Kirkpatrick v Heckendorf Family Trading Pty Ltd
[2009] NSWWCCPD 84
•22 July 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Kirkpatrick v Heckendorf Family Trading Pty Ltd [2009] NSWWCCPD 84 | ||||
| APPELLANT: | Samuel Gilbert Kirkpatrick | ||||
| RESPONDENT: | Heckendorf Family Trading Pty Ltd | ||||
| INSURER: | CGU Workers Compensation (NSW) Ltd | ||||
| FILE NUMBER: | A1- 9302/08 | ||||
| ARBITRATOR: | Mr R Whitelaw | ||||
| DATE OF ARBITRATOR’S DECISION: | 14 April 2009 | ||||
| DATE OF APPEAL DECISION: | 22 July 2009 | ||||
| SUBJECT MATTER OF DECISION: | Injury; causation | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Stacks | |||
| Respondent: | Sparke Helmore | ||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination of 14 April 2009 is confirmed, and the following additional order is made: “2. Award for the respondent in respect of the alleged injury to the applicant worker’s lumbar spine.” | ||||
| Each party is to pay his or its own costs of the appeal. | |||||
BACKGROUND
The appellant worker, Mr Kirkpatrick, is a shearer. He started shearing with the respondent employer, Heckendorf Family Trading Pty Ltd (‘Heckendorf’), on 11 September 2006. On that day he attempted to catch a sheep in a holding pen when it reared up on him causing him to fall approximately one metre down the catching chute and twist his left knee. Mr Kirkpatrick continued working until the afternoon of 11 September 2006. He attended on his general practitioner, Dr Kirkby, who referred him to a specialist, Dr Molnar, for treatment of his knee. He underwent surgery to his left knee on 5 April 2007 but has not been able to return to shearing on a full-time basis since his accident. His claim for compensation was accepted, but it is unclear if compensation payments continue.
On 28 July 2008, Mr Kirkpatrick claimed lump sum compensation in respect of a 12 percent whole person impairment as a result of his injury. This percentage was made up of an 8% whole person impairment in respect of his lumbar spine and a 4% whole person impairment in respect of his left lower extremity.
By letter dated 9 September 2008, Heckendorf’s workers compensation insurer, CGU Workers Compensation (NSW) Ltd (‘CGU’), denied liability for the back claim on the grounds that Mr Kirkpatrick had not injured his back.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 21 November 2008, Mr Kirkpatrick claimed lump sum compensation in respect of a 12 percent whole person impairment as a result of injury to his left knee and lumbar spine in the incident on 11 September 2006.
In its Reply filed on 9 December 2008, Heckendorf disputed that Mr Kirkpatrick injured his lumbar spine on 11 September 2006, or that his lumbar spine condition was an “injury secondary to the left knee injury.”
The matter was listed for conciliation and arbitration on 12 March 2009. The matter proceeded with submissions being made on behalf of each of the parties. In a reserved decision delivered on 14 April 2009 the Arbitrator did not accept that Mr Kirkpatrick’s back condition had resulted from the injury on 11 September 2006 and he referred the assessment of whole person impairment as a result of the left knee injury to the Registrar for referral to an Approved Medical Specialist (‘AMS’). The Certificate of Determination issued by the Commission on 14 April 2009 records the following formal order:
“1.That the file be remitted to the Registrar for referral of the Applicant to an Approved Medical Specialist:
Date of injury: 11 September 2006
Injury:Left lower extremity
Documents:
(i)Application to Resolve a Dispute
(ii)Reply
(iii)Documents attached to Application to Admit Late Documents dated 14 January 2009.
(iv)Documents attached to Application to Admit Late Documents dated 3 November 2008.
(v)Letter from Stacks to Dr Hope dated 3 November 2008.
(vi)Copy of these Statement of Reasons.”
By an appeal filed on 28 May 2009, Mr Kirkpatrick seeks leave to challenge the Arbitrator’s finding in respect of his lumbar spine.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) not referring Mr Kirkpatrick’s back injury to an AMS for assessment, and
(b) substituting his own medical opinion in lieu of Dr Bentivoglio’s diagnosis.
THE EVIDENCE
Mr Kirkpatrick completed a claim form on 14 September 2006. In that document he described the accident in the following terms:
“I was in the catching pen catching a sheep to shear when it kicked and I lost my balance when I stepped backwards I fell through the grating on the down chute.”
He described his injury as “twisted knee”.
Mr Kirkpatrick’s evidence in support of his claim is set out in three statements dated 17 April 2007, 1 August 2007 and 28 March 2008. In his first statement he described the incident in terms similar to that set out in his claim form, but added that he fell a distance of approximately one metre down the catching chute onto his back and twisted his left knee. He attended on his general practitioner, Dr Kirkby, who referred him to Dr Molnar for treatment of his left knee. His statement describes his injury as “injury to the left knee” and lists seventeen disabilities said to have resulted from that injury. None of the disabilities refer to back pain or back disabilities.
In his August 2007 statement, Mr Kirkpatrick states that he continued to experience constant pain and aching in his left knee joint, which was worse with activity. He walked with a slight limp and he noticed occasional aching in his right knee because of his increased reliance on it.
In his third statement, Mr Kirkpatrick states that he continued to suffer from a dull aching pain in the back of his left knee on most days. He added that he also experienced occasional aching pain in his right knee and lower back on account of his increased reliance on his right knee and his limp. He did not say when his back symptoms commenced.
Medical evidence
Dr Kirkby’s clinical notes are in evidence, but are illegible. However, Dr Kirkby’s referral of 3 October 2006 to Dr Molnar is also in evidence. That referral states that Mr Kirkpatrick injured his knee when he fell down a chute while shearing and he had an effusion of his left knee.
Reports from Dr Molnar refer to Mr Kirkpatrick sustaining a twisting injury to his left knee whilst shearing in September 2006. On 5 April 2007, Mr Kirkpatrick under went a partial medial meniscectomy and osteoplasty of his femoral trochlea and chondroplasty of the medial femoral condyle. At review in December 2007, Mr Kirkpatrick reported a gradual improvement in his condition. Examination revealed that the left knee was stable with no effusion. Dr Molnar cleared Mr Kirkpatrick to return to all normal duties.
Numerous medical certificates covering the period from September 2006 until 12 September 2007 have also been tendered in evidence. None of those certificates refer to any injury or condition other than the injury to the left knee.
Mr Kirkpatrick relies on a medicolegal report prepared by Dr Hope, orthopaedic surgeon dated 17 June 2008. Dr Hope took a history that on “12 September 2006” [sic, 11 September] Mr Kirkpatrick fell down a sheep catching chute “sustaining a torsional injury to the lumbar spine and a flexion torsional injury to the left knee”. He referred to the surgery to the left knee and noted that there had been no specific treatment undertaken for the lumbar spine condition. There were no significant continuing problems in the right knee. The doctor recorded that Mr Kirkpatrick’s left knee and lumbar spine were symptom free prior to the September incident.
In respect of the lumbar spine Dr Hope recorded that there was moderate intermittent aching pain from the mid to the distal lumbar spine which was worse after prolonged sitting and better on changing positions. On examination, spinal rotation manoeuvres were mildly difficult and there was a four-kilogram ground level lifting limit.
Under “Summary”, Dr Hope recorded that Mr Kirkpatrick injured his left knee and lumbar spine on 12 September 2006 when he fell down a sheep catching chute. Though the lumbar spine had not been treated, significant symptoms continued. He diagnosed Mr Kirkpatrick to have a “mild chronic low back pain syndrome.” On 3 November 2008, Mr Kirkpatrick’s solicitors, Stacks, wrote to Dr Hope advising that their client’s back pain “in fact developed subsequent to the accident, which he attributes to increased reliance on his right knee and his limp.” The doctor was asked to advise if this caused him to alter his opinion in any way.
Dr Hope replied on 10 November 2008 as follows:
“Thank you for your letter dated 3/11/2008 indicating that the client’s back pain developed subsequent to the accident and was attributed to the increased reliance on the right knee and limb.
This did not alter my opinion because the maximum WPI was given for the lumbar spine as a direct result of the injury.
No further allowance was made due to secondary injury.”
Heckendorf relies on a report from Dr Bentivoglio, orthopaedic surgeon, dated 22 December 2008. He took a history that on 11 September 2006 Mr Kirkpatrick fell 30 centimetres through the floor of a shearing shed and sustained a twisting injury to both knees and landed on his back.
Dr Bentivoglio recorded that Mr Kirkpatrick injured his back in a car accident in 1988 and had ongoing symptoms from the mid to late 1990’s onwards. At no stage has he had any investigations or treatment for his back. Mr Kirkpatrick complained of pain in his knees, the left worse than the right. He complained of always having some degree of low back pain that radiates towards both hips, but not to the lower limbs.
Under “Diagnosis and Opinion”, Dr Bentivoglio noted:
“There is no indication that Mr Kirkpatrick has any abnormality in his right knee or indeed in his lumbar spine. I consider he only sustained soft tissue injuries to those areas. He has not had any investigations to verify any disability present in either his right knee or his lumbar spine.”
The doctor added that any symptoms Mr Kirkpatrick has in his back region have resulted from the car accident in 1988 and are not a result of the injury on 11 September 2006. Under “Diagnosis”, Dr Bentivoglio said:
“The diagnosis is that of some degree of internal derangement present in his left knee as a result of the specific injury on 11 September 2006.
The diagnosis is made on the history provided by Mr Kirkpatrick as well as physical examination and the MRI scan findings.
There was also musculoligamentus strain of his back and right knee in the same incident.
The diagnosis was made on the history provided by Mr Kirkpatrick as well as physical examination.”
In answer to the question whether he felt that Mr Kirkpatrick’s low back injury was caused by the accident, the doctor stated that the “flare-up of his back symptoms may well have occurred as a result of jarring his back in the incident of 11 September 2006,” but any ongoing disability did not relate to him either limping or the jarring injury to his back at work on 11 September 2006.
SUBMISSIONS, DISCUSSION AND FINDINGS
It is submitted on behalf of Mr Kirkpatrick that Dr Bentivoglio’s diagnosis, in combination with the worker’s evidence about the mechanism of injury, demonstrates that the Arbitrator erred by not referring “the applicant’s back injury to an AMS”.
I do not accept this submission, as it is contrary to the overwhelming weight of evidence in the case. Mr Kirkpatrick did not injure his lower back on 11 September 2006. This conclusion is clear from his evidence in his claim form and his statements of 17 April 2007 and 1 August 2007. The statement of 17 April 2007 is particularly telling as it sets out in detail the nature and extent of Mr Kirkpatrick’s injury and disabilities. Notwithstanding listing seventeen disabilities as a result of his knee injury, not one mention is made of any back pain or discomfort. The fact that Mr Kirkpatrick may have fallen onto his back on 11 September 2006 does not establish that he injured his back on that day. His complaint to his general practitioner was of a twisting injury to his left knee and the referral to Dr Molnar was for treatment for that injury. Mr Kirkpatrick has never been referred for any investigations in respect of his lower back and never complained of back symptoms until his statement of 28 March 2008.
Dr Hope’s evidence is based on a false history, namely, that Mr Kirkpatrick sustained a torsional injury to his lumbar spine when he fell in September 2006 and, it seems, that he experienced back pain at that time. That history is not supported by Mr Kirkpatrick’s evidence and is clearly wrong. Even if it is accepted that Mr Kirkpatrick did fall onto his back there is no evidence that he sustained an injury to his back in that fall. There are no radiological investigations of his back and the delay in the onset of his back symptoms is not explained. I do not accept Dr Hope’s evidence.
Dr Hope’s second report does nothing to support Mr Kirkpatrick’s claim that his back symptoms have resulted from his altered gait because of his left knee injury. First, Dr Hope did not take a history of an altered gait affecting Mr Kirkpatrick’s back and did not express an opinion about it. Second, Dr Hope merely stated that the altered history did not change his opinion because the maximum whole person impairment was “given for the lumbar spine as a direct result of the injury”. This statement assumes (incorrectly) that the back symptoms have resulted from the 11 September 2006 incident. Last, Dr Hope’s statement that he made no “further allowance” due to “secondary injury” is of no assistance in determining if an injury occurred and confirms that he did not turn his mind to the relevance of Mr Kirkpatrick’s altered gait.
Mr Kirkpatrick’s reliance on Dr Bentivoglio’s report is misplaced. It is unclear when Dr Bentivoglio understood that the back symptoms commenced. His references to Mr Kirkpatrick having symptoms mainly in his knee regions “but to a lesser degree in other areas” and to the fall causing a “mild flare-up of his back symptoms” suggest that he believed the back symptoms commenced at or immediately after the fall. For the reasons set out above, that is incorrect. The evidence comfortably establishes, and I find, that Mr Kirkpatrick’s back symptoms did not commence until after 1 August 2007. Therefore, Dr Bentivoglio’s conclusion that the fall caused a “mild flare-up of his back symptoms” is not consistent with the history and does not assist Mr Kirkpatrick.
In respect of the allegation that Mr Kirkpatrick’s back symptoms have resulted from his altered gait, I note his evidence in his second statement that he was, at that time, walking with a slight limp and that he noticed an occasional aching in his right knee. His third statement referred to aching in his right knee and lower back on account of increased reliance on his right knee and his limp. He gave no evidence as to when his limp commenced or how persistent or significant it was. There is no medical evidence as to what, if any, pathology exists in his lower back. Dr Hope does not support a link between the altered gait and the back symptoms. Given this evidence, I accept Dr Bentivoglio’s conclusion that any ongoing disability present in his back region does not relate to Mr Kirkpatrick’s limping (page eight).
In view of the long delay between the 2006 incident and the development of back symptoms, and the evidence that Mr Kirkpatrick had experienced back pain before the 2006 incident, I am comfortably satisfied that Mr Kirkpatrick did not injure his back when he fell at work on 11 September 2006. In the alternative, I am not satisfied that his current complaints of back discomfort have resulted from the injury to his left knee. As a result, there is no “back injury” to be referred to an AMS for assessment and Mr Kirkpatrick has no entitlement to compensation in respect of his back symptoms.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I have concluded, for the reasons given in this decision, that the Arbitrator’s decision is correct and I agree with his conclusions. To give effect to those conclusions, there must be an award for the respondent in respect of the alleged injury to Mr Kirkpatrick’s lumbar spine.
DECISION
For the reasons given in this decision, the Arbitrator’s determination of 14 April 2009 is confirmed, and the following additional order is made:
“2.Award for the respondent in respect of the alleged injury to the applicant worker’s lumbar spine.”
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
22 July 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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