Spennati v Ausgrid
[2021] NSWPIC 356
•16 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Spennati v Ausgrid [2021] NSWPIC 356 |
| APPLICANT: | John Spennati |
| RESPONDENT: | Ausgrid |
| MEMBER: | Michael Perry |
| DATE OF DECISION: | 16 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim under section 66 of the Workers Compensation Act 1987 (1987 Act) for right knee injury; applicant stepped onto uneven ground when knee gave way; evidence of degenerative changes; section 9A test; whether employment/incident was a substantial contributing factor to injury; drawing inferences on common knowledge and ordinary human experience; consideration of E-Dry v Ker; Held - employment was a substantial contributing factor to the injury sustained in the course of employment. |
| DETERMINATIONS MADE: | 1. A finding that the applicant sustained an injury to his right knee, pursuant to s 4(a) of the Workers Compensation Act 1987, in the course of his employment on 10 October 2019. 2. A finding that the applicant’s employment with the respondent was a substantial contributing factor to the injury to his right knee in the course of his employment on 10 October 2019. 3. The matter is remitted to the President for referral to a Medical Assessor for assessment of the degree of whole person impairment with respect to the applicant’s right lower extremity (knee). 4. The following documents are admitted by consent and referred to the Medical Assessor: (a) the Application to Resolve a Dispute; (b) the Reply; (c) the Applicant’s Application to Admit Late Documents dated 16 August 2021; (d) the Respondent’s Application to Admit Late Documents dated 30 August 2021, and (e) the report of Associate Professor Paul Miniter dated 1 September 2021 (leave having been given on 2 September 2021 for the respondent to rely upon such report in the event of referral to a Medical Assessor). |
STATEMENT OF REASONS
BACKGROUND
By Application to Resolve a Dispute (ARD) John Spennati (the applicant) has claimed lump sum compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act). The applicant alleges he sustained a personal injury (under s 4(a) of the 1987 Act) to his right knee in the course of his employment with Ausgrid (the respondent) on 10 October 2019.
ISSUES FOR DETERMINATION
The parties agree the only issue in dispute is whether the applicant sustained an injury to his right knee within the meaning of sections 4 (a) and 9A of the 1987 Act (the issue).
PROCEDURE BEFORE THE COMMISSION
Conciliation and arbitration was conducted by telephone on 2 September 2021.
Richard Petrie of counsel instructed by Hassan Abdallah, solicitor, appeared for the applicant. Josh Beran of counsel, instructed by Nicholas O’Connor, solicitor appeared for the respondent. I have used my best attempts to bring the parties to settlement and am satisfied they had sufficient opportunity to explore that but were unable to reach an agreed resolution.
EVIDENCE
Neither party wished to adduce oral evidence or cross-examine any witness. The following documents were in evidence and considered in making this determination; the ARD and attached documents; the applicant’s Application to Admit Late Documents and attached documents (ALD); the Reply and attached documents and the respondent’s Application to Admit Late Documents and attached documents (RLD).
The applicant’s statement dated 5 July 2021
The applicant has been employed by the respondent since November 2003 and worked as a metering technician since mid-2004. On 10 October 2019 at about 1pm, having aged 58 years, he was in the course of his employment working in Dulwich Hill. He then worked full time, eight hours per day, four to five days per week. His duties included attending to customer’s switchboards. At the above time, he parked his van along the side of the road approximately adjacent to a car park at about 12A Seaview Street, Dulwich Hill. He left the vehicle after having parked:
“to first locate the job site which happened to be the Council building next to the car park … then returned to my van to collect the tools that I required for the job … collected … toolbox and a small ladder from the back of the van … began walking towards the … meter board which was to the right of the building … as I walked along the footpath, I recall twisting my knee next to the tree under which I had parked … after a brief inspection of the footpath … noticed … there was a section of raised bitumen/tar … as I stepped on the footpath … felt my right leg …and … right foot plant onto uneven ground … felt a twist in my right knee … immediately felt some pain in it … thought nothing of it at the time and proceeded with the job … on my return to my van … stumbled on a second part of raised bitumen/tar which I believe placed extra pressure on my knee …”
Although he was conscious of the pain in his right knee, he did not let that deter him from completing the rest of his jobs for that day. The next morning, he woke up with excruciating pain in his right knee. He reported the incident to the respondent, but continued working that day. It was a Friday and he thought he had the weekend to recover from the pain. Over the weekend, he “tried to take it easy and … stay off my feet as long as possible”.
The following Monday, his pain had not subsided. It had become worse. He went to see his local general practitioner, Dr Lombardo, who referred him for scans on his right knee. Before the alleged incident referred to in paragraph 5 above (the incident), he never had any problems with either knee. Since this time, he has been on light duties.
Applicant’s claim form dated 15 October 2019 (the claim form)
The incident date was noted as 10 October 2019 at 13:00 hours; with normal working hours being 07:30 to16:00 hours. The “injury” was reported to the “injury assist number” on 11 October 2019 at 8:30am. The incident occurred at 12A Seaview Street, Dulwich Hill and “Injury details … working alone …on return to depot Rob Watson and Peter Henry saw me limping”.
In answer to form questions “What injuries did you sustain … how the injury happened”, the applicant wrote “Injury to right knee … walking on uneven ground and right leg/knee gave in …”. He had not “sustained the same or similar injury in the past, either at work or away from work”.
Dr Eugene Gehr, orthopaedic surgeon, reports 19 November 2020 and 14 August 2021
In his 2020 report, Dr Gehr stated he “received, reviewed and considered” the claim form, the report of Dr Lombardo dated 19 November 2019 (Dr Lombardo’s report), x-ray and MRI of the right knee and report by Dr Dimmick dated 23 October 2019 (the x-ray and the MRI and the Dimmick report), and Dr Lombardo’s clinical notes as at 23 July 2020 (the clinical notes).
Dr Gehr then noted “Further details on these documents” included Dr Lombardo stating the applicant had been a patient for over 25 years and had not seen him before 10 October 2019 for his knee and “… was walking on an uneven surface at work and felt a sudden onset of knee pain with some swelling. No locking/giving way … an acute medial meniscal tear … right knee …”.
Dr Gehr then noted the x-ray and the MRI; and the claim form recording the detail noted in [9] above. He also took a history of the applicant having to attend five to six job sites per day carrying a laptop and his toolbox; and that if meters had to be replaced, he would carry one or two meters at a time, and often had to walk on uneven ground or climb stairs. He also noted the applicant said he was “walking to a customer’s switchboard; his right foot went into a ditch in the path … twisting force … applied to his right knee …had pain and swelling at that time but it was very severe the next day. Weather and path conditions … good”.
Dr Gehr then examined the applicant’s lower and upper extremities and spine. He concluded that the applicant “injured his right knee at work on 10/10/2019. As per history and examination including imaging, he had damage to the lateral and medial meniscal structures …”. He diagnosed “right knee lateral and medial meniscal injuries from work that is from the subject injury” (I take that last reference to “injury” as likely referring to the incident).
In answer to a question about “Injuries observed by you and … relationship between the accident and … condition”, Dr Gehr stated “I have outlined the injuries he sustained as a result of the subject accident”.
Dr Gehr’s 2021 report noted he had been sent two reports of Associate Professor Paul Miniter (A/Prof Miniter - I assume these are the reports of 4 December 2019 and 16 February 2021). The applicant’s solicitor asked three questions of Dr Gehr, seeking clarification of his 2020 report, and relevantly, his “opinion as to the cause of our client’s injuries and whether there are any degenerative changes that have impacted same” and also his comments generally in relation to the reports of A/P Miniter. In response, Dr Gehr stated the applicant:
“injured … knee … on 10/10/2021 … MRI … showed degenerative changes involving the medial … and … lateral meniscus … there are few if any degenerative changes involving the joint surfaces … most likely … such changes would have remained asymptomatic if … not … for the … accident … it is unreasonable to put down all the problems of his right knee to degenerative changes … also note the x-ray of the right knee … states the joint spaces are preserved …”
Dr Gehr then sought to respond to the applicant’s solicitor’s question about commenting on A/Prof Miniter’s reports generally and disagreed with a comment in A/Prof Miniter’s 2021 report about the applicant “experiencing rapid decline in knee function associated with degenerative changes” and pointed out that the MRI and the x-ray “showed few of [sic, read as “if”] any degenerative changes apart from those associated with meniscal pathology”.
Dr Joseph Lombardo, report 19 November 2019 and clinical notes as at 23 July 2020
Dr Lombardo’s report notes the applicant “has been a patient of mine for over 25 years … not seen John prior to the 10th October 2019 for his knee …”. He then notes this history, “John was walking on an uneven surface at work and felt …sudden onset of knee pain with some swelling. No locking/giving way … has an acute medial meniscal tear to his right knee … needs to see an orthopaedic surgeon for a medial meniscal repair”.
Dr Lombardo attached the clinical notes to the report. Those notes include the Dimmick report, which notes, inter alia, the “clinical notes: recent injury. ? Medial meniscal tear”.
Otherwise, the clinical notes run from 2015, and show no entries going to any problems the applicant was having with his right knee before 15 October 2019 when Dr Lombardo noted a consultation with the applicant and recorded “WC R knee injury walking on uneven ground at work 5 days ago … on light duties … swelled slightly pain with stairs no locking/giving way”.
The reply also attached a Certificate of Capacity from Dr Lombardo dated 15 October 2019. It relevantly stated, in answer to the question “Diagnosis of work related injury/disease …” the following “(right) knee injury? Torn medial meniscus”. In answer to the next question “How is the injury related to work …” the doctor wrote “Walking on uneven ground at work”.
Reports of A/Prof Miniter dated 4 December 2019 and 16 February 2021
A/Prof Miniter’s 2019 report followed his examination of the applicant on 22 November 2019. He noted his report was “based on the history provided by (the applicant), the appropriate clinical examination and the documentation provided”. He noted the applicant:
“told me that he was walking to a customer’s switchboard when his knee simply gave way … did not recall a twisting episode but it was an uneven surface … no previous history of knee issues … knee has not returned to normal since that time … pain at the moment is relatively mild … takes some analgesia … not had any episodes of locking or jamming …”
A/Prof Miniter noted the MRI scan demonstrated a complex tear of the medial meniscus overlaying a degenerate medial compartment with significant chondral loss over the femoral, and to a lesser extent tibial, surfaces. He also noted a comment in the MRI report of a displaced fragment in the posterior recess of the knee – relating to the meniscal tear; and also a meniscal tear on the lateral side with an associated cyst, with the remainder of the knee appearing to be satisfactory, in particular the patellofemoral joint appearing normal.
A/Prof Miniter stated that examination of the applicant’s knee showed features of degenerative change relating to the medial compartment, and that it was “difficult to know the chronology of the MRI scan and even though there appears to be a displaced fragment of meniscus, it is difficult to determine when this occurred…”. A/Prof Miniter then stated that:
“it should be clearly understood that he has features of degenerative disease … sustained an episode of giving way of the knee, probably associated with a failure of the medial meniscus, in turn a degenerative condition … from my perspective … not a specific work-related condition. Whilst it is to be acknowledged that he walks over uneven ground and that he is involved in a regular walking program, the main issues … are constitutional … is significantly overweight, has a markedly raised BMI … low exercise level and is of the correct age to be experiencing medial compartment osteoarthritic change … therefore not the dominant presentation of a work-related injury.”
A/Prof Miniter opined that the “investigations … effectively … are of degenerative change affecting the medial menisci with what appears to be a displaced fragment posteriorly in the medial meniscus”. The clinical diagnosis is medial compartment osteoarthritic change. In answer to a specific question requesting A/Prof Miniter to “list all the work related and non- work related factors contributing to the worker’s condition”, he stated “The most significant factor contributing to this matter is non-work related. He has constitutional disease which relates to an increased BMI and his age group (emphasis added)”.
A/Prof Miniter was specifically asked this question: “Is the injury mechanism, i.e. walking on even ground, consistent with injury itself and what are the relative factors to consider…”. The doctor answered “The injury mechanism has been commented on above”. He was also asked to identify “Of all the factors contributing to the worker’s condition, which do you consider to be substantial, i.e. is the present condition a result of previous injuries, pre-existing conditions and abnormalities, or any other relevant non-work related factors?” He answered “Of all the factors contributing to the condition, the most substantial presentation relates to degenerative change affecting the medial compartment”.
A/Prof Miniter also stated that if it was not for the applicant’s employment, “a similar injury or indeed this very same injury is quite likely to have happened in the pursuit of his normal everyday existence”.
A/Prof Miniter saw the applicant again on 15 February 2021 and reported the following day, noting the applicant gave a history of his right knee becoming more troublesome as time passes. He examined both knees and noted the right was “particularly irritable”. He also noted he previously felt the applicant had a degenerate tear of the medial meniscus and that “he told me that he had twisted his knee today but when I last saw him, he told me that his knee simply gave way whilst he was walking. The history seems to be different this time”.
A/Prof Miniter then opined that the applicant was experiencing a rapid decline in knee function associated with degenerative change and that up-to-date x-rays and MRI scans would demonstrate such progression. He was asked to list all the work related and non-work related factors contributing to the applicant’s condition. He answered “the non- work related issue is his age and his weight. Constitutional predisposition is present. I could not clearly identify a work related issue and I have discussed this in the past”.
A/Prof Miniter was then asked this question:
“Of all the factors contributing to the … condition, which do you consider to be substantial, i.e. is the present condition a result of previous injuries, pre-existing conditions and abnormalities, or any other relevant non work related factors?”
He answered:
“Of all the factors contributing to his condition, the most substantial is his underlying degenerative disease associated with his weight and with his age”. He was also again asked to consider the question of whether the claimed injury, or a similar injury, would have happened anyway at or about the same stage in the applicant’s life “if not for the worker’s employment”. He answered “I regard this matter as being one of onset associated not with his employment but rather with the passage of time and his age”.
SUBMISSIONS
Counsel provided helpful oral submissions. These have been recorded and it is unnecessary to fully record them. I have taken all submissions into account. The following is a summary.
Submissions for the applicant
Mr Petrie went through the applicant’s statement and summarised it in detail. I do not need to trace through that again given I have done so above. This also applies to the claim form (ARD 5-7) and the reports of Dr Gehr referred to above.
Dr Gehr concludes that the applicant’s lateral and medial meniscal structures were damaged at the time of the incident he has described in the Statement. He took into account the claim form, the clinical notes, Dr Lombardo’s report, the x-ray and the MRI.
The applicant need to prove that the employment was a substantial contributing factor to his injury and cases such as Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324 (Badawi) should be taken into account.
A/Prof Miniter notes in his 2019 report that the MRI scan demonstrates a complex tear of the medial meniscus overlaying a degenerate medial compartment. He also notes the comment in the Dimmick report of a “displaced fragment in the posterior recess of the knee. This relates to the meniscal tear … on the lateral side there is also a lateral meniscal tear”.
A/Prof Miniter goes on to note that “even though there appears to be a displaced fragment of meniscus, it is difficult to determine when this occurred” (R16).A/Prof Miniter finds the applicant sustained an episode of giving way of the knee probably associated with failure of the medial meniscus. It must be assumed that by “failure”, he means “tear”. In effect, A/Prof Miniter is conceding that there was a relevant injury.
Submissions for the respondent
If the applicant’s case is to succeed, it is necessary or very important for the Commission to find he sustained a twist to his knee during the alleged incident. This is because the only doctor who provides support for his case in relation to the issue is Dr Gehr; and his findings are on the basis that there was a twist during such incident.
But it should not be found that the applicant suffered a twist. There is no contemporaneous evidence to support it. Such a history does not appear in the clinical notes, Dr Lombardo’s report, or the claim form. The only history in these records is that the applicant was “walking on uneven ground”.
A/Prof Miniter’s 2019 report is also reasonably contemporaneous to the incident. He noted the applicant “told me that he was walking … when his knee simply gave way … did not recall a twisting episode but it was an uneven surface”. In his 2021 report, A/Prof Miniter noted “he told me that he had twisted his knee today but when I last saw him, he told me that his knee simply gave way whilst he was walking. The history seems to be different this time” (R22).
The contemporaneous medical certificates also fail to record any twisting episode. On the 15 October 2019 certificate, Dr Lombardo only notes “walking on uneven ground at work” (R28). There is no reference here to either a twist or even a trip. Also, Dr Lombardo’s report (A33) only relevantly refers to the applicant walking on an uneven surface when he felt a sudden onset of knee pain with some swelling.
By comparison, Dr Gehr saw the applicant for the first time on 19 November 2020. He took a history of the applicant “walking to a customer switchboard; his right foot went into a ditch in the path. A twisting force was applied to his right knee. He had pain and swelling at that time but it was very severe the next day …” (ARD 27-28). This history is not supported by the contemporaneous evidence and should not be accepted.
There is no claim by the applicant to say that his injury was an aggravation of a disease. Even if he amended the claim now to do so, he would not have the evidence to support it because he would need to show that the employment was the main contributing factor. There is a disease in the applicant’s right knee and there is no reliance on s 4(b)(ii) of the 1987 Act.
Dr Gehr does not deal with the inconsistencies in the histories relating to walking over uneven ground and/or a twist.
There is an insufficiently “fair climate” for Dr Gehr’s opinion to be accepted given the history he relies upon of the applicant’s right foot going into a ditch and a path when a twisting force was applied to his right knee. Cases such as Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 (Hancock) are relevant.
FINDINGS AND REASONS
In relation to s 9A, the question is whether the applicant’s employment was a substantial contributing factor to his right knee injury. The emphasis on the indefinite article “admits of the possibility of other, and possibly non-employment-related substantial contributing factors” (AV v AW [2020] NSWWCCPD 9 at [66] (AV)). Whether “substantial contributing factor, for the purposes of s9A of the 1987 Act is satisfied is a question to be decided on the evidence overall, including a consideration of the matters described in s 9A(2). It is not purely a medical question (AV at [70])”. In AV, Snell DP observed that:
“… (the test being “one of causation”) … is consistent with the discussion of s9A … in Badawi … referred to the “causative” element of the test in s9A … consistent with the discussion in … Rattenbury in which Roche DP … discussed whether “main contributing factor” was satisfied, by reference to whether there were competing causal factors to the relevant “disease” injury … (76) … where the relevant aggravation involves both employment and non-employment factors, the evaluative process involves a consideration of the causative role of both. An evaluation that involved only employment factors … would be inconsistent with the context of the provision …”
Snell DP also noted in AV [at 31] a decision of the President, Keating DCJ (Keating P) in E-Dry Pty Ltd v Ker [2017] NSWWCCPD 26 (Ker):
“… in which His Honour dealt with the availability of an inference that commencing to run placed greater strain on a worker’s knee than if he had continued walking. Holding the inference to be soundly based, His Honour said that an inference may be drawn based on “common knowledge and ordinary human experience”
In Ker, Keating P noted the s 9 A test “is a question of fact which is determined following an evaluation of all the evidence” (at [107]); and that in accordance with in Badawi, the word “substantial” must be given effect, and relevantly means “in a manner that is real and of substance” and does not apply where, as a matter of practical reality, the contribution of the employment of the injury was of, or had “little substance”. Keating P also noted that s 9A requires consideration of “the employment concerned” to determine whether it was a substantial contributing factor to the injury in view of the relevant circumstances – including matters in s 9A(2). His Honour noted Badawi at [105], where the plurality stated (at [101]):
“… in determining … whether the employment concerned is a substantial contributing factor … required to consider the employment concerned and the circumstances surrounding the occurrence of the injury, including activities that might be undertaken during an interval … Those ….may be fully encompassed by the factors specified in s9A(2), or there may be other factors that are relevant to take into account.”
Keating DCJ also stated that:
“whether employment is a substantial contributing factor to an injury is a ‘question of fact and is a matter of impression and degree … to be decided after a consideration of all the evidence’ … this is an evaluative process … expert evidence may assist in determining questions of causation but is not necessarily determinative … (referring also to Nguyen v Cosmopolitan Homes [2008] NSWCA246 at [60] – [61]”
Satisfaction of s 9A does not require a worker to establish that the employment is the substantial contributing factor to the injury (Ker at [117]).
The facts in Ker are similar to the present case. Mr Ker was a carpet cleaner, and part of his role required him to attend the premises of potential customers and provide quotes for carpet cleaning or restoring. On 21 March 2016, it was raining and he was walking across a road on his way to attend a job at a customer’s residence when he injured his right knee. An arbitrator found that as he was crossing the road, he “lunged” across a gutter, being conscious of trying to keep his shoes dry before entering the customer’s home, given there was a build-up of water from rain in the gutter. It was found that the action of “lunging” across the gutter constituted the commencement of an action described as “running across the road but which was cut short by the collapse of the right knee”. The arbitrator inferred this action would have placed greater strain on the right knee than would have been the case had he continued to walk. The arbitrator then applied the common-sense approach to find he was satisfied of the elements of s 9A, even though “Mr Ker was walking in a straight line without any twist, pivot or turn, nor that he was on any unstable or uneven ground” (Ker at [37]).
Keating P analysed the authorities relating to drawing of inferences and noted (at [130]):
“the Commission may more readily draw an inference which is often according to ‘experience and knowledge of human affairs’ in the absence of any plausible competing hypotheses … the only possible competing hypotheses was that the injury could have occurred spontaneously, such as occurred in 2013 (Mr Ker had suffered a rupture of his anterior cruciate ligament in 2011 and following surgery experienced a re-rupture of the graft in 2013) … arbitrator excluded that hypothesis because … notwithstanding the congenital abnormality in Mr Ker’s knee, it had not prevented him from engaging in active sporting activities and full-time employment”.
In the applicant’s case, I find that the time and place of injury was as I have set out in [8] above and take it into account. I also take into account what the applicant was doing at that time. There is no contest about his evidence in this respect – other than a twist at the time of the injury. There is no evidence to otherwise traverse his evidence as to what he was doing at the time. I accept, and find, that at this time and place, he walked on an uneven surface in the course of his employment and felt a sudden onset of knee pain. This is the description in Dr Lombardo’s report, and is consistent with the applicant’s statement and Dr Gehr’s report.
I also accept, and find, that at this time, as the applicant stated, he parked his car adjacent to the car park next to the council building where he was to perform his meter reading duties.
I also accept, and find, that as he walked along the footpath after alighting the car, he was carrying something. This further detail does not appear in Dr Lombardo’s report, the claim form or A/Prof Miniter’s 2019 report. However, in my opinion, this is not an uncommon situation: a witness, not having significant experience of providing statements which may be relevant in future litigation, responding to particular questions about what occurred in a direct way without putting any further gloss on such information without being asked. I think it is likely that he was carrying tools because that was part of his job (e.g. ARD 1 paragraph 11).I think it is also not uncommon for witnesses to have recollections of events in the past which are not perfect in all respects. Dr Gehr took a history from the applicant, on 19 November 2020, that he was carrying a laptop and a toolbox when walking from the car to the meter board in the council building. But in his statement, the applicant wrote that he was carrying a toolbox “and a small ladder”. It occurs to me that there may have been a misunderstanding between Dr Gehr and the applicant – to the extent that “ladder” was mistaken for “laptop”. But I am unable to find that as a likely inference, particularly when the statement also provides the adjective “small”. The applicant may be mistaken when he refers to a ladder in his statement. The history taken by Dr Gehr was more contemporaneous to 10 October 2019, albeit by only nine months. Ultimately, I do not think it matters whether it was a small ladder or a laptop, but I do think it more likely it was a laptop. I find that the applicant was carrying a toolbox and either a laptop. This is likely and common sense because it was part of his duties and he was on his way directly to perform those duties (ARD page 1 par 11 and page 2 pars 13-15).
I accept the applicant’s evidence generally. I think he has done his best to tell the truth. There is nothing in the evidence to contradict my impression that he has a very good work history, well serving the respondent for nearly 20 years; and in particular nothing to suggest he would be not doing his best to tell the truth, apart from the observation from A/Prof Miniter that he provided contradictory histories in relation to the twist on each of the occasions that doctor saw him. In that respect, I believe the applicant is genuinely mistaken. A/Prof Miniter recorded in December 2019 that the applicant did not recall a twisting episode. The applicant then referred to a twist in his 5 July 2021 statement; without commenting on the history and apparent contradiction pointed out by A/Prof Miniter in his report dated 16 February 2021; and which was part of the Reply and therefore likely to be in the possession of the applicant or his lawyers before he made that statement. Therefore, I do not accept a twist occurred.
However, to the extent the respondent has submitted that the Commission needs to find that the applicant sustained a twist before I can accept the evidence of Dr Gehr, or the requisite causal nexus, I do not accept such submission. Dr Gehr took a history from the applicant that “his right foot went into a ditch in the path” and there was a “twisting force … applied to his right knee”. However, the “twisting…” was only part of the history Dr Gehr took into account. He also considered the claim form, Dr Lombardo’s report and the clinical notes. There is no reference to a twist in that material. He particularly noted that Dr Lombardo stated the applicant had been a patient for over 25 years, and that he had not seen the applicant previously for knee problems, and that the history was of the applicant walking on an uneven surface at work and feeling a sudden onset of knee pain with some swelling.
Dr Gehr’s 2021 report responds to A/Prof Miniter’s reports, stating he believed there were “few if any degenerative changes involving the joint surfaces” and that it was most likely that such changes would have remained asymptomatic if it were not for the accident; and that it was “unreasonable to put down all the problems in his right knee to degenerative changes”. This does not expressly state that the employment was a substantial contributing factor to the injury. But it shows that while Dr Gehr accepts there were some underlying degenerative changes, the incident has produced the symptoms in circumstances where such symptoms would not have otherwise become symptomatic. He does not state in conclusion that his ultimate opinion was necessarily reliant on the “twisting force”. I accept this evidence from
Dr Gehr over the evidence of A/Prof Miniter because it more closely aligns with my impression of the facts (see also paragraph – below).In this regard, I take into account the principle that while expert evidence may assist in determining questions of causation, it is not necessarily determinative. As in Ker, having regard to the principles noted in [44] – [47] above, I need to determine the necessary causal relationship by reference to the whole of the evidence, including the expert evidence, and not abdicating the Commission’s responsibility to any expert.
The respondent refers to Hancock in its submission that there was not a “fair climate” for
Dr Gehr’s opinion to be accepted. However, in that case, Beazley JA noted (at [74]) the:“… principle of longstanding … referred to by the High Court in Paric … where the court … said … it is trite law that for an expert medical opinion to be of any value, the facts upon which it is based must be proved by admissible evidence … But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based … (emphasis of Beazley JA) … (82) … although not bound by the rules of evidence … the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings … report will need to confirm, in a sufficiently satisfactory way, with the usual requirements for expert evidence … does not require strict compliance with each and every feature … in Makita …”
Having regard to all the evidence, I find that facts upon which Dr Gehr’s report are based are sufficiently as I find them to allow me to utilise his evidence to support a finding of injury under s 4(a) and to assist my evaluation of the s 9A question. Another reason why I do not think the twist ultimately matters is because to some extent the word “twist” is a label or conclusion which may, in some circumstances, mean different things to different people.
I also accept that the word “ditch”, while not necessarily precisely corresponding to the term “uneven surface” is, in all the circumstances of this case, sufficiently similar to allow me to accept Dr Gehr’s evidence. I infer that the applicant did not mean, nor would Dr Gehr have understood he meant, to use “ditch” in the sense of a deep trench. Dr Gehr wrote “his right foot went into a ditch and the path”. I think it more likely that this was meant as significantly uneven ground between the raised bitumen/ tar and the path. I accept the applicant’s evidence that the uneven ground was this area of raised bitumen/car next to a tree under which he had parked his vehicle. It is also significant that he was carrying his work tools. I infer, by common knowledge and ordinary human experience, that carrying the tools that I have found the applicant was carrying would likely reduce one’s ability to safely walk across and negotiate the type of uneven ground I have found the applicant met during the incident. This was one of the matters Dr Gehr took into account (ARD 27 penultimate paragraph).I accept the applicant’s and Dr Gehr’s evidence (apart from the twist in each case) and infer, taking into account all the evidence, that the applicant’s stepping onto the uneven ground imposed sufficient force to his knee, and was responsible for the “immediate…” or “sudden” onset of pain and at the time is right knee “gave in”. I do so on the basis of all the evidence noted above and my common knowledge and ordinary human experience. I also find this suddenly produced the symptoms the applicant has described, and which persist to this day.
A/Prof Miniter believes that “a failure of the medial meniscus” was “in turn a degenerative condition … not a specific work related condition”. However, his report does not adequately address the substantial contributing factor question. In fact, he does not clearly enough rule out the incident and/or the employment being a substantial contributing factor to the injury. For example, he stated “whilst it is to be acknowledged that he walks over uneven ground”, he then goes on to refer to constitutional factors (markedly raised BMI, overweight, low exercise level, age) and to opine “therefore not the dominant presentation of a work related injury”. He later states “the most significant” and “the most substantial” contributing factor relates to the degeneration (emphasis added). It is not so much the form of these words “the” “most” or “significant”, that concerns me: it is rather that A/Prof Miniter has not, in either report, adequately addressed, either in form or substance, the question of whether the incident or employment was a substantial contributing factor.
I am also unprepared to accept A/Prof Miniter’s opinion – even if it does amount to there being no work-related component at all in the applicant’s knee condition (and it is unclear whether or not he does go that far), because the history he takes, or the way he deals with it, does not properly accord with the facts as I find them to be. For example, there is no reference in his reports to a sudden or immediate onset of pain at the time of the stepping onto the uneven ground. He states the applicant “told me… he was walking to a … switchboard when his knee simply gave way… it was an uneven surface”. Dr Hitchen repeated in his 2021 report that “when I last saw him he told me that his knee simply gave way whilst he was walking”. I think this is an unlikely history. There is no reference to the applicant suffering any pain at all at about the time of stepping onto the uneven ground, let alone suddenly. I prefer the history in Dr Lombardo’s report, which is more contemporaneous to the event than A/Prof Miniter’s 2019 report, even if only by about two weeks. Also,
Dr Lombardo’s history has the greater ring of truth about it because it is consistent with the applicant’s evidence which I accept apart from the twist. It is also not totally clear as to whether A/Prof Miniter intended to communicate that the applicant used the word “simply” or that was a summary he inserted.Dr Lombardo’s report assists in my analysis. His 15 October 2019 certificate does as well. Part of that document was a certification that the doctor thought the right knee injury was work-related. Of course, very limited weight, if any, can be given to that comment in terms of being an expert opinion. But it does assist in the evaluative process in the context of all of the evidence because his preparedness to certify the injury as being work-related is consistent with the facts as I have found them and Dr Lombardo’s report.
The s 9A test is a question of fact which is determined following an evaluation of all the evidence. In my opinion, Dr Lombardo’s statement that the applicant had been a patient of his for over 25 years, and had not seen him before 10 October 2019 in relation to any knee condition, is relevant. It is consistent with, and corroborative of, the applicant’s statement that he did not have any problem with his knees before that time. Similarly, Dr Lombardo’s statement that “John was walking on an uneven surface at work and felt a … sudden onset of knee pain with some swelling” is consistent with the applicant’s evidence of immediately feeling pain in his right knee as his right foot planted onto uneven ground. Also, the clinical note is not inconsistent with the applicant’s evidence, and is capable of being read to be consistent with it. Taking all the evidence into account, I find the applicant’s evidence in this respect to be the likely facts. I believe this is also consistent with the claim form referring to “walking on uneven ground and right leg/knee gave in”, even if full detail does not appear.
In Ker, Keating P found the arbitrator was entitled to draw an inference that commencing to run placed greater strain on the worker’s knee than if he had continued walking. I find, a fortiori, that the applicant’s stepping onto uneven ground placed greater strain on his knee than if he had stepped onto even ground. The evidence going to the detail of the uneven ground is not part of the history taken by A/Prof Miniter. In Ker, Keating P found that in the absence of any plausible competing hypothesis, the only possible competing hypothesis was that the injury could have occurred spontaneously, such as occurred to Mr Ker in 2013. Such a competing hypothesis would, to my mind, be even less likely in the applicant’s case because of the total absence of any previous symptoms, let alone injury and surgery.
It is interesting to note that in Ker’s case, it appears implicit that if Mr Ker had, inter alia, stepped on uneven ground it may more easily have allowed for an inference to be drawn about the necessary causal inference. In this regard, I note A/Prof Miniter’s acknowledgement of the applicant walking on uneven ground. His report not, adequately rule out the incident and the employment being a substantial contributing factor. I appreciate he has stated in his 2021 report that he could not clearly identify any work-related aspect of the injury. But he provides no adequate reasoning for that, nor does he deal with the nature and/or extent of any contribution the employment and/or incident produced – except to point out that other constitutional factors were the predominant and/or the most substantial contributing factor.
The respondent has also submitted that the evidence overall is consistent with the applicant having suffered a disease in his right knee, and there is no reliance on s 4 (b)(ii) of the 1987 Act. To the extent this means the applicant’s case should fail for that reason alone, I do not agree with such submission. It is true there was no reliance on s 4(b)(ii) by the applicant. However, the circumstances overall, including the asymptomatic state of the applicant’s right knee before 10 October 2019, the sudden onset of pain when the applicant stepped upon uneven ground, and the continuity of symptoms thereafter, bring to play the principles discussed in Rail Services Australia v Dimovski [2004] NSWCA 267 (see also The Presbyterian Church (NSW) Property Trust v Pingol [2014] NSW WCCPD 80 at [105-107]).
As to the nature of the work performed and the particular tasks of that work, one of the applicant’s tasks was to perform activities that he was performing on 10 October 2019, that is, travelling to customer’s premises and perform meter reading. He stated (ARD 1) that this role consisted of carrying heavy tools, attending to customer’s switchboards, constant walking, working below waist height, constant bending, heavy lifting and constant twisting and turning. Otherwise, this factor in s 9A(2) is not influential in the disposition of the case.
As to “the duration of the employment”, the applicant had been in employment with the respondent since November 2003 and worked as a metering technician since mid-2004.
As earlier found, I think he has a good work history. Otherwise, this factor is not particularly significant in the overall analysis.I need to address the s 9A(2)(d) factor:
“the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the applicant’s life, if he had not been at work or had not worked in that employment”.
In his 2019 report, A/Prof Miniter stated that “a similar injury or indeed this very same injury is quite likely to have happened in the pursuit of his normal everyday existence”. This is a conclusion provided without any reasons. To the extent that I can infer that the reason is on the basis of his opinion that “of all the factors contributing to the condition, the most substantial (or predominant) presentation relates to degenerative change affecting the medial compartment”, and that he is unable to clearly identify a work related factor, I do of take such opinion(s) into consideration. But with respect, I do not find it/them persuasive. As well is for the reasons already provided in not accepting the opinion of A/Prof Miniter, it is partly because it does not clearly provide reasoning in relation to the particular question. It is also because the question, repeating part of s 9A(2) included reference to “would have happened anyway, at or about the same stage in the worker’s life”, whereas the answer referred to “quite likely to have happened in the pursuit of his normal everyday existence”. There is no indication in the answer as to what stage of the applicant’s life was being referred to.
The other reason I have which militates against the persuasiveness of this opinion feeds back into what I believe is the unlikelihood of A/Prof Miniter’s opinion that the most substantial, or predominant, factor is degeneration. In effect, this opinion either fails to take into account, or puts to one side, the applicant’s stepping onto uneven ground or is tantamount to an opinion that it was a mere coincidence that the applicant’s knee “gave way” (due to constitutional factors) at that time, and when the applicant suffered immediate pain -without going into an analysis of why the contemporaneity of the stepping onto uneven ground and sudden onset of pain should be dismissed as a factor. It may be, but it is unclear, that he was not aware of those factors. Either way, I prefer the evidence of Dr Gehr. He states in his 2021 report that:
“there are few, if any, degenerative change [sic] involving the joint surfaces … most likely that such changes would have remained asymptomatic if they had not been for the workplace accident of 10/10/19. I think it unreasonable to put down all the problems of his right knee to degenerative changes”.
I accept Dr Gehr’s opinion in this respect. I appreciate that he also does not provide a temporal element to his opinion that the “changes would have remained symptomatic”. However, taking all the evidence into account, it is likely that such opinion equates to a probability that the injury or similar injury would not have happened anyway at about the same time or the same stage of the applicant’s life if the applicant had not been at work or had not worked in that employment.
Another reason militating against the likelihood of the injury, or similar injury, happening anyway, at about the same time or at the same stage of the applicant’s life, if he had not been at work or had not worked in that employment relates back to the duties he was required to perform and the particular tasks of that work, specifically, the carrying of tools. As noted above, and for the reasons given, it is my opinion that this is a significant factor and it is not likely to have been a factor had the applicant not been at work or worked in that employment at about the same time or at the same stage of his life.
The applicant’s “state of health before the injury and the existence of any hereditary risks” is a s 9A(2) factor that is either neutral or favours the applicant. I do not understand
A/Prof Miniter’s “constitutional” factors being hereditary. Even if that is wrong, it makes no difference to the overall analysis after consideration of this factor because I have taken into account such “constitutional” factors in the analysis. Otherwise, relevantly, the applicant’s state of health before the injury was good.The applicant’s “lifestyle and his … activities outside the workplace” is also a factor that is not particularly significant. He was a hockey player. But there is no evidence or submission such activity was relevant. A/Prof Miniter noted this activity but made nothing of it.
Having regard to all the evidence, I believe the contribution of the employment to the applicant’s right knee was not of little substance. It was real and of substance.
For the above reasons, I find that the applicant did sustain an injury to his right knee pursuant to s 4(a) as a result of the incident in the course of his employment on 10 October 2019. For the above reasons, I also find that the applicant’s employment with the respondent was a substantial contributing factor to the injury to his right knee in the course of his employment on 10 October 2019.
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