Tsatsi v Ixom Operations Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tsatsi v IXOM Operations Pty Ltd [2022] NSWPIC 414
APPLICANT:	Fifi Tsatsi
RESPONDENT:	IXOM Operations Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	27 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation for injury to left knee; applicant tripped on a step and fell on 12 January 2010; whether she suffered an injury to her left knee as well as the admitted significant injury to her left shoulder; applicant claimed such injury in her statement of 25 June 2019 but no complaint recorded by her and/or treating surgeon; applicant then tripped on a step on 8 February 2013; suffering significant injury to the left knee; Held — the relevant question is whether the applicant suffered an injury to her left knee on 12 January 2010; its relationship to the 2013 injury a matter for the motor accident; applicant a creditable witness, and contemporaneous support given by a Rehabilitation Consultant in 2011; Badawi v Nixon Asia Pacific, Bindah v Carter Holt and Jaffarie v Quality Castings considered; Ozcan v McArthur Disability Services discussed; award applicant.
DETERMINATIONS MADE:	The Commission finds: 1. The applicant suffered injury to her left knee on 12 January 2010. The Commission orders: 1. The respondent will pay the applicant’s s 60 expenses on production of accounts, receipts and/or HIC Notice of Charge. 2. I order that the matter be remitted to the President for referral to a Medical Assessor on the following bases: (a) Date of injury: 12 January 2010 (b) Matters for assessment: Left lower extremity (knee) (c) Evidence: Application to Resolve a Dispute and attached documents and reply and attached documents. Note A. The parties have agreed that the applicant suffered an 18% whole person impairment for the injury to her left shoulder on 12 January 2010. The Medical Assessor is requested to include that agreement in the assessment of whole person impairment.

STATEMENT OF REASONS

BACKGROUND

Fifi Tsatsi, the applicant brings an action against IXOM Operations Pty Ltd, the respondent for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) in relation to injuries sustained to her left knee and left shoulder on 12 January 2010.
Dispute notices were issued and an Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) did the applicant injure her left knee on the pleaded date?
(b) if so, was employment the main contributing factor to her present condition?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

This matter was heard at 1 Oxford Street Sydney on 11 July 2022. The applicant was represented by Mr David McCabe of McCabe Partners solicitor briefing Mr John Dodd of counsel. The respondent was represented by Mr Paul Flocco whose presence had been excused prior to the hearing instructing Mr Paul Rickard of counsel.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

No application was made with regard to oral evidence.

FINDINGS AND REASONS

Preliminary

Mr Dodd was granted leave to amend the pleadings, not opposed, to delete the claim for injury on 8 February 2013 in the ARD form.
The facts in this matter are broadly on common ground. Ms Tsatsi suffered an injury on
12 January 2010 to her left shoulder and a further injury to her left knee on 8 February 2013. Liability for both injuries was accepted by the insurer. What is in dispute is whether in her injury of 12 January 2010, Ms Tsatsi also suffered an injury to her left knee.
In her statement of 25 June 2019 Ms Tsatsi said:
“10. I am employed as a Sales Representative. I provide chemicals for water treatment of town pools, for drinking water, sewerage treatment and also supply chemicals to Council for water supply.
11. Because we deliver in bulk, I have to inspect the site we are delivering to, to make sure it complies with Australian Standards for bulk delivery.”
Ms Tsatsi had been working in this field since 2009. She described the 2010 injury as follows:
“12. On 12 January 2010, I was attending Epping Pool/Hornsby Public Swimming Pool. I had previously attended this pool site and I was unsure about an aspect of it and I wanted to get photos of the site to send to our risk manager in Melbourne VIC.
13.    I then drove my vehicle out to the pool, parked outside the reception and then went inside the pool. At the reception desk I asked to see the Duty Manager.
14.    The Duty Manager was called on the walkie-talkie. I was advised that he would not be long.
15.    I decided to walk from the reception area to the pool deck. I was looking where I had to go and unbeknown to me there was a step. The step had a grey strip on it.
16.    As stated before, I was not looking where I was walking and as a result I missed the step. At that point in time, I had a bag over my left shoulder and carrying my folders and notebook.
17.    My left knee buckled and I fell, landing on my left shoulder and scraping my chin.
18.    A lady came over to me and said "are you all right?" That lady then assisted me to my feet.
19.    I was aware of pain and discomfort straight away in the left shoulder and to a lesser extent my left knee, but I was hoping that eventually the pain in my left shoulder and left knee would just fade away.
20.    Driving back to Matraville, I became aware of increasing pain in my left shoulder. I just wanted to get an ice pack and put it on my shoulder in order to reduce the swelling and discomfort in the left shoulder. I went up to the chemist and got an ice pack from them.”
The injury to the shoulder proved to be problematic. At [32] Ms Tsatsi said:
“32. About one month later, the pain in my left shoulder was getting worse, with ongoing discomfort. The pain in my left shoulder was worse than the pain in my left knee.”
Ms Tsatsi was referred to Dr Daniel Biggs, orthopaedic surgeon for treatment of her shoulder.
When Dr Biggs first assessed Ms Tsatsi on 15 March 2010 he took the following history:
“Ms Tsatsi gives a history of having a fall at a work site. She explains that she missed a step and landed heavily onto her left shoulder. Since that time she has had ongoing problems with regard to pain, catching, weakness and unremitting night pain affecting the left shoulder.
Her symptoms have not settled with an appropriate non-operative treatment program. I note that she gives no prior history of left shoulder injury.”
She underwent surgery on 10 April 2010 to the left shoulder with Dr Biggs and continued to complain of difficulties caused by the shoulder injury which resulted in restriction of her movement. She had treatment by way of physiotherapy, injection, and hydro-dilation. She said:
“58. Not only was my left arm causing me pain, my left knee was slowly getting worse as well.
59. In January 2013, I noticed the pain in my left knee was getting worse and it was becoming swollen.”
Whilst she was receiving treatment for her left shoulder prior to the accident to her left knee on 8 February 2013 she came under the care of Ms Judy Gardener of Work Health Safety Matters, which organisation was asked by the insurer to assess Ms Tsatsi’s condition regarding her left shoulder.
The assessment took place on 29 August 2011 and was concerned with measures to be taken to assist with Ms Tsatsi’s work because of the continuing problems in the left shoulder. In taking the history Ms Gardener said:
“Ms Tsatsi report that on 12 January 2010 she: was undertaking a site safety inspection at the Hornsby Public Swimming Pool. She reported that she was waiting for the manager to take her to the bulk chlorine tank when she missed a step and her knee crumbled and she fell to the ground falling on her left shoulder. She reported that she holding a very large folder in her left arm. She reported that she was very embarrassed by the fall and was assisted up and completed her visit.
She report on returning to the office she informed her manager of the fall and applied ice to her knee and shoulder. She visited the local medical centre and was referred for an Xray which did not show any fracture of her shoulder region.”
That injury was accepted by the insurer and indeed there is an offer extant to settle
Ms Tsatsi’s claim of 18% whole person impairment (WPI).
On 8 February 2013 Ms Tsatsi suffered a further injury. She said:
“60. On the 08.02.2013, whilst working, I was carrying my computer bag up steep stairs, I suffered a sudden onset of left knee pain. I felt a crunching noise in my left knee and felt like I was going to fall. I was able to pull myself up the stairs along the railings, however I was unable to walk for a few hours.”
Subsequent to that injury she has undergone considerable treatment for the left knee.
On 12 February 2013 an MRI of the left knee showed a medial meniscal tear and tricompartmental osteoarthritis.
There was an extruded fragment shown on the MRI and Ms Tsatsi came to surgery with
Dr Michael Dixon orthopaedic surgeon on 3 April 2013.
On 20 May 2013 she advised her general practitioner, Dr McDonnell that she had twisted her knee again and suffered severe pain but that improved. The treatment expenses for the injury of 8 February 2013 were met by the insurer.
Ms Tsatsi’s left shoulder continued to trouble her. Dr McDonnell suspect that Ms Tsatsi had a frozen shoulder.
On 3 April 2017 a further surgical procedure by way of arthroscopy was performed on the shoulder by Dr Biggs.
Ms Tsatsi’s shoulder continued to deteriorate after that treatment and she was advised that she had advanced arthritis and that a shoulder replacement procedure would be required eventually.
A series of reports were lodged from Dr McDonnell between 5 March 2010 and
18 February 2013. Each report was concerned with the left shoulder. No mention was made of the left knee condition.

Dr Michael Dixon, when he was first consulted by Ms Tsatsi on referral from Dr McDonnell on 4 March 2013, noted in the history the following:
“She did have an injury to her left knee on 8 February this year. she reports that she had only very minor pain in her knee prior to this episode.”
He found that Ms Tsatsi had a left medial meniscal tear which was “in keeping with her history on the background of patella femoral osteoarthritis”.
Dr David Millons was retained by the insurer’s solicitor and reported on 19 November 2021 regarding the left shoulder injury. As part of the history at page 7 of the Reply, he noted that:
“It appears that she missed an unmarked step down and went over onto her left side, landing heavily on her left shoulder and left leg. She states that because the folders were in her left hand, she could not put her arm out to break her fall.”
Dr Millons said at [8]:
“Ms Tsatsi told me that it was one day in February 2013 that she was walking up some stairs at work. She was carrying a computer bag. As she climbed the stairs, she felt a "squishing sensation" in her left knee followed by some discomfort. That really was the first recorded history of knee problems, her knee not having been particularly noted in the incident in January 2010.”
Dr Millons noted Dr Michael Dixon’s report that at (Reply p 8):
“There was a left meniscal tear in keeping with the history on the background of patella femoral arthritis. He noted that there had been an injury to the left knee on 8 February 2013 which would be consistent with the history that she gave me. That seems to be an incident de novo.”
Dr Millons also noted the findings on the left knee arthroscopy of 3 April 2013, of a posterior root medial meniscus tear was found which was not suitable for repair but that also some grade 2 changes were noted medially which Dr Dixon lightly debrided and that were some grade 3 changes in the left patellar surface and grade 2 changes in the trochlea.
At Reply p 10 Dr Millons said:
“…there is really no evidence to suggest there had been any particular injury to the left knee at that time.
The shoulder took precedence”
At Reply p 11 Dr Millons said of the 12 January 2010 fall:
“Apart from the fall onto her left side, there was no knee through until …8 February 2013…”

At Reply p 12 he thought that the incident on 8 February 2013 “perhaps” caused the torn medial meniscus.
Dr Millons certified the 18% WPI that was the basis for the offer of the insurer.
The applicant retained the services of Dr Drew Dixon, consultant orthopaedic surgeon.
He took a history of the 12 January 2010 injury:[1]
“As she walked from the reception to the pool carrying folders and notebooks with a bag over her left shoulder, she missed a step with a grey strip on hit. Her left knee gave way and she feel directly onto the knee and she landed directly onto her left shoulder.”
[1] ARD p 32
Dr Dixon took a history of the subsequent treatment for the left shoulder and then the injury of 8 February 2013 to the left knee and subsequent treatment to both injuries. He gave his diagnoses at page 36 of the ARD. With regard to the left knee he said:
“Post traumatic arthritis in her left knee, particularly in the patellofemoral joint where
she has patellofemoral subluxation with lateral impingement with post traumatic
retro patellar crepitus.”
As to causation Dr Dixon said:
“The above conditions are causally related to the work place incidents as noted above.”

SUBMISSIONS

Mr Dodd submitted that the applicant’s credit was not in issue and that I could accept that indeed there had been an injury to the knee when Ms Tsatsi fell on 12 January 2010. He said it was quite understandable that the damage done to the left shoulder, that the left knee would take a back seat in treatment. However, he pointed to the reference in the rehabilitation report of a complaint about the knee and indeed submitted that the evidence from the applicant herself was sufficient to establish a causal link between that injury and the later injury of 8 February 2013.
He referred to Ms Tsatsi’s statement that her knee was slowly getting worse prior to
February 2013 and that in January 2013 the knee was in fact becoming swollen. He emphasized the description of the injury by Ms Tsatsi as being that the left knee buckled and that her statement did confirm that she to a lesser extent had pain and discomfort to the left knee at the same time as her left shoulder was being treated. She repeated that statement at paragraph 32 that the pain in the left shoulder was worse than the knee.
He submitted that the rehabilitation report was submitted dated 2 September 2011 and confirmed the history given by Ms Tsatsi.
Mr Dodd submitted that the evidence demonstrated that Ms Tsatsi’s employment on
12 January 2010 was a substantial contributing factor to her injury. He referred to Badawi v Nixon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324.
Mr Rickard on the other hand submitted that the reports of injury from 2010 were not consistent. Ms Gardner’s history was that the knee had crumbled and Ms Tsatsi had fallen to the ground onto her left shoulder.
He noted Ms Tsatsi’s history in her statement that she was aware of the problem with the left knee but observed that there were no contemporaneous records produced that demonstrated any complaint at all about the left knee.
He also referred to the claim form of 18 January 2010 which said:
“Walking at a customer’s site, missed a step and fell landing on my shoulder.”
The injury was described as left shoulder soft tissue only.
All of the WorkCover certificates issued during the period 8 February 2013 were concerned only with the left shoulder, Mr Rickard said.
Mr Rickard relied on Ozcan v McCarthur Disability Services Ltd [2020] NSW WCCPD 21. In a general submission as to whether there was any causal link between the injury of 2010 and that of 8 February 2013.

DISCUSSION

The resolution of this dispute depends very much on an assessment of the applicant’ credit. It is of relevance that in the three years between the injury of 12 January 2010 and
8 February 2013, the applicant was primarily concerned with injury to her left shoulder. She came to surgery in April of 2010 and was receiving treatment for it together with the rehabilitation measures afforded to her by virtue of the insurer’s acceptance of liability. However, she did claim that she injured her left knee in the fall of 2010, and that she did notice that it was swelling prior to the 2013 injury.
As was pointed out by the respondent there is very little by way of contemporaneous corroboration for Ms Tsatsi’s complaints but that is in keeping with the tenor of her statement which, as I understood her, was that she put up with the left knee problem due to the significance of her shoulder injury. The statement of course having been made on
25 June 2019 suffers from the disadvantage that it was relating to events of nine and a half years before, and it is fair to say that Ms Tsatsi has had her fair share of troubles with both her shoulder and her knee since that time. I have no doubt that Ms Tsatsi was doing her best to honestly recall the condition of her knee between 2010 and 2013, but there is always the danger that she might quite innocently have reconstructed her memory in view of both the time that had passed and the fact that she has a financial interest in the outcome, not to mention her subsequent medical problems.
There is nothing in her statement that is inconsistent with other evidence. It was suggested that her description of the 2010 trip over the step that made her knee buckle was inconsistent with Ms Tsatsi’s statement to Ms Gardener that it had crumbled, but I do not see any significant difference in the two descriptions. There was also a suggested inconsistency in the evidence as to whether Ms Tsatsi fell on her knee or not. Again, I do not think anything turns on that question. Ms Tsatsi claimed that her knee buckled when she missed the step. Whether she then landed on it or not is immaterial to the mechanism of injury.
The histories taken by Dr Biggs and by Dr McDonell did not record any complaint about the left knee between 2010 and 2013. I find that not to be surprising as the focus of Ms Tsatsi’s medical management was the significant injury to her shoulder, which continues to bother her. Whilst Ms Tsatsi did not complain about her knee, it does not follow that therefore no injury occurred. She said herself that she hoped her pain would just go away but her shoulder pain became worse than the pain in her knee.
I note that Dr Millons was careful in his opinion to hedge his opinion with comments like “it seems” the 2010 knee injury was an incident de novo, and that there was “really” no evidence to suggest any “particular” injury to the knee at that time, and that the 2013 “squishing” incident was “really” the first recorded history of knee problems.
Those reservations were well made, as although Dr Millons did not take a history of any pain in Ms Tsasi’s knee in the 2010 event, there was contemporaneous support for Ms Tsatsi’s evidence that she had indeed injured her knee on 12 January 2010, and that came of course from Ms Gardener.
Ms Gardener recorded that on 29 August 2011 Ms Tsatsi said that her knee crumbled when she missed the step, and that Ms Tsatsi had to put ice on it when she got home.

There is also some corroboration for Ms Tsatsi’s evidence from Dr Michael Dixon, who noted that Ms Tsatsi had “only” very minor pain in her knee prior to her fall of 8 February 2013.
There is accordingly some contemporaneous, or near contemporaneous support for
Ms Tsatsi’s account in her statement of 25 June 2019. I accept her as being a creditable witness and find that in the event of 12 January 2010 when she tripped on a step whilst in the performance of her employment and injured her shoulder, she also hurt her left knee.
My task in this dispute is to decide whether there was an injury on 12 January 2010. What effect, if any, that had on her subsequent travails is a matter for the Medical Assessor. The question of whether there was any association between that injury and her later problems is a question for the consideration of the Medical Assessor, as was explained in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 and Jaffarie v Quality Castings Ply Ltd (No 2) [2018] NSWCA 88 at [80]. The intricacies of the association of that injury with later developments as described in Ozcan is a matter also for the Medical Assessor.
The event of 12 January 2010 was in the nature of a personal injury as described in s 4a of the 1987 Act, and accordingly for the event to be classified as an injury, the applicant has to show, pursuant to s 9A of the 1987 Act, that her employment was a substantial contributing factor to her knee injury.
In Badawi at [107] the plurality defined the phrase “a substantial contributing factor” as meaning by the word “substantial” one that is “real or of substance”.
I am satisfied that the manner in which Ms Tsatsi’s knee injury of 12 January 2010 was caused, that is to say, tripping over a step whilst in the performance of her duties, complies with that requirement.
I note that liability has been accepted in an offer of 18% which has been made in relation to the injury to the left shoulder and I have accordingly made the orders set out above. This arrangement was recorded when I gave the orders herein orally on 25 July 2022.

[2022] NSWPIC 414

27 July 2022