Ugarte- Veliz v Secretary, Department of Communities and Justice

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ugarte- Veliz v Secretary, Department of Communities and Justice [2021] NSWPIC 137
APPLICANT:	Raquel Ugarte-Veliz
RESPONDENT:	Secretary, Department of Communities and Justice
MEMBER:	Mr Michael Wright
DATE OF DECISION:	25 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Permanent impairment claim; journey claim, section 10(3A) real and substantial connection in dispute; Bina v ISS Property Services Pty Limited and Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden considered and applied; aggravation of disease; Elsamad v Belmadar Pty Ltd, Federal Broom Co Pty Ltd v Semlitch, May v Military Rehabilitation and Compensation Commission considered and applied; Held- found real and substantial connection between accident and employment and aggravation of disease; matter remitted for referral to Medical Assessor.
DETERMINATIONS MADE:	1. The matter is remitted to the President for referral to a Medical Assessor for assessment of the degree of permanent impairment as a result of the injury on 21 March 2018 in respect of the lumbar spine, right lower extremity and left upper extremity. Documents to be provided to the Medical Assessor are the Application to Resolve a Dispute and attached documents, the Reply and attached documents and a copy of this Certificate of Determination and statement of reasons.

STATEMENT OF REASONS

BACKGROUND

This is an application for permanent impairment compensation made by Ms Ugarte-Veliz (the applicant) in respect of injury said to have occurred on 21 March 2018 on her journey from her home to her place of employment. The permit impairment claim was in respect of the lumbar spine, right lower extremity and left upper extremity.
The Secretary, Department of Communities and Justice (the respondent) in its section 78 notice disputed section 4 injury to the right knee and back and also disputed that there was a real and substantial connection between the employment and the accident or injury as required by section 10(3A) of the Workers Compensation Act 1987 (the 1987 Act).
The respondent did not dispute the claim for permanent impairment in respect of the left upper extremity.

PROCEDURE BEFORE THE COMMISSION

At the conciliation/arbitration of this matter on 19 April 2021, Ms Grotte of counsel appeared for the applicant, instructed by Mr Staninovsky, solicitor, and Ms Goodman appeared for the respondent, instructed by Ms King, solicitor.
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) Application to Resolve a Dispute (ARD) and attached documents,and
(b) Reply and attached documents.

Oral evidence

There was no application to adduce oral evidence or to cross-examine a witness.

FINDINGS AND REASONS

The applicant’s case

The applicant provided two statements dated 4 December 2019 and 8 September 2020.
In her statement dated 4 December 2019 the applicant stated that in 2008 she was involved in a motor vehicle accident in which she suffered injury to her back and was off work for about three months and thereafter settled her claim.
Although not stated by the applicant, the factual investigation report provided by the respondent described the applicant’s occupation as senior caseworker. That report indicated that as at June 2018 the applicant had been employed on a full-time basis with the respondent for about 22 years, with 18 of those years performing the role of a caseworker. The duties of the applicant were described as providing a service to children, young people and their families who are at risk of harm or where there is information to suggest that they are at risk of harm.
In her statement of 8 September 2020, the applicant said that in late 2017 she was working on a child protection case and the applicant’s client was the mother of children whom the department was considering removing from the mother’s care. The applicant said that between late 2017 to March 2018 she received various threats from the client. The applicant said that on one occasion she was having a meeting with the client at the office in Fairfield and at that meeting the client threatened her such as “I will kill you”, “I will burn down your house” and “I will burn down your car” and that these sorts of comments were made by the client and directed to the applicant on multiple occasions. She said that on another occasion, in early 2018 she believed, she found the client by her car where she used her hand to make a cutting/slashing gesture across her throat and the applicant took this to mean that she was threatening to kill her. The applicant said that she attended the Fairfield police station at some time in late 2017 and reported the threats to the police, although the police declined to apply for an Apprehended Violence Order. The applicant said that the police also wrote to her employer and informed them about the threats. The applicant said that she also reported the ongoing threats to her employer and she was directed to cease contact with the client. However, the threats from the client continued after the applicant ceased to have contact with her. The applicant said that at some time in late 2017 to about March 2018, she could not recall the exact date, her house was sprayed with graffiti and her ex-husband’s car was also sprayed with graffiti and the applicant believed that it was the client who did this.
The applicant also said in her statement of 8 September 2020 that due to the concerns that she had for her safety, her employer directed her to park in the Fairfield Chase car park. She said that the level that she parked in at that car park was the same level where departmental vehicles were parked and these were the vehicles used by caseworkers to perform their roles. She said that it was agreed with her employer that she would park at the car park every day and someone was to escort her to and from her car. She said that this did not end up happening regularly and most times her colleagues were too busy working and there wasn’t anyone free to accompany the applicant from her car to the office. She said she would often have to travel from her car to the office unaccompanied. She recalled that she would be very anxious and panicked having to do this as she was scared that she would be confronted by the client.
In her statement of 4 December 2019, the applicant said that she had been threatened previously by a client in December 2017 and as a result of that threat her supervisor, Ms Morua, and her manager Mr Tsangarides specifically directed the applicant to park in a specific spot in the Fairfield Chase car park as the respondent rented spaces in that car park and would be able to arrange for colleagues to assist her with entering and exiting the building. The applicant said that she accepted their offer and whenever she left to return to her car she would go with anyone who was leaving without mentioning the threat to her and that when she would park and enter the building she would typically do this on her own.
The applicant said that on 21 March 2018 she left home for work and on the way she received a telephone call from a client and she stopped the car and spoke to the client. She ended the telephone call after about five minutes and continued on her way to work without otherwise deviating from her regular route to work. She arrived at the underground car park, known as the Fairfield Chase car park at some time between 9 AM and 9:20 AM.
In her statement of 8 September 2020, the applicant said that she got out of the car and proceeded to walk to the office. She said that she recalled that she was feeling anxious and panicked and she was looking in all directions as she was fearful that she would be confronted by the aggressive client. She said it was common for her to shake in fear around that time. She said that she walked about 3 m from her car when she fell. She said that she could not recall how the fall occurred but she thought it was because she was shaking with fear and panicking. She said that she could remember distinctly feelings of extreme fear and anxiety and constantly having to look over her shoulder.
The applicant in her statement of 4 December 2019 said that after entering the car park she parked her vehicle nose first against the rear wall. She then got out of her car and started to walk towards the office and she managed to walk several metres from her car and was on the roadway within the car park when she lost balance and collapsed forward and held her arms forward to brace for the impact with her knees and hands hitting the concrete floor. She said she did not know what happened but she lost balance. She said that it was a big fall and she could only use her hands and knees to brace for the impact.
The applicant said she was in shock and lying on the ground for several seconds and she was then helped up by two persons whom she recognised as Ms Morua and another colleague, Ingrid. She said she was helped back to her car by them. She noticed Ms Morua was pulling up her pants leg and the applicant was embarrassed. The applicant said that Ms Morua said “you stay here” and both she and Ingrid walked away.
The applicant said that while she was sitting in the car she started to recall all the bad stuff that happened to her at work like the death threat and the bullying by her supervisor. She said this made her feel very anxious and she decided that she didn’t want to sit alone in her car any longer so she started her car and drove away and drove out of the car park. She said she decided to travel to an area in Fairfield as she thought her partner was working in this area. She said that she couldn’t see her partner in that area so she called Ms Morua and to tell her off for everything that had happened. She said that she was scared of Ms Morua because she had been bullied by her before and for a long time and that is why she lied to her. She said that when she was on the phone to Ms Morua she recalled telling her that she was being driven home by her friend as she said she remembered her fear of Ms Morua. She said that she was wrong in saying this as she was alone driving home.
She said that she consulted her GP, Dr Qamar, on the same day and when she attended her left leg was sore as well as her back and neck and several days later she noticed bruising around her left ankle and inner leg. She said that since the fall she has not returned to work.
The applicant also said in her statement of 4 December 2019 that since the fall she has continued to experience pain, especially in her knees but also in her back and left hand and middle finger. She said that the pain in her left knee was more painful so she would try to bear more weight on her right knee.
The applicant said that on 11 November 2019 she was admitted to the Blacktown Hospital where a cyst was found behind her right knee. She said that the only fall or trauma that she had experienced recently in her knees was the fall in the car park on 21 March 2018. Her GP referred her to a knee specialist, Dr Thomas and she sought a second opinion from Dr Gursel, orthopaedic surgeon. She was also referred to Dr Patel, neurologist.
She said that she underwent a right knee arthroscopy by Dr Thomas on 13 December 2019.
She said that she continues to experience pain in both her knees, back and left hand.
The applicant also provided various emails from herself, Ms Soban, Ms Morua and Mr Tsangarides. It is necessary to provide some detail as to the relevant emails.
In an email from Mr Tsangarides to Ms Morua dated 5 January 2018, under the subject heading “threats from the mother of the [name given] children” it was written

“Hi Andrea,

You should receive the Incident Report that Raquel has lodged on SAP HR. I can confirm that I have spoken to Raquel in relation to safety measures considering the threats made towards her. The following was agreed until we were confident that there will be no further safety concerns from [name given]:-
- Raquel is not to contact [name given] until further discussion with yourself and if it is agreed that the mother should be interviewed that this occurs at the CSC
- Raquel should park her car in The Chase car park. Admin are aware and will facilitate a red card for Raquel as required. This will be reviewed after 4 weeks
- Raquel has spoken to the police who documented the concerns on COPS however it may be appropriate to liaise with them further if necessary
- Raquel is to request assistance from one of her colleagues to escort her to her vehicle after work and not be by herself when she goes to lunch
I found an Alert on ChildStory where both [name given] and [name given] have made
similar threats in the past. Copied from ChildStory – ‘Report dated 02/10/2015 states that both [name given] (father) and [name given] (mother) have said that if “DOCS or Police” come to the door or anyone tries to get between them and their children that they will end them. It is unknown if they have access to any firearms or not.’
I need to raise the following concerns (i) despite making this agreement with Raquel, I am aware that she went to lunch on her own on 28/12/17 and I do not believe she requested an escort on 29/12/17 to go to lunch or to her vehic” [email terminated at this point]
In an email from Ms Morua to Mr Tsangarides, with copy to the applicant, dated 8 January 2018 at 12:57 PM it was written:
“Hi Raquel,

As discussed with you today you have agreed to park the car in the Chase building. You have agreed to have admin accompany you to and from the car park before and after work.

In respect to accessing a colleague during lunch you were clear in saying that you needed your space to be respected and did not feel comfortable with this.

We will review this arrangement at the end of January 2018.

I have confirmed that you have sought advise from police who have explained that in the absence of more specific information it would be difficult to secure an AVO. You advised you have decided not to take this further with Police at this time.

In respect to seeing [name given] since the alleged threat was made, you explained that you have only seen her on one occasion. You stated she was on a street near your car. You stated that you saw [name given] scratch her neck however did not interpret this as threatening. I asked you about your comments about having seeing [name given] to managers, Christelle and Sharyn (as referenced by Angelo in his email below). You stated that you volunteered to them that you had seeing [name given] ‘scratch her neck’. I note this is contrary to what Christelle and Sharyn have relayed to Angelo regarding this conversation.

As I am taking leave from next week I have included Teni Lalich in this email. I will brief Mel Soban from admin.

I would also like to let you know EAPS is an option that is available to you should you feel the n” [email terminated].
In an email from Ms Morua to the applicant, with copy to Mr Tsangarides, dated 8 January 2018 at 3:39 PM, it was said

“Hi Raquel,

As discussed please advise before you leave today if you are agreeable to the safety plan we discussed that involves you parking in the building as well as being accompanied to and from your car.

I am aware that you do not wish for this to happen when you leave for your lunch break.

Thanks
Andrea”
Also provided were the clinical records of the Pacific Medical Centre and the Blacktown Hospital and also those of Dr Thomas. Reference will be made to those documents where relevant below.
The applicant also provided the report of Dr Negus, orthopaedic surgeon, dated 18 February 2020. Dr Negus recorded history that on 21 March 2018 the applicant was parking her car in the work car park and she had been allocated a special spot in the car park by her boss for her own safety, due to the fact that a client was following her and threatening her. Dr Negus recorded that she got out of the car and then she fell and that she was not sure how or why she fell, although she does remember not being dizzy. Dr Negus recorded that she landed on both her knees and her hands and she was placed back into her car and advised to stay there by her boss. He reported that she described being left sitting in the car for a long period of time with no one to accompany her and she described feeling very scared and anxious so she drove home in order to get away from the car park. He recorded that she said that she saw her GP, Dr Qamar, that day and he treated her for anxiety and noted that her legs were bruised and her hands were sore. She said that she also developed low back pain for which she went on to have an MRI scan and injections.
I note at this point that it appears that Dr Burrow and Dr Negus take an incorrect history of an attendance on Dr Qamar, as it was Dr Peter Low who saw the applicant initially on the afternoon of 21 March 2018, where the GP recorded a history that the applicant was at her works car park and fell forward and landed on her knees and palms, currently sore over neck, mid back, left shoulder and left calf and on examination tenderness was noted in the cervical and thoracic area and left calf and at that stage no bruising or swelling was seen. It was on 26 March 2018 that the clinical records note the attendance on Dr Qamar where a history of pain in left leg and back pain is recorded with “bruise +”. This is considered below.
Returning to the history recorded by Dr Negus, he noted that she said she tried to return to work but was not fit for preinjury duties and that her right knee and lower back became very saw over time and she struggled to drive due to the pain in her right knee. She said she saw a new GP for her right knee pain and she ordered an MRI scan which on 9 November 2019 demonstrated moderate to severe patellofemoral and medial compartment osteoarthritis, synovitis as well as a radial tear adjacent to the posterior attachment of the medial meniscus. She was admitted to Blacktown Hospital on 11 November 2019 with knee pain where she was told she had a cyst, most likely the Baker’s cyst. He noted the treatment by Dr Thomas and the right knee arthroscopy on 13 December 2019 under Dr Thomas to address a medial meniscus tear.
Dr Negus diagnosed that the applicant is suffering from an exacerbation of osteoarthritis in both knees and an exacerbation of degenerative lumbar spine disease. He was of the opinion that the radiology of her right knee would strongly suggest pre-existing arthrosis but they were asymptomatic prior to the accident so it is more likely than not that the accident was the main aggravating factor. He noted that she reported only suffering mild lumbar spine pain prior to the accident and radiology again confirms pre-existing degenerative disease, however, the GP notes suggest a longer term level of at least moderate lumbar spine symptoms and symptoms seem to have been significantly more severe since the accident. He opined that the subject accident was the main contributing factor to the aggravation of her knee and lumbar spine conditions.

The respondent’s case

The respondent in its Reply attached an unsigned statement of the applicant’s manager, Ms Morua. I will refer to this unsigned statement with respect to specific issues below.
Also attached to the Reply was an Incident Investigation Form of the respondent, which under a heading “Names of investigation team (including affected people)” were two names, those of Morua and the applicant. The final section of that form, headed “Managers sign off”, named the manager as Ms Morua and the date as 27 March 2018, but there was no signature attached to the section requiring the signature. There was a somewhat lengthy description of the circumstances of the accident and subsequent telephone conversations with observations or conversations recorded in respect of persons, other than Ms Soban and the applicant, for whom no signed statements have been provided in evidence. This description appeared in a section dealing with control procedures and that description was non-responsive to the question asked in that section, that is “are there existing controls currently in place, for example safety procedures, standard operating procedures or risk assessments for the task? Were they followed by the persons involved in the incident? (If no please provide reason why?)” The Incident Investigation Form in my view can be considered, but where there are matters that are not elsewhere described in the statements of Ms Soban and the applicant, or are not the subject of other records, I would not place much weight with respect to contested issues and matters of credibility of the applicant.

The section 74 notice of QBE dated 16 May 2018 stated that the matters in dispute were section 10(3A) of the 1987 Act and that the information they had suggested that the journey was only for the purpose of the applicant travelling between her place of abode and her employment and there was no real and substantial connection with her employment. The section 74 notice also commented upon telephone conversations between the applicant and Ms Morua and Ms Soban and also the review of the CCTV footage by Ms Soban.
The section 78 notice of QBE dated 10 July 2020 summarised the liability decision as disputing that there was a real and substantial connection between employment and the accident as required by section 10 of the 1987 Act and that it was disputed that the injury to the right knee is covered under workers compensation as required by section 4 of the 1987 Act and that it was disputed that there was an entitlement to permanent impairment lump sum compensation as the permanent impairment has not resulted from an injury as required by section 66(1) of the 1987 Act. QBE relied upon the opinion of Dr Burrow.
The respondent also provided an AIG claim form and also attending physicians statements. These documents will be dealt with where relevant below.
In addition to the report of Dr Burrow, also attached to the reply were various historical medical reports and also scan reports as well as medical certificates and a factual and liability summary report. I will only further deal with such material where they were specifically relied upon by the respondent.
The respondent also provided an unsigned statement purportedly of the applicant. Neither party relied upon this unsigned statement.
In addition to the unsigned statement of Ms Morua, referred to above, the respondent also provided a signed statement of Ms Soban dated 29 May 2018.
Ms Soban stated that in her role she provided administrative support to case managers and caseworkers. There was no reporting structure between herself and the applicant although she would have contact with the applicant if requested to assist with administration duties.
She stated that at about 9:25 AM on 21 March 2018 she was asked by a work colleague, Kylie Sweet, to help as another colleague had fallen in the car park. They attended the downstairs car park by about 9:30 AM and looked for the applicant where they saw another caseworker, Ms Ingrid Stemphelet who said that she went to get the applicant a coffee and and on her return the applicant was gone. After looking for the applicant, Ms Soban said that she called the applicant directly and asked her where she was. She said the applicant replied “my friend had come and I am being driven home and will see a doctor” and that the applicant reiterated that she was being driven by her friend. She said that the applicant also said “I am very sore. I fell on my knees and hands” and that the applicant explained that both her hands and knees were quite sore. She said the applicant told her that “I fell forward to coming on my hands and knees” and said that she was walking and then fell and had come forward onto her hands and knees and was sore. She said that at about 9:54 AM she received a telephone call from the applicant who sounded upset and she said “I am still in Fairfield with my friend. He just stop to get me coffee and he is really worried about me”. After a further short conversation, the applicant said “I want to go to my doctor. But my friend would take me home first, as my clothing is wet from the fall” and then the applicant said “my friend is back now. I need to go. He is worried about me”. Ms Soban said that she heard the applicant speaking in a different language and a male responded in a similar language and then said “I need to go”.
Ms Soban said that later that morning she was asked by Mr Tsangarides, acting manager of client services, the CCTV footage of the accident. She said she viewed the footage from 9 AM to 9:20 AM on 21 March 2018 and she could see in the lower right camera on the screen “before falling forward and landing on the concrete”. I take this to mean that she saw the applicant falling forward and landing on the concrete. She said that the incident occurred near a parked vehicle and it was only just within view of the camera. She said that the video shows the applicant “landing on her hands and knees”. She also said that the angle of the camera was not able to assist in determining what had caused the applicant to slip and fall and she could not see anything else other than the applicant just within camera view and immediately falling forward. She described the action of the fall as someone falling forward and instinctively placing her hands out to brace for the fall. She said that the footage confirmed that a person leaving the building suddenly noticed the applicant on the ground and that person was Casey McNally. She said that as Casey approached the applicant by that time she was almost standing upright and Casey only remained for a second or two before Ms Morua and Ms Stamhpele attended. She said that after an interruption in viewing the footage she resumed viewing the entire footage. She said that she could not recall the movements on the footage of Ms Morua and Ms Stemphelet. She said “however, I observed Racquel walking around her vehicle and had her left hand onto the car, which looked like she was balancing herself, before entering the driver’s seat and driving off alone”. She said that she noticed that the applicant “had stopped and paused towards the rear of her vehicle whilst looking around before continuing a few more steps into the driver seat” of her vehicle and driving away. She said that she viewed a further angle which showed the applicant exiting and she was the only person in the vehicle and there is no other person with her “despite what she told me at 9:37 AM”. She said that she later enquired of the building security guard in the week commencing 16 April 2018 as to whether the footage was still available but she was told that it overwrites itself after a number of days.
Ms Soban also said that the applicant returned to work at some time after the incident, possibly a few days later. She said that when the applicant was walking past the administration area, Ms Soban noticed that she had a large bruise on the lower part of her right leg. Ms Soban said that the bruise was noticeably large but she did not discuss this with the applicant. Ms Soban said that she assumed that this bruise was from the fall but couldn’t work out how, considering the bruising was at the back of her leg and that she had fallen forward onto her knees and hands. She said that she had never noticed this bruising prior to this date which was why she assumed it was related to the incident.
Dr Burrow provided a report dated 1 June 2020. Dr Burrow recorded a history that the applicant last worked on 21 March 2018, the date of the incident, and she was medically retired in 2019. He noted that the applicant indicated that she had made multiple claims for low back pain previously as a result of work incidents, particularly when lifting children. He recorded that the applicant told him that she was involved in a motor vehicle accident in the late 1990s or perhaps even early 2000s but she could not exactly recall. He noted that from the accompanying medical documents her car was hit from behind and she developed low back pain and she was unfit to work for three months and then returned to restricted duties and returning to normal duties 12 months later and she underwent physiotherapy, injections, manipulation, chiropractic treatment and she recalled that she received compensation in respect of 20% impairment of the back. He reported that she said she recalled another motor vehicle accident where she developed back pain, left leg pain and neck pain but could not recall the details. She also recalled a fall at work where she injured her left foot and was unfit for work for three months and mobilised in a wheelchair. She referred to claims for mental health conditions including anxiety and depression related to various incidents at work including sexual harassment and bullying and she explained that she had received death threats from a client or clients and that a house had been graffitied and she described these incidents as occurring from 2010 to 2016.
Dr Burrow recorded a history that on 21 March 2018 the applicant had been allocated a particular spot in the garage and she was particularly anxious on this day as she had received death threats from various clients. He recorded that she was exiting the car and at the same time talking to a client on her phone and was searching the garage to make sure no client was waiting for her. He recorded that on exiting the car and perhaps taking several steps she fell. He noted that she did not know why but she does not believe she tripped over or on something. He recorded that she landed on both knees and hands and she said that she was abandoned there and eventually drove herself out of the car park and she was particularly keen to get out of the car park as she was anxious and stressed. He noted that it is not clear whether she got home but her son took her to a GP as she simply wanted to kill herself.
Also as noted by Dr Negus, Dr Burrow recorded that Dr Kamar noted bruising and that her hands were sore. Dr Burrow noted that she was unable to return to work due to continuing marked symptoms in her hands, knees and back and she was medically retired in 2019.
Dr Burrow noted that a subsequent MR scan on 9 November 2019 confirmed patellofemoral and medial compartment arthritis with degenerative changes of the meniscus. He noted she attended Blacktown Hospital on 11 November 2019 and was told that she had a right knee cyst. He noted treatment by Dr Thomas and right knee arthroscopy on 13 December 2019 with no post-operative complications but she has had continuing symptoms. He also noted the 9 May 2019 MR scan of the lumbar spine reported multilevel disc disease. He also reviewed radiology, including that of the lumbar spine, that was taken prior to the subject accident.
Dr Burrow opined that the applicant’s lumbar spine arthritis has been well documented, investigated and treated, particularly by injection, time off work and physiotherapy for many years prior to the 21 March 2018 full and that she suffered a temporary aggravation of the pre-existent chronic severe back pain which is now resolved. He was of the opinion that any ongoing symptoms, disability and impairment are due to the pre-existing condition.
Dr Burrow was of the opinion that the applicant sustained soft tissue injuries to both knees with bruising and swelling but there was no immediate significant or ongoing knee problems until 2019 when a Baker’s cyst burst. He said that she had knee symptoms, particularly on the right but also the left and subsequent investigations have confirmed knee arthritis with degenerative meniscus tear. Dr Burrow opined that she suffered a non-structural injury to both knees in the fall, resulting in bruising which subsequently and expectedly resolved. He noted that the applicant re-presented in late 2019 with significant right knee pain, the first presentation of constitutional arthritis due to age and obesity. He was of the opinion that the presentation of right knee arthritis and the need for future surgery is unrelated to the fall on 21 March 2018. He opined that her presentation was not coincidental with that injury but almost 18 months later it is a constitutional problem. He further concluded that there was a temporary aggravation of well documented pre-existing chronic lumbar arthritis. He also concluded that there was some initial leg bruising which resolved as would be expected and there was no structural injury to either knee and her current symptoms are due to presentation of constitutional arthritis due to her weight and age in late 2019.
Dr Burrow also was of the opinion that there was no specific contemporaneous injury to the right knee and there was some soft tissue bruising which was “documented by herself with her phone picture” but also by her GP and there was no ongoing mechanical injury. He was of the opinion that the symptoms in the right knee became apparent almost 18 months later around the end of 2019 which was investigated for increased knee pain and a burst cyst. He was of the opinion that the knee arthritis and subsequent presentation and surgery did not result from the fall but is constitutional in nature and unrelated to the fall. He was of the opinion that her current symptoms were from constitutional arthritis.
At this point, I note that Dr Burrow satisfied himself that there was bruising to the right knee with reference to the applicant’s “phone picture” which was not otherwise in evidence, as well as with reference to the GP, although the latter reference appears to be incorrect.
Dr Burrow also opined temporary soft tissue aggravation of the lumbar spine which resolved. He was of the opinion that her current symptoms and disability are due to well-documented chronic pre-existing disease. Dr Burrow noted inconsistencies in the applicant’s report of her prior back injuries and condition. In relation to the right knee, Dr Burroughs noted that to some extent her recollection and version of events is not consistent with the noted history and this correlates with the claim that the right knee was significantly injured in the work incident, it was bruised and settled and did not become symptomatic until at least 18 months following the work incident. He believed that there was a degree of abnormal illness behaviour or inconsistency in her claim. I note that Dr Burrow was of the opinion that the applicant’s right knee was significantly injured in the work incident and that it was bruised but it settled 18 months later. However, in considering a deductible proportion in relation to the assessment of permanent impairment, Dr Burrow was of the opinion that there was no evidence that the right knee was significantly injured as a result of the subject incident and became symptomatic more than 12 months after the incident of concern. There may or may not have been a typographical error in recording the opinion of Dr Burrow as to the significance or otherwise of the subject injury to the applicant’s right knee. At the very least, in my view it is difficult to ascertain whether or not Dr Burrow concluded that the subject injury to the right knee was significant or not.

Reasons and decision

In respect of the applicant’s account of the accident, the respondent took issue with the description that she was feeling anxious and panicked immediately before the accident, and also with her account that she was driven from the car park by her friend, when this was not the case.
In respect of the applicant’s statement that immediately prior to the accident she was feeling anxious and panicked and looking in all directions as she was fearful she would be confronted by the client, the applicant also indicated that she was not sure why she tripped and fell. However, given the substantial background of threats made against the applicant, that were accepted by the respondent as being serious enough to warrant a safety plan being put in place, there is evidence to support the applicant’s state of mind and her resulting looking around to ensure she avoided any confrontation with the client. The applicant said that she was feeling anxious and panicked in the context of fearing for her safety, and for her life, due to a threat or threats made by a client that the applicant had been dealing with in the course of her duties and that she was scared that she would be confronted by the client in walking from the car to the office. The signed statement of Ms Soban recorded that she attended the applicant after the accident. Ms Soban also said that she reviewed the CCTV footage of the accident, but she did not provide any observation of the applicant prior to the accident as the camera angle made it difficult to see the applicant before she fell forward.
The applicant said that it had been agreed between herself and the employer that she would park the car park every day and someone was to escort her to and from her car. Although in emails in evidence from Ms Morua and Mr Tsangarides it appeared that it was the applicant who did not wish to be accompanied from her car to the office when arriving at work, in my view this does not outweigh the evidence that the applicant should be accepted that she was.
Her GP in November 2017 noted a history of anxiety and depressive disorder and gave psychological counselling, and in March 2018, prior to the accident in question, noted that she was still managing to work four days per week – “can’t cope” and was seeing a psychiatrist. The reason for the consultations was not recorded in the notes. However, in my view it was the fact of the consultations with the GP, and the observations recorded by the GP in those notes, including treatment by a psychiatrist, that lend weight to the applicant’s statement that she felt anxious and panicked immediately prior to the accident in light of her concerns for her own safety.
Against this background of psychiatric treatment with prior psychological symptoms prior to the subject accident, and evidence of a prior threat or threats which were acted upon by the employer to put in place a safety plan, in my view the applicant’s statement that she felt anxious and panicked and fearful prior to the accident should be accepted.
The respondent also took issue with the applicant’s statement to Dr Burrow that she was abandoned after the accident and she drove herself out of the car park. Ms Soban in her statement said that she viewed the entire CCTV footage but she could not recall the movements of the two staff members Ms Morua and Ms Ingrid Stemphlete, after they initially attended to the applicant following the fall. There is also no time period noted by Ms Soban between the time that she saw the applicant being attended by her colleagues and the time that she got in the car and left the car park. What is clear from the statement of Ms Soban is that the applicant was not accompanied by her work colleagues when she got into her car and left. The respondent submitted that this was only a short period of not being accompanied before the applicant left. The respondent pointed to the timeline that was recorded in the Incident Report Form.
In my view, the shortness of time in which the applicant was not accompanied by her work colleagues is not determinative of the issue as to whether the applicant should be accepted when she said that she felt abandoned. The evidence does suggest that the applicant was left unattended for a period of time, possibly for about five minutes, although it is difficult to ascertain from the material in the Incident Report Form and Ms Soban in her statement said that she arrived in the car park downstairs “by approximately 9:30 AM and were looking for Raquel”.
In any event, in circumstances where the applicant, a woman of 64 years of age at the time, had fallen and had sustained injury and who was prior to the accident feeling anxious and panicked and fearful, in my view it is plausible that she may have concluded that she was abandoned and drove away. The applicant in her own statement and in the history recorded by Dr Negus she was left sitting in the car for a long period of time with no one to accompany her and felt very scared and anxious so she drove home in order to get away from the car park. In my view, there is no substance to the point made by the respondent and I do not accept it.
The respondent also attacked the applicant’s credibility in respect of statements made by the applicant to Ms Soban, as recorded in the statement of Ms Soban. Although the applicant in her statement referred to lying to Ms Morua that she was driving home alone, I consider that close scrutiny should be given to the respondent’s submission that the applicant lied to Ms Soban in the telephone conversation reported by Ms Soban that the applicant was driving home alone.

I do not accept the respondent’s submission that the applicant also lied to Ms Soban in a subsequent telephone conversation that morning shortly after the first telephone conversation with Ms Soban. In her statement as to the second telephone conversation, Ms Soban said that the applicant sounded upset and said that she was still in Fairfield with her friend, who had just stopped to get her coffee. Later in the conversation, Ms Soban reported that the applicant said she wanted to go to her doctor but her friend wanted to take her home first as her clothing was wet from the fall. The applicant said that her friend was back now and she needed to go and Ms Soban reported that she heard the applicant speaking in a different language and a male responded in a similar language.
In my view, the possibility that the applicant at the time of the second telephone conversation with Ms Soban was accompanied by her friend cannot be excluded. Also, the possibility that at some point after leaving the car park the applicant was accompanied by her friend cannot be excluded. I do not place weight on the unsigned statement of Ms Morua in this regard. Dr Negus recorded that she drove home, but Dr Burrow reported that she drove herself out of the car park and it was not clear whether she got home but her son took her to her GP. In my view the medical histories recorded were inconclusive and taken with brevity as this was not an issue for medicolegal opinion.
In relation to the first telephone conversation with Ms Soban, presumably shortly after the applicant left the car park, although the time is uncertain, the applicant in her statement was silent as to any conversation with Ms Soban on the telephone. I accept the statement of Ms Soban that she had two telephone conversations with the applicant. The words used by the applicant in the first, that is the earlier telephone conversation, as recorded by Ms Soban, were indeterminate as to the point in time to which she was referring when she said “my friend had come and I am being driven home” and may not have referred to the applicant being driven out of the car park by her friend. I note that the statement of Ms Soban in respect of her telephone conversations with the applicant on the day of the injury appears to differ somewhat from her email of 14 May 2018. In that email Ms Soban noted that the applicant said that her friend came and was driving her home and that she was going to the doctor and she left with her friend driving her car. In circumstances where the respondent has provided a signed statement of Ms Soban I decline to add to the evidence of Ms Soban by including matters in an email, when such detail would have been expected to be in the signed statement, particularly where both the email and the signed statement were dated in May 2018. I do not place much weight on the email in this respect when a matter that may have gone to the credibility of the applicant was not included in her signed statement.
Nonetheless the applicant admitted that she had lied, albeit to another person who has not provided a signed statement. The applicant said that she had a telephone conversation with Ms Morua and she said to Ms Morua “I am being driven home by my friend”. Again, it is not clear as to which point in time the applicant was referring.
In my view, the evidence does not indicate that the applicant lied about leaving the car park. The statements reported by Ms Soban as being made by the applicant do not say that she was driven out of the car park by her friend. There is evidence that at the time of the second telephone conversation with Ms Soban the applicant was not alone.
I accept that at some point after leaving the car park the applicant probably did not tell the truth in a telephone conversation that she was with a friend when in fact she was alone. The applicant said she lied to Ms Morua, but it is not clear when. It is unclear from the respondent’s evidence as to whether an untruth was told to Ms Soban in the first telephone conversation or to Ms Morua. In my view, the applicant’s silence as to the contents of either telephone conversation with Ms Soban should not amount to an acceptance that the applicant was not telling the truth to Ms Soban when the statements of the applicant reported by Ms Soban were indeterminate as to time and the passage of time. I do not accept that the applicant lied to Ms Soban in the first telephone conversation when the contents of the second telephone conversation with Ms Soban are considered in respect of the apparent exchange in another language with a male person. I do not accept that the applicant lied to Ms Soban in the second telephone conversation for the same reasons. Accordingly, I do not accept the respondent’s submission that the applicant lied to Ms Soban.
The respondent also said that the accident took place at sometime between 9 AM and 9:15 AM or 9:30 AM but she did not see her GP, Dr Lowe, until 3:28 PM, according to Dr Lowe’s notes. The respondent submitted that this is inconsistent with the applicant going home from the accident and seeing her doctor. However, the statement of Ms Soban does not support this contention. In the first telephone conversation, the applicant was reported to say “my friend had come and I’m being driven home and will see a doctor” and in the second telephone conversation she was reported to say “I want to go to my doctor. But my friend would take me home first, as my clothing is wet from the fall” and she also mentioned that she would take some Panadol when she returned home. In her statement of 4 December 2019, all that the applicant said was that she saw her GP on the same day. Dr Burrow simply recorded that it was not clear whether she got home but her son took her to her GP. Dr Negus also recorded that she saw her GP that day. I do not accept the respondent’s submission.
The respondent also challenged the veracity of the history recorded by Dr Negus that the applicant said that she tried to return to work but was not fit for preinjury duties. The respondent submitted that the email of Mr Tsangarides dated 4 May 2018 noted that the applicant returned to work on 26 March 2018 when she was advised that a work performance meeting between the applicant and Mr Tsangarides and Ms Morua would still need to occur and was reorganised for 27 March 2018. However, the email of Mr Tsangarides was itself not contemporaneous with the matter asserted, being some six weeks after the return to work on 26 March 2018. That email was also short on detail as to the circumstances of the return to work on 26 March 2018 and the reason for not returning to work since that time. The respondent has suggested that it was work performance issues and not issues with restrictions due to the back and right knee that were the reason for not returning to work. The only signed statement provided by the respondent was that of Ms Soban, which did not refer to work performance issues. The unsigned statement of Ms Morua did refer to work performance issues but I do not attach weight to that statement in this regard. I was not taken to any other substantive and contemporaneous correspondence from the respondent as to the process being followed with work performance issues nor as to how seriously they were regarded by the respondent. Medical certificates attached to the Reply were not conclusive. A medical certificate of Dr Peter Lowe dated 21 March 2018 certified that the applicant was unfit for work from 21 March 2018 to 23 March 2018. A medical certificate of Dr Augustus Pusey dated 14 April 2018 certified the applicant as having no current work capacity for any employment from 27 March 2018 to 31 May 2018 with respect to injury on 21 March 2018. The applicant did not attach medical certificates to the ARD. I do not accept the respondent’s submission as to the veracity of the history recorded by Dr Negus, with respect to both the applicant’s credibility and the reliability of the opinion of Dr Negus.
Nevertheless, the question arises whether some degree of caution should be exercised when considering the applicant’s evidence in light of her admission that she lied to Ms Morua that at the time of that conversation she was being driven by a friend when she was alone. Although the untrue statement made by the applicant was not given in evidence to the Commission, nor in a statement to the insurer, nevertheless it was made to the respondent. In my view, what is required is not absolute “corroboration” or confirmation in written contemporaneous records as to matters asserted by the applicant, rather it is that I should form an actual persuasion of matters asserted or alleged by the applicant, having regard to the nature and extent of the applicant’s untrue statement and the relevance of it to the evidence being considered. Confirmation or otherwise from other sources may be considered.
The issue of credit for the respondent went to whether or not the evidence of the applicant as to injury to the right knee, and to some extent the back, should be accepted. Credit was less strenuously put with respect to the existence of a prior agreement or safety plan.
Before turning to a consideration of the right knee and the back, the question of the application of section 10(3A) of the 1987 Act should be considered. Section 10(3A) provides that “a journey referred to in subsection (3) to or from the worker’s place of abode is a journey to which this section applies only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose”.
It was not in dispute that the applicant had left her place of abode and was on her way to her employment. It was also not in issue that the incident took place in the car park. It was not in issue that the applicant fell forward and landed on her hands and knees after she had exited her vehicle while still in the car park.
In my view, the applicant had parked in the car park in accordance with a direction or arrangement with the respondent that she do so following a threat or threats that were made by a client of the respondent that the applicant had dealt with in the course of her duties.
An email from Mr Tsangarides, acting Manager Client Services, dated 5 January 2018, with subject heading “threats from the mother of [name stated] children”, stated that “the following was agreed until we were confident that there will be no further safety concerns from [name stated]… Racquel should park her car in The Chase car park… This will be reviewed after 4 weeks.” It was also noted that it was agreed that the applicant was to request assistance from one of her colleagues to escort her to her vehicle after work and not be by herself when she goes to lunch. Mr Tsangarides noted that he had found a record that both [name stated] and [name stated] had made similar threats in the past and that it was recorded that they said that “if ‘DOCS or police’ come to the door or anyone tries to get between them and the children that they will end them. It is unknown if they have access to any firearms or not.”
An email from Ms Morua dated 8 January 2018 at 12:57 PM to the applicant stated that “as discussed with you today you have agreed to park the car in the Chase building. You have agreed to have admin accompany you to and from the car park before and after work.” It was noted in that email that this arrangement would be reviewed at the end of January 2018. The later email from Ms Morua on that day requesting agreement to the safety plan is contrary to the two earlier emails which confirmed an agreement. In my view an agreement as to the safety plan was made regardless of an assertion contained in the later email of Ms Morua on 8 January 2018.
I find that the “safety plan” was the one commenced by Mr Tsangarides and continued with some alteration by Ms Morua in her first email of 8 January 2018 to include accompaniment to and from the applicant’s parked vehicle in the morning and afternoon. Both these emails confirmed an agreement, which included an agreement that the applicant park her car in the car park in which she sustained the subject injury. The respondent disputed the applicant’s statement that most times she was not accompanied from her vehicle to the office because other staff were too busy and there was nobody free to accompany her. The email of Mr Tsangarides of 5 January 2018 was incomplete in that it was terminated in mid paragraph. However, I gather that he expressed concerns that the applicant had on 28 December 2017 gone to lunch of her own accord and had not had an escort on 29 December 2017 to go to lunch or to her vehicle. There is reference in the unsigned statement of Ms Morua to similar difficulties. However, the unsigned statement of Ms Morua also referred to other conversations with the applicant in which it was said by the respondent that the arrangement or agreement to park in the car park had not continued or was not in place at the time of the subject accident. I do not place weight on the unsigned statement of Ms Morua in relation to the applicant not continuing with the agreement. It seems to me that regardless of the reason as to why the applicant may have been unaccompanied from her vehicle to the office, and it is unclear as to how often this happened, the applicant was continuing to avail herself of parking in the car park that was designated by the respondent in circumstances where she continued to fear for her safety. There is no evidence before me that the respondent terminated this arrangement or agreement and, even if the unsigned statement of Ms Morua were to be given any weight in this regard, it seems to me that the respondent acquiesced in, or at least did not actively challenge, the applicant not being accompanied when she walked from her vehicle in the car park to the office on the day of the subject accident and earlier. There is no evidence before me that the respondent terminated the agreement, nor is there evidence before me of a review or of the outcome of any such review after the end of January 2018. There is no evidence before me that the need for the safety plan, that is threats made by the client, had resolved by the time of the subject accident.
I find that the safety plan was still in existence at the time of the subject accident.
I also find that on the day of the subject accident, the applicant had parked in the car park designated by the employer as part of the safety plan.
In Bina v ISS Property Services Pty Limited [2013] NSWWCCPD 72 (Bina), it was found that the word “connection” in section 10(3A) may but does not necessarily convey the notion of a causal relationship. In Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden [2014] NSWWCCPD 13 (Wickenden) it was decided that the expression “real and substantial connection” does not require any causal relationship between the two circumstances or situations concerned. What is required is an association or relationship.
In this case, the subject accident occurred in the car park that was designated by the employer in the safety plan. A causal relationship between the safety plan, and the circumstances which resulted in the safety plan, and the fall in the car park is not required. The applicant’s evidence was that although she was not sure why she fell, she felt anxious, panicked and fearful and she was looking around to see that she would not be confronted by the client when she fell. The circumstances of the applicant not telling the truth in relation to being alone in her car after the accident should be considered. In my view, the balance of the evidence, including the circumstances of the safety plan being agreed where the applicant had been threatened by a client, allows me to accept the applicant’s evidence on this point.
I find that the applicant slipped and fell onto her hands and knees onto the concrete floor in the car park on 21 March 2018. The statement of Ms Soban on review of the CCTV footage in my view supports this conclusion. It was a rainy day and the applicant had wet clothes after the fall. In my view this finding is sufficient to find a slip and fall resulting in injury without requiring reference to other factors.
I find that the applicant also felt anxious, panicked and fearful and was looking around to see that she would not be confronted by the client and was shaking with fear before she fell. Although the applicant was not clear as to what happened at the precise moment of the fall, her evidence was that she was shaking with fear. This is an additional factor in the slip and fall and in my view the emails of the respondent provide the basis for accepting the applicant’s evidence on this point, that is there were threats made against the applicant which were accepted as being significant enough to require the safety plan and the applicant’s presence in the carpark was part of the arrangements made in response to those threats. The applicant’s statement as to her fear and that she was shaking with fear is not far fetched. I accept that she was shaking with fear and looking around for the client when she slipped and fell, when it had been raining and her clothes were wet after the fall.
In my view, the connection between the accident and the applicant’s employment was real and substantial. It follows that section 10(3A) of the 1987 Act does not prevent the applicant being entitled to claim compensation pursuant to section 10(1) of the 1987 Act or, put in another way, the applicant has established that she has met the requirements of section 10(3A) to allow her to claim compensation pursuant to section 10(1).
There was a submission in the alternative by the applicant that the telephone call that she received prior to the accident meant that the applicant was in the course of her employment when she fell. The respondent objected to this submission on the basis that this contention had not been made in the ARD, nor previously, and it would be necessary for the respondent to have further particulars and investigate further evidence to reply, to which the applicant submitted that the submission was available on the statement provided by the applicant that was attached to the ARD. It is not necessary for me to decide this issue, as I have decided in favour of the applicant in respect of the section 10(3A) issue and also below in relation to the dispute as to injury to the right knee and the back.
In considering the evidence in relation to an aggravation of a disease within the meaning of section 4(b)(ii) of the 1987 Act, the applicant submitted that the relevant principles identified in Elsamad v Belmadar Pty Ltd [2019] NSWWCCPD 22 (Elsamad) should be applied. Following the authority of Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch), where the equivalent earlier provision was considered, the question is “whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.”
Elsamad also referred to May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; 322 ALR 330 (May). The equivalent provision in section 4 of Safety, Rehabilitation and Compensation Act 1988 (Cth), was considered by the Full Court of the Federal Court in May, where it stated
“neither the terms of s 4 … nor the authorities, preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion. Whether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal’s satisfaction on the evidence in each particular case.”
Although May was otherwise overturned in the High Court, the principle stated above was regarded as being correct[1]. I accept the submission of the applicant as to the applicability to this matter of the principles identified in Elsamad.
[1] May No 2, [80].

In relation to the right knee, in summary the respondent submitted that on the evidence the Commission would not be satisfied of any injury to the applicant’s right knee. It was submitted that it is essential to find pathology in the right knee in respect of the incident of 21 March 2018 as well as pathology when the symptoms in the right knee was said to become evident in October or November 2019. The respondent submitted that the applicant’s evidence should not be accepted unless corroborated as to injury to the right knee.
The respondent submitted that the clinical records of the GP medical practice did not disclose any symptoms in the right knee on the day of the accident, nor did those records disclose any symptoms in the right knee until October or November 2019. The respondent also submitted that even if it were to be accepted that there was some evidence, the clinical records referred only to the lower leg and the calf and not the knee.
I accept that the applicant sustained injury to her right knee when she fell to the ground in the subject accident. The statement of Ms Soban recorded her observation of the CCTV footage in which she saw the applicant fall forward and land on her knees and hands. The applicant said that it was a “big fall”. The unsigned statement of Ms Morua also referred to noticing a wet patch over the applicant’s right knee and to the extent that it is not contesting an issue, I accept this aspect of the unsigned statement in this regard. The statement of Ms Soban, with reference to a telephone conversation with the applicant on that day, recorded that the applicant said that her clothing was wet from the fall. Ms Soban also said in her statement that when she returned to work on time after the incident the applicant was walking past her area and Ms Soban noticed that she had a large bruise on the lower part of her right leg. Ms Soban said that the bruise was noticeably large and covered most of the calf area and she assumed it was from the fall, but she couldn’t work out how “considering this bruising was that at the back of her leg and that she had fallen forward onto her knees and hands”. Ms Soban said she had not noticed the bruise prior to this date. I note that Ms Soban did not say whether or not she saw the applicant’s right knee in her observation of the bruising on her lower leg. In any event, relevant to this consideration was the confirmation by Ms Soban that she had observed the applicant to fall forward onto her knees and hands.
In my view the applicant’s evidence is confirmed by the CCTV footage as described by Ms Soban. I accept the evidence of the applicant that it was a big fall and in the context of a 64 year old woman, who was noted on the medical evidence to be obese, I have an actual persuasion that the applicant sustained a heavy fall relevantly onto her right knee.
The history recorded by the applicant’s GP, Dr Peter Lowe, on the day of the accident noted that the applicant fell forward and landed on her knees and palms and that she was limping and using her son as a crutch. There was no bruising or swelling seen and no history recorded of pain in the right knee. However, bruising was recorded in subsequent consultations, although the notes refer to the left leg. It is possible that the GP notes may simply not have recorded right knee bruising in the course of a busy GP treatment practice. The statements of the respondent’s witnesses referred to the right leg, although the right knee was not mentioned in terms of bruising. I accept that the clinical notes of the GP medical practice, including Dr Lowe and Dr Qamar, do not preclude acceptance of the applicant’s history of bruising to the right knee and marked symptoms in both knees following the accident.
The respondent submitted that in her statement Ms Soban was incorrect in referring to the right leg and that the clinical records of the GP medical practice recorded the correct history of symptoms in the left knee or leg.
However, I do not accept this submission. The applicant in her statement of 4 December 2019 said that when she saw her GP, Dr Qamar, on the day of the accident the left leg was sore and several days later she noticed bruising around her left ankle and inner leg. The applicant appeared to suggest in her statement that since the accident she has continued to experience pain, especially in her knees, and she favoured her left leg so she would try to bear more weight on her right knee. The medical opinion does not support the latter supposition by the applicant in relation to bearing more weight on her right knee. The statement of Ms Soban was silent as to bruising on the left leg. In my view, the weight of the evidence is not inconsistent with there being injury to both legs and knees.
Ms Soban in her statement displayed a particular interest in, and a detailed recording of, the circumstances of the accident and her observations of the CCTV footage, her telephone conversations with the applicant and her observations of the applicant’s right leg when she returned to work. The unsigned statement of Ms Morua, for which I give some weight on this point as to the wet patch on the right leg, did not contradict Ms Soban that there was involvement of the right leg in the accident. In my view, given the conduct of this matter by the respondent, with great focus on challenging the evidence in relation to the right knee, the evidence of Ms Soban as to the right leg in the respondent’s own case has been clear since she made the statement, but there is no evidence before me as to a correction.
The respondent submitted that in addition to a lack of reference in the clinical records to the right knee prior to October or November 2019, and “Attending Physicians Statement” attached to an AIG Claim Form, although it is not clear on what insurance the claim was made, in respect to the injury of 21 March 2018 there was no reference to the right knee. The respondent submitted that in another “Attending Physicians Statement” dated 30 May 2018 completed by the treating GP, there was no reference to the right knee. However, in my view these forms did not require further examination and report by the treating GP. Rather, the forms in requiring details of initial and most recent consultations appear to require the treating GP to consult their records. In my view, these forms do not amount to further evidence of a lack of a record of right knee complaints, rather the reports reflect the consultations that were already conducted.
The respondent also submitted that the only radiological scan report in evidence in relation to the right knee was the MRI right knee scan performed on 9 November 2019 and in particular there were no earlier scans. I understood this submission to be to the effect that any changes seen on that scan cannot be attributed to a relatively minor incident on 21 March 2018. However, I have found that the applicant sustained a heavy fall onto both her knees on 21 March 2018. Further, the meaning or interpretation attributed to that MRI scan is a matter for expert opinion, having regard to the history taken and the findings made. Both Dr Burrow and Dr Negus had regard to that MRI scan of the right knee and I will return to the consideration of their opinions below.
The applicant submitted that in respect of the clinical records of the GP medical practice, the Commission should adopt caution in accepting the accuracy of such records as they are taken in the course of the conduct of a busy treatment practice and that such records may not be entirely accurate. In my view, this submission has merit in the context of this matter. Although the initial record of symptoms was to the left lower leg, there is a lack of clarity in later records as to which leg was the subject of the history and examination and also a lack of clarity on occasion as to the precise part of the leg. Early records after the accident in question record increased bruising and tenderness in the lower leg but the statement of Ms Soban, in the context of the applicant’s statement and the unsigned statement of Ms Morua, indicate that it was the right leg in which there was bruising. It seems to me that it is plausible that, as recorded in the history taken by Dr Negus, there were complaints of pain in both knees, although not initial bruising on the day of the accident, and that her right knee and lower back became very sore over time, and such pain has continued. Although it is only necessary to find injury on the day in question, the respondent did point to the lack of any reference in the clinical records to right knee pain prior to about October 2019, together with the opinion of Dr Burrow that the applicant sustained only bruising to the right knee as a result of the accident in question and that such bruising has resolved.
I do not prefer the opinion of Dr Burrow. Dr Burrow in my view did not engage with the issue of injury causing aggravation or exacerbation of the pre-existing osteoarthritis of the right knee, as he said that this musculoskeletal condition is not due to the work incident. He was of the opinion that it became apparent more than a year after the work incident. He said there was no specific contemporaneous injury to the right knee and there was no ongoing mechanical injury. He was of the opinion that the knee arthritis and subsequent presentation and surgery did not result from the fall but is constitutional in nature and unrelated to the fall. Dr Burrow recorded the history that the applicant was unable to return to work due to continuing marked symptoms in her hands, knees and back. Although the respondent has taken issue with that part of the history that relates to being unable to return to work, what is clear is that the applicant said to Dr Burrow that she had continuing marked symptoms in her knees following the accident. Dr Burrow relied upon the clinical records which did not refer to the right knee until October 2019, but he did not deal with the history of continuing marked symptoms in both knees following the accident. His reference to there being no immediate significant or ongoing knee problems and that she had right knee symptoms following which investigations confirmed knee arthritis is in my view not sufficient to explain his opinion or engage with the history provided by the applicant.
I prefer the opinion of Dr Negus. Dr Negus was of the opinion that the applicant fell at work on 21 March 2018 and injured her lower back, both knees and the middle finger on her left hand. He recorded a history that the applicant’s right knee and lower back became very sore over time and she consulted a GP in November 2019 for her right knee pain. He diagnosed an exacerbation of osteoarthritis in both knees and that the radiology of her right knee strongly suggests pre-existing arthrosis but it was asymptomatic prior to the accident and so it is more likely than not that the accident was the main aggravating factor and that her accident was the main contributing factor to the aggravation of her knee and lumbar spine conditions.
The respondent also submitted that the area that was injured in the accident was the right calf and not the right knee. I do not accept this submission. I have found that the applicant fell heavily onto her knees and sustained injury to her right knee. While there is evidence of right calf bruising, this does not preclude the likelihood that the applicant also sustained injury to her right knee with aggravation of pre-existing osteoarthritis with marked symptoms becoming very sore over time.
Taking a common sense view of causation, as indicated in the decision of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang), the history of a heavy fall onto the applicant’s knees in my view resulted in bruising of both knees. Further, having regard to the evidence of the respondent’s witnesses of a wet patch on the applicant’s right leg and of bruising on her lower right leg, I find on the balance of probabilities that the applicant also sustained bruising on her right knee as a result of the heavy fall onto her right knee on 21 March 2018. I have regarded with caution the accuracy of the clinical records of the GP medical practice in this regard and, in my view, the absence of a record of bruising to the right knee is not sufficient to find there was no bruising to the right knee.
I have approached the evidence given by the applicant in relation to her right knee having regard to the caution that may be adopted in respect of the untruthful statement she made about her departure in her car following the accident. In my view the evidence is that she sustained a heavy fall onto her knees in the accident. On balance, I accept her evidence that she sustained marked symptoms in her knees and that her right knee became worse over time so that she sought treatment in October or November 2019 for her right knee condition. The clinical records of the Blacktown Hospital at that time note that she referred to a fall at work of about a year ago and I am satisfied that she was referring to the subject accident. The clinical records of the Blacktown Hospital also reported pain in the leg for one week on an intermittent basis starting about a week ago.
However, the history recorded by the Social Work Department of the Blacktown Hospital on 12 November 2019 in addition to recording a history of worsening right knee pain over the last couple of weeks, also recorded that the applicant told Social Work that she had a fall whilst she was at work approximately 18 months ago and that she has been struggling with walking since then. In my view the Social Work Department clinical record confirms the history given by the applicant of marked symptoms in her right knee following the accident of 21 March 2018, as recorded generally by Dr Negus and Dr Burrow.
In relation to the lower back, the clinical notes recorded prior significant complaints of lower back pain. However, those clinical notes also recorded complaint of mid back pain on the day of the accident with complaints of lower back pain on 28 March 2018. Following that there are fairly regular complaints of back pain recorded in the clinical records of the GP medical practice.
Dr Burrow accepted that there was a temporary aggravation of the pre-existing chronic severe back pain which has now resolved and any ongoing symptoms and impairment are due to the pre-existing condition. Dr Burrow did not explain why such symptoms relating to the injury had resolved, when the applicant’s history to him was that she had continuing symptoms in her back from the date of the accident. His references to the clinical records of the GP in relation to back complaints was also incomplete with clinical records between 23 March 2018 and 26 March 2019 in respect of complaints of back pain, when in fact the clinical records in that period did refer to back pain.
As noted above, Dr Negus recorded a history of continuing complaints of back pain following the accident and was of the opinion that notwithstanding the applicant referring to her prior back pain as minor, he thought there was a longer term level of at least moderate lumbar spine symptoms prior to the injury but the symptoms seem to have been significantly more severe since the accident and therefore the accident was the main contributing factor to the aggravation of her lumbar spine condition, that is degenerative lumbar spine disease.
I have considered the caution that may be given to the applicant’s evidence in relation to her lower back in terms of the untruth that she told regarding her departure in her car after the accident. In my view both Dr Burrow and Dr Negus have properly accounted for the history of prior back complaints and the history that they recorded as provided by the applicant in relation to complaints after the accident is broadly consistent with the clinical records.
Although the opinion of Dr Burrow is somewhat deficient in terms of explanation, it does not dispute that the applicant had pre-existing lumbar spine arthritis and that the injury caused an aggravation, albeit temporary, of the pre-existent chronic severe back pain, that is the pre-existing arthritic condition.
In my view, taking a common sense view of causation in the manner required by Kooragang, the heavy fall onto her knees and hands in the accident resulted in injury to the applicant’s lumbar spine.
Having regard to Elsamad, with reference to the above principles in Semlitch and May, I find that on 21 March 2018 the applicant sustained injuries to her right knee and back, being aggravations of pre-existing degenerative conditions within the meaning of section 4(b)(ii) of the 1987 Act. It is not necessary to find pathology arising from the accident of 21 March 2018, rather it is necessary to consider whether as a result of the accident of 21 March 2018, the osteoarthritis of the right knee and the degenerative back condition were made more serious. I find that to be the case having regard to the totality of the evidence, my acceptance of the applicant’s evidence with some caution as to the matter of her untruthful statement, and the opinion of Dr Negus. I accept the opinion of Dr Negus and I find that the injury on 21 March 2018 was the main contributing factor to the aggravation of the pre-existing conditions in the applicant’s right knee and lumbar spine.
In my view the aggravation of the pre-existing disease of both the right knee and the lumbar spine was also a personal injury for the purpose of section 10(1) of the 1987 Act. The applicant suffered a heavy fall in the accident, which resulted in the aggravation of the pre-existing disease pathology in both the right knee and the back. This in my view is sufficient for a finding of injury simpliciter. If that is found not to be correct, then in my view the initial pathology was bruising to her knees resulting from the heavy fall. In my view either or both the aggravation of the pre-existing disease pathology in the right knee and in the back, or the bruising of her right knee, was sufficient to bring the injury resulting from the accident of 21 March 2018 within the meaning of personal injury for the purpose of section 10(1). I find that the injury on 21 March 2018 was a substantial contributing factor to the aggravation injury of the applicant’s right knee and lumbar spine.
As was submitted by both counsel, the principles identified in the decision in Greater Taree City Council v Moore [2010] NSWWCCPD 49 (Moore) apply in this matter as the claim in this matter is for permanent impairment only. The effect is that it is only necessary to decide in this matter on the issue of injury. It is not necessary to decide, and it should not be decided in circumstances where there is a significant issue as to the degree of permanent impairment resulting from injury that should be assessed by a Medical Assessor, whether the effect of the proven injury has ceased or is continuing. In my view, the 2018 amendments to the Workplace Injury Management and Workers Compensation Act 1998 allowing for determination of the degree of permanent impairment by the Commission, without necessarily a requirement for medical assessment, do not alter the applicability of the principles identified in Moore in circumstances where in my view the assessment of the degree of permanent impairment should be referred to a Medical Assessor.
As I have found that the applicant has sustained injury to the right knee and the lumbar spine as a result of the accident on 21 March 2018, and the injury to the left upper extremity is not disputed, the matter should be remitted to the President for a referral to a Medical Assessor for the assessment of the degree of permanent impairment resulting from injury on 21 March 2018 with respect to the left upper extremity, right lower extremity and lumbar spine.

[2021] NSWPIC 137

25 May 2021