Norman Talevski and K & S Freighters Pty Ltd
[2014] AATA 334
[2014] AATA 334
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1437; 2012/3325
Re
Norman Talevski
APPLICANT
And
K & S Freighters Pty Ltd
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Dr W Isles, MemberDate 29 May 2014 Place Sydney The Tribunal sets aside the decision of the Respondent and instead decides that the Respondent is liable for the injuries sustained by Mr Talevski to his right knee on or about 4 July 2011 and to his left elbow and lower back on 22 July 2011.
.......[Sgd].................................................................
Ms N Bell, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth Employees – whether applicant suffered injury to his right knee – whether applicant suffered injury to his left elbow and lower back – decision under review set aside
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr W Isles, Member29 May 2014
Norman Talevski commenced worked as a delivery driver with K & S Freighters Pty Ltd in June 2011. K & S has a commercial arrangement with NatGas Pty Ltd to provide them with suitably qualified and trained drivers to perform deliveries for NatGas of LPG cylinders to NatGas clients around Sydney.
Mr Talevski says that on 4 July 2011, he sustained an injury to his right knee while delivering cylinders to a café at the rear of Sydney Hospital. K & S denied liability for the injury.
He also says that on 22 July 2011, he sustained an injury to his left upper limb and lower back while delivering cylinders to the Marlborough Hotel in Newtown. K & S denied liability for this injury as well.
ISSUES
The issues for us to consider are:
(a)Did Mr Talevski suffer an injury to his right knee in the course of his employment?
(b)If so, was the injury a frank injury?
(c)If not, was the injury a disease or aggravation of a disease that was contributed to, to a significant degree, by his employment?
(d)Did Mr Talevski suffer a frank injury to his lower back and left upper limb in the course of his employment?
DID MR TALEVSKI SUFFER AN INJURY TO HIS RIGHT KNEE IN THE COURSE OF HIS EMPLOYMENT?
Mr Talevski described the following events taking place on 4 July 2011 which he acknowledged may be the incorrect date.
Mr Talevski said he was delivering LPG gas cylinders to the Courtyard Café located at the rear of Sydney Hospital. The cylinders are refills that are used for outdoor heaters in cafes to keep clients warm. Mr Talevski said he parked his truck in the loading bay at the rear of the hospital on Hospital Road.
Mr Talevski said he picked up the last two cylinders to be delivered off the back of the truck and put them on the ground. He started to carry the cylinders, one in each hand, and after taking a couple of steps, he felt his right knee give way. He said the feeling was unusual in that his knee “sort of buckled a little bit”. He said the feeling was like “pain inside” and relief at the same time, and likened it to when one cracks a knuckle. He put the cylinders down on the ground, put some weight on his knee and thought the feeling was a little uncomfortable. He said he was walking up and down on the spot, raising and bending his knee and leg to see what was happening and whether he could feel what was wrong with it.
He thought the pain disappeared for a bit and he carried on and took the cylinders to the café and then brought two empty cylinders from the café back to the truck. He said that while he was carrying the full cylinders for delivery and bringing back the empty ones he was not sure if he was okay but he knew something was wrong. He sat in the truck and did the invoice paper work while the door of the truck was open. He said when he shut the door, as soon as his knee rested on a little knob on the side of the door, the window button console, he felt in his knee the most intense pain he has ever felt – a “stabbing” pain. Mr Talevski said he carried on for the rest of his shift but walked with a limp and it was painful.
Mr Talevski said that when he reached the depot, he reported what happened to Nenand Ivanovski, Leading Hand Supervisor at the NatGas Mascot depot, who was waiting for him to return so that he could lock up for the day. He said he pointed to his knee and said that his knee was swollen. He said that Mr Ivanovski did not seem to be interested in what he had to say.
Mr Talevski said that on the morning after the incident, Shane Barrett, Operations Logistics Manager at the NatGas Mascot depot, enquired as to what was wrong with him as he was walking with a limp. Mr Talevski said he was surprised that Mr Ivanovski had not relayed the incident to Mr Barrett. Mr Talevski then lowered his trousers and showed Mr Barrett his right knee which was swollen. Mr Talevski said that Mr Ivanovski was present at the time he had this conversation with Mr Barrett. Mr Talevski also recalled that Mr Barrett was angry at him for having taped foam on the inside door of the truck to prevent pressure from the button console.
K & S contends that the events Mr Talevski described did not take place. In particular, K & S says there is no evidence of Mr Talevski having been at the Courtyard Café on 4 July 2011. Conversations Mr Talevski said he had with Shane Barrett and Nenand Ivanovski are denied by them. His claim that he was walking with a limp after the incident is also denied by Mr Barrett and Mr Ivanovski. No incident report was made at this time, although we note that one was made some time later. This, says K & S, damages Mr Talevski’s credibility to such an extent that his version of events on the day of his injury cannot be believed.
Mr Barrett’s evidence on these matters was that he had not had a conversation with Mr Talevski about the foam used to cushion Mr Talevski’s knee in the truck. He also stated that he could not recall a conversation with Mr Talevski about driving other trucks or a conversation in the office about the knee injury. Mr Barrett asserted that he never saw Mr Talevski limping.
In cross examination Mr Barrett said that he had not discussed the events surrounding Mr Talevski’s injuries for two years after they occurred until he was required to provide a statement for the purposes of this application. He admitted that his memory was imperfect but was adamant that he did not have any conversations with Mr Talevski about his knee injury. He was certain that they did not take place.
Mr Ivanovski gave evidence that he could not recall observing Mr Talevski limping and that Mr Talevski had never informed him in person that an injury had occurred at the Courtyard Café. Mr Ivanovski further denied witnessing a conversation between Mr Barrett and Mr Talevski in which the knee injury was made known to Mr Barrett.
In cross examination, Mr Ivanovski conceded that before the preparation of his statement he had discussed with Mr Barrett their recollections of July 2011. He admitted to having forgotten about the incident until having to recall it in order to make a statement. Upon further questioning as to the conversation with Mr Barrett and Mr Talevski, Mr Ivanovski acknowledged that he could not recall any such conversation but was not willing to say that it did not happen at all. Furthermore, he could not recall the date when he first became aware that Mr Talevski was using foam for his knee in the truck and could not be certain that it was not before the Marlborough Hotel incident.
Both Mr Ivanovski and Mr Barrett were adamant that Mr Talevski did not lower his trousers in the NatGas office on the day after the knee injury to show them his swollen knee. K & S contended that such an action would be memorable or "beyond forgetting" and urged on us the view that Mr Talevski was embellishing and that the incident did not occur. We agree that it would be memorable for Mr Talevski to have lowered his trousers in the NatGas office, but we cannot see what benefit there would be for Mr Talevski in making up such an incident. We are not entirely confident of the reliability of the two witness' memory. While we accept that this aspect of the evidence is unclear, we consider that any uncertainty is more likely due to the unreliable recollections of some or all involved rather than any deliberate attempt by Mr Talevski to mislead.
Mr Vincent Brown, supervisor at DTM Business Logistics (a wholly owned subsidiary of K & S), said in his statement, which he confirmed in his oral evidence, that at no time on 25 July 2011, the day on which he said Mr Barrett informed him of Mr Talevski’s incident on 22 July, did Mr Talevski mention his injury to his knee on or about 4 July 2011. His adamant recollection was discredited in cross examination by reference to the certificate of Dr Woolnough whose attendance on Mr Talevski Mr Brown was present for and whose certificate provides full details of Mr Talevski’s history of an injury to his knee on 4 July 2011 as told to Dr Woolnough by Mr Talevski, in Mr Brown’s presence, that day.
The records of K & S covering 4 July 2011 did not indicate that Mr Talevski delivered to the Courtyard Café on that day. K & S were asked to produce the run sheets for a longer period and went to considerable last minute efforts, including having a summons on NatGas to produce the sheets issued by the Tribunal. The run sheets were not forthcoming from NatGas. It followed that the only evidence of where Mr Talevski was on the relevant day or in the relevant period, or of which truck he was driving on the day of the second incident on 22 July 2011 was that of Mr Talevski. We note that he has, throughout this matter, referred to an approximate date. He has consistently allowed for the possibility that the injury may not have occurred on 4 July 2011 but on another day.
On balance, we prefer the evidence of Mr Talevski who, overall, has been a particularly detailed historian and a consistent and straightforward witness by comparison with Mr Barrett and Mr Ivanovski who appeared to take the view that if they could not recall a conversation or an observation of some years previously, then that conversation or observation must definitely not have occurred. Mr Talevski’s recollection was far more accurate than that of Mr Brown whose adamant evidence ran counter to contemporaneous medical records of which he was aware at the time.
Much was made of the remedy Mr Talevski sought to apply to his painful knee and the particular discomfort he experienced when in the cab of the small truck he had been using on the day of the incident. His evidence was that because he experienced intense pain when his bent right leg rested against the buttons console on the driver’s side door of the small truck, he brought in some foam from home and attached it to that part of the truck door.
There was dispute as to whether Mr Talevski had ever raised this issue with Mr Barrett, although Mr Ivanovski agreed that he, Mr Ivanovski, had a conversation with Mr Talevski about it. We prefer the evidence of Mr Talevski on this point as well.
In any event, the cause of this pain remains a medical mystery with none of the expert medical witnesses able to explain it or the relief Mr Talevski gained from the foam he attached to the door’s button console. Given our acceptance of Mr Talevski’s evidence of the injury incident, the matter is irrelevant. We reject the submission that the pain produced by the button console’s pressure on the lateral aspect of his knee makes the medial meniscus tear, and hence the injury occurring at the café on that day, unlikely.
We find that on or about 4 July 2011 Mr Talevski, in the course of delivering gas bottles to the Courtyard Café, sustained an injury to his right knee.
WAS THE INJURY A FRANK INJURY?
Dr Bentivoglio, orthopaedic surgeon, considered that Mr Talevski sustained an acute medial meniscal tear as a result of the incident on 4 July 2011. He considered it entirely likely that such a tear could occur while Mr Talevski was performing his delivery to the café on that day and found the symptoms described by Mr Talevski to be in keeping with medial meniscal tear.
Dr McGill, consultant rheumatologist, considered that Mr Talevski had pre-existing osteoarthritis in his medial compartment and degeneration of his medial meniscus. Dr McGill relied on the MRI investigation of September 2011 for this opinion and also noted that the pain Mr Talevski reported experiencing in the front of his knee was more likely to occur in a degenerative knee.
We note Dr Bentivoglio’s evidence that he viewed the arthroscopy photos of the surgery performed on Mr Talevski by Dr Molnar, his surgeon, which Dr Bentivoglio said these indicated an acute tear rather than a degenerative tear. He said one can distinguish between the two types of tears because a degenerate tear looks like the fine hair of a toothbrush, with hundreds of fragments of cartilage, whereas an acute tear shows just one large fragment that has “flapped off”. Dr Bentivoglio also considered that pain experienced in the front of the knee is not inconsistent with an acute medial meniscal tear.
We prefer the opinion of Dr Bentivoglio whose particular experience as an orthopaedic surgeon allows him to interpret the arthroscopy photos of Mr Talevski’s surgery and distinguish between an acute tendon tear and a degenerative tendon. We note that prior to the incident Mr Talevski had experienced no symptoms in his knee. Three months later an MRI showed a tear to the medial meniscus. We consider it most likely that Mr Talevski suffered the tear while delivering gas bottles to the café. We do not consider this is made any less likely by the unexplained relief he found in the use of foam on the button console of the truck door.
A tear is a change to the structure of the tendon. It follows that Mr Talevski suffered a frank injury to his knee. We are satisfied that the tear resulted in impairment as evidenced by the need for surgery in the following year.
DID MR TALEVSKI SUFFER A FRANK INJURY TO HIS LOWER BACK AND LEFT UPPER LIMB IN THE COURSE OF HIS EMPLOYMENT?
Mr Talevski described the following events on 22 July 2011.
Mr Talevski said he was at the Marlborough Hotel, securing the trolley on the truck’s tray after delivering gas cylinders. He said that he had climbed onto the truck as he could not reach the trolley from the ground because it had become wedged amongst the empty cylinders. Mr Talevski described climbing off again and as he was doing so, his right leg slipped from the gunner rail, which was wet from rain, and his right hand lost its grip. This caused Mr Talevski to lose his balance and he hung off the side of the truck, holding on with his left hand and colliding with the metal mesh gate which holds the cylinders in place as well as with the railing underneath. Mr Talevski said that he regained a grip on the mesh with his right hand and lowered himself to the ground. He recalled feeling intense pain straight away in and around his elbow and forearm. He also described pain in the buttock, hip and thigh areas which took the brunt of the impact. Mr Talevski said he also suffered severe lower back pain following the incident.
Mr Talevski said that he called Mr Ivanovski straight away to inform him of the accident but told him that he would try to finish his shift. He did so and recalled that after returning to the depot he had another conversation with Mr Ivanovski but no incident report was filled out. Mr Talevski said that this happened on a Friday and when he returned to work the following Monday, he also spoke to Mr Barrett about the injury. Mr Talevski recalled Mr Barrett then contacting Mr Brown, the DTM supervisor, who required Mr Talevski to report to his office in Fairfield so as to complete a report and seek medical attention. Dr Woolnough, the doctor who examined Mr Talevski, prescribed medication and recommended light duties.
Mr Talevski provided a consistent history on the trucks he drove. He said that after Mr Barrett confronted him about his use of the foam on the door, he never drove the smallest truck in the fleet again on Mr Barrett’s instructions. He was certain that on the day of the Marlborough Hotel incident he was not driving the smallest truck as he never went back to driving it. He said the bigger trucks he was driving were “flat-bed trucks” that were “palletised”, were longer and had gates.
In his evidence on this incident, Mr Barrett said he was “pretty sure” Mr Talevski had telephoned him after the Marlborough Hotel incident to inform him of the injury and that he had reported this to Mr Brown straight away.
Mr Barrett went on to say there was no doubt that Mr Talevski had telephoned him but on further questioning, he admitted that he could not recall whether he had reported this to Mr Brown immediately. Mr Barrett said he would not usually wait until Monday to call Mr Brown, but upon counsel informing him that this was the substance of Mr Brown’s recollection, became unsure about the sequence of events. Mr Barrett’s testimony alternated frequently between absolute certainty and marked uncertainty, often regarding the same events, and it is therefore difficult to come to a conclusion as to the credibility of his recollections.
Mr Ivanovski gave evidence that Mr Talevski had never informed him via telephone of an injury at the Marlborough Hotel. Mr Ivanovski also stated that he had only become aware of Mr Talevski’s injury at the Marlborough Hotel later on.
K & S again urged us to reject Mr Talevski’s evidence of what occurred, in part because, it contended, Mr Talevski’s evidence of what took place at the Courtyard Café should not be believed and this reflects poorly on his credibility generally. We have already accepted Mr Talevski’s evidence in relation to events at the Courtyard Café and have made no adverse findings as to his credibility in this regard.
In addition, K & S contended that Mr Talevski’s evidence that he was not, at the relevant time, driving the company’s small truck cannot be believed. The relevance of this, according to K & S, is that the dimensions and features of the small truck would make the mechanism of injury as alleged by Mr Talevski impossible. We note that one feature of the small truck that, as argued by K & S, would make this impossible (the existence of small steel upright segments along a tie rail) was never put to Mr Talevski.
In any event, Mr Talevski did not recall which truck he was driving on the day of the incident, except that it was not the small truck, given he had been told by Mr Barrett not to drive that truck, and K & S did not provide any records to indicate which truck he was driving on that day. The only evidence we have as to which truck Mr Talevski was driving is the evidence of Mr Talevski which has not been contraverted. We accept his evidence. Arguments about the mechanism of injury described by him consequently lose force.
In relation to Mr Talevski’s upper limb, Dr Bentivoglio said that Mr Talevski tore the common extensor origin of his left elbow. Dr Bentivoglio formed this opinion on the basis of investigations in February 2012 which showed a large tear of the common extensor origin. He said that anyone who had any jarring, jerking or sudden movement to the lateral side portion of their elbow, where the tendons are attached to the distal end of the humerus, could tear the tendons either from the bone itself or just short of where those tendons attach at the bone. He said that the tear would be felt immediately and that it would produce weakness and ongoing pain.
Dr Bentivoglio examined Mr Talevski in 2012 and at that time. Mr Talevski was still experiencing pain over the outside of his left elbow. He also reported symptoms of loss of strength of his elbow and pain over the outside of his elbow even at rest, despite having regained some of his movement. Dr Bentivoglio said that the history given by Mr Talevski was consistent with this kind of tear.
Dr McGill’s opinion was also that Mr Talevski had a tear to his common extensor origin. He also noted from the investigations an avulsion injury of the common flexor origin which he thought was probably due to an old injury. He agreed that the mechanism of injury described by Mr Talevski could cause a tear of the common extensor tendon.
Dr McGill was also of the view that the symptoms reported to Dr Woolnough by Mr Talevski a few days after the injury are consistent with common extensor tendon injury.
Given the broad agreement between Dr McGill and Dr Bentivoglio in relation to Mr Talevski’s left elbow, we find that Mr Talevski suffered a tear of the kind described. Because a tear amounts to a change in the structure and physiology of the body part, this constitutes a new and frank injury. We are satisfied that this injury produced impairment as evidenced by the need for treatment by Dr Woolnough who certified light duties.
In relation to Mr Talevski’s back, Dr Bentivoglio said that a CT scan of his lumbar spine, performed in February 2012, showed evidence of degenerative disease process at multiple levels. In his report of September 2012, Dr Bentivoglio said that Mr Talevski had aggravated pre-existing degenerative changes in his back in the incident on 22 July.
Dr McGill said that the injury that Mr Talevski sustained would cause an episode of pain in a person with the type of chronic degenerative back disease that was evident in Mr Talevski. He agreed with Dr Bentivoglio that the pain was not radicular in origin but rather was discogenic type pain. Dr McGill agreed that the symptoms of pain that Mr Talevski experienced, especially in relation to his buttock region, were consistent with somatic referred pain from the lower back which is common in people who have a degenerate back.
We note that Mr Talevski did not report back symptoms to Dr Woolnough when he saw him a few days after the incident. However, he has continued to refer to those symptoms as “buttock pain” and this may have given rise to some discrepancy.
Dr McGill considered that the effects of the incident on Mr Talevski’s back and the symptoms it produced would have ceased after a few weeks and his underlying degenerative back symptoms would continue to fluctuate.
On the basis of these expert opinions, we find that Mr Talevski suffered an aggravation of his underlying degenerative back condition in the incident on 22 July 2011. We also find that the effects of the aggravation were likely to have been temporary.
DECISION
The Tribunal sets aside the decision of the Respondent and instead decides that the Respondent is liable for the injuries sustained by Mr Talevski to his right knee on or about 4 July 2011 and to his left elbow and lower back on 22 July 2011.
I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member, Dr W Isles, Member. .......[Sgd].................................................................
Associate
Dated 29 May 2014
Date(s) of hearing 12, 15 August 2013 and 19 - 21 March 2014 Counsel for the Applicant Mr L Grey Solicitors for the Applicant Colin Daley Quinn Solicitors Counsel for the Respondent Mr M Snell Solicitors for the Respondent Clarke Legal
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