Kamoun v Pipeline Plumbing Developments Pty Ltd
[2021] NSWPIC 285
•10 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Kamoun v Pipeline Plumbing Developments Pty Ltd [2021] NSWPIC 285 |
| APPLICANT: | Taha Kamoun |
| RESPONDENT: | Pipeline Plumbing Developments Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 10 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Permanent impairment compensation; whether applicant suffered consequential condition to left knee as a result of accepted right knee injury; Evidence; applicant cross-examined on credit and as to history of left knee issues relating to post-work injury motor accident; Held- applicant suffered a consequential condition to left knee as a result of right knee giving way and causing a fall at home; the applicant’s left knee may have been symptomatic after the unrelated, post-work injury motor accident, however, that knee was plainly functional before the right knee gave way, as evidenced by the applicant having returned to playing competitive sport before the right knee gave way; although it is not a requirement for an injured worker to demonstrate pathological change in an affected body part to establish a consequential condition, in this matter the changes in the applicant’s left knee after the fall caused by the right knee giving way are supportive of the presence of such a consequential condition; Kumar v Royal Comfort Bedding Pty Ltd and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan discussed and followed; the applicant has established on a common-sense basis a causal link between the right knee injury and left knee condition; Kooragang Cement Pty Ltd v Bates; both the right lower extremity (knee) and left lower extremity (knee) are referred for medical assessment. |
| DETERMINATIONS MADE: | 1. The applicant suffered an injury to his right lower extremity (knee) in the course of his employment with the respondent on 18 December 2015. 2. As a result of the injury referred to in (1) above, the applicant suffered a consequential condition to his left knee. 3. The matter is remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment arising from the following: Date of Injury: 18 December 2015 4. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments, and (c) Reply and attachments. |
STATEMENT OF REASONS
BACKGROUND
Taha Kamoun (the applicant) brings proceedings seeking payment of permanent impairment compensation in respect of an accepted right knee injury suffered in the course of his employment with Pipeline Plumbing Developments Pty Ltd (the respondent) on 18 December 2015, and a disputed consequential condition to his left knee.
There is no issue that on 18 December 2015, the applicant suffered an injury to his right knee when, in the course of his employment as an apprentice plumber, he was walking on a wooden plank which was broken, causing him to stumble and suffer injury.
The applicant suffered a bucket handle tear of his medial meniscus to the right knee, effusion and the development of a 2.5 cm Baker’s cyst in that incident.
The applicant has previously had surgery to his left knee after an injury suffered playing Oztag in or about 2014. After the workplace injury, the applicant was also a passenger in a motor vehicle accident on 28 January 2016. The respondent alleges that the applicant’s left knee condition arose from that motor vehicle accident and was not a consequence of the workplace injury.
ISSUES FOR DETERMINATION
The parties agree that the only issue which remains in dispute is whether the applicant suffered a consequential condition to his left knee as a result of the accepted right knee injury.
In the event there is a finding in favour of the respondent on that issue, the applicant’s left lower extremity will not be referred for medical assessment. If there is a finding in favour of the applicant, both his left lower extremity and right lower extremity will be referred for assessment.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 8 July 2021. 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 have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the hearing, Mr R Brown of counsel instructed by Ms J Mackovic appeared for the applicant, and Mr D Adhikary of counsel instructed by Mr M Van Der Haut appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents.
Oral evidence
The respondent was granted leave to cross examine the applicant in relation to his credit and in relation to the circumstances of the left knee condition.
Mr Adhikary cross-examined the applicant at some length as to the contrasting history in relation to left knee issues arising from the January 2016 motor vehicle accident.
Mr Adhikary asked the applicant whether he was aware of the requirement to be truthful in providing histories concerning his injuries to Drs Dixon and Rimmer, Independent Medical Examiners (IMEs), to which the applicant replied in the affirmative.
When asked about the circumstances of the motor vehicle accident, the applicant stated that to the best of his recollection he had injured his right shin, back and shoulder in that accident.
Mr Adhikary took the applicant to a number of GP clinical records from approximately March of 2016 which gave a history of the applicant’s left knee getting worse after the motor vehicle accident. The applicant noted that at the time he took his statement he did not have any paperwork with him in which he was able to recall the precise nature of the injury suffered in that accident.
When it was suggested to the applicant that he had not been truthful, he denied this was the case and said that he had attempted to provide accurate recollections to the best of his ability.
The applicant denied that he was prepared to conceal the true extent of his left knee condition after the motor vehicle accident in order to obtain an advantage in relation to his claim.
FINDINGS AND REASONS
Consequential condition to the left knee
The applicant bears the onus of proving that his left knee condition has arisen as a consequence of his work injury. In determining the cause of an injury, the Commission must apply a common-sense test of causation. In the workers compensation context, the appropriate test for causation was set out by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) where His Honour said:
“The result of the cases is that each case where causation is an issue in a worker’s compensation claim, must be determined on its own facts. Whether death or incapacity results from the relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is now not accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent death or injury, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common-sense evaluation of the causal chain.”
It is important at the outset to establish the relevant test for determining the presence of a consequential condition. In Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), Deputy President Roche dealt with the issue of whether the injured worker’s shoulder condition resulted from mobilising whilst recuperating from accepted back surgery. In that case, the Deputy President made it clear at [35] and following that it is not necessary for a worker to establish the claimed body part as the subject of an injury as that term is set out in section 4 of the Workers Compensation Act 1987 (the 1987 Act).
At [55] of the decision, the Deputy President noted:
“It is not necessary for Mr Kumar to establish that he has a significant pathology in his shoulder, only that the proposed surgery is reasonably necessary as a result of the injury on 19 March 2009. Dr Wallace’s opinion may well be relevant to the ultimate question of whether the shoulder surgery is reasonably necessary, but it does not determine the question whether the right shoulder condition has resulted from the back injury.”
The decision in Kumar has been followed in decisions such as Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 (Brennan). In that matter, Snell DP reaffirmed that it was unnecessary for a worker alleging a consequential condition to establish that it is an “injury” but in the meaning of section 4 of the 1987 Act. Citing Roche DP’s decision in Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 (Moon), the Deputy President noted that to establish a consequential condition, an injured worker must establish that the symptoms and restrictions in the relevant body part have resulted from the accepted injury to another body part. Therefore, it is inappropriate to approach the fact-finding exercise from the perspective that an injured worker must establish a sustained “injury” to the relevant body part, in the sense that that term is referred to in section 4 of the 1987 Act.
The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss resulted from the relevant work injury (see Sidiropoulos v Able Placements Pty Ltd [1998] NSWCC 7).
Mr Adhikary submitted the applicant’s evidence in relation to the left knee was unreliable. He noted there was no mention of any left knee problems raised by the applicant in his first statement after the motor vehicle accident. Additionally, Mr Adhikary noted that in describing the motor vehicle accident to Dr Rimmer, IME for the respondent, the applicant stated it was “minor and did not affect the knee.”
Mr Adhikary submitted that evidence was plainly not accurate given the GP clinical records which demonstrate the following relevant entries after the motor vehicle accident:
a. 29 January 2016: left knee no tenderness;
b. 3 February 2016: no mention left knee;
c. 15 February 2016: left knee pain;
d. 3 March 2016: left knee pain, got worse after the accident after the MVA;
e. 22 March 2016: left knee pain;
f. 8 April 2016: left knee and leg pain;
g. 26 April 2016: left knee pain;
h. 27 June 2016: MVA neck pain, low back pain, left knee pain;
i. 22 July 2016: bilateral knee pain, MVA left knee;
j. 14 December 2016: MVA/bilateral knee pain;
k. 6 February 2017: TP left knee, right knee;
l. 17 March 2017: MVA neck pain, low back pain, left knee pain;
m. 4 April 2017: right knee pain, left knee pain;
n. 14 June 2017: left knee pain; and
o. 25 September 2017: bilateral knee pain; right knee pain – work-related; left knee pain as well MVA.
It should be noted that there were a number of other visits which the applicant made to his general practitioner which did not refer to the left knee pain during the above period.
Mr Adhikary noted that there must be some evidence to satisfy the causal link between the original injury and the alleged consequential condition. He referred to the decision of his Honour President Judge Keating in Munce v Thomson Cool Rooms Pty Ltd [2017] NSWWCCPD 39 (Munce). At [101] in that decision, President Keating noted:
“It does not necessarily follow that because of a serious injury to the left limb that there must be a resulting overuse of the right limb. The causal relationship must be established on the balance of probabilities from evidence in an acceptable form. It was the lack of such evidence which caused the Arbitrator to conclude that he could not be satisfied on the balance of probabilities of a causal connection between the right shoulder condition and the accepted injury.”
On 16 October 2017, the applicant attended his general practitioner and the clinical records reveal the following entry:
“History:
Right knee pain, twisted yesterday, he had a fall and landed on the right knee, the left knee got twisted and locked, when he tried to extend, he could not, his friend done it for him [sic], he felt pain and click at the left knee.
Examination:
Right knee pain, and reduced flexion to 110°
Left knee worst – flexion 90°
Reason for contact:
Bilateral knee pain.
Management: Review in a few days to see in a few days may need orthopaedic opinion.”
The applicant re-attended on 17 October 2017, complaining of tenderness to both knees and reduced movement. It was at this point he was referred for bilateral MRIs of his knees.
The left knee MRI noted the pre-existing anterior cruciate ligament reconstruction and the presence of residual fibrils tracking contiguously from femoral to tibial insertional aspect. The knee presented with peri-cruciate swelling, however, the ligament appeared to be intact. There were changes consistent with prior partial meniscectomy and a significant loss of volume at the posterior horn.
Mr Adhikary submitted that the inaccurate history provided by the applicant, combined with the lengthy visits to the general practitioner after the motor vehicle accident complaining of left knee problems would lead the Commission to find the applicant had not discharged his onus of proof in establishing the causal link between the accepted right knee injury and the left knee consequential condition.
Mr Adhikary submitted the Commission could not accept the view of Dr Dixon, IME for the applicant who provided the following opinion in his report dated 2 May 2019, attached to the application:
“As a consequence of the primary injury to his right knee on 18 December 2015, he sustained a secondary injury to his left knee in November 2017 when the right knee gave way, causing him to fall on his left knee and injured it significantly. Both his local doctor and his orthopaedic specialist recommended further surgery to both knees.”
A further MRI of the applicant’s left knee was undertaken on 27 March 2018. That report noted a history of the previous reconstruction together with “recent fall and giving way.” It noted there was a rupture of the ACL graft with secondary bony contusions. There was also a bucket handle tear of the lateral meniscus and a large longitudinal tear in the posterior horn of the medial meniscus.
In his report to the general practitioner dated 4 April 2018, treating orthopaedic surgeon Dr Sher noted he had reviewed the applicant on 19 March 2018, at which time he “has had further pain and getting way episodes in his knee.” According to Dr Sher, the applicant:
“states very clearly that his knee was functioning very well before he tripped and fell onto his right knee and from this perspective, this clearly indicates that the work-related injury to his right knee is also responsible for the need for surgery to his left knee and based on the history provided to me, I concur with this assessment.”
Mr Adhikary submitted the problem with Dr Sher’s opinion is that it was based on an incorrect history provided to him by the applicant and was therefore unreliable.
For the applicant, Mr Brown noted it was the right knee giving way in late 2017 which led to the development of the left knee, consequential condition.
Although the applicant may well have had some knee pain following both the prior reconstruction surgery after the Oztag injury and following the early 2016 motor accident, it should be noted that the general practitioner records reveal he had returned to playing soccer shortly before he suffered the incident of the right leg giving way at home.
The clinical notes reveal an entry on 28 August 2017 which reads as follows:
“History:
Sport injury.
Right thumb injured during playing soccer yesterday.”
The applicant then attended again on 30 August 2017 concerning the soccer injury and again on 19 September and 20 September 2017 regarding his right thumb injury suffered whilst playing soccer.
Mr Brown submitted that whilst the applicant may well have complained of knee pain, that was understandable in light of the previous reconstruction surgery which he had undergone, but he had returned to playing very active sport notwithstanding that pain, and it was only after the giving way of the right knee and falling onto the left knee in October 2017 that the left knee required further surgery.
Mr Brown submitted the fact the applicant does not have a good recollection surrounding the precise nature and extent of any injury suffered in the motor vehicle accident should not be held against him. He submitted that the applicant having returned to work by December 2015 is indicative of him not being a malingerer and his evidence concerning the onset of serious left knee symptoms after the injury at issue should be accepted.
Mr Brown took the Commission to the report of Dr Sher dated 25 January 2016, in which he commented that the applicant had recovered well from his left ACL reconstruction, but noted the fall at work on 18 December 2015, which caused the accepted right knee injury. In his report dated 4 May 2016 to the general practitioner, Dr Sher noted that 85% of meniscal tears heal and the applicant was fit to return to work on light duties.
Mr Brown also referred to the MRI of the applicant’s right knee dated 19 September 2016, some six months after the right knee surgery. He noted the MRI at that time still demonstrated multifocal and multidirectional complex tearing of the right medial meniscus. Mr Brown submitted that that finding is consistent with the applicant’s complaints of his knee giving way, which in turn caused the left knee injury in the fall in October 2017.
In summary, Mr Brown submitted that whilst the applicant may have had left knee pain in 2017, by August of that year he was back playing soccer and had returned to work. He submitted that to the extent there was a left knee issue before the right knee gave way in October 2017, it was not something troubling the applicant functionally, as evidenced by his return to playing soccer.
Mr Brown also relied upon the contemporaneous report by the applicant to his general practitioner of the right knee giving way at home and submitted that if the respondent sought to rely on his complaints to his general practitioner regarding the left knee following the motor vehicle accident, it could not ignore complaints to the same practitioner following the right knee giving way.
Mr Brown submitted that before the October 2017 incident, there were a number of visits to the general practitioner in relation to the applicant fulfilling his worker’s compensation medical certificate obligations. It was, however, after 16 October 2017 when the general practitioner recorded a serious loss of range of movement, sufficient to warrant orthopaedic surgeon referral. It was after the October 2017 fall when the applicant was referred for MRI as a result of increased swelling.
The GP entry of 29 December 2017 also revealed the applicant’s left knee locking and in pain.
Mr Brown noted the MRI of 27 March 2018, which demonstrated pathological change which was deteriorating in the applicant’s left knee. He submitted this was consistent with deterioration in that body part after the October 2017 fall.
In my view, that submission carries significant weight. Although, as already noted, there is no need for a worker to demonstrate pathological change in order to establish the presence of a consequential condition, in this matter, there is significant pathological change present after the incident which the applicant alleges gave rise to the left knee consequential condition.
That is to say, although the applicant’s left knee was plainly causing him some problems following the early 2016 motor vehicle accident, it must have been a functional joint before the right knee gave way in October 2017, because he had both returned to work and was playing soccer by August 2017. He could certainly not have undertaken those activities with the serious tears to his knee compartment which were exhibited on the MRIs of early 2018.
On balance, I am satisfied that the applicant has established a causal link between his right knee giving way at home in October 2017 as a result of his work injury and the consequential condition to his left knee. It is apparent that there were significant changes to the applicant’s left knee following that incident, and the nature and extent of his symptoms in it were significantly different and more serious than those which he had exhibited between the January 2016 motor vehicle accident and the giving way incident at home in October 2017.
Notwithstanding some reservations surrounding the applicant’s recollections regarding his left knee, the clinical records in my view corroborate the October 2017 events as being causative of the deterioration in the applicant’s left knee condition.
The clinical records demonstrate very serious changes to the applicant’s left knee after that incident, as supported by the radiological findings on MRI. Those findings, combined with the contemporaneous records which demonstrate the applicant’s left knee was clearly functional before the October 2017 incident, in my view overcome any causative issues regarding the link between the accepted right knee injury and the left knee condition.
I do not prefer the view of Dr Rimmer, IME for the respondent who indicated the applicant’s left knee was “an essentially normal examination post ACL reconstruction (2014 – not work-related).” Dr Rimmer did not have the benefit of seeing the 2018 MRI of the applicant’s left knee which demonstrated a significant pathological change following the right leg giving way in October 2017. That is not said as a criticism of Dr Rimmer, but the pathological change demonstrated by that MRI is, in my view, significant.
I prefer instead the views of treating surgeon Dr Sher and Dr Dixon, IME for the applicant who found a causal link between the accepted right knee injury and the left knee condition. In particular, I note Dr Sher had the benefit of treating the applicant for many years, and his views should be given appropriate weight as those of a treating surgeon who approaches the matter from an independent point of view.
Moreover, I note that Dr Rimmer makes no mention of the October 2017 incident, despite having the benefit of the clinical records of the general practitioner at his disposal.
On balance, the medical evidence in my view discloses a causal link between the applicant’s accepted right knee injury giving way in October 2017 and the development of the consequential condition in his left knee.
For these reasons, the Commission will make orders referring both the left and right lower extremities (knees) to a Medical Assessor for determination of the applicant’s degree of whole person impairment.
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