Maggio v Crane Aid Pty Ltd
[2024] NSWPIC 146
•25 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Maggio v Crane Aid Pty Ltd [2024] NSWPIC 146 |
| APPLICANT: | Steven Maggio |
| RESPONDENT: | Crane Aid Pty Ltd |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 25 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant sought a finding of a consequential injury to his left knee and ankle arising out of a previous injury to his right knee and consequent unsuccessful surgery; Held – finding of a consequential injury and the reasonable necessity for surgeries to the applicant’s left knee and left ankle. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant has suffered a consequential injury to his left knee and left ankle arising from the necessity to rely on his left leg consequent upon the injury to his right leg and shoulder suffered on 11 January 2018. 2. Surgeries to the applicant’s left knee and left ankle proposed by the applicant’s treating surgeons, Dr Crick and Dr Touzell, are reasonably necessary in the circumstances. The Commission orders: 3. An award for the applicant in relation to the consequential injury to his left knee and left ankle. 4. The respondent is to meet the costs of, and arising out of and incidental to, the left knee and left ankle surgeries proposed by his treating specialists Dr Crick and Dr Touzell. |
STATEMENT OF REASONS
BACKGROUND
Mr Steven Maggio (the applicant) is employed by Crane Aid Pty Ltd (the respondent). On
11 January 2018 he was injured when he fell at the Albury workplace of the respondent and was injured. The applicant has undergone surgery for injuries arising from that fall. Liability for the injuries sustained in that fall to the applicant’s right knee and right shoulder has been accepted.
MATTERS IN DISPUTE
The applicant claims further consequential injuries to his left knee and left ankle, liability for which is denied. He seeks payment for surgeries to both his left knee and ankle.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
Ms Lyn Goodman of counsel, instructed by Ms Laura Flanagan of Carroll and O’Dea Lawyers appeared for the applicant. Mr Daniel Stiles of counsel, instructed by Jaclyn Ferry of Rankin Ellison Lawyers, 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 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.
EVIDENCE
There was no oral evidence.
There was no application to adduce oral evidence or cross examine the applicant or any other witnesses as to any factual dispute before the Personal Injury Commission (Commission).
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply to ARD (Reply) and attached documents.
The applicant’s submissions
The applicant’s statements regarding his injury, treatment and current position are extracted below:
“23. At the moment, I struggle to navigate stairs. Crane Aid actually put a chair lift on the stairs so I could access the upper office.
24. I am presently doing three days per week although this is a challenge.
25. My knee often swells while doing day-to-day activities.
26. I am constantly in pain. It is very draining. Because of this, I often do not sleep well.
27. When I wake up in the morning, I usually take Endone and Panadol. I cannot continue throughout the day without this pain relief.
28. I cannot raise my right shoulder above my head.
29. I cannot mow the lawns like I used to.
30 I have several grandkids. I can no longer take them on walks or play with them in a playground.”[1]
[1] ARD page 2.
And:
“4. Following my accident on 11 January 2018, I suffered significant injuries to the right side of my body, and on 6 March 2018 I had an arthroscopy of my right knee with a partial meniscectomy.
5. On 15 January 2020, I underwent an arthroscopy and an excision of my acromioclavicular joint in my right shoulder.
6. I suffered ongoing symptoms in my right knee following the surgery I had on
6 March 2018, and on 13 May 2020 I had a total right knee replacement.7. I still suffer ongoing issues with the right side of my body and take pain relief in the form of Palexia and Endone for my right knee and right shoulder. The pain I have in my right shoulder is not as bad as the pain I experience in my right knee, and the pain I do experience is only aggravated by any repetitive use of my right arm. The pain often hovers around the 7-8/10 range of severity.
8. Since my total right knee replacement in 2020, which initially helped, however now my symptoms have since recurred, and I have had to again heavily favour the left side of my body. My right knee is so painful that it has made me favour my left knee and hence, put pressure on my left knee to alleviate the pain in my right knee.
9. I first noticed symptoms in my left knee and left ankle prior to my total right knee replacement in 2020 as I was favouring my left side, due to my injury and over time I have noticed these symptoms getting progressively worse. I have a 10/10 severity in pain in my left knee and left ankle, and when I take my pain relief mediation this brings my pain down to about a 7/10.
10. There is never a time when I am not in pain. Even when I am laying down, I cannot bear the weight of the doona cover on my left knee. I do not sleep well anymore.
11. I have been attending hydrotherapy classes which has helps to reduce the severity of my pain. However, this is only for a limited time when I am at the session and in the water.
12. I do not use any support aids when I am walking, however, I can't walk long distances and I just shuffle. I have a lot of trouble walking from my initial injury and most recent injury. My left leg no longer has any muscle in it and I can't do anything with it.
13. I am unable to sit for too long, stand for too long, or lay down for too long, as I find that it worsens my pain. I can never get comfortable.
14. Sometimes when I am standing and moving about my left knee will suddenly give weigh, buckling underneath me.
15. I cannot do any physical activities like I used to. I am in constant pain and have significant mobility issues.
16. My primary goal is to have surgery on my left knee and left ankle to help to alleviate the pain I am currently experiencing.”[2]
[2] ARD pages 3 and 4.
There is a Complying Agreement between the parties dated 27 April 2022 in relation to the right knee and right shoulder injuries of 11 January 2018 regarding a whole person impairment of 34%.[3]
[3] ARD pages 7 and 8.
In essence, the applicant alleges that his right knee surgery has not been successful. His symptoms have recurred and he has been obliged to increasingly rely on support from his left leg. This has resulted in the consequential injuries which are alleged.
The medical evidence in support of a consequential injury to the left lower extremity (knee and ankle) is provided in the reports of Dr Chau, Dr Crick and Dr Touzell.
Independent medical examiner (IME) Dr Roger Pillemer provided a report dated
17 October 2023[4] which provided a detailed overview of the applicant’s history of injury and medical treatment. He reviewed the medical reports of the treating doctors and commented on the report of the IME qualified by the respondent, Dr Gothelf. His conclusions are set out below:[4] ARD page 46.
“DIAGNOSIS:
As noted, Mr Maggio developed problems with his right shoulder and right knee at the time of
his fall on 11 January 2018, and came to surgery at both sites, and I note that assessments of
impairment of these body parts have been carried out and accepted.
I have noted the photographs forwarded to me, indicating the significant post-operative
complications.
As noted Mr Maggio developed problems with his left knee and left foot and ankle region soon after the right total knee replacement was carried out, and these symptoms became progressively more severe with time. His left knee has deteriorated fairly quickly and he is also getting significant discomfort in relation to his left foot.
There is no question that Mr Maggio had longstanding problems with both his left knee and left foot at the time these body parts became symptomatic, after the right total knee replacement.
It is worth noting that he has a similar but less marked problem with his right foot, which
remains asymptomatic.
He now has significant degenerative changes in both his left knee and left foot, and his treating specialists have recommended surgery for both areas.
ATTRIBUTABILITY:
It is worth noting that prior to the onset of symptoms in the left knee and left foot,
Mr Maggio was asymptomatic in both of these areas. What changed following his knee replacement was that increased weight-bearing would have been applied to his left lower limb during Mr Maggio's recovery and rehabilitation for his right total knee replacement, which as noted is still giving him significant problems.
In my opinion the longstanding problems with Mr Maggio's right knee would have caused the problems with his left knee and left foot to have come on earlier than might otherwise have been the case, and if surgical treatment is to be carried out, it seems that this would be necessary earlier than might otherwise have been the case.
FUTURE TREATMENT:
I would agree that the best way forward at this stage would be for Mr Maggio to have a left total knee replacement carried out, as well as a triple arthrodesis of his left foot. As noted he is rather hesitant at the moment because of the ongoing problems with his right knee.
FITNESS FOR EMPLOYMENT:
Mr Maggio is not fit for any employment at the present time.
PROGNOSIS:
In my opinion it is predictable that he is going to have significant ongoing problems with his left knee and left foot in the long term.
STABILITY:
In my opinion Mr Maggio's condition can not be regarded as having stabilised/reached MMI noting that further treatment for his left knee and left foot is being suggested and likely to go ahead.
I would suggest that at the time of assessment of impairment once he reached MMI, a significant
deduction for the pre-existing osteoarthritic change in both his left knee and left foot would need to be taken into account in determining the final level of impairment.
Please note that I have read the very detailed and excellent report of Dr T Gothelf, orthopaedic surgeon of 30 June 2023, and as noted I agree that Mr Maggio's left knee condition was not caused by the workplace injury, and I agree with his reasons for this.
I also agree that the left ankle (foot) condition was not caused by the workplace injury, and again I would agree with the reasons suggested.
I do however feel that Dr Gothelf has not really taken into consideration the fact that by
favouring his right lower limb over a long period of time, he would have been placing increased stress on his left knee and left foot, areas which were asymptomatic until he had his right total knee replacement carried out.
In this regard then, and once again, it would be my opinion that symptoms in his left knee and left foot were brought on earlier than might otherwise have been the case, if Mr Maggio had not had any problems with his right lower limb.
In answer to your specific questions not covered in the body of my report:
• In my opinion Mr Maggio's employment with Crane Aid was a substantial contributing
factor in regard to his left knee symptoms.
• In my opinion the proposed surgery for Mr Maggio's left knee is reasonably necessary.
• It is difficult to suggest a prognosis at this stage, as this will depend on the efficacy of his left knee replacement.
• It is also worth noting that from the original investigations of his left knee in November
and December 2022, there has been a fairly rapid deterioration in this joint.”
(my emphasis)He also provided a supplementary opinion as follows:
“… I do consider Mr Maggio's employment as being the main contributing factor, to the aggravation of his underlying osteoarthritic change in his left knee.”[5]
[5] ARD page 204.
The respondent’s submissions
Dr Gothelf provided a detailed report.[6] He concluded that the condition suffered by the applicant in his left knee and left ankle were not caused by the workplace injury on
11 January 2018. It was his opinion that:“The reported mechanism of injury for both conditions was a gradual onset and without a history of a traumatic incident. I consider that the diagnoses are consistent with the mechanism of injury of gradual onset.
….
I consider that the compensable injuries of the right shoulder and right knee were not the main contributing factors to the current left knee and left ankle symptoms. I consider that it is more likely than not that Mr Maggio would have developed left knee pain and left ankle at the diagnoses at this stage in his life regardless of the workplace injuries.”[7]
[6] ARD page 184.
[7] ARD page 194.
Counsel for the respondent refers to previous medical history of the applicant including notes recorded by Dr Chau,[8] the applicant’s treating general practitioner, on 15 November 2006. These are set out below:
“1 yr
left ankle aches
aches and pain
swelling on lat side ankle
first thought that it was siatica
Examination:
feet bialt flat and pronated worse on left side.”[9]
[8] ARD page 789.
[9] ARD page 789.
He refers to the fall from a ladder which the applicant experienced some 20 years ago with subsequent left knee surgery.
He also referred to multiple injuries experienced by the applicant when he fell down a number of steps at the MCG when attending a grand final in 2019:[10]
“History:
MRI head normal.Has had recurrent headaches left parietal region since fall down stairs at Grand Final. Other aches in left hip and leg improving.”[10] ARD pages 867 and 868.
CONSIDERATION
I am not persuaded that the applicant’s fall and any consequences, which occurred at least 20 years ago, has made any contribution to the applicant’s current left knee and ankle condition.
I am not persuaded that the applicant’s fall in 2019, as a result of which he bruised his left side, and experienced a head injury which required investigation, has made any contribution to his current left knee and ankle condition.
I am not persuaded the applicant’s failure to draw attention to his earlier left knee pain is significant taking into account the very significant increase in symptomatology following the right knee surgery, its failure and his consequent reliance on his left leg.
I find the two reports of Dr Roger Pillemer persuasive. I do not believe Dr Gothelf gave sufficient consideration to the effect of the considerable whole person impairment suffered by the applicant arising out of the injury to his right knee and shoulder (it is clear that the right knee injury was the more significant).
I am satisfied and find that the injury to the applicant’s right knee, and its unsuccessful treatment, is the main contributing factor to the causation of a consequential injury to the applicant’s left knee and left ankle.
I am satisfied and find that the surgery recommended by the applicant’s treating specialists to his left knee and left ankle is reasonably necessary in all the circumstances and arises directly from the consequential injury to the applicant’s left knee and ankle referred to above.
SUMMARY
For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
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