Tiritabua v Bartter Enterprises Pty Ltd
[2008] NSWWCCPD 145
•15 December 2008
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Tiritabua v Bartter Enterprises Pty Ltd [2008] NSWWCCPD 145 | ||||
| APPELLANT: | Veniyasi Tiritabua | ||||
| RESPONDENT: | Bartter Enterprises Pty Ltd | ||||
| INSURER: | QBE Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | WCC3549-08 | ||||
| DATE OF ARBITRATOR’S DECISION: | 4 September 2008 | ||||
| DATE OF APPEAL DECISION: | 15 December 2008 | ||||
| SUBJECT MATTER OF DECISION: | Evidence; disease; aggravation of disease | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Robb & Associates | |||
| Respondent: | Workplace Law | ||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination made on 4 September 2008 is confirmed. | ||||
| Each party is to pay his or its own costs of the appeal. | |||||
INTRODUCTION
This matter concerns the disease provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) and whether the applicant, Mr Tiritabua, suffered an injury to his right knee in the nature of an aggravation of a disease.
BACKGROUND
Mr Tiritabua was born in Fiji in 1968 and came to Australia to play rugby in 1994. He started work with the respondent, Bartter Enterprises Pty Ltd (‘Bartter’s’), as a “pick-up crew member” on 14 February 1995. Essentially, he worked as a labourer whose duties included, among other things, running after and catching chickens, operating a forklift, and general maintenance.
In 1991 he injured his right knee while playing rugby. This injury required him to take two or three weeks off work. He continued his normal duties until he injured his left knee playing rugby in 1995. This injury put him off work for three days. Again, he returned to and continued his normal duties. He also returned to rugby and played until 2003.
In late 2005 his right knee caused him some difficulties and at that time, or in early 2006, he made enquiries about getting specialist treatment for his right knee.
As Mr Tiritabua stepped off a forklift at work on 11 January 2006, he turned and felt severe pain in the left side of his left knee. His knee immediately became swollen and he could not walk properly. He reported the incident, but did not stop work until 12 January 2006. He saw his general practitioner, Dr McEniery, on 13 January 2006, who referred him to an orthopaedic surgeon, Dr Redgment, who he saw on 14 March 2006.
Mr Tiritabua returned to work on 21 March or 7 May 2006. The insurer, QBE Workers Compensation (NSW) Limited (‘QBE’), declined liability for his claim and he filed a claim in the Commission on 17 October 2006 (matter No. 16330 of 2006) seeking weekly compensation and medical expenses in respect of the injury to his left knee on 11 January 2006. That claim was settled by consent on 19 February 2007 with the insurer agreeing to pay the closed period of compensation and reasonably necessary medical expenses.
On 28 March 2007, Mr Tiritabua was admitted to Wagga Wagga Base Hospital and underwent bilateral knee replacement operations and, as a result, was off work from 28 March until 5 June 2007.
By letter dated 22 January 2008, Mr Tiritabua’s solicitor claimed compensation for the time off work, lump sum compensation in respect of a 21% whole person impairment as a result of his left knee condition and 17% whole person impairment as a result of his right knee condition, together with hospital and medical expenses under section 60 of the 1987 Act and compensation for pain and suffering under section 67 of that Act. In respect of the left knee, Mr Tiritabua alleged he received a twisting injury to that knee on or about 11 January 2006 and that, as a result of the nature and conditions of his employment and the incident on 11 January 2006, he aggravated pre-existing degenerative changes in that knee. In respect of his right knee, he alleged that the nature and conditions of his employment, which involved walking and running over rough and uneven surfaces and repeated lifting and bending, caused or alternatively aggravated degenerative changes in that knee. In addition, he alleged that he walked with a limp as a consequence of his left knee injury and, as a result, aggravated the pre-existing degenerative changes in his right knee. He alleged a deemed date of injury in respect of the right knee of 28 March 2007.
In a section 74 notice dated 11 March 2008, QBE denied liability for the claims on the following grounds:
(a)Mr Tiritabua had not suffered an injury within the meaning of section 4 of the 1987 Act;
(b)the alleged injury on 11 January 2006 had resolved;
(c)ongoing treatment was no longer reasonably necessary;
(d)employment was not a substantial contributing factor to the injury, and
(e)Mr Tiritabua had no permanent impairment as a result of his injury.
Whilst the notice referred to “injury” (singular) and mainly referred to the January 2006 incident, Mr Tiritabua took no issue at the arbitration, or on appeal, that the notice also disputed liability in respect of the nature and conditions claims for both knees.
By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 12 May 2008, Mr Tiritabua claimed compensation on the basis of the particulars provided in the letter of 22 January 2008. In its Reply filed on 29 May 2008, Bartter’s relied on the issues raised in its section 74 notice.
The Commission listed the matter for conciliation and arbitration on 13 August 2008 when the Arbitrator heard lengthy submissions, but heard no oral evidence. In a reserved decision delivered on 4 September 2008, the Arbitrator made the following determinations:
“1.There will be an award for the Applicant in respect of the injury occasioned to the left lower extremity (left knee) as a consequence of the injury at work on 11 January 2006 and as a consequence thereof the Registrar is requested to refer the Applicant to an Approved Medical Specialist for a determination as to the Whole Person Impairment attributable to that injury. The documents to go forward to the AMS are those I have alluded to in paragraph 7 herein.
2. There will be an award for the Respondent in respect to the Applicant’s claim for injury occasioned to the right knee.
3.The Respondent to pay the Applicant’s reasonable and necessarily incurred Section 60 expenses relative to the left knee.
4.The Respondent to pay the Applicant weekly compensation at the rate of $528.54 in respect to the period of total incapacity, namely 28 March 2007 to 5 June 2007.
5. The Respondent to pay the Applicant’s costs as agreed or assessed.”
By an appeal filed on 23 September 2008, Mr Tiritabua seeks leave to appeal the Arbitrator’s determination and orders in respect of the claim for the right knee. Neither party challenges the orders in respect of the left knee.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the quantum in issue on appeal satisfies the thresholds in section 353(2) of the 1998 Act.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE EVIDENCE
As Mr Tiritabua only challenges the orders dealing with the right knee, I will focus mainly on the evidence relating to that part of the claim. I have already summarised Mr Tiritabua’s evidence, set out in his statement of 11 January 2008 (see under “Background” above).
He saw his general practitioner, Dr McEniery, on 13 January 2006. She took a history of Mr Tiritabua sustaining a twisting injury to his left knee at work on “10 January 2006” [sic, 11 January 2006] while getting off a forklift at work. On examination, she observed that the knee appeared to be swollen and tender. She arranged for an MRI scan on 20 January 2006, which revealed gross degenerative changes in the left knee, changes in the medial meniscus consistent with a tear or a previous tear, and a rupture of the anterior cruciate ligament. Dr McEniery felt the appearances were consistent with an acute injury on a background of degenerative changes. She referred Mr Tiritabua to Dr Redgment, with a referral letter dated 20 January 2006 setting out the circumstances of the left knee incident.
Dr McEniery also arranged for an x-ray of Mr Tiritabua’s right knee on 2 March 2006, which revealed degenerative arthrosis in the joint with marked “periarticular osteophytosis with loose body formation”.
Dr McEniery wrote a second letter to Dr Redgment dated 13 March 2006, in which she stated:
“Thank you for seeing Veniyasi (Jerry) who has had troubles for 3 yrs with his right knee which swells and hurts especially when he runs. He has injured it in 1991 at football – rugby.”
Dr Redgment saw Mr Tiritabua on 14 March 2006, who took a similar history to that taken by Dr McEniery in respect of the January 2006 incident. In his report to Dr McEniery on 15 March 2006, Dr Redgment recorded the following history:
“Jerry [Mr Tiritabua] is a 37 year old man who presents with an injury to his right knee which dates from having played rugby over the years. He has a more recent injury to his left knee which he hurt at work and he has a workers compensation claim for this. He says he was driving a forklift and twisted his left knee while getting off. There is absolutely no doubt that given the findings in his right knee and the fairly chronic changes in the left knee, that his main problem in both knees is intra-articular damage secondary to many years of playing rugby. This means that the claim with regard to his left knee may succeed because he almost certainly had a recent exacerbation but some of the changes would certainly have been pre-existing.
His right knee is not covered by workers compensation and I have no problem in placing him on the waiting list for a right knee replacement.” (emphasis included)
On examination, he noted, “fairly gross deformities of both knees, which were clearly due to “fairly severe arthritis”. He diagnosed osteoarthritis of both knees and concluded that Mr Tiritabua needed bilateral knee replacements “because of the severity of the arthritis present and the likely increasing disability that is going to occur without treatment” (Dr Redgment’s report to Mr Tiritabua’s solicitor dated 29 June 2006).
On the question of causation, Dr Redgment said “there is no doubt that the injury at work to the left knee has been a contributing factor to his current complaints but it is difficult to argue how substantial a contribution it would have made, given the fact that the changes in the knee are so severe.” Presumably in answer to a question about the relevance of the nature and conditions of Mr Tiritabua’s employment, Dr Redgment added:
“I am not aware of how much twisting and turning would be involved in Jerry’s work at Bartter’s Enterprises but it is a reasonable argument that the nature of his employment has aggravated the condition in his left knee. There is not however, a strong likelihood that the nature or condition of his employment has actually caused the condition and it is likely that the original cause of the major problems in his knee which is severe premature arthritis, has been caused by his years of playing rugby.” (emphasis added)
Dr Redgment thought the long term prognosis was very poor and that there was little likelihood of Mr Tiritabua remaining in active employment without surgery to replace both knees.
Mr Tiritabua saw Dr James Rowe, occupational physician, for the purpose of a medico-legal examination on 22 September 2006. In his report of that date, Dr Rowe took a history that Mr Tiritabua’s job required him to chase and catch chickens, and drive a forklift. He noted that Mr Tiritabua had problems with both knees and that “he was seeking advice in regard to the right knee when he suffered injury to the left one”. Since his return to work after the January 2006 injury, he has worked “with great difficulty”.
Dr Rowe recorded Mr Tiritabua’s symptoms and restrictions to be:
(a)an inability to run;
(b)clicking in the knee (presumably the left knee);
(c)difficulty walking up and down stairs or over rough ground;
(d)pain and clicking in the knee (presumably the left);
(e)difficulty squatting or kneeling, and
(f)pain in the right knee.
After noting the complaint of pain in the right knee, Dr Rowe added, “however the right leg is not the subject of this claim”. At the date of Dr Rowe’s examination, Mr Tiritabua continued to drive a forklift, with difficulty, and to catch chickens. Though the right knee was not at that stage the subject of a claim, Dr Rowe examined it and noted “Patello-femoral movements were not uncomfortable. He was tender about the medial joint line, crepitus was felt and heard when he mobilised the knee. The anterior cruciate seemed to be intact.”
Under “Opinion”, Dr Rowe concluded that Mr Tiritabua’s work:
“…has been a significant and substantially contributing factor to the recurrence of the left knee problems. That is, had that incident [in January 2006] not taken place, he would not have required knee reconstruction surgery to the knee and he would not have had to take several months off work. He has not had surgery in the past, but had a few weeks off rugby in 1995 and had little problem with his knee in the interim, that is between 1995 and 2006. Thus there was an 11 year period where he did not require treatment or consultation and he was able to continue working.”
Dr Redgment prepared a further report on 17 July 2007, about three months after Mr Tiritabua’s bilateral knee replacement operations in March of that year. In response to a letter from Mr Tiritabua’s solicitor (not in evidence), presumably seeking the doctor’s further opinion as to whether the injury had contributed to the need for surgery, Dr Redgment said “Without the work injury, he would have still required knee replacement but, perhaps at a slightly later date”. The “injury” Dr Redgment referred to was the injury in January 2006.
Dr Redgment reviewed Mr Tiritabua on 13 August 2007 and reported to Dr McEniery that he was doing very well.
Dr Rowe re-examined Mr Tiritabua on 19 September 2007. He recorded that prior to the January 2006 injury, Mr Tiritabua had consulted his local doctor about his right knee, “which had become increasingly painful over a period of time.” Mr Tiritabua returned to work about two months after his surgery and, after a period on light duties, he returned to his normal duties, though is a bit slower than he was before. He is unable to run but is able to walk up and down stairs.
Dr Rowe concluded that the left knee condition had been caused by the incident in January 2006, or at least “the degeneration in the knee was permanently aggravated as a result of that and [it] led to the knee replacement”. In respect of the right knee, he said:
“The right knee too has been aggravated as a result of, first of all his gait, his injuring the left knee and also as a result of that incident. He has had to favour the knee and therefore developed pain in the right knee, or at least it was made worse. He had symptoms in the right knee prior to that incident but they were made worse following that incident. I think that they are due to the general nature of his work, that is, with general wear and tear as a result of catching and processing chickens for a number of years.”
On behalf of Bartter’s, Dr Thomson, consultant surgeon, examined Mr Tiritabua on 16 February 2006. Mr Tiritabua could not weight bear on his left leg and used a crutch for support. Dr Thomson’s report focused exclusively on the condition of Mr Tiritabua’s left knee, which he felt was unrelated to the incident in January 2006.
Dr Anderson, occupational physician, examined Mr Tiritabua on 17 February 2006. As Mr Tiritabua gave no history of any injury to his right knee, Dr Anderson’s report mainly focused on the left knee. He found no crepitus in the left knee, but some in the right knee. The cruciate ligament of the right knee was minimally lax.
Dr Anderson reported again on 28 February and 13 March 2006, but dealt exclusively with the circumstances of the left knee incident (whether Mr Tiritabua twisted his left knee), which is no longer an issue.
The discharge summary from the Wagga Wagga Base Hospital dated 4 April 2007, noted under “Presentation”, “Pt sustained ligamentous injuries to bilat knees in 1990’s – increasing pain”.
Dr Anderson reviewed Mr Tiritabua on 30 April 2008. He noted that Mr Tiritabua was back at his normal duties catching chickens, driving a forklift and doing maintenance work. Mr Tiritabua said the easiest way to catch the chickens is to “stoop down and grab hold of them”. He could normally grab hold of a chicken in each hand quite comfortably. Though he had considered using a scoop to catch them, he was “happier doing it the traditional way by stooping down and grabbing hold of them and he did not see this as a difficult task”. He added that sometimes there were potholes in the ground and he had to be careful how he walked so that he did not fall into a pothole.
Under “Opinion”, Dr Anderson recorded that when he last saw Mr Tiritabua “he had extensive dysfunction of both of his knees”, due predominantly to the effects of degenerative change. He added, “In January 2006, there was further deterioration of the left knee which may have had a minor work related component in its aetiology.”
THE ARBITRATOR’S REASONS
After setting out a comprehensive summary of the evidence, the Arbitrator made the following observations and findings in his Statement of Reasons for Decision (‘Reasons’):
(a) Mr Tiritabua had “problems” in relation to his right knee for some considerable time, be it three years or several months, prior to the incident of January 2006 (Reasons, paragraph 29);
(b) he was mindful of Dr Redgment’s comment (reproduced in full at [19] above) that it was likely that the original cause of the Mr Tiritabua’s major problems was his years of playing rugby, which had to be weighed against Dr Rowe’s evidence (Reasons, paragraph 29);
(c) Mr Tiritabua clearly had a significant problem with his right knee necessitating referral to an orthopaedic surgeon “well before the incident on 11 January 2006” (Reasons, paragraph 30);
(d) there appear to be no contemporaneous notes of a complaint arising from the nature and conditions of employment during the period leading up to January 2006 (Reasons, paragraph 30);
(e) Dr McEniery cleared Mr Tiritabua to return to work by 23 March 2006;
(f) Mr Tiritabua’s proceedings in matter No. 16330 of 2006 were in respect of the left knee only (Reasons, paragraph 30);
(g) he had difficulty “rationalising on the material” before him that the nature and conditions of Mr Tiritabua’s employment was a substantial contributing factor to the injury to the right knee (Reasons, paragraph 31);
(h) balancing the medical evidence he did not accept that the nature of Mr Tiritabua’s employment was causative of the “symptoms and pathology” Mr Tiritabua experienced with his right knee (Reasons, paragraph 31);
(i) the work performed was of a vigorous nature, requiring Mr Tiritabua to “run to catch chickens from time to time” and the ground was uneven and there were holes. However, there was “no one incident referred to by the Applicant in relation to any such episode that might give rise to substantiate that the nature and conditions of that employment were causative of a problem with the right knee.” (Reasons, paragraph 31);
(j) the real probability is that the injury may well have occurred anyway, particularly bearing in mind the pre-existing degenerative condition, which was well known to Mr Tiritabua (Reasons, paragraph 31);
(k) he was not satisfied that “the nature and conditions of the Applicant’s employment, nor the change of gait, nor the added burden placed upon the right leg as a consequence of the injury to the left knee, were of themselves matters with sufficient causal connection to work as would satisfy the test laid down under Section 9A of the Act” (Reasons, paragraph 31), and, accordingly,
(l) there would be an award for the respondent in respect of the claim for the injury to the right knee.
ISSUES IN DISPUTE
Mr Tiritabua’s solicitor has not properly identified the issues in dispute, as required by the Commission’s Practice Direction No 6 dated 15 November 2007. That is most unsatisfactory and such non-compliance with the Practice Direction in the future may well result in the appeal being rejected with the obvious delay that will cause. Nevertheless, in the present matter, I am satisfied that Bartter’s has suffered no prejudice from the non-compliance. From the submissions attached to the appeal, it seems reasonably clear that the following issues are argued:
(a)there is no evidence that Mr Tiritabua had sought any medical treatment, or had sought or been referred to an orthopaedic surgeon, for his right knee prior to the incident on 11 January 2006, as the Arbitrator stated at paragraph 30 of his Reasons;
(b)his claim in respect of his right knee is supported by Dr Rowe and no medical evidence expresses a contrary view;
(c)the Arbitrator “did not appropriately deal with the applicant’s claims that he suffered an aggravation to the degenerative condition in his [right] knee, pursuant to section 16, by reason of the nature and conditions of his employment and further, by reason of the injury to the left knee”;
(d)the Arbitrator did not appropriately consider whether the nature and conditions of Mr Tiritabua’s employment and/or the injury to the left knee on 11 January 2006 were “a substantial contributing factor to any aggravation sustained by the applicant to the degenerative changes in his knee”;
(e)the matter to be considered is whether the nature and conditions of Mr Tiritabua’s employment and/or the injury on 11 January 2006, were a substantial contributing factor to the aggravation of the condition as opposed to a substantial contributing factor to the condition itself;
(f) the Arbitrator had to determine whether:
(i)there had been any aggravation to the degenerative changes in the right knee since the rugby injury “in 1995” [sic, 1991];
(ii)the nature and conditions of Mr Tiritabua’s employment and/or the incident on 11 January 2006 were substantial contributing factors to that aggravation, and
(iii)there was an aggravation to the degenerative changes in Mr Tiritabua’s right knee as a consequence of the injury to the left knee and the altered gait, as described by Dr Rowe; and
(g)the Arbitrator failed to appropriately address why he rejected Dr Rowe’s findings.
SUBMISSIONS
Mr Tiritabua submits:
(a) his work required him to run, to catch chickens from time to time over ground that was uneven and with holes in it;
(b) he did his normal duties until the incident of 11 January 2006;
(c) he did not complain about his right knee until 2005/2006;
(d) on 14 March 2006, he was diagnosed with significant problems with respect to each knee, requiring bilateral knee replacements;
(e) he had pre-existing degenerative changes in his right knee as a consequence of playing rugby;
(f) there is no medical evidence that specifically outlines the nature of his football injuries;
(g) Dr Rowe’s evidence is that, due to the general nature of Mr Tiritabua’s work, the right knee symptoms were made worse following the incident in January 2006. There is no medical evidence that expresses a contrary view;
(h) Dr Rowe also said that the right knee had been aggravated as a result of Mr Tiritabua’s gait, as a consequence of the left knee injury;
(i) the Arbitrator did not deal with whether Mr Tiritabua had suffered an injury in the nature of an aggravation under section 16 of the 1987 Act, either as a result of the nature and conditions of employment or as a result of the altered gait consequent upon the left knee injury, and
(j) the right knee operation was a consequence of the “significant deterioration in his [right knee] condition from [sic, since] 1995”.
Bartter’s submit:
(a)Mr Tiritabua has not identified any fundamental flaw in the Arbitrator’s decision, but has merely repeated the submissions made at the arbitration;
(b)there is medical evidence contrary to Dr Rowe’s opinion. Dr Redgment opined that the condition of the right knee was not related to Mr Tiritabua’s employment;
(c)it was open to the Arbitrator to conclude that the right knee condition was not work related. Dr Rowe’s opinion does not expose his reasoning process and is based on a “history” that was not given to him. It therefore represents a “mere ipse dixit”;
(d)there is no evidence to support Dr Rowe’s opinion that the right knee condition was aggravated by reason of the injury to the left knee. The evidence is that Mr Tiritabua had bilateral complaints for many years before his injury on 11 January 2006, he worked the rest of his shift on 11 January 2006, saw the nurse at work, saw his general practitioner on 13 January 2006, and Dr Redgment on 14 March 2006. There is no evidence from Mr Tiritabua to the effect that “He has had to favour the knee and therefore developed pain in the right knee or at least it was made worse”, as Dr Rowe concluded. In any event, this statement by Dr Rowe is internally inconsistent. It was open to the Arbitrator to conclude that the right knee had not been injured as an indirect result of the left knee injury;
(e)the evidence as to Mr Tiritabua’s football injuries is in Dr Redgment’s report of 15 March 2006, where he said that his “main problem in both knees is intra-articular damage secondary to many years of playing rugby”;
(f)the Arbitrator accepted the opinion of Dr Redgment and he was entitled to do so, and
(g)the Arbitrator provided adequate reasons, at paragraphs 29, 30 and 31, for his finding with regard to the right knee.
DISCUSSION AND FINDINGS
There are several impediments to the acceptance of Mr Tiritabua’s arguments.
First, the evidence as to the nature of Mr Tiritabua’s duties and the connection between those duties and his right knee symptoms is unsatisfactory. Whilst the evidence establishes that his work, which he still performs, involves “chasing and catching chickens” (Mr Tiritabua’s statement 11 January 2008), it also establishes that that was only part of his duties. He also drove a forklift and did maintenance work. There is no evidence as to how much time he spent on each activity or what affect those duties had on him. Further, Dr Anderson’s undisputed history, that the easiest way to catch the chickens is to “stoop down and grab hold of them” and that Mr Tiritabua can normally grab hold of a chicken in each hand quite comfortably, suggests that Mr Tiritabua’s duties are not particularly stressful. In short, there is no persuasive evidence that his right knee symptoms, or the increase in those symptoms, have resulted from his duties with Bartter’s.
Second, Mr Tiritabua did not allege in his statement, and neither Dr Redgment nor Dr McEniery took a history, that his right knee symptoms, which caused him trouble in the three years up to March 2006 (see Dr McEniery’s report of 13 March 2006), increased as a result of his employment duties at Bartter’s. The lack of such a history is consistent with the fact that he made no allegation of injury to his right knee in matter No. 16330 of 2006. Whilst there is no doubt that Mr Tiritabua’s right knee symptoms did increase over time, that fact alone does not establish an injury under section 4(b)(ii) of the 1987 Act as a result of the nature and conditions of his employment.
Third, whilst the medical histories suggest that the ground where Mr Tiritabua does some of his work has potholes and is uneven, there is no evidence that he ever sustained an injury to his knee as a result of stepping into such a hole or as a result of walking over uneven ground.
Fourth, Dr Rowe’s opinion that the right knee symptoms were due to “the general nature of his work” is unpersuasive, as there is no evidence that Mr Tiritabua developed symptoms at work and it ignores Mr Tiritabua’s past history of a right knee injury playing rugby. Dr McEniery’s history about the right knee in March 2006 was that Mr Tiritabua had “troubles for 3 yrs with his right knee which swells and hurts especially when he runs. He has injured it in 1991 at football – rugby”. She took no history that those symptoms developed at, or were the result of, Mr Tiritabua’s employment duties. Mr Tiritabua gave no such history in his evidence, but merely said that his right knee caused him some difficulty in late 2005 or early 2006.
After stating that the degeneration in the left knee had been permanently aggravated as a result of the January 2006 incident, Dr Rowe added, almost as an aside, “The right knee too has been aggravated”, though he did not address the nature of the aggravation or the critical question of whether the effect of that aggravation was continuing. If the aggravation consisted of an increase in symptoms, he did not explain how that increase resulted from Mr Tiritabua’s employment duties as opposed to the natural progression of the degeneration changes. His assertion that the right knee symptoms were due to “the general wear and tear as a result of catching and processing chickens” is unsupported by any explanation or analysis and is contrary to the evidence, which I accept, that Mr Tiritabua’s severe premature arthritis “has been caused by his years of playing rugby” and that it was likely that “increasing disability” would occur without treatment (Dr Redgment, 29 June 2006).
Further, Dr Rowe’s evidence failed to properly address the terms of section 16 of the 1987 Act and failed to consider whether, if a disease had been aggravated by the employment duties, Mr Tiritabua’s employment had been a substantial contributing factor to that aggravation.
Assuming that Mr Tiritabua’s right knee symptoms did increase while he performed his duties at Bartter’s, that fact on its own does establish an injury in the nature of an aggravation under section 4(b)(ii) of the 1987 Act, because, on the evidence of Dr Redgment, which I accept, it is more likely that that increase in symptoms resulted from the inevitable progression of the arthritic condition in the right knee rather than the effect of Mr Tiritabua’s employment duties.
Last, in respect of the allegation that Mr Tiritabua’s right knee symptoms have resulted from the consequences of his left knee injury, be it as a result of an altered gait or some other factor, there are two points to be made. First, section 9A does not apply and Mr Tiritabua has to establish that the right knee condition resulted from the left knee injury (see Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452). Second, the evidence is again unpersuasive and does not establish the necessary connection. Whilst it is true that Mr Tiritabua had to use a support for an undefined period following his left knee injury, he gave no evidence that his altered gait affected his right knee. No doctor, including Dr Rowe, took a contemporaneous history that the altered gait had any impact on Mr Tiritabua’s right knee. There is no satisfactory evidence of how long Mr Tiritabua had an altered gait after the January 2006 incident or what it was about his gait, or the left knee injury, that allegedly affected his right knee. Dr Rowe’s statement that “He has had to favour the knee and therefore developed pain in the right knee, or at least it was made worse” gives no explanation of how or why the pain in the right knee was made worse as a result of the left knee injury and is no more than a bare ipse dixit and, therefore, of no weight. Mr Tiritabua’s right knee had been causing difficulties well before January 2006. If those symptoms increased after the January 2006 incident, and Mr Tiritabua did not give that evidence in his statement, I believe that the increase is more likely to have resulted from Mr Tiritabua’s pre-existing arthritic condition than from the left knee injury and its consequences.
In the alternative, if I am wrong in my conclusion on the above issues, there is no evidence that the effect of the “aggravation” to the right knee, whether as a result of the nature and conditions of employment or as a result of the left knee injury, is continuing. Therefore, if Mr Tiritabua did aggravate his right knee symptoms as alleged he would only be entitled to a closed period of weekly compensation. As Mr Tiritabua succeeded with his left knee claim, weekly compensation for the period 28 March 2007 until 5 June 2007 has already been paid. There is no evidence that the treatment for the right knee was reasonably necessary as a result of an injury and there is therefore no entitlement to an order under section 60 of the 1987 Act in respect of that treatment. In other words, Mr Tiritabua’s treatment for his right knee did not result from an aggravation injury due to the nature and conditions of his employment, or from the consequences of the left knee injury.
Whilst the written submissions and the Application have made passing references to section 15 of the 1987 Act, no detailed argument has been directed to that section. For the sake of completeness I note that there is no evidence that Mr Tiritabua “contracted” a disease in the course of his employment and to which his employment was a contributing factor (section 4(b)(i) of the 1987 Act), or that his employment was “employment to the nature of which the disease [of arthritis] was due” (section 15(1)(b)). As a result, section 15 has no application.
Dealing specifically with the issues set out at [36] above, I make the following observations and findings:
(a)if the Arbitrator said that the referral to an orthopaedic surgeon for the right knee occurred before 11 January 2006, he was in error. However, that error is of no consequence as the evidence clearly establishes that Mr Tiritabua sought treatment for his right knee before January 2006, though the referral to Dr Redgment occurred after that date;
(b)as the above analysis reveals, there are several deficiencies in Dr Rowe’s evidence and, in any event, a contrary view is expressed by Dr Redgment, whose evidence I accept as to the cause of Mr Tiritabua’s right knee symptoms;
(c)even if it is accepted that the Arbitrator did not properly deal with the issue of an aggravation under section 16, that omission makes no difference to the result because, having considered all the evidence on review, the claim under section 16 is not made out;
(d)even if the Arbitrator did not appropriately consider Mr Tiritabua’s claims, having considered all the evidence on review, there is no persuasive evidence that the nature and conditions of employment was a substantial contributing factor to an alleged aggravation injury to the right knee. Nor is there persuasive evidence that the right knee condition resulted from the left knee injury;
(e)I accept that in a claim for injury by way of aggravation under sections 4(b)(ii) and 16 of the 1987 Act it is only necessary to prove that employment was a substantial contributing factor to the aggravation and it is not necessary to prove that it was a substantial contributing factor to the disease itself. However, for the reasons set out above, Mr Tiritabua has not established such an aggravation and, in the alternative, if he has, he has not established that the effect of the aggravation is continuing;
(f)the issues set out at paragraph [36(f)] have been dealt with above, and
(g)the weight to be attached to Dr Rowe’s evidence has been dealt with above.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am of the view, for the reasons given in this decision, that the Arbitrator’s conclusions and orders in respect of Mr Tiritabua’s claim for compensation for his right knee are correct.
DECISION
For the reasons given in this decision, the Arbitrator’s determination made on 4 September 2008 is confirmed.
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
15 December 2008
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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