Holt v Programmed Maintenance Services Pty Ltd
[2024] NSWPIC 495
•6 September 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Holt v Programmed Maintenance Services Pty Ltd [2024] NSWPIC 495 |
| APPLICANT: | Suzanne Holt |
| RESPONDENT: | Programmed Maintenance Services Pty Limited |
| MEMBER: | Adam Halstead |
| DATE OF DECISION: | 6 September 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; section 4 meaning of ‘injury’; claim for permanent impairment; trip and fall at work undisputed; claim for frank injury to right shoulder, right knee and cervical spine; claim for right shoulder accepted; claim for right knee and cervical spine disputed; Held – cervical spine condition determined to arise from work injury; applicant has not established right knee condition arose from work injury; matter remitted to the President for referral to Medical Assessor in relation to cervical spine and right shoulder. |
| DETERMINATIONS MADE: | The Commission determines: 1. Award for the respondent in respect of the claim for injury to the right knee. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment of the right upper extremity (shoulder) and cervical spine arising from injury on 3. The documents to be reviewed by the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents; (b) the respondent’s Reply and attached documents; (c) the respondent’s Application to Admit Late Documents dated 11 July 2024, and (d) this Certificate of Determination. |
STATEMENT OF REASONS
BACKGROUND
These proceedings are about whether the applicant, Ms Suzanne Holt, sustained injury to her neck (cervical spine) and right knee when she fell on 17 December 2019 while working for the respondent, Programmed Maintenance Services Pty Ltd. It is undisputed that she injured her right shoulder when she impacted the ground following the fall, but the claim by the applicant that her neck and right knee were also injured is not accepted by the respondent. She has made a claim for lump sum compensation that refers to all injuries, which is disputed.
An Application to Resolve a Dispute (ARD) related to her claim was filed by the applicant in the Personal Injury Commission (Commission) on 14 June 2024.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant received a frank injury to her right knee as a result of the incident on 17 December 2019, and
(b) whether the applicant received a frank injury to her cervical spine as a result of the incident on 17 December 2019.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter was before the Commission for conciliation and arbitration hearing on
15 August 2024. Mr Carney of counsel, instructed by Mr Hopper solicitor, appeared for the applicant, who was also present. Mr Rickard of counsel was instructed by Mr Lee solicitor and appeared for the respondent.I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours to attempt resolution of the dispute by settlement between the parties. I am satisfied the parties had sufficient opportunity to explore settlement and they were unable to reach an agreed resolution of the dispute.
Counsel for the parties requested the Commission determine whether the respondent is liable for the applicant’s cervical spine and right knee conditions as injuries sustained in the course of employment.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD;
(b) Reply and attachments (Reply), and
(c) Application to Admit Late Documents dated 11 July 2024 with attachments, being the Reply, as admitted into the proceedings, without objection, by direction of the Commission on 16 July 2024.
Oral evidence
There was no application by either party to cross-examine any witness or call oral evidence.
Workplace incident
In her statement dated 24 May 2024 the applicant recounts:[1]
“On 17 December 2019, whilst in the course of my duties, my foot got caught on a pallet loaded with bottled water on the other side of an automatic door as I was walking back to my workstation. I tripped and fell awkwardly on the right side of my body, landing on my right knee, right arm, right shoulder, and right wrist. I was helped to my feet by my colleagues. Approximately half an hour after I fell, I started to feel severe pain in my right shoulder, lower back, and right knee. I reported the incident to my on-duty manager and left work that afternoon to consult with my General Practitioner.”
Right knee
[1] ARD, page 2 at para 10.
Dr Ajit Patwardhan
The applicant sought medical attention later on 17 December 2019 from Dr Ajit Patwardhan, general practitioner (GP) at Eastgardens Medical Centre, when according to her statement, she was said to have “complained of severe right shoulder and lower back pain”.[2]
[2] id at para 12.
The clinical records for Dr Patwardhan confirm the applicant attended the medical practice during the afternoon on 17 December 2019 and that she “tripped on pallet voice [sic] Qantas Catering fell backwards BRUISING UPPER BACK ONLY [emphasis in original] Rx Heat Panadol”.[3] There is no reference to right knee injury in those notes.
[3] ARD, page 121.
The applicant used heat patches to manage pain, which she found to be “slightly helpful” but “the pain would return upon removal [of the patches]”.[4] According to her statement, the applicant then returned to see Dr Patwardhan on 6 January 2020 “regarding my ongoing pain” when she “informed him of a relapse of pain in my right shoulder and additional pain in my right heel”. The clinical notes confirm the attendance and that a referral was arranged for an ultrasound.[5]
[4] ARD, page 2 at para 12.
[5] ARD, page 121.
According to her evidence, the applicant again consulted Dr Patwardhan on 13 January 2020 for “a review of my ultrasound” and that he “confirmed that I had inflammation in my right knee and a tear in my right shoulder” as well as “recommended cortisone injections”.[6] However, the clinical notes for that consultation make no reference to any right knee condition, only to right heel plantar fasciitis requiring cortisone injection and right shoulder subacromial bursitis with a small tear in the supraspinatus tendon.[7]
[6] ARD, page 2 at para 14.
[7] id, page 121.
The applicant attended Dr Patwardhan on 17 April 2020 and discussed her right knee problem that was apparently “sore” and “swelling” in “early March” and having had “seen
Dr Broe”. The clinical note for an attendance with Dr Patwardhan on 20 May 2020 states the applicant “wants to claim on [right] knee”.[8]
[8] id, page 120.
Dr Salwa Kyrillos
The applicant states she “consulted with Dr Salwa Kyrillos, GP at St Kyrillos Medical Centre” some time “[i]n or around January 2020” regarding “persisting pain in my right knee, lower back, and right shoulder”.[9] The clinical notes in evidence from Dr Kyrillos do not contain a record of consultation in January 2020. There is a note for a consultation that occurred between the applicant and Dr Kyrillos on 3 March 2020 when the reason for the visit was recorded as “knee effusion” and it was noted there was right knee pain, swelling, osteoarthritis (abbreviated as ‘OA’ in the notes) and effusion with advice and counselling provided.[10] An imaging request by way of an MRI of both knees was also recorded as having been printed.
[9] ARD, page 3 at para 16.
[10] id, page 131.
The applicant attended Comprehensive Medical Imaging at Marrickville on 9 March 2020 when ultrasound imaging was taken of her right knee and the attending radiologist,
Dr Himanshu Kaushik, reported findings to Dr Kyrillos. A “small ganglion” and conditions “consistent with a Baker’s cyst” were identified by Dr Kaushik where “no other abnormality is seen”.[11] Further consultations then occurred between the applicant and Dr Kyrillos on
12 March 2020 as well as the following day, when the right knee condition was discussed, presumably including in relation to the ultrasound report, with advice and a pain relief medication prescription being provided.[12]
[11] id, page 47.
[12] id, page 130.
The right knee condition is next referenced in a surgery consultation note by Dr Kyrillos on
17 March 2020, wherein it was recorded “RT KNEE INJ. ON 16/3/20, IMPROVING PAIN, IMPROVING ROM, FIT TO RESUME WORK ON 19/3/20”.[13] It appears from that note that the applicant had injured her right knee on 16 March 2020 but both the resulting pain and range of motion were improving to the extent she could return to work on 19 March 2020. The applicant consulted Dr Kyrillos again on 19 March 2020 then on 30 March 2020, but the records do not contain any note as to what specifically occurred at each of those visits. It would however seem likely that at least one of those consultation was related to
18 March 2020 report from the specialist, Dr David Broe, orthopaedic hip and knee surgeon. There is a note from a consultation with Dr Kyrillos on 16 April 2020, regarding her right knee, that the applicant “had an accident at work” and “tripped over” on 17 December 2019.
[13] ibid.
Dr David Broe
In his report of 18 March 2020,[14] Dr Broe referred to his prior consultation with the applicant during August 2019 concerning patellofemoral joint osteoarthritis in her left knee. He refers to acute injury of the left knee “three weeks ago”. Reference is then made to “an ultrasound yesterday”. The report of an ultrasound that is in evidence around that time is that of
Dr Kaushik from 9 March 2020, which relates to the applicant’s right knee. It is difficult to reconcile the content of Dr Broe’s report about the left knee in circumstances where the other available medical evidence around that period relates to the applicant’s right knee, including his following consultation, but he plainly refers to the left knee in the 18 March 2020 report. Confusing the issue further, Dr Broe’s much later report of 4 December 2021 states that the applicant “did previously have a left sided injury however this was a completely different incident” that “occurred at a time frame well before her right-sided knee injury”. It would seem the 18 March 2020 report could have been prepared in relation to the right knee, but in the absence of specific amendment and clarification by Dr Broe, it is not for the Commission to ascribe an interpretation to the report different to that plainly stated – it being for the left knee, for which there was a clinical history from August 2019.
[14] ARD page 74.
The applicant again consulted Dr Broe on 14 April 2020 for which he prepared a report of the same date.[15] On that occasion reference was made to the applicant’s “ongoing knee pain for the last month on her right side which has not been settling”, notwithstanding his prior consultation a month earlier referred to the applicant’s left knee. Dr Broe noted on
14 April 2020 that the applicant could not “particularly describe a significant twisting injury or fall” at that time. He referred to an MRI investigation that “demonstrates that she has sustained a subchondral insufficiency fracture of the lateral femoral condyle and she has marked bone marrow oedema which is diffuse throughout her femur”. The MRI report cited by Dr Broe is clearly that prepared by Dr Alisdair Robertson on 8 April 2020[16] and although not specifically referenced by Dr Broe at that time, Dr Robertson also identified a “cleavage tear body posterior horn lateral meniscus extending to inferior articular surface”.
[15] id, at page 75.
[16] id, at page 48.
Dr Broe next reported on 19 May 2020 that the applicant “comes back to see me with this problematic right knee joint”.[17] He referred to the MRI scan (from 8 April 2020) that “demonstrated some significant swelling and a very significant subchondral insufficiency fracture of her lateral femoral condyle with marked bone marrow oedema of the condyle”.
Dr Broe also cited “a degenerative lateral meniscal tear”. The report then goes on to state:
“On further questioning the only fall or trauma she can recall was in a work-related accident when she tripped over a palace [sic] in late December. She had a slight twist of the knee joint. Into the New Year particularly January and February her knee joint worsened. She continued to work however it got to the point where it was really severe and she developed marked swelling and pain and she had to discontinue work in March. It is very conceivable that this particular injury which is not visible on simple x-ray could have been caused by that traumatic fall in late December.”
[17] id, at page 76.
In his report of 23 July 2020 Dr Broe relayed that prior to the applicant’s “work-related accident to her right knee joint, she states that she never had any knee symptoms whatsoever” and that:[18]
“She had a fall at work around the Christmas period. She had some initial pain. Her x-ray simply demonstrated some mild patellofemoral degeneration. Her symptoms then markedly deteriorated. She had a follow-up MRI scan which demonstrated a very significant a subchondral insufficiency fracture of the lateral femoral condyle. This was on the background of a lateral meniscal tear and due to loss of hoops stresses from the meniscal shock absorber, she developed the subchondral fracture.”
Dr Broe also considered that the injury was “not secondary to knee osteoarthritis” and was “likely secondary to a twisting injury resulting in a slight tear of the lateral meniscus and a resultant subchondral insufficiency fracture” that was “not due to vitamin deficiency” and “not indicative of generalized osteoporosis”.
[18] ARD at page 77.
The applicant attended a consultation with Dr Broe on 3 March 2021 given “ongoing problems” with her right knee joint.[19] There was discussion about arthroscopic surgery, which then apparently occurred the following weeks around early April 2021 according to Dr Broe’s report of 13 April 2021.[20]
[19] id, at page 88.
[20] id, at page 85.
Dr Broe prepared a report on 24 August 2021[21] “for the purpose of [the applicant’s] legal team”. Reference was made to treatment of left knee pain in August 2019 and that he again consulted the applicant in March 2020 as “she had acutely injured her knee joint approximately one month prior to that”, although specific reference to which knee is not made clear (the 18 March 2020 report refers to left knee). However, Dr Broe refers in the following paragraph of the 24 August 2021 report to having a telehealth conference with the applicant on 14 April 2020 and that she “was continued [sic] to have ongoing pain of her right knee joint” and that “it was not settling”. This further suggests that while it identified the applicant’s left knee, the 18 March 2020 report may have been about her right knee. Nonetheless, Dr Broe concluded on 24 August 2021 by stating:
“I do believe that she had the lateral meniscal tear which resulted in the initial subchondral insufficiency fracture. The only trauma that had occurred in relation to this knee injury was the work-related event with Qantas in December 2019.”
[21] id, at page 83.
Dr James Bodel
The applicant qualified Dr James Bodel, orthopaedic surgeon, to conduct an independent medical examination of her claimed work-related injuries and prepare a report, which he did on 13 September 2022.
Dr Bodel diagnosed the applicant’s right knee condition as “an insufficiency fracture in the region of the right knee”[22] and there “is a direct causal link between the trip and fall event and her ongoing complaints”.[23] He was “satisfied that the [applicant’s] work injury was the main contributing factor to the ongoing disability associated with the injuries”. Dr Bodel considered any osteoporosis and vitamin D deficiency to be “largely irrelevant” to the insufficiency fracture “as the injury that occurred at work is of sufficient force to cause injury”.[24]
[22] ARD, page 26.
[23] id at page 27.
[24] id at page 26.
Dr Mark Ridhalgh
Dr Mark Ridhalgh, consultant orthopaedic surgeon, was qualified by the respondent to conduct an independent medical examination of the applicant on 22 June 2020. He then provided a report on the same date wherein he diagnosed an insufficiency fracture of the right knee.[25]
[25] Reply, page 5.
According to Dr Ridhalgh, the “description of the injury is not really consistent” and the applicant “fell heavily onto the right side in December but she did not report a knee injury for a few months later”.[26] He goes on to state:
“The condition of insufficiency fracture is associated with osteoporosis and Vitamin D deficiency. It occurs in diseased osteoporotic bone. The bones have decreased mineralisation and decreased elasticity leading to a weakened zone of the bone.”
[26] id at page 9.
Dr Ridhalgh formed the view that employment with the respondent was not a substantial contributing factor to the applicant’s knee condition and her “insufficiency fracture is UNRELATED [emphasis in original] to her fall”. He further opined that it was “likely that
Ms Holt would have suffered this condition or had the same symptoms irrespective of her employment” and that there was “evidence on the MRI of pre-existing osteoarthritis affecting the patellofemoral joint of her right knee”. Dr Ridhalgh believed “her condition is exacerbation of a pre-existing condition” that the “work-related aggravation has ceased” and he was:[27]“… of the view that her right knee condition could be described as a disease process and her employment on 17 December 2019 could not be said to be the main contributing factor for this.”
[27] id at page 10.
In his later report of 8 November 2021, that followed an assessment on 28 October 2021,
Dr Ridhalgh referred to the knee condition as “insufficiency fracture Right tibial plateau with degenerate meniscal tear”. He noted the applicant continued to have problems associated with her right knee despite arthroscopic surgery and made an assessment about her capacity to work which was “not fit for her pre-injury employment” in relation to the knee. Dr Ridhalgh reported that the “horizontal cleavage tear is typical of degeneration rather than acute trauma”, that with “this amount of damage, presentation is immediate” and “it would be highly unlikely to have such significant injury and have not sought treatment for three or four months”.[28] He reiterated that “it is inconsistent that a person could have a pathology ultimately shown in her right knee and not have symptoms or seek medical treatment”.[28] Reply, page 17.
Other reports were also provided by Dr Ridhalgh on 23 December 2022, 2 March 2023 and
2 February 2024. Each of those focussed on impairment and work capacity rather than diagnosis and causation of the right knee condition. Dr Ridhalgh did not diverge from his prior views about the right knee condition in any of those reports.
Cervical spine
Dr Ajit Patwardhan
Dr Patwardhan’s clinical note for the applicant on 17 December 2019 records her as having “bruising upper back only” after a “backwards” fall. Right shoulder pain was reported to
Dr Patwardhan during the consultation of 6 January 2020 and an ultrasound was arranged. Right shoulder subacromial bursitis with a small tear in the supraspinatus tendon appears in the consultation note for 13 January 2020. Right shoulder pain, tender supraspinatus and right lateral epicondyle was noted by Dr Patwardhan for a 7 September 2020 consultation. A specialist referral was made to Dr Andrew Strokon, during the consultation on
19 January 2019, in relation to right shoulder pain. Dr Patwardhan refers to a cervical spine condition for the first time in a clinical note for the applicant on 24 February 2021 that followed her consultation with Dr Strokon.
Dr Andrew Strokon
The applicant attended a specialist consultation with Dr Andrew Strokon, orthopaedic surgeon, on 9 February 2021. In his report of the same date, Dr Strokon reported:[29]
“She demonstrated a global weakness in the right arm. There was weakness in the grip, elbow and shoulder movements. This was demonstrated by increased pain by rotation of the neck with extension to the left side. I could not detect any neurological deficit in the upper limbs. Although many of her symptoms seem to suggest impingement in the right shoulder, my impression is that her pain is actually coming from the cervical spine producing cervicobrachial pain. The pain is particularly concentrated around the periscapular area. It is quite possible that the fall she had at work has subjected the neck to a sudden bending moment provoking discogenic pain or aggravating facet arthropathy. For this reason I have requested an MRI of the cervical spine to see if this will shed some light on the problem.”
[29] ARD, page 39.
Dr Strokon again consulted with the applicant on 23 February 2021 with the benefit of imaging results, referred her for a CT guided steroid injection and reported that:[30]
“The plain x-rays are unremarkable merely showing some disc degenerative changes particularly around C5-6. The MRI however shows significant bulging of the C5-6 towards the right side narrowing off the C5-6 foramen. This would be consistent with the pain that she is experiencing in the right side of the neck and down the arm.”
[30] ARD, page 41.
On 16 March 2021 Dr Strokon reported the steroid injection provided no benefit to the applicant, noted the “right shoulder seems to be as persistent as ever” and made some general observations about her condition with recommendations for future treatment.
Dr James Bodel
In his 13 September 2022 report, Dr Bodel referred to the applicant as having “tenderness in the trapezius muscles at the base of the neck on the right side and guarding in that area”. He identified “asymmetry of neck movement” and “a reduced range of neck flexion, extension and rotation in all directions” being “most restricted on rotation to the left”.[31] He diagnosed the applicant with “a musculoligamentous injury to the neck” and considered there to be “a direct causal link between the trip and fall event and her ongoing complaints” given the “injury was caused by that trip and fall event at the workplace”. Dr Bodel was satisfied the work injury of 17 December 2019 was the main contributing factor to her ongoing neck and other identified problems. He opined:
“There is in part an aggravation, acceleration, exacerbation and deterioration of some underlying disease processes including minor degenerative disc disease in the neck and the back and minor rotator cuff in both shoulders. This aggravation, exacerbation and deterioration is the main contributing factor in accordance with the disease provisions of the Act.”
[31] id at page 25.
Dr Mark Ridhalgh
In his 8 November 2021 report, Dr Ridhalgh provided a diagnosis of “impingement syndrome right shoulder” and commented that:[32]
“She has had intermittent cortisone injections for her right shoulder. This has not been investigated or treated. She has trouble sleeping on the right side with pain down the posterior aspect of the trapezius going down to her hand.”
[32] Reply, page 14.
Dr Ridhalgh’s 23 December 2022 report refers specifically to the applicant’s cervical spine and that “she does not have symptoms of nerve root impingement”. Other than providing a diagnosis of cervical spondylosis in that report, Dr Ridhalgh did not provide further substantive comment on the condition.
In his 2 February 2024 report, Dr Ridhalgh notes the applicant “relates the pain in the cervical spine to her right shoulder” and reiterates his earlier diagnosis of cervical spondylosis without additional comment (other than in relation to functional assessment).
SUBMISSIONS
Submissions by the applicant
The applicant contends both her right knee and neck (cervical spine) conditions result from frank injury sustained when she fell at work on 17 December 2019. Reports of the treating orthopaedic surgeons, Dr Broe and Dr Strokon, should be given the most weight in relation to the right knee and neck conditions respectively.
The report of Dr Broe of 23 July 2020 contains important opinion from the treating surgeon because it considers a twisting injury was the likely cause over any degenerative condition, as reiterated in his summary report of 24 August 2021. This contrasts with the opinion of
Dr Ridhalgh who takes the view of a degenerative cause unrelated to employment. It was highlighted that Dr Broe’s opinion was in the context of treatment rather for legal purposes and should be preferred generally.
It is submitted that the opinions of Dr Broe and Dr Bodel regarding likely causation, the Commission can be satisfied the right knee condition was caused when the applicant fell on 17 December 2019.
The applicant’s neck and shoulder conditions are “intertwined”, as confirmed by Dr Strokon. Less weight should be given to the report from Dr Ridhalgh in relation to the neck because he did not sufficiently deal with that issue. Based on the evidence about the fall and medical opinion from Dr Strokon as the treating specialist and Dr Bodel as an independent examiner, the Commission can be satisfied the applicant’s neck was injured on 17 December 2019 and presented as shoulder problems.
Submissions by the respondent
The history of the 17 December 2019 incident as recorded in Dr Patwardhan’s notes differs to that taken by Dr Bodel in his report. The record of the treating GP is of a “backwards” fall, whereas Dr Bodel understood the applicant to have fallen onto her “flexed right knee” and “outstretched right arm”. Dr Broe has separately referred to the event as having included a “slight twist” of the applicant’s knee.
It is relevant and must be taken into account that the applicant did not seek medical attention for her right knee condition for some months after the fall. There was a considerable time gap between the date of the fall on 17 December 2019 and the applicant seeking treatment, the first record of which is on 3 March 2020, and even then, there is no report of the history of the injury. On 14 April 2020 Dr Broe reported that the applicant could not describe any particular twisting injury or fall that may have caused the right knee condition for which she had sought treatment.
The respondent contends that the applicant’s statement contains inaccuracies and inconsistencies when compared with the clinical records evidence. For example, at paragraph 14 of the statement the applicant refers to a GP consultation with Dr Patwardhan following an ultrasound and discussion about her right knee, however the clinical records make no reference to the right knee condition and make clear the consultation was about right heel and plantar fasciitis. This is confirmed by the related ultrasound report dated
9 January 2020.[33]
[33] ARD, page 43.
The evidence for cervical spine injury in December 2019 is non-existent according to the respondent’s submission. The investigations of the cervical spine that were related to the consultations with Dr Strokon occurred at a much later time. The Commission could not find on the evidence the neck condition was a result of the 17 December 2019 fall.
CONSIDERATION AND FINDINGS
The Commission is requested to resolve the dispute between the parties concerning liability of the applicant’s right knee and cervical spine conditions. It is necessary to consider whether the applicant sustained frank injury to her right knee and cervical spine when she fell at work on 17 December 2019.
Section 4 of the Workers Compensation Act 1987 (the Act) is relevant and provides that an injury must have arisen out of, or occurred in the course of, employment for compensation to be available under the Act. The aggravation, acceleration, exacerbation or deterioration of an existing disease is also an injury (‘disease injury’) if employment was the main contributing factor. Section 9A of the Act requires employment to also be the substantial contributing factor to the injury for compensation to be payable (other than for a disease injury).
An ‘injury’ refers to both the event and the pathology arising from it: Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 (at 429). The Commission has consistently applied this meaning to injury: Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6.
The meaning of a personal injury was considered in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear), with Roche DP observing:
“The authorities establish that a ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Gleeson CJ and Kirby J in [Petkoska Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286] at [39]). In other words, as stated at [81] in [North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 (Felstead)] it is “a sudden identifiable pathological change”
Accordingly, I must determine whether the applicant’s right knee and cervical spine were injured on 17 December 2019 when she tripped and fell at work. Although the event is undisputed, the pathology of injury is not. To resolve that issue, I need to examine whether there was a sudden and ascertainable or dramatic physiological change or disturbance in the state of the applicant’s right knee and cervical spine.
In relation to the issue raised by the respondent about the applicant’s evidence, it is noted her statement was made on 27 May 2024, being over four years and five months after her fall at work on 17 December 2019. Although it is accepted the applicant may have refreshed her memory from the other available evidence to inform the content of the statement, any independent recall she may have of events will have been affected by the passage of a not inconsiderable period. In the circumstances, while the content of the statement is generally accepted where corroborated by other records, the contemporaneous notes and reports of treating professionals are preferred since they are more likely to be accurate. Similarly, where an account or history has been given by the applicant in the course of the claim and investigation process (for example, the history given by her to Dr Bodel) that contrasts with earlier contemporaneous records, the content of the documented record is preferred as more reliable.
In her statement, the applicant recounts that she “fell awkwardly on the right side of my body, landing on my right knee, right arm, right shoulder, and right wrist”. It is evident from his
13 September 2022 report that Dr Bodel had provided an earlier report on the applicant dated 8 October 2020 that contained a version of the 17 December 2019 incident as given by the applicant at that time. Although Dr Bodel’s 8 October 2020 report is not in evidence in these proceedings, it seems the history contained in the 13 September 2022 report reflects the earlier version.[34] That history is consistent with the applicant’s statement of 27 May 2024.
[34] ARD, page 23.
The clinical note, made by Dr Partwardhan on the day the applicant tripped and fell at work, records that the applicant fell backwards and there was bruising to her upper back. Bruising to the upper back would be consistent with a backwards fall as it has not been claimed by the applicant that she struck anything other than the floor. That contemporaneous note is accepted as the best available evidence as to the nature of the fall and indicates a different type of fall to that recounted by the applicant in her statement and previously relayed to
Dr Bodel. Based on that evidence, it is more likely that the applicant fell backwards rather than forward onto her right knee.
Right knee
The applicant claims in her statement to have had problems with her right knee and sought treatment within weeks of the incident on 17 December 2019. She said she commenced physiotherapy with Michael Wendler and Sean Nelson as well as consulting with Dr Kyrillos “in or around January 2020” in relation to right knee pain.[35] As highlighted by the respondent, the applicant also claimed to have consulted Dr Patwardhan on 13 January 2020 about her right knee. Although there is evidence of GP consultations, the clinical records do not corroborate the claims by the applicant about her seeking treatment for the right knee. There is also no evidence available to the Commission about the physiotherapy sessions referred to by the applicant in her statement.
[35] ARD, page 2 and 3 at paragraphs 13 to 16.
The earliest clinical record of the right knee condition was made on 3 March 2020 and, as the respondent highlighted, there was no reference made at that time about the nature of any injury. The applicant was unable to describe an injury or fall that may have caused the right knee condition to Dr Broe on 14 April 2020 and it was not until their later consultation on
19 May 2020 that the applicant nominated the 17 December 2019 fall at work as a possible cause. If the applicant suffered a knee injury at the time of falling at work and then experienced the various symptoms described in her statement over the following months, then it is reasonable to expect Dr Broe would have been made aware of the circumstances at their first consultation in 2020. However, that did not occur, and the work incident seems to have only been offered as an explanation by the applicant after leading questioning by
Dr Broe during the 19 May 2020 consultation.
The applicant consulted Dr Kyrillos several times in March 2020, including for the right knee condition, yet she did not describe the condition as being an injury from the fall at work. When the applicant consulted Dr Kyrillos on 17 March 2020 it was recorded that she had injured her right knee on 16 March 2020. It was not until 20 May 2020, after her discussion with Dr Broe on 19 May 2020, that the applicant attended Dr Partwardhan and said she wanted to “claim on [the right] knee”.
The evidence does not support the applicant having sustained a frank injury to her right knee on 17 December 2019 where there was a sudden and ascertainable or dramatic physiological change or disturbance in the state of her right knee. If there had been such a change, it is reasonable to expect it would have become immediately known to the applicant and she would have at least mentioned it to Dr Partwardhan later that day or otherwise during the various clinical consultations in the following weeks.
The opinion of Dr Ridhalgh[36] that “this amount of damage, presentation is immediate” and “it would be highly unlikely to have such significant injury and have not sought treatment for three or four months” is accepted as most likely in the circumstances. It is also clear from
Dr Broe’s various reports that the applicant had underlying degenerative issues associated with both her knees, which is relevant to consider along the injury that was reported toDr Kyrillos as having occurred on 16 March 2020.[36] Reply, page 17.
Given the history of events as recorded in the available clinical notes, which are accepted as reliable, the applicant’s knee condition is not accepted as arising from the occasion she tripped and fell at work on 17 December 2019.
Cervical spine
The applicant argues that the right shoulder and cervical spine conditions are interrelated. It is undisputed the applicant injured her right shoulder at the time of falling on
17 December 2019.
Dr Strokon provides the most detailed commentary of the applicant’s neck problem. He formed an early view that her shoulder pain “is from the cervical spine producing cervicobrachial pain” that was “particularly concentrated around the periscapular area”. He considered that it was possible the applicant’s fall at work on 17 December 2019 “subjected the neck to a sudden bending moment provoking discogenic pain or aggravating facet arthropathy”. He identified from an MRI investigation he arranged that there was “significant bulging of the C5-6 towards the right side narrowing off the C5-6 foramen” that would be “consistent with the pain that she is experiencing in the right side of the neck and down the arm”.
Dr Strokon’s opinion provide a cogent link between the applicant’s shoulder pain, her cervical spine condition and the workplace fall. There is no dispute the applicant’s shoulder condition arose from that fall. Dr Bodel formed a similar view in relation to the cause of the applicant’s cervical spine when he identified it as “a musculoligamentous injury to the neck” and finding “a direct causal link between the trip and fall event and her ongoing complaints”.
Other than diagnosing cervical spondylosis and that the applicant “does not have symptoms of nerve root impingement”, the available specialist opinion evidence from Dr Ridhalgh is limited and does not address the extent of interconnection with the shoulder condition to any substantive degree. The assessment of Dr Strokon is therefore preferred.
The applicant’s submission that the neck and shoulder condition are interrelated is accepted given it is supported by the considered opinion of Dr Strokon. Both he and Dr Bodel identified the 17 December 2019 incident as the likely cause. The Commission is reasonably satisfied the cervical spine condition experienced by the applicant arose from that incident.
SUMMARY
I find that the applicant sustained frank injury to her cervical spine on 17 December 2019 when she tripped and fell at work. I am not reasonably satisfied that incident was the cause of the applicant’s right knee condition.
The applicant’s claim for lump sum compensation pursuant to s 66 of the Act in relation to the 17 December 2019 injury will now be remitted to the President of the Commission for referral to a Medical Assessor for assessment of the level of the applicant’s whole person impairment for her upper right extremity (shoulder) and cervical spine.
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