Guerrero and FedEx Express Australia Pty Ltd (Compensation)

[2022] AATA 3928

Guerrero and FedEx Express Australia Pty Ltd (Compensation) [2022] AATA 3928 (22 November 2022)

Division:GENERAL DIVISION

File Number(s):      2021/3632

Re:Kevin Guerrero

APPLICANT

AndFedEx Express Australia Pty Ltd

RESPONDENT

Decision

Tribunal:Deputy President B W Rayment OAM KC

Date:22 November 2022

Place:Sydney

The reviewable decision is set aside and substituted with a decision that the respondent is liable to compensate the applicant for his incapacity for work and any medical expenses under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

.................................[SGD].......................................

Deputy President B W Rayment OAM KC

Catchwords

WORKERS’ COMPENSATION – review of decision denying compensation under the Safety, Rehabilitation and Compensation Act 1988 – whether applicant suffered an injury during the course of his employment – whether applicant’s injury was significantly contributed to or aggravated by his employment – decision under review set aside and substituted

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

REASONS FOR DECISION

Deputy President B W Rayment OAM KC

22 November 2022

1. There are two issues in these proceedings under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the ‘SRC Act’). The first is whether the applicant sustained an injury in the form of a right knee meniscus/lateral tear during the course of his employment with the respondent. The applicant puts the case, in the alternative, on the basis that the meniscal tear aggravated a pre-existing ailment from which he suffered.

2. The second issue is whether the applicant’s employment with the respondent contributed, to a significant degree, to the injury within the meaning of s 5B of the SRC Act.

3. The oral evidence called on behalf of the applicant consisted of his own evidence, the oral evidence of Dr Nicholls, his treating surgeon, and the expert evidence of Dr Pillemer, an orthopaedic surgeon. The respondent did not seek to cross-examine several lay witnesses, whose statements were tendered.

4. The applicant was born in 1985.

5. He once played competitive soccer until about 2009. In January 2005, when he was 20, he injured his right knee during soccer training, and in the following year Dr Johnson performed a right knee reconstruction and after that, the applicant returned to competitive soccer. Later, he moved into soccer coaching.

6. In his statement of June 2021 he said at paragraph 2: “Around 2015 I remember experiencing some minor pain in my right knee. I went back to see Dr Johnson who told me it was minor and no further right knee surgery was needed at that time”.

7. Cross-examined by Mr Clark for the respondent, he agreed, having been shown a letter of December 2015 from Dr Johnson, that Dr Johnson said he had a torn lateral meniscus in his right knee, along with some early arthritis, and that he needed an arthroscopic menisectomy and debridement of his knee. Dr Johnson described the need for that operation as “at his request for as soon as possible”. The applicant accepted Dr Johnson’s statements as accurate when shown the contemporaneous record.

8. Mr Guerrero said that paragraph 2 was a correct account of his recollection, although inaccurate in fact. He added that in respect of the 2015 incident (described as knee locking while running; acute swelling post injury) he did not in fact need an operation at that time and instead “worked through it”.

9. He had begun to work for the respondent in 2014 as a courier driver, and that employment continued for seven years.

10. His employer merged with TNT in or about June 2020 and until about January 2021 he drove a van, as he had before the merger. Then in January 2021 he was tasked with driving a truck rather than a van, and also with doing (heavier) loading and unloading of the truck. It was in January 2021 when the applicant was aged 36, that the incident which founds his claim occurred. The events of January 2021 are in contest and I will discuss those events below.

11. After the events of January 2021, the applicant had some time off work, returned to work on light duties in February 2021, but in March 2021 he went off work again and has not worked since that time.

12. The applicant was referred for an MRI and underwent an arthroscopy on his right knee in October 2021. Since then, he has been in physiotherapy and his right knee has improved to some extent although not fully.

13. The applicant said that on Monday 18 January he experienced pain in his right knee. On the following day he said that he again drove a truck and made deliveries throughout the day. He attended the Toyota site towards the end of his working day, and when he started up his truck and put his foot on the accelerator, he felt a popping sensation in the back of his knee and experienced a sharp pain in his right knee at the same time.

14. He said that when he returned to his employer’s depot he was in severe pain in his knee and calf, and was limping. He spoke to two people: Davor, who he asked for help in unloading, and a union representative who commented on his limping.

15. He sent a text to his Team Leader, Beau Scholten-Hayes, after 6 pm in the following terms:

    Hey mate just letting you know I hurt my right knee probably from up and down the truck and the heavy boxes just a heads up see how I feel tomorrow but I’m gonna ice it when I get home if possible can u get me out of a truck run don’t want to do more damage incase I’ve done something to it. Cheers

16. Mr Clark put to the applicant that in a conversation with Mr Scholten-Hayes, the applicant told him that he his right knee needed a clean-out and that it needed an arthroscopy. The applicant said he never said that to him, and hardly spoke to him. He also said that his knee was not in pain (prior to the incident of 19 January). The applicant said two other things: First, he had discussed with another employee of the respondent who had also had a knee reconstruction that he himself had also had a knee reconstruction in the past. Second, he said that he had pains in his back and shoulders and had discussed those pains with others.

17. Thus two issues emerged from the cross-examination to this point. The first was whether the origin of the incident of January 2021 was the 2015 incident or whether there was an exacerbation in January 2021.

18. The second issue was whether the applicant, as suggested by Mr Scholten-Hayes, had and appreciated that he had regular problems with his right knee before the incident of January 2021. The applicant denied that allegation, both under cross-examination and in a statement which he filed in answer to Mr Scholten-Hayes statement. He said that he had back and shoulder pain but not knee pain prior to 18/19 January.

19. It should be explained that the applicant agreed with Mr Clark that he did not want to drive a truck for his employer, despite being certified to do so, and preferred driving a van as he had for most of his time with the respondent. He was a courier, using a van, mostly carrying smaller items. He had begun driving the five-tonne truck for the whole of the week before the week beginning 18 January, when the previous driver, a man named Mohammed, went off work with a bad back. The first pain in the right knee which he said he suffered was on Monday 18 January and what he described as a popping sound with pain on Tuesday 19 January. The heavier loading work took place on the previous week and on 18 and 19 January. On the weekend before 18 January he rested and used Epsom salt baths to be ready to work on the Monday. He said that the pain he was suffering did not then involve his right knee.

20. The cross-examination proceeded by reference to a letter dated 8 February 2021 from Dr Nicholls to the general practitioner (T8). Dr Nicholls described the sound which the applicant heard as a “loud crack” rather than a pop, and the applicant could not remember referring to a loud crack rather than a pop. The letter said that he heard the sound “on that day” but did not record what the applicant said, if anything, as to what he was then doing in the truck. The letter in my opinion does not deny that the applicant said that the sound was audible when he pressed the accelerator, and nor does it confirm that fact.

21. Mr Clark then went to notes from the general practice of January 2021, which similarly did not record the applicant referring to a pop. As Dr Pillemer later said, the popping sensation that the applicant reported may not be of great importance, because it can stem from so many things, such as a cyst bursting. He added that the cause of the aggravation, in his opinion, is more likely to have been the heavy work done in the previous week and on 18 and 19 January.

22. The first medical witness called on behalf of the applicant was Dr Alex Nicholls, the applicant’s treating orthopaedic surgeon. He was taken to his report to the applicant’s general practitioner dated 4 March 2021 at T13. He explained that the letter was written to make it clear that he considered that what the applicant suffered in January 2021 was an immediate aggravation of symptoms of the underlying degenerative changes in his right knee, which had persisted to that time and subsequently continued. He said that the work injury caused some new tearing in the lateral meniscus, being the meniscus on the outer part of the knee. The lateral joint line is the area where the tibia (the shin bone) meets the thigh bone. The name of the inner part of the knee is the medial part. It will be recalled that the 2015 incident mentioned above also involved a tear to the lateral meniscus, and Dr Nicholls described the January incident as a new tearing of that meniscus.

23. Dr Nicholls said that degenerative changes in the knee are quite common and that people often work for many years with that condition. He said that prior to the January incident, the applicant had been able to keep working despite the degenerative changes.

24. The doctor said that when he did an arthroscopy later in 2021, he could not pinpoint any acute injury that occurred earlier that year. He explained that the arthroscopy did not reveal any acute injury but was not inconsistent with there having been an acute injury.

25. He said that despite his letter of 26 July 2021 referring to constant clicking and catching pain since January 2021, he had not meant to suggest that clicking and catching did not happen in the lateral part of the knee and was limited to the medial joint line of the knee.

26. The respondent called a fellow worker of the applicant, Mr Kennedy, who recalled that the applicant had on occasions mentioned to him that he was suffering knee pain before the January incident and had occasionally gone home earlier on such occasions. That evidence was disputed by the applicant.

27. I saw no reason to reject Mr Kennedy’s evidence. All of the medico legal evidence is to the effect that the applicant had a pre-existing degenerative condition in his right knee. That it would have given him trouble before January 2021 is consistent with the medical evidence.

28. His going home earlier, as Mr Kennedy suggested, is lacking in particularity. Going home a little earlier may be different from going home much earlier. Going home earlier very regularly may be different from occasionally going home early.

29. Nor am I caused by my preference for Mr Kennedy’s account to doubt the general credibility of the applicant. The applicant had been off work for more than a year at the time he gave evidence, no doubt often thinking over the events of January 2021. Without any intention to mislead the Tribunal, his denial that he had earlier knee problems may be what he genuinely believed at the time he gave evidence.

30. The applicant demonstrated a faulty recollection on a number of matters. It was notable that where he was confronted with a reliable contemporaneous record to the contrary of his own account, he fully accepted the contemporaneous record as accurate.

31. Mr Kennedy’s evidence does not in my opinion deny the possibility of the applicant recovering in this review. His case does not depend on his right knee being free of pain before January 2021. Dr Nicholls, Dr Pillemer and Associate Professor Miniter all agree that the applicant has a degenerative condition in his right knee, and Mr Kennedy’s evidence tends to confirm that fact.

32. What seems to me to be essential to the applicant’s success is for the Tribunal to be satisfied that there was an aggravation of the degenerative condition, which aggravation was contributed to, to a significant degree (within the meaning of s 5B of the SRC Act), by the applicant’s employment. That will depend largely on the view taken of the medical evidence, and on the well-established fact of the applicant being incapacitated for work following the incident of January 2021. For the previous six years, he had no such incapacity for work, apart from a bout of pneumonia in August 2020.

33. Even if the applicant went home earlier than usual on some occasions before January 2021 because his right knee gave him trouble, the consequences of the January 2021 events had much more serious consequences. From March 2021 to the date of the hearing, he has not recovered sufficiently to return to employment, whether as a courier or otherwise. Any earlier trouble with his right knee may be attributed to his degenerative condition but the January incident may nevertheless amount to an aggravation of his degenerative condition.

34. The statement of Mr Scholten-Hayes asserts that the applicant told him on numerous occasions when calling in sick for work that his knee was sore. He asserted that he always asked the applicant whether his knee symptoms were work-related and that he the applicant said that they were not. He said that he would estimate that the applicant took about one day off every week “in order to manage his knee syndrome”. He said that he did not recall the applicant complaining about driving the truck because it made his knee symptoms worse or that he had difficulty climbing in and out of the truck because of his pre-existing knee syndrome, and that he never complained to Mr Scholten-Hayes about pain in his right knee when pushing an accelerator or as a result of lifting boxes of freight.

35. This statement prompted a detailed denial from the applicant.

36. Mr Scholten-Hayes stated when examined in chief that the calls which the applicant made about his knee being sore were not made directly to him except “on the odd occasion” and were usually made to Mr Byles, the fleet allocator.

37. In his statement Mr Byles said that he could not recall whether the applicant ever mentioned that he could not work due to knee pain. He said that his leave records would indicate what sick leave the applicant took.

38. Asked when those conversations occurred Mr Scholten-Hayes did not give any dates but said that he followed up with an email to “our workers’ comp team”.

39. He said that the one day off per week was taken as annual leave, sick leave or unpaid leave.

40. In chief he said (in apparent contradiction of his written statement) that he had had many conversations regarding his knee with the applicant “that it was sore, that the repetitive getting in and out of [indistinct] vehicles was putting pressure on it”.

41. Asked in chief whether he noticed anything untoward about the applicant’s knee, he replied that he noticed on several occasions the applicant wearing a knee brace, knee support and he said that this was before and after January 2021.

42. An examination of emails from Mr Scholten-Hayes to the workers compensation team indicates none that relate to the applicant’s knee before the workers compensation claim was made, and an examination of the leave claims made by the applicant reveal none said to relate to his knee before January 2021.

43. Nor is any knee brace prescribed before the January incident.

44. Prior to January 2021 there was no one day off per week, from any cause. I am not satisfied that the evidence of Mr Scholten-Hayes is reliable.

    The medical evidence

45. There were three qualified medical practitioners. For the applicant, Dr Nicholls and Dr Pillemer were called. For the respondent, Associate Professor Miniter was called.

46. Perhaps because the applicant misspoke when giving a history to Dr Nicholls, Dr Nicholls has noted that the applicant heard a sharp crack when in the truck on 19 January. Dr Nicholls accordingly proceeded on the basis of a tear of the meniscus. Dr Pillemer did not take any history of a sharp crack. The applicant gave no evidence of a sharp crack but rather of a popping, which Dr Pilelmer did record. Dr Pillemer thought that this popping might be due to a tear, or that it might have been caused by other things. Dr Pillemer nevertheless expressed the clear opinion, based upon the fact that the applicant took time off work, and after a brief return to work on lighter duties, was unable to work at all for the intervening period up to the date of the hearing, that the work incident of January 2021 aggravated his pre-existing degenerative condition.

47. Dr Miniter agreed with Dr Nicholls and Dr Pillemer that the applicant had a pre-existing degenerative condition, However Dr Miniter was not made aware that heavier items were moved in the days leading up to 19 January, whereas in the periods when Mr Guerrero worked as a courier driving a van, much lighter loads were carried. Dr Miniter proceeded on the assumed basis that the nature and conditions of the applicant’s work remained the same. Dr Miniter listened again to his interview with the applicant and noted that the applicant referred to a popping sound, as Dr Pillemer recorded.

48. Once account is taken of the nature and conditions of the applicant’s work in the days leading up to the incident of 19 January, as it was by Dr Pillemer and Dr Nicholls, the opinion which they both expressed about the aggravation of the applicant’s pre-existing condition becomes the appropriate finding, in my opinion. It is clear, in my opinion, that whether or not, as Dr Pillemer thought possible, there was some pathological change, such as a further tear of the meniscus, the increased pain and discomfort arising from the energetic work done in the days leading up to 19 January, including that day itself, produced an aggravation to Mr Guerrero’s pre-existing condition which led to work incapacity which persisted at least until the hearing date.

49. The reviewable decision will therefore be set aside and substituted with a decision that the respondent is liable to compensate the applicant for his incapacity for work and any medical expenses under ss 16 and 19 of the SRC Act.

I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

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Associate

Dated: 22 November 2022

Date(s) of hearing:	26-28 April 2022
Counsel for the Applicant:	Mr G Smith
Solicitors for the Applicant:	Mr G Staninovski, Santone Lawyers
Counsel for the Respondent:	Mr C Clark
Solicitors for the Respondent:	Ms S Johnson, HBA Legal