basis as a security officer.
On 13 November 2008, Mr Mackay was attempting to restrain a patient who had charged at him, causing him to lose balance and fall. He injured his left elbow, which is not in dispute. However, the worker’s allegation of injury to right knee in the same incident is disputed.
On 14 November 2008, Mr Mackay attended his general practitioner, Dr Sewell. Dr Sewell noted that Mr Mackay had attempted to crash tackle a scheduled patient who was trying to escape the day before, falling on his left elbow and striking it on the floor. The doctor’s examination was limited to the left elbow. He referred Mr Mackay for x-rays to exclude the possibility of a fracture in the elbow. He prescribed ice, rest and gentle mobilisation. He did not prescribe any medication.
On 17 November 2008, Dr Albert Gutmann performed an x-ray of the left elbow. He noted degenerative changes in the elbow and evidence of a healed fracture from a prior trauma.
On 19 November 2008, Mr Mackay saw Dr Piet Du Toit (in the same practice as Dr Sewell). He was seen for review of the complaint concerning the left elbow. Dr Du Toit certified Mr Mackay fit for work without restriction from 19 November 2008.
On 22 December 2008, Mr Mackay went on annual leave from his employment with the appellant until 24 January 2009. During this period, he continued working for IGA, seven days a week, nine hours a day, when the shop was open. He described that work as essentially light work, undertaking security duties, which required him to patrol the store.
On 23 December 2008, while walking from his home to collect mail, Mr Mackay’s foot “clipped the side of the gutter”, causing his right knee to give way and causing him to fall.
On 24 December 2008, he attended Dr Du Toit. The doctor recorded that Mr Mackay had fallen the previous day and injured his right knee. He noted that the ligament looked normal, there was evidence of effusion and the knee was painful. He ordered x-rays and his notes indicate, “Reason for visit – meniscus tear – knee – medial”. The doctor prescribed Panadeine Forte and Voltaren.
On 24 December 2008, Dr Gutmann performed an x-ray of the right knee, which did not demonstrate any abnormality.
On 7 January 2009, while at home, Mr Mackay was standing on a chair to change a light bulb. As he was stepping down from the chair, he placed weight on the right knee, which gave way under his weight, causing him to fall heavily onto the knee and his right elbow. He put his right hand out to break his fall and took most of his weight on the palm of his right hand. In doing so, he suffered a dislocation to the right elbow.
On 8 January 2009, around midnight, Mr Mackay attended Bourke Hospital emergency department and saw Dr Trevor Evans. Dr Evans noted the history as outlined in the preceding paragraph and recorded the dislocation to the elbow. He noted that Mr Mackay had consumed 10–12 drinks that evening “(more than usual)”. The dislocation to the right elbow was reduced. The doctor’s clinical notes include the following entry:
“PS The knee gave way due to a likely RT medial meniscal tear sustained a few days before. This will also need to be attended to.”
Mr Mackay was given a referral to Dr Stephen Ruff, an orthopaedic surgeon, with respect to the injuries to the elbow and knee. Dr Evans requested an x-ray of the right knee, noting, “Presented with dislocated RT elbow sustained when the right knee gave way due to a likely RT medial meniscal tear sustained last week”.
Mr Mackay was incapacitated for his work at IGA from 8 January 2009 to 24 January 2009 with respect to the injuries to the right knee and right elbow.
On 2 February 2009, an MRI was performed on the right knee. The findings were:
“Conclusion: Complete tear of the ACL. PCL is satisfactory. Buckethandle tear of the lateral meniscus. Small flap tear to the mid to posterior medial meniscus. Intrasubstance mucoid degeneration seen. Appearances of the MCL suggest a partial tear with menisco-capsular separation in keeping with a grade II MCL tear. Joint effusion seen. No significant pes anserinus bursitis evident. Minor degenerative cartilage changes at the patellofemoral and medial compartment cartilages.”
On 5 February 2009, Mr Mackay nominated Dr Van Lill as his treating doctor. There is no evidence of a claim form in the documents before me.
On 9 February 2009, the Treasury Managed Fund (TMF) refused to accept provisional liability on the basis of insufficient medical information.
On 16 February 2009, Mr Mackay saw Dr Van Lill. The doctor’s clinical notes (Application to Resolve a Dispute page 133) record, “Dennis feels that right elbow dislocation was directly due to unstable right knee – sustained ACL complete tear that causes unstable knee”. Dr Van Lill prescribed Rulide.
On 17 February 2009, Mr Mackay saw Dr Van Lill again for the right knee and right elbow injuries.
On 26 February 2009, Mr Mackay again visited Dr Van Lill. On this occasion, Dr Van Lill prepared a report to TMF which included an extract from the practice notes of 14 November 2008. Dr Van Lill stated:
“Right knee ACL complete tear + meniscal tear, sustained during same incident described in paragraph one. The unstable right knee led to a further injury where the patient dislocated the right elbow.”
The reference to paragraph 1 is a reference to the clinical notes of 14 November 2008.
On 4 March 2009, Mr Mackay underwent a medial and lateral meniscectomy, and a full reconstruction of the anterior cruciate ligament performed by Dr Andrew Ashton, orthopaedic surgeon.
Mr Mackay returned to work on 5 April 2009 on a structured return to work. He was on light duties for three months, and then resumed normal work.
On 3 March 2011, Mr Mackay’s solicitors issued a letter of demand claiming $15,400 in respect of an 11 per cent whole person impairment relating to the right lower extremity and the left upper extremity, pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), and the sum of $15,000 in compensation for pain and suffering pursuant to s 67 of the 1987 Act.
On 13 October 2011, TMF issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). TMF denied liability on the basis that medical evidence confirmed that the worker did not sustain an injury to his right knee following the reported incident on 13 November 2009, nor did he sustain an injury to the right elbow and right knee on 7 January 2009 as a result of his employment with the appellant.
On 25 October 2011, Mr Mackay lodged an Application to Resolve a Dispute in the Commission. He claimed weekly compensation benefits from 13 November 2008 to 31 January 2010, in the sum of $1,750 gross per week. He also claimed lump sum compensation in accordance with the terms of the letter of demand of 3 March 2011.
On 16 November 2011, TMF lodged a Reply in the Commission. It confirmed that the matters in dispute were in accordance with the s 74 notice.
On 15 February 2012, the dispute was listed before a Commission Arbitrator. The worker was represented by Mr Foster, solicitor, and the employer by Mr Baker, of counsel. No evidence was called at the arbitration. The legal representatives for both parties made extensive submissions. The Arbitrator reserved his decision.
On 8 March 2012, the Arbitrator issued a Certificate of Determination and Statement of Reasons. The Arbitrator found in favour of the worker. I shall come to the Arbitrator’s findings and reasons in due course.
On the same day, the Commission issued a Certificate of Determination in the following terms:
“1.     The applicant suffered injury to his right knee in the course of his employment on 13 November 2008.
2.     The applicant’s employment was a substantial contributing factor to that injury.
3.     The applicant suffered aggravation of the right knee injury and dislocation of the elbow of the right arm on 7 January 2009 secondary to the injury on 13 November 2008.
4.     The parties are to bring in draft orders consequent upon the above findings within 28 days.
5.     If the parties are unable to agree as to draft orders, leave is granted to approach the Registrar to seek a further telephone conference for the purpose of appointing a timetable for resolution of the matters still in dispute.”
Greater Western Area Health Service appeals the Arbitrator’s decision.

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties have submitted that the appeal can proceed on the papers, without a formal hearing.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the parties’ submissions, I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

ON THRESHOLD MATTERS

Section 352(3) is in the following terms:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.”
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

Mr Mackay

There are three statements of Mr Mackay in evidence. The first is undated, save for the year 2009.
Mr Mackay stated that he was born in 1964. Since leaving school, he gave a history of his employment in the Bourke area.
He obtained work with the appellant in about 2002 as a health and security assistant.
Mr Mackay worked a second job for the local IGA supermarket as a security officer. He said that he worked in the bottle shop from 10.00 am through to 7.00 pm. He said that his job involved watching out for drunks and shoplifters. He described the work as light, “Just basically just security work walking around”. He is employed by the supermarket on his days off from the hospital, on weekends and during periods of annual leave.
Mr Mackay described the events that occurred on 13 November 2008. He said that it occurred near the HD room. The patient was attempting to leave the hospital. The patient had been scheduled, that is, he was admitted against his will, and he wanted to go home. It was Mr Mackay’s job to prevent him from leaving. Prior to the incident, the patient had made a number of threats to Mr Mackay, threatening to punch him or kick him. He said:
“There was another RN there named Jeremy. He came running over. We stood in the doorway. The patient ran straight between the both of us. We attempted to prevent him from running away. We grabbed him. As we did, I sort of lost balance and went over. We crash tackled him to the ground. When I did, I landed on my left elbow and right knee.”
Mr Mackay stated that he struck his elbow heavily and it started to swell immediately. He had suffered an injury to the left elbow as a child. Mr Mackay stated that he reported for work the next day. During the course of the day, he had ongoing problems with the left elbow and right knee, and he attended Dr Sewell. He stated that his main concern was the left elbow, which was very swollen. Mr Mackay stated that Dr Sewell also examined his right knee. Dr Sewell arranged for an x-ray to be done at the hospital on the left elbow.
Mr Mackay stated that he saw Dr Du Toit on 19 November 2008 to get a clearance to go back to work. Up until then, he had been rostered off work, so he hadn’t put in a claim for workers compensation. During the period, he continued working at IGA. Mr Mackay stated that he then returned to work doing his normal duties, but he had ongoing problems with the left elbow and the right knee.
Mr Mackay said that he made a formal report in his notebook at work on 24 November 2008 that he continued to suffer right knee problems, adding:
“I believe that in my notebook I also recorded on the date of the accident problems with my right knee. Because it is part of my job to do the security reports, it is also documented in the security reports.” (Application to Resolve a Dispute page 52)
The statement of 2009 made no reference to an incident that occurred on 23 December 2008, but Mr Mackay did say that, because of problems with the right knee, Dr Du Toit arranged x-rays to be done on 24 December 2008. He said that he continued working in both jobs until he went on leave on 22 December 2008. He said that he borrowed a knee guard from a friend because of the ongoing problems with the right knee. However, his statement does not indicate when that occurred.
On 7 January 2009, Mr Mackay describes stepping down from a chair he was standing on to change a light bulb. He said:
“I steadied myself and put my knee down because I knew it wasn’t fantastic, but I didn’t think it would be so bad. When I went down on it, it just gave way completely on me. I fell. In the fall, I injured my right knee and right elbow. I badly dislocated my right elbow.”
The worker attended Bourke Hospital immediately, that is, either late in the evening of 7 January or in the early hours of 8 January 2009. The elbow was reduced in theatre. Mr Mackay was referred to Dr Trevor Evans, a relieving doctor in Bourke, because Dr Sewell had left the local practice. In due course, Dr Evans referred him to an orthopaedic surgeon, Dr Andrew Ashton in Orange. He was referred for an MRI on 2 February 2009, which demonstrated a complete tear of the anterior cruciate ligament. Reconstructive surgery took place on 4 March 2009.
The worker was incapacitated until 5 April 2009, when he returned to work on a structured return to work plan, eventually resuming full duties by 6 July 2009.
In a signed statement dated 15 February 2012, Mr Mackay added some further detail to his earlier statement. In respect of the incident that occurred on 13 November 2008, he stated that the incident was witnessed by the nurse manager and two registered nurses, including Jeremy, and also two ambulance officers.
Mr Mackay again stated that, on 14 November 2008, when he reported to Dr Sewell at the medical centre, he told Dr Sewell that he had hurt his knee, but his main concern was the left elbow.
After the incident on 13 November 2008, Mr Mackay said that he had “low grade pain in the left elbow and I also had intermittent problems with the right one [sic, knee]”. His friend, Michael Whitbread, provided him with a thermal knee splint, which he said helped and gave him support in the knee. He continued working and continued to wear the knee guard. He said that there was a little bit of swelling around the knee, but it was not as bad as the elbow, and so he “never really paid much attention to it”. At [24] of his statement of 15 February 2012, Mr Mackay said:
“What I found leading up to December was that if I didn’t wear the knee guard I had a sensation that the knee didn’t give me much support. There was a couple of occasions where I didn’t wear the knee support and I noticed that the leg would give way. I found that if I was getting out of bed first up, I couldn’t take weight on the leg and, if I had to run down to get the mail, I felt the knee wasn’t as strong as it was.”
At [25] of his statement, he said:
“Then, on 22 December 2008, I walked down from my home to get the mail and, as I was walking down, my foot clipped the side of the gutter, and my right knee gave way and I fell over. I should also advise you that the following day I went to see Dr Peter Du Toil [sic] and, at that stage, I went to see that doctor because I didn’t have a regular GP. It was basically whoever I could get to see first. I told that doctor that I had a fall on 22 December in the gutter and I told him also about the problems I had restraining the patient and Dr Du Toil [sic] was actually there at the time. He saw the end of when I had to restrain the patient earlier on. He then arranged for me to go and have x-rays by Dr Gutmann at the hospital and I believe these were conducted on 24 December 2008. At that stage I was on annual leave from the hospital, but I was doing my normal work with the IGA.”
In a third signed statement dated 15 February 2012, headed Supplementary Statement of Dennis Mackay, he said:
“My solicitor has shown me medical records from Dr Trevor Evans. I understand that Dr Evans in his notations on 8 January 2009 indicates that I told him ‘he had 10–12 drinks that evening (more than usual)’. I told Dr Evans that the following morning, after being admitted to hospital the previous night.
I had my aunty staying and we had gone out to dinner and I had consumed that number of drinks from 6.00 pm through to about 11.00 pm. I only drink light beer and I had a meal over that period and I was in no way inebriated at the time when I fell off the chair.”

Security report November 2008

The only contemporaneous record of the worker injuring his right knee in the incident on 13 November 2008 is contained in a security monthly report for that month. As the provenance of this report is in issue in the proceedings, I reproduce it in full:
“BOURKE HEALTH SERVICE
GREATER WESTERN AREA HEALTH SERVICE
SECURITY MONTHLY REPOR [sic] 2008
NOVEMBER 2008
Education
All H.S.A. to check Security License all NEW rules Updates.
Signature Book Security Checklist
A new checklist for security was started on the 2^nd November 2007.IS NOT getting filled out every shift. Has the checklist if not getting filled out on every shift it is becoming a security risk. (O H & S) This has to be done to let the next shift know what has happened during the shift.
Hazards.
Cameras in Nurses Station ,Keep going down (Power keeps going off)To fix problem we need a UPS 650volt amp 10 To 20 min @ Retroversion $249.00.Main entrance one light not working, Driving up to stores first light on the right not working , First light on the right driving up to the ambulance station not working. Cameras NOT WORKING the following days. CAMERAS WHERE [sic] NOT WORKING FOR; 24/30 DAYS.
Main entrance
H.S.A. keeps a watch on front door after 20; 00 8pm has Pt keep opening front door.
Keep a look out for kids walking down lane way; going around the back of Hospital police have been called,
Community Health
6^th Outside light facing Hospital NOT working TM.
22^nd NO Fit Packs in Hospital had to get some 1 box 22.30 Put 20 in container @ 22.40.
Cluster Office
Ambulance Station
18^th front window opened,
26^th Window Opened,
General
10^th Gates A18 & A19 needs locks for inside pins Work Requisition no 148029 DM
13^th Police called MH PT HDU 2 staff hurt RN jh HAS dm
MH PT wanted to leave the hospital we had to tackle him to stop him( MH PT) from leaving the hospital in doing so dm hurt (L) elbow very sore & ® knee landing on the ground. Jh hurting his knees & side in hitting the ground with MH PT & dm PT in the middle of dm & jh.PT is a big boy.
27^th Macquarie alarms rang NO DURESS, ALARM is NOT ON
28^th Macquarie alarms rang NO DURESS, ALARM is NOT ON
29^th Macquarie alarms rang NO DURESS, ALARM is NOT ON
Someone is turning the duress alarm off on the computer
The Duress Alarms are NOT getting checked on the 1^st of each month there are three with flat batteries as of the 01-12-2008.Time of report.
On rounds 21.00.”

Dr Peter Burgess

The worker relies on a report of Dr Peter Burgess dated 27 January 2011. Dr Burgess obtained the following history:
“He was hurt tackling a patient who was trying to run away. The man was very disturbed and two individuals were endeavouring to bring him under control, Dennis and a registered nurse. As he fell onto the left elbow his right foot struck the wall and was dragged down leaving a black rubber mark down the wall. This impacted on his right knee which consequently became painful and swollen due apparently to a twisting injury.”
Dr Burgess noted that the worker had immediately gone home and placed ice on the elbow and right knee. As he had two days off, he rested and took analgesia.
Dr Burgess recorded:
“Ultimately painful dysfunction of both saw him consult a doctor at the Bourke Medical Centre who sent him for x-rays of his elbow and knee.
…
The acute reaction of his right knee injury settled in a week or so but his knee remained dysfunctional in that it was unstable. It ‘clicked’ and ‘cracked’ and threatened to ‘give way’ and did so on several occasions. He remembers one embarrassing moment when while stepping up a gutter his knee went suddenly into gross valgus and he fell over. Following this latter occurrence in December 2008 he began to wear the knee guard on a permanent basis.”
Under the heading “Opinion and Prognosis”, Dr Burgess stated that, with regard to the knee injury, the original fall appears to have had a devastating impact on the integrity of the knee ligaments, evidenced by the MRI scan. He assessed the worker to be suffering an 11 per cent whole person impairment, of which nine per cent was due to the knee injury.

Dr Roger Pillemer

The appellant relied on two reports of Dr Roger Pillemer, orthopaedic surgeon, the first dated 14 July 2011, and the second dated 22 September 2011.
Dr Pillemer obtained the following history in respect of the injury on 13 November 2008:
“On 13 November 2008 he and another security person were trying to subdue a Scheduled patient when Mr Mackay fell onto his left elbow region and also hit his right knee on the ground and his right foot hit the wall. He says he took all of his weight and half of the patient’s weight on his right knee. He was immediately aware of significant discomfort in his right knee region but was more concerned about his left elbow which he had actually hurt as a child, and had had surgery for this. His left elbow has in fact settled down to what it was previously but he does have ongoing problems with his right knee and as will be noted below, he required surgery for knee ligament reconstruction.
I note that prior to his operation on his knee in January 2009 his knee gave way and he fell, landing on his right elbow which he dislocated.”
After taking a detailed work and treatment history, and details of his clinical examination of the knee and elbow, Dr Pillemer concluded:
“Mr Mackay sustained a significant injury to his right knee on 13 November 2008 when he was attempting to restrain a patient and he fell heavily on the knee, taking his full body weight on his knee and the patient also fell on the knee. He sustained a tear of his anterior cruciate ligament and tears of both menisci and had surgery for a knee ligament reconstruction and partial medial and lateral meniscectomies.
…
In my opinion, ongoing problems with his right knee are due to his original injury on 13 November 2008, and the problems with his right elbow are as a result of injury in January 2009 when his knee gave way.”
Dr Pillemer assessed a nine per cent whole person impairment, of which seven per cent was due to the injury to the right lower extremity.
Dr Pillemer provided a second report dated 29 September 2011. As a result of a review of the clinical records, Dr Pillemer changed his view as to the cause of the right knee injury, which he opined was not due to the injury on 13 November 2008, but was caused by the fall on 23 December 2008. He reported in the following terms:
“Thank you for your letter of 22 September 2011 regarding Dennis Mackay whom I examined on 14 July 2011 and forwarded you a report of that consultation.
As noted Mr Mackay informed me that he had injured his right knee on 13 November 2008 while trying to subdue a Scheduled patient. He had had significant ongoing problems with his knee since then.
Importantly in the notes you forwarded to me, I note that his general practitioner’s entry of 14 November 2008, the day after the suggested injury, notes the fall at work at 4.35 pm when Mr Mackay was required to crash-tackle a Scheduled patient who was trying to escape, and that he ‘fell on left elbow, striking it on the floor. Now very sore’. Importantly there is no mention of any knee injury at the time.
A subsequent entry on 24 December 2008 by Dr Du Toit notes ‘The patients (sic) had fall yesterday at (sic) injured his right knee – ligament looked normal on examination – there is a big effusion – on testing is painful when I test for cartilage damage’.
It seems quite clear then that Mr Mackay did not injure his right knee on 13 November 2008 but injured his right knee on 23 December 2008.
In answer to your specific questions then, in my opinion the ongoing problems with Mr Mackay’s knee are due to his injury in December 2008 and not from the injury on 13 November 2008.
In my opinion the fall on 23 December 2008 could well have caused the tear of the anterior cruciate ligament and both menisci.
In my opinion the injury in December 2008 could have caused his right knee to give way on 7 January 2009.
In answer to your further specific question, in my opinion Mr Mackay would not have been able to work his pre-injury duties and hours including overtime shifts between 13 November 2008 and 21 December 2008 if he had sustained a tear of his anterior cruciate ligament and both menisci on 13 November 2008.
If there are any further specific questions you would like me to try and answer, I would be happy to do this.”

ISSUES BEFORE THE ARBITRATOR

The issues for determination by the Arbitrator were:
(a) whether Mr Mackay suffered an injury to his right knee in the course of attempting to restrain a patient during the course of his employment on 13 November 2008;
(b) in the event that there was an injury to the right knee in the course of his employment and if a consequential injury to his right arm is established, what is the extent of Mr Mackay’s impairment?
The parties agreed that the second issue would be the subject of further discussion between the parties if the first issue were determined in favour of Mr Mackay.

THE ARBITRATOR’S REASONS

The Arbitrator accepted the appellant’s submission that there was no complaint of injury to the right knee disclosed in the medical records until 24 December 2008, following a fall on the previous day. He accepted that there was no reference in the medical records of a connection between the injury at work on 13 November 2008 and the condition of the right knee until 16 February 2009.
The Arbitrator also accepted the worker’s submission that busy medical practitioners do not always make comprehensive notes in the history of their observations (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]–[55]).
Even bearing that admonition in mind, the Arbitrator stated it seemed to him “strange” in the circumstances that Mr Mackay did not make a point of having his alleged earlier right knee injury condition noted by his doctor when he suffered the fall at home on 23 December 2008.
The Arbitrator noted that Dr Burgess’s opinion was based in part on an MRI scan which was not carried out until after the fall on 7 January 2009, stating:
“It is difficult to reconcile Dr Burgess’s opinion that the original fall (13 November 2008) caused a devastating injury to the knee when Mr Mackay was able to carry out his second job as a security guard at IGA while on leave from the hospital.”
He added that the work at IGA involved seven days a week, nine hours a day, from 22 December 2008 until the fall at home on 7 January 2009.
The Arbitrator found at [49] that Mr Mackay’s assertion in his statement of June 2009 that the reason Dr Du Toit sent him for x-rays of the right knee on 24 December 2008 was “because of ongoing problems with the right knee”, without referring at all to the fall the previous day, “does not allow confidence in the accuracy of Mr Mackay’s recollection”.
The Arbitrator concluded at [50] that the statements of Mr Mackay, the notes of the treating practitioners, and the opinions expressed by the specialists are insufficient to establish, on the balance of probabilities, that Mr Mackay suffered an injury to his right knee at work on 13 November 2008.
However, the Arbitrator placed considerable reliance on the security report referred to by Mr Mackay at [36] of his 2009 statement (Application to Resolve a Dispute page 52). Although that document is undated and unsigned, the Arbitrator accepted the probability that Mr Mackay was the author. In the absence of any evidence contradicting or explaining the significance of the document, the Arbitrator was satisfied that it was a security report probably lodged after 1 December 2008 and prior to Mr Mackay going on leave on 22 December 2008.
The Arbitrator found that, notwithstanding the inconsistencies in the medical history, which he accepted were probably due to the fact that busy medical practitioners do not always make comprehensive notes of the history and their observations (Reasons [45]), the security report sufficiently corroborates Mr Mackay’s assertion of an injury to the right knee in the incident on 13 November 2008 to discharge the onus of proof on the balance of probabilities.
The Arbitrator found that, as a result of the injury in the course of his employment on 13 November 2008, Mr Mackay suffered an injury to his right knee which subsequently led him to lose his balance while changing a light bulb at home, causing him to fall and injure his right knee and dislocate his right elbow. The Arbitrator found that the requirements of s 9A of the 1987 Act were satisfied. The issues concerning the extent of the worker’s incapacity were deferred to a further hearing.

GROUNDS OF APPEAL

The appellant alleges that the Arbitrator erred:
(a)     in the inferences drawn and the weight given to the document “Security Monthly Report” ([51] of the Determination);
(b)     in preferring a view of the primary facts when other probabilities so outweigh those chosen by the Arbitrator;
(c)     in overlooking material facts or giving too little weight to those facts in deciding the inferences to be drawn;
(d)     in failing to have any regard to either of the opinions of the treating doctor, Dr Evans, and that of Dr Pillemer.

SUBMISSIONS

The significance and weight attached to the “Security Monthly Report”

By way of preamble, the appellant asserts that there was consent between the parties that, given the s 74 notice, the worker was on notice that the appellant did not accept the truthfulness of his statements, including the late statement sought to be added to the evidence on the day of the hearing as late documents and, in particular, his assertion of injury to his knee as a result of the episode of injury on 13 November 2008.
The appellant submits that the respondent did not complain to any of his treating doctors of an injury to the right knee prior to the incident on 23 December 2008. At the consultation with Dr Du Toit the following day on 24 December 2008, Mr Mackay made no reference to the prior episode on 13 November 2008, or indeed any relevant antecedent complaint with respect to the right knee.
Having analysed the worker’s evidence and the notes from his practitioners, the Arbitrator concluded at [50] that the opinions expressed by the specialists were insufficient to establish, on the balance of probabilities, that Mr Mackay suffered an injury to his right knee at work on 13 November 2008.
In those circumstances, the appellant submits that the inferences drawn and the weight given to the security report, of questionable provenance and unsupported by any other evidence independent of the worker, was an error such that the Arbitrator’s conclusion was wrong.
The appellant submits that, while the Arbitrator was unsure of the date of the worker’s first statement, it appears to have been taken on 29 April 2009, after he was aware that the insurer had refused compensation.
The “Security Monthly Report” relied upon by the worker was undated, unsigned and not specifically referred to by the worker or adopted in his statement of 29 April 2009. Rather, there was only a general assertion that the matter was “… documented in the security reports”.
The worker asserted that he had made a formal report in his notebook at work on 24 November 2008 to the effect that he continued to suffer from right knee problems. The notebook was not tendered and there was no evidence adduced of that formal note.
In so far as the “Security Monthly Report” is concerned, there was no evidence before the Arbitrator as to the date the document was produced, the author of the document, or any of the formalities/protocols as to the production or content of security reports, and the relevance of this document in the light of that information. Neither did the document form part of a continuous record produced as a result of a Notice to Produce. This particular document was the only such report put into evidence by the worker, notwithstanding the worker’s assertion that the facts were recorded in the “security reports”.
The appellant submits that, given the circumstances of the dispute between the parties, the document was equally able to be inferred as a self-serving document brought into existence to support a claim which lacked contemporaneous documentary support.
The appellant submits that, while there is little doubt the document was produced by the worker, the crucial matters in determining its relevance were whether it was in fact part of the appellant’s security reports, whether it was contemporaneous with the events referred to in the document, and when in relation to the refusal of payments by the insurer it was created, particularly given the parties’ understanding that the truthfulness of the worker was in issue.
The respondent submits that the “Security Monthly Report” was provided to the appellant with the Application to Resolve a Dispute. No evidence was introduced by the appellant, who has control over all of the notification of injury notebooks and security reports, to dispute the authenticity of the copy of the security report produced.
The respondent submits that, had the appellant sought to challenge that the security report was not prepared contemporaneously with the injury taking place, it had the ability prior to the hearing to produce that evidence, but did not.
The respondent worker submits that the preparation of the document is consistent with the chronology, that is, after the initial incident, the worker sought very little treatment to either his knee or elbow and continued working both with the appellant and with IGA. There is no evidence that the document was prepared after the incident in January 2009.
The respondent worker submits that the Arbitrator did not err. He weighed up the factual issues and the fact that he reached a conclusion in favour of the respondent worker does not reveal error.

Were material facts overlooked or given too little weight?

In view of the chronology of events and the challenge to the worker’s truthfulness, the appellant submits that the Arbitrator failed to appropriately weigh the facts having regard to his finding that the worker had not made out his case to establish a causal connection between the injury on 13 November 2008 and the subsequent injury sustained on 7 January 2009, absent reliance on the history contained in the relevant “security report”.
The appellant submits that the Arbitrator failed to deal with the incongruity of the worker’s ability to continue in his normal duties and those in the employ of the IGA store, requiring as they did regular long standing and walking duties, while allegedly suffering the effects of a completely torn anterior cruciate ligament, as well as tears to the medial and lateral menisci. These conditions were accepted by the worker’s independent medical examiner, Dr Burgess, in his report of 27 January 2011, in which he described the injuries sustained by the worker in the episode of 13 November 2008 as “devastating”.
At [58] of the Arbitrator’s Reasons, he placed reliance on the fact that the appellant did not seek to challenge Mr Mackay’s assertion that the fall on 7 January 2009 occurred when his right knee gave way while he was getting down from a chair after changing a light bulb at home. Further, it was not disputed that this led to further injury to the right knee and dislocation of the right elbow. It is the appellant’s assertion that instability in the knee did not occur as a result of the incident on 13 November 2008 as alleged but, rather, on 23 December 2008. Any reliance otherwise was misplaced and did not support the conclusion the Arbitrator reached at [59] of the Reasons.
The respondent worker maintains that the appellant has misconceived the medical evidence. His case was that some damage was done to the right knee in the injury that took place on 13 November 2008. He does not suggest that there was a completely torn anterior cruciate ligament at that stage. The worker’s own evidence is that he recovered relatively quickly from the knee injury but suffered thereafter episodes of instability. The respondent worker says that his case is supported by his own evidence corroborated by the security report.
The respondent worker submits that it was only after the incident on 23 December 2008, when the worker’s knee gave way and prompted a clinical examination, that the possibility of an anterior cruciate ligament tear and other damage to the knee was identified. The respondent worker submits that the complete tear to the anterior cruciate ligament did not happen until the worker was further injured on 7 January 2009 while stepping down from a chair. The respondent worker submits that the Arbitrator’s analysis of this evidence was correct, is supported by the evidence, and does not demonstrate error.

Medical evidence

The appellant submits that the worker’s treating doctor, Dr Evans, clearly opined that his right knee gave way on 7 January 2009, most likely as a result of a meniscal tear suffered a few days previously. Dr Du Toit recorded on 24 December 2008 that injury occurred the previous day, resulting for the first time in the prescription of analgesia and anti-inflammatory medications, together with the first x-ray in respect of the right knee. These actions were consequent upon a diagnosis, as a result of the doctor’s examination and a finding of effusion and pain, of a torn medical meniscus.
Dr Pillemer, while initially supportive of the worker’s claim, after being provided with additional information independent of the worker’s history, produced a second report dated 29 September 2011. In this second report, he withdrew support for the worker’s claim, stating that, in his view, the worker did not injure his right knee on 13 November 2008, but injured it on 23 December 2008, which could well have caused the tear of the anterior cruciate ligament and the meniscal damage. In his view, it was the injury in December 2008 which caused the knee to give way on 7 January 2009. In his view, Mr Mackay would not have been able to work his pre-injury duties between 13 November 2008 and 21 December 2008 if he had sustained a tear of his anterior cruciate ligament and both menisci on 13 November 2008.
The appellant submits that Dr Pillemer’s evidence was the only specialist medical opinion on the issues in the case presented by both parties where the author had the full content of the medical facts before him. It submits that the failure to take into account or even refer to this opinion is an error by the Arbitrator.

The respondent worker submits that the information given to Dr Pillemer was deficient, in that he was not supplied with the security report which corroborated the worker having suffered an injury to his knee on 13 November 2008. The respondent worker submits that Dr Pillemer’s report is based on an understanding that he gave no history of an injury to his knee on 13 November 2008. The respondent worker contends that, had Dr Pillemer been given access to the security report, “he would have supported the injury to the knee as he did in his first report after having examined the respondent”.

DISCUSSION

The issue for determination before the Arbitrator was whether Mr Mackay suffered an injury to his right knee in the course of his employment on 13 November 2008 while attempting to restrain a scheduled patient from leaving the hospital.
The worker’s evidence on this issue was inconsistent with a number of objective facts. For example, when Mr Mackay saw his general practitioner, Dr Sewell, the day after the alleged injury on 14 November 2008, he made no mention of an injury to his right knee. The doctor’s notes and treatment reflect that Mr Mackay sought treatment only for an injury to the left elbow. Mr Mackay saw Dr Du Toit in the same practice as Dr Sewell on 19 November 2008 for review of the complaint in respect of the left elbow. Again, he made no mention of an injury to the knee.
Mr Mackay was subsequently involved in the incident at home on 23 December 2008, which the worker says was caused due to instability in the right knee, causing it to give way and, in turn, causing him to fall. When Mr Mackay sought treatment for the injury on 24 December 2008 from Dr Du Toit, again he made no mention of an injury to the knee in the incident at work on 13 November 2008.
Following the incident on 7 January 2009, when the leg gave way as he was stepping down from a chair after changing a light bulb, the worker sought treatment at Bourke Hospital, where he came under the care of Dr Trevor Evans. Dr Evans’s notes suggest that the history given by Mr Mackay on that occasion suggested an injury to the knee being sustained a few days earlier, which would be consistent with the injury to the knee initially having occurred in the incident on 23 December 2008, not on 13 November 2008, as alleged.
Mr Mackay said in evidence that he recorded the injury to his right knee resulting from the 13 November 2008 incident “in his notebook”. However, the notebook was not tendered in evidence and no explanation was given for the failure to produce it.
Mr Mackay relied upon a document styled “Security Monthly Report, November 2008” as corroborative evidence that he injured his right knee during the incident on 13 November 2008.
Given these inconsistencies, the appellant submits that the security report was a self-serving document brought into existence to support the worker’s claim. Given that it is undated and unsigned, and no evidence was tendered in support of it being a contemporaneous report of injury, the appellant submits that the Arbitrator erred by placing weight on it.
While it may be accepted that the deficiencies to which I have referred place doubt on the acceptance of Mr Mackay’s evidence, these were matters the Arbitrator carefully weighed before concluding that the worker had, on the balance of probabilities, established that he did in fact suffer an injury to his knee in the incident on 13 November 2008.
Following the amendments to s 352 of the 1998 Act (in respect of Arbitrators’ decisions decided on and after 1 February 2011), it is the identification of error which now defines the appeal process. In this case, the Arbitrator preferred one view of the primary facts to another as being more probable. In accordance with the principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (Kerr) (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; 140 ALR 227), such a finding may only be disturbed by a Presidential member if other probabilities so outweigh that chosen by the Arbitrator that it can be said that his or her conclusion was wrong. Having found the primary facts, the Arbitrator may draw a particular inference from them. It is not enough that the Presidential member may have drawn a different inference; it must be shown that the Arbitrator was wrong.
Reading the Arbitrator’s decision as a whole, he was alert to the inconsistencies in Mr Mackay’s case. Indeed, he concluded that, absent the corroborative evidence of the security report, the remaining evidence would not have been sufficient to establish on the balance of probabilities that Mr Mackay injured his right knee at work on 13 November 2008 (Statement of Reasons [50]). However, the Arbitrator was satisfied that, notwithstanding the inconsistencies in the medical history, the security report sufficiently corroborated Mr Mackay’s assertion of injury to the right knee in the incident on 13 November 2008 to discharge the onus of proof on the balance of probabilities. On the evidence before me, I cannot conclude that the Arbitrator erred in reaching that conclusion. Based on the principles discussed in Kerr, the appellant has not established that the findings for which it contends so outweigh those chosen by the Arbitrator that it can be said that his conclusion was wrong or that the inferences drawn by him were wrong.
It is clear from a reading of the Arbitrator’s judgment as a whole, but particularly at [50], that the Arbitrator recognised that the conclusions open to him were finely-balanced on the evidence. Although the Arbitrator accepted that the monthly security report on which Mr Mackay relied was undated and unsigned, he dismissed the appellant’s submission that it “lacked provenance” for several reasons. First, that it was likely that the report was prepared by Mr Mackay, a conclusion that was strengthened by the use of the phrase in that report, “We had to tackle him to stop him”.
Second, the report deals with security issues which appear to have arisen during the month of November and it is likely that such a report would be prepared on a monthly basis and submitted at some time during the following month.
Third, the appellant produced no evidence in response to the security report even though, as the Arbitrator acknowledged, the reports are likely to be in the possession of the appellant and it could reasonably be expected that matters such as who prepares them and when they are prepared would be within the knowledge of the appellant employer.
Fourth, on its face, the document appeared to be a record of the appellant, Greater Western Area Health Service. The Arbitrator accepted that the entry relating to the “13^th” refers to the work incident upon which Mr Mackay’s case was based. He accepted that “DM” refers to Mr Mackay and “JH” refers to Jeremy, the registered nurse who he claims was also present.
Fifth, in the absence of any evidence contradicting or explaining the significance of the document in some other way, the Arbitrator was satisfied that the document was probably lodged as a security report after 1 December 2008 and prior to Mr Mackay going on leave on 22 December 2008.
Sixth, the Arbitrator inferred that, because of the monthly nature of the report and the nature of the events reported on, it would appear to require a reasonably immediate response. He concluded that a report of this nature more than a month old would be of limited assistance to the organisation.
For the foregoing reasons, the Arbitrator was satisfied that the security report was a contemporaneous record which corroborated Mr Mackay’s assertion of injury to the right knee in the course of his employment on 13 November 2008.
I am satisfied that, in reaching his conclusion, the Arbitrator weighed the fact that the notebook entry of the injury on 13 November 2008, referred to by Mr Mackay in his statement, which could have further corroborated his claim, was not in evidence. The Arbitrator made specific reference to the absence of the notebook at [39] of the Reasons.
There is no evidence before me on appeal to suggest that any of the reasons given by the Arbitrator for his acceptance of the notation in the security report was contrary to the evidence and, given his acceptance of the worker’s evidence, I am not persuaded that other probabilities for which the appellant contends so outweighed those chosen by the Arbitrator that it could be said that his conclusion was wrong.
I reject the submission that the Arbitrator failed to deal with the incongruity in the worker’s ability to continue his normal duties and those in the employ of the IGA store while allegedly suffering the effects of a completely torn anterior cruciate ligament. This was never alleged by Mr Mackay. His case was that the injury sustained on 13 November 2008 caused instability in the knee and that the tear of the anterior crucriate ligament happened on 7 January 2009 as a result of that instability. This is the essence of the Arbitrator’s finding at [58] and [59] of the Reasons and was supported by the evidence.
I accept the appellant’s submission that the Arbitrator’s failure to refer specifically to the evidence of Dr Pillemer is an error by the Arbitrator. However, it does not affect the outcome of this appeal. Dr Pillemer was initially supportive of the worker’s claim when based on a history of injury to the knee on 13 November 2008. Dr Pillemer’s second report, which does not support the worker’s claim, is based on a history that Mr Mackay did not suffer an injury to his knee on 13 November 2008. That history is contrary to the Arbitrator’s findings, which I have upheld on appeal, and is therefore of no probative value.
The reference to Dr Evans in the grounds of appeal was not developed by the appellant in its submissions. Dr Evans did not provide a report and his opinion is limited to a brief notation in his clinical notes. Dr Evans’s opinion is also of no probative value because it is based on an incomplete history.

CONCLUSION

In this case, the Arbitrator was required to weigh the evidence both for and against a finding that Mr Mackay suffered an injury to his right knee in the course of his employment on 13 November 2008. The evidence was finely-balanced; however, the Arbitrator’s findings were open on the evidence before him. I am not satisfied that the appellant has established that the findings for which it contends so outweigh those chosen by the Arbitrator that it can be said that his conclusion was wrong. That being the case, the appeal must fail.

ORDERS

The Arbitrator’s determination of 8 March 2012 is confirmed.
The matter is remitted to the same Arbitrator to determine the remaining issues in dispute.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal.

Judge Keating

President
18 June 2012

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE