Membrey v Wonthaggi Recyclers

Case •

[2020] VMC 24

•

29 OCTOBER 2020

IN THE MAGISTRATES’ COURT OF VICTORIA
AT LATROBE VALLEY
WORKCOVER DIVISION

Case No. K11204464  

BRENDON MEMBREY Plaintiff
v  
WONTHAGGI RECYCLERS PTY LTD Defendant

---

MAGISTRATE:

S GARNETT

WHERE HELD:

LATROBE VALLEY

DATE OF HEARING:

7 OCTOBER 2020 – via the OMC

DATE OF DECISION:

29 OCTOBER 2020

CASE MAY BE CITED AS:

MEMBREY v WONTHAGGI RECYCLERS

MEDIUM NEUTRAL CITATION:

[2020] VMC 024

---

CATCHWORDS – Workplace Injury Rehabilitation and Compensation Act 2013 - Rejection of claim – Alleged left knee injury sustained on 7 and/or 8 November 2018 arising out of or in the course of employment – Differing accounts as to precise location of injury – CCTV footage – Incorrect location of alleged injury in subsequent Workcover Claim Form.

--

APPEARANCES:

 COUNSEL SOLICITORS
For the Plaintiff Mr Chen Maurice Blackburn
For the Defendant Ms Kusiak Minter Ellison

HIS HONOUR:

  1. Mr Membrey is 50 years of age and was employed with the defendant as a truck driver (Kerbside Collection Driver) from 8 March 2013. He alleges that he sustained injuries to his left knee on 7 & 8 November 2018, which arose out of or in the course of his employment and which rendered him incapacitated for employment from 20 November 2018 until 14 March 2019.

  1. Mr Membrey initially completed an Incident Report with his employer on 8 November and lodged a Workcover claim form dated 27 November 2018 alleging the injury to his left knee occurred on 8 November 2018 at 7.30 a.m. when he ‘climbed out of truck took one step up bank and knee went’. He also stated in his claim form that he was ‘standing up a bin’ when he was injured, and the incident occurred on ‘Settlement Rd Cowes’.

  1. Allianz rejected liability on 20 December 2018 after investigating the matter and receiving correspondence from Adam Hill, the Managing Director of the employer dated 29 November 2018. Mr Hill stated that the CCTV footage at the employer’s premises indicated that on the morning of 8 November 2018, Mr Membrey is depicted ‘limping’ as he comes into the yard and that halfway across the yard, he is seen to grab his left knee. He also stated that all the employer’s vehicles are fitted with cameras and at approximately 7.30 a.m. Mr Membrey is seen limping after he gets out of the truck and picks up spilt material. He also stated that footage depicts him limping as he places a sticker on a bin for contamination. Mr Hill also noted that the CCTV footage of Mr Membrey leaving the yard on Wednesday 7 November does not indicate that he has a limp. Mr Hill also stated in his letter to Allianz that after discussing the footage with Mr Membrey he subsequently informed him that he had actually hurt his knee on 7 November on Cashin St Inverloch at approximately 8.30 a.m. In his letter to Allianz, he stated that the truck footage does not depict Mr Membrey exiting his truck on Cashin St. Mr Hill also stated that Mr Membrey subsequently rang the company on 29 November to inform them that the incident occurred on Bear St Inverloch. Mr Hill reported that the truck footage on that date does not indicate that he injured his knee on 7 November and furthermore, when Mr Membrey returned to the yard at the end of his shift on 7 November, CCTV footage indicates that he was able to squat whilst greasing the arm of the truck. It was further alleged that Mr Membrey subsequently contacted the employer to inform them that the injury actually occurred at ‘Dirty 3 Winery’ on Cashin St Inverloch and CCTV footage indicated that he did not exit his truck at that location.

  1. As a consequence of being provided with this information and after obtaining a medical opinion from Dr Taubman (who was provided with CCTV footage), Allianz rejected the claim on 20 December 2018.

  1. Mr Membrey issued proceedings on 13 May 2019 alleging that he sustained injuries to his left knee on or about 7 November 2018. A Defence was filed on or about 19 June 2019 denying that the claimed injury arose out of or in the course of employment. A further Workcover Claim Form was signed by Mr Membrey on 11 April 2020 (completed by his lawyers), alleging that he sustained an injury to his left knee in the same circumstances as alleged in the initial Claim Form but on 7 November 2018 on Settlement Rd Cowes (incorrect location). The second claim was rejected by Allianz on 28 April 2020. By way of an Amended Statement of Claim filed on 20 May 2020, Mr Membrey alleges that his left knee injury was sustained on or about 7 or 8 November 2018. The defendant filed an Amended Notice of Defence dated 30 April 2020 denying that the alleged injuries arose out of or in the course of employment on either the 7th or 8th of November 2018.

  1. The matter proceeded via the OMC with Mr Membrey and Mr Hill giving evidence and being subject to cross-examination. A Joint Court Book was tendered by the parties containing the Claim Forms, Rejection Notices, Medical reports, an Incident Report Form, Payslips from External Constructions Pty Ltd, the subsequent employer of Mr Membrey and the CCTV/Truck Camera footage.

  1. Mr Membrey gave evidence that he was employed on a full-time basis with the defendant as a truck driver from 2013 working 8-10 hours per day. He told the court that he was required to drive the garbage truck to pick up bins and household rubbish on a different route each day. He said that he would be required to exit his truck to pick up fallen bins or loose rubbish. At the end of his shift he would take the rubbish to a landfill area and then return to the yard to clean the truck.

  1. Mr Membrey told the court that on 7 November 2018, he commenced work at 5.30 a.m. – 6 a.m. and when on Cashin St Inverloch, he had to exit the vehicle to put rubbish in a bin he was collecting. He said that as he climbed out of the truck and put his foot on the ground, he felt a sensation in his left knee that he had not experienced before. He said that he ‘passed it off’ as a ‘twinge in his knee’ and kept working. The truck footage which was shown to the court which was taken at 9.16 a.m. on Cashin St indicates that a yellow bag had fallen off a bin whilst it was being lifted and Mr Membrey is depicted to walk over to the bag, pick it up and put it in the bin before returning to his truck. He said he may be required to do that task numerous times a day. He said that despite experiencing left knee symptoms he continued to work but only felt the ‘twinge’ in his knee a couple of more times during the day but when he was required to exit the truck, he felt a ‘tearing sensation’. He told the court he completed his shift at 1 p.m.

  1. Mr Membrey gave evidence that overnight his left knee ‘seized up’ and he could not bend his leg. He said that it was ‘like it was locked’. He also said that when he woke on the morning of 8 November, he was sore, and he was ‘struggling’. He said that during his shift that day his knee hurt. He also said that it hurt further when he was required to get out of his truck to pick up a bin when on Settlement Rd Cowes. He gave evidence that as he got out of the truck and stood on a bank, he felt ‘bang’ in his knee. He said that his knee ‘locked’ and then ‘unlocked’. Mr Membrey told the court that he continued working for the rest of the day but was ‘reluctant’ to get out of the truck because his knee was ‘tender’.

  1. Mr Membrey told the court that when he returned to the yard at the end of his shift on 8 November, he was approached by Mr Hill who asked him what was wrong with his knee and he told him that he had ‘buggered it’. He said he was told that he needed to complete an Incident Form. Mr Membrey was referred to the Incident Form dated 8 November contained in the Court Book which refers to an incident occurring at 7.30 a.m. on 8 November 2018. He told the court that the incident report ‘refers to both’ and what happened on the 8th was ‘similar’ to what happened on the 7th but that ‘on the 8th he was in more pain’ so he just ‘palmed off the 7th because it was just a twinge in the knee and that is why he did not report it on the 7th’.

  1. Mr Membrey told the court that sometime after he had completed the Incident Report Form, he was called into the office at work and asked if he ‘really wanted’ to lodge a claim as he was accused of not sustaining the injury at work. He also said that he was not able to see Dr Ramsurrun, his General Practitioner, about the injury until 20 November 2018, so he continued working. He said that she arranged for him to undergo an MRI Scan and advised him to cease work as he should not be climbing in and out of trucks, so he ceased work that day. Mr Membrey told the court that he was referred to Mr Richardson, Orthopaedic Specialist, who recommended that he undergo a left knee arthroscopy (which subsequently occurred on 1 February 2019). Mr Membrey gave evidence that he paid the costs associated with the arthroscopy and returned to work with a different employer in March 2019.

  1. During examination in chief, Mr Membrey was questioned about the 2nd Workcover Claim Form (typed) and signed by him on 11 April 2020 which states that the injury occurred on 7 November 2018 on Settlement Rd Cowes. He told the court that the location of the 7 November injury was Cashin St Inverloch not Settlement Rd Cowes. He said this Claim Form was sent to him by his lawyers to sign and that he did not ‘appreciate what it was saying and did not study it’. Mr Membrey said his knee is as ‘good as ever’ and he does not require any further treatment.

  1. During cross-examination, Mr Membrey was extensively questioned about the confusion in the dates and locations of his claimed injury. He said that he did not think that it would matter because although he did injure his knee on 7 November it was on 8 November that it ‘really hurt’. He was also questioned as to the reason he had not listed the location of the injury on the Incident Report Form and said that he filled out the Incident Form as best as he could and was told by the office staff that what he had completed was sufficient. He told the court that he is a truck driver and not a ‘paperwork person’. He confirmed that his initial Claim Form declared an injury occurred on 8 November on Settlement Rd Cowes at 7.30 a.m. when he climbed out of the truck and took a step up the bank in order to stand up a bin. He was shown footage depicting him flipping a lid of a bin and putting a note on it but no footage of a bin being put upright by him. He responded by telling the court that the injury occurred ‘about’ 7.30 a.m. and the alleged incident occurred prior to what was depicted in the footage. When questioned about the symptoms he was experiencing in the morning of 8 November, he told the court that he was in pain and was limping because the ‘main’ injury occurred on 7 November and the injury on 8 November was an aggravation. Mr Membrey was questioned as to why he did not nominate the alleged incident on 7 November on the Incident Report Form if he was of the view that it was the ‘main’ injury. He told the court that: ‘he was not thinking right, he did not think it would matter, he thought that as long as he did the Incident Report it was okay, that he did tell the truth, that he is a truck driver and does not do paperwork’.

  1. Mr Membrey was questioned as to the content of his 2nd Workcover Claim Form dated 11 April 2020. He told the court that it was sent to him by his lawyers for signing and he did not read it. He gave evidence that his lawyers had put the incorrect address as to where the injury occurred on 7 November 2018 and it should have stated Cashin St Inverloch and not Settlement Rd Cowes. He also confirmed that contrary to what the Claim Form stated, he did not report the incident on 7 November to Mr Hill because he thought it was ‘just a twinge’. When reminded that he had told the court that the incident on 7 November was the ‘main injury’, he said that ‘as it turned out it was the main injury’ and the injury on 8 November was an ‘aggravation’.

  1. Mr Membrey was shown footage from the defendant’s yard taken at 1.37 p.m. on 7 November 2018. The footage depicts him: greasing the arm of the truck in a work bay; squatting down near the rear of the truck and then walking off without apparent restriction. He was then shown footage from the same day taken at 2.09 p.m. which depicts him walking across a lawn area and carpark at the defendant’s premises to his motor vehicle. He told the court that during the day his knee would ‘catch’ on and off and it was not that painful although he was experiencing symptoms. Mr Membrey said that he could not remember telling Dr Ramsurrun on 20 November that he had ‘came off the truck last week and hurt his left knee at work’. He could also not recall ringing Mr Hill on 28 November after being questioned as to the legitimacy of his claim and telling him that the incident on 7 November occurred at 8.30 a.m. outside Envisage Blinds.

  1. Mr Membrey was shown footage taken on 7 November at 9.02 a.m. out the front of Envisage Blinds on Cashin St Inverloch that indicated he did not get out of his truck. He agreed that he did not get out of his truck at this location. He recalled ringing Mr Hill on 29 November informing him that he believed the injury occurred on 7 November in the industrial area on Bear St Inverloch. He was then shown footage taken on 7 November at 8.55 a.m. on Bear St which also indicated he did not get out of his truck. He also agreed that he did not get out of the truck at this location. He agreed that he also told Mr Hill that the injury may have occurred at the intersection of Cashin & Dixon St Inverloch and when shown footage at 9.03 a.m. at that location also agreed that he did not get out of his truck. He was then reminded that he rang Mr Hill on 30 November to inform him that the injury occurred outside the Winery on Cashin St on 7 November. Once again, he agreed that the footage taken at 9.01 a.m. did not indicate that he got out of his truck.

  1. Mr Membrey agreed that after previously viewing the footage on the dates in question he did ring Mr Hill again on 13 December to inform him that the injury may have occurred in the vicinity of ‘The News’ on 7 November because he recalled having a ‘tearing sensation’ again. Mr Membrey was shown footage taken on 7 November at 9.59 a.m. which depicts: the truck arm lifting a bin; Mr Membrey walking along the side of his truck, flipping a rubbish bin lid and then walking the bin up a driveway. When it was put to him that it does not depict any limp, he said, ‘it just grabs’.

  1. Mr Membrey agreed that on 8 March 2019 his doctor advised him that he was fit to return to his pre-injury duties and that he did in fact return to work in alternative employment on 14 March 2019.

  1. During re-examination, Mr Membrey told the court that he was not directed to nominate the location where the injury occurred on 8 November in the Incident Report Form and the initial Workcover Claim form dated 27 November 2018 was partly completed by him and partly completed by Jenny Main, the Office Manager. Mr Membrey told the court he estimated he would be required to stop and pick up approximately 200 bins on Settlement Rd Cowes (8 November) and 40-50 bins on Cashin St Inverloch (7 November).

  1. Mr Hill, Managing Director of the defendant gave evidence. He told the court that he saw Mr Membrey on 8 November 2018 in the Works Department and noticed that he had a pronounced limp. When he asked him how it occurred, Mr Membrey told him that he had jumped off the truck and hurt his knee. Mr Hill said that he told Mr Membrey to complete an Incident Report Form which he did that afternoon. Mr Hill gave evidence that the next time he saw Mr Membrey was on 27 November when he attended the office to complete a Workcover Claim form and he told Mr Hill that his knee was quite sore. Mr Hill said that when he heard Mr Membrey tell an office clerk that he hurt his knee when he ‘stepped off a bank to upright a bin’, he became suspicious, as that is not what Mr Membrey had told him on 8 November. As a consequence, Mr Hill said he looked at footage from the yard and asked other staff members to view the truck footage. Mr Hill confirmed he was the author of the letter to Allianz dated 29 November. He recalled that when he questioned Mr Membrey on 28 November as to whether he wished to lodge a Workcover Claim and was told by him that he intended to, he informed Mr Membrey that the employer would dispute the claim. Mr Hall said that Mr Membrey rang him later that afternoon and told him that he had actually hurt his knee on 7 November and not on 8 November. Mr Hall confirmed that Mr Membrey rang him on further occasions, being; on 29 November to inform him that the injury occurred on Bear St Inverloch; on 30 November, with an abusive manner, to tell him that he was 100% certain it occurred at 33 Lions St Inverloch; and then on 12 December, where he was aggressive and abusive. Mr Hall gave evidence that Mr Membrey rang again to apologise for his behaviour and then told him that he was sure that the injury occurred on 7 November and that the truck cameras are ‘no good and do not capture everything’.

  1. During cross-examination, Mr Hall agreed that he recommended that Allianz reject the claim because: Mr Membrey was seen limping on 8 November but not on 7 November meaning he must have injured his knee elsewhere; he was observed squatting and walking without restriction after finishing his shift on 7 November; and, he was not depicted on the truck footage exiting his vehicle in the industrial area of Cashin St Inverloch as alleged, but only at a residential house on 7 November. Mr Hall agreed that Cashin St Inverloch covers a large area but was unsure how many bins are collected along that route. He agreed that there would be more than 4-5 as depicted on the footage but said the defendant had looked at all the locations Mr Membrey had indicated where the injury had occurred. When asked to view footage on Cashin St at 9.16 a.m. on 7 November, Mr Hall conceded the footage does depict Mr Membrey exiting his truck and walking over to a grassed area to pick up a bag on the ground. He disagreed that the footage depicted Mr Membrey walking with a limp. Mr Hall told the court that in his opinion Mr Membrey developed a limp overnight on 7 November and not at work that day, because the footage at the workplace at the end of his shift on 7 November depicts him squatting down and walking unimpeded. Mr Hall did however concede that Mr Membrey’s duties do require him; to exit his truck multiple times each day; step down from the truck cabin; walk; and, manually pick up bins and rubbish from embankments and nature strips.

Medical Evidence

  1. Mr Richardson, Orthopaedic surgeon, provided reports dated 5 December 2018, 18 January 2019 and 1 February 2019. He obtained a history from Mr Membrey that he sustained a jarring injury to his left knee in the course of his employment on 7 November 2018 when he stepped out of his truck. He told Mr Richardson that although he was sore that day, he didn’t think too much of it, however, on 8 November he was simply stepping up a bank after getting out of his truck and developed severe medial sided knee pain. Mr Membrey also told him that he had been having ongoing pain, clicking and locking ever since. Mr Richardson opined that Mr Membrey had focal medial joint line tenderness and although the MRI performed on 27 November indicated no meniscal tears, he felt that there was an under-surface tear in the postero aspect of the medial meniscus which was consistent with the area of focal tenderness. He confirmed that Mr Membrey had a left knee arthroscopy on 1 February 2019 and underwent a partial meniscectomy.

  1. Dr Ekanayake, General Practitioner, reported on 8 March 2019 that the surgery performed by Mr Richardson resulted in a ‘dramatic recovery’ of Mr Membrey’s symptoms and that he had recovered well and was happy to return to his pre-injury duties.

  1. Mr I McLean, Orthopaedic Surgeon, assessed Mr Membrey on behalf of his lawyers on 3 October 2019. Mr Membrey provided him with a history of initially injuring his left knee at work on 7 November 2018 when he twisted his left knee after he got out of his truck and felt a ‘twinge’ to his left knee towards the anteromedial aspect. Mr Membrey also told him that later that day a similar movement with weight on the left knee caused a ‘similar sensation’. Mr Membrey told Mr McLean that on 8 November, when he got out of bed, his left knee was stiff and ‘stuck’ in a slightly bent position causing him to limp. He said that during the day he stepped out of the truck onto a slopping nature strip and felt a ‘bang and catching’ to the left knee causing a deep pain. Mr McLean opined that the reported incidents at work are consistent with the pathologies and the surgery performed and that Mr Membrey was incapacitated for his pre-injury duties from 20 November 2018 until 14 March 2019

  1. Dr Taubman, Consultant Physician, assessed Mr Membrey for Allianz on 11 December 2018. He obtained a history from Mr Membrey that on 7 November whilst driving on Cashin St Inverloch between 8 a.m. and 8.30 a.m. he: ‘got out of the truck to stand the bin up and I felt like a tweak. It did not really hurt and so I babied it for the rest of the day, did not take much notice of it. I was favouring it a bit, it was not sore, and then on the Thursday morning when I got up, I had a little bit of a limp then. It was not bending easily, as if bending it would increase the pain, so I had a bit of a limp on the Thursday morning because of that. On the Wednesday afternoon, I thought it was a bit of a tweak and thought it would go away on its own. It was not hurting on the Wednesday afternoon, I thought something was not quite right with it’. Dr Taubman obtained a history that on 8 November when he got out of his truck; ‘I got out onto the ground and I took one step, it developed immediately like a stabbing pain in the side of my knee’.

  1. Dr Taubman noted that Mr Membrey had cartilage changes involving the left medial femoral condyle with underlying marrow oedema. He also noted that the radiology stated that there are mild grade 3 cartilage changes which are consistent with significant thinning of the cartilage layer. He reported that the symptoms complained of are consistent with possible trauma to the left knee. However, after viewing the CCTV footage provided to him; the pathology which was indicative of an underlying degenerative left knee medial compartment cartilage thinning associated with underlying bone oedema; and the MRI evidence of there being no evidence of lateral meniscus or medial meniscus tear, he concluded that employment did not contribute to his knee pathology.

  1. Mr Dickinson, Orthopaedic Surgeon, assessed Mr Membrey on behalf of the defendant’s lawyers on 25 October 2019. He was provided with medical reports, radiological reports and a Circumstance Investigation Report dated 19 December 2018 (not tendered). Mr Dickinson obtained a history from Mr Membrey that on 7 November 2018 he had to step out of his truck to stand up a bin and as he did so and put his left foot on the ground, he felt a tweak in his knee but did not think anything about it. He said that he had no symptoms and no pain in his knee. Mr Membrey told Mr Dickinson that on 8 November his knee was ‘locked’, in that he could not bend it and that during his shift that day he was required to stand up another bin and his knee went ‘bang’ and let go.

  1. On reviewing the MRI Scan and report, Mr Dickinson stated that it revealed some cartilage irregularity in the trochlear of the patellofemoral joint and some cartilage thinning at the posterior aspect of the medial femoral condyle with no abnormality of either medial or lateral meniscus and the ligaments being normal. Mr Dickinson opined that Mr Membrey’s left knee injury was not work related on the basis that although there may have been an incident at work, there was no evidence of any significant radiological or clinical abnormality related to work.

Conclusion

  1. I found Mr Membrey to be a truthful witness notwithstanding his ‘cavalier’ attitude to ensuring that he lodge accurate information in relation to his claim for compensation.

  1. After considering his evidence and reviewing the CCTV footage, I find that he did in fact initially sustain an injury to his left knee whilst performing his duties on 7 November 2018 on Cashin St Inverloch which was then aggravated when performing his duties on 8 November on Settlement Rd Cowes.

  1. I also find that Mr Membrey was confused about the precise location of his injury when later challenged about it by Mr Hill as he did not consider the 7 November injury to be a ‘significant injury’ at the time and the fact that during the course of his daily round he was required to collect numerous bins, some of which required him to exit his truck, and others that did not. Furthermore, the defendant was not misled as to the location of the alleged injury on 7 November 2018 notwithstanding the incorrect information contained in the Claim Form dated 11 April 2020 as it was aware that the alleged injury on that date occurred on Cashin St Inverloch and not Settlement Rd Cowes as stated in the Workcover Claim Form.

  1. The CCTV footage on 7 November 2018 at 9.16 a.m. (Cashin St, Inverloch) depicts Mr Membrey with a pronounced limp. I accept his evidence that the injury on 7 November occurred when he exited his truck and stepped onto the ground. The footage indicates that he was impeded at that time as does the footage taken at 10.30 a.m. that day. The fact that the CCTV footage taken at the defendant’s premises at 1.37 p.m. on 7 November depicting Mr Membrey being able to bend and squat whilst greasing the arm of the truck on the completion of his shift, without apparent restriction or discomfort, does not alter the fact that earlier in the day he was exhibiting obvious signs of discomfort and restrictions due to his left knee condition. I accept his evidence that his knee injury deteriorated overnight which is confirmed by the CCTV footage taken at 5.30 a.m. on 8 November when he arrives at work which depicts him experiencing further discomfort and restricted movements as he approaches the work shed. The footage taken at 7.30 a.m. that morning also indicates that he has a pronounced limp as he places a sticker on a bin during his rounds on Settlement Rd Cowes.

  1. Accordingly, I find that Mr Membrey sustained an injury to his left knee on 7 November 2018, which he subsequently aggravated whilst performing his duties on 8 November 2018. The injury arose out of and in the course of his employment with the defendant. The error regarding the location of the injury in the Claim form dated 11 April 2020 does not preclude him from relying on the injury occurring on that date as the defendant is and was at all times aware of the error and has suffered no prejudice as a consequence of it. On this basis, the jurisdictional issue that arose in Robinson v SPI Electricity[1] does not apply.

    [1] 3 October 2012

  1. I accept and prefer the medical opinions as stated by Mr Richardson and Mr McLean. I find that the nature of the duties performed by Mr Membrey resulted in an under-surface tear of his left medial meniscus requiring surgery and causing him to be incapacitated for his pre-injury employment until 8 March 2019, the date on which both he and his doctor considered that he was fit to return to his pre-injury employment.

  1. On this basis, Mr Membrey is entitled to weekly payments of compensation for his period of incapacity in accordance with the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 together with payment/re-imbursement of reasonable medical and the like expenses.


Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0