Morris v Woolworths Group Limited
[2021] NSWPIC 441
•31 October 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Morris v Woolworths Group Limited [2021] NSWPIC 441 |
| APPLICANT: | Dianne Morris |
| RESPONDENT: | Woolworths Group Limited |
| MEMBER: | Brett Batchelor |
| DATE OF DECISION: | 31 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly benefits for short, closed period and section 60 of the Workers Compensation Act 1987 (1987 Act) expenses in respect of frank incident involving the left knee and ankle; the respondent does not dispute that the applicant worker was involved in an incident involving the left ankle and knee on the date of injury claimed, but disputes the nature of the left knee injury; detailed examination of the Safety Incident Report created on the date of injury, the applicant’s evidence, reports of treating practitioners, and the only IME report in evidence, tendered by the applicant; Held -finding that the applicant had not discharged the onus of proof on her in respect of the injury to her left knee she claims to have suffered on the date of the frank incident; award for the respondent in respect of the applicant’s claim for weekly benefits for the closed period and section 60 of the 1987 Act expenses. |
| DETERMINATIONS MADE: | 1. The Application to Resolve a Dispute is amended to restrict the applicant’s claim for weekly benefits to the period from 5 September 2020 to 3 October 2020 2. The applicant has not discharged the onus on her to prove that the suffered an aggravation, acceleration exacerbation or deterioration of osteoarthritis, and a tear of the medical meniscus, in her left knee on 31 January 2019 arising out of or in the course of her employment with the respondent. 3. Award for the respondent in respect of such injury. 4. The applicant has not suffered incapacity for any work from 5 September 2020 to 3 October 2020 as a result of injury arising out of or in the course of her employment with the respondent on 31 January 2019. 5. Award for the respondent in respect of the claim for weekly benefits from 5 September 2020 to 3 October 2020. 6. Award for the respondent in respect of the claim for expenses pursuant to s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Dianne Morris (the applicant/Ms Morris) claims weekly benefits and expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury arising out of or in the course of her employment with Woolworths Group Ltd (the respondent/Woolworths) on 31 January 2019.
Ms Morris commenced employment with Woolworths on 18 May 1978, and in or around 2016 commenced as the “Customer Service Manager” at the respondent’s Medowie store. Her duties in that role included watching over the floor, supervising service staff, and serving customers in the express check-out and smoke shop.
On 31 January 2019 the applicant claims that she was undertaking her regular duties serving customers in the smoke shop, which involves a lot of pivoting back and forth between the register and cigarette drawers to obtain the product requested by the customer. At around 2:00 pm she says that she turned and put weight on her left side and immediately felt burning pain in her left knee and ankle. He left knee gave way and she could not bear any weight on her left leg. She immediately stopped working and called to a fellow worker, Sandra Hazel, to tell her that she had hurt her ankle and that Ms Hazel should take over the smoke shop.
The applicant says that she reported the incident to the area manager, Lisa Tynam in the lunchroom, to which she had “shuffled” immediately after the incident. Ms Tynam told the applicant to make sure that she reported it. The store manager, Mark Keating, came into the lunchroom shortly thereafter, and Ms Morris reported the incident to him. Mr Keating told Ms Morris to work on the self-serve for the rest of the day. Ms Morris says that she completed an injury report that day.
The applicant says that she attended work on 1 February 2019 and again spoke to Mark Keating, saying that she was not sure how long she would last due to her injury and lack of sleep. Notwithstanding this, Ms Morris continued to work until 8 May 2019 when she consulted her general practitioner, Dr Usha Kolli, complaining that she was mentally and physically exhausted due to work stresses. Dr Kolli prescribed medication.
On 18 June 2019 the applicant took ten weeks long service leave. On 27 August 2019 she says she decided to retire instead of returning to work following her long service leave. This resignation was said to be due to physical and mental exhaustion from the injury and other stressors of the work environment.
On 20 April 2020 Dr Kolli referred the applicant to a psychiatrist for anxiety and depression, and was referred for an MRI scan of the left knee which was carried out on 21 April 2020. On 24 April 2020 Dr Kolli referred the applicant to Dr Richard Harbury, orthopaedic surgeon. Dr Harbury reviewed Ms Morris with the result of the MRI scan and referred her for physiotherapy treatment which she received from May until September 2020.
On 7 August 2020 the applicant signed and lodged with the respondent a “Worker’s Injury Claim Form” in which she claimed that she injured her left knee and ankle on 31 January 2019. On 14 August 2020 the respondent advised that applicant by letter that it was unable to commence provisional weekly compensation payments, although she may be eligible for payment of reasonably necessary medical and related expenses to help her recover and return to regular work activities recommended by her doctor.
Woolworths said that its inability to commence provisional weekly payments was because:
(a)there was evidence that Ms Morris’ work was not a substantial contributing factor to her injury/illness, and
(b)the injury was not reported to her employer in accordance with s 268 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
On 28 August 2020 the respondent issued to the applicant a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) containing a denial of liability for her claim. In giving reasons for this denial of liability, Woolworths said that “Evidence on file for the workplace injury that occurred on 31/01/2019 supports the following”:
(a)the applicant did not sustain injury arising out of or in the course of her employment with Woolworths (s 4 of the 1987 Act);
(b)the applicant’s employment with Woolworths is not a substantial contributing factor to any injury that she may have sustained (s 9A of the 1987 Act);
(c)the applicant’s employment with Woolworths is not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of any disease injury or condition (s 4(b)(ii) of the 1987 Act);
(d)the applicant does not present with symptoms or a medical condition that renders her with any total or partial incapacity as a result of a workplace injury (s 33 of the 1987 Act), and
(e)any incurred, ongoing or further medical or related treatment, hospital treatment and/or rehabilitation services are not reasonably necessary and do not arise as a result of a workplace injury (ss 59 and 60 of the 1987 Act).[1]
[1] Application to Resolve a Dispute (ARD) pp 39 - 40 (noting that electronic page reference numbers in the Commission’s records are used in this Statement of Reasons).
The applicant commenced proceedings in the Commission by way of an ARD with attachments dated 2 July 2021, to which a Reply with attachments dated 26 July 2021 was lodged.
ISSUES FOR DETERMINATION
12.The parties agree that the following issues remain in dispute:
(a)Did the applicant suffer injury to her left knee as alleged on 31 January 2019 arising out of or in the course off her employment with the respondent (s 4 of the 1987 Act)?
(b)What is the mechanism of any injury that the applicant suffered to her left knee on 31 January 2019?
(c)If there is a finding of injury to the left knee on 31 August 2019 in favour of the applicant, has the applicant suffered partial or total incapacity for work as a result of such injury (s 33 of the 1987 Act)?
(d)Does the applicant have a reasonable necessity for medical and related treatment as a result of the injury that she claims she suffered to her left knee on 31 January 2019 (ss 59 and 60 of the 1987 Act)?
Matters not previously noted
13.At the conciliation/arbitration referred to hereunder, the applicant was granted leave, consented to by the respondent, to amend the ARD to include a claim for costs and expenses pursuant to s 60 of the 1987 Act.
14.In addition to the applicant’s claim for injury to the left knee and ankle, the ARD included a claim he for psychological injury on 8 May 2019, with the date of such claim noted as 16 September 2019. At the commencement of the arbitration hearing, referred to hereunder, the applicant discontinued this claim. The requirement for the lodgement and service of a notice of discontinuance of such claim was dispensed with.
PROCEDURE BEFORE THE COMMISSION
15.I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
16.The parties attended a conciliation conference/arbitration hearing on 20 September 2021 conducted via telephone conference. Mr C Tanner of counsel appeared for the applicant briefed by Mr D Jones. The applicant attended on a separate line. Ms S Warren of counsel appeared for the respondent briefed by Mr R Passas. Arbitration hearing of the matter was not completed on that day and directions for written submissions were made. These have been received and are referred to hereunder. In answer to an enquiry of the respondent’s solicitor, the respondent indicated that it did not wish to provide any further submissions, in accordance with the directions issued, in reply to the applicant’s submissions dated 21 October 2021.
17.The parties agree that the applicant’s pre-injury average weekly earnings (PIAWE) were $1,445.91.
EVIDENCE
Documentary Evidence
18.The following documents were in evidence before the Commission and considered in making this determination:
(a)ARD and attached documents;
(b)Reply and attached documents;
(c)respondent’s written submissions dated 5 October 2021, and
(d)applicant’s written submissions dated 21 October 2021.
Oral Evidence
There was no application to adduce oral evidence or to cross-examine the applicant.
The Applicant’s Evidence
The background information outlined at [1]-[7] above is taken from the applicant’s statement dated 18 February 2021 attached to the ARD[2]. Ms Morris says that she initially thought that it was her left ankle that was injured, however it then became apparent that it was her left knee. She does not say when the left knee injury became apparent.
[2] ARD p 11.
When she spoke to the store manager, Mark Keating when he came into the lunchroom, she states that he said “What are you doing? Are you on a break?” to which she replied “No, I have gone and hurt my leg. I would like to report it.” Mark replied “yeah, later”.
A four-page incident report form of the respondent is in evidence[3] which contains details of the incident under the “Safety Incident: EVE-650836” heading (the Safety Incident Report). That form records that Ms Morris “Rolled ankle on rubber mat edge” in the “Smoke Shop” at “17:15” on 31 January 2019, and that it was reported to Mark Keating, the Medowie Store Manager. Further information is recorded in the form as:
[3] ARD p 7.
“Di was serving in smoke shop and finished serving and turning around rolled ankle stepping off mat and then felt it in knee”,
and that
“immediate actions taken”
were
“kept working away.”
Specific details of the injury are recorded in the form as “Sprain/strain” to left ankle and left knee, and “slip/trip” is shown as how the injury occurred.
In the form the applicant is described as not receiving treatment or requiring treatment, not receiving first aid including up to six physio visits, assessment by a medical practitioner, X-Rays and other treatment, or performing different tasks/alternative duties because of the injury and based on a medical certificate. At the end of the form the incident is shown as being “signed off” on 31 January 2019, with the person who signed off the incident “(Surname, First name)” shown as:
“Supermarket, 1495 STORE, Medowie, Supermarket 1495”
There is a date and time endorsed at the foot of each of the four pages of the document
“2021-02-03 16:52”,
the significance of which is not apparent. It is not referred to in the parties’ submissions.
It may refer to a date on which the document was supplied to one or both of the parties.
I note that the respondent accepts that the form was completed on 31 January 2019.
I do not place any significance on this date.
25.In her statement Ms Morris describes seeing a counsellor, apparently after 18 June 2019 when she took ten weeks long service leave, who suggested she undertake walking to assist with her mental health and to enable her to exercise and get out in the fresh air. Although in her statement Ms Morris says that she decided to retire on 27 August 2019, that is the date on which, or on the day after which, her retirement took effect. The applicant’s letter of resignation dated 28 July 2019 is attached to the Reply[4], signed by her but expressed in the third person. Relevant parts of that letter are as follows:
[4] Reply p 13.
“Please be advised that this letter is to notify of the resignation of Dianne Morris, Customer Service Manager, effective from 26 August 2019 after 41 years of service.
The decision to retire is the direct effect of circumstances which has [sic] taken place whilst employed at Woolworths Medowie. The circumstances have directly impacted both the mental and physical state of Ms Morris.
It is important to note that after the approved leave ending 25 August 2019, Ms Morris will not be returning to Woolworths Medowie and will commence retirement.”
26.In her statement Ms Morris, after referring to her resignation, then goes on to deal with her treatment by Dr Kohli [sic, Kolli] from 20 April 2020 onwards. She also refers to the treatment she received from Dr Harbury, psychologist Mr Jon Grainger, and a physiotherapist at Mitchell Physiotherapy. She says that after receiving the report of Dr Harbury, Dr Kolli questioned her as to why she had not raised the issue (of the left knee injury) earlier. Ms Morris told the doctor that she thought it would go away and that she was more concerned with her mental health at the time. She said that she was “…stressed by Mark’s nit-picking” and that the issues in her left knee “…flared once I started exercising, as advised by my counsellor.”
27.There are reports from Dr Kolli, Dr Harbury, Dr P Janke (who carried out the MRI scan of the left knee on 21 April 2020) and Ashlea Musgrove of Mitchell Physiotherapy in evidence. There is also a report dated 1 October 2020 of Dr Lynette Reece, orthopaedic surgeon, who independently medically examined Ms Morris on that date[5].
[5] ARD p 69.
The Respondent’s Evidence
28.The following evidence is attached to the Reply:
(a) Case File Notes of Mark Keating dated 20 April 2019[6]. These record an interview that Mr Keating held with Ms Morris on that day, with support person from the “Company”, Natasha Wilson present. The notes record discussion of the applicant’s communications, routines, and work practices in the respondent’s employ;
[6] Reply p 2.
(b) a “PRIVATE AND CONFIDENTIAL” warning letter to the applicant dated 24 April 2019 referring to an earlier meeting on 20 November 2018 to discuss concerns about performance and an agreement at that meeting to a Performance Improvement Plan[7]. It referred to two subsequent meetings, and the meeting of 20 April 2019, and information received by Mr Keating that the applicant was still not meeting expectations. The letter concluded with a warning of disciplinary action if performance did not improve;
[7] Reply p 9.
(c) a “Final Warning Letter” dated 24 May 2019[8], which concluded with the threat that if the applicant’s performance did not improve standards her employment may be terminated;
(d) the letter of resignation referred to above at [25];
(e) a handwritten report of Dr Kolli dated 25 September 2020 given in response to questions put to the doctor by Woolworths in an email dated 14 September 2020[9]. This report dealt with the applicant’s “depression and anxiety” in respect of a stated date of injury of 8 May 2019, and
(f) a report of Mr Jon Grainger, clinical psychologist dated 26 September 2019, again in response to questions put to him by Woolworths in an email dated 14 September 2020[10]. This report was also requested in respect of the “depression and anxiety” in respect of a date of injury of 8 May 2019.
SUBMISSIONS
[8] Reply p 10.
[9] Reply p 14.
[10] Reply p 18.
29. A recording of the oral submissions made by the respondent (which by agreement proceeded first in making its submissions) was made, a transcript of which can be obtained on request. The written submissions of the parties are on the Commission file. A summary of the submissions is as follows.
Respondent
30. The respondent notes that the issue for determination is whether the applicant sustained injury to her left knee as pleaded in the ARD, and whether her employment is a substantial contributing factor to that injury as required by ss 4 and 9A of the 1987 Act. The respondent concedes that there was an incident on 31 January 2019 as recorded in the incident report form referred to in [22] above.
31. Alternatively, the respondent submits that if injury is found, the Commission ought not be satisfied that the applicant has suffered any incapacity, or the need for medical treatment, arising out of the injury alleged on 31 January 2019.
32. The respondent refers to the treatment received from the general practitioner, Dr Kolli, from 24 April 2020, that doctor’s referral to Dr Harbury on 24 April 2020, and treatment by Ms Ashlea Musgrove at Mitchell Physiotherapy from 7 May 2020. The respondent also refers to the history of the incident recorded by Dr Lynnette Reece who independently medically examined the applicant on 1 October 2020[11] and produced a report of that date.
[11] RD P 69.
33. The respondent submits that Dr Reece does not in her report deal with the 15 month delay between the time of the incident and when Ms Morris first sought treatment for her knee injury in April 2020. This is significant in view of her evidence that the knee was causing her significant pain. Dr Reece also does not deal with an incident that occurred in mid-2019 when the applicant was walking and her knee gave way causing her to have swelling and significant severe pain. Dr Reece does not also consider the fact that the applicant kept on working for one to two months after the injury before going on leave, any flare up or aggravation that occurred in or about July 2020, and that an MRI scan was undertaken after this further non work related incident.
34. The respondent notes that Dr Reece continually refers to the incident as being a “twisting mechanism”, on which she bases her opinion that there is a direct relationship between the incident and the left knee condition. However the respondent contrasts this recorded mechanism of injury with the histories recorded across various other medical reports. The respondent submits that doubt ought to fall upon whether Ms Morris sustained a twisting injury recorded by Dr Reece.
35. The respondent questions the reliability of the applicant’s evidence, highlighting the inconsistences which it submits exist between the histories given to the practitioners who treated the applicant. The respondent refers to what Lord Pearce said in Onassis and Calogeropoulos v Vergottis[12] in respect of documentary evidence, and also what McLelland CJ in Equity said in Watson v Foxman[13] as to the reliability of human memory.
[12] [1968] 2 Lloyd’s Rep at 431 (Onassis).
[13] (19950 49 NSWLR 315 at [319] (Watson).
36. The respondent submits that inconsistent histories recorded by the various practitioners who treated the applicant may seem to be insignificant, but given that the mechanism of injury is important, doubt is cast upon the proposition that the incident of 31 January 2019 caused the injury to the left knee and condition therein of which the applicant currently complains.
37. The applicant submits that an expert’s opinion is of limited probative value in the overall assessment of issues if it is based on an inaccurate history, citing Makita v Sprowles[14] and what President Keating said in Department of Education and Training v Ireland[15] of the dangers of decision makers relying on findings of credit rather than evidence of facts necessary to determine a lawful entitlement.
[14] (2001) 52 NSWLR 705; [2001] NSWCA 305 (Makita).
[15] [2008] NSWWCCPD 134 (Ireland).
38. The respondent notes that in May 2020 Ms Morris could not recall details of the incident at a physiotherapy appointment (with Ashlea Musgrove), yet could recall details of the mechanism of injury when she made her statement two years after the incident of 31 January 2019.
39. The respondent submits that the incorrect mechanism of injury recorded by Dr Reece infects her opinion as to the causation of the left knee injury, and that there is not a ‘fair climate’ established on which the doctor can base her opinion. Alternatively, the inaccuracies in Dr Reece’s report severely affect the weight that can be given to her opinion.
40. The respondent also submits that the applicant’s claim that she is incapacitated as a result of injury to her left knee is complicated the alleged psychological injury claim, now discontinued, and also by the retirement of the applicant. The respondent notes that there is only one Certificate of Capacity in evidence, containing a certification of incapacity as a result of the left knee injury for a period from 5 September 2020 to 3 October 2020. This contrasts with the period of incapacity claimed in the ARD from 1 October 2020 to date.
41. Dr Reece’s opinion on incapacity should not be accepted, as it only deals with incapacity for the applicant’s previous role, not suitable duties, or sedentary employment.
Applicant
42. The applicant submits that that there is no contradictory evidence tendered by the respondent as to the circumstances and mechanism of injury on 31 January 2019, and the onset of symptoms at the material time. There is no statement from the Area Manager, Lisa Tynam who was present in the lunchroom when the applicant spoke to her and who said, “make sure you report it.” Similarly, there is no statement from Mark Keating, meaning that the applicant’s account of her contemporaneous report to Mr Keating is unchallenged. The respondent has not lodged any evidence to contradict the applicant’s account of contemporaneous reporting of the injury, and her account of having completed an injury report that day.
43. The applicant submits that her evidence in respect of the occurrence of the incident and injury sustained is confirmed by the contents of the Safety Incident Report in evidence. The applicant notes that she reported the incident to Mr Keating on 1 February 2019, the day following the incident, and there is no statement from Mr Keating to challenge this account.
44. The applicant notes that her letter of resignation dated 28 July 2019 contains an explanation that she was resigning because circumstances whilst she was employed at Woolworths directly impacted both her physical and mental state (emphasis is submissions). The applicant submits that the respondent’s attempt to avoid liability for the applicant’s claim cannot extinguish the foundation of her case, that is her unchallenged account of a twisting injury to her left ankle and knee, recorded on the date of injury by the respondent.
45. The applicant submits that Dr Kolli’s the referral of her to Dr Harbury is plainly erroneous when the history recorded that Ms Morris had experienced left knee pain for the previous few weeks and that there was no history of injury or trauma, and that it omitted to include reference to the workplace injury to the left knee,
46. The applicant submits that the history recorded by Dr Harbury is important as it traces the condition to a mechanism of twisting and pivoting in the workplace, and that although she experienced pain as a consequence of a single twist and pivot, Dr Harbury’s history of injurious work activities would cover that episode. No other source of injury, external to the applicant’s employment, is identified by Dr Harbury.
47. The applicant explains Dr Harbury’s erroneous record that she experienced pain “for about 8 months” as a reference to the date on which her employment with the respondent ended on 25 August 2019. The applicant submits that Dr Harbury plainly understood that her knee pain commenced during the course of her employment and persisted after she ceased work for the respondent. The unchallenged evidence of the applicant, and the contemporaneous “Safety Incident” document confirm the true date of injury and onset of symptoms.
48. The applicant concedes that she may well have had difficulty in identifying the exact time frame of the injury when speaking to Ms Musgrove in May 2020, but the date of the work-related injury is readily ascertainable. The history of “twisting on planted foot” is consistent with the episode of injury on 31 January 2019.
49. The applicant refers to the report of Dr Reece in detail, submitting that it provides an opinion as to the relationship between the condition in the left knee and the subject injury which is unchallenged by any medical evidence lodged by the respondent, which elected to contest the claim without qualifying a medical specialist to provide an opinion as to injury or incapacity.
50. The applicant submits that questions regarding her memory at the time that she sought treatment are no basis to refute a contemporaneous account of injury, recorded by the respondent, and the sole forensic report as to the relationship between the subject injury and the current condition.
51. In respect of the claim for weekly benefits, the applicant restricts her claim to the period covered by the only Certificate of Capacity in evidence issued by Dr Kolli on 4 October 2020, recording that the applicant had no current capacity for any work from 5 September 2020 to 3 October 2020. The applicant submits that there is no evidence tendered by the respondent to contest that certification of incapacity.
52. The applicant seeks to amend the ARD to restrict the claim for weekly compensation (at pp 7 and 8) to the period “05/09/2020 to 03/10/2020”, stating that no relief is sought in the current proceedings for weekly compensation before or beyond those dates. The applicant submits that the relevant rate pursuant to s 36 of the 1987 Act is $1,373.61, having regard to the agreed PIAWE of $1,445.91.
53. The applicant seeks a “General Order” pursuant to s 60 of the 1987 Act which the applicant submits is not contested by the respondent.
54. The applicant submits that date of the compensation claim in the ARD is 16 September 2020, which is not contested by the respondent. The Commission notes that is not the date stated in the ARD as the date of the claim for compensation in respect of the injury to the left knee, which is 7 August 2020. It is the date of the compensation claim referred to in the ARD in respect of the now discontinued claim for psychological injury.
FINDINGS AND REASONS
Injury
55. The respondent concedes that an incident occurred on 31 January 2019 as set out in the Safety Incident Report, details of which are referred to at [22]-[24] above. It clearly disputes the gravity of what occurred on that day. In the s 78 notice dated 28 August 2020[16] in response to the applicant’s claim in respect of her left ankle injury, the author of that notice, when stating reasons relevant to the decision, refers to a discussion that Ms Morris had about “…the new claim with EML” on 10 August 2020. In that discussion Ms Morris is reported to have said that the left ankle injury had fully recovered, and that she had retired in August 2019. It appears that reference to “the new claim” is to the claim that the applicant lodged in respect of her left ankle injury on 7 August 2020 as set out in the ARD Form 2[17]. In any event there is no other evidence that such an admission was made, the applicant makes no reference to it in her statement and I place no weight upon it.
[16] ARD p 38.
[17] ARD Form 2, p 7.
56. I accept that the applicant suffered an injury to her left ankle and left knee as a result of a “slip/trip” on 31 January 2019, when she rolled her ankle on (a) rubber mat edge, as recorded in the Safety Incident Report.
57. It is apparent from the attachments to the Reply listed at [28] above that Ms Morris was the subject if some disciplinary action by the respondent at that time. This may be the reason she consulted Dr Kolli on 8 May 2019 and given as the reason she took ten weeks long service leave from about 18 June 2019. Ms Morris says that in the days following 1 February 2019 she attended work and spoke to Mark Keating, that she continued to attend work despite the pain and swelling and discomfort in her left knee as she hoped the injury would go away, and that she was scared of losing her job. She does not however explain in her statement why she did not seek any treatment for her left knee until the consultation with Dr Kolli in April 2020. Dr Kolli requested an MRI scan of the left knee on 20 April 2020 which was carried out on 21 April 2020[18]. Dr Kolli referred the applicant to Dr Harbury on 24 April 2020[19], with the following history:
[18] ARD p 56.
[19] ARD p 58.
“Left knee pain for last few weeks no H/O injury or traum,a [sic] pain gets worse when weight bearing she had MRI which reported as radial tear of posterior horn of
medial meniscusneeds F/U”
The applicant submits that this history is plainly erroneous in stating that there was no history of injury or trauma, and that it failed to note the pain which prompted the applicant to report her injury on 31 January 2019.
58. The applicant says that she did consult Dr Kolli on 8 May 2019 as she was “mentally and physically exhausted due to work stresses”[20]. She was given a script for Sertraline. She then says in her statement that she saw a counsellor, who suggested that she undertake walking to assist with her mental health and enable her to exercise and get out in the fresh air. She started walking around the block as recommended by the counsellor, but on the first occasion says her left knee collapsed and she fell to the ground. She shuffled/hobbled home, put ice on her left knee and took Voltaren. “The pain and swelling in my left knee was extreme.”[21]
[20] ARD p 12 at [8].
[21] ARD p 12 at [22].
59. There are clinical records of the Aberglassyn Medical Centre listed attached to the ARD[22]. These are very limited in extent, and appear to consist only of a report from Ashlea Musgrove to Dr Usha Kolli dated 23 August 2020 updating the doctor on the applicant’s progress with treatment given for “…left knee pain secondary to patellofemoral degenerative change and an extruded medial meniscus tear.”
[22] ARD p 75.
60. There is a handwritten report of Dr Kolli in evidence, prepared on 21 August 2020 in response to a questionnaire forwarded to the doctor by Woolworths on 20 August 2020[23]. In that report Dr Kolli revealed:
[23] ARD p 51.
(a)that the applicant had seen Dr Harbury and had an MRI scan in April 2020 which showed a medial meniscal tear;
(b)that the patient stated date of injury was 31 January 2019;
(c)when asked if the injury diagnosis was consistent with the mechanism of injury provided said “Due to twisting & pivoting in kiosk & persisted even after her retirement”;
(d)when asked to clarify how she considered work to be the main contributing factor to the injury/condition, said:
“significant pain in the medial and anterior side of the knee i started when she was working at supermarket pt was in lot of mental stress at that time due to her work related issues so couldn’t bother about the knee problem” [sic]
(e)there were no pre-existing factors that may be relevant to the condition;
(f)said “No” in answer to the question “If there has been no aggravation of a non-work related condition, has the aggravation ceased? If not, when is it likely to cease?”;
(g)that the applicant was undergoing physiotherapy and hydrotherapy;
(h)that the applicant had an MRI which reported a medial meniscal tear, and the report was enclosed;
(i)limitations on physical capacity, and that
(j)the applicant was retired.
61. The clinical notes of Ashlea Musgrove of Mitchell Physiotherapy are in evidence[24]. The first consultation note dated 7 May 2020 records:
“ – (L) knee pain initially started after walking uphill and later same day twisting on planted foot. Difficulty in identifying exact time frame of when happened.”
[24] ARD pp 104-117 (in reverse date order).
62. There are subsequent entries on 14 May, 18 June, 16 July and 20 August 2020. The entry of 16 July 2020 notes:
“Was walking in a paddock last Sunday on uneven grass and knee gave way, has been sore since.”
The entry of 20 August 2020 indicated that the applicant “…now going through worker’s comp”.
63. In the only Certificate of Capacity in evidence in respect of the left knee injury, dated 4 October 2020[25], Dr Kolli notes the stated date of injury of 31 January 2019, that the applicant was first seen at the practice for that injury on 7 August 2020 and that Ms Morris:
“Injured the left knee at work while walking felt pain in the medial side radiating around the knee & ankle”.
[25] ARD p 77.
64. It appears from this evidence that it was on 7 August 2020 that the applicant first informed Dr Kolli of the work incident of 31 January 2019. The Worker’s Injury Claim Form is dated 7 August 2020[26], and service of this on the respondent no doubt resulted in the letter from Woolworths to the applicant dated 14 August 2020 in respect of provisional liability[27], the s 78 notice dated 14 August 2020 referred to in [10] above and the questionnaire from Woolworths to Dr Kolli dated 20 August 2020 referred to in [60] above.
[26] ARD p 3.
[27] ARD p 35.
65. The respondent takes issue with the report of Dr Reece, the independent medical examiner engaged by the applicant, dated 1 October 2020[28], arguing that it is of limited probative value because the doctor’s assessment of the issues is based on an inaccurate history. The history recorded by Dr Reece of the incident of 31 January 2019 is as follows:
“She was walking backwards and forwards, serving customers with cigarettes, serving customers on the express check out and keeping an eye on everything in regards to the customer services in the store. Before lunch time she pivoted to the right to get some smokes out and had sudden severe pain in her left knee and ankle and the left knee gave way.”
[28] ARD p 69.
66. Whilst this history is broadly consistent with what is recorded in the Safety Incident Report referred to in [22] above, there are discrepancies between what is recorded in that form, the applicant’s statement evidence and the history recorded by Dr Reece. Relevantly, in my view, these are as follows:
(a)in the Safety Incident Report the incident is recorded as occurring at “17:15”, which I interpret to be 5:15 pm. The applicant says that it occurred at around 2:00 pm when serving customers in the smoke shop;
(b)the applicant says that “At around 2:00pm I turned around and put weight on my left side and immediately felt burning pain in my left knee and ankle. My leg gave way and I could not bear any weight on my left leg”;
(c)she called out to Sandra Hazel, working in self-serve at the time, that she had hurt her ankle and required her to take over in the smoke shop. She initially thought that the injury was to her left ankle, however it then became apparent that it was to her left knee. She says that she shuffled to the lunch room with great difficulty, reported it to Lisa Tynam, the Area Manager, and a short time later to Mark Keating. She told Mr Keating that she had hurt her leg and was told by him to report it later;
(d)the Safety Incident Report records the happening of the incident as when the applicant “Rolled ankle on rubber mat edge” after she had finished serving in the smoke shop “…and turning around rolled ankle stepping off mat and then felt it in the knee”. How the injury occurred is recorded as “slip/trip”, and the immediate actions taken are recorded as “kept working away”;
(e)Dr Reece does not record the applicant as having rolled her ankle on a rubber mat edge, rather that she pivoted to the right to get some smokes out and had sudden severe pain in her left knee and ankle and the left knee gave way;
(f)the applicant’s evidence in respect of what happened thereafter is that she went home where she iced her left knee and took Voltaren. She did not sleep well due to the pain in her left knee and left leg. She attended work the next day, advised Mark Keating that she was not sure how long she would last due to injury and lack of sleep and was still in a lot of pain, with her left knee swollen;
(g)nevertheless, Ms Morris continued to work for the following days despite the pain, swelling and discomfort in the left knee as she hoped the injury would go away and she was scared of losing her job;
(h)on 8 May 2019 Ms Morris consulted Dr Kolli as she was mentally and physically exhausted due to work stresses and on around 18 June 2019 took ten weeks long service leave;
(i)Dr Reece records that after the day of the injury the applicant did not have any significant time off work, that the injury did settle a little with just rest at home, but she continued to work and that Ms Morris was hoping that the knee would get back to normal. That continued until June when she did not feel as though she could continue and retired.
67. The applicant in submissions notes that there is no statement in evidence from Mr Keating to challenge her account of her communication with him when she told him on 1 February 2019 of the injury and her lack of sleep. I do not regard the absence of evidence from Mr Keating as significant. As noted above, I accept that the applicant suffered at least a “Sprain/Strain” injury to the left ankle and left knee on 31 January 2019 as recorded in the Safety Incident Report. I also accept that such injury occurred in the manner described in that contemporaneous document. What I do find surprising is that the applicant, notwithstanding the severe nature of the left knee injury she says that she suffered, did not seek medical attention for the injury until April 2020. Ms Morris consulted Dr Kolli on 8 May 2019 because she says that she was mentally and physically exhausted due to work stresses. These stresses may, at least in part, have been due to the actions taken by the respondent in respect of her employment referred to in the respondent’s evidence attached to the Reply. Whether or not that is the case is not relevant to the current claim except to note that Ms Morris did consult Dr Kolli about them on 8 May 2019, and there is no record in evidence of that consultation. If the knee injury was as significant as is made out by the applicant, one would have expected that mention of it would have been made to Dr Kolli.
68. The applicant says that she commenced her long service leave on or around 18 June 2019 due to stress, and then started walking around the block as recommended by her counsellor. On the first time that she did this, her left knee collapsed and she fell to the ground. She shuffled home, iced her knee, and took Voltaren. The pain and swelling in her left knee were extreme. Ms Morris then says in her statement that on 27 August 2019 she decided to retire instead of returning to work following her long service leave. She resigned she says due to physical and mental exhaustion due to the injury and other stressors of the work environment. Any fear of the applicant losing her job as a result of not continuing to attend work because of her knee injury could not have been a factor at that time at least. Yet Ms Morris did not consult Dr Kolli about her left knee until April 2020, and did not relate to that doctor that her knee condition was as a result of a work injury until August 2020.
69. The applicant submits that the respondent in seeking to avoid liability for the injury received on 31 January 2019 sought to concentrate on late entries in the treating records. She submits that those entries cannot extinguish the foundation of her case – her “unchallenged account of a twisting injury to her left ankle and knee”, recorded on the date of injury by the respondent. A close examination of the Safety Incident Report does not, in my view, support the submission that Ms Morris suffered a twisting injury to her left knee on 31 January 2019.
70. The respondent asserts that Dr Kolli was in error when he wrote to Dr Harbury on 24 April 2020 and provided a history which omitted to include the workplace injury to the left knee. Dr Kolli recorded in that referral that Ms Morris had had left knee pain “for last few weeks”, and that there was “no H/O injury or trauma”[29]. The clinical note of the applicant’s consultation with Dr Kolli which resulted in the referral to Dr Harbury is not in evidence and the applicant, although reference is made to the referral to Dr Harbury in the Chronology in evidence[30], does not comment on such consultation. On the evidence available, I do not accept that Dr Kolli was in error as submitted by the applicant. Ms Morris did not relate to Dr Kolli that the condition in her knee was as a result of a work injury on 31 January 2019, until the consultation with the doctor on 7 August 2020. This consultation appears to have resulted in the issue of a Certificate of Capacity containing certification of no capacity to work from 7 August 2020 to 4 September 2020. That certificate is not in evidence, but the Certificate of Capacity dated 4 October 2020, referred to above at [63], is in evidence.
[29] ARD p 58.
[30] ARD p 72.
71. The applicant refers to the report of Dr Harbury dated 30 April 2020[31] in which he states that the applicant’s knee pain “came on while she was working at the supermarket constantly twisting and pivoting within her kiosk and has persisted even through [sic] she is retired now.” She submits that the history is important in that it traces the condition to a mechanism of twisting and pivoting in the workplace. Although the applicant experienced pain on 31 January 2019 as a consequence of a single twist and pivot, Dr Harbury’s history of injurious work activities would cover that episode. The applicant submits that no other source of injury is identified by Dr Harbury.
[31] ARD pp 60 and 99.
72. Dr Harbury’s record of the history of injury is also consistent with the onset of injury caused by the applicant “constantly” pivoting and twisting within her kiosk. The applicant relies on a frank injury to the left knee on 31 January 2019, not a series of activities. In making this observation, I acknowledge that treating practitioners are busy and that their clinical notes and records are prepared with the aim of recording symptoms of an injury or illness and the results of the doctor’s examination of the patient, and are directed to treating the condition. They are not necessarily prepared with the attention to detail of the mechanism of injury, or causation of an injury or condition, to which a medico legal report is usually directed (see Nominal Defendant v Clancy[32] and Davis v Council of the City of Wagga Wagga[33]).
[32] [2007] NSWCA 349 per Santow JA at [54]-[55].
[33] [2004] NSWCA 34 at [35].
73. The applicant also submits that Dr Harbury has erroneously recorded her as having had pain “for about 8 months” at the consultation on 30 April 2020, and explains this apparent error by reference to the date on which the applicant’s employment with the respondent ended on 25 August 2019. The applicant submits that Dr Harbury plainly understood that her knee pain commenced in the course of her employment and then persisted after she ceased work for the respondent. The applicant submits that the unchallenged evidence of the applicant and the Safety Incident Report confirm the true date of injury and the onset of symptoms.
74. The clinical notes of Mitchell Physiotherapy are in evidence. The entries of Ashlea Musgrove of 7 May and 16 July 2020 are set out at [61]-[62] above. In respect of the first entry, even accepting that Ms Morris twisted on a planted foot on 31 January 2019, which as I have pointed out is not consistent with the history of the incident recorded in the Safety Incident Report, there is no evidence of pain initially starting on that day after walking uphill. Ms Musgrove notes that the applicant had difficulty in identifying the exact timeframe when that happened.
75. There is a subsequent referral of Ms Morris to Mitchell Physiotherapy by Dr Kolli dated 7 August 2020[34] in the following terms:
“Left knee pain H/0 medial meniscal tear in april this year flare uip of knee pain needs Physiotherapy”
[sic][34] ARD p 57.
76. The respondent in submissions contrasts the histories to the medical practitioners summarised above with the applicant’s evidence in her statement dated 18 February 2021 in which Ms Morris specific recalls the incident of 31 January 2021. She says at [8]:
“ At around 2:00pm I turned and put weight on my left side and immediately felt burning pain in my left knee and ankle. My left knee gave way and I could not bear any weight on my left leg I immediately stopped working and called Sandra Hazel who was working in self-serve at the time to tell her that I had hurt my ankle and I required her to take over in the smoke shop.”
Ms Morris appears to be saying in that paragraph that she immediately felt the burning pain in her left knee and ankle when she put weight on her left side. In the following paragraph Ms Morris notes her original thought that it was her left ankle that was injured, but that it then became apparent that it was her left knee
77. The respondent also notes that Dr Harbury does not record the incident set out in paragraph 22 of the applicant’s statement although that incident correlates, in a timing sense, with the history he recorded of onset of significant pain in the knee for about eight months prior to his consultation with the applicant on 30 April 2020.
78. The excerpts from Onassis and Watson on which the respondent relies referred to above at [35] are often quoted. In Onassis, Lord Pearce said:
“It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.”
79. In Watson, McLelland CJ in Equity referred to the fallibility of human memory and the reasons therefor, and how the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene. He said:
“All too often what is actually remembered is little more than an impression from which the plausible details are then, again often subconsciously, constructed. All this is a matter of human experience.”
80. In Mason v Demasi[35], Basten JA noted that inconsistencies between a party’s evidence and medical histories in clinical notes should be treated with caution. He said at [2]:
[35] [2009] NSWCA 227.
“First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a) the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c) the record did not identify any questions which may have elucidated replies;
(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”
81. In this case it is not so much an inconsistency between accounts given to various health professionals and the applicant’s evidence which is of concern. It is the absence from the applicant’s evidence of a satisfactory explanation as to why she did not:
(a)mention her injured knee to Dr Kolli at the consultation on 8 May 2019;
(b)seek medical attention for her claimed knee injury on 31 January 2019 until April 2020;
(c)make reference to the mechanism of injury described in the Safety Incident Report;
(d)make reference to, or explain the entries in, the clinical notes of the treating practitioners summarised above, and
(e)inform Kolli until the consultation of consultation 7 August 2020 that she injured her knee at work on 31 January 2019.
82. I do not accept the applicant’s submissions that the entries in the records of Dr Kolli and Dr Harbury are erroneous. Having regard to the whole of the evidence that I have summarised, I think that those entries, and the entries in the records of Ashlea Musgrove of Mitchell Physiotherapy, are correct, and record what the practitioners were told by the applicant as to what happened to her in respect of the condition in the left knee over the period from 31 January 2019 until the time that she consulted each practitioner.
83. Because the opinion of Dr Reece is based on a history of the incident on 31 January 2019 which does not accord with the history of that incident as recorded in the Safety Incident Report, it is of limited probative value of determining the causation of the condition in the left knee shown of the MRI scan dated 22 April 2020. Dr Reece does not believe that the applicant’s work with the respondent is the main contributing factor to the osteoarthritis from which Ms Morris suffers in her left knee, but she does opine that the “twisting incident” on 31 January 2019 was the cause of exacerbation, aggravation and acceleration of the osteoarthritis, the tear in the medial meniscus of the left knee, and the commencement of pain in the knee.
84. In Ireland President Keating, after noting at [90] that Ms Ireland bore the onus of proof to establish that she did in fact suffer an injury to her lower back on a particular date, said the following at [91]-[92]:
91.“In so doing, the Arbitrator wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone. The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland’s failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland’s case.
92.In State Rail Authority v Earth Line Constructions Pty Limited (in liquidation) [1999] HCA 3; (1999) 160 ALR 588 the High Court warned of the dangers of decision makers relying on findings of credit rather than evidence of facts necessary to determine a lawful entitlement in the instant case.”
85. Each case depends in its own facts, and in this case, it is not in issue that the applicant suffered an injury to her left knee on 31 January 2019 of the nature described in the Safety Incident Report. It is in issue that the nature of the injury was such as to cause her incapacity for work for the period claimed referred to hereunder. I do not accept Dr Reece’s opinion that the incident that the applicant’s work is the main (emphasis added) contributing factor to the aggravation and acceleration and deterioration of osteoarthritis in the left knee, or that, having regard to the whole of the evidence, the applicant has discharged the onus of proof on her to show that the incident on 31 January 2019 was the cause of the tear in the medial meniscus described by Dr Reece.
86. The respondent in its submissions notes that Dr Reece in her report at [3] on the second page thereof[36] deals with a twisting injury in the right knee, and submits that Dr Reece does not deal with what is recorded in the Safety Incident Report which contains a history of the applicant stepping off a mat, rolling the ankle and feeling pain in the left knee. Reading the report of Dr Reece as a whole, it may be that reference to the right knee in the report is a typographical error, and that the reference should be to the left knee. Even accepting that such is the case, the difficulty remains in the acceptance of the opinion as to causation in the report because of the inconsistency between the mechanism of injury described in the Safety Incident Report and that relied upon by Dr Reece.
[36] ARD p 70.
87. The applicant submits that the respondent does not, and cannot not, refer to any medical evidence in support of its assertion that the twisting incident on 31 January 2019 did not cause injury to the applicant’s left ankle and knee. The applicant also asserts that the respondent does not, and cannot, refer to any medical evidence as to a different causal explanation for her left knee pain and pathology revealed in the MRI scan performed 20 April 2020. Similarly, the respondent has not tendered any evidence as to the applicant’s capacity for work.
88. The respondent does take issue with the mechanism of injury relied upon by Dr Reece, and the failure of that doctor to deal with what is recorded in the Safety Incident Report, and also submits that Dr Reece fails to deal with the delay in symptoms and the impact of other incidents involving the knee giving way or being aggravated in non-work settings. That submission is consistent with the onus remaining upon the applicant to prove the necessary elements of her case in respect of injury, incapacity, and the reasonable necessity for medical treatment she claims in the proceedings.
89. In this case, it is a significant omission that the applicant did not seek treatment for the left knee that she injured on 31 January 2019 until the consultation with Dr Kolli in April 2020 when the doctor referred the applicant to Dr Harbury. At that consultation Dr Kolli recorded left knee pain for the previous weeks and no history of injury or trauma. The applicant continued to work for the respondent from the date of the incident on 31 January 2019 until she ceased on or about 18 June 2019 when she commenced her long service leave. She continued to work from 8 May 2019 until that date, notwithstanding the consultation with Dr Kolli on 8 May 2019. Apart from mentioning in her letter of resignation dated 28 July 2019 of the impact of both mental and physical stresses on her, no mention was made of a injured knee.
Incapacity
90. The applicant restricts her claim for weekly compensation to the period from 5 September 2020 to 3 October 2020 as certified by Dr Kolli on the Certificate of Capacity issued by Dr Kolli on 4 October 2020. That certificate records that the applicant had no current capacity for any work for that period. No relief is sought in the current proceedings for weekly compensation before or beyond 5 September 2020 to 3 October 2020. As a matter of completeness, the applicant amends, or seeks to ament, the ARD to restrict the claim for weekly compensation at pp 7 and 8 for the period now claimed. The applicant submits that given her PIAWE of $1,445.91, the relevant section of the 1987 Act is s 36.
91. The respondent has not provided any further submissions, in accordance with the directions issued, in reply to the applicant’s submissions dated 21 October 2021. The amendment sought by the applicant to amend the ARD to restrict the claim for weekly benefits to the period from 5 August 2020 to 3 October 2020 was made for the first time in the applicant’s submissions. Accordingly, for completeness, the ARD is amended accordingly.
92. In his report dated 21 August 2020 Dr Kolli places the following restrictions of the applicant’s physical capacity:
(a) can’t lift or carry long distance;
(b) sitting OK;
(c) standing painful;
(d) pushing/pulling normal;
(e) bending/twisting normal;
(f) driving normal, and
(g) other – she is not working currently, she is retired.
In answer to the next question asked of her “If no capacity please advise the estimated time
frame for Dianne to return to any type of capacity” the answer supplied is “N/A”.
93. Those restrictions are not consistent with the certification by Dr Kolli of no capacity for any work from 5 September 2020 to 3 October 2020. That certification is also not consistent with the applicant having continued to work for the respondent until about 18 June 2019 after the incident of 31 January 2019.
Section 60 expenses
94. The applicant seeks a general order pursuant to s 36 of the 1987 Act, and submits that the date of compensation claim in the ARD, is 16 September 2020. That is not the date of compensation claim for the left knee injury, which is 7 August 2020. The date, 16 September 2020, is the date of compensation claim pleaded in respect of the now discontinued claim for psychological injury.
SUMMARY
95. The ARD is amended to restrict the applicant’s claims for weekly benefits to the period from 5 September 2020 to 3 October 2020.
96. The applicant has not discharged the onus on her to prove that she suffered an aggravation, acceleration exacerbation or deterioration of osteoarthritis, and a tear of the medical meniscus, in her left knee on 31 January 2019 arising out of or in the course of her employment with the respondent.
97. There will be an award for the respondent in respect of such injury.
98. The applicant has not suffered incapacity for any work from 5 September 2020 to 3 October 2020 as a result of injury arising out of or in the course of her employment with the respondent on 31 January 2019.
99. Award for the respondent in respect of the claim for weekly benefits from 5 September 2020 to 3 October 2020.the applicant.
Award for the respondent in respect of the applicant’s claim for expenses pursuant to s 60 of the 1987 Act.
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