Petrovska v Wiltari Pty Ltd
[2015] VMC 12
•28 APRIL 2015
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MELBOURNE
WORKCOVER DIVISION
Case No.E13266055
| ZORA PETROVSKA | Plaintiff |
| v | |
| WILTARI PTY LTD | Defendant |
---
MAGISTRATE: | S GARNETT |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 15, 16 & 17 APRIL 2015 |
DATE OF DECISION: | 28 APRIL 2015 |
CASE MAY BE CITED AS: | PETROVSKA v WILTARI PTY LTD |
REASONS FOR DECISION
---
Catchwords: S 109 Rejection of claim: alleged injury to right knee on 2 April 2014 – tear of the right medial meniscus – whether the injury arose out of or in the course of employment and/or during the journey on way home from work that evening. Credit of worker and lay witnesses in question – contemporaneous medical records do not support worker’s assertions – Claim dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms Lang | Zaparas Lawyers |
| For the Defendant | Ms Myers | Hall & Wilcox |
HIS HONOUR:
1 Mrs Petrovska is aged 63 years and alleges that she sustained injury to her right knee at approximately 8:40 p.m. on Wednesday 2 April 2014, in the course of her employment with Wiltari Pty Ltd, where she was employed as a part-time cleaner. In particular, she alleges that she sustained her injury when bending to lock an office door at 459 Collins Street Melbourne and that her injury got worse when travelling on a bus on her journey home that evening.
2 Mrs Petrovska lodged a WorkCover claim on 5 May 2014, stating that she sustained an injury to her right knee at 8.40 p.m. when locking a door in the office building which she had finished cleaning and then at 9.10 p.m. when she was travelling home on a bus. The claim was rejected by the defendant on 5 June 2014, primarily on the grounds that her injury did not arise out of or in the course of her employment and that the incident alleged was not a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
3 The court heard evidence from Mrs Petrovska, her sister, Mrs Bosevska who worked with her and her husband, Mr Petrovski who collected her from the train station on the evening of 2 April 2014. The evidence of each was obtained through the assistance of a Macedonian interpreter. Dr Baglar, treating general practitioner also gave viva voce evidence. The defendant called evidence from Ms Zeneli who is employed by the defendant as a cleaning supervisor. The parties tendered numerous documents, medical records and reports.
4 The issue to determine is whether the incident occurred at 8.40 p.m. on 2 April 2014 as alleged.
5 Mrs Petrovska gave evidence that she has worked as a cleaner for various employers since 1989 at 459 Collins Street Melbourne. She said that she commenced employment with the defendant in March 2007, four hours per day from 5 p.m. to 9 p.m., Monday to Friday of each week. She said that her normal practice was to commence employment at approximately 4:50 p.m. so that she could leave the premises by 8:50 p.m. in order to catch public transport home. She gave evidence that the defendant would employ 12 to 13 cleaners at 459 Collins Street and she would be required to clean four floors over her four-hour shift. She told the court that she would normally work with her sister, Mara. Her duties involved cleaning, emptying bins, dusting and vacuuming.
6 Mrs Petrovska gave evidence that at approximately 8:40 p.m. on Wednesday 2 April 2014, she was locking the door of an office on the 15th floor and in order to do so she bent forward as the lock was situated at the bottom of the door and as she straightened up, “her right knee twisted she felt pain”. She said that at the time she was working on her own. She gave evidence that this was near the end of her shift so she proceeded to take the trolley to the lift to go down to the ground floor to the cleaners room. She said she left the trolley in the appropriate area and collected her belongings. She also said that the other cleaners had gone home except for her sister. Mrs Petrovska gave evidence that her sister asked her, “what happened to you?” and she told her that she had injured her knee when locking the door. When asked during examination in chief as to what prompted her sister to ask that question, Mrs Petrovska said that her sister had asked her why she was late and she responded by telling her that she was in pain, could not walk on her leg properly, could not put a lot of pressure on her leg and was limping.
7 Mrs Petrovska gave evidence that she and her sister walked to the tram stop outside the building and caught a tram to Parliament Station in order to catch a train home. She said that the trains were cancelled and they had to wait for a bus to collect them and transport them to Clifton Hill Railway Station where they caught a train to South Morang Railway Station and her husband picked her up. She gave evidence that her sister helped her from the office building to the tram stop as she was limping and in pain. She said that walking caused the pain to get stronger and she experienced more pain when she put more pressure on her leg getting onto the bus. She told the court that when her husband picked her up at the railway station she told him straight away that she had injured her knee and it was painful and her knee was swollen.
8 Mrs Petrovska told the court that she was unable to attend work on Thursday 3 April or Friday 4 April because of the pain she was experiencing and she was struggling to walk. She said that she rang her supervisor, Ms Zeneli, on Thursday morning to inform her that she was unable to work that afternoon because she had a painful and swollen knee. She told the court that she told her supervisor that she injured her knee when she was going home but said that she did not tell her “properly” and told the supervisor that she would tell her what happened when she came in to work.
9 Mrs Petrovska gave evidence that she attended Dr Baglar, her family doctor of many years, on 3 April and told him that she had twisted her knee after getting up after locking a door at work the previous day. She told the court that she converses with Dr Baglar in English. She said that Dr Baglar gave her a certificate to be off work for two days which she gave to her sister to give to the supervisor. She told the court that over the weekend of 5 and 6 April, her knee was so painful that she had to attend the Northern Hospital with her daughter on Saturday 5 April, was prescribed tablets and x-rays were performed. She told the court that she informed the hospital staff that the injury happened at work and that her knee was “more painful when she caught the bus and that she may have twisted it again”. She told the court that she conversed with the hospital staff in English. Mrs Petrovska said that she did not work on Monday 7 April and attended Dr Baglar on that date who referred her to Mr Owen, orthopaedic surgeon, who she saw, accompanied by her husband, on Wednesday 9 April. She told the court that Mr Owen arranged for her to undergo an MRI scan which was performed on 13 April. She said that she also told Mr Owen what happened, that being, that she injured her knee when straightening up after locking a door on the 15th floor. She told the court that Mr Owen provided her with a certificate on 14 April that she was unfit for work until 18 April. She said that she attended work on 14 April (subsequent evidence indicates she may have attended on 16 April) and gave the certificate to Ms Zeneli and told her that she injured her knee “at work on the 15th floor when locking the door at 8.40 p.m. and as she was going home it was more painful”. When questioned as to why she did not provide the supervisor with details of her injury earlier, she said it was because, “she gets easily upset and it is better if I tell her face to face”. Mrs Petrovska told the court that after she told Ms Zeneli what happened she was advised to report the injury by ringing the CARE Hotline number which she believes she did on 28 or 29 April. (subsequent evidence indicates the call was made on 29 April). She told the court that she recalls informing Kate on the hotline number that she had twisted her leg at work and it had become more painful on her way home and was told that they would send forms to her for her to complete.
10 Mrs Petrovska gave evidence that she returned to work on 22 April even though her knee was still painful. She said that she worked with her sister who provided her with assistance at the direction of Ms Zeneli. She told the court that after she had called the hotline number she was informed on 29 April that she was not to attend work until she was 100% fit to do so. Mrs Petrovska gave evidence that she has not been able to work since although she would like to try but the defendant has not invited her to do so. She said that her daughter completed the WorkCover claim form dated 5 May 2014 on her behalf on the information she gave to her. She told the court that she underwent arthroscopic surgery performed by Mr Owen on 29 August 2014. She said that she experiences constant pain in her right knee, takes Celebrex medication, exercises and walks as recommended by her physiotherapist.
11 In cross-examination, Mrs Petrovska was asked whether she had any problems with her right knee prior to 2 April 2014. She told the court that she may have experienced some aches and pains but could not remember. She then said; “maybe one morning both knees were hurting and I saw a doctor, I can’t remember exactly”. It was then suggested to her that she did see her doctor in 2014 and prior to 3 April and she responded by telling the court that, “if the doctor writes it was the same year, it must be so”. When it was suggested that she had 3 days off work following her attendance on Dr Baglar on 3 March 2014 for knee pain she said that she could not recall. Mrs Petrovska told the court that she was involved in a car accident in 1997 where she injured her sternum but could not recall sustaining any other injuries at any other time. Later she recalled that she previously had an accepted workers compensation claim for a thumb injury. She confirmed that she received treatment for her motor vehicle accident injuries at the Austin Hospital but the only doctor she could recall attending between 2000 and 2014 was Dr Baglar. She denied seeing other doctors for other conditions apart from women’s problems. Mrs Petrovska told the court that as at the date of injury she was taking medication for high blood pressure, Nurofen for headaches, cholesterol medication and Nexium for heartburn. Mrs Petrovska could not recall if she had been prescribed Celebrex prior to 2 April but was adamant she never consumed it prior to that date. She did recall experiencing past heel pain for which she sought treatment from Dr Baglar and Dr Trinca at the Barbara Walker Centre for pain management at St Vincent’s Hospital. She told the court that she attended the clinic every six months and that she may have attended the clinic after suffering injuries in the motor vehicle accident. She told the court that she recovered from the injuries sustained in the motor vehicle accident by 2000. Mrs Petrovska denied complaining of feet pain radiating to her knees before 2 April 2014 and denied that the condition caused her to limp but eventually agreed that she may have previously limped when she was informed of an entry made by Dr Trinca in September 2013 that she had observed Mrs Petrovska with a “significant limp”
12 Mrs Petrovska agreed that she had been shown medical records indicating that she had complained of knee problems prior to 2 April 2014. When questioned as to whether she complained of knee pain to her doctor on 3 March 2014, she said that it was possible she did but it did not require time off work. When told that she was prescribed Celebrex medication at that time, she informed the court that she did not consume it. Ultimately, when presented with a copy of her Leave Application Form dated and signed by her on 6 March, requesting 3 days off work, she agreed that she had that time off because of knee pain. Mrs Petrovska also agreed that she attended Dr Trinca on the morning of 2 April complaining of a recent exacerbation of chest pain and back pain. She also agreed that she informed Dr Trinca that she had increased her use of Celebrex and Nurofen Plus and was taking tramadol. She then said that she was prescribed Celebrex but did not take it and that Dr Trinca’s notation was wrong. Mrs Petrovska agreed that notices were displayed in the cleaners room at 459 Collins Street as to the procedure involved in reporting an injury to the hotline number. She also agreed that the number of the hotline was displayed on the keys given to cleaners to enter offices in that building. She confirmed that the cleaners were required to sign on and off when commencing and finishing work each day.
13 Mrs Petrovska gave evidence during cross-examination that she would normally clean the floor levels in the same order with level 15 being the last floor that she cleaned. She said that she had to clean two offices on level 15 and in order to gain access to the office she would use a swipe card and key. She confirmed the evidence she gave during examination in chief that she initially hurt her right knee when she twisted it when bending to lock the office door and further twisted it when she was getting onto a bus at Parliament Station. She said that it was already painful before she got on the bus but “thought” she may have twisted it again.
14 Mrs Petrovska also confirmed during cross-examination that when she attended Dr Baglar on 3 April, she was accompanied by her husband. She was adamant that she told her doctor that she injured her right knee when she was locking the office door at work and was also adamant that she provided this history to the doctors when she attended the Northern Hospital with her daughter on 5 April. She confirmed that her husband accompanied her when she first saw Mr Owen on 9 April 2014 and that she also told him that she first injured her knee when she was locking the office door and then on her way home. She disputed that she did not tell him that her injury was work related until after she had surgery on 29 August 2014 and could not recall telling Mr Owen that she had no past history of knee complaints. Mrs Petrovska denied that she did not report the injury to her supervisor prior to her ringing the hotline on 29 April. She told the court that she reported the injury to her supervisor by phone on 3 April when she told her she twisted her knee and that she also reported the injury to her in person on 14 April. When it was suggested to her that she actually informed her supervisor that she had twisted her knee on the way home from work, she replied by stating that she said that she had “twisted her knee”. Mrs Petrovska was then asked to explain why she had informed the investigator who had obtained a signed statement from her on 20 May 2014, that she had explained everything to her supervisor for the first time on 22 April 2014. Once again she informed the court that she recalled informing her supervisor of what occurred on 14 April. Ultimately, she agreed that she did not tell her supervisor during the telephone call with her on 3 April because she; “was in pain and not thinking” as she had told the investigator on 20 May but added that she may have “misunderstood” what the investigator was asking. Mrs Petrovska was also challenged on her evidence that her supervisor arranged for her sister to work with her when she returned to work on 22 April. She informed the court that her supervisor told her sister to help her because of the knee pain she was experiencing. When questioned as to why she did not ring the hotline until 29 April to report her injury, she told the court that she thought that she would be “all right”. When it was suggested to her that she could have called the hotline on 22 April when she returned to work she responded by informing the court that she did not have the telephone number although agreed the number was displayed on a notice in the cleaners room and on the key ring she used to access the offices. She conceded that she was aware of her obligation to report injuries to the hotline as the requirement was displayed on notices in the cleaners room and was also mentioned at regular toolbox meetings. She agreed that she was angry when she was told on 29 April that she could not work until she was well, agreed that she wanted to work on that day and also agreed that her supervisor did ask her on that day as to why she did not report to her that she had sustained a work injury. Mrs Petrovska gave evidence that she did not do so because her supervisor “gets easily upset”, and that she did not tell Jason, the Manager about it, because “she was scared of losing her job”.
15 Mrs Petrovska could not recall denying a past history of knee complaints when she saw Dr Davison on behalf of the defendant on 29 May 2014 and Mr Kossmann who she saw on behalf of her lawyers on 6 February 2015. Mrs Petrovska was also taken to various paragraphs in her statement to the investigator and agreed that she told the investigator that; “I have never previously lodged a Workcover claim”; “I have never suffered from a similar injury or condition before”: “I called Ifeta (the supervisor on 3 April) when I got back from this appointment and told her that I had hurt my knee. I think I told her it was getting on the bus and I don’t think I told her about the door. I was in pain and not thinking. I told Ifeta that I had twisted my knee”; and, “On 22 April 2014 I went to work as normal for my shift. I managed to hobble to work and do my shift slowly. Ifeta was there and I then explained everything that had happened. I then told her about the twisting my knee locking the door and the locking of my knee when I went to catch the bus. I worked the 22nd, 23rd and 24th that week”. Although agreeing that the statement was read to her before she signed it she told the court; “how much I understood, I do not know”. She also told the court that when she made the statement she was alone and did not have the assistance of an interpreter. In concluding cross examination, it was suggested to Mrs Petrovska that she told her supervisor that the injury occurred on her way home because that’s what actually happened. She responded by saying; “it happened that night, at work and then getting on the bus”. When it was also suggested to her that she told the Emergency Department at the Northern Hospital that the injury occurred whilst walking because that is what happened, she responded by saying; “I told everyone it happened at work and on my way home”.
16 Mrs Bosevska, gave evidence that she has been employed as a cleaner working at 459 Collins Street for a period of 25 years. She told the court that she worked with her sister on 2 April 2014 and that they travel to and from work together by train. She said that when she finished work she saw her sister downstairs in the cleaning room at approximately 8:50 p.m. and her sister told her that she had hurt her knee on level 15 when locking the office door. She confirmed that the locks are placed at the bottom of the door and you have to get on your knees to lock them. Mrs Bosevska told the court that she noticed her sister was limping and that when they finished work she helped her get onto the tram outside the building and was assisting her by holding her hand because she was complaining of right knee pain. She confirmed that they caught the tram along Collins Street to Parliament Station but then had to catch a bus to go to Clifton Hill Railway Station as no trains were running from Parliament Station. She said she helped her sister get onto the bus. She said that once they arrived at Clifton Hill Railway Station they caught the train to South Morang Railway Station where her sister was met by her husband. Mrs Bosevska said that she recalled working with her sister when she returned to work for a couple of days and was told to do so by the supervisor.
17 In cross-examination, Mrs Bosevska agreed that she and her sister have a close relationship, live close by and socialise on occasions. She told the court that she recalled her sister being involved in a motor vehicle accident many years ago but was unaware of the injuries she sustained and was also unaware as to whether she was still receiving medical treatment as a result of that accident. She told the court that she was unaware as to whether her sister had sustained previous injuries to her knee or whether she had any other medical problems requiring treatment. She gave evidence that she found out that her sister was not at work on 3 April when she was told by the supervisor and agreed that she subsequently took a certificate of incapacity to work for her. She gave evidence that she did not ring her sister to find out how she was feeling because she “did not have time to do so”.
18 Mrs Bosevska gave evidence that the cleaners normally leave work together when they have finished their shift and sometimes they are on the same tram and train on the journey home. She said that on the evening of 2 April it was only herself and her sister on the tram and she did not see any of their co-workers waiting at the train station. When told that her sister had given evidence that she had twisted her knee on her journey home, Mrs Bosevska said that she injured her knee on level 15 and was not aware that she had injured her knee on her way home. She told the court that when her sister returned to work the supervisor asked her to work with her in order to help. She said this conversation occurred in the cleaners room. She told the court that she first helped her sister clean her floors and then she cleaned her floors over the four hour shift period. She said that in order to do this she started work half an hour earlier over the 2 or 3 day period that her sister returned to work. She said she did this at the request of the supervisor and with her permission. When questioned further, Mrs Bosevska said that she did not work for 4 hours on her sisters allocated floors but was unable to recall how long she helped her sister on her floors. She then told the court that they worked together at the same time and after they finished her sisters floors they then cleaned hers. When questioned as to the work her sister performed on her floors she said that she believed she rested because of her leg pain. When questioned as to where she rested she said she did not know and was confused. Mrs Bosevska then told the court that her sister came with her when she was cleaning her floors but was not sure where she might have rested.
19 Mrs Bosevska was questioned regarding the procedure of signing in when commencing work and signing off when finishing work. She initially told the court that if she started early she would sign in at 4:30 p.m. or 4:40 p.m. but then said she would always sign in at 5 p.m. even though she may have started earlier as that’s the way they did it.
20 Mr Petrovski gave evidence that he picked up his wife from the train station on 2 April at approximately 10 p.m.. He told the court that he observed her limping and asked her what happened and she told him that she injured her right knee when she was locking the door at work. He said that when they arrived home he questioned her further and she told him that she locked the door and when she got up her right knee twisted. He confirmed that he took her to Dr Baglar on 3 April and he assisted her into the consultation room as she could not walk on her own. He gave evidence that she told Dr Baglar that; “she injured at work and when went home on the train she caught bus and felt more pain in bus”. He also confirmed that he attended the appointment with Mr Owen on 9 April and that she told Mr Owen that she injured her knee when locking the door and she felt further pain when she was on the bus. Mr Petrovski gave evidence that they conversed with Mr Owen in English. He also told the court that he recalled that his wife saw Dr Baglar in March 2014 about her knees and x-rays were arranged. However, he said he could not recall her complaining of pain in her knee before 2 April.
21 In cross-examination, Mr Petrovski said he recalled that his wife experienced pain in the heels in 2013 and that she found it hard to walk. He said he could not recall her limping but recalled she was taking various medications before 2 April 2014. He said he also recalled that she complained of back pain before 2 April. He disputed that his wife did not tell Dr Baglar that the injury occurred at work. He said she told the doctor that she twisted it at work and that she had more pain when she was stepping on the bus. When told that Mr Owen recorded a history that she was hurt “whilst walking home last week”, Mr Petrovski suggested that Mr Owen may have misunderstood what he was being told.
22 Ms Zeneli gave evidence that she has been employed as the cleaning supervisor at 459 Collins Street for a period of 3 years and works from 1 p.m. to 9 p.m., Monday to Friday. She told the court that she has 17 cleaners who are under her supervision and that each cleaner normally cleans four floors of the building. She told the court that signs are placed in the cleaners room reminding them of the company policy regarding reporting injuries and also notification of the telephone hotline number to ring if any incidents or injuries occur. She said that the hotline number is also displayed on the key rings given to all cleaners which they use to access the offices. She told the court that she first became aware that Mrs Petrovska alleged that she sustained injury on the 15th floor when she was contacted by a person from Allianz. She said that she became aware that Mrs Petrovska contacted the hotline at the end of April when she was told by the manager that she had done so. She said that when talking to Mrs Petrovska they normally converse in the Macedonian or Serbian language.
23 Ms Zeneli told the court that Mrs Petrovska rang her on 3 April and told her that she would not be attending work that afternoon because she had “a fall in the tram”. She recalled that she next spoke to Mrs Petrovska on 9 April when she told her that she would not be at work that week and that she wanted to apply for 2 weeks annual leave. She said that Mrs Petrovska rang again later that week to check that she had received the Leave Application Form from her sister. She gave evidence that she rang Mrs Petrovska on the 14th or 15th of April to discuss her sick leave entitlements and on 16 April, Mrs Petrovska attended work to check on her sick leave entitlements and told her that she would take annual leave, filled in a form to do so, gave her a certificate that she was unfit for work until 18 April and would return to work on 22 April. By reference to attendance record documents she confirmed that Mrs Petrovska was absent on sick leave between 3 and 21 April 2014. She told the court that when Mrs Petrovska returned to work on 22 April, she did not speak to her prior to her commencing her shift.
24 Ms Zeneli said that it was the usual practice for Mrs Petrovska and her sister to work together and that she did not arrange for them to do so because of her complaint of right knee pain. She said that although they had a separate allocation of floors to clean they often worked together.
25 Ms Zeneli gave evidence that she received a call from her office manager on 29 April to inform her that that Mrs Petrovska had contacted the CARE hotline number to make an Incident report. She gave evidence that she told Mrs Petrovska that she could not work until she received a clearance from her doctor. She said that Mrs Petrovska was very angry because she wanted to work.
26 In cross examination, Ms Zeneli agreed that sometimes the cleaners start work early, in order to finish early. She conceded that when the cleaners take sick leave they do not always inform her of the full details of their sickness. She told the court that toolbox meetings are held each month and she always reminds the cleaners of the CARE number to call if any incidents or injuries occur. She disputed that Mrs Petrovska told her on 3 April that she would provide full details of what happened when she attended work. She said that when Mrs Petrovska rang her on 3 April she told her that she would not be attending work and that she had a fall on a tram and would provide a medical certificate which would be given to her by her sister. She said that she was not told by Mrs Petrovska that she had twisted her leg. She also disputed that Mrs Petrovska told her of the injury occurring at work when she attended on 16 April and confirmed that she was not aware of any such incident until she was told of the incident report made by her to the Care hotline on 29 April. She also disputed that she arranged for Mrs Bosevska to work with Mrs Petrovska when she returned to work on 22 April in order to assist her because of her knee pain.
27 Dr Baglar gave evidence and extracts of his clinical notes and medical reports prepared by him dated 4 July 2014, 8 July 2014 and 13 April 2015 were tendered. The medical records indicate that Mrs Petrovska attended on 3 March 2014 with a complaint of bilateral knee pain and morning stiffness and was referred to have x-rays performed. On 5 March she attended to discuss the results of the x-rays which indicated no abnormality with a notation that she was to try Celebrex medication. On 3 April she attended with a history recorded that she twisted her right knee yesterday, was feeling pain, tender and swollen. She was prescribed Celebrex and Tramal. On 7 April, it was recorded that she fell on her knees with her right knee painful, swollen and tender. On 17 April, Dr Baglar recorded that she had medial meniscus degeneration, required arthroscopic repair and surgery. On 29 April is was recorded that an arthroscopy was proposed and that she is to lodge a WorkCover claim and was counselled. On 30 April, it was recorded that she is to lodge WorkCover forms, she was counselled and prescribed Celebrex and told to rest.
28 In his report dated 4 July 2014, Dr Baglar stated; she first contacted me on 3 April 2014 for her current condition and stated that she twisted her right knee, previous day while doing cleaning (my initial entry states that she fell at work but upon close questioning during the following consultation, it was clarified by her that there was no actual fall but it was an incident of twisting her knee. She finished her cleaning tasks and she bend down to lock the building. Whilst as she got up from the bent down position, her right knee was twisted. Apparently, the lock was placed low and to lock it she had to bend down). Although Zora felt a pain at the time of her injury, she was not concerned much at that time and when she was catching a bus to go home, just after 9 PM, she twisted her right knee again.
29 Dr Baglar reported that an x-ray performed on the following day was normal and there was no evidence of arthritis. He noted that he referred her to Mr Owen, orthopaedic surgeon who arranged for an MRI of the right knee which revealed a small to moderate sized joint effusion along with degenerative articular surface fraying at the superior margin of the posterior horn of the medial meniscus associated with chondral thinning and surface fraying at the adjacent medial femoral condyle. A possibility of a tiny tear was also discussed in the report. Dr Baglar reported that when she found out the extent of the damage in her knee, she decided to lodge a WorkCover claim. He opined that although it was undeniable that she had a pre-existing condition in her right knee, the degree of degeneration and fraying in the posterior horn of the medial meniscus does not happen overnight and with the act of single twisting. However, he noted that until the incident on 2 April, she was asymptomatic and able to work and the twisting as reported by her most likely caused further damage to the already weakened cartilage and rendered her symptomatic and led to her current disabled state. He therefore considered that the described injury and her employment was a major contributing factor in her condition.
30 In his report dated 13 April 2015, Dr Baglar confirmed that she underwent arthroscopic surgery on 29 August 2014 with Mr Owen noting that her medial meniscus had a complex tear. When giving evidence, Dr Baglar stated that when he sees Mrs Petrovska they converse in English. He told the court that ideally he tries to record everything that is said by his patient including the cause of the problem so that he can plan their treatment. In cross examination, he told the court that he is the only doctor at the clinic and it is very busy and estimated a standard consultation would take on average, 15 to 20 minutes. He said that usually Mrs Petrovska would attend appointments accompanied by her husband and he understood that it was important to take a full and accurate history from patients as to the cause of their particular medical problem so that he can work out the best way to deal with it. He said that he is familiar with the WorkCover system as he has many patients who are on WorkCover and therefore appreciates that it is important to take accurate notes. Dr Baglar gave evidence that Mrs Petrovska has been attending the Barbara Walker clinic for many years as a result of back pain caused in a motor vehicle accident. He confirmed that he has previously prescribed Celebrex medication for her. He stated that she has suffered from shoulder, knee, hypertension and other problems over the years and recalled that she experienced pains in her legs and feet one month before April 2014. He said that she has also previously suffered from spurs and plantar fascitis.
31 Dr Baglar was referred to and acknowledged receiving numerous reports from the Barbara Walker Centre which indicates that Mrs Petrovska had attended the clinic since 2008 for numerous conditions including; pain in both feet radiating up the leg to the knee (13 June 2008); pain in the right foot with x-rays of the feet indicating calcaneal spurs and complaints of tenderness in the plantar fascial area (7 June 2011); tendonitis of the right ankle as demonstrated on ultrasound (29 July 2011); pain in the right heel (13 February 2013); plantar fascitis (8 March 2013); increasing pain in the right foot suggestive of ongoing plantar fascitis – really struggling with quite a significant limp (11 September 2013); chest pain and back pain with an increase in use of Celebrex and Nurofen Plus – headache, leg pain and generalised pain better but waking up stiff and sore every day (2 April 2014).
32 Dr Baglar confirmed that the first mention of Mrs Petrovska lodging a WorkCover claim occurred on 29 April 2014. When questioned as to the first occasion on which she told him that she had twisted her knee at work he said that it was in the “early stage”. He then told the court that she told him that she had twisted her knee at work when he first saw her on 3 April and that he made a mistake by recording that she told him that she fell on her knees when he saw her on 7 April. He explained his error by telling the court that when he understood that the matter was to be a medico legal case he questioned Mrs Petrovska more thoroughly regarding causation and that is why he corrected himself to change the history from a fall to a twisting injury. He said that Mrs Petrovska initially did tell him it was a fall but he corrected that later to be twisting. He denied that the correction was made as a result of Mrs Petrovska later telling him what had occurred and said that he was confused earlier at her first consultation with him on 3 April.
33 A medical report from the Emergency Department of the Northern Hospital was tendered. The report indicates that Mrs Petrovska attended at 12:42 PM on Saturday, 5 April 2014. It records that the presenting problem was; painful right knee post walking and twisting on it, associated difficulty walking, associated numbness post, Nil falling, taken Celebrex.
34 Medical reports from Mr Owen, orthopaedic surgeon, dated 10 April 2014 and 18 December 2014 was tendered. In his report to Dr Baglar dated 10 April he noted that she hurt the knee while walking home last week. The knee suddenly became sore to the point where she couldn’t walk on it, nor could she move it….she didn’t have any problems with the knee prior to this trouble last week. In his report dated 18 December to Zaparas Lawyers, Mr Owen noted that he first saw Mrs Petrovska on 7 April 2014 on referral from Dr Baglar. He obtained a history that she was walking home a week ago and suddenly her right knee became sore, locked and she could not weight bear on it. He reported that an MRI scan indicated a torn medial meniscus. He performed arthroscopic surgery on 29 August 2014 which indicated she had a complex tear of the medial meniscus which was resected back to a stable base. On 5 November 2014, he believed she could return to work as a cleaner. He reported that she then told him that it was a WorkCover matter and that she had originally twisted the knee at work in a hyper extension type injury, as well as twisting it on the bus on the way home from work. He also reported that she initially did not tell him that the injury was at work and subsequently after the surgery did say it was at work and therefore given the circumstances in the way the story has unfolded he was unable to absolutely attribute her tear to a work injury.
35 Mr Kossmann, orthopaedic surgeon, assessed Mrs Petrovska on behalf of her lawyers on 6 February 2015. He obtained a history that at approximately 8:40 p.m. on 2 April 2014, when she was locking up the offices on the 15th floor, she bent down to lock the door lock, which was situated on the bottom edge of the door, and as she straightened her right knee, the right knee twisted and became acutely painful. She also told him that she informed her sister that she was running late on account of twisting her knee and after they left the building she needed the assistance of her sister to help her on the way home. She also told him that whilst she was getting onto a bus at proximally 9:10 p.m. she had a further twisting injury to her right knee. Mr Kossmann also reported that she informed him that she had no musculoskeletal symptoms prior to the injuries sustained on to April 2014 including symptoms in the right knee although she had a past history of hypertension, hypercholesterolemia and dyspepsia. After referring to radiological investigations he diagnosed that she sustained an acute medial meniscus tear of the right knee and aggravation and exacerbation of medial and patellofemoral osteoarthritis of the right knee. He expressed the opinion that it was possible she could return to full-time work after a trial period of part-time work although she was likely to continue to experience knee pain which should not prevent her from returning to full-time work in her previous role as a cleaner.
36 Dr Davison, occupational physician, assessed Mrs Petrovska on behalf of Allianz on 29 May 2014. He reported that Mrs Petrovska denied any previous history of problems with her right knee and informed him that she was locking up the 15th floor offices at 8:40 p.m. on 2 April 2014 and that as she knelt down on her left knee to lock the door and got up somehow she twisted her right knee. She then told him that as she got on the bus to go home she again twisted her right knee which became more painful. She told him that her knee locked up and on the journey back to her home the pain was worse and worse. He noted that her examination was dominated by pain and illness behaviours as well is inconsistency. He thought her presentation seemed out of proportion to the MRI findings. He opined that her condition was due to degeneration of the medial compartment of the right knee, evident on MRI scanning on 14 April 2014 and that her condition was pre-existing. On the basis of the history that she sustained an injury to her knee while travelling home by bus and did not report having suffered any injury in the context of workplace activity, he considered it unlikely that locking the door at work would have caused any aggravation, acceleration or deterioration of the pre-existing medial compartment degeneration.
Conclusion
37 I did not form a favourable impression of Mrs Petrovska, her sister or her husband. I did however find Ms Zeneli to be a credible and honest witness. After considering the evidence given by each of the witnesses, including Dr Baglar, and the contemporaneous documentation tendered, leads me to conclude that the incident alleged to have occurred in the workplace at 8.40 p.m. did not in fact occur. Mrs Petrovska has failed to discharge the onus of proving on the balance of probabilities that she sustained injury which arose out of or in the course of her employment as she alleges.
38 Mrs Petrovska was evasive at times when giving evidence particularly when questioned as to the sequence of events after leaving work on 2 April 2014. She provided differing versions as to what caused her pain to worsen after ceasing work. Initially, she told the court that walking to the tram stop caused her pain to get stronger and then when she put more pressure on her legs including getting onto the bus at Parliament Station. She told the court that she informed staff at the Northern Hospital that her knee was more painful when she caught the bus and that she may have twisted it again. She told the court that she informed Ms Zeneli on 14 April (more likely 16 April) and Kate to whom she spoke at the CARE hotline that her knee was more painful as she was going home. In cross examination, she told the court that she “thought” she suffered a further twisting injury to the right knee when she was getting onto the bus at Parliament Station.
39 The evidence she gave to the court needs to be compared to what is contained in the contemporaneous medical records. The records of Dr Baglar indicate that the injury occurred as a result of twisting her right knee (3 April) or that she fell on her right knee (7 April). The records of the Northern Hospital indicate her right knee problem was caused post walking and twisting on it (5 April) and the report of Mr Owen indicates that she told him that she hurt her knee while walking home (9 April). I do not accept the evidence of Mrs Petrovska or her husband that she gave Dr Baglar and Mr Owen a full description of how her injury occurred at her first consultation with them as she alleged in court. Whilst I appreciate that what is contained in the medical records cannot be relied on as a verbatim record of what the worker said during the consultation[1], the absence of the specific alleged causes of injury as stated by Mrs Petrovska in evidence in combination with the other discrepancies revealed during the running of the case, leads me to conclude that what is contained in those records is an accurate account of what she told the doctors at the time. If the “door locking incident” has occurred there is no plausible reason for her not telling the doctors of it and them recording that history. Furthermore, I do not accept the evidence of Mr Petrovski that his wife told Mr Owen about the “door locking incident”. If she had, he would have recorded it.
[1] See Woolworths Ltd v Warfe [2013] VSCA 22 at para 112.
40 Although mindful that an interpreter was not present when Mrs Petrovska attended consultations with Dr Baglar, the Northern Hospital and Mr Owen, it appeared to me that her English skills were adequate as she managed to understand and answer questions in English, particularly when she became agitated. The medical records indicate that she has been able to communicate in English as there is no record of an interpreter accompanying her to any of the medical appointments she has attended, be that with Dr Baglar over a 20 year period or at the Barbara Walker Centre since 1997. Furthermore, the WorkCover claim form completed on her behalf by her daughter indicated that she did not require the assistance of an interpreter.
41 Mrs Petrovska’s credit was also diminished by her evidence denying receiving regular medical treatment before 2 April 2014 until she was presented with documentary evidence to the contrary. Her credibility was also tarnished by denying past knee complaints, including on 3 March 2014, until she was presented with evidence to the contrary. Her explanation for failing to provide Ms Zeneli with a complete history of what she alleged occurred when she telephoned her on 3 April is not accepted by me as being truthful. I find that she was aware of her responsibility to report a work-related injury as soon as possible and that she was aware of the procedure to do so. I accept the evidence of Ms Zeneli that she was not aware of the “door locking incident” until 29 April after she was informed that Mrs Petrovska had made a report to the hotline that day. The evidence of Mrs Petrovska that she did not call the hotline when she returned to work on 22 April because she did not know the number is not accepted by me as being truthful considering that the number was displayed on notice boards at the work premises and on the key rings she used to access offices in the building.
42 I found the evidence given by Mrs Bosevska was tailored to give support to her sisters claim. On a number of occasions during cross examination, she was hesitant before answering questions and paused to look at her sister for what appeared to be guidance before doing so. I do not accept her evidence as being truthful that she noticed her sister limping immediately on leaving work on 2 April 2014 and that her sister told her of the “door locking incident” at that time. I do not accept her evidence that Ms Zeneli asked her to give assistance to her sister when she returned to work on 22 April because of her knee injury. It appeared to me that Mrs Bosevska only changed her evidence concerning the time she ‘signed in’ on the Attendance Record when she realised that there may be documentary evidence to the contrary. I found her evidence confusing and contradictory concerning what work she and Mrs Petrovska did when Mrs Petrovska returned to work on 22 April. I did not accept her a being a witness of truth.
43 I do not accept the evidence of Dr Baglar that he confused the early entries in his medical records regarding causation. In cross examination, he conceded that he obtained a more complete history from Mrs Petrovska during subsequent consultations. I find that it is more probable that he recorded what he was actually told by her on 3 April but the subsequent discussions with her caused him to be convinced that she actually told him the “full story” on 3 April.
44 Accordingly, for the reasons given I do not accept the evidence of Mrs Petrovska that the “door locking incident” occurred. I find that she aggravated her pre-existing degenerative knee condition resulting in a tear of the medial meniscus during her journey home after ceasing work on 2 April 2014. On this basis, I find that she did not in fact sustain an injury which arose out of or in the course of her employment with the defendant.
45 The proceeding is dismissed.
0