Mitchell v South West Area Health Service - [2010] NSWWCCPD 87

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Mitchell v South West Area Health Service [2010] NSWWCCPD 87
APPELLANT:		Margaret Winifred Jane Mitchell
RESPONDENT:		South West Area Health Service
INSURER:		Employers Mutual Limited
FILE NUMBER:		A1-9543/09
ARBITRATOR:	Mr G Adelstein
DATE OF ARBITRATOR’S DECISION: DATE OF APPEAL HEARING:		18 March 2010 5 August 2010
DATE OF APPEAL DECISION:		13 August 2010
SUBJECT MATTER OF DECISION:		Nature of issues in dispute; whether insurer disputed injury; section 74 Workplace Injury Management and Workers Compensation Act 1998; nature of pathology from injury
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr B McManamey, instructed by Maurice Blackburn Lawyers
Respondent:		Mr S Flett, instructed by Hicksons Lawyers
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 18 March 2010 is revoked and the following orders made in its place: “1. Award for the respondent employer in respect of the claim for weekly compensation for the periods from 12 May 2008 to 7 July 2008 and 29 August 2008 and 20 October 2008. 2. The appellant worker’s claim for whole person impairment as a result of the injury to her left lower limb (the fractured head of the left fibula) on 13 October 2005 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment. The referral is to include all documents included in the Commission’s evidence file. 3. The respondent employer is to pay the applicant worker’s costs, as agreed or assessed. Those costs are to include a 15 per cent uplift for complexity.” The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,200 plus GST.

BACKGROUND

The appellant worker, Margaret Mitchell, qualified as a nurse in 1963. She commenced work as a registered nurse with the respondent employer at Westmead Hospital in 1986.
On 13 October 2005, Ms Mitchell was returning to work from morning tea when she slipped and fell on a fire escape stairway. Her evidence is that, as she was holding onto the handrail, her foot went from under her and she twisted and fell into a wall. She said that she suffered a wrenching injury to her left shoulder, a laceration to her elbow and felt pain in her left leg and knee.
On 18 October 2005, she underwent a pre-arranged bone scan for an unrelated condition in her left foot. The scan revealed a recent fracture to the top of the left fibula. Apart from physiotherapy treatment for her left shoulder, Ms Mitchell had no other treatment and she continued with her normal duties.
She underwent investigations for her left shoulder in June 2007, but had no active treatment. At some stage, she developed pain in the back of her left leg. She saw a Dr Newman on 9 July 2007 who arranged for an MRI scan of the left Achilles tendon.
Ms Mitchell gave evidence that her “left leg symptoms were not improving and were probably getting worse”.
In March 2008, Ms Mitchell decided that the worsening of her knee needed further medical consultation and she saw her general practitioner, Dr Singer, who referred her to Dr Nagamori. Dr Nagamori arranged for an MRI scan of the left knee, which revealed a meniscus tear. He performed an arthroscopy on 12 May 2008. In July 2008, Ms Mitchell found that her symptoms were worsening and that her left knee gave way. She ultimately underwent a knee replacement operation on 26 August 2008. As a result of these operations, Ms Mitchell was unfit for work from 12 May 2008 to 7 July 2008 and from 26 August 2008 until 20 October 2008.
By letter dated 12 October 2009, Ms Mitchell’s solicitors claimed lump sum compensation in the sum of $22,000.00 in respect of a 15 per cent whole person impairment as a result of the injury to her left knee on 13 October 2005. The respondent’s insurer, Employers Mutual Limited (‘Employers Mutual’), disputed liability in a letter dated 12 November 2009 on the ground that Ms Mitchell had not “suffered a permanent impairment or disability as a result of the [13 October 2005] injury(s) and therefore [had] no entitlement to benefits under Section 66 or 67 of the Act, 1987”.

In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 20 November 2009 and amended on 19 January 2010, Ms Mitchell claimed weekly compensation from 12 May 2008 to 7 July 2008 and from 26 August 2008 to 20 October 2008, together with lump sum compensation as a result of whole person impairment due to injury to her “left lower limb” on 13 October 2005.
In a Reply filed on 11 December 2009, the respondent employer disputed liability on the grounds set out in the letter of 12 November 2009. In addition, it sought leave to include the following issues:
“1.1That the applicant no longer suffers the affects [sic] of an injury within the meaning of section 4 of the 1987 Act.
1.2The quantum of the applicants section 66 and 67 entitlements.”

The Commission listed the matter for conciliation and arbitration on 10 March 2010, when the matter proceeded with brief oral evidence from Ms Mitchell and lengthy submissions from both sides. In a reserved decision delivered on 18 March 2010, the Arbitrator made an award in favour of the respondent. The Commission issued a Certificate of Determination in the following terms:
“The Commission determines:

1. I enter an award in favour of the Respondent.

2. I enter an award in favour of the Respondent in respect of the claim for
weekly benefits for the period 12 May 2008 to 7 July 2008 and 29 August 2008 to 20 October 2008.

3. Each party is to pay her and its own costs of the proceedings.”

In an appeal filed on 14 April 2010, Ms Mitchell seeks leave to challenge the Arbitrator’s determination.

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.

THE EVIDENCE

Ms Mitchell

Ms Mitchell’s evidence is set out in her statement of 4 December 2008 where she said, at paragraph 6:
“On 13 October 2005 I suffered an injury whilst returning to work from morning tea. Due to building works that were occurring at the time, I was walking down the fire escape stairs on my way back to my ward, from morning tea. I was holding onto the rail, however my foot went from under me and in an attempt to stop the fall I twisted and fell into the wall. I was winded and I felt jarred over my whole body. I suffered a wrenching injury to my left shoulder which was very painful. I would regard my whole left side as being in pain. I had a lacerated elbow and I had particular pain throughout my leg and left knee.”

She lodged an incident report form (not in evidence) and informed the nurse unit manager of the incident. She was sent home early. The next day she was bruised “everywhere” and took painkillers to help her through the day.
On 18 October 2005, she underwent a bone scan of her left lower limb that had been arranged some weeks prior to her accident to assess a non-work related left foot condition. She said that the date of the scan was the first time that she “informed any medical practitioner” of her fall. Until that time, she was hopeful that her symptoms would resolve. After the bone scan, the doctor asked her if she had “suffered any recent falls”. She was told that she had “suffered a recent fracture at the top of the left fibula (behind the knee)” and that the injury “should heal”. She said that, a few days later, she told Dr Singer about the injury.
Apart from physiotherapy treatment for her left shoulder, Ms Mitchell had no other treatment and she continued with her normal duties. She saw Dr Bokor in June 2007 for her left shoulder. Though he suggested a steroid injection for the shoulder, Ms Mitchell did not have that treatment.
On a date not identified in her statement, Ms Mitchell developed pain in the back of her left leg after walking to Westmead Private Hospital to visit a patient. She contacted a physiotherapist and attended for a few sessions, but when “the knee was still painful”, she saw Dr Newman on 9 July 2007. He arranged for an MRI scan of the left Achilles tendon and recommended a boot (for her left foot), which she wore for six weeks.
Ms Mitchell found that her left leg symptoms were not improving and were “probably getting worse”, particularly when she attended work. She noticed “these symptoms” whilst walking to meet her husband during work hours. She did not regard her symptoms as a “new injury” as her “symptoms had not previously disappeared”. Her symptoms worsened as a result of walking.
At paragraph 14 of her statement, Ms Mitchell added:
“On 31 March 2008, I decided that the worsening of my knee needed further medical consultation and accordingly I made arrangements to see Dr Singer who referred me to Dr Nagamori. Whilst I was at work and after walking to a desk and standing at the desk, I made a decision that the niggling pain in my knee was not getting any better. He arranged for an MRI scan and informed me that I suffered from a meniscus tear. He recommended conservative treatment. The MRI was performed on 15 April 2008.”

She underwent an arthroscopy on her left knee on 12 May 2008 followed by a course of physiotherapy. An MRI scan on 5 June 2008 revealed a stress fracture of the knee. After her return to work on 2 July 2008, Ms Mitchell found that her symptoms worsened and that her knee gave way. She underwent a total left knee replacement operation on 26 August 2008.
Ms Mitchell said that, prior to her accident, she had never had problems with her knees and regularly played tennis and golf. She said that she still had no problems with her right knee.
In her oral evidence, Ms Mitchell answered “no” to the question of whether she recalled Dr Powell asking her any questions about her left knee (T11.17). She added that she “explained to him from [her] shoulder down what happened” (T11.18). She said that the doctor responded that he had only been asked to look at her shoulder and had not been told of any other injury. She explained to him that she crashed into the brick wall and the “whole left side” of her body was “flung onto the left wall” (T11.44) when she slipped down the three stairs in the fire escape.

There was then a dispute as to whether Ms Mitchell touched her left knee or left leg as she gave that evidence (T12). She was asked the following question (at T13.16):
“Q. Mrs Mitchell, what body parts did you identify to Dr Powell, apart from your left shoulder, when you indicated – that you indicated from your left shoulder down?
A. I couldn’t honestly answer that, because I don’t remember. But I did tell him that I’d had the fall, so I don’t – and whether I told him like, you know, I told other doctors that I slipped on two – two or three stairs. I was holding on and when I began to fall, I grabbed the rail very tightly, flung myself around like that to stop – to stop the fall.”

Counsel for the respondent employer, Mr Flett, objected to the next answer and the following exchange took place (at T13.39):

“ARBITRATOR: Okay. I uphold the objection. Now, Mrs Mitchell, no one is being critical of you, you’re doing your very best to assist me and I appreciate it. The question asked, and the question which assists me is, you were asked what if any body parts did you identify to Dr Powell at the time of the examination. And I think your answer is that you can’t honestly – can’t answer clearly.
THE WITNESS: I can’t remember. I can’t honestly remember.”

Dr Powell got her to stand at a fireplace and to walk backwards and sideways, and he had a look at her gait and “then got on to the shoulder” (T11.54).

Ms Mitchell said that she had been referred to Dr Shenstone (referred to as Dr Shentone in the transcript), rheumatologist, in 1996 because her fingers were “all turning in” (T14.40). Dr Shenstone diagnosed “primary osteoarthritis” (T14.48). As she was playing golf and tennis at the time, she said he advised her to keep active. She added that she had “a few aches and pains” (T15.11). Dr Shenstone next saw Ms Mitchell in 2003. He provided no treatment, but suggested that she remain active.
In cross-examination, Ms Mitchell recalled telling Dr Shenstone in 1996 that she had had intermittent mechanical left knee pain for one or two years associated with activity. She said it was “just wear and tear” (T16.57).
In response to a question from the Arbitrator as to whether she recalled Dr Powell asking her questions about any other body part (apart from the left shoulder), Ms Mitchell replied “No, I don’t think he did”. She could not recall if he asked about her left foot or ankle, though she acknowledged that he said he had.

Medical evidence

Ms Mitchell saw Dr Shenstone in February 1996 and gave a 10-month history of “worsening arthalgias” [sic] affecting her fingers, wrist, right shoulder and arm, and occasionally neck and left knee. He recorded that she had intermittent mechanical left knee pain for one to two years that appeared to be associated with activity and relieved by rest. At the consultation, she was asymptomatic and the left knee was normal to examination. He concluded that, clinically, Ms Mitchell had “mild primary generalised osteoarthritis and a mild right rotator cuff tendonitis”. Dr Shenstone discussed with Ms Mitchell the benefits of regular exercise.

Dr Newman, orthopaedic foot and ankle surgeon, saw Ms Mitchell in August 2001 with regard to deformities in her left second, third and fourth toes.
Ms Mitchell saw Dr Shenstone again on 21 November 2003 when she gave a three-month history of left trochanteric discomfort and weakness. She had no knee, foot or ankle pain. She had been playing tennis and golf, but had “fallen out of the habit” since “June and her injury”. On examination, the doctor noted Ms Mitchell to have mild osteoarthritic changes in both mid-feet, nodal changes in both hands and “CMC joint squaring”.
Dr Newman saw Ms Mitchell again in February 2005. In his report of 24 February 2005 to Dr Babbage, he stated that the deformities in the second, third and fourth toes had progressed and that she had quite severe fixed hammer deformities. She underwent surgery for that condition on 14 March 2005.
Dr Newman saw Ms Mitchell on several occasions after the surgery. On 14 October 2005 (the day after the fall at work), he reported to Dr Susan Singer, Ms Mitchell’s usual general practitioner, that she was making good progress with regard to her forefoot but had experienced sudden mid-foot pain while walking in Africa. He did not indicate the date of his consultation or the date of the sudden pain. He stated that she had almost certainly sustained a stress fracture in her second metatarsal and arranged for a bone scan.
Ms Mitchell underwent that bone scan on 18 October 2005. The radiologist took a history of left foot discomfort and of a “fall approximately one week ago”. Though the scan primarily dealt with the tarsometatarsal joints of the left foot, it also noted “a focal region of intense uptake” in the head of the left fibula. The scan features were “consistent with a recent fracture of the head of the left fibula”.

Dr Newman reported in a handwritten note on 28 October 2005 that:
“Margaret Mitchell fell on stairs at work on 13/10/05, bruising her left leg and elbow and fracturing her left fibula head, as well as the right [sic, left] arm. There was a laceration over the point of the left olecranon.”

Ms Mitchell saw Dr Singer (or a doctor at Dr Singer’s practice) about left foot, ankle and lower leg swelling on 28 September 2005, but did not see her again until 22 November 2005 when she saw her for an unrelated matter.
She next saw Dr Singer on 18 January 2006. The doctor’s clinical notes referred to several unrelated matters and to Ms Mitchell having developed a stress fracture in the second metatarsal after walking in Africa. The notes also stated:
“Had a fall at work & had a # L fibula, which was found while having her nuclear.”

There was also a reference at this attendance to Ms Mitchell having taken a lot of “Panadol Osteo for her generalised arthropathy”, and to Naprosyn.
Ms Mitchell saw Dr Singer on 16 February, 13 April and 30 May 2006 for unrelated matters.
On 16 June 2006, Ms Mitchell saw Dr Singer, complaining of pain in the right groin, which was diagnosed as a hernia as a result of pushing at work in May. Ms Mitchell again saw Dr Singer on 25 July, 25 August and 28 September 2006 for her hernia, having undergone surgery for that condition on 5 September 2006.
Ms Mitchell saw Dr Singer on 6 November 2006 prior to leaving for Egypt the following day. The doctor prescribed Stilnox, but the notes record no complaint of any symptoms.
Ms Mitchell saw Dr Singer on 19 March 2007 for matters unrelated to the present claim. She also saw Dr Singer (or another doctor in Dr Singer’s practice) on 23 April 2007, complaining that she had awoken on 12 April 2007 with pain in her left Achilles tendon area. Two days later, she felt something “snap” but recalled no injury.
On 25 May 2007, Dr Singer recorded the following in her notes:
“Had a fall at work on 13/10/05 going down stairs. Hit her L elbow on the wall & pulled her L shoulder back as she was holding on to the rail.
Still having problems with her L shoulder.
Can abduct the arm, but post abduction causes pain → XR + U/S
Wants to see Des Bokor – on 28/5/07 – will need referral”.
On 25 May 2007, Dr Singer issued the first WorkCover certificate relating to the October 2005 incident. It recorded a history of the fall, the fracture of the head of the left fibula, split skin on the left elbow and a badly bruised left shoulder. The diagnosis was “Injury to L shoulder joint”.
Ms Mitchell underwent an ultrasound and x-ray of her left shoulder on 25 May 2007, which revealed degenerative changes. On the same day, Dr Singer wrote a referral for Ms Mitchell to see Dr Bokor. The referral noted the fall at work on 13 October 2005 in which Ms Mitchell injured her left shoulder. It made no reference to any other injury in the fall.
Dr Bokor saw Ms Mitchell on 4 June 2007. He took a history that Ms Mitchell’s complaints began in October 2005 when she fell down a stairwell at Westmead Hospital. Apart from generalised bruising to the left shoulder and arms, she “sustained a fracture of the fibula on the LEFT”. Dr Bokor added:
“While she has generally settled down, she has had increasing pain since about December with pain and catching in the LEFT SHOULDER aggravated with elevation and rotation. She has had no treatment for this.”
Dr Bokor examined Ms Mitchell’s left shoulder and concluded that she had long-standing arthritic changes that had been aggravated by the fall at work and by repetitive use of the arm.

At the attendance on 8 June 2007, Dr Singer recorded that Ms Mitchell was to have six weeks physiotherapy, then a two-week break and then an ultrasound guided steroid injection if her (shoulder) was still a problem. Her (shoulder) was painful when she tried to fasten her bra strap or to use the hand brake in her car.
On 29 June 2007, Dr Singer recorded that Ms Mitchell was having problems with her left leg “which was injured falling down the stairs 2 years ago”. She was having physiotherapy. On examination, Dr Singer noted swelling in the left lower leg and ankle, but no calf tenderness. Ms Mitchell had difficulty walking. The doctor prescribed Naprosyn and noted that Ms Mitchell had had a “Doppler” at work in April 2007 to exclude deep vein thrombosis. Dr Singer issued a WorkCover certificate diagnosing “Injury to left ankle & lower leg following fracture of fibula”. The doctor ticked “yes” to the question of whether employment had been a substantial contributing factor.

Ms Mitchell saw Dr Newman on 9 July 2007 in relation to her left Achilles tendon and left calf. In a report of the same date, Dr Newman recorded the following history:
“As you know, Margaret fell heavily on some stairs at work 2 years ago. Fortunately, symptoms related to this episode eventually settled, and she has not continued to experience any pain in relation to the left midfoot. While Margaret most certainly knocked her calf and leg during her fall, there was no evidence of a disruption or other major injury to her triceps surae.”
Dr Newman added that, in April 2007, Ms Mitchell woke up one morning with a feeling of tightness and pain in her left calf, together with swelling. She continued to experience fluctuating shooting pain with persistent swelling. The Achilles tendon continued to feel tight. Dr Newman diagnosed Achilles tendonosis. After reviewing an MRI scan, Dr Newman prescribed the use of a CAM boot for the left ankle, which dramatically improved her symptoms.

On 9 July 2007, Employers Mutual prepared a document headed “Employers Mutual Injury Management Plan”. Under “Injury Details” and “Injury Description”, the following entry appears:
“During the course of her work, Ms Margaret Mitchell has reportedly sustained injuries to her left shoulder, ankle and lower leg, following a fall down fire escape stairs at work.”

The author of the plan recorded the provisional diagnosis as “Injury to left ankle and lower leg following fracture of fibula”. Under “Background Information”, the following entry appears:

“Ms Margaret Mitchell is employed as a Registered Nurse with Sydney West Area Health Service. Ms Mitchell reported that during the course of her work on the 13/10/2005, she fell down fire escape stairs at work, injuring her left ankle and lower leg.

Ms Mitchell attended Dr Singer, her Nominated Treating Doctor on the 25/05/2007. Following the initial consultation, a diagnosis of injury to the left shoulder joint was given by Dr Singer. Ms Mitchell was initially certified fit for pre-injury duties from the 25/05/2007. Dr Singer referred Ms Mitchell for an x-ray, ultrasound and specialist treatment with an Orthopaedic Surgeon.”

The plan then set out details of Ms Mitchell’s attendance on Dr Bokor and the proposed treatment for the left shoulder.

Dr Powell, orthopaedic surgeon, examined Ms Mitchell at the request of Employers Mutual on 26 July 2007, and prepared a detailed report the following day. He took the following history:
“Her left foot slipped out from underneath her causing her to slide down several stairs sustaining injury to the left ankle and lower leg, and abrasion to the left ankle, and a wrenching injury to the left shoulder. She was able to mobilise her back to the wall though with some difficulty. The injury was reported to her Nursing Unit Manager.”
Dr Powell noted the bone scan shortly after the fall that revealed increased blood flow at the head of the left fibula. He recorded that Ms Mitchell indicated that her left leg and left shoulder symptoms settled and that she was able to perform her full pre-injury duties throughout 2005/2006 before becoming symptomatic again in early 2007, with symptoms over her left ankle extending into the region of her Achilles tendon and her left calf. She also developed left shoulder symptoms around January 2007, which were treated conservatively with some mild improvement.
At the time of Dr Powell’s examination, Ms Mitchell remained symptomatic in her left shoulder and left ankle. She attended physiotherapy, took appropriate anti-inflammatory medication and attended Pilates weekly.
Dr Powell concluded that Ms Mitchell aggravated some minor rotator cuff tendinosis in her fall on 13 October 2005, as well as receiving a musculoligamentous injury to her left calf. He felt that the aggravation caused by the incident, and the soft tissue injuries, had settled and that her recent left leg and left shoulder symptoms were not “conclusively related to her employment” with the respondent.
Dr Singer recorded in her notes on 3 August 2007 that Ms Mitchell had left Achilles tendinopathy. The worker was to have a boot fitted to her left foot within one month.
On 14 September 2007, Dr Singer recorded that the worker was in a night splint following one month in a CAM boot. The swelling had decreased but Ms Mitchell was still very tender around the (left) ankle joint. She had not had the proposed injection in her left shoulder, but had continued with her own physiotherapy for her left shoulder and had regained function and was not in pain.
Ms Mitchell next saw Dr Singer on 13 November 2007, when it was noted that she continued to have pain with her left Achilles tendon.
Ms Mitchell saw a different doctor at Dr Singer’s practice on 29 January 2008, complaining that she had been feeling unwell.
Dr Newman reported again on 8 February 2008 that Ms Mitchell complained of continuing pain as a result of her Achilles tendon problem. Her symptoms decreased when she wore her splint. On examination, her gait was relatively unremarkable and the range of motion of her ankle and hind foot joints remained satisfactory.
Ms Mitchell saw Dr Singer again on 14 February 2008, complaining of ongoing swelling in her left ankle. Among other things, Dr Singer recorded:
“Has been told to perform Pilates exercises to improve her knee/ankle/shoulder 2° to osteoarthritis. Physio approved the exercises as did Dr Scott Newman.”
On 21 February 2008, Dr Singer reported to Employers Mutual that Ms Mitchell’s Achilles tendonosis had resulted from her documented injury at the hospital.
Ms Mitchell saw Dr Singer on 1 April 2008, complaining of a “very painful L knee joint” which was not helped by Panadol Osteo. On examination, there was tenderness in the medial compartment of the left knee joint and inferiorly medially. There was no abnormality in the right knee. Dr Singer noted on 2 April 2008 that there was “tricompartmental disease on XR” and she referred the worker to Dr Nagamori.
In her referral to Dr Nagamori on 3 April 2008, Dr Singer noted that Ms Mitchell had “pain in her left knee secondary to osteoarthritis”.
Ms Mitchell received scripts from Dr Singer on 4 April, 9 May and 30 May 2008.
Dr Nagamori reported to Dr Singer on 14 April 2008 in the following terms:
“Thank you for asking me to see Margaret, a 68 year old registered nurse with [a] 2 week history of acute medial knee pain. There is no history of injury but the pain is now constant and severe. She is now having difficulty with sleep. The knee has been noted to be swollen.”
On examination, there was mild swelling of the knee with moderate effusion. There was marked tenderness over the medial tibial plateau and the medial meniscus. The ligaments were stable, but there was moderate crepitus in the patellofemoral joint. Dr Nagamori concluded:
“Margaret has acute constant and severe pain which could be due to an insufficiency fracture. I have therefore arranged for her to undergo an MRI scan to rule out this diagnosis and to assess the extent of osteoarthritis.”
Dr Nagamori reported again on 21 April 2008 that the MRI scan demonstrated a radial tear of the meniscus with subtle changes in the medial tibial plateau along with oedema of the soft tissues around the meniscus.
At surgery on 12 May 2008, Dr Nagamori found the patellofemoral joint to have widespread grade III changes and the medial compartment to have widespread grade III-IV articular cartilage loss with grade I-II tibial loss. The meniscus showed an extensive degenerative medial meniscus tear with a horizontal component. The doctor performed a partial meniscectomy. The lateral compartment was normal other than marginal fraying of the meniscus.
Dr Nagamori reviewed the worker on 2 July 2008 and reported to Dr Singer that the worker was making steady progress and that there was little in the way of swelling. She was walking normally and had a full range of movement.
On 5 June 2008, Dr Singer recorded that Ms Mitchell had had an arthroscopic repair of a medial meniscal tear in her left knee. The knee throbbed constantly and the worker was to undergo an MRI scan to clarify whether she had sustained a stress fracture or insufficiency fracture. Dr Singer’s notes included the following:
“On 31/3/08 was standing at her desk & suffered piercing pain in the knee – came here on 1/4/08 saw Dr Nagamori on 14/4 & had an MRI on 15/4/08 & tried to treat it conservatively till 12/5. Was arthroscoped on 12/5 & was unable to work subsequently.”
Dr Singer also issued a WorkCover certificate on 5 June 2008, in which she recorded a history of the fall on 13 October 2005 and diagnosed “L medial meniscus tear & knee joint pain”. She ticked “yes” to the question of whether employment had been a substantial contributing factor to the injury. She issued a similar certificate on 3 July 2008.

Ms Mitchell underwent a further MRI scan on 6 June 2008, which revealed extensive subchondral bony change at the medial femoral condyle, with extensive oedema and early subsidence of the subchondral bone plate. The radiologist made no mention of the fibula.
When Dr Singer saw Ms Mitchell on 3 July 2008, she noted that the left knee was pain-free and mobile. Ms Mitchell was due to return to work the following week.
Dr Nagamori reported to Employers Mutual on 7 July 2008 that Ms Mitchell described a fall in October 2005. He added that she described “a 2 week history of acute deterioration of knee pain without a history of injury this time”. Dr Nagamori said he was unable to determine if the worker’s condition was “an exacerbation or a pre-existing condition as Mrs Mitchell did not give a history of [a] work related injury when [he] first assessed her”. The condition she had was often “related to a traumatic injury”. He expected her symptoms to improve further for another two to three months.
On 11 July 2008, Dr Singer recorded that Ms Mitchell’s knee was extremely swollen after her second day at work and that she was only capable of one shift a week. On 16 July 2008, Dr Singer recorded that the knee was “regressing”. It clicked and appeared to catch and “seemed to give way at times”.
On 5 August 2008, Dr Singer referred the worker to Dr Sullivan, hip and knee surgeon, for the purpose of assessing her for a left knee replacement, the worker having been waking up at 2.00 am in pain. The referral letter noted the partial meniscectomy and chondroplasty performed by Dr Nagamori and that Ms Mitchell continued to complain of pain and swelling in her knee despite physiotherapy and Naprosyn.
Dr Sullivan examined Ms Mitchell and reported to Dr Singer on 7 August 2008. He recorded the following history:
“Thankyou for asking me to see Mrs Mitchell who has severe left knee pain. She initially had a torn medial meniscus and had an arthroscopy but she has gone on to develop [a] subchondral fracture over the medial femoral condyle. The knee is not settling down and she has been symptomatic for more than six months. Her walking distance is restricted and she is still working, struggling by the end of a shift. She has a lot of rest pain.”
Dr Sullivan noted that the more recent MRI scan showed an osteochondral fracture. He felt it unlikely that the knee was going to “settle down” since the “geometry of the femoral condyle” was altered. He thought it appropriate that she have a total knee replacement.
An x-ray of the left knee on 8 August 2008 revealed a tiny cortical dip in the medial margin of the medial femoral condyle, but no significant joint lesion.
Dr Nagamori reported to Employers Mutual on 11 August 2008. He stated:
“Mrs Mitchell reported a fall where she fell down steps on 13^th October 2005. I understand that she sustained a fracture of her left fibular head along with left leg and elbow bruising. Whilst she did not report any ongoing symptoms as a result of this fall, it is possible that a meniscal tear may have occurred at this time, however, this is somewhat unlikely since her symptoms seem to have only appeared earlier this year.”
On 26 August 2008, Dr Sullivan performed a left total knee replacement. Ms Mitchell made a good recovery from that operation and returned to work on 20 October 2008.

On 9 December 2008, Dr Singer recorded that Ms Mitchell had developed acute pain in her right knee and that the knee had been giving way over the previous three days. Dr Sullivan saw Ms Mitchell again on 11 December 2008 after she had developed sudden pain in her right knee five or six days earlier. X-rays revealed medial compartment osteoarthritis in that knee and Dr Sullivan performed a right total knee replacement on 23 June 2009.
Dr Sullivan prepared a medicolegal report on 11 June 2009 in which he recorded the following history:
“Mrs Mitchell presented [on 7 August 2008] complaining of severe left knee pain. She had originally injured her knee in October of 2005 when she suffered a fall walking down a fire escape. At that time she sustained a fracture of the head of the fibula and also strained her Achilles Tendon. She had ongoing symptoms in the left knee and eventually came under the care of Dr Nagamori who noted that she also had a meniscus tear. As her symptoms did not improve she eventually underwent arthroscopy in May of 2008. Since the arthroscopy she had ongoing pain in the knee and limitation of her general mobility. When I saw her she was complaining of significant pain localised in the medial aspect of the knee with limitation in her mobility. Her walking distance was restricted and she was struggling particularly towards the end of her shift. She was also complaining of rest pain.”

Dr Sullivan then set out his findings on examination and noted that an MRI scan confirmed an osteochondral fracture. X-rays showed narrowing of the medial compartment and alteration of the contour of the medial femoral condyle. He recommended a total knee replacement, which he performed on 26 August 2008. Dr Sullivan then set out the history of the development of symptoms in the right knee and the course of treatment for that knee. He concluded:
“In summary, Mrs Mitchell suffered an injury to her left knee in a fall in October 2005. The fall was enough to cause [a] fracture of the head of the left fibula and is likely to have resulted in a tear of her medial meniscus. Eventually Mrs Mitchell required an arthroscopy of the left knee and following the arthroscopy developed [a] subchondral fracture of the medial femoral condyle.”
Dr Sullivan noted that Ms Mitchell may well have a “constitutional predisposition to the develop[ment] of osteoarthritis of the knee”. However, he considered that the fall “which led to the need for the arthroscopy was a significant contributing factor to the need for and timing of the left total knee replacement”.

Dr Harrison, orthopaedic surgeon, examined and reported on Ms Mitchell for medicolegal purposes on 17 September 2009. He took the following history:
“While descending the stairs [on 13 October 2005], she recalled holding on to the railing, but at one point she slipped, twisted her left foot at the ankle and held on to the railing, sustaining a traction force through her left arm at the shoulder as she fell and slammed hard against the brick wall jarring and abrading the point of her left elbow and twisting and impacting down on her left leg as well. She struck the back of her left calf hard on a step edge in the process of falling as well.”
A bone scan on 18 October 2005 revealed a fracture of the head of the left fibula. Dr Harrison noted the contents of Dr Newman’s report of 28 October 2005.
Dr Harrison noted Dr Newman’s history in July 2007 of pain in the back of the left leg aggravated by walking, which had been present since the original fall in October 2005. About a year later, Ms Mitchell was “still complaining of episodic pain at and around her left knee”, which limited her ability to walk quickly and spend lengthy periods of time on her feet. In the immediately following paragraph, Dr Harrison added:
“About a year later, she noticed activity-related pain in the left leg occurring on the medial aspect of her left knee, significantly limiting her walking distance.”
Dr Harrison recorded that Ms Mitchell saw Dr Singer, who referred her to Dr Nagamori. Investigations showed a medial meniscal tear and associated degenerate changes in the medial compartment of the left knee. She underwent surgery, but her symptoms did not improve. A repeat MRI scan revealed a stress fracture of the bearing surface of the medial tibial plateau and femoral condyle. She ultimately came under the care of Dr Sullivan and underwent a total knee replacement.
Under “hobbies and interests”, Dr Harrison recorded that, before “this accident and injury” to her left knee, Ms Mitchell used to enjoy golf, tennis and going to Pilates. However, since the accident to her left knee, she has not been able to “confidently get back to any of those activities”.
Under “opinion and advice on care”, Dr Harrison stated:
“She jarred, twisting and injuring her left knee and had a sequence of on-going problems affecting that knee with various specialist advices.”
In answer to the question of whether it was more probable than not that Ms Mitchell’s condition or injuries were caused by the accident, Dr Harrison stated:
“Certainly, the injury in a chronological fashion on 13 October 2005, was followed by an escalation in complaints of pain and increasing incapacity affecting this lady through her left knee. She failed to respond to conservative treatment and then operative intervention of a modest form leading to a total knee arthroplasty being performed.
I cannot help but note from a causation perspective that the performance of a total knee arthroplasty on her injured left knee was followed fairly rapidly by sudden pain, incapacity and the need for consideration and performance of a total knee arthroplasty on the right. I am not aware that she specifically injured her right knee in the mechanics of the fall, nor have I seen weight-bearing x-rays of her right knee at the time the left knee was causing her escalating problems between 2005 and 2008 when surgery was undertaken, denying me the ability to determine whether arthritic changes were already in train in that right knee joint however, and potentially there to trouble her.
Therefore, based on the information available, it is not possible to state that this lady’s condition, as it affected her left knee was not caused by the accident and the accident is therefore, a substantial contributing factor to her current condition, irrespective of whether it is possible, rather than probable that pre-existing degenerate changes were going to affect her at that time and at that stage of her life anyway, and did.”

It is noted that Ms Mitchell saw Dr Anderson on behalf of the respondent employer two or three weeks before the arbitration and that there is no evidence from that doctor and no explanation for the lack of evidence (T41.12).

Medical certificates

The first medical certificate from Dr Singer is dated 25 July 2006. It relates to Ms Mitchell’s hernia injury received on or about 17 April 2006. In a certificate issued on 25 August 2006, Dr Singer certified the worker fit to return to her normal duties on 5 September 2006.
Dr Singer’s next WorkCover medical certificate is dated 25 May 2007 and relates to Ms Mitchell’s left shoulder injury received when she fell down fire escape stairs at work on 13 October 2005. Dr Singer’s certificate of 9 June 2007 diagnosed “previous # L fibula; synovitis & supraspinatus tendinosis”. In a certificate of 29 June 2007, Dr Singer diagnosed “injury to left ankle & lower leg following fracture of L fibula”.
Subsequent certificates from Dr Singer dated 3 August 2007, 13 November 2007 and 14 February 2008 referred to the worker’s left ankle, left shoulder and left Achilles tendonosis.
Dr Singer did not refer to any knee symptoms in her certificates until 5 June 2008, when she certified the worker to be unfit from 12 May until 7 July 2008 as a result of “L medial meniscus tear & knee joint pain”, with a history of the fall down the fire escape on 13 October 2005.

THE ARBITRATOR’S REASONS

In his Statement of Reasons for Decision (‘Reasons’), the Arbitrator identified the issue in dispute to be whether Ms Mitchell sustained an injury to her left lower extremity, namely her left knee, such as to have an impairment and so as to require the matter to be referred to an Approved Medical Specialist (AMS).

After reviewing the evidence, he made the following findings:
(a)that the twisting fall led to a fracture of the left fibular head, but there was an absence of contemporaneous complaints “in relation to the knee region” to Dr Singer;
(b)that Dr Newman had advised the worker that her injury should heal and, accordingly, she did not seek “any significant treatment”;
(c)that the event that occurred on 31 March 2008 (while standing at her desk: see [77] above) appeared to have been of recent origin. There was no reference to the left knee in Dr Singer’s records for the period from October 2005 to 30 March 2008;
(d)that Dr Newman recorded on 9 July 2007 that the symptoms from the October 2005 fall eventually settled. Nothing in Dr Newman’s report suggested that there was an injury to Ms Mitchell’s left knee “with lasting effect” nor that the Achilles tendonosis related back to the work-related incident;
(e)that reviewing Dr Nagamori’s comments against Dr Singer’s records, the Arbitrator was persuaded that Dr Nagamori’s “tentative opinion” appeared to be correct;
(f)that Dr Sullivan’s conclusions were “without proper foundation”. Dr Sullivan’s conclusion that the meniscus tear seemed to bear a close reference to the injury in 2005 defied the historical record set out in Dr Singer’s notes, which were compelling;
(g)that the conclusions expressed by Drs Harrison and Sullivan were neither intelligible, convincing or tested and did not go beyond a bare ipse dixit;
(h)that the worker failed to discharge the onus of proof and failed to establish that “an injury to the left lower extremity (knee) is sufficiently or substantially connected to the work related accident that occurred on 13 October 2005”, and
(i)that he could not be satisfied that the aetiological detail that was available through the history cards of the treating doctor, Dr Singer, was such as to permit him to accept that there was a causative link between the initial fracture to the top of the fibular head and the subsequent development of a patellar condition which required a knee replacement.

ISSUES ON APPEAL

The issues in dispute in the appeal are whether the Arbitrator erred in :

(a)identifying the issues in dispute;
(b)widening the scope of the issues in dispute beyond the section 74 notice;

(c)conducting the arbitration in a manner which permitted the claim to be argued on grounds outside the section 74 notice;

(d)identifying an allegation of injury due to wear and tear at work;

(e)finding that the injury was not connected to the accident that occurred on 13 October 2005 when this matter was not an issue between the parties;

(f)restricting any interpretation of a knee injury to an injury to the patella;

(g)failing to take into consideration the possibility that the accident on 13 October 2005 caused an injury to the left knee, in particular, whether or not the accident aggravated pre-existing degenerative changes;

(h)determining that the lack of complaint of injury was indicative of a lack of receipt of injury, despite accepting Ms Mitchell’s explanation for the lack of complaint;

(i)accepting the evidence of Dr Nagamori;

(j)failing to consider the medical opinions of Drs Sullivan, Harrison and Singer;

(k)not taking into account Ms Mitchell’s explanation for the lack of complaints regarding the left leg and knee in considering the medical evidence, and

(l)making a finding in respect of the left shoulder injury.

Essentially, there are three main areas of contention; first, the issues in dispute, second, the nature of the pathology said to have resulted from the injury and, last, the finding in respect of the left shoulder.

SUBMISSIONS, DISCUSSION AND FINDINGS

Issues in dispute

In her Application registered in the Commission on 20 November 2009, Ms Mitchell alleged that she injured her “left lower limb”. Counsel for Ms Mitchell on appeal, Mr McManamey, submitted that Employers Mutual’s letter of 12 November 2009, which the parties have accepted as a section 74 notice, though it was not in the correct form, only disputed liability for permanent impairment and did not dispute that Ms Mitchell had received an injury to her left lower limb.
He submitted that, at the teleconference on 25 January 2010, the respondent employer’s solicitor stated that a further section 74 notice would be issued, but neither Employers Mutual nor its solicitor served a further section 74 notice. He pointed out that counsel for the respondent employer had not sought leave under section 289A of the 1998 Act to dispute any additional matters. As a result, he argued that the only issue in dispute at the arbitration related to the pathology that resulted from the injury. He conceded that, given the terms of the letter of 12 November 2009, it was permissible for the respondent employer to argue about the pathology said to have resulted from the injury.
Mr Flett referred to a Direction issued by the Arbitrator after a teleconference on 25 January 2010. That Direction stated that the issue was “what, if any, injury has the Applicant sustained as a result of her fall on or about 13 October 2005?”. He submitted that the parties were “aligned” as to the issue in dispute and they conducted the arbitration on that basis. He also tendered, as additional evidence on appeal and without objection by Mr McManamey, an undated section 74 notice apparently served by Employers Mutual in earlier proceedings between the parties in respect of a claim for medical expenses. That document identified, among other things, an issue as to “causation in respect of [the] need for medical treatment”. That document adds nothing to the issue before me and I have given it no weight. In any event, it was a document issued in different proceedings. The question is, what is the issue in dispute in the present claim?

The transcript of proceedings before the Arbitrator contains the following entries about this issue. The Arbitrator identified the issue in dispute at T1.32 as follows:
“… whether in relation to the claim for left lower extremity whole person impairment with also a claim for weeklies, there was in fact an injury to the knee, that being the body part that is claimed to have given rise to the lump sum entitlement and also the basis upon [which] an injury to the knee that has led to closed periods for which compensation benefits are claimed.”

Ms Mitchell’s solicitor, Mr Santone, agreed that the Arbitrator had “essentially” correctly identified the issue (T1.41). Later, however, Mr Santone said (at T4.30) that the section 74 notice did not “put injury in issue”, and (at T18.11) that the only issue was “clarifying the injury”. The following exchange occurred at T63.58 to 64.16:

“MR SANTONE: Some very quick points. With the Section 74 notice, I don’t think there’s actually any problem there. The way I read it is that the injury itself has never been disputed. It is the entitlement to Section 66/67 which does require you to make determinations on pathology, and that’s how I have approached this case.

ARBITRATOR:   Rather than entitlement under Section 66 requires me to consider – requires me to determine pathology?
MR SANTONE:   Yes, correct.
ARBITRATOR:   So what you are saying is, what Mr Flett has done today is entirely permissible, correct?
MR SANTONE:   Certainly.”

What Mr Flett did was to argue that the pathology in Ms Mitchell’s knee had not resulted from the fall and, therefore, the respondent employer had no liability for weekly compensation or lump sum compensation.
I suggested to Mr McManamey at the appeal hearing that, though it had not been disputed that Ms Mitchell suffered an injury to her left lower limb in her fall on 13 October 2005, the respondent employer disputed, and was entitled to dispute, the pathology said to have resulted from that fall. In particular, it disputed that Ms Mitchell had injured her meniscus in the fall and that the need for the knee surgery and time off work in 2008 had resulted from the injury. He did not suggest that it was not entitled to argue that issue.
In his decision, the Arbitrator stated (at [7]) the issue in dispute to be:
“Did Mrs Mitchell sustain an injury to her left lower extremity, namely her left knee, such as to have an impairment and so as to require the matter to be referred off to an AMS?”

The Arbitrator’s statement was apt to mislead. The respondent employer had never disputed (and never sought leave to dispute) whether Ms Mitchell had received an injury to her left lower limb in the fall. It did dispute the pathology said to have resulted from that fall and her entitlement to lump sum compensation. Neither Mr Santone at the arbitration nor Mr McManamey on appeal challenged its right to do so. Therefore, in the absence of any application for leave to rely on any additional issues, the matter in dispute is the nature of the pathology said to have arisen from the undisputed injury to the left lower limb.

Though the letter of 12 November 2009 never disputed the claim for weekly compensation, the case before the Arbitrator and on appeal was conducted on the basis that, if the worker failed with her claim that she injured her meniscus, then she failed with her claim for weekly compensation. It was not argued at the hearing of the appeal that the Commission was not entitled to determine the claim for weekly compensation. That claim was clearly linked to the determination of the pathology that resulted from the fall. If it is considered necessary for leave to be granted under section 289A(4) for the respondent employer to dispute the claim for weekly compensation, I grant that leave.

The nature of the pathology

I do not accept the respondent employer’s submission that the fracture of the head of the left fibula was an incidental finding unrelated to the fall. The evidence in the bone scan of 18 October 2005, just five days after the fall, was consistent with a “recent fracture of the head of the left fibula” (emphasis added). After taking a history of the fall, Dr Newman stated on 28 October 2005 that Ms Mitchell fractured her fibula in the fall. The respondent employer has called no evidence to challenge this opinion and I therefore find that the fall caused the fracture.

The contentious issue is what, if any, other pathology resulted from the fall. Ms Mitchell’s case is simple. She says that she injured her knee (meniscus) in the fall and that her two operations, time off and impairment have resulted from that injury.
Mr McManamey submitted that Dr Singer’s notes must be read with her WorkCover medical certificates. He submitted that the notes recorded a history of the fall, the fracture and of knee pain. The certificate of 5 June 2008 also recorded the fall and diagnosed a left meniscal tear to which employment was said to be a substantial contributing factor. Therefore, so it was argued, Dr Singer supported a connection between the injury and the damaged meniscus.
It was also submitted that, based on Ms Mitchell’s history in her statement of 4 December 2008, which was said to be accurate and correct, the evidence from Drs Sullivan and Harrison supported a connection between the injury and the damaged meniscus. The only evidence against this was from Dr Nagamori who conceded that the condition in Ms Mitchell’s knee was often related to trauma and that it was possible that a meniscal tear may have occurred at the time of the fall. He proposed no other cause.
In the absence of any explanation from the respondent employer as to why it called no evidence from Dr Anderson, Mr McManamey submitted that I would conclude that his evidence would not have advanced the respondent employer’s case and that I would accept Ms Mitchell’s evidence.
I do not accept Mr McManamey’s submissions.

Whilst it is true that there was no direct attack on Ms Mitchell’s credit, there were features of her evidence that indicated she had a limited recollection of certain key events. Ms Mitchell’s oral evidence was that she could not remember which body parts she identified to Dr Powell at the time of that examination (T13.39). Her answer that she did not think Dr Powell asked about body parts other than the left shoulder was inaccurate. Dr Powell made an extensive note about the left foot, ankle and lower leg symptoms and it is clear that he did ask Ms Mitchell about those problems. Her evidence that she had never had problems with her knee prior to the fall (see [24] above) was also inaccurate (see Dr Shenstone’s evidence at [32] above). These matters are not decisive, but they increase the relevance and weight I attach to the contemporaneous records and reports from Drs Singer, Newman, Bokor and Nagamori.

The first doctor to see Ms Mitchell after the fall was a specialist, Dr Newman. Whether he saw her the day after the fall (14 October 2005, the date of his report to Dr Singer) is not known. He did see her on 28 October 2005, when he took a history of the fall. He reported that she “contused the left leg” and that the impact “fractured the fibular head”. He also noted the “small laceration over the tip of the left elbow and bruising about both arms”. I consider it of considerable significance that he took no history of any knee symptoms, let alone any knee symptoms consistent with meniscal damage.

Dr Singer’s first recorded history of the fall was on 18 January 2006 (three months after the accident, not “a few days” after as Ms Mitchell said in her statement), when she saw the worker about several matters. She noted that Ms Mitchell had fallen at work and had suffered a fracture of the left fibula, but recorded no complaint of knee symptoms. Despite seeing Ms Mitchell for various complaints on about 19 occasions between January 2006 and February 2008, Dr Singer made no reference at all to the worker’s knee until 14 February 2008. Even then, it was merely in the context of advising Ms Mitchell to perform Pilates to improve her knee, ankle and shoulder due to osteoarthritis. Though this entry suggests that Ms Mitchell may have had knee symptoms in February 2008, the doctor did not record that the knee symptoms related to the fall or had been present since the fall.
Though Dr Singer also referred to the fall in her notes on 25 May 2007, that entry referred to Ms Mitchell having struck her elbow and pulled her left shoulder back. There was no mention of any left knee symptoms. Though it is not determinative, it is significant that, on referral for treatment of the shoulder complaints, Dr Bokor noted the fall, the bruising to the arms and left shoulder, and the fracture to the left fibula, but took no history of any knee injury or symptoms.
Dr Singer’s reference to the left leg on 29 June 2007 “which was injured falling down the stairs 2 years ago” was to a swollen left lower leg and ankle. There was no reference to any knee symptoms. Ms Mitchell was treated for ankle/foot symptoms. This entry, and the treatment that resulted shortly after it, strongly suggests that the pain in the back of the left leg Ms Mitchell referred to at paragraph 12 of her statement was lower leg pain, not knee pain.

Ms Mitchell’s statement that, when “the knee was still painful” (see [20] above) (presumably in June/July 2007), she saw Dr Newman on 9 July 2007 implied that she saw Dr Newman about her knee. Dr Newman’s contemporaneous evidence demonstrates that to be incorrect. His report of 9 July 2007 referred to Ms Mitchell’s complaints of tightness, pain and swelling in her left calf. He treated her for Achilles tendonosis and arranged for an MRI scan of the left Achilles tendon. Dr Newman took no history of any knee symptoms, but recorded that her “symptoms related to” the fall “eventually settled”. The evidence of the symptoms related to the fall having settled is consistent with Dr Bokor’s evidence in his report of 4 June 2007 that Ms Mitchell had “generally settled down” after the fall. This evidence strongly suggests that the symptoms Ms Mitchell experienced in her left leg as a result of the fall had resolved before July 2007.

At paragraph 13 of her statement, Ms Mitchell said her “left leg symptoms” were not improving and were “probably getting worse”. She did not clarify the symptoms to which she was referring. She noticed “the symptoms” while walking to see her husband. Given the numerous attendances on Dr Singer and Dr Newman for ankle and lower leg symptoms in 2007, I conclude that the symptoms Ms Mitchell was referring to in her statement were the symptoms in her ankle, Achilles tendon and lower leg and were not in her left knee.
Ms Mitchell then said at paragraph 14 of her statement that, on 31 March 2008, she decided that the “worsening” of her knee needed “further” medical consultation, and she saw Dr Singer on 1 April 2008. The notes for 1 April 2008 record a complaint of a very painful left knee joint, but, in contrast to the history on 25 May 2007, Dr Singer made no reference to the fall or any suggestion of a connection between the knee symptoms and the fall. Dr Singer referred the worker for x-rays and then to Dr Nagamori. Under “clinical notes”, the radiologist recorded on 2 April 2008 “? OA”.
Dr Singer’s referral to Dr Nagamori on 3 April 2008 made no reference to the fall, but only noted knee pain “secondary to osteoarthritis”. Dr Nagamori’s note of a two-week history of “acute knee pain” with “no history of injury” is significant, as it suggests that Ms Mitchell did not refer to her fall in her first visit to him. Mr McManamey submitted that the presence of acute pain in April 2008 did not rule out the possibility of low-grade pain prior to that date. Whilst that is possible, given the numerous visits to Dr Singer throughout 2006, 2007, and the first part of 2008, and the absence of any complaint of knee symptoms at any of those visits or in the visits to Drs Newman, Bokor or Powell, I do not accept that Ms Mitchell had any knee symptoms in that period. If she had low-grade knee symptoms prior to 2008 (and I do not accept that she did), given the absence of a history connecting those symptoms to the fall in Dr Singer’s notes or referral to Dr Newman, I do not accept that they resulted from the fall.

Dr Singer’s medical certificate of 5 June 2008, even when read with her clinical notes, is of limited persuasive value. In light of the deficiencies in Ms Mitchell’s history that I have referred to above, the absence of a reference to knee symptoms before 2008 in the records from Drs Singer, Newman, Bokor or Powell is significant and is not overcome by an unexplained certificate giving a diagnosis of a meniscal tear and a bald assertion that employment was a substantial contributing factor.

It is clear from Dr Nagamori’s report of 7 July 2008 that, at some stage, he obtained a history of the October 2005 fall and the fracture. However, it is equally clear from his report of 14 April 2008 that Ms Mitchell described a two-week history of acute deterioration of knee pain without a history of injury at the time of that deterioration. Mr McManamey placed great emphasis on Dr Nagamori’s statement that the condition Ms Mitchell had was often “related to traumatic injury”. Even accepting that to be the case, given the lack of complaint of knee symptoms from October 2005 until early 2008, it does not establish that Ms Mitchell suffered meniscal damage in the fall.
Mr McManamey also relied on Dr Nagamori’s evidence in his report of 11 August 2008 where he referred to the fall and the fractured fibular head and added that, whilst Ms Mitchell did not have ongoing symptoms as a result of the fall, it was possible that a meniscal tear may have occurred at that time. That opinion does not assist Ms Mitchell. A mere possibility is not enough to establish causation on the balance of probabilities. More importantly, Dr Nagamori added that, as Ms Mitchell’s symptoms seemed to have only appeared in early 2008, it was “somewhat unlikely” that the fall caused the meniscal damage.

Having carefully reviewed the relevant history and the extensive contemporaneous documentary evidence, I am satisfied that, though Ms Mitchell may have had some symptoms in her left leg immediately after the fall, her knee symptoms did not commence until early 2008. In these circumstances, I accept Dr Nagamori’s evidence that it was unlikely that the fall caused the meniscal damage. I am satisfied that Dr Nagamori’s history of the fall, the fracture and the development of knee symptoms in 2008, provided a “fair climate” for the acceptance of his opinion (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505). I am also satisfied that, as a specialist, Dr Nagamori was entitled to express an opinion on causation and that his evidence did not breach the principles discussed in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.

I do not accept Mr McManamey’s submission that, because Drs Sullivan and Harrison had Ms Mitchell’s statement, they had accurate histories upon which to base their opinions. As the above analysis of the full history has demonstrated, Ms Mitchell’s recollection of the onset and continuation of her knee symptoms was inaccurate. Dr Harrison had a history that about a year later (whether that meant a year after the fall or a year after the 2007 problems is unclear) Ms Mitchell was “still complaining of episodic pain at and around her left knee” that limited her ability to walk quickly and spend lengthy periods on her feet. Whether Dr Harrison was referring to a year after the fall or a year after the 2007 symptoms, his history was not consistent with Dr Singer’s notes, Dr Nagamori’s history of a two-week acute deterioration of knee pain, or with the histories recorded by Drs Bokor and Newman that the symptoms from the fall settled.

Dr Harrison’s statement that Ms Mitchell had a “sequence of on-going problems affecting [the left] knee with various specialist advices” was incorrect. The treatment for the knee did not start until 2008. The gap in seeking treatment is not adequately explained by saying that Ms Mitchell is a stoic person. She was ready and willing to seek advice in relation to her feet, her groin, and her shoulder. Dr Harrison referred to Ms Mitchell having a succession of problems with her knee. Whilst that is true, those problems did not commence until 2008. He did not deal with the period between October 2005 and 2008 because he did not have a correct history of the absence of complaint of knee symptoms in that period. Contrary to Dr Harrison’s assumption, no doubt based on Ms Mitchell’s statement, Ms Mitchell’s fall was not followed by complaints of knee pain.
Dr Harrison based his conclusion on an incorrect assumption that Ms Mitchell’s fall was followed “in a chronological fashion” by an escalation of complaints of pain and increasing incapacity affecting her knee. That history suggests an acceptance of Ms Mitchell’s history of knee symptoms continuing after the fall and then increasing. The contemporary documentary evidence has established that that was not the correct history. The pain in 2007 was not in the knee but in the lower leg and ankle.
Further, I find Dr Harrison’s evidence unpersuasive because of his conclusion that, because it was not possible to state that Ms Mitchell’s left knee “condition” was not caused by the accident, the accident was therefore a substantial contributing factor to her current “condition”. This statement reverses the onus of proof, which rests on Ms Mitchell. She has failed to discharge that onus. I prefer and accept Dr Nagamori’s evidence that it is unlikely that Ms Mitchell damaged her meniscus in the fall. There is no persuasive evidence that any of the other damage revealed on the MRI scans, which led to the surgery and the time off work, was caused by or resulted from the fall.
Dr Sullivan’s evidence is similarly flawed. He took a history of the fall and that Ms Mitchell had “ongoing symptoms in the left knee and eventually came under the care of Dr Nagamori who noted that she had also had a meniscus tear” (emphasis added). I do not accept that Ms Mitchell had “ongoing symptoms in her left knee” after the fall. The overwhelming evidence is that her leg symptoms from the fall settled and that she had no knee symptoms for a period of over two years until the development of symptoms in 2008. Dr Singer referred Ms Mitchell for specialist treatment of those symptoms and noted in the referral letter that they were “secondary to osteoarthritis”.
It was argued in the worker’s written submissions that the Arbitrator erred in failing to consider whether the degenerative changes in Ms Mitchell’s left knee were accelerated as a result of the fall, or if the fall contributed to the subsequent surgery. As it was not raised at the oral hearing, it is unclear if this argument is still pressed. Assuming that it is, I do not accept that it has any merit. There is no persuasive evidence that the fall accelerated the degenerative changes in the left knee. Ms Mitchell’s case is that, as a result of her fall, she suffered a “sequence of on-going problems affecting” her left knee (Dr Harrison) and that the fall was “likely to have resulted in a tear of her medical meniscus” (Dr Sullivan), eventually requiring surgery, and following which she developed a subchondral fracture of the medial femoral condyle. Both scenarios depended on an acceptance of Ms Mitchell’s evidence that she had a continuity of symptoms from the time of the fall until 2008. For the reasons outlined above, I do not accept Ms Mitchell’s evidence as to the development and continuation of her symptoms and she has therefore failed to establish either scenario. It follows that the Arbitrator did not err in failing to consider whether the fall contributed to the acceleration of degenerative changes in the left knee. I am not satisfied that the fall accelerated the degenerative changes in the left knee or that it contributed to the need for surgery and the time off work claimed.

It was also submitted that the Arbitrator erred in not taking into account Ms Mitchell’s accepted explanation for making no complaints about her left knee. That explanation was that she had been told that her injury “should heal” and, accordingly, she did not have any “significant treatment”. I do not accept this submission. The histories recorded by Dr Newman and Dr Bokor—that the symptoms from the fall settled—suggest that the injury to the left leg did heal. The statement that Ms Mitchell did not have any “significant treatment” was, so far as it related to the left knee, inaccurate. Ms Mitchell had no treatment for her left knee until 2008.
Even drawing an inference that Dr Anderson’s evidence would not have assisted the respondent employer, Ms Mitchell has not discharged the onus of proof and established, on the balance of probabilities, that her meniscal tear (or the other damage in her knee revealed in the MRI scans and operations) was caused by or resulted from the fall.

It follows that, whilst I accept that Ms Mitchell suffered a fractured fibula in the fall, I do not accept that she injured her left meniscus at that time. As the need for surgery and time off work in 2008 resulted from the torn meniscus, it follows that Ms Mitchell has not made out her claim for weekly compensation.
Mr Flett submitted that the claim for lump sum compensation must also fail because Ms Mitchell has recovered from the effects of the fall (Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mi Ran t/as Pure and Delicious Healthy and anor (2009) 7 DDCR 215; [2009] NSWWCCPD 47; Total Steel of Australia Pty Ltd v Waretini [2007] NSWWCCPD 33; WorkCover New South Wales v Evans (2009) 7 DDCR 231; [2009] NSWWCCPD 95). This submission has considerable merit. However, given the unusual circumstances of this case and the unsatisfactory state of the pleadings and the section 74 notice, I do not accept that it is open to me to make the finding sought by the respondent employer. It was never alleged that Ms Mitchell’s incapacity resulted from the fractured fibula. The two periods of incapacity were alleged to have resulted from the surgery to the left knee to repair the meniscal damage and the damage found after the first operation. As I am not satisfied that that damage resulted from the fall, the claim for weekly compensation must fail. However, whether Ms Mitchell has any whole person impairment as a result of the injury to her left lower limb (the fractured head of the left fibula) must be determined by an AMS.

The left shoulder

Ms Mitchell has challenged the Arbitrator’s statement at [45] of his Reasons that she had fully recovered from the injury to her left shoulder. That statement formed no part of the formal determination and, as the shoulder formed no part of the claim, the Arbitrator’s statement is of no effect.

CONCLUSION

Having conducted a review on the merits, I have concluded that, in respect of the application before the Commission, the true and correct position is that:
(a)Employers Mutual did not dispute that Ms Mitchell injured her left lower limb in the fall on 13 October 2005 but did dispute the pathology resulting from that injury;
(b)the only pathology resulting from the injury to the left lower limb was a fractured head of the left fibula;
(c)as Ms Mitchell’s incapacity resulted from the operations she underwent on 12 May 2008 and 26 August 2008 and, as neither of those operations resulted from the injury received in the fall (the fractured head of the left fibula), Ms Mitchell has no entitlement to weekly compensation for the two closed periods claimed, and
(d)the claim for whole person impairment as a result of the injury to the left lower limb (the fractured head of the left fibula) must be referred to an AMS for assessment.

DECISION

The Arbitrator’s determination of 18 March 2010 is revoked and the following orders made in its place:

“1.Award for the respondent employer in respect of the claim for weekly compensation for the periods from 12 May 2008 to 7 July 2008 and 29 August 2008 and 20 October 2008.
2.The appellant worker’s claim for whole person impairment as a result of the injury to her left lower limb (the fractured head of the left fibula) on 13 October 2005 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment. The referral is to include all documents included in the Commission’s evidence file.
3.The respondent employer is to pay the applicant worker’s costs, as agreed or assessed. Those costs are to include a 15 per cent uplift for complexity.”

COSTS

The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,200 plus GST.

Bill Roche
Deputy President

13 August 2010

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE