Shanks v Secretary, Department of Planning, Industry and Environment
[2024] NSWPIC 499
•9 September 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Shanks v Secretary, Department of Planning, Industry and Environment [2024] NSWPIC 499 |
| APPLICANT: | Cherie Shanks |
| RESPONDENT: | Secretary, Department of Planning, Industry and Environment |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 9 September 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether earlier work-related knee injury materially contributed to the applicant's current condition; whether the applicant had fully recovered from her earlier surgery; Held – the applicant had not fully recovered and second limb of State Government Insurance Commission v Oakley satisfied; Ozcan v MacArthur Disability Services Ltd satisfied; matter referred to Medical Assessor with a finding that the second injury results from the first injury and so impairment is to be aggregated. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered an injury to her left lower extremity (knee) on 2 September 2021. 2. The applicant suffered an injury to the left lower extremity (knee) on 7 April 2022. 3. The 7 April 2022 injury ‘results from’ the 2 September 2021 injury and is to be aggregated in the assessment of the degree of permanent impairment. Orders 4. The medical dispute is remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment as a result of injury as follows: Body parts: left lower extremity (knee); lumbar spine; right lower extremity (knee) Date of injury: 2 September 2021 Documents: Application to Resolve the Dispute and attachments and the Reply and attachments. |
STATEMENT OF REASONS
BACKGROUND
Ms Shanks (the applicant) claims lump sum compensation arising out of injuries sustained in the course of her employment with the Department of Planning, Industry and Environment (the respondent) on 2 September 2021 and 7 April 2022.
On 2 September 2021, whilst engaged in her regular pre-fire season training, she sustained an injury to the left knee. Consequential conditions to the right knee and lumbar spine were claimed.
Then on 7 April 2022, whilst walking down a flight of steps in the course of her employment, she sustained another injury to her left knee.
After much internal review and conciliation the respondent accepted liability for the consequential conditions to the right lower limb (knee) and lumbar spine said to arise from the injury on 2 September 2021. The respondent maintains however that the pathologies arising from the two separate injuries to the left knee were “separate and distinct”, and so could not be aggregated as claimed by the applicant.
The issue of aggregation is the epicentre of the dispute resulting in the filing of an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission). The issue proceeded to arbitration where the parties agreed following determination that the matter was to be referred to a Medical Assessor.
The applicant was represented by Ms Compton of counsel instructed by Mr Taljaard and Mr Sawyer. The respondent was represented by Mr Goodridge of counsel instructed by Ms King. Ms Luck was the insurer’s representative. Due to time constraints, the submissions were not completed at arbitration necessitating a timetable for their provision. The respondent complied within time, the applicant did not. The Registry followed up the submission on two separate occasions (in the interests of procedural fairness) only to be informed very late in the piece (10 days outside of the timetable) that the applicant did not propose to reply to the respondent’s submissions. This resulted in a delay in decision making.
In considering the matter, I took into account the ARD and the Reply (and their attachments) and the oral and written submissions of counsel. No oral evidence was adduced.
Evidence
There is a significant amount of documentary evidence, but I will confine my discernment to the issue in dispute, that is whether the left knee injuries can be aggregated.
Applicant’s statement
The applicant has made a primary and supplementary statement.
The primary statement dated 16 May 2022[1] documents the nature of her fall on 7 April 2022, just 39 days earlier. Rarely do I slavishly repeat a statement, however given the arguments presented, I find it necessary to do so, relevantly (unedited):
[1] Folios 7-13 of the ARD.
“16. I had an ACL reconstruction on my right knee when I was aged in my 20’s and also a patellar fracture on my right knee in my early 30’s.
17. My current injury is to the top part of my tibia on the outside where it starts connecting with the knee area in my left leg. This is a different injury to the previous injury on my left leg.
18. I sustained my current injury in the extreme weather period in the Sydney area. There is a frangipani tree that sits beside the stairs and there was accumulated frangipani leaf litter on the steps. The steps were also mossy from the extreme weather event and I slipped on the stairs whilst descending them.
…
28. I live on Bare Island which is an old fort built into an island. There are main stairs which are used by everyone as there are public tours, school groups, film crews and special events which come through. The main stairs go from the ground floor up to the parade level of the fort and I was descending those stairs when I slipped.
…
36. I have been residing at Bare Island for around 8 years.
37. The steps are external to the premises, there is no cover so the area is affected by weather. There are two flights of around 10 steps then a landing and then another set of 10 steps and I slipped on the second set of steps going down the stairs.
38. The steps appear to be constructed of some type of stone work. The surface of the steps are fairly smooth but some areas are a little bit worn more than others and there is a slight deviation in the levelness.
39. I would say the steps are a little bit deeper in height than a standard set 4 of steps. The size of each step and the rise/depth of the steps are pretty consistent. The stairs are wide enough for two people to walk on them beside each other.
40. I have not noticed the steps being slippery before, it is just this extreme wet season and the heavy rain.
41. There is a handrail on the right hand side when descending. I was using the hand rail at the time. The frangipani tree sits near the steps on the right hand side and leave litter had dropped onto the steps and the steps were really wet and mossy. I did not see any other foreign substances on the steps.
42. NSW Parks and Wildlife does the maintenance of the stairs. I am not sure when the last time would have been prior to the incident when the steps had been cleaned. The depot staff come out here to do cleaning and maintenance.
43. I use the stairs regularly.
44. The weather that day was over one of the extreme wet weather periods for Sydney with large amounts of rain and probably wind. The rain had been consistent for a long period of time.
…
49. It was not raining at the time I slipped, there had been a small break in the rain.
50. The incident happened on 7 April 2022 around 5.30pm, it was still daylight. My right foot slipped and slipped forward down a couple of stairs and I fell back onto my left foot which was under my buttocks. I was holding the handrail.
51. The depot staff would hold maintenance and cleaning records.
52. I would assume risk assessments have been done on the site but cannot confirm or deny that. Normally risk assessments are done and they then set up a Job Safety Analysis (JSA). The Ranger or Field Operations for the area may be involved in these.”
In the supplementary statement dated 21 June 2024 the applicant refers to her original injury on 2 September 2021 and states she continued to be troubled by symptoms at the time of her second injury on 7 April 2022. She asserts the injury sustained on 7 April 2022 was greater because of the condition of the knee as a result of the earlier injury less than six months earlier for which she had surgery in the form of an anterior cruciate ligament reconstruction (ACL).
Applicant’s medical evidence
Dr Soo, qualified orthopaedic specialist on 3 May 2023[2] reported (unedited):
“The injuries to the left leg in 2021 and then in 2022 were NOT of the same pathology. The first injury was a multi-ligament knee injury. The second injury was a tibial plateau fracture….
The injury in 2022 occurred due to the physical condition the client was in from her 2021 injury. As I have noted previously on my report, Ms Shanks suffered a multi ligament injury to the left knee at work on the 2nd September 2021 that required surgical reconstruction of her anterior cruciate ligament. Unfortunately whilst she was recovering and rehabilitating her knee following the surgery, she suffered a second fall whilst at work resulting in an undisplaced tibial plateau fracture in the same leg. Subsequently as a result of this second fall her rehabilitation was set backwards and due to a long period of altered gait and overcompensation she has further aggravated her lower back and her right knee.”
[2] Folio 80 of the ARD.
Dr Inman in a letter dated 24 June 2022,[3] reported as regards the left knee diagnosis (unedited):
“New left-sided anterior and lateral knee pain following a fall at work, known nondisplaced subchondral fracture at the proximal tibio-fibula joint two months post injury, also a flare of underlying early patellofemoral osteoarthritis, ACL reconstruction performed in September 2021, healing well, no re-injury of the ACL graft or MCL…
She has suffered a recent injury in April 2021 (sic) whilst at work to the left knee. She underwent an ACL reconstruction to the left knee in September 2021, but unfortunately, in April, she fell down a set of stairs and noted immediate pain and swelling in the left knee. Subsequent MRIs confirmed a tibiofemoral nondisplaced fracture. She has also underlying early osteoarthritis in the patellofemoral compartment, grade 3 to 4 changes, is flared in the patellofemoral fat pad. Thankfully, she did not re-injure the ACL at the time. No further injury to the MCL or meniscus was noted. Cherie has noted definite improvement over the past two months”.
[3] Folio 119 of the ARD.
Dr Broe, treating surgeon reported on 28 January 2022[4] and expressed he was pleased with progress and that the applicant was progressing steadily with near full range of motion, minimal swelling and the ACL graft was stable.
[4] Folio 153 of the ARD.
Respondent’s medical evidence
Dr Nair in his report dated 29 June 2023 reported[5] (unedited):
“I do not accept that the effects of the injury sustained in September of 2021 would have ceased at the time that she sustained a second injury. There is a body of evidence that both the mechanism of injury resulting in a multi ligamentous injury as well as a subsequent surgical treatment results in internal derangement of the knee as well as accelerates the development of osteoarthritis of the knee. Furthermore, on clinical grounds recovery from an ACL injury reconstruction would typically take at least six months. Thus, I do not accept that the result of the injury sustained in September 2021 ceased (at the time of the second left knee injury in April 2022)”.
[5] Folio 67 of the ARD.
John Silcock, independent physiotherapist consultant reported[6] (unedited):
“It is noted that Ms Shanks had previously injured her left knee when a cat jumped out and scared her dog while she was walking causing it to knock her off her feet. This event led to her undergoing an anterior cruciate ligament reconstruction on 20 September 2021. It is difficult to prepare Ms Shanks for unpredictable episodes like this. At the time of her recent injury Ms Shanks had almost reached the point where treatment of her left knee reconstruction would cease. It is reasonable to expect given Ms Shanks' history of injury that she will not have restored her full functional range of movement, strength and endurance in her left knee when she is discharged from treatment but rather that she will be equipped with the skills to progressively improve her functional tolerances into the future”.
[6] Folio 92 of the ARD.
Dr Haig, consultant orthopaedic surgeon, qualified, reported on several occasions. His opinion was that consequential claims were unrelated to the original injury and further that the two injuries to the knee were the subject of distinct and separate pathologies. He takes a consistent history of injuries but does not specifically address whether the injury of September 2021 had ceased by the time of the second injury as raised by other specialists discussed above.
Dr Haig did refer to what he considered to be short lived aggravation of the lumbar spine and right knee following the second injury to the left knee on 7 April 2022 but did not specifically comment on any aggravation of pathology in the left knee.[7] The bulk of his reports fail to support the consequential conditions/claim and also appear to be (initially at least) under the misapprehension that the second knee injury occurred in private circumstances.
[7] Folio 83 of the ARD.
Submissions
On behalf of the applicant key submissions were:
(a) this is not an Edmed[8] (Edmed) case and so the denial by the insurer on that basis cannot be maintained;
(b) the respondent has no evidence to refute the left knee had not fully recovered from the earlier injury and that the second injury “resulted from” the first injury;
(c) the applicant satisfies the first two limbs of Oakley;[9] (Oakley);
(d) the applicant has demonstrated ‘material contribution’ as discussed in Ozcan (Ozcan),[10] and
(e) the evidence verifies the applicant sustained a tear of the medical ligament and also underwent a left ACL reconstruction a few weeks after the original injury and had progressed in her rehabilitation but had not recovered. At the time of the second injury it was reported that the applicant had sustained an acute fracture of her tibial plateau but that she had aggravated the status of the knee as it was post the first injury.
[8] Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6.
[9] State Government Insurance Commission v Oakley (1990) 10 MVR 570.
[10] Ozcan v MacArthur Disability Services Pty Ltd [2021] NSWCA 56.
On behalf of the respondent key submissions were:
(a) the applicant has repackaged her evidence. Her first statement reflects that the second knee injury was entirely disconnected from the first injury. There is no evidence in her statement that the subsequent fall on 7 April 2022 was due to any previous injury that she had sustained;
(b) the supplementary statement indicates that she still was undergoing rehabilitation from the previous injury on 2 September 2021 and that her rehabilitation was progressing well;
(c) there are significant pre-existing conditions in both lower limbs and back;
(d) the report of Dr Soo should be rejected as he has made his findings on the basis of the applicant’s “repackaged” statement and so his opinion is not rational or properly informed;
(e) that the Commission should make findings that the applicant sustained an injury to her left knee on 2 September 2021 and again on 7 April 2022 but that the 2022 injury did not occur as a result of the 2021 injury, that is, the impairments, to either or both knees, if any, did not result from the same injury or result from more than one injury arising out of the same incident and therefore cannot be aggregated;
(f) that the applicant has failed to demonstrate that her accepted injury “materially contributed” to the condition of the knee following the second injury as the evidence demonstrates she had made a good recovery and had returned to
pre-injury duties, and(g) the second injury arose from a slip and fall which was an independent act and did not involve an aggravation of the original injury.
APPLICATION OF THE LAW
The law relevant to this application is found in s 65(1) and s 65(2) and s 66 of the Workers Compensation Act 1987 (1987 Act) and s 322 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) (annexed).
FINDINGS AND REASONS
This is a complicated case. The respondent maintains that the applicant has “repackaged” her evidence, a significant allegation which I thoroughly explored. I have carefully examined the statements and whilst I note the initial statement focuses on the slip and fall on 7 April 2022 and is devoid of any reference to the 2 September 2021 injury, I cannot conclude that it is correct to refer to the supplementary statement as “repackaged”. The supplementary statement simply informs that symptoms in the left leg were continuing and that rehabilitation was not complete, which when reconciled against the contemporaneous medical evidence is entirely consistent. I would have accepted the respondent’s contention that the applicant had “repackaged” her evidence had it not been for these contemporaneous records. However the treating doctors’ notes, the physiotherapist’s notes and indeed the report of various qualified doctors all confirm that the knee was healing but had not recovered fully.
Another complexity is that the applicant has had previous symptoms in the lumbar spine and lower extremities. This has complicated matters, however ultimately the burden of any assessment falls upon a Medical Assessor where I will not trespass. The pre-existing conditions did result in much assessment and reassessment by the insurer who ultimately accepted liability for the consequential conditions claimed to the lumbar spine and right knee.
As indicated, the primary issue is whether the left knee injuries can be aggregated.
Counsel for the applicant referred to the matter of Oakley as the foundation of its argument and emphasised the medical evidence supports the applicant as having satisfied the first two ‘tests’ of that authority. As I understand it, Malcolm CJ in Oakley identified three categories where the issue of causation involved consideration of the effect or impact of a subsequent injury on an earlier injury and the assessment of damages consequential upon an earlier injury. His Honour adopted the following statements of principle:
“In my opinion, where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows:
(1) Where the further injury results from a subsequent accident which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
(2) Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of the aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and
(3) Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.”
I was further referred to Ozcan as an authority that an applicant can aggregate injuries, if, as a matter of fact, one injury (and impairment) results from another. The respondent added to that submission stating that I could only find this to be the case if one injury was a “material cause” for the other. Both parties accepted that my findings would be based on factual and medical evidence along with the common sense test on causation found in Kooragang[11] and further that the onus was on the applicant to prove this to be the case.
[11] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.
Following an assessment of the evidence and submissions above, I find that the applicant has satisfied the second limb of Oakley allowing for aggregation because:
(a) I accept the applicant’s statement of events which entirely accords with the evidence as a whole and do not find that she has “repackaged” her evidence to promote a favourable outcome;
(b) the treating medical evidence demonstrates the initial work injury had not resolved prior to the second injury and the respondent’s contention the applicant’s initial injury had resolved is quashed by the contemporaneous evidence which establishes the applicant was still in the recovery phase of her initial injury and the ACL reconstruction, which accords with the supplementary statement made by the applicant;
(c) the qualified medical evidence reinforces the points raised in (b) above, relevantly Dr Soo on behalf of the applicant expressly opined: “The injury in 2022 occurred due to the physical condition the client was in from her 2021 injury” and Dr Nair for the respondent opined:
“There is a body of evidence that both the mechanism of injury resulting in a multi ligamentous injury as well as a subsequent surgical treatment results in internal derangement of the knee as well as accelerates the development of osteoarthritis of the knee. Furthermore, on clinical grounds recovery from an ACL injury reconstruction would typically take at least six months. Thus, I do not accept that the result of the injury sustained in September 2021 ceased”;
(d) the respondent’s qualified evidence has not addressed the issue of any ongoing impacts from the original injury despite being aware that Dr Nair, Dr Soo, Dr Inman and John Silcock reported the effects of the first injury had not ceased at the time of the second injury, and
(e) the respondent has not submitted any evidence to refute the premise that the applicant had still had ongoing symptoms from the first injury, rather focused on pathology which is not relevant to the circumstances of this case. (The respondent’s qualified evidence focused on the distinct pathologies. This is not an Edmed case and so examination of the two pathologies is unnecessary to establish if they were the “same injury” for the purposes of the 1998 Act. Further, as I understand it, the authority of Edmed has been questioned by the Court of Appeal in Ozcan, as the issue of “material contribution” was not argued in Edmed. The decision in Ozcan confirms that the aggregation issue extends further than the notion of one pathology discussed in Edmed.)
Whilst not expressly submitted, for the sake of completeness, I note that the respondent inferred that the third principle of Oakley would apply, that is:
“…where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.”
This argument was run on the basis of what appears to be reliance of the applicant’s initial statement where it is inferred the injury could have happened at any time to anyone because of the nature of the weather and ground surface. Whilst I was initially persuaded by this argument, I find it cannot be maintained as the medical evidence summarised above reveals that the second injury has caused an element of aggravation of the earlier injury (particularly with regards swelling and aggravation of the existing osteoarthritis) and suggests the damage sustained was greater because of aggravation of the earlier injury and the impacts of the surgery to address that injury. I therefore find, the additional damage resulting from the aggravated injury should be causally connected to the original injury.
In summary, I am satisfied that injury was a material factor in contributing to the damage that the applicant sustained in the injury on 7 April 2022 and so find the applicant’s injury could be categorised within the second limb of Oakley, as although it would have occurred had she been in normal health, the damage she sustained had been greater because of aggravation of her initial work injury. This finding is consistent with the authority of Ozcan at [14] where McFarlan CJ, observed “this approach is simply an application of s 65(1) of the 1987 Act that describes the degree of permanent impairment for which compensation is payable as that which ‘results’ from the injury in question and s 65(2) of the 1987 Act and s322 (3) of the 1998 Act”.
SUMMARY
Accordingly, for the reasons above, I make the findings and orders set out on page 1 of the Certificate of Determination
Annexure
Workers Compensation Act 1987
65 Determination of degree of permanent impairment
For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of C
If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.
Note : The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.
66 Entitlement to compensation for permanent impairment
A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker's employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note : No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
Workplace Injury Management and Workers Compensation Act 1998
Assessment of impairment
322 Assessment of impairment
The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured worker until the medical assessor is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.
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