North Coast Area Health Service v Felstead
[2011] NSWWCCPD 51
•13 September 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 | ||||
| APPELLANT: | North Coast Area Health Service | ||||
| RESPONDENT: | Barry Felstead | ||||
| INSURER: | GIO General Ltd | ||||
| FILE NUMBER: | A1-8144/10 | ||||
| ARBITRATOR: | Mr J Phillips SC | ||||
| DATE OF ARBITRATOR’S DECISION: | 27 April 2011 | ||||
| DATE OF APPEAL HEARING | 5 September 2011 | ||||
| DATE OF APPEAL DECISION: | 13 September 2011 | ||||
| SUBJECT MATTER OF DECISION: | Section 10 of the Workers Compensation Act 1987; meaning of personal injury; failure to give adequate reasons | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| REPRESENTATION: | Appellant: | Mr J Harris, instructed by TurksLegal | |||
| Respondent: | Mr L Robison, instructed by Slater & Gordon | ||||
ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 27 April 2011 is revoked and the following orders made in its place: “1. Award for the respondent employer. 2. Each party is to pay his or its own costs. As to the costs of the respondent employer, there is a 20 per cent uplift for complexity.” Each party is to pay his or its own costs of the appeal. | ||||
BACKGROUND
The respondent worker, Barry Felstead, started work for the appellant employer, North Coast Area Health Service (the Health Service/employer), as a truck driver/kitchen hand in 1998. He usually worked three days per week truck driving and one day per week in the kitchen.
While riding his motor bike home from work on 19 August 2008, he collided with the passenger side of a car that turned in front of him. Neither the police nor the ambulance service were called and Mr Felstead rode his bike about 500 metres to his home. He then attended at the Lismore Base Hospital, where he was treated at the emergency department for an abrasion to the back of his lower left leg and tenderness in his left calf muscle, and allowed to go home.
After four days away from work, Mr Felstead returned to his pre-injury duties. In April 2009, he obtained a WorkCover certificate that certified him fit for suitable duties because of low back pain and left sciatica, which had been exacerbated by standing at work. The Health Service provided him with suitable duties and a rehabilitation program. He last worked for the Health Service on 21 August 2009 and his employment was terminated on 23 February 2010.
Mr Felstead claimed weekly compensation from 20 September 2009 to date and continuing on the basis of having received the following injuries in the motor vehicle accident on 19 August 2008:
“Aggravation/exacerbation of pre-existing lower disc bulges, left lower paresthetica (sciatica); aggravation of pre-existing left knee injury; trauma injuries to left leg, left calf and left side of body.”
Due to the poorly drafted s 74 notice, it was necessary for counsel for the employer, Mr Harris, to seek leave at the arbitration to amend the Health Service’s Reply to dispute whether Mr Felstead had suffered a personal injury within the meaning of s 10 of the Workers Compensation Act 1987 (the 1987 Act) to his lower back and/or left knee. In the course of his Statement of Reasons (Reasons), the Arbitrator, Mr J Phillips SC, allowed that amendment (at [66]). He identified the issue in dispute in the following terms (at [72]):
“The point is did Mr Felstead in any way damage or worsen the condition in his left knee and lower back to what he had previous to the journey?”
The Arbitrator determined that the claim that Mr Felstead injured his low back on 19 August 2008 had not been made out. However, he was satisfied that the worker had injured his left leg, including his left knee, in the accident, and he made an award in favour of the worker under s 40 of the 1987 Act in the sum of $100 per week from 20 September 2009 to date and continuing.
The Commission issued a Certificate of Determination on 27 April 2011 in the following terms:
“The Commission determines
1. The respondent is to pay the applicant pursuant to s 40 of the Worker’s Compensation Act 1987 from 20 September 2009 to date and continuing at [sic] sum of $100.00 per week, with credit for any payments made.
2. The respondent is to pay the applicant pursuant to s 60 of Worker’s Compensation Act 1987 medical expenses from 20 September 2009 for the applicant’s injury to his left knee.
3. The respondent is to pay the applicant’s costs as agreed or assessed.
4. I provide an uplift of 20 per cent for complexity to both parties for the costs payable.”
In an appeal lodged on 24 May 2011, the Health Service has challenged the Arbitrator’s finding that the worker injured his left knee on 19 August 2008. Mr Felstead has not challenged the Arbitrator’s finding with respect to the lower back. The parties agreed at the appeal hearing that the case turns on the finding relating to the left knee.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that the reference to “personal injury” in s 10 of the 1987 Act has the same meaning as the definition of “injury” in s 4 of that Act (personal injury);
(b) applying the incorrect test in ascertaining whether the worker had received a personal injury to his left knee (personal injury);
(c) failing to give proper reasons as to whether the worker injured his left knee in the motor vehicle accident on 19 August 2008 (left knee injury);
(d) finding that the worker suffered a personal injury to the left knee in the motor vehicle accident on 19 August 2008 (left knee injury), and
(e) relying on the report of Dr Campbell as supporting the proposition that any incapacity from mid-2009 was related to any personal injury to the left knee received in the August 2008 incident (incapacity).
THE EVIDENCE
In view of the issues raised on appeal, the following summary focuses mainly, but not exclusively, on Mr Felstead’s left knee symptoms.
Mr Felstead’s evidence is set out in a statement dated 16 September 2010. He said very little about the circumstances of the accident itself or the immediate effect it had on him. After the accident, he attended at Lismore Base Hospital with pain in the left side of his body. He said that, in particular, he had:
“severe swelling, soreness and bruising to my left leg, including my left knee, as well as tingling/burning sensations.”
He returned to work after four days off, but for several weeks his left leg was “swollen and bruised”. Even though the swelling and bruising disappeared, he said that the pain and soreness to the “left side” of his body, including the tingling/burning sensations, remained.
Mr Felstead returned to work, but said that the symptoms down the left side of his body became worse. The symptoms radiated from the left side of his lower back, down his left leg, including his left knee, past his knee to his toes. The pain intensified until such time that he again attended the surgery of Dr O’Brien and saw Dr Theodore. Even though he told Dr Theodore that it was a continuation of the motorcycle accident claim, Dr Theodore “forwarded the claim through as an Initial WorkCover Certificate” instead of a progress WorkCover certificate. As a result, the insurer created a new claim number (P5140548266) for an exacerbation to a low back injury. Mr Felstead conceded that he has had a longstanding back condition, but added that he had managed that condition throughout his 11 ½ years with the Health Service and had not needed to seek any medical advice or treatment. However, after the accident on 19 August 2008, he required medical advice and treatment.
Mr Felstead said that he had injured his left knee at work in November 2006. He said that liability was admitted and surgery followed. After his surgery the only treatment plan was for him to ride a bike, which he did at a local gym. Though he recovered from the surgery and returned to work, he continued to have a dull pain in his left knee, but did not need any further treatment. After the accident on 19 August 2008, he said he “was required to seek medical advice and treatment”.
Mr Felstead said that, when the insurer advised him in about August 2009 that it was closing his claim in respect of the motorcycle accident (claim number P512575K266), he tried to explain that all of his “injuries” were actually related to the motorcycle accident. His major concern was the injury to the left side of his body, down his left leg, including his left knee. He added:
“The pain and tingling/burning sensations that I am experiencing down the left side of my body, radiating from the left side of my lower back, down my left leg, including my left knee is the reason that I have had to seek medical advice and treatment.”
To understand Mr Felstead’s evidence, it is necessary to set out a detailed chronology of his left knee symptoms and his symptoms at the time of and following the accident on 19 August 2008.
In respect of the November 2006 left knee injury, Mr Felstead came under the care of Dr John Ashwell, orthopaedic surgeon, who performed a partial medial meniscectomy and chondrectomy to the left knee on 25 January 2007. The surgery improved his symptoms and he was able to return to his full pre-injury duties.
Dr Ashwell reported to the employer’s insurer, GIO General Limited (GIO), on 1 May 2007 that Mr Felstead twisted his left knee at work on 27 November 2006. He felt immediate pain on the inside of his knee joint, which gradually increased in severity. He then developed intermittent swelling of his knee and giving way. Mr Felstead recalled having had an arthroscopy on one of his knees 20 years earlier, but said that no significant internal derangement had been found. On examining the left knee on 9 January 2007, Dr Ashwell found mild effusion, but no muscle wasting. An MRI scan dated 22 December 2006 showed a tear of the posterior horn of the medial meniscus. At his last examination on 21 February 2007, Mr Felstead was planning to return to his pre-injury work of truck driving the following week.
Clinical notes from Lismore Base Hospital reveal that Mr Felstead presented at 4.08 pm on 19 August 2008. His presenting problem was described as “PAINFUL POSTERIOR LEFT KNEE AFTER RUNNING INTO A CAR”. Clinical notes prepared by Dr Adams state:
“47 y o ♂ presents with (L) lower leg pain following MVA.
HPI 15:15, Pt was riding motorcycle on public road
– Estimated speed 20 km/hr.
– Car turned across in front of Pt without seeing him.
– Pt crashed into moving vehicle front on.
– Nil LOC, Nil head injury.
– Able to stand.
– Initially (L) anterior shin pain.
– Now anterior/posterior shin pain.
– Also (R) lateral thigh numbness.
Meds Nil Allergies Nil PMH Nil”
Mr Felstead was noted to be alert and oriented. Examination of his left leg revealed the following:
“(L) leg → 5 cm diameter abrasion to shin of posterior, lower leg.
→ bony tenderness to mid tibia.
→ can weight-bear [with] discomfort.
→ swelling & tenderness to (L) calf muscle.
→ (L) foot → good cap refill
Dorsalis pedis ü
Imp Calf Muscle haematoma
→ no evidence of compartment syndrome
→ ? tibia #
Plan – x-ray (L) lower leg.
– if no # then DC home with crutches for LMO r/v
Rest, Ice, Compression bandage, Elevation.”
Mr Felstead had an x-ray of his left tibia and fibula at hospital on 19 August 2008. The x-ray report reads as follows:
“Left leg
No fractures or malalignment are noted within the left leg and limited assessment of the adjacent ankle and knee joints also demonstrate no gross abnormality.”
In addition to the clinical notes from Lismore Base Hospital, the attending doctor, Dr Adams, prepared a typed report addressed to Meridian Health on 19 August 2008 in the following terms:
“BARRY WILLIAM FELSTEAD presented to the emergency department at Lismore Base Hospital on 19 AUG 08 at 16:08. The presenting problem was PAINFUL POSTERIOR LEFT KNEE AFTER RUNNING INTO A CAR.
Barry presented to the ED today complaining of right calf and shin pain after a lowspeed collision between his motor bike and another vehicle today whilst on his way home from work.
Barry does not recall bumping hie [sic, his] left leg but noticed that his calf was painful and that there was a small abrasion. He was able to weight-bear on the leg, albeit with some pain.
In the ED Barry was tender to palpation over the calf and over the mecial [sic] aspect of the anterior part of his lower leg, proximally. There was some swelling, but good pulses, sensation and movement. Barry was seen by the orthopaedic VMO who did not feel that there was any fracture, and the Xray of the left [sic, leg] did not reveal any fracture.
I have discharged Barry home with advice to rest, elevate, and ice his leg, and to use simple analgesia. I have given him an initial WorkCover certificate and asked him to see you for further WorkCover matters.”
Dr Whyte, a doctor at Lismore Base Hospital, issued a WorkCover certificate for Mr Felstead on 19 August 2008 in which the diagnosis was “haematoma (L) calf + tibialis anterior”.
Mr Felstead saw his usual general practitioner, Dr Lorraine O’Brien, on 22 August 2008. Her clinical notes record:
“MVA 19/08/08 with injury to (L) calf (see letter from LB [indecipherable]) has been getting tingling in (R) thigh since accident. Has longstanding L.B. problem with no [indecipherable] still pain (L) shin & (L) calf – can weight bear [indecipherable]
O/e haematoma (L) calf with [indecipherable]”
In her report of 18 June 2010, Dr O’Brien confirmed that she saw the worker on 22 August 2008 and added:
“He had on-going pain in his left shin and calf with bruising in the area. He stated he had had longstanding back pain, with tingling in the thigh since the accident. Ultrasound of the area showed no significant abnormality. He had a worker’s compensation certificate issued and returned to work on 26/08/08.”
Mr Felstead was certified unfit for work on 26 August 2008 in a WorkCover certificate issued by Dr O’Brien on 22 August 2008. In that certificate, the diagnosis was “injury to (L) lower leg”. The management plan included a Doppler ultrasound of the left leg, which revealed no abnormality.
On 22 August 2008, Mr Felstead underwent a left leg ultrasound at the hands of Dr Dyer. Dr Dyer took a history of the accident in August 2008 “with haematoma [of the] left calf” and recorded a current complaint of tenderness along the left long saphenous vein. The purpose of the ultrasound was to exclude a suspected deep vein thrombosis. Dr Dyer reported:
“There is no thrombus demonstrated in the left main calf, popliteal, superficial femoral or common femoral veins. There is no left lower limb DVT. There is no thrombus in the left superficial venous system. There is no evidence of [a] Baker’s cyst. There is no evidence of an intramuscular haematoma.”
Dr O’Brien again saw the worker on 4 March 2009. Her notes are again difficult to read, but they clearly refer to the worker having difficulty standing and complaining of sciatica. They refer to the worker having squashed his right foot between two pallets on 24 February 2009. In her report of 18 June 2010, Dr O’Brien confirmed the attendance on 4 March 2009 and noted that prolonged standing was exacerbating the discomfort in the worker’s left thigh.
Mr Felstead again saw Dr O’Brien on 25 March 2009. The clinical notes reveal that he complained of a blocked nose and of left knee pain “2 yrs post surgery → Ashwell”.
On 1 April 2009, Mr Felstead saw Dr O’Brien complaining of low back pain and left sciatica for three months. The notes record “no trauma (recent)”.
Mr Felstead stopped work on 7 April 2009 and a “Notification of Injury/Illness” form completed on or about that date by Julie McFadden identified the injury as “low back pain” that had been “exacerbated by standing at work”. GIO accepted provisional liability in respect of this claim by letter dated 4 May 2009.
On 7 April 2009, Dr Theodore, a general practitioner at the same practice as Dr O’Brien, certified the worker fit for suitable duties only from 8 April until 15 April 2009. Under “how the injury occurred”, the doctor recorded “exacerbated by standing at work”. The date of injury was described as “throughout 2009”. The diagnosis was “low back pain (L) sciatica”.
Between 24 April 2009 and 23 July 2009, Dr O’Brien issued seven WorkCover medical certificates certifying Mr Felstead to be either unfit for work or fit only for suitable duties because of either low back pain with left sciatica, or because of an exacerbation of low back pain.
On 4 May 2009, Dr Theodore provided a handwritten response to a letter dated 30 April 2009 from GIO. In answer to the question, “State the circumstances surrounding the work incident”, Dr Theodore wrote:
“Complaint was of low back pain with (L) sciatic pain. There was no history of recent trauma although he had sustained (L) leg injury in MVA August ’08. Back pain had been present since then but was exacerbated by some of his work duties.”
Under “Diagnosis”, Dr Theodore recorded, “Chronic low back pain with (L) sciatica”.
On 13 May 2009, Jerone McMurray and David Hughes (exercise physiologists) prepared a worksite assessment report on behalf of Interact Injury Management Pty Ltd (Interact). Under “History of injury”, they recorded that Mr Felstead had been involved in a motorcycle accident in August 2008. He said that the accident “left him with muscle damage including a bruise to his left calf”. He said his “condition” had gradually worsened over the previous eight months and that, after a day of his kitchen hand duties, he suffered from “pain and discomfort in his lower back, radiating to his buttocks and left lateral thigh”. He also reported an occasional burning sensation in his left lateral thigh following standing for short periods of time, and frequent numbness in his left lateral thigh, radiating to the lateral lower leg. His condition had “worsened following the recent increase in his kitchen hand duties to two days per week”, instead of his previous one day per week. Mr Felstead reported having suffered from sciatica for many years.
On 22 June 2009, Neil Chapman, exercise physiologist, reported that the worker complained of constant symptoms throughout the lumbopelvic region, which included constant pain and weakness in the lower back. His symptoms were aggravated by bending, lifting, sitting and twisting. He also had constant symptoms that ranged from a numbing ache to a burning pain down his left leg. He had good general health, although he advised that he had (previously) sustained a right rotator cuff injury and had undergone meniscus repair surgery on his left knee. During an extensive functional capacity evaluation, which included a three-minute step test, Mr Felstead made no complaint about his left knee. He was observed to walk with a relatively normal gait, though with a slightly shortened stride length, which was contributed to by his overweight condition.
On 2 July 2009, Dr O’Brien referred Mr Felstead to Dr Robert Campbell, neurosurgeon. The reason for the referral was Mr Felstead’s long history of back pain, with radiation into his left thigh. His symptoms had been exacerbated since a motor vehicle accident in August 2008. He was on modified duties, but had particular difficulties working on kitchen duties, despite some workplace modifications. He continued to have burning pain in his left “thigh →foot”.
Dr Campbell reported to GIO on 3 August 2009. He recorded that the worker had a 25-year history of intermittent low back pain that had deteriorated since being involved in a motorbike accident in August 2008. The worker was concerned about “injuries to his calf” and was able to ride his motorbike a few blocks to his home. He was then taken to Lismore Base Hospital, where he was assessed and placed off work for four days. Dr Campbell added:
“From that time on however he has complained of progressive low back pain and left-sided leg symptoms. All these are worsened by prolonged standing and, although he was able to put up with it for eight months, a recent change in his duties requiring him to do more work as a kitchen hand and less work as a truck driver has led to his pain becoming intolerable.”
On examination, Mr Felstead indicated an area of painful numbness on the outer aspect of his left leg from his iliac spine down towards his knee. The pain occasionally crossed across his knee and travelled down the medial aspect of the left calf. He had diffuse pain across the lower back, extending to the left-hand side. Dr Campbell felt that there may well have been a large component of meralgia paresthetica to the worker’s symptoms, likely to be more associated with his obesity than with his motor vehicle accident.
Dr Campbell arranged for Mr Felstead to have an MRI scan of his thoracic and lumbar spine on 17 August 2009.
Mr Felstead saw Dr O’Brien again on 11 August 2009. In her report of 10 September 2009, Dr O’Brien said that during a consultation regarding a back injury, the worker “complained of increasing pain in the left knee interfering with weight bearing and walking”. She said he had had long-term knee discomfort but it had been exacerbated following his motor vehicle accident on 19 August 2008. She thought the condition of the left knee appeared to be arthritis, with symptoms exacerbated by the accident, “particularly impacting on the left calf and thigh”.
Dr O’Brien issued a WorkCover certificate on 11 August 2009 with a diagnosis of “meniscal tear to (L) knee – surgical repair. Now pain on walking”. She certified Mr Felstead to be fit for suitable duties from 8 August 2009. This certificate referred to the original claim number of P509028G266, which related to the injury Mr Felstead received in November 2006, but made no mention of the bike accident.
Also on 11 August 2009, Dr O’Brien referred Mr Felstead to Dr Ashwell. The referral note states:
“Barry had surgery to (L) knee in 2006, following work injury.
Recently knee has become painful again.
Thanks for reviewing him.”Dr Ashwell reviewed the worker on 27 August 2009 and reported to GIO on that date. He referred to the previous knee injury and surgery, which improved the worker’s symptoms, though he had ongoing discomfort in his left knee that was “exacerbated when he suffered a motorbike accident on his way home from work in August 2008”. Dr Ashwell added:
“He suffered bruising to his left calf area as well as an injury to his lower back region. He has had increasing discomfort in his left knee since that time with medial joint pain troubling him on most activities. He can now only stand for about 10 minutes and walk for 50 metres. He is presently on suitable duties. He apparently had an MRI study of his lumbar spine which showed disc lesions. He does have left sciatic symptoms.”
On examining the left knee, Dr Ashwell found there was a mild effusion with reduced quadricep tone of 1 cm. Left knee flexion was from 0 to 120 degrees. There was medial joint-line tenderness and a positive McMurray’s sign. Dr Ashwell felt that the worker had mild osteoarthritis with a possible re-tear of the medial meniscus. He recommended an MRI study and weight-bearing x-rays of the left knee. He concluded:
“His problem appears to be ongoing from his previous work injury on 27/11/06 with an exacerbation in a motorbike accident on his way home from work in August 2008. I have recommended he attend a gymnasium program for his knee and he is already on a gym program for his back. I will reassess him in five weeks.”
On 8 September 2009, Dr O’Brien issued a WorkCover certificate certifying Mr Felstead unfit between 7 and 11 September 2009 because of low back pain. She issued similar certificates on 11 and 15 September 2009.
On 2 October 2009, Mr Felstead completed a claim form in respect of the August 2008 accident. Under “what is your injury/condition, and which parts of your body are affected?” Mr Felstead wrote “left side of body”.
On 13 October 2009, Mr Felstead had an MRI and plain x-ray of his left knee. The MRI scan did not show any evidence of any further tear of the medial meniscus and the plain x-ray revealed a loss of medial compartment joint space consistent with osteoarthritis.
Dr Ashwell reported again on 15 October 2009. He noted that the worker had longstanding degenerative changes in his lumbar spine with previous left leg sciatica following an accident in a hay cart in 1984. He again referred to the left knee injury of November 2006 and said that the worker had “now developed osteoarthritis in his left knee”. He recorded that, since the motorbike accident in August 2008, Mr Felstead had had burning pain down the anterolateral aspect of his left thigh and pain around the left sacroiliac joint, as well as increased numbness on the front of his left shin and the top of his left foot.
On 9 November 2009, Dr Roland Loeve, injury management consultant, examined and reported on Mr Felstead on behalf of the employer. He recorded that the things that most troubled Mr Felstead were his left leg, which had burning sensations, numbness and tingling after his motorbike accident in August 2008. He also recorded the left medial meniscus tear at work in 2006 and that that “area also causes pain”. Mr Felstead believed that his problem was with his (left) leg, rather than his back.
Dr Loeve recorded that Mr Felstead had been working two days each week in driving and two days each week in kitchen duties for the previous two years. In April 2009, he asked to be placed back in the truck or on alternative duties because of his “continuing and increasing left leg pain”. In answer to a question of whether there was any current diagnosis relating to any medical condition/s suffered by Mr Felstead, Dr Loeve said:
“He claimed to have left leg pain with numbness and tingling and burning in the lateral thigh, which he attributes to his MVA in August 2008. His claim for a back injury which originated in April this year has been denied I believe. The condition remains unclear with opinions stating that the left thigh pain is related to his back whilst Mr Felstead believes it is not. He also has left knee pain with a previous meniscal injury on the medial side.”
Dr Loeve concluded that Mr Felstead was not fit to perform all of the duties in his job. Whilst Mr Felstead had no problems with driving, Dr Loeve was concerned that his manual handling, and ability to safely climb into and alight from his truck, with his previous knee injury, would place him at increased risk of aggravation of his back and knee injuries.
On 22 December 2009, Dr O’Brien issued a WorkCover certificate certifying Mr Felstead unfit from 5 October 2009 until 28 January 2010. On this occasion, the diagnosis was “injury to (L) thigh/(L) calf with injury & persistent burning pain & exacerbation of longstanding low back pain”.
On 16 February 2010, Dr O’Brien issued a further WorkCover certificate certifying Mr Felstead to be unfit from 28 January 2010 until 28 April 2010. On this occasion, the diagnosis was “low back pain with severe pain (L) thigh/(L) knee”. Dr O’Brien issued a similar certificate on 27 April 2010.
In a report of 16 March 2010, Dr O’Brien confirmed that she saw Mr Felstead on 22 August 2008 and that she took a history of the accident on 19 August 2008. Mr Felstead’s history of symptoms was as follows:
“Main complaint at that time was of pain in the left calf/shin and left thigh, slight tingling in right thigh and on-going low back pain”.
She confirmed that her clinical findings were of a haematoma of the left calf with tenderness extending into the left thigh. Under “diagnosis”, Dr O’Brien said it was uncertain whether the worker’s persistent pain in his left leg was a referred symptom from the lumbar spine or whether it was due to compression of the left lateral cutaneous nerve of the thigh. She added, “Barry’s current symptoms relate to his accident sustained on 19/08/08”.
At the request of GIO, Dr Blue, orthopaedic surgeon, examined the worker on 16 March 2010. In his report dated 17 March 2010, he said that clinical examination of the worker’s left knee was completely normal. There was no quadriceps wasting or any calf muscle wasting. There was no swelling or effusion. There was normal ligamentous stability and a negative McMurray’s test.
Dr Blue agreed with the opinion of Dr Campbell that the worker’s thigh pain “almost certainly relates to obesity induced meralgia paraesthetica”. As the clinical examination of the worker’s left hip and left knee were both normal, Dr Blue believed that the worker’s spinal and knee problems were “simply related to his obesity and a lesser extent the obesity induced lumbar spinal disc degeneration”. He felt that Mr Felstead had fully recovered from the soft tissue injuries sustained in the motorcycle accident on 19 August 2008 and that his continuing symptoms related to a combination of his poor physical condition and his obesity.
On 17 March 2010, Mr Felstead signed a recurrence form in which the original injury was stated to have occurred on 19 August 2008. He was asked to describe in detail the manner in which his symptoms recurred. It is recorded:
“Over time, left knee injury was deteriorating at work. Dr L O’Brien notes this deterioration in her w/cover certificate of 11.8.09. Then on 7.9.09 Barry injured his (R) foot at work when the pallet jack in the truck slipped on wet flooring jamming his (R) foot b/w 2 500 kg pallets. Barry had to use his (L) leg/knee extensively over the next period to compensate for injury to (R) foot + (L) knee injury was aggravated.”
The recurrence form also referred to Mr Felstead’s hours in the kitchen having increased after the motor vehicle accident. In answer to the question of whether any symptoms were present when the worker resumed duties after the original injury (on 19 August 2008), the word “yes” is circled. In describing those symptoms, the following is written:
“Pain and discomfort to left side of body. Worsening of numbness + burning sensations to (L) leg; increase in pain to lower back.”
The document recorded “yes” in answer to the question of whether the worker had ongoing pain or discomfort since the original injury.
Dr Hopcroft, general surgeon, examined and reported on Mr Felstead for medicolegal purposes on 17 March 2010. He took a history that, immediately after the collision, Mr Felstead suffered from low back pain and pain in his left leg, with extensive bruising of his left calf and swelling at that site. After four days off work, Mr Felstead returned to work, but struggled with ongoing pain in his lower back, radiating to his left buttock and down his left leg, for a period of eight months. Though Dr Hopcroft’s report seems to focus mainly on the worker’s low back symptoms, he recorded the following with respect to the left knee:
“With continuing pain in his left knee joint which seemed to have increased an MRI scan of his left knee and x-ray was performed by the orthopaedic specialist, Dr John Ashwell, on 13 October 2009 which described ‘no convincing evidence of re-tear medial meniscus. Diminutive posterior horn medial meniscus consistent with given history [of] prior medial meniscectomy. No other significant finding’.”
Dr Hopcroft noted the worker’s history of having had a left medial meniscectomy by Dr Ashwell in 2006 as a result of a work injury. Under “Current Status”, the doctor recorded that Mr Felstead continued to have significant low back pain radiating towards his left sacroiliac joint, with pain and numbness down his left leg, which had been present before the accident on 19 August 2008, but which was aggravated by it, with ongoing and significant left knee pain.
On examination, Mr Felstead had difficulty going into a loaded flexion crouch beyond 90 degrees of loaded knee flexion. He was noted to be “enormously obese”. While demonstrating a full range of movement of the left knee joint passively, Mr Felstead had tenderness along the medial joint-line, but all major ligaments were stable.
In her report of 18 June 2010, Dr O’Brien said:
“Injuries and current condition relating to worker’s compensation claim include:
·Longstanding lower back pain with degenerative changes in lumbar spine
·Persistent burning pain radiating down his left thigh – possible impression of lateral cutaneous nerve in left thigh
·Discomfort in left knee which has developed arthritis”
Mr Felstead’s solicitor forwarded Dr Blue’s report to Dr O’Brien for comment on 9 February 2011. Dr O’Brien was asked the following questions:
“1. Do you agree or disagree with Dr Blue that the only contributing factor to the applicant’s current inability to work is the applicant’s obesity?
2. Do you believe that the motorcycle accident of 19 August 2008 has contributed (whether or not in conjunction with any other factor(s)) to the applicant’s current inability to work?
3. If you believe that the accident was a contributing factor, to what extent do you say it contributes to the applicant’s current inability to work?
4. Do you believe that the accident remains a substantial contributing factor in terms of the applicants [sic] current ability to work?
5. Do you believe that the applicant has recovered from all injuries caused by the accident, or do you believe that he has any current symptoms derived (in whole or in part) from the accident?
6. How would you apportion the causes of the Worker’s injuries (as opposed to current symptoms)? And
7. Please comment on Dr Blue’s report generally.” (emphasis included in original)
Dr O’Brien responded on 11 February 2011 as follows:
“In response to your questions:
1. I do not agree with the assessment that the only contributing factor to Barry’s inability to work is his obesity. It is certainly a contributing factor to his general state of health and could act adversely in his recovery but obesity has been a long-term issue during his working life. Low back and leg pain are separate issues.
2-4. I believe that the motorcycle accident on the 19th of August 2008 has been a contributing factor to current inability to work, and that it has been and continues to be a substantial contributing factor in his inability to work.
5. Barry continues to have pain and paraesthesia down the lateral side of his left thigh which was not in evidence prior to his accident.
6 & 7.Dr Blue’s report is clear and objective. However, obesity has been a very longstanding health problem not previously interfering with his employment, nor has his low back pain. Now however he continues to experience left leg pain and paraesthesia even carrying out household duties. The possibility of compression of the left cutaneous nerve of the left thigh does not seem to have been fully resolved.”
SUBMISSIONS, DISCUSSION AND FINDINGS
Personal injury
The Arbitrator recorded that counsel for the worker, Mr Robison, submitted that “once it can be established that the journey incident caused or contributed to the applicant’s condition to any degree then one has satisfied the statutory tests set out in s 10” (Reasons at [38]). He submitted to the Arbitrator, as he has on appeal, that Yum Restaurants Australia Pty Ltd t/as Pizza Hut Restaurants v Watters [2010] NSWWCCPD 31 (Watters) was wrongly decided and that the principles in McGraw v Commonwealth Bank of Australia [2002] NSWCC 56; 24 NSWCCR 372 (McGraw) apply.
Counsel for the Health Service, Mr Harris, submitted that a reference to a personal injury in s 10 was not as wide as the definition of injury in s 4 of the 1987 Act. He relied on Watters for the proposition that there must be a change in a pathological condition in order to determine that there has been a personal injury arising out of a journey under s 10 of the 1987 Act. He submitted that there had been no such injury to either the worker’s low back or left knee.
In Watters, I said at [66]:
“Though the dividing line between a disease injury and a personal injury is no longer as distinct as it once was and a disease injury can, in certain circumstances, also be a personal injury, I am in general agreement with Armao that, for the purpose of s 10, the distinction between a disease injury and a personal injury is still valid. To succeed with a claim under s 10, a worker must have received a personal injury, that is, a sudden identifiable pathological change brought about by an internal or external event. That such a change also causes, or can be characterised as, an aggravation of a disease will not prevent it being a personal injury.”
I concluded at [75]–[76]:
“On my reading of Armao, his Honour expressly acknowledged, consistent with Zickar, that in order to establish a personal injury it was necessary to prove that a sudden identifiable pathological change had occurred. He did not suggest that an injury that aggravated a degenerative condition could not also be a personal injury, but considered whether, on the facts before him, the worker had received such a personal injury. He did not exclude the possibility that the worker had received a personal injury because the incident had also aggravated degenerative changes, but concluded on the evidence that there had been no personal injury.
To the extent that McGraw suggests that a disease injury, without a sudden identifiable pathological change, constitutes a personal injury, it is not consistent with Zickar. To establish a disease injury it is necessary that the disease be contracted in the course of the employment and to which the employment was a contributing factor (s 4(b)(i)), or, in the case of an aggravation injury, that the employment was a contributing factor to the aggravation (s 4(b)(ii)). While on a journey, a worker will not normally be in the course of his or her employment and employment will not be a contributing factor to a disease injury. Therefore, to succeed, Ms Watters has to establish that she received a personal injury, that is, a sudden identifiable pathological change.”
Without determining whether Watters was correctly decided, the Arbitrator said that he regarded “personal injury in the statutory context under the 1987 Act as being some damage to the body of the worker which is in or related to his or her employment” (Reasons at [69]). He then referred to the definition of injury in the Shorter Oxford Dictionary. He felt that the argument as to whether there was a difference between “injury” as defined in s 4 and “personal injury” as defined in s 10 “may be an argument which is chasing at shadows which do not exist” (Reasons at [70]). He felt that the “two relevant clauses between s 4 and s 10” are “circular and an injury includes a personal injury, and a personal injury includes an injury”. He concluded, at [71]:
“The reference in s 10(1) refers to ‘injury’ and by making that reference it refers back, in my opinion, to the definition of ‘injury’ found in s 4. In my view therefore, if one is injured on a journey claim, one is injured simpliciter, that is some damage to the body thus it also covers the second limb of sub-paragraph (b) of s 4 to include any aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration. That latter part of it meaning that if one is looking at a worker who has a pre-existing disease, such as a degenerative back, if the injury brought about by the journey worsens it, that is makes a change to the pathology of that person’s back, then that circumstance fits within the definition of ‘injury’.”
Subsections (1) and (1A) of s 10 state:
“(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
(1A) Subsection (1) does not apply if the personal injury is attributable to the serious and wilful misconduct of the worker.” (emphasis added)
The term “personal injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 10 refers to the receipt of a “personal injury”. The Arbitrator’s statement that “if one is injured on a journey claim, one is injured simpliciter” is, without defining an “injury simpliciter”, unhelpful. The question is whether the worker received a “personal injury” on a journey to which s 10 applies. It is not clear what the Arbitrator meant when he said:
“if one is injured on a journey claim, one is injured simpliciter, that is some damage to the body thus it also covers the second limb of sub-paragraph (b) of s 4 to include any aggravation, acceleration, exacerbation or deterioration of any disease, where employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration” (emphasis added).
A worker cannot receive a disease injury (either under s 4(b)(i) or under s 4(b)(ii)) while on a s 10 journey because, in the overwhelming majority of cases, the worker will not be in the course of his or her employment while on such a journey and, in those circumstances, employment cannot be a contributing factor to the contraction of a disease (s 4(b)(i)), or the aggravation of the disease (s 4(b)(ii)) (O’Neill v Lumbey (1987) 11 NSWLR 640 (O’Neill).
If the Arbitrator meant to say that a “personal injury” received on a s 10 journey which also aggravates or exacerbates a pre-existing disease is nonetheless a personal injury, that is consistent with Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 (Zickar), where it was held that the terms “personal injury” and “disease” are not mutually exclusive categories. A sudden identifiable physiological (pathological) change to the body brought about by an internal or external event can be a personal injury and the fact that the change is connected to an underlying disease process does not prevent the injury being a personal injury.
Mr Robison submitted that Watters was wrongly decided because, in referring to a personal injury as “a sudden identifiable pathological change” brought about by an internal or external event, it put a gloss on the words in s 4 and has used words not used by the High Court in Zickar. He submitted that it imported a conjunctive test to the determination of whether a worker had received a personal injury and “invented a test which is not known to the law”. I do not accept that submission.
In Zickar, Kirby J referred (at 344) to Accident Compensation Commission v McIntosh [1991] 2 VR 253, a case concerning a sudden rupture of blood vessels and consequent cerebral haemorrhage arising from a congenital weakness. His Honour noted that Murphy J had effectively repeated what Latham CJ and Dixon J had suggested in Hume Steel Ltd v Peart [1947] HCA 34; 75 CLR 242 and what Barwick CJ said in Favelle Mort Ltd v Murray [1976] HCA 13; 133 CLR 580, namely:
“that it would be remarkable if an amendment to the definition of ‘injury’ designed to include certain diseases in given circumstances (and thus to extend the cover of compensation) were to be construed as excluding the primary and ordinary meaning of the word ‘injury’ if it otherwise applied, to an internal, sudden and identifiable pathological change, such as the rupture of a cerebral artery.” (emphasis added)
In Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 (Petkoska) Gleeson CJ and Kirby J observed (at [39]), after referring to Zickar and the need to consider the precise evidence in each case, that:
“If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word.” (emphasis added)
It follows that the description of a personal injury as “a sudden identifiable pathological change” is consistent with the authorities. It suggests no more than that, to qualify as a personal injury, there must be some sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. Such a change or disturbance may be as simple as a bruise or a soft tissue strain. If the personal injury also aggravates a pre-existing disease, that does not mean it is no longer a personal injury.
Watters did not elevate the standard that must be reached by a worker to establish that he or she has received a personal injury. It applied accepted High Court authority. The decision of Petkoska makes it clear that, contrary to Mr Robison’s submission, the reference to “sudden or identifiable” does not create a “disjunctive test”. If an event occurs, such as the rupture of an artery, that will normally qualify as a personal injury even though it is the end result of a disease process. However, if the pathological change is not identifiable or ascertainable, it will obviously be difficult, if not impossible, to establish that the worker has received a personal injury. The reference to identifiable/ascertainable is merely a legal frame of reference to give contextual meaning and sense to “personal injury”.
Mr Robison also submitted that “[t]he previous distinction between diseases and personal injury has been abolished by the High Court”. That is not correct. While the majority in Zickar made it clear that the terms “personal injury” and “disease” are not mutually exclusive, Gleeson CJ and Kirby J observed (at [40]) in Petkoska:
“The foregoing approach does not rob the disease provisions of the Act of utility. They would apply in cases of a disease in the nature of dermatitis, lead poisoning, brucellosis and many others of a progressive type. The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an ‘injury’ in the primary sense. There is no reason to read the word ‘injury’ down because of the alternative and additional definition of compensable disease conditions. On the contrary, considerations of the language and structure of the Act, of legislative history and of the proper approach to construing such legislation reinforce the conclusion to which the majority came in Zickar.”
Mr Robison’s submission that “any personal injury becomes a compensable injury under the Act where it arises from a ‘journey claim’” is incorrect. Compensation is payable for the consequences that result from an injury, not for receiving an injury. In a claim for weekly compensation, compensation is not payable for the injury but for loss of power to earn caused by the injury, that is, for the (economic) incapacity for work that results from the injury (Williams v Metropolitan Coal Co Ltd [1948] HCA 8; 76 CLR 431 per Starke J at 444; Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; 61 CLR 120 at 129).
He also submitted that s 10 “is clearly intended to confirm s 9(2), which states that compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment”. That is incorrect. Section 10 creates an entitlement that would otherwise not exist because, as I stated above, a worker is usually not in the course of his or her employment while on a journey. Therefore, without s 10, a worker would have no right to compensation if injured on a journey.
Mr Robison also submitted that “s 10 makes it clear that journeys are within the course of employment” (emphasis added) and “[a]s such, the [worker’s] injuries fall within the primary definition of injury”. That is incorrect. Section 10 does not make journeys “within the course of employment”. It deems a “personal injury” received by a worker on a journey to which the section applies to be “an injury arising out of or in the course of employment”. If journeys were “within the course of employment” there would be no need for s 10(1D), which states that s 10(1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury.
It follows that, consistent with Zickar and Petkoska, a personal injury is a sudden identifiable pathological change. However, as will be seen below, regardless of the definition of personal injury adopted, I am not satisfied that Mr Felstead suffered any injury to his left knee in the bike accident. If he did, I am satisfied that he recovered from that injury well before he ceased work because of his back symptoms and that his incapacity has not resulted from any knee injury in the bike accident. Whether he has an entitlement to compensation because of an aggravation of his knee due to the standing required in his employment, or because of the development of osteoarthritis as a result of the 2006 injury, and subsequent surgery, does not arise in this case.
Left knee injury
I will deal first with the alleged failure to give reasons.
After setting out several preliminary and background matters, the Arbitrator summarised Mr Felstead’s evidence (at [12]–[17]) and the parties’ submissions (at [18]–[54]). He then ruled on the Health Service’s late application to dispute whether Mr Felstead had received a personal injury (at [55]–[66]). Having allowed the amendment, he dealt with the “personal injury” issue (at [68]–[71]). He then considered (at [72]–[88]) whether Mr Felstead had injured his low back in the accident and concluded (at [87]–[88]) that he had not. Mr Felstead has not challenged that finding.
The Arbitrator dealt with the alleged injury to the left knee at [89] and [90]. At [89], he noted the concession by Mr Harris that Mr Felstead had injured his left leg in the accident. He added that the report prepared by Dr Adams on 19 August 2008 recorded not only complaints in relation to bruising and swelling to the left leg and calf, but also a complaint of “pain to the left knee”. The Arbitrator also referred (at [72]) to Mr Felstead’s 2010 statement where he said he had pain to the left side of his body, in particular, severe swelling, soreness and bruising to his left leg, including his left knee. He concluded at [90]:
“True it is that Mr Felstead had had a prior work injury to his left leg in 2006. I am satisfied on the material I have seen that he injured his left leg, including his left knee in the motorcycle accident on a journey claim on 19 August 2008 and I so find.”
The Arbitrator then dealt with incapacity at [91]–[102] and medical expenses at [103].
Mr Harris submitted that the Arbitrator erred in failing to give proper reasons as to whether Mr Felstead injured his left knee in 2008. Mr Robison submitted that the Arbitrator’s “chain of reasoning is properly exposed” because he noted Mr Felstead’s statement as to the problems with his left leg, “the contemporaneous hospital notes etc and concluded that there was a degenerative change in this respect (paragraph 90 of the decision)”. He said it was incorrect to say, as the Health Service has submitted, that the Arbitrator only took into account the report of Dr Adams.
To succeed in having the decision set aside on this ground, the appellant must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not for a Presidential member on appeal to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis), McHugh JA (as his Honour then was) stated at 280:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.”
The resolution of disputes between medical experts requires a rational examination and analysis of the evidence and the issues (per Ipp JA in Sourlos v Luv A Coffee Lismore Pty Ltd [2007] NSWCA 203 at [25] citing Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127).
In Hume v Walton [2005] NSWCA 148, McColl JA said at [69]:
“The primary judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case, where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed).”
Her Honour’s comments in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 at [100] are also relevant:
“The primary judge must state generally and briefly the grounds which have led him or her to conclusions concerning disputed factual questions and to list the findings on the principal contested issues. Although it is not necessary that the judge refer to all the evidence, ‘[w]here nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged’: Soulemezis, at 259, per Kirby P.”
In my view, the Arbitrator failed to give adequate reasons for his conclusion that Mr Felstead injured his left knee on 19 August 2008. While he referred to the evidence and the submissions in detail, he failed to consider or determine the dispute about whether Mr Felstead injured his left knee on 19 August 2008, but merely concluded that he was satisfied that the worker had injured his left leg and left knee.
Mr Harris had conceded that the worker injured his left leg and Mr Robison has not based his claim on any general allegation of injury to the left leg, but on the alleged injury to the left knee. Therefore, the issue in dispute was whether Mr Felstead injured his left knee in the bike accident. Mr Robison confirmed at the oral hearing of the appeal that he based his case at arbitration on the alleged injury to Mr Felstead’s back and left knee. As he has not challenged the finding of no injury to the back, the appeal focused on whether Mr Felstead injured his left knee in the bike accident and, if so, whether his incapacity has resulted from that injury.
The Arbitrator based his conclusion on the report from Dr Adams and, presumably, Mr Felstead’s 2010 statement. However, with respect to the evidence from Dr Adams, the Arbitrator did not consider the significance of the doctor’s findings on examination. He did not engage with the conflicting evidence or attempt to resolve that conflict. With respect to Mr Felstead’s evidence, the Arbitrator did not compare that evidence with the inconsistent evidence in the contemporaneous medical histories and other documents.
An analysis of the evidence reveals that the note by Dr Adams that Mr Felstead presented with a “painful posterior left knee after running into a car” does not support a finding that Mr Felstead injured his left knee in the bike accident. The statement is completely inconsistent with the doctor’s detailed findings on examination. Those findings were of an abrasion to the skin of the posterior lower leg, bony tenderness to the mid tibia, and swelling and tenderness to the left calf. Those findings were not consistent with Mr Felstead having received an injury to his left knee, though he may well have had pain at the back of his knee. The investigations confirm that Mr Felstead’s symptoms were in his left lower leg, not his knee. Mr Felstead had an x-ray of his tibia and fibula, not of his knee. The ultrasound of the left leg was done because of the haematoma of the left calf and the suspected deep vein thrombosis, not because of knee symptoms.
The submission that the hospital notes were “presumably rushed” is not borne out by any evidence and is pure speculation. The hospital notes are in the same terms as the report prepared by Dr Adams on 19 August 2008. If his notes were rushed, he had the opportunity to correct any omissions when he prepared his report. He did not do so. Based on the hospital notes, the report from Dr Adams, and the nature of the investigations conducted on and immediately after 19 August 2008, the compelling conclusion is that Mr Felstead did not complain of a knee injury at the hospital.
Dr Whyte’s WorkCover certificate of 19 August 2008 also confirms, consistent with the findings made on examination by Dr Adams, that Mr Felstead injured his left calf and lower leg, not his left knee. This is consistent with Mr Felstead’s complaints to Dr O’Brien a few days later on 22 August 2008, when she recorded that he had injured his left calf and had pain in his left calf and shin. Her certificate of 22 August 2008 is consistent with an injury to the left lower leg, not the left knee. Dr O’Brien’s notes, which record a complaint of left calf and shin pain, are confirmed in her report of 16 March 2010.
While clinical notes should always be assessed with great care (Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]), in the present case the contemporaneous records from several different sources all point to the conclusion that Mr Felstead did not injure his knee in the bike accident. To the extent that Mr Felstead’s statement in 2010, years after the event, is inconsistent with the contemporaneous medical records, I do not accept it. Mr Robison made no application to call oral evidence from Mr Felstead to explain the clinical records.
The first record of Mr Felstead complaining about left knee symptoms after the bike accident is in Dr O’Brien’s notes for 25 March 2009, seven months after the accident. That entry does not assist Mr Felstead in this claim because it linked his pain to the knee surgery he had in 2007 because of the 2006 injury. It made no mention of the bike accident. That Dr O’Brien did not take a history of Mr Felstead injuring his knee in the bike accident is confirmed by her referral to Dr Ashwell on 11 August 2009, when she again referred to the 2006 knee injury and to Mr Felstead’s knee having “recently” become painful. She again made no mention of the bike accident.
Mr Felstead’s claim that he injured his knee in the bike accident and his symptoms got worse after his return to work is further undermined by the “Notification of Injury/Illness” form, which made no mention of knee symptoms but only referred to low back pain, which had been exacerbated by standing at work. This was consistent with the certificates issued by Dr O’Brien between April 2009 and 23 July 2009 that Mr Felstead was unfit because of low back pain and left sciatica.
Dr Theodore’s handwritten report of 4 May 2009 made no reference to Mr Felstead having injured his knee in the bike accident, but only to a left leg injury. That does not advance Mr Felstead’s case that he injured his left knee in the bike accident.
The report from Interact dated 13 May 2009 is also significant. After taking a detailed history of the bike accident, the report expressly (and correctly) noted that the accident left Mr Felstead with “muscle damage including a bruise to his left calf”. It then referred to his low back symptoms and symptoms into his left buttocks and left leg. When assessed on 22 June 2009, Mr Felstead underwent a three-minute step test.
In supplementary submissions filed on 7 September 2011, Mr Robison submitted that “a physical examination reveals that the worker suffered ‘painful numbness’ towards his knee”. This was a reference to Dr Campbell’s report dated 3 August 2009. Dr O’Brien referred Mr Felstead to Dr Campbell on 2 July 2009 because of his back pain and radiation to his left thigh. Dr Campbell recorded that Mr Felstead “indicated an area of painful numbness on the outer aspect of his left leg from his iliac spine down towards his knee”. The pain occasionally crossed across the knee and travelled down the medial aspect to the calf. This was not a history of an injury to the left knee or of symptoms in the knee. It was a reference to symptoms from Mr Felstead’s back. Dr Campbell recommended investigations for Mr Felstead’s back, but said nothing about his knee.
Mr Robison referred to Dr Ashwell’s report of 27 August 2009, where the doctor referred to a possible re-tear of the medial meniscus in the left knee and to an exacerbation in the bike accident. A subsequent MRI scan revealed no re-tear. Dr Ashwell’s reference to an exacerbation was depended on Mr Felstead’s history that he injured his knee in that accident. For the reasons explained, I do not accept that Mr Felstead injured his knee in that accident.
The following additional factors also support the conclusion that Mr Felstead did not injure his knee on 19 August 2008:
(a) Dr Campbell’s evidence of Mr Felstead suffering from progressive low back pain and left-sided symptoms, made worse by standing, is not consistent with Mr Felstead having injured his knee in the bike accident;
(b) when Dr O’Brien first referred to knee symptoms in her WorkCover certificate of 11 August 2009, she did so by reference to the 2006 injury;
(c) Mr Felstead’s claim form dated 2 October 2009 referred to the left side of his body and made no reference to the left knee having been injured in the bike accident;
(d) Dr Loeve’s history was of Mr Felstead being troubled by a burning sensation, numbness and tingling in his left leg after the bike accident. Though he referred to left knee pain, he linked that pain to the 2006 meniscal injury;
(e) Mr Felstead’s recurrence form dated 17 March 2010 made no reference to him having injured his knee in the bike accident, but referred to the knee having deteriorated over time at work. It made express reference to a right foot injury on 7 September 2009 that caused Mr Felstead to use his left leg/knee extensively to compensate for the right foot and that aggravated the knee, and
(f) though Dr Hopcroft referred to left knee symptoms having increased, and to the MRI dated 13 October 2009, he made no attempt to link those symptoms with the bike accident and took no history that the knee had been injured in that accident.
In light of the above evidence, Dr O’Brien’s statement in her report of 10 September 2009 that Mr Felstead’s knee discomfort had been exacerbated following the bike accident on 19 August 2009 is unpersuasive. The documentary evidence establishes that Mr Felstead did not complain of knee symptoms until well into 2009. Further, the fact that his knee symptoms increased in 2009 does not establish that the increase occurred because of the accident in August 2008. Dr O’Brien’s certificate of 11 August 2009 referred to the claim number for the 2006 injury. This strongly suggests that she did not consider there to be a link between Mr Felstead’s knee symptoms and the bike accident.
Mr Robison submitted that, because Dr O’Brien said that Mr Felstead’s suitable duties would be compatible with his knee injury, “clearly” she “considered there to be a relationship between incapacity and the knee injury”. I do not accept that submission. The only “knee injury” Dr O’Brien referred to in her report of 10 September 2009 was the injury in 2006. Her reference to an exacerbation of knee discomfort in the bike accident is inconsistent with the contemporaneous records and I do not accept it.
Dr Ashwell’s evidence in his report of 27 August 2009 is similarly undermined. He has assumed that Mr Felstead experienced an exacerbation in his left knee symptoms in the bike accident on 19 August 2008. The evidence does not support that assumption. Nor does it support an assumption that Mr Felstead suffered an injury to his knee on 19 August 2008. In any event, Dr Ashwell describes the left knee injury in the bike accident as no more than an “exacerbation” of the problem from the 2006 injury, without identifying the nature of that exacerbation. I do not accept that any exacerbation of the left knee symptoms occurred in the bike accident.
Mr Robison submitted that Mr Felstead’s history was that, since the bike accident, he has had pain in a number of parts of his left leg and “[w]hether or not he mentioned the left knee specifically, the knee was clearly injured, as evidenced by the objective evidence in the MRI scan”. The scan referred to is dated 13 October 2009. It reveals osteoarthritis in Mr Felstead’s left knee. How this demonstrates that Mr Felstead injured his left knee in the bike accident is not explained. There is no persuasive evidence that the osteoarthritis revealed in the 2009 MRI has been caused or exacerbated by the bike accident.
Mr Robison submitted that, in the circumstances of the bike accident involving the left leg, “there must have been an impact to the knee, even if slight” and that “a discretion is then enlivened as to the amount of weekly compensation that ought to be awarded”. This submission is incorrect. To recover compensation for an injury, it must be established that the incapacity has resulted from the alleged injury. That is a question of fact to be determined on the evidence. It is not a matter for the exercise of a discretion. A discretion arises at step four of the five steps involved in making an award under s 40 of the 1987 Act (Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526). If there is no injury, or if the effects of the injury have resolved, no discretion arises.
Mr Robison said that there were repeated references to the knee as well as to the left leg “generally” and one would not expect a worker to precisely identify each part of the problematic leg each time a history was given. Nevertheless, he submitted, the problems involving the left leg are apparent, for example, as evidenced by the narrowing of the medial compartment in the left knee. This submission misses the point. There is no doubt that Mr Felstead has osteoarthritis in his left knee. The question is whether he injured his knee in the bike accident. There is no doubt that, having regard to the totality of the evidence, and regardless of which definition of personal injury is applied, he did not.
Last, Mr Robison submitted that, if Mr Felstead had to establish a sudden identifiable pathological change, there is no requirement that that change be significant. He said that the accident caused:
“(a) a sudden change (one moment the worker was happily riding his motorcycle and the next moment an ambulance is called);
(b) an identifiable change (eg a re-tear of the medial meniscus or a narrowing of the medial compartment)”.
While I agree there is no requirement that a pathological change be significant, I do not accept the further points made. First, there is no evidence that an ambulance was called. Mr Felstead rode his bike home and then attended the hospital. Second, the reference in the authorities to a sudden change is a reference to a sudden pathological change in a worker’s body. Third, the investigations excluded a re-tear of the medial meniscus. Last, there is no persuasive evidence that the accident caused or exacerbated the narrowing of the medial compartment. Mr Robison’s submission seems to equate having an accident with the receipt of an injury. They are completely different concepts.
Along the same lines, at the oral hearing of the appeal, Mr Robison submitted that, because Mr Felstead was involved in a sudden accident, and was hospitalised, there must have been a change to the pathology in the left knee. I do not accept that submission. While the heading in the hospital notes referred to a painful posterior left knee after running into a car, the clinical findings on examination and the subsequent investigations and attendance on Dr O’Brien did not refer to the knee at all.
In light of the full history and, in particular, the contemporaneous records, which establish that Mr Felstead did not injure his knee on 19 August 2008, Dr O’Brien’s statement in her report of 16 March 2010 that Mr Felstead’s symptoms “relate to his accident on 19/08/08” is unpersuasive. Her report of 11 February 2011 is also unhelpful because, rather than dealing with whether Mr Felstead received an injury, she concluded that the bike accident had been and continued to be a substantial contributing factor to Mr Felstead’s inability to work. She made no specific mention of Mr Felstead’s knee. Dr O’Brien’s evidence does not assist in determining that issue.
If, contrary to my finding, Mr Felstead did injure his left knee in the bike accident (regardless of how “personal injury” is defined), Dr Blue’s conclusion that he recovered from the soft tissue injuries sustained was based on his findings on examination, which Dr O’Brien described as “clear and objective” and is persuasive. It is also consistent with the lack of complaint of knee symptoms after the accident and with Mr Felstead’s evidence that he continued his usual duties until he stopped work because of his back symptoms. Mr Robison’s submission that Dr Blue’s report should be rejected because of its “highly emotive and extreme language” was surprising and unhelpful. Given that Dr Hopcroft expressed no opinion on the issues before me, considering the history of the matter and Mr Felstead’s lack of complaint of knee symptoms until well into 2009, and Dr Blue’s findings on examination, I accept his opinion that Mr Felstead fully recovered from the effects of any knee injury he received in the bike accident.
Incapacity
Given my finding that Mr Felstead did not injure his left knee in the bike accident, or, if he did, he recovered from that injury, the question of incapacity resulting from any injury does not arise. However, given the appellant’s submissions and the Arbitrator’s finding, I make the following observations.
On the question of incapacity, the Arbitrator said (at [91]) that Mr Felstead’s “cessation of work related to symptoms both from his low back and left leg, including the left knee (see report of Dr Campbell … dated 3 August 2009)”. Dr Campbell’s examination and report dealt only with Mr Felstead’s back. The only possible reference to the knee was the reference to an area of painful numbness on the outer aspect of his left leg from the iliac spine towards the knee. He did not examine Mr Felstead’s knee or refer to it as a contributing cause to Mr Felstead’s incapacity. Dr Campbell’s evidence provided no support for a finding that Mr Felstead’s incapacity had resulted from his knee condition.
Other than Dr O’Brien’s certificate of 11 August 2009, which connects the knee symptoms to the 2006 injury, there is no persuasive evidence that Mr Felstead’s incapacity has resulted from the condition of his knee and the Arbitrator erred in relying on Dr Campbell’s report on this issue.
CONCLUSION
The correct test for determining if a worker has received a “personal injury” on a journey to which s 10 of the 1987 Act applies is to ask if the worker has suffered a sudden identifiable pathological change. That change may be as simple as a bruise or a strain. If the injury also aggravates a disease, that will not mean it is no longer a personal injury. The next question is whether the compensation claimed has resulted from the personal injury.
Mr Felstead has failed at the first hurdle. Regardless of the test for personal injury, he has not established that he injured his knee in the bike accident. In the alternative, if he did injure his knee at that time, he has not established that the effect of the injury is continuing or that his incapacity has resulted from that injury.
DECISION
The Arbitrator’s determination of 27 April 2011 is revoked and the following orders made in its place:
“1. Award for the respondent employer.
2. Each party is to pay his or its own costs. As to the costs of the respondent employer, there is a 20 per cent uplift for complexity.”
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
13 September 2011
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
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