Nand v Spotless Services (NSW) Pty Ltd - [2010] NSWWCCPD 103

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Nand v Spotless Services (NSW) Pty Ltd [2010] NSWWCCPD 103
APPELLANT:		Swamy Satya Nand
RESPONDENT:		Spotless Services (NSW) Pty Ltd
INSURER:		QBE Workers Compensation (NSW) Limited
FILE NUMBER:		A1-2729/10
ARBITRATOR:	Ms A Simpson
DATE OF ARBITRATOR’S DECISION:		15 June 2010
DATE OF APPEAL DECISION:		28 September 2010
SUBJECT MATTER OF DECISION:		Injury; aggravation of disease; weight of evidence
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Bryan Gorman & Co
Respondent:		Astridge & Murray
ORDERS MADE ON APPEAL:		Paragraphs 1, 2, 3 and 4 of the Certificate of Determination of 15 June 2010 are revoked and the matter is remitted to a different Arbitrator for determination of the appellant worker’s entitlement to compensation and the making of appropriate orders. Paragraph 5 of the Certificate of Determination is confirmed.
The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

The appellant worker, Mr Nand, started work as a storeman for the respondent employer, Spotless Services (NSW) Pty Ltd (Spotless), in December 2006. His duties required him to load and push heavy trolleys up ramps.
In his claim form dated 28 January 2009, Mr Nand said that he injured his right knee whilst pushing a trolley up a ramp on 23 January 2009. He also stated that his knee had been normal before the accident.
The respondent employer’s insurer, QBE Workers Compensation (NSW) Limited (QBE), initially accepted liability. However, after obtaining a report from Dr Wilcox, consultant surgeon, QBE denied liability in a s 74 notice dated 1 April 2009 on the following grounds:
(a)     Mr Nand had not suffered an injury;
(b)     ongoing treatment was no longer reasonably necessary;
(c)     employment had not been a substantial contributing factor to the injury;
(d)     Mr Nand had not sustained any permanent impairment as a result of his injury, and
(e)     Mr Nand was not incapacitated for work.

In an Application to Resolve a Dispute (the Application) registered in the Commission on 6 April 2010, Mr Nand claimed weekly compensation in the sum of $860.06 from 1 April 2009 to date and continuing together with hospital and medical expenses of $612.25. Though the Application alleged an injury to the right knee, right leg and back, the alleged back injury was ultimately deleted. The Application described the injury as having occurred as follows:
“The worker was pushing a four (4) wheeled trolley weighing approximately 200 kilograms up a ramp at Pier C in the international airport at Mascot when he injured his right leg including the right knee. The nature and conditions of his employment aggravated, exacerbated or caused the injury to the back and right leg including the right knee. Alternatively, the injuries received by the worker arose as a result of a disease of gradual onset.”

In a Reply filed on 27 April 2010, the respondent employer relied on the issues identified in the s 74 notice referred to above. It also disputed that the worker had received an injury as a result of the “nature and conditions” of his employment, that employment had been a substantial contributing factor to any injury due to “nature and conditions” of employment and that the worker had not “duly notified and/or made a claim” in respect of any alleged injury as a result of the “nature and conditions” of employment.
The Commission listed the matter for conciliation and arbitration on 28 May 2010. Counsel for Mr Nand amended the Application to delete any reference to the back and the matter proceeded with lengthy submissions, but the Arbitrator heard no oral evidence.
In a reserved decision delivered on 15 June 2010, the Arbitrator found:
(a)   Spotless had ample notice of the “nature and conditions” claim and that claim had been duly made;
(b)     Mr Nand did not suffer a torn meniscus in the incident on 23 January 2009;
(c)   Mr Nand suffered from osteoarthritis in his right knee;
(d)     Mr Nand did not contract a disease in the course of his employment;
(e)   Mr Nand did not suffer an injury as a result of the “nature and conditions” of his employment with Spotless;
(f)   there was an aggravation of the pre-existing osteoarthritis on 23 January 2009, but the aggravation was of a minor nature that ceased by the date of Dr Wilcox’s examination on 17 February 2009;
(g)     any incapacity from 17 February 2009 resulted from Mr Nand’s underlying degenerative osteoarthritis and was not work related, and
(h)     as QBE had accepted liability and paid compensation up to the end of March 2009, there would be an award for the respondent employer.
The Commission issued a Certificate of Determination on 15 June 2010 in the following terms:
“The Commission determines:
1. On the Applicant’s application the claim for an injury to the back is discontinued.
2. There is an Award for the Respondent.
3.    That the Respondent pay the Applicant’s reasonable s60 Workers
Compensation Act 1987 medical expenses upon production or [sic] accounts or receipts for the period of incapacity.
4.    That there is no order for costs.
Complexity Uplift:
5.    That there is an uplift of 20%.”
In an appeal filed on 13 July 2010, Mr Nand seeks leave to challenge the Arbitrator’s determination. Spotless has not challenged the Arbitrator’s finding that the worker had duly made the “nature and conditions” claim.

LEAVE TO APPEAL

Monetary threshold

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

It is not disputed that the monetary thresholds in s 352(2) are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.

I grant leave to appeal.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The issues in dispute in the appeal are essentially the same as the issues before the Arbitrator, namely whether the worker suffered an injury as a result of the work he performed with the respondent employer, whether he suffered an injury as a result of an aggravation or exacerbation of a disease, whether employment was a substantial contributing factor to the injury, and whether the effect of his injury is continuing.

THE EVIDENCE

Mr Nand

Mr Nand completed a claim form on 28 January 2009 in which he said he injured his right knee on 23 January 2006. He said that his knee was “normal” before the accident and that he had not previously suffered any “similar work-related injuries or conditions”.
Mr Nand’s evidence is set out in his statement dated 28 August 2009. He was born in Fiji in 1958 and worked in that country for 10 years as a “building/maintenance person”. He came to Australia in 1998 and worked in “general maintenance” for a plastics recycling business until 2003. He then worked as a process worker/forklift driver for about 18 months until he started work with Spotless in December 2006.
Mr Nand’s duties required him to deliver cartons of soft drinks and foodstuffs from a storeroom to various retail outlets at the airport. He lifted boxes of drinks and food onto a four-wheeled trolley, which he then had to push to the relevant retail outlet where he would then unload the trolley. After performing his duties for approximately 1 ½ years, he started to experience pain in his lower back and right knee. He said that he told his supervisor, Mr Reddy, of his problems in October 2008 and consulted his general practitioner, Dr Lau. He continued to work “with difficulty”, particularly with his right knee when he pushed a laden trolley up ramps. Dr Lau referred him for x-rays and scans that were “essentially clear”.
On 23 January 2006, he was pushing a heavy trolley up a ramp at Pier C at the international airport at Mascot. He was having difficulty pushing the trolley over the rise at the top of the ramp and he “twisted” his right knee and “felt a sharp pain” in the knee. He made his delivery and then returned the empty trolley to the store and advised Mr Reddy of his injury. As it was a Friday (before a long weekend), he stopped work and went home. He saw Dr Lau the following Tuesday and was certified unfit from 27 January 2009. He said he attempted to return to work on light duties in the first week of February 2009, but could not do the work. He has continued to consult Dr Lau every fortnight and to take pain relieving and anti-inflammatory medication.
Mr Nand continues to experience pain in his right knee and is unable to lift heavy weights or drive long distances. He continues to have stiffness in his right knee, is unable to ascend or descend stairs, and inclines.

Medical evidence

Dr Lau has treated the worker since October 1998. Mr Nand saw Dr Lau on 13 August 2001 when he gave a history of having had pain in both knees for three days and of a cough and a runny nose. The clinical notes also record “PH, soccer”. Mr Nand returned to see Dr Lau on 20 August 2001 complaining of left knee pain. The notes make no further reference to knee symptoms until October 2008.
On 6 December 2006, Dr Keller, general practitioner, examined Mr Nand on behalf of Spotless and conducted a pre-employment medical examination. His notes record that that examination was normal.
On 27 October 2008, Mr Nand saw Dr Lau complaining of right knee pain. The notes record “?OA (R) knee”. They also refer to a complaint of low back pain.
Mr Nand next saw Dr Lau on 12 November 2008 complaining of right knee pain and low back pain. A right knee x-ray on 17 November 2008 revealed the articular surfaces to be smooth, however there was a spur formation on the patella superiorly and at the tibial tubercle. An ultrasound of the left knee on the same day was normal.
A handwritten note from Dr Lau dated 28 November 2008 recorded a three-month history of increasing pain and swelling with an antalgic gait. There was no history of any injury, but there was global diffuse pain. Flexion was from 0° to 120° and the knee was described as “stable”.
Mr Nand saw Dr Lau on 12 January 2009 complaining of right knee pain. Dr Lau referred the worker to Dr Davé, orthopaedic surgeon, on 12 January 2009. The referral note stated:
“Presenting problem 3/12 h/o (R) knee pain,
reduced flexion, worse on movement,
no swelling – crepitus, no
locking/giving way; Bld [sic] tests →
[indecipherable] ? Meniscal injury”

Dr Davé saw the worker on 20 January 2009 and reported to Dr Lau on or about that date. He took a history of three months of increasing pain and swelling in the worker’s “left [sic, right] knee without any history of injuries”. The worker was disabled with knee pain and was walking with an antalgic gait. He had global diffuse pain and swelling around the knee joint. X-rays showed mild degenerative changes with some spur formation. The range of movement was from 0° to 120°. There was some synovial thickening and boggy swelling around the knee joint “consisting of synovial proliferation”. Dr Davé felt that the worker had a rheumatological condition and he arranged for an MRI scan.
On 27 January 2009, Mr Nand again saw Dr Lau. The doctor’s notes referred to mild effusion posteriorly, decreased painful flexion, crepitus and a positive McMurray’s test. Dr Lau issued a WorkCover certificate on that day certifying Mr Nand unfit for work as a result of his right knee injury on 23 January 2009.

On 28 January 2009, Mr Nand saw Dr Keller. Dr Keller’s notes record:
“History:
pushing trolley up ramp on 23/1/09
sudden sharp pain in R knee
PMHx no knee inj
Examination:
moderate effusion
limited flexion to 90°
ligaments intact
+ve McMurrays sign”

An MRI scan on 4 February 2009 revealed a horizontal tear of the posterior horn of the medial meniscus and grade 3 chondromalacia in the patellofemoral compartment together with joint effusion with associated synovitis.
Dr Davé reported to Dr Lau in a hand written report on 6 February 2009:
“Thank you for your referral. Has [sic] diagnosis of medial meniscal tear right knee. His work is very heavy in the stores (pushes trolley at airport loaded with beer kegs, water, soft drinks etc) Has to push up ramps etc.
Twisted (R) knee 23.1.09, swollen & pain postero medial corner. Now only on light duties. MRI attached. Needs approval for arthroscopy (AMA code MW28) approval required.”

On 8 February 2009, Dr Lau provided a handwritten response to several questions from QBE in a letter dated 6 February 2009. The questions asked and the doctor’s responses are set out below:
“1. When did Swamy first present to you regarding his alleged injury of 23 January 2009 and what were your objective findings?
He first presented in October 2008 with mild knee pain. But it became much worse in Jan 2009 when he presented on 27/1/09 (objective findings – see Q(8))
2.    Do you consider that the mechanism of injury described is consistent with the history given (and is Swamy’s employment a substantial contributing factor to his current condition)?
Yes. The worker’s employment is a substantial contributing factor to his injury.
3.    Are you aware of any prior history relevant to this injury?
Patient presented in August 2001 with bilateral knee pain/strain, worse on the left. He was given NSAID and fully recovered.
Patient’s current symptoms started in Oct 2008 after a lot of pushing and pulling at work but became much worse on 23/1/09 after lifting 20kgwt.
4.    Do you consider that Swamy will ultimately be able to return to his pre-injury duties?
It is possible that patient may be able to return [indecipherable] depend on his response.
5.    When do you expect Swamy will be able to return to his pre-injury duties?
Possibly 3 to 6 months.

6. What treatment do you believe that Swamy requires in order to return to his pre-injury duties? Please indicate the frequency/duration of such treatment (ie physio 2 times per week for 4 weeks).

(a)Arthroscopy/surgical treatment
(b)Post-op physiotherapy x 2/week, 4-8 weeks
(c)Analgesics, NSAID as required.

7. Are any specialist referrals or investigations required?
Yes – orthopaedic surgeon; MRI
8. Any other comments that may be of relevance.
From Q1. Objective findings: There was mild joint effusion in left [sic, right] knee. Flexion movement was reduced and painful. There was crepitus detected. McMurray’s sign was positive.”

Dr David Wilcox examined Mr Nand at the request of QBE on 17 February 2009 and prepared a report on that date. He took a history that the worker’s knees were perfectly normal until November 2008 when he noticed a soreness affecting his right knee that came on for no apparent reason. He was aware of it with prolonged walking, squatting or kneeling at work or elsewhere. Dr Lau prescribed anti-inflammatory medication and by Christmas 2008 the worker was “much better”.
Dr Wilcox recorded that Mr Nand performed his normal duties up to 23 January 2009. Immediately prior to that date, his residual discomfort affecting his right knee was minor and there were no other symptoms. On 23 January 2009, Mr Nand was pushing a trolley weighing about 270 kg up a 10 m ramp, which he estimated had a 1 in 10 slope, a task he had performed many times before without any problems. On this occasion, as he exerted more pressure to keep the trolley moving, he felt a sharp pain in the back of his knee. When he reached the top of the ramp he waited for 10 minutes, then made his delivery, and unloaded the cartons into a cool room before pushing the empty trolley back to the storage area.
Mr Nand reported the incident to his supervisor and stayed in the office until the end of his shift. He then drove himself home. That night and over the following long weekend, his knee did not settle and, if anything, became more painful. Dr Lau placed him off work, but he attempted light duties from 27 January until 2 February 2009. He told the company doctor that he could not continue and he stopped work again. Overall, the worker felt that his symptoms had improved up to 15 February 2009. However, he said that driving 31 km each way to and from work and the necessary walking around the loading dock had “made everything worse”.
After referring to the MRI scan and examining the worker, Dr Wilcox concluded:
“According to the history as given by Mr Nand he had experienced some right knee symptoms prior to 23.1.2009. Although there were no overt indications of a torn medial meniscus eg locking or the joint giving way, they could fit with an aggravation of a posterior horn tear. Horizontal tears of this nature are usually degenerative rather than being caused by [a] frank injury. If they do become symptomatic the episode often self resolves. He considered that his knee was almost back to normal by 8am on 23.1.2009.”

According to Dr Wilcox, in the activity in which Mr Nand was engaged on 23 January 2009, the pain would be expected to be in the anterior aspect of the knee not the posterior aspect. The doctor presumed that Mr Nand’s duties “would not compare with those of coal miners, floor layers or carpet fitters” and, on the balance of probabilities, it was unlikely that the cartilage defect (revealed on the MRI scan) occurred as a result of his “work duty or the incident on 23.1.2009”.
Dr Wilcox considered the major “diagnostic problem” to be the site of pain, which, according to his history, was over the posterior calf muscles. Whilst he accepted that the worker had synovitis, which was significantly aggravated by the event on 23 January 2009 causing the knee swelling, that did not explain the other clinical signs. The doctor stated that the tear of the posterior horn of the meniscus “might be purely coincidental”.
He thought it would be instructive to compare the clinical findings of Dr Davé and the injury management consultant who saw the worker with his current clinical presentation. The worker was unfit for any employment as a result of the work injury, that is, synovitis and a probable complication involving the calf. It was reasonable to accept that the worker suffered an aggravation of a pre-existing underlying condition and that the aggravation had not ceased. It was reasonable for the worker to have an ultrasound investigation to eliminate the possibility of a deep vein thrombosis.
The worker underwent a right lower limb venous Doppler ultrasound on 19 February 2009, which failed to reveal any Baker’s cyst or venous thrombosis.
Dr Wilcox provided a supplementary report on 27 March 2009 in which he noted that deep vein thrombosis had been excluded. He said that most knee injuries involving an acute cartilage tear or a ruptured ligament produced immediate severe pain, which gradually decreased rather than increased. He noted that the attendance on Dr Davé on 20 January 2009 was at variance with the worker’s stated history that any residual discomfort in his right knee in the first three weeks of the new year was minor. Dr Wilcox found it difficult to understand how the claimed incident on 23 January 2009 could have substantially contributed to the worker’s presentation on 17 February 2009. He noted the history he took from the worker that he had been able to play table tennis up until 23 January 2009 and volleyball until December 2008. That raised a question about the worker’s veracity.

Dr Wilcox concluded:
“When all this medical evidence is taken into account, the only sensible conclusion that can be reached is that the claimed incident on 23.1.2009 did not cause the right knee pathology as it was already present. It could not have been responsible for an acute exacerbation as he would not have been able to continue to work for the rest of his shift and then drive home. He also would not have waited for three or four days before seeking medical attention. This implies that any time that Mr Nand might have to take off for [sic] work to have treatment for his knee should be sick leave. Investigations and treatment should be his responsibility and not that of his employer.”
Dr Wilcox added that the diagnosis had not yet been clearly defined and that osteoarthritis with synovitis could be responsible for the diffuse, boggy swelling over the knee itself, but not for the tender, swollen upper calf. It was possible that, at some time, a Baker’s cyst had ruptured giving rise to local irritation. However, even that diagnosis was difficult to sustain. The swollen calf remained a “diagnostic dilemma”. However, it was reasonable for Dr Davé to go ahead with an arthroscopic synovectomy, which he originally proposed on 20 January 2009. The doctor reiterated that horizontal tears of the medial meniscus were rarely created by a single incident and were often present without the individual being aware of any symptoms. He felt that the presence of the tear was “almost certainly coincidental and would have been present even if [Mr Nand] had not had the claimed injury on 23.1.2009”. The surgery proposed by Dr Davé would not be the employer’s responsibility.
Dr Lau prepared a medicolegal report on 26 June 2009. He stated that the worker’s duties required him to push trolleys up ramps and to load and unload weights weighing up to 20kg. He first experienced back and knee pain in October 2008. His symptoms were not too severe at that stage and he was able to continue working. However, in early January 2009, Mr Nand complained of persistent pain in his right knee and Dr Lau referred him to Dr Davé. After twisting his right knee and feeling a sharp pain on 23 January 2009, Mr Nand had been unable to walk properly or bend his knee. There was a mild effusion present in the posterior aspect of the right knee, flexion was reduced and there was crepitus on palpation. McMurray’s test was positive, indicating a possible meniscal injury, but the anterior drawing test was negative.
Dr Lau diagnosed a tear of the posterior horn of the right medial meniscus and grade 3 chondromalacia in the patello femoral compartment. QBE declined to approve the surgery recommended by Dr Davé and Mr Nand’s condition “continued to deteriorate”. He was unable to drive because of difficulty applying the brakes properly. The swelling of the right knee worsened and extended to the calf. He was unable to work because of his difficulty in driving and inability to walk half a kilometre from the car park to his workplace. Mr Nand still had a lot of pain and was incapacitated. Without proper treatment, his condition was likely to deteriorate.
Dr Davé prepared a medicolegal report on 7 September 2009 in which he set out the full history of his examination on 20 January 2009 referred to above. He confirmed that he took no history of any injury when he saw the worker on 20 January 2009 and that the pain had reached “disabling proportions” and that he was having difficulty walking. The pain on that occasion was located at the front of the knee.
Dr Davé added that Mr Nand’s work as a storeman was “very heavy”. His duties included pushing laden trolleys over long distances and up ramps. The trolleys were often “wayward” and he had difficulty manoeuvring them. At his second visit on 6 February 2009, Mr Nand recalled a twisting injury to his right knee that occurred on 23 January 2009 following which his knee was swollen and painful.
At his initial examination on 20 January 2009, Dr Davé noted that the worker walked with a marked antalgic limp, holding his knee flexed. A large effusion restricted flexion to 120°. There was a feeling of synovial thickening and boggy swelling around the knee joint. Because of the chronic nature of the swelling and the feeling of synovial thickening, Dr Davé’s provisional diagnosis was that the worker had a rheumatological-type condition. On 6 February 2009, Mr Nand gave a more detailed history of his work as a storeman and Dr Davé had a copy of the MRI scan. As the worker’s condition had not improved with simple anti-inflammatory medication and local treatment, Dr Davé recommended surgery.
Under “Diagnosis and Opinion”, Dr Davé restated that he did not get a history of an injury at the initial visit, but:
“Mr Nand did recall an injury of [a] twisting nature once and this is not [an] uncommon occurrence especially with the nature of his work. I would be of the opinion that the medial meniscus tear is attributable to the nature of his work and injury as described. The osteoarthritis is as a result of naturally occurring and constitutional causes.”
Dr Davé stated that the diagnosis was “osteoarthritis of [the] right knee/medial meniscal tear”. He added that the worker’s knee “may be aggravated by pushing heavy trolleys especially trolleys that are difficult to control up ramps etc”. Mr Nand remained fit for the selected light duties he was performing at his visit on 6 February 2009. Dr Davé concluded:
“I am of the opinion that Mr Nand’s work as described to me is a substantial contributing factor to the medial meniscal tear. I am also of the opinion that Mr Nand’s current symptoms are partly due to aggravation of underlying osteoarthritis. The osteoarthritis itself was pre-existent, but the aggravation has been contributed to by the nature of his work.”
Dr Wilcox examined Mr Nand again on 26 October 2009 and reported to the respondent employer’s solicitors on 8 November 2009. He recorded that Spotless had terminated the worker’s employment on 2 October 2009. He had not been looking for work and spent most of his time resting at home. The only exercise he did involved walking about 700 metres three times a week. He complained of constant pain in the hollow at the back of his knee, which radiated to the upper calf muscles on walking 200 metres or when he walked up or down one flight of stairs. The knee did not swell, lock or give way. He took Voltaren each morning and Panadeine Forte every afternoon.
On examination, Mr Nand had virtually full flexion of his knee and could stand independently on his right foot with good balance. The findings on examination revealed little difference from Dr Davé’s examination on 20 January 2009. If anything, Mr Nand was now better than he was at that time. However, the boggy swelling was still present. His range of flexion had improved to be “more than 120°”. Whereas there had been some joint-line tenderness on 20 January 2009, that was no longer present.
According to Dr Wilcox, Mr Nand confirmed that the mechanism of injury was that he forcefully extended his flexed right knee in a straight line as he pushed a trolley up a ramp. Thus, the right knee was not subjected to a “rotationary” weight-bearing force. Dr Wilcox concluded that Mr Nand’s pre-existing symptomatic arthritic right knee was temporarily aggravated by the incident on 23 January 2009. However, the knee was clinically no worse and possibly even better than it was on 20 January 2009.
Dr Wilcox concluded that the tear of the medial meniscus did not occur on 23 January 2009, but was a pre-existing degenerative condition. Mr Nand’s arthritic disease could have been temporarily aggravated by the incident on 23 January 2009, but the aggravation had ceased. Mr Nand was only fit for relatively sedentary work not requiring heavy lifting, pushing, pulling, repetitive squatting or kneeling.
Dr Lau prepared a medicolegal report on 2 February 2010. He confirmed the worker’s complaint of bilateral knee pain on 13 August 2001, but added that the provisional diagnosis made on that occasion was of a viral illness with arthralgia (viral joint pain), although osteoarthritis was considered as a possible differential diagnosis. The worker returned one week later with just left knee pain, but did not proceed with a recommended x-ray. The doctor noted no further complaints of knee symptoms for the next seven years. In his view, the symptoms in 2001 did not contribute in any way to the current knee problem.
Dr Lau referred to the incident on 23 January 2009 as the “major injury” that “most likely … substantially contributed to the meniscal tear of his right knee”. It was after that injury that Mr Nand became totally incapacitated and was forced to stop working.

SUBMISSIONS, DISCUSSION AND FINDINGS

Mr Nand argued that the Arbitrator erred in that she:
(a)     wrongly found “great solace” in Dr Wilcox’s history of complaints when that history was inconsistent with Dr Davé’s history;
(b)     gave little weight to Mr Nand’s uncontested evidence in his statement of 28 August 2009 that he noticed knee symptoms in mid to late October 2008, which was the best evidence of an aggravation or exacerbation of the underlying osteoarthritis condition;
(c)     failed to acknowledge that Drs Lau and Davé were in the best position to comment on the development of the worker’s symptoms, not Dr Wilcox, and
(d)     overlooked the evidence from Drs Lau and Davé to the effect that the injury was work related.
He submitted that his evidence, together with the evidence from Drs Lau and Davé should have been preferred to that of Dr Wilcox who was only able to selectively address the worker’s complaints post injury.

Spotless submitted that:
(a)     the “nature and conditions” and “disease” allegations had been “tacked on” to the claim and there had never been any formal claim relating to “nature and conditions” and neither Mr Nand’s expert or lay evidence supported that claim;
(b)     the worker’s case, as disclosed in the claim form, was that his incapacity flowed from a frank injury on 23 January 2009;
(c)     the deemed date of injury of 23 January 2009 was inconsistent with the worker already complaining of extensive right knee problems, with no suggestion of any work related injury, only days before;
(d)     the allegation of an injury by way of “nature and conditions” was not made out and was contradictory to the worker’s assertion in his claim form that his knee was normal before 23 January 2009 and that he injured his knee on that day;
(e)     the worker’s statement was contradictory and disclosed back and knee pain about one year after commencing with Spotless. It also said that he was referred to Dr Davé after the injury on 23 January 2009;
(f)   Dr Lau’s notes recorded knee complains going back to 13 August 2001;
(g)     Dr Lau referred the worker to Dr Davé 11 days before the incident on 23 January 2009. The referral made no reference to any work related involvement;
(h)     Dr Davé recorded on 20 January 2009 (three days before the work incident) a three month history of increasing pain and swelling, but took no history of any work related involvement. He thought the problems might have been rheumatological;
(i)   Dr Keller took no history of any past knee injury;
(j)   the worker incorrectly told Dr Wilcox that, at the time of the injury on 23 January 2009, he was able to perform his normal duties and that any pain in his right knee was minor;
(k)     Dr Lau and Dr Davé were both uncertain as to diagnosis;
(l)   given that the Arbitrator found the worker’s evidence to be unreliable and inconsistent, she was correct to treat his evidence with caution;
(m)   Spotless adopts the Arbitrator’s detailed analysis (at [48] of her decision) of the worker’s allegations regarding the “nature and conditions” and disease;
(n)     the Arbitrator preferred the consistent opinions of Dr Wilcox and she was right to do so, and
(o)     in the alternative, the worker failed to discharge the onus of proof and failed to establish injury on 23 January 2009, or, given the extensive pre-existing pathology in the right knee, failed to establish that his employment was a substantial contributing factor to any injury (Fletcher International Exports Pty Ltd v Lottand anor [2009] NSWWCCPD 40 (Lott).
For the reasons set out below, it is my view that the Arbitrator failed to properly consider the evidence and failed to give proper weight to Mr Nand’s duties and the evidence from his treating general practitioner and orthopaedic surgeon.
The fact that the “nature and conditions” and disease allegations were late amendments to the claim is of little weight in the overall assessment of the claim. The submission that neither the expert nor the lay evidence supported the disease allegation was incorrect. Drs Lau and Davé both supported the worker’s claim in respect of the injury on 23 January 2009 and in respect of the aggravation of a disease as a result of the duties Mr Nand performed in the course of his employment with Spotless.
It is true that the worker’s claim form only referred to the injury on 23 January 2009 and that Mr Nand wrongly said in that document that his knee was normal before 23 January 2009. Clearly, it was not. That is not decisive and does not destroy his case, but it requires that I carefully assess the claim to determine its consistency and reliability having regard to all the evidence.
That Mr Nand did not refer to his work duties when he saw Dr Lau and Dr Davé before 23 January 2009 (something upon which the Arbitrator and Spotless placed great weight) is of limited relevance and is certainly not determinative. The uncontested evidence is that Mr Nand’s duties required him to regularly load and unload trolleys with 20 kg weights and to push and pull heavy trolleys up ramps. Significantly, neither Dr Lau nor Dr Davé took a history of any other activity that might have caused or contributed to Mr Nand’s knee symptoms. Though there was a reference to him having played table tennis up to 23 January 2009 and volleyball up to December 2008, there is no evidence that Mr Nand injured his knee while participating in either of those activities. At its highest, the absence of a history of his duties at his first attendances on Drs Lau and Davé suggests that Mr Nand did not know the cause of his symptoms in 2008 and early 2009. That is not of any great weight, especially in circumstances where it is not disputed that the duties were heavy and where his treating doctors, having the full history, accept a connection between his injury and his work.
The Arbitrator and Spotless referred to soccer as a possible reason for Mr Nand’s knee symptoms (Reasons at [38]). However, the reference to soccer was in Dr Lau’s notes in 2001. The full reference was “PH, soccer”. The note did not suggest that Mr Nand had suffered a knee injury while playing soccer. More importantly, Dr Lau explained in his February 2010 report that the provisional diagnosis for the 2001 symptoms was a viral illness with osteoarthritis considered as a differential diagnosis. He did not suggest that playing soccer had caused Mr Nand’s symptoms. Mr Nand made no further complaint of knee symptoms for the next seven years. In these circumstances, the knee symptoms in 2001 were of no relevance to the symptoms that developed in the course of Mr Nand’s employment with Spotless.
I do not accept the submission that counsel’s reference at the arbitration to a deemed date of injury of 23 January 2009 was inconsistent with Mr Nand having had knee problems days before. Whilst Mr Nand had knee symptoms before 23 January 2009, he was not incapacitated until he stopped work on 23 January 2009. Therefore, the appropriate deemed date of injury for the disease injury, assuming it is otherwise made out, is the date of incapacity, namely 23 January 2009 (s 16(1)(a)(i) of the Workers Compensation Act 1987 (the 1987 Act) and P & O Berkeley Challenge Pty Ltd v Alfonso & Ors [2000] NSWCA 214; 49 NSWLR 481).
I accept that Mr Nand has made out his allegation of an aggravation injury under s 4(b)(ii) of the 1987 Act due to the pushing, pulling and lifting he performed with Spotless. Those duties were undisputedly heavy, a fact noted by Dr Davé in his hand written report to Dr Lau on 6 February 2009 and by Dr Lau in his hand written report to QBE on 8 February 2009. Mr Nand’s evidence was that he developed knee pain a year after starting at Spotless and that he continued to work with difficulty, particularly with his right knee when he pushed laden trolleys up ramps. Though he did not mention his work duties to either Dr Lau or Dr Davé until a few days after 23 January 2009, I accept Mr Nand’s evidence about both the commencement and deterioration of his symptoms. His evidence is both logical and consistent with the nature of his duties and the development of his symptoms. Drs Lau and Davé both support the connection between his symptoms and his duties.
On the issue of whether Mr Nand reported his symptoms in 2008, I note that in his claim form dated 28 January 2009, the worker nominated Mr Reddy as a witness to the 23 January injury. The employer’s report of injury form on the same date confirmed that Mr Reddy was the worker’s supervisor and that Mr Nand reported the 23 January injury to him. In these circumstances, it is consistent that Mr Nand would also have mentioned his knee “problems” to Mr Reddy in 2008 and I accept his evidence that he did. I draw no adverse inference against Mr Nand from the failure to call evidence from Mr Reddy. He did not have to call him. Mr Reddy was clearly in Spotless’s “camp” and I would have expected it to call him if it disputed the worker’s allegations (Payne v Parker [1976] 1 NSWLR 191). However, I do not base my decision on the absence of evidence from Mr Reddy, but instead on an acceptance of Mr Nand’s evidence as to the nature of his duties, the increase in his symptoms in 2008 and early 2009, and the support from his treating doctors.
It is undisputed that Mr Nand has osteoarthritis in his right knee and that his symptoms increased in late 2008 and early 2009 while he remained at work performing heavy duties with Spotless. A disease is aggravated if the symptoms are made more severe or more grave for the individual (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626). Mr Nand’s symptoms were clearly made more severe as a result of his duties with Spotless. In these circumstances, the conclusion that Mr Nand suffered an injury in the nature of an aggravation of the disease of osteoarthritis in his right knee as a result of the heavy duties he performed with Spotless up to and including 23 January 2009 is compelling.
To the extent that Mr Nand’s statement suggested that he first saw Dr Davé after 23 January 2009, it was inaccurate. However, I do not regard that error as critical or decisive. What is significant is that Dr Davé provided the worker with unequivocal support on the essential issues of injury and causation.
The fact that Dr Keller took no history of “any past knee injury” is also of limited significance. If anything, in the light of the evidence of Mr Nand’s heavy duties with Spotless, the absence of such a history tends to support a connection between the employment with Spotless and the symptoms. Dr Keller was clearly referring to past accidents affecting the knee.
It is true that both Dr Lau and Dr Davé were initially uncertain as to the diagnosis. However, after obtaining a full history of Mr Nand’s duties, and with the benefit of the MRI scan, both doctors gave unequivocal support for the connection between the employment and the condition of Mr Nand’s right knee. Dr Lau expressed that support in his report to QBE on 8 February 2009 when he confirmed that Mr Nand’s employment had been a substantial contributing factor to the injury. He repeated that view in his report of 26 June 2009.

Dr Davé’s report of 7 September 2009 was equally supportive. It is not determinative that Dr Davé took no history of an injury when he first saw Mr Nand on 20 January 2009. At that time, there had been no event that a layperson with Mr Nand’s education and background would have described as an “injury”. There had been no accident or specific incident. That does not mean that Mr Nand’s heavy duties did not aggravate his condition. Dr Davé’s conclusion was logical and consistent with Mr Nand’s duties and the development of his symptoms. Once provided with the full history, he concluded that the meniscal tear was “attributable to the nature of Mr Nand’s duties and injury as described” and that Mr Nand’s work contributed to an aggravation of the osteoarthritis in Mr Nand’s knee. The injury described was the injury on 23 January 2009. In view of Mr Nand’s duties and the chronology of events, I accept Dr Davé’s evidence as to the aggravation injury and as to the injury on 23 January 2009.

On appeal, Spotless has adopted the Arbitrator’s analysis at paragraph 48 of her decision. This paragraph contains a number of inaccuracies. She said that “all the medical evidence” suggested that the incident on 23 January 2009 caused only a minor aggravation of the underlying disease. That was not correct. Dr Lau’s history was of a twisting incident that caused sharp pain resulting in Mr Nand being unable to walk properly, bend his knee, or lift heavy weights. Dr Davé also recorded a twisting injury on 23 January following which the knee was “swollen and painful” and that Mr Nand had only been able to do light duties since. In fact, Mr Nand stopped work after the injury on 23 January and only returned for a short period of light duties, which he could not continue. The Arbitrator presumably based her statement on Dr Wilcox’s evidence that by 8 November 2009 Mr Nand’s knee was “clinically now no worse and possibly even better than it was on 20 January 2009”. This conclusion ignored the fact that the injury on 23 January 2009 forced Mr Nand to stop work and caused sharp pain and extensive restrictions. It also ignored the fact that Mr Nand’s symptoms have never returned to their pre 2008 level. I do not accept that the injury on 23 January 2009 was a minor aggravation.
The Arbitrator also said at paragraph 48 that Mr Nand “went on light duties after seeing Dr Lau prior to his referral to Dr Davé”. There is no evidence to that effect. Dr Lau recorded that “since Mr Nand [was] still able to work” he decided to hold off having the MRI scan. As Dr Lau did not certify Mr Nand unfit until 27 January 2009, this statement must relate to the period before 23 January. I am satisfied that, though he may have had difficulties because of pain in his knee, Mr Nand performed his usual duties until his injury on 23 January 2009.
The Arbitrator also said that Mr Nand “continued to work for a couple of days after the injury until he saw Dr Lau”. That was incorrect. The evidence is that Mr Nand continued to perform his usual duties until the incident on 23 January 2009. His unchallenged evidence is that after he made his delivery on Friday 23 January 2009 he returned the trolley to the store, reported the injury to Mr Reddy and went home. As it was the Australia Day long weekend, he did not see Dr Lau until Tuesday 27 January. Dr Lau recorded that, at home, Mr Nand had been unable to perform his usual domestic duties. It is clear that Mr Nand did not work on the days immediately following 23 January 2009.
I agree with the Arbitrator that Mr Nand’s symptoms before and after 23 January 2009 were very similar. However, in view of my finding that Mr Nand suffered an aggravation injury as a result of his heavy duties with Spotless up to 23 January 2009, that fact does not undermine his case.
The Arbitrator erred in preferring Dr Wilcox’s evidence to the evidence of the treating doctors. First, Dr Wilcox’s opinion that the torn meniscus “might be purely coincidental” was inconsistent with the development of symptoms while performing heavy duties for Spotless. Therefore, Mr Nand’s torn meniscus was not coincidental.
Second, I do not accept Dr Wilcox’s history that the incident on 23 January 2009 did not involve any twisting. Consistent with the worker’s evidence, both Dr Lau and Dr Davé took a history of a twisting injury and I accept, contrary to Dr Wilcox’s history, that that is what occurred.
Third, Dr Wilcox’s opinion that horizontal tears are usually degenerative does not assist Spotless, as it does not deal with the relevance of Mr Nand’s heavy duties in the development of his symptoms. The doctor seems to have discounted the significance of Mr Nand’s duties because of an assumption that they would “not compare with those of coal miners, floor layers or carpet fitters”. That assumption was not justified. As I have already recorded, Mr Nand’s duties were heavy and involved a lot of pushing and pulling of a heavy trolley that weighed about 270 kg. Whether those duties compare to the duties of coal miners or floor layers is not to the point. I accept that Mr Nand’s symptoms developed while performing his duties and deteriorated until the injury on 23 January 2009.
Fourth, Dr Wilcox’s history that Mr Nand worked the rest of the day on 23 January 2009 was inaccurate. He stopped work, returned the trolley to the store, reported the incident and went home. I do not consider it significant that Mr Nand drove himself home in his automatic Camry.
Fifth, Dr Wilcox also placed undue weight on the fact that Mr Nand did not seek treatment for three or four days. Mr Nand did not seek treatment for a few days because it was a long weekend. Nothing turns on that fact. I accept the evidence that Mr Nand’s symptoms continued over the weekend.
Last, his opinion that the effect of the aggravation on 23 January 2009 ceased is contrary to Mr Nand’s evidence, which I accept, that his knee has remained painful, he is unable to lift heavy weights or drive long distances, and has difficulty ascending or descending stairs.
It follows that I do not accept Spotless’s alternative submission that Mr Nand has failed to discharge the onus of proof. Consistent with Dr Davé’s evidence, I find that Mr Nand tore the meniscus in his right knee as a result of his heavy duties and/or as a result of a twisting incident whilst pushing a heavy trolley in the course of his employment on 23 January 2009. Further or in the alternative, I also find that he suffered an aggravation of a disease in his right knee as a result of the performance of his heavy duties between December 2006 and 23 January 2009. The deemed date of injury is the date on which his incapacity commenced, namely 23 January 2009. In view of Mr Nand’s continuing symptoms, I am satisfied that the effect of the aggravation is continuing and that Mr Nand is incapacitated as a result.
I also accept the evidence from Drs Lau and Davé that employment was a substantial contributing factor to the injury. Lott provides the employer with no assistance. That case turned on its own facts. Mr Lott did not receive an injury while pushing 270 kg trolleys in the course of his employment. Employment only has to be a substantial contributing factor to an injury not the substantial contributing factor. The evidence comfortably satisfies the test in s 9A in respect of both the aggravation injury and the injury on 23 January 2009. Apart from soccer, which I have already discounted, there is no other suggested cause of Mr Nand’s injury and no evidence that he would have developed the same injury, or a similar injury, at the same stage of his life if he had not worked in heavy employment with Spotless.

CONCLUSION

Having conducted a review on the merits, I have concluded that, consistent with the evidence from Drs Lau and Davé, the true and correct position is that Mr Nand received an injury to his right knee in the nature of a torn meniscus as a result of his heavy duties and/or as a result of a twisting incident on 23 January 2009. Further or in the alternative, I also find that he received an injury in the nature of an aggravation of a disease in his right knee as a result of the heavy lifting, pushing and pulling involved in the performance of his duties from December 2006 up to and including 23 January 2009. The deemed date of injury is 23 January 2009. The effect of the aggravation injury is continuing.
Apart from Mr Nand asserting that he should receive an award for total incapacity, neither party has made any useful submissions on the award that should be made in the event that the appeal is successful. As the evidence is now one year out of date, it will be necessary for Mr Nand to obtain updated medical and lay evidence on the issue of incapacity. It is therefore necessary to remit the matter to another Arbitrator for Mr Nand’s entitlement to weekly compensation to be determined and the appropriate orders made. Those orders will include an order for the payment of reasonable hospital and medical expenses under s 60 of the 1987 Act.

DECISION

Paragraphs 1, 2, 3 and 4 of the Certificate of Determination of 15 June 2010 are revoked and the matter is remitted to a different Arbitrator for determination of the appellant worker’s entitlement to compensation and the making of appropriate orders. Paragraph 5 of the Certificate of Determination is confirmed.

COSTS

The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.

Bill Roche
Deputy President

28 September 2010

I, PENELOPE FLEMING, 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