Huckstadt v Brent Cleaning and Maintenance Contracts Pty Limited

[2015] NSWDC 341

District Court

New South Wales

Medium Neutral Citation:

Huckstadt v Brent Cleaning & Maintenance Contracts Pty Limited [2015] NSWDC 341

Hearing dates:

11 November 2015

Date of orders:

11 November 2015

Decision date:

11 November 2015

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Redemption application approved

By consent, orders in accordance with short minutes of order

Catchwords:

WORKERS COMPENSATION – Coal miners – Redemption – Whether sum proposed adequate – Consideration of whether plaintiff’s current condition causally related to injury with defendant

Category:

Principal judgment

Parties:

Benjamin Huckstadt (Plaintiff)
Brent Cleaning & Maintenance Contracts Pty Limited (Defendant)

Representation:

Counsel:
Mr D Benson (Plaintiff)
Mr M Newton (Defendant)

  Solicitors:
Slater & Gordon (Plaintiff)
Sparke Helmore (Defendant)

File Number(s):

RJ77/2014

Publication restriction:

No

Judgment

1. HIS HONOUR: There is currently before me a redemption proposal in the sum of $25,000. On the evidence before me, that represents a gross compromise. The plaintiff is currently 40 years old. He has two children dependent upon him for support. His claim for weekly payments ought commence on Monday 12 December 2011. The plaintiff underwent surgery at the hands of Dr Hammond on 11 November 2014. The surgery was by way of arthroscopy and involved an incision into the lateral retinaculum of the plaintiff’s left kneecap and an open release of the plaintiff’s left kneecap.

2. The plaintiff has previously had a lump sum paid to him under the provisions of the Workers Compensation Act 1987 applicable to those who are not coal miners but a claim is made on his behalf for a further payment under the Table of Disabilities that still applies to coalminers. Accordingly, it is necessary for me to carefully consider the medical evidence and histories to ascertain whether this redemption proposal ought be approved.

3. The plaintiff has for most of his working life been a delivery driver. In 2007, he commenced work for Speed-e-Gas, a division of Origin Energy. On 25 March 2009, the plaintiff was walking down a steep driveway when he felt his knee “disrupt” with a cracking sensation. He developed acute pain underneath his kneecap. The pain was so severe that the plaintiff almost cried. When describing his pain to his initial treating orthopaedic surgeon, Dr Peter Burton, the plaintiff described the pain as being nine out of ten.

4. There was a rapid swelling of the knee and acute effusion. The plaintiff told Dr Burton that his work with Speed-e-Gas was quite physical. He was required to manipulate gas cylinders that weighed in the order of 80 kilograms when full, and between 20 and 30 kilograms when empty. He had a history of having previously played golf and cricket and lawn bowls and rugby league until the age of 18. The plaintiff told Dr Burton that antecedent to 25 March 2009, he had no problems with his left knee. Dr Burton’s initial diagnosis was an episode of patellar subluxation. Dr Burton thought the plaintiff may have had some retropatellar wear and tear, that is, some chondromalacia of the patella prior to this event which had been asymptomatic. However, the doctor also noted symptoms in the medial compartment of the plaintiff’s left knee. Dr Burton performed an arthroscopic examination of the plaintiff’s left knee on 17 June 2009. That showed diffuse grade III wear of the retropatellar surface requiring chondroplasty. There was also grade III wear of the lateral trochlea. The doctor found “quite a bit” of loose chondral debris within the knee joint which may have broken off the medial femoral condyle of the trochlea or the patella. The loose debris was removed arthroscopically. Further chondroplasty was performed in the lateral tibio-femoral compartment of the knee. The doctor also saw tearing of the anterior cruciate ligament at at least one of its attachments. He also saw evidence of synovitis which required a synovectomy and insertion of a drain into the knee.

5. Further arthroscopy was practised on 15 August 2009. In addition to what had previously been found, the doctor ascertained that there had been a complete detachment of the anterior cruciate ligament. An anterior cruciate ligament reconstruction was then performed using tendons borrowed from another area of the plaintiff’s left leg. The operation appears to have been a major one and as the doctor did not think the plaintiff could undergo an accelerated rehabilitation program, was very cautious about giving advice about the possibility of the plaintiff’s developing a deep venous thrombosis. The doctor in gave his operation report detailed instructions about caring for the surgical wound on the plaintiff’s left knee.

6. On 24 April 2011, the plaintiff was seen by Dr Tim Anderson, an occupational physician, as an Approved Medical Specialist for the Workers Compensation Commission. I would have thought that the appropriate specialty for a person assessing whole person impairment for a knee condition was an orthopaedic surgeon, rather than an occupational physician. At least it should have been a general surgeon. However, a number of Dr Anderson’s findings are of moment. He diagnosed a 7% whole person impairment. He found 3% WPI for subluxation of the patella, that is, the kneecap with a residual instability. There was a further 3% WPI for mild impairment of the cruciate ligament. The doctor refers to the “cruciate or collateral ligament” but clearly in this case only the cruciate ligament was involved. There was a further 2% WPI for dysaesthesia of the lateral cutaneous nerve. Those three impairments added up to 8%. Dr Anderson then said this:

“In theory, there would be a further 1% due to muscle atrophy described in the WorkCover guides page 18, Table 17-6. This, however, is excluded from the whole person impairment calculation according to the Guide to the Appropriate Combination of Evaluation Methods.”

But for an administrative/bureaucratic assessment method, the WPI ought to have been 9%. However, it could only be 8% and Dr Anderson then reduced it to 7% because there was a pre-existing condition of the knee joint which theoretically called for a deduction of one-tenth but the deduction had to be rounded up rather than rounded down, so the plaintiff ended up with a WPI assessment of 7%.

7. Dr Anderson then commented that his assessment of impairment was slightly different to that of Dr Ghabrial and he explained why, but unfortunately no one has put Dr Ghabrial’s assessment before me so that I can ascertain whether the comments made by Dr Anderson be correct. It would appear that as the result of Dr Anderson’s assessment, the plaintiff was paid an appropriate amount for 7% WPI under the workers compensation legislation that applies to those who are not coalminers.

8. Prior to that assessment having been made, however, the plaintiff found work with Finook Industries in February 2010 delivering milk. The plaintiff did that work for full time for two years. On 17 October 2013, the plaintiff was examined by Dr Barry Bracken for his own solicitors. Dr Bracken took this history:

“He said he finally got a job as a milk delivery driver with Finook Industries in February of 2010. He did this full time work for some two years. He said his knee continued to ache with that activity but he just took Voltaren 25mgs twice daily and coped. He said his milk delivery van had steps at the back and on the side and he used the trolley for deliveries of bulk material. He lost no time in this job.”

9. The plaintiff’s next job was with the defendant. The plaintiff worked for the defendant at the Wambo Colliery as a dogman and crane chaser. He commenced that work on 25 August 2011. However, he was unable to complete his shift on Friday 9 December 2011. On Tuesday 13 December 2011, he consulted Dr Renee Harkin at Thornton. Dr Harkin took this history:

“[He] was experiencing increasing left knee pain and swelling over the week prior to seeing me. Pain had significantly increased after spending a day climbing up and down into [a] truck. Knee pain aggravated by flexion greater than 90 degrees in pneumatic chair in truck. Clicking and grinding in knee, hurts to walk down gentle slopes. Unable to complete work on Friday 9 December due to knee pain, so left work early.”

10. On initial examination, Dr Harkin found some mild effusion with tenderness over the medial and lateral joint lines. She noted significant crepitus but there was full flexion and extension. The plaintiff was walking with a limp. She saw him again on 21 December 2011, 28 December 2011, 25 January 2012, a colleague on 24 February 2012 and Dr Harkin again on 6 March 2012. At that stage Dr Harkin noted that the complication with the plaintiff’s return to work was the fact that the current defendant would not accept the plaintiff unless he was certified to be “100% fit”.

11. On 18 May 2012, the plaintiff saw Dr John Hammond a specialist in orthopaedics at the Maitland Hospital on referral from Dr Harkin. The plaintiff had had an MRI scan performed in March 2012. I shall soon turn to the contents of that scan. When the plaintiff saw Dr Hammond on 18 May 2012, he was walking without a limp. He demonstrated a full range of movement in his left knee. There was no swelling. The knee was stable. There was only some mild medial tenderness. The plaintiff did have pain when his patella was stressed laterally. There was crepitus palpable when the patella was stressed laterally.

12. When one considers those findings on examination, they are very similar to the ones initially noted by Dr Burton back on 25 March 2009. Dr Hammond then went on to comment on the MRI:

“The MRI scan from March this year shows the intact ACL reconstruction, intact menisci and good joint surfaces in the medial and lateral compartments. However, the patella-femoral articulation was extremely worn, especially on the lateral facet. When I compared this MRI scan with previous scans, it was clear that he had lateral displacement of his patella back in 2009, and there was a similar amount of wear of the articular cartilage on the lateral facet back at that time.”

Dr Hammond then made this comment:

“What this means for Ben is that his problem is pre-existing, and I doubt whether he will be able to claim this through WorkCover.”

13. I believe that what the doctor was saying was that he did not believe the plaintiff could claim the then current period off work due to the work he did for the current defendant. In any event, it is clear that the MRI scan only showed pre-existing problems, although many of the problems had been corrected by the surgery practised by Dr Burton.

14. In December of that year, December 2012, the plaintiff commenced rural fencing work. He was working for 15 hours per week for a friend. Rural fencing is not easy work. It is demanding. The plaintiff did that work up until stopping it to undergo surgery at the hands of Dr Hammond on 11 November 2014, one year ago today. Prior to that surgery being practised, Dr Hammond saw the plaintiff on 7 November 2014. In his report bearing that date, the doctor said this:

“Ben returned to see me in my Maitland clinic on 7 November 2014. I reviewed his left patella, and noted that the lateral retinaculum was reasonably tight, certainly tighter than the right knee. I have discussed with him the possibility of performing a lateral patella release, as this may give him the pain relief that he has been seeking.

He is keen to give this a try, and so we have filled out the paperwork for his admission to Cessnock District Hospital as a day case for arthroscopy of the knee and lateral patellar release. I shall let you know how he gets on.”

15. It is that surgery that was practised on 11 November 2014. The problem for the plaintiff here is that when the plaintiff was examined by Dr Peter Burton on 21 April 2009, the doctor found tightening of the lateral retinaculum of the left knee. In other words, the condition for which Dr Hammond carried surgery was one that the plaintiff had back in April 2009, the result one would expect of the injury of 25 March 2009.

16. All the evidence points to the plaintiff’s problems caused by his work with the defendant having evaporated by the time the plaintiff saw Dr Hammond on 18 March 2012. There appears to have been a symptomatic increase after that time but that could only have been caused by his fencing work, not the work that he stopped doing for the current defendant on 9 December 2011. Even then, the surgery practised by Dr Hammond on 11 November 2014 was to correct a problem first identified in 2009.

17. I appreciate that there are opinions expressed by Dr Bracken and by Dr Ghabrial about some permanent contribution having been made to the plaintiff’s left knee condition by the work he did for the defendant but, for example, Dr Bracken does not appear to have had before him the report of Dr Hammond of 18 May 2012 and appears not to have considered the effect upon the plaintiff’s injured left knee of his work as a rural fencer. Dr Ghabrial’s opinion suffers from the same vice.

18. In the circumstances, the sum proposed for redemption is appropriate. I approve the redemption. By consent, orders in accordance with short minutes of order which I have initialled and left with the papers.

19. BENSON: Your Honour, do I understand the import of what has fallen from your Honour is that there is implicitly a finding that the surgery in 2014--

20. HIS HONOUR: Yes. The specific finding that I have made is that any aggravation of the plaintiff’s knee condition caused by the work he did for the defendant ceased on or prior to the plaintiff’s being examined by Dr John Hammond on 18 May 2012. Therefore the need for surgery practised by Dr Hammond on 11 November 2014 could not be causally related to any injury arising out of or in the course of the plaintiff’s employment with the current defendant. Indeed, any expense incurred after 18 May 2012 and any liability the plaintiff has to the Department of Social Security arises after 18 May 2012 could not be the legal responsibility of the current defendant.

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Decision last updated: 27 January 2016