Rietwyk and Linfox Armaguard Pty Ltd (Compensation)

[2022] AATA 2135

Rietwyk and Linfox Armaguard Pty Ltd (Compensation) [2022] AATA 2135 (30 June 2022)

Division:GENERAL DIVISION

File Number:          2020/3232

Re:Peter Rietwyk

APPLICANT

AndLinfox Armaguard Pty Ltd

RESPONDENT

Decision

Tribunal:Senior Member P.Q. Wood

Date:30 June 2022

Place:Melbourne

The Tribunal sets aside the Reviewable Decision of 8 April 2020 and in substitution it is decided that:

1.the Applicant suffered incapacity and impairment as a result of a right knee condition which occurred in the course of employment with the Respondent on 27 December 2019, which was the subject of a claim for compensation dated 29 January 2020, and which gives rise to entitlement to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth); and

2.the Respondent shall pay the Applicant’s costs and disbursements in respect of this Application pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

.......................[sdg].................................................

Senior Member P.Q. Wood

Catchwords

COMPENSATION – claim for compensation for right knee condition – whether claimed right knee condition is an ‘injury’’ for the purposes of the Safety, Rehabilitation and Compensation Act 1988 – whether injury arose out of or during the course of employment – decision under review set aside

Legislation

Safety Rehabilitation and Compensation Act 1988 (Cth)

REASONS FOR DECISION

Senior Member P.Q. Wood

30 June 2022

Introduction

1. On 26 May 2020, Peter Rietwyk (“the Applicant”) applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of a decision dated 8 April 2020 (“the Reviewable Decision”) made by Linfox Armaguard Pty Ltd (“the Respondent”) pursuant to the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”), which affirmed the earlier determination dated 26 February 2020. This decision was to deny liability to pay compensation pursuant to s 14 of the SRC Act for an injury defined as ‘right knee condition’.

2. The Tribunal hearing in this matter was held by video on 29 and 30 November 2021. The Applicant was represented by Mr Mark Carey, and Ms Sarah Wright appeared for the Respondent.

3. Oral testimony was heard from the Applicant, Mr Chris Hatzis, Mr Dale Watkins, Dr Peter Moran and Professor Peter Steadman.

   Background

4. The Applicant is a 68-year-old male who is employed as a coin dispatch clerk with Linfox Armaguard Pty Ltd (“Linfox”). He acknowledges that he has a history of arthritis in his knees.

5. The Applicant commenced his work life as a bank teller and progressed through to becoming a branch manager with the now defunct State Bank which previously operated in Victoria. After working for the State Bank for several years, in around 1977 he joined the Australian Army as a reservist, where he completed a number of courses, including parachute training. The Applicant left the Army reserve in 1982, after five years’ service, and maintains that he did not suffer any injury during his time with the Australian Army.

6. In 1985, the Applicant was involved in a motorcycle accident which resulted in cuts, bruising and a left knee injury. Around that time, in February 1986, he consulted Mr Bartlett, a knee surgeon, who advised the Applicant that he would not need surgery on his left knee.

7. In 1994, following the sale of the State Bank to the Commonwealth Bank, the Applicant was retrenched. Following a brief period working as a casual teller and as a pathology delivery driver, the Applicant obtained employment with Mayne Nickless, which later became Linfox.

8. In 2011 the Applicant claims to have injured his right knee at home whilst gardening. He claims to have recovered from that injury and to have performed his duties in the dispatch area of Linfox until 27 December 2019, when he suffered the injury which is the subject of the present application.

   legislative framework

9. Section 14(1) of the Act provides, subject to this Part, that:

   Comcare [in this Application, the Respondent] is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. 

10. ‘Injury’ is defined by s 5A(1) of the SRC Act (via s 4) as:

    (a) a disease suffered by an employee; or

    (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

    (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment) that is an aggravation that arose out of, or in the course of, that employment…

    Issue

11. The issue before the Tribunal is whether the Applicant suffers a right knee condition, and if so:

    (a)whether the right knee condition is an ‘injury’ (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment, thereby giving rise to entitlement to compensation in accordance with s 14 of the SRC Act.[1]

    [1] The parties confirmed in the hearing (Transcript P-124) that the only issue pressed was the one concerning s 5A(1)(B) of the SRC Act. 

    consideration

12. The evidence considered by the Tribunal includes:

    (a)the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, called the T Documents;

    (b)the Applicant’s statements dated 19 August 2021 and 10 October 2021 (also referred to by Mr Carey as the ‘6 October 2021 statement’, which the Applicant signed on 10 October 2021);

    (c)various medical reports and other tendered documents, comprising Exhibits A1 to A3 and R1 to R6; and

    (d)the oral evidence of:

    (i)the Applicant;

    (ii)Mr Chris Hatzis;

    (iii)Mr Dale Watkins;

    (iv)Dr Peter Moran, orthopaedic surgeon; and

    (v)Professor Peter Steadman, orthopaedic surgeon.

13. I also considered the submissions of the Applicant and of the Respondent.

    The Applicant

14. The Applicant is employed in the coin handling area of Linfox located in Essendon Fields, Victoria.

15. At the outset, I observe that the Applicant was involved in an incident on 25 November 2019 in which he stumbled and jarred his right knee as he was on his way home from work at Linfox. I mention this as, whilst not the injury for which the Applicant claims compensation, as is set out below, the 25 November 2019 incident has some relevance to the injury which the Applicant suffered in the dispatch area of Linfox on 27 December 2019.

16. The Applicant’s evidence is that his work involves loading 1000 to 1500 bags of coins each shift on to a ‘Maverick’, being a steel trolley with a pallet on it. Each coin bag weighs 6kg, and a pallet of $2.00 coins, being 100 bags, weighs 687 kg. The Applicant’s evidence was that he has never received a job description or weight guidelines for his work undertaken with Linfox in the coin dispatch area.

17. The Applicant gave evidence that on 27 December 2019 he was not experiencing any pain or symptoms from the 25 November 2019 incident, and was setting up his work area, when he caught his right foot between a ‘Maverick’ steel trolley wheel and a set of scales. As he moved to the left, his right foot was caught and his right knee twisted. His evidence was that he felt immediate pain in his right knee, but continued what he was doing, whilst limping, until it was too hard to work.

18. The events following this are summarized in the Applicant’s 19 August 2021 statement:

    I took a tea break at that point. I went to the first aid area and I put some ice from the refrigerator wrapped in paper to place on the right knee. I sat there for about ten or fifteen minutes. I then resumed work but it was too painful to go on. By about 4.00pm I went to see Chris Hatzis though his assistant and told him of my injury. I don’t know whether Chris or his assistant made a report on the computer system at that stage. I certainly advised him at that time.

    I was told that there were no doctors available. I think that was because this was only a couple of days after Christmas and I suppose a lot of doctors took the week between Christmas and New Year off. I was asked if I could supervise the job if someone came in to do the lifting. I agreed. There was a lot of coin to be moved and there was no one around who could do it. That continued until late into the shift when I was asked to help someone in the vault. I was printing off paper instruction sheets for the road crews. I walked around to the vault. This is a safe room about 30 by 10 feet in dimension. There were trolleys and there were ATM bags in front of the trolleys. I had to lean over to place the instruction sheet on the particular trolleys. While I was leaning over, I moved to step off, my right foot got caught in one of the handles of an ATM bag in my way. My right knee twisted again and I experienced more pain. Coworker Luke Mastromanno assisted by removing the handle from my right foot asking if I was ok, I replied no I was not ok.

    I stopped work and went home at about 10.15 pm. I had already done about an hour’s overtime by that stage.

    I had normal days off work on the Saturday and Sunday, 28-29 December 2019. My right knee remained painful. The right knee was sore, swollen and painful to put weight on. I was limping around that weekend.

    On Monday 30 December I did return work doing my normal work, moving the coin and the trolleys. By the end of that shift my right knee was swollen badly and very painful. I drove home with difficulty. I managed to get the car moving and then put the cruise control on to limit the use of the right leg on the way home.

    The next day, Tuesday 31 December, I went to see Dr Judy Chen at the Northland Medical Clinic. I told her about the injuries to my right knee on 25 November 2019 and on 27 December 2019. She arranged for an x-ray and ultrasound. I came back after the test and was told that I needed an MRI scan.

    That MRI scan was done on 2 January 2020.

    The following day, my employer asked me to see Dr Kylie Scott at the Essendon Fields Medical Centre across the way from Linfox’s area. Armaguard uses this clinic as its work doctor.

    I was back on light duties work between 3 and 17 January. The duties were to check the un-loading of coin from the trucks. It still caused pain and I still had swelling on the knee. Checking an Armaguard truck involves walking around that outside of a large security vehicle and to inspect the cabin and the cash areas to make sure that no cash is left behind and all areas are clear. There is a lot of moving inside a confined area to bend and check hard to see places.

    On 20 January I saw Dr Chen and she provided me with a certificate to take a week off. I was referred to see a surgeon, Mr Shane Blackmore, an orthopaedic surgeon, who recommended that I use a knee brace and that I would benefit from an operation to the knee.

    At some point in late January 2020, I made my compensation claim.

    I went back to see Dr Kylie Scott on 3 February and on 17 February I saw Dr Steadman.

    My claim was denied on 26 February 2020.

    I went ahead with the operation performed by Mr Blackmore on 21 March 2020 at St Vincent’s Private Hospital. I had an overnight stay at hospital before being discharged. After the operation I had to do physiotherapy but this was delayed because of the onset of the Covid pandemic and the restrictions. I did some exercises shown to me by the staff at St Vincent’s Hospital.

    In total, I had about 89 days off work and then was cleared to return to work. I had been told that if I didn’t come back ready for full duties I would lose my job. I had to pay about $6,900 for the surgery and $1,215 for physiotherapy. I have had some injections into the knee and other costs.

19. I observe that the Applicant’s oral testimony was candid and that he was carefully cross- examined. I observe that his oral testimony was consistent with his statements of 19 August 2021 and 10 October 2021; and that he responded to a series of questions in a forthcoming manner and without hesitation. I find the Applicant to be a credible witness.

    Chris Hatzis

20. Mr Hatzis is the Applicant’s immediate manager. He gave oral testimony and provided a statement (Exhibit R1), in relation to his knowledge of the 25 November 2019 and 27 December 2019 incidents. Again, I observe that his oral testimony was candid. I observe that his oral testimony was consistent with his statement of 16 November 2021.

    Dale Watkins

21. Mr Watkins is the Applicant’s overall branch manager. He gave oral testimony and provided a short, undated, 14 paragraph statement with two photographs attached. Mr Watkin’s statement with attachments, and an additional photograph and video were entered into evidence as Exhibit R4. Like Mr Hatzis, however well-meaning he may be, Mr Watkins did not witness the incidents of 25 November 2019 and 27 December 2019, and could only provide evidence of events which arose in response to the Applicant notifying him of his injury.

    Dr Peter Moran

22. Dr Moran gave oral testimony and provided a statement (Exhibit A3), in relation to his assessment and diagnosis of the Applicant.

23. In his report dated 24 February 2021, Dr Moran opined:

    EXAMINATION

    Mr Rietwyk presents as a tall, lightly built gentleman, who presented without evidence of clinical exaggeration and without evidence of abnormal illness behaviour.

    He gave a detailed, if not obsessive history of injury and of subsequent management.

    I noted that when standing, he demonstrated evidence of varus bowing of the right knee, and he walks with a slight antalgic limp.

    Examination of the right knee confirmed persistent thigh muscle atrophy which I measured at 2cm at mid thigh, he demonstrated signs of patello-femoral pain and crepitus on patello-femoral glissment, and as noted above, a varus bowing of the right knee suggestive of medial compartment degenerative change.

    There was no effusion within the knee joint.

    XRAYS

    I reviewed an MRI scan of Mr Rietwyk's right knee dated the 2nd of February 2020, online.

    This scan showed evidence of a longstanding medial meniscal degenerative tear, and with this there was established osteoarthritic change in the medial compartment of the knee, associated with a tibial stress reaction on the weight bearing surface of the medial tibial condyle.

    The lateral and patello femoral compartments of the knee were, by comparison, well preserved.

    I did also review a plain x-ray of the right knee undertaken in 2011, and these films were essentially normal with no evidence of significant degenerative change.

    OPINION

    Mr Rietwyk has clear evidence of underlying medial compartment degenerative change in the right knee, preceding the two work-related incidents in November and December 2019.

    It was the latter of the two incidents in 2019 that I believe resulted in significant pain and the need for specific intervention, specifically arthroscopic debridement of the knee, which in turn led to significant clinical benefit with the result that he was able to return to work without notable ongoing pain.

    The basic pathology here is one of traumatic aggravation of underlying and asymptomatic degenerative change.

    Degenerative change does indeed result in a heightened level of fragility in the joint, perhaps rendering him more vulnerable to injury, but it was the rotation stress on the knee that was the initiator of the symptoms and hence the need for treatment. Given that this rotational stress on the knee developed during the course of his employment, it is difficult to understand how liability for treatment, under Workcover, can be refused, again considering the mechanism of injury.

    I note in a report by Dr Steadman, mention that there has been multiple causative factors for his knee condition, leading to degenerative change. This is not contested.  What I do disagree with is that his condition is solely due to pre-existing degenerative change, rather than to the traumatic event referred to above. Dr Steadman indicates that there has been no "specific singular event" resulting in the provocation of pain. This contrasts significantly with your client's own history of injury, which I presume has been documented since he did report the injury shortly after it occurred.

    I have no difficulty in accepting Mr Rietwyk's description of the injury and the symptoms that resulted from this, a not uncommon clinical picture.

    In reviewing the various questions raised in your correspondence, I believe that most of the issues that you have raised have been covered in the body of the report above.

    I believe that the incident in December 2019 had resulted in a physiological change in the knee.

    The one undeniable fact in this situation is that Mr Rietwyk did describe an injury to his knee and that surgical intervention did resolve the acute symptoms, returning him to his pre-injury status.

    This suggests that the underlying degenerative change in the knee is a distraction from assessment of the pathology resulting from the episode of trauma in this case.

24. Dr Moran’s evidence was clear in so far as he opined that the incident on 27 December 2019, whilst the Applicant was in the course of his employment, resulted in a physiological change in the Applicant’s right knee. Dr Moran is of the view that the underlying degenerative change in the Applicant’s right knee was unrelated to the specific trauma he experienced on 27 December 2019, which has since been dealt with by surgery.

25. Counsel for the Respondent correctly highlighted that it was inappropriate for Dr Moran, as an independent expert, to refer to “Workcover” and purport to determine liability in the way that he has in his written report. I did not, however, agree that it ‘tells against his independence’, as was suggested to the Tribunal.

    Professor Peter Steadman

26. Professor Steadman assessed the Applicant and prepared two medical reports dated 20 February 2020 and 27 April 2021.

27. Professor Steadman is of the opinion that the Applicant suffers from osteoarthritis of the right knee but is not of the opinion that such condition represents incapacity for employment as a consequence of a work-related condition.

28. Professor Steadman also recorded the Applicant as denying any prior problems with his right knee and being ‘cryptic’ in his response. When asked to explain this, Professor Steadman referred to patients often ‘hesitating for a millisecond or changing the pitch or tone of their voice’ when asked a question. Whilst I acknowledge Professor Steadman’s vast experience, I observe that a patient such as the Applicant could ‘hesitate for a millisecond’ or change the ‘pitch or tone of their voice’ for a whole range of reasons, and accordingly I attach little weight to his evidence in this respect.

29. This was not the only aspect of Professor Steadman’s evidence that I had some difficulty accepting. For instance, Dr Moran and I were both concerned by Professor Steadman’s assessment of the Applicant, specifically his observation that:

    Both knees have significant bowing and varus of 12 degrees.

30. Indeed, in response to this, Dr Moran said:

    No, that's not correct.  That's - that's really not correct.  That's rubbish.  Twelve degrees is extreme varus.  You could shoot a canon between his knees if that was the case.

31. I was troubled by Professor Steadman’s assessment because of the extent of significant bowing and varus which he recorded, namely 12 degrees, is to such an extreme that it would be immediately apparent to an experienced colleague, such as Dr Moran, even a year later.

32. It was not. To the contrary, as Dr Moran described above, this was not the case with the Applicant, so much so that Dr Moran dismissed it in what only can be described as the strongest possible terms (as above).

33. In his oral evidence, when this was put to him, Professor Steadman simply maintained that he measured the Applicant correctly with the appropriate clinical device. He seemed reluctant to acknowledge the magnitude that varus of 12 degrees represents. On balance, I find that the evidence of Professor Steadman was of lesser assistance to the Tribunal.

1. Against this is the evidence of Dr Moran, whose opinions and views regarding the Applicant’s condition were informed by ‘probably 9000 plus arthroscopies of the knee’ and was entirely convincing. I attached significant weight to the evidence of Dr Moran.

2. Consistent with the acceptance of the evidence of the Applicant and Dr Moran, I find that the Applicant suffered incapacity and impairment as a result of a right knee condition which occurred during the course of employment with the Respondent on or about 27 December 2019, or to which that employment contributed to a significant degree.

   CONCLUSION

3. In light of the matters set above, I find it correct and preferable to set aside the Reviewable Decision and make a substitute decision in favour of the Applicant. Consequently, it is appropriate to also make a costs order.

   decision

4. The Tribunal sets aside the Reviewable Decision of 8 April 2020, and in substitution it is decided that:

   (a)the Applicant suffered incapacity and impairment as a result of a right knee condition which occurred in the course of employment with the Respondent on 27 December 2019, which was the subject of a claim for compensation dated 29 January 2020, and which gives rise to entitlement to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth); and

   (b)the Respondent shall pay the Applicant’s costs and disbursements in respect of this Application pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

I certify that the preceding 37 (thirty seven) paragraphs are a true copy of the written reasons for the decision of Senior Member P.Q. Wood

..........................[sdg]..........................................

Associate

Dated: XX June 2022

38.     Dates of hearing:	39.     29 and 30 November 2021
40.     Counsel for the Applicant:	Mark Carey
41.     Solicitors for the Applicant	42.     Slater & Gordon Lawyers
Counsel for the Respondent:	Sarah Wright
43.     Solicitors for the Respondent:	44.     HWL Ebsworth Lawyers

EXHIBIT REGISTER

File No      2020/3232
Between     Peter Rietwyk (Applicant)

AndLinfox Armagaurd Pty Ltd (Respondent)

Heard on    29 and 30 November 2021

Before       Senior Member P. Q. Wood

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE
A1	Joint Tender Bundle Document 3, Statement of Applicant	Applicant	19 August 2021
A2	Joint Tender Bundle Document 4, Supplementary Statement of the Applicant	Applicant	10 October 2021
A3	Joint Tender Bundle Document 6, Medical Report of Dr Peter Moran, Orthopaedic Surgeon	Applicant	24 February 2021
R1	Joint Tender Bundle Document 8, Statement of Chris Hatzis	Respondent	Undated
R2	T Documents, T21 Medical Report of Associate Professor Peter Steadman, consultant orthopaedic surgeon	Respondent	20 February 2021
R3	Joint Tender Bundle Documents 11 to 17	Respondent	Various
R4	Two photographs attached to Dale Watkin’s statement, pages 60 and 61 of the Joint Tender Bundle, and additional photograph and video.	Respondent	Various
R5	Joint Tender Bundle Document 9, Peter Rietwyk Absence Log	Respondent	Various
R6	Joint Tender Bundle Documents 18 to 32, Extracts of summonsed records	Respondent	Various