Wilde v Elder Constructions
[2017] VMC 1
•20 January 2017
| IN THE MAGISTRATES COURT OF VICTORIA | G11251685 |
AT MELBOURNE
| SHANNON WILDE | Plaintiff |
| V | |
| ELDER CONSTRUCTIONS PTY LTD | Defendant |
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MAGISTRATE: | Magistrate B.R. Wright |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12, 13 December 2016 |
DATE OF DECISION: | 20 January 2017 |
CASE MAY BE CITED AS: | Wilde v Elder Constructions |
MEDIUM NEUTRAL CITATION: | [2017] VMC001 |
REASONS FOR DECISION
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Catchwords:
Workers Compensation – Termination of Benefits – Knee Injury – Alleged No Longer Work Related - Novus Actus Interveniens – Relevance of Flare-up at Physiotherapist - Playing Football Game – Separate Home Incident Involving Cat– Workplace Injury Rehabilitation and Compensation Act 2013 s 46(1)(d),
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms V Nadj | Henry Carus & Associates |
| For the Defendant | Mr E Makowski | Russell Kennedy |
HIS HONOUR:
1
Ms Wilde is a 36 year old former apprentice carpenter who injured her right knee in a fall at work on 16 February 2015. Her accepted workers compensation claim is the subject of a Termination Notice effective as at
16 February 2016 on the basis that incapacity was no longer due to the work injury. Reasonable medical and like expenses were terminated on a similar basis. All legislative provisions in this decision are to the Workplace Injury and Rehabilitation and Compensation Act 2013 (“the Act”).
2 Ms Wilde resumed full time work with a different employer in a sedentary capacity as a settlement coordinator as at 8 August 2016. She makes no continuing claim for weekly payments beyond that date.
3 Of particular concern in this case are two incidents. On 12 July 2015 she played part of a game of Australian Rules football (“the football game”) at least. Also, on or about 13 January 2016 she was involved in an incident at home involving her cat in which she at least jarred her right knee (“the cat incident”).
4 Ms Wilde and her former football coach were the only witnesses to give viva voce evidence in this case. Otherwise, both parties tendered medical reports and some other documents.
5 Ms Wilde injured her right knee when she slipped off the ladder and landed on her side with her outer right knee hitting the floor. X-rays, CT and MRI showed no bony damage or medial collateral ligament injury. She was treated conservatively at the start with physiotherapy by Mr Tom Colliver and a sports medicine doctor, Dr Yu. On 12 July 2015 Dr Yu injected cortisone near to the patella which relieved pain for about four and a half weeks according to Ms Wilde.
6 She was given a medical certificate about 13 January 2015 to return to work on light duties for 21 hours per week and did so. Her medical certificate upgraded her hours to 27 hours per week as of 15 July 2015.
7 Meanwhile, she said she was registered to play Australian Rules football for her team “Manor Lakes” in rounds 7, 8, 9 and 11 between 14 June 2015 and 12 July 15. However, she said she only actually played in round 11 on 12 July 2015. She registered on the advice of her coach for those four games in order to be eligible to play in the finals later that year. She said she only actually played for about ten minutes up to half time in the football game and had two handballs only. Her medical certificate at the time dated 20 June 2015 did not mention “no running”, unlike some other medical certificates in this case.
8 On 14 July 2015 her physiotherapist, Mr Colliver, gave her a fitness test and her knee swelled. He gave her a total incapacity medical certificate on 23 July 2015 which he backdated to 14 July 2015.
9 She was then referred to Mr Vo, an orthopaedic surgeon, and first saw him on 10 August 2015. She had a right knee arthroscopy debridement procedure on 1 October 2015 which she said helped her symptoms, but did not help her inability to completely flex her knee. She said she was not happy with Mr Colliver as her physiotherapist as he had little variation in his treatment and she had no real improvement. She began to regularly see a different physiotherapist, Mr Sam Leslie, as of 30 November 2015.
10 She had the cat incident on 13 January 2016. Just prior to that she said she still had problems in that she did not have complete flexion and had pain to the outer aspect of the knee.
11 On 13 January 2016 she was at home when her cat jumped in front of her. She stopped, jumped back and heard her knee “pop”. She saw Mr Leslie and he said there was no structural damage to the knee. She had a further MRI on 18 January 2016 and saw Mr Vo again. On 28 July 2016 she underwent an arthrotomy. She had been on the public waiting list after her entitlement to medical expenses had been terminated, which explains the delay.
12 In the six months between the January MRI and the arthrotomy she still was unable to fully flex the knee beyond about 30 degrees, had pain to the outer knee and was unable to kneel. She was not working then. Surgery on 28 July 2016 helped her condition.
13 She began her present full time job at LeasePLUS on 8 August 2016 earning a similar wage to that which she would have been earning if she had continued with her carpentry apprenticeship.
14 In cross-examination she said she saw Dr Sam Soliman, an independent medical examiner for the VWA, on 27 January 2016. She said she saw him only for about 10 or 15 minutes and he interrupted her answers with further questions. She denied telling him that she had not played football since 2014, but said she had not played a full game since 2014. She denied telling him that a piece of timber fell on her and caused her to fall off the ladder to the floor. She denied telling him she had not returned to work at all since the fall but told him she had not returned to full time work. She said he kept cutting off her answers.
15 She denied telling him that the cortisone injection had not helped. She denied telling him that she had not improved over the last 12 months, but rather she had in fact improved. She said physiotherapy had helped but had difficulty getting flexion beyond about 35 degrees. She denied having no flexion deformity on examination by him and said he moved the knee into position while she was on her back on the examination couch. She denied that she had been on fun runs, having only walked for about five kilometres on 23 November 2015 in an event called the “Color Run”. She had been on a football trip and visited one theme park, went on one slide and sat in a pool with her other team mates.
16 She denied telling him of having a fall on or about 16 or 17 January 2016 and said her knee “popped” in the cat incident. However, she later said in evidence she did in fact sit back onto the floor in that cat incident.
17 In cross examination she said she has still not made a full recovery though she works full time hours. She denied doing a gym program in May 2015 but did various exercises under physiotherapist supervision. She was unable to do an almost full squat in June 2015. She denied taking a football team for training at about that time but said she was on the ground telling the team how to do training drills. She may have jogged one lap of the oval only on about 4 June 2015. She agreed she did not tell Mr Colliver she had in fact played football on 12 July 2015.
18 She denied doing any heavy work on the return to work on light duties. She did not kneel on her right knee while laying the floor underlay. Her football drills were limited to throwing the ball up or rolling the ball towards the other players. She said she is an accredited coach level 1 which she undertook by computer course. She did not do the practical aspects of that accreditation course to further qualify beyond that level.
19
In the round 11 game she played she said she remained in the 50 metre forward area. She agreed she was put into the best players for the game but said that this was encouragement only and to recognise that she yelled encouragement to others. She did not think it was necessary to tell
Mr Colliver or Mr Vo of her involvement in that game, nor Mr Brearley or
Dr Doig who examined her for the VWA. She did not think it necessary because of her very limited involvement in the game. She denied telling Dr Doig she had pain for 24 hours per day with substantial loss of use. She said her knee was fine after the game on 12 July of 2015. She had in fact gone to work on the following day which was the Monday.
20 She said it was her physiotherapist's exercise, fitness tests and/or pilates on 14 July 2015 that aggravated her knee symptoms and caused swelling leading her to be given a knee brace by Dr Yu on 23 July 2015.
21 She agreed she still had significant pain two weeks after the Color Run as she had pushed herself through the pain barrier to complete that walk. She was unable to get her knee past about 35 degrees flexion, though there was some improvement overall to the end of 2015. She believed she told Mr Vo about the cat incident but there had been no prolonged pain after that incident, with increased pain only for an hour or so afterwards. She said Mr Vo told her the “popping” sound was like a knuckle cracking when gasses escape from the joint on movement. She said she had seen Mr Vo after the arthrotomy on 28 July 2016. She was training now but did not play any football this year, i.e. 2016.
22 Ms Wilde's coach at Manor Lakes in 2015, Andrew Richards, gave evidence. He knew of her injury in 2015. He said she only actually played one game for the club and that was against Bacchus Marsh which I note was round 11. He believed she only played for about two minutes that day. She was put on to the playing list so that she could be eligible to play in the finals that year. As for the other games, she was still classified as a participant for finals eligibility even if she did not actually play in the game and remained on the bench. She would assist him in training drills as, unlike a number of the other players, she had played football for some time. She got on well with the other women in the team and would explain training drills to them. She did not run or take part in the actual training drills themselves.
23 He said that at the end of each game he would normally nominate six players in order for mention on the official team sheets. This did not indicate they were the actual six best players. Rather it was an incentive or an encouragement, for example when players shepherded for another player or were vocal in the encouragement of other players on the field.
24 In cross-examination he remembered her coming on the field in the second quarter. He did not remember her actually touching the football. She did not run but maybe did a light jog. He did not think she actually kicked the ball. He would have played her later in the season in other games if she had been available to play.
25 Those acting for Ms Wilde obtained a limited number of medical reports from treating doctors and physiotherapists, being almost exclusively letters sent by the various practitioners to other practitioners or to the authorised agent QBE or the ACCS.
26 Four short reports from Dr Yu to QBE and other practitioners dated between 12 June and 27 July 2015 were tendered.
27 Dr Yu diagnosed a fat pad impingement on the MRI and her clinical findings. She gave her a cortisone injection in June 2015. Six weeks later she re-assessed her on 23 July 2015. Ms Wilde complained of "exacerbation last week/perhaps after Pilates?" There is no mention of any football game.
28 She then examined Ms Wilde and found mildly swollen fat pad with reluctance to extend greater than plus 10 degrees. She advised oral cortisone and ordered a locking hinged knee brace. On 27 July 2015 she sent a referral letter to Mr Vo seeking an opinion on management. She noted continuing pain, swelling and inability to extend the knee without pain and did not mention any restrictive flexion.
29
The clinical notes of Mr Colliver, a physiotherapist, were tendered. He treated her from about 16 March 2015 to 24 November 2015. He issued medical certificates from 8 April 2015 to 19 November 2015. They certified her as being fit for modified duties as for suitable employment from 31 March to
23 July 2015. He then certified her as having no capacity for employment from 14 July 2015 to 1 October 2015 and from 15 November 2015 to
29 November 2015. I note that he had removed the "no running" restriction from his medical certificate dated 25 June 2015 and covering the period up to 23 July 2015, which included the date she played the ten minutes of football.
30 As Mr Colliver has no medical qualifications I am reluctant to go into issues such as injury, causation and incapacity referred to in his notes. In any event, no formal report from him was tendered and it was difficult to fully understand his notes as shorthand expressions and abbreviations are used throughout. However, his notes at about the date of the football game are obviously important. On 25 June 2015 she told him work was going well three days per week. On 14 July 2015 there was no mention of football but she said she was not happy to increase her hours at work from 18 to 24 hours per week as she needed one day's recovery for her next day's work.
31 She was given a series of exercises that day and for later. There is a note that later that same day "spoke to patient on phone later - noticed increased swelling and pain - recommend put to ice and rest, reduce pilates load." This is consistent with Ms Wilde stating that her knee flared up soon after the physiotherapy session that day.
32
On 20 July 2015 the knee was "not much better since last week." Exercises were reduced. On 23 July 2015, right knee pain was still present but felt slightly better with walking. It seems extension was minus 5 degrees. On
30 July 2015 she had a hinged knee brace with full flexion and minus 15 extension.
33 She saw Dr Yu on 23 July 2015 as well and gave a similar history of increased pain and swelling after doing some exercises at the physiotherapists. She had apparent variations in flexion and extension over the period until Mr Colliver last treated her on 24 November 2015.
34 Two further reports from her later physiotherapist, Mr Sam Leslie, were tendered. There was a referral letter to Mr Vo of 3 January 2016 stating she "has been progressing and making mild improvement in function but she is repeatedly stopped with any knee flexion activities with a painful catch at about 30 degrees flexion." There is a later report to the ACCS dated 19 March 2016 detailing her treatment from 30 November 2015.
35 I have the same reservations in considering his notes and reports as I did with Mr Colliver. Mr Leslie certified her unfit for employment from 31 December 2015 to 25 June 2016.
36 However he did see her before and after the cat incident on 13 January 2016. In his report he states:-
"However, on 13 January 2016 Shannon described an incident where her cat ran in front of her and she stopped quickly and hyper-extended her knee, feeling immediate increase in her pain. The next day she attended the physiotherapy with my colleague Matt Lee but I was also called in to give my opinion on the diagnosis. I felt there was no increase in soft tissue damage to the knee besides swelling and reported it as such.
Due to the hyperextension injury of the injury and the poor proprioceptive and functional level Shannon was in at the time of injury it was deemed prudent to ask her GP to arrange an MRI (apparently on 18 January 2016) to clear any potential damage. The MRI demonstrated no ligamentous injury but the precedence of synovial thickening of the Hoffa's fat pad and associated synovitis. Shannon returned with me for physio on 23 January and I did not detect any change in her inability to squat past 30 degrees (emphasis added) which led me to report this finding for further intervention to her surgery on 30 January.
Diagnosis. Currently Shannon presents with right knee fat pad impingement and scar tissue and right synovitis. This is related to her original workplace injury and the incident of 13 January 2016 did not affect the natural sequelae of rehabilitation in the medium to long term. I find it disturbing that Dr Solomon can suggest otherwise based on such little compelling evidence. It appears to me he is basing his opinion that Shannon should have recovered purely on timelines that she was injured in February 2015. But when considered that surgery did not occur for six months and the physiotherapy did not commence until the end of November, Shannon's rehabilitation time has been quite minimal."
37 Thus, he states there was no increase in soft tissue damage besides swelling. On 23 January 2016 he could not see any change in her restricted range of movement of flexion to that seen on 3 January 2016.
38 The only other medical certificate is from another physiotherapist, Mr Melotti, who certified her as fit for suitable employment from 26 June 2016 to 26 July 2016.
39 There are four short reports from Mr Vo, three of which are to Dr Yu and a longer report to QBE dated 30 March 2016. Unfortunately, I have no material from Mr Vo after that date and obviously none relating to the surgery on 28 July 2016.
40 He first saw her in August 2015 when she complained of persistent anterolateral knee pain with difficulty extending it. Range of movement was from 10 degrees to 140 degrees. He thought she had some post-fall fat pad synovitis impingement and suggested arthroscopy debridement which took place on 1 October 2015. Two weeks later she had a better range of movement to 125 degrees.
41 He reviewed her again on 21 January 2016 and she told him that she had earlier benefited from the surgery but her symptoms had not completely resolved and she still had persistent pain. Her range of movement was 10 degrees to 145 degrees. A repeat MRI on 18 January 2016 showed further evidence of fat pad synovitis as well as some increasing signal on the deeper fibres of the patella tendon. There was no other intra articular pathology and in particular no noticeable tear. He thought it reasonable to consider repeat surgical arthroscopy, plus or minus an arthrotomy, and further debridement.
42 His report to QBE two months later merely expands slightly on the earlier reports and does not refer to any later consultation with her. Interestingly, he comments that in his first consultation with her on 10 August 2015 he recommended the first arthroscopy debridement. He then went on to state "Ms Wilde and I discussed the possibility that if we are unable to de-bulk the entire fat pad there is always the small chance of recurrence."
43 Finally, there is a discharge summary from Monash Health Hospital on 28 July 2016 noting the procedure undertaken of right knee arthroscopy and arthrotomy and debridement of the fat pad on that day.
44 That completes the material from the treating medical and physiotherapy practitioners.
45 She has been examined by one independent medical examiner on behalf of her solicitors and no less than four separate independent medical examiners on behalf of the VWA between 23 April 2015 and 27 July 2016, that is four separate examinations in nine months, but not after that date.
46 All independent medical examiners in this case have only examined her once only so it is difficult to judge any variation in her condition over that period from their reports. I will discuss their reports in chronological order of date of examination.
47 Clive Jones, orthopaedic surgeon, saw her for the VWA on 23 April 2015 and took a history of her fall on 16 February 2015 after losing balance on a stepladder. He noted her regular sport was netball, i.e. not football. On examination, he found she could flex and extend the knee joint fully. He did not have any radiology or other background medial material then. He thought the most likely diagnosis was a resulting soft tissue injury to the knee joint and she had a light work capacity.
48 In November 2016 he was given the reports of Dr Yu and Mr Vo to QBE and three MRI reports. He was also given the VWFL player profile which was presumably the summary of “playing” four games of football in mid-2015 that was tendered to me. He noted her declining knee function after being seen by Mr Vo and made the obvious comment that he could not comment on her knee function as he had not seen her since. Not surprisingly, on being told that she had participated in football games between 14 June and 12 July 2015 he thought that she could return to pre-injury duties or some employment activity. He did not alter his earlier opinion but thought a more up to date assessment would be appropriate.
49 Unfortunately, that suggestion was not taken up with him and he was later sent a further MRI report of 18 January 2016 and Dr Soliman’s report. He again observed in his third report of 8 December 2016 her "return to sporting activities such as participation in games of football." He did not see the January 2016 MRI showing oedema of the fat pad as being significant so soon after her first arthroscopy. He agreed with Dr Soliman that employment was no longer a significant contributing factor. However, he was not told of her later arthroscopy/arthrotomy of 28 July 2016. He was not informed of the cat incident either.
50 She was examined by Dr Graeme Doig, orthopaedic surgeon, on 31 August 2015 for the VWA. He had the referral to Dr Yu, the third MRI report and some other material from Dr Yu and Mr Vo amongst other documents. He noted she was a keen footballer but "obviously hasn't been able to do so since she injured her knee." Range of movement was 10 degrees of extension, lag to 120 degrees flexion. He noted a brace locked in slight flexion to prevent full extension which was more painful. He diagnosed a soft tissue injury to her right knee with inflammation of the fat pad. She probably had sustained some chondral damage to the patellofemoral articulation. She may have also had a lateral meniscus tear, according to him.
51 He noted she had returned to work on restricted duties but when she increased her hours the knee flared up. He supported the request for the initial surgery and said that she had “no current work capacity” at that stage.
52 She was then examined by Dr Gale Curtis, another orthopaedic surgeon, for the VWA on 8 December 2015. I note he was given no medical reports or other material for that examination. He took a brief but appropriate history of the fall and the treatment to then. There is no mention of football but no apparent question as to her activities either. On examination she had a mild extension lag with the central tracking patella and a positive patellofemoral grind test. Flexion was uncomfortable up to 90 degrees. He diagnosed a traumatic patellofemoral chondropathy of the right knee and said she had “no current work capacity” at that stage but would remain off work for six to eight weeks before returning to administration work.
53
On 31 October 2016 he was finally sent some background material including the VWFL player profile, three MRI reports, some IPAR material and
Dr Curtis' report and the more detailed reports from Dr Yu that Mr Vo sent to QBE. He was told that she had played four games of football between
14 June 2015 and 12 July 2015 and not surprisingly thought as a result "she must have progressed significantly", though football was not mentioned in his earlier consultation. He thought that the findings on the October 2015 arthroscopy report were mild. He "suspected" a person playing football would require, "a complete range of movement of the knee joint including full weight bearing" and thus she should be able to return to work on some duties as an apprentice carpenter. The information completely altered his earlier opinion and he said "it is always of some major concern when there are discrepancies such as these and inconsistencies."
54 However, he had not viewed her current status for some time and noted that she was being followed up by her treating surgeon. He was not told about the cat incident.
55 She was examined by Dr Sam Soliman, who calls himself an “occupational medicine consultant”, on 27 January 2016. For whatever reason there were more differences in his history compared to the history noted by the other independent medical examiners. He recorded she was injured when a piece of timber fell on her and she fell and twisted her right knee. He recorded "no improvement" over the last 12 months. He recorded nothing had helped apart from physiotherapy and the cortisone injection did not help which was contrary to her evidence to me and that given to Dr Doig at least.
56 He noted she had not returned to work since which is contrary to her evidence before me and to the history of return to work in Dr Curtis' report as well. There is a reported history of hobbies being "AFL football, but the last time she played was in 2014." Ms Wilde said she told him she last played a full game in 2014.
57 I was not given a copy of the referral letter or schedule of documents given to him for the examination, though he does refer to the MRI reports of 5 March 2015 and 18 January 2016. He noted that "according to the provided information, Ms Wilde has been involved in fun runs, theme park activities and playing football at AFL level, which contradicts her statement."
58 There is no evidence that she did anything more than walk one fun run and went on one slide and sat in a pool at a theme park. There was obviously no such thing as football at the AFL level in 2016 as the AFL Women's League had not commenced at that time.
59 He noted her "condition recently flared up at home after another fall on 16/17 January 2016." Presumably, this was the cat incident on about 13 January 2016. There is no reported history from Ms Wilde in his report in that regard and presumably relates to information that he was given otherwise.
60 As I do not know what he was told about the fall, it is difficult to comment on his assessment that "the recent fall is not the result of her compensable injury or directly related to it." Ms Wilde does not allege such but states her work related knee condition flared up briefly after the cat incident.
61 On examination he found no flexion deformity and a full range of movement with some discomfort on full extension of the knee. However, Ms Wilde said he examined the knee and pushed it into flexion when she was laying on her back on the examination couch. He thought that she was fit to run and play AFL football. She was fit to return to her normal hours and duties. Despite all this he said that she should avoid repetitive kneeling and squatting. He even thought that she may need repeat arthroscopy.
62 Mr Kenneth Brearley, general surgeon, saw her for her own solicitors on 6 July 2016. He was given extensive material including medical material from virtually all of the treaters and the VWA independent medical examining doctors. He did take a lengthy and detailed history very similar to that given to me by her. However, there is no history of the one game of football, the cat incident or the flare up as the result of the physiotherapy consultation in July 2015 referred to in his report.
63 On examination he noted full extension and flexion to 140 degrees. He believed that she was not fit for pre-injury duties. After further arthrotomy and possible arthroscopy there should be improvement to return to work and he supported Mr Vo's recommendation for surgery. He believed her current condition was entirely due to the fall at work on 16 February 2015.
64 Finally, the defendant tendered two reports from IPAR, occupational rehabilitation return-to-work service, dated 24 August 2015 and 4 January 2016, presumably relating to her history. I note on 15 July 2015 she reported swelling and increased pain after progressing her supervised exercise program with Mr Colliver on the day before. In the second report dated 4 January 2016, there is a history "she sustained an aggravation of her right knee symptoms on 13 January 2016 at home when she tripped and fell." There was no mention of football in either report.
65 In his submissions, Counsel for Elder said he assumed the evidentiary onus of proof only. He submitted the admitted injury was very minor and there was a distinct lack of evidence as to any work related incapacity after March 2016 on the evidence before this court. There was no evidence of Mr Vo's interpretation of the MRI as it related to the fall at work, nor was there any evidence of his findings at the arthrotomy and referring to the fall at work either.
66 He submitted Ms Wilde had "underplayed the issues" which did not help, such as the football activity and the cat incident. The course of her claim had changed markedly after those two incidents. He said Mr Brearley did not refer to either in his medical report. He submitted I should accept the evidence of the four independent medical examining doctors who examined her on behalf of his client.
67 Counsel for Ms Wilde submitted that I should find her client was an honest person who had given evidence which detracted from her claim, such as improved symptoms over time. She had obtained full time employment in an alternative capacity some months ago. She noted Mr Colliver had initially noted in his first attendance in early 2015 that she was a footballer. I should also note that her one attempt at playing football was a few weeks after her cortisone injection which she said gave her almost total relief, but for a limited time. In fact, she had returned to work on light duties at that time.
68 In this case I find that the defendant bears the onus of proof in this claim as it seeks to terminate the payments of compensation on the basis there has been a change in the medical condition of the worker which justifies termination (see such decisions as Jackson v City of Caulfield [2009] VCC 557 per Judge Higgins at p.8). This is also supported in part by the Victorian Supreme Court of Appeal in Green v VWA [1997] 1 VR 364 at pp.372 and 381-382.
69 However, in the long run I do not think that the burden of proof issue is determinative of the case on the material before me and it is not necessary for me to formally consider the case on that basis.
70 Primarily the defendant states that any incapacity is no longer due to the work related injury and says that the football activity on at least 12 July 2015 and the cat incident were separate “novus actus interveniens” injuries.
71 The notion of novus actus interveniens is often alleged in workers compensation cases. However, the cases show that it is difficult to prove where the same part of the body and diagnosis is involved. The crucial issue is whether the injury caused incapacity survive (see Hogan v Bentinck West Hartley Collieries [1949] 1 All ER 588.
72 To terminate compensation it is essential to prove that if there had been no novus actus, the incapacity resulting from the original injury would have ceased (see, Hogan at p.608).
73 I accept that Ms Wilde was an honest and measured witness who gave frank evidence about her improvement over various stages before me and in the histories to the doctors. Only Dr Soliman alleged a stated history of no improvement since the work incident. In any event she underwent an arthrotomy on 28 July 2016 and then resumed full time employment with another employer within two weeks of that surgery. She worked light duties until the knee flared up as a result of the physiotherapy session as noted by Mr Colliver on Tuesday, 14 July 2015. Although she played football for a limited time on Sunday,12 July 2015, she worked on 13 July 2015 and had an apparent heavier physiotherapy exercise session on 14 July 2015.
74 In those circumstances, it is hard to link the deterioration in her condition then to any sporting activity on 12 July 2015. In any event I accept her evidence and that of her former coach that she did not play in rounds 7, 8 and 9, and only went on the field for ten minutes in round 11, but had very limited physical activity.
75 No evidence was put to her that she actually played in any of those three earlier rounds. The only game statistics sheet put to her or tendered in evidence to me was for round 11. I can well understand why she may not have told the doctors about that ten minute activity in the game having regard to the very limited purview.
76 There is no basis for saying that activity was a new “injury” in the lay sense of the word and/or a novus actus interveniens. I find that any flare up in symptoms leading to a deterioration in capacity for work then was due to the physiotherapy session for her work related injury. It was not a separate injury anyway.
77 Even if it was a separate injury it would be deemed to be a work related injury having occurred at the physiotherapist's place in accordance with s.46(1)(d) of the Act. Even prior to that equivalent provision being included in the Accident Compensation Act 1985, that was the situation anyway on normal principles as decided in such cases as Archibald Russell v Corser [1921] 1 AC 351.
78 Doctors Jones, Curtis and probably Soliman were told that she had "played" four games of football between 14 June and 12 July 2015. No such evidence apart from the single Round 11 game was produced before me.
79 I can well understand why they would have changed their opinion as to work relationship and to continuing incapacity on that erroneous and misleading information. Their opinions must be considerably downgraded because of that significant issue. Doctors Jones, Doig and Curtis examined Ms Wilde prior to the cat incident and curiously were not given later material relating to that incident. By the same token there is no mention of it either in Mr Vo's or Mr Brearley's material though Ms Wilde said that she told them of it.
80 I am really unable to say one way or another whether she did so in fact relate that cat incident to them. In any event I accept it was a very minor incident which on the evidence before me had no major or continuing role in her injury, symptomatology or incapacity. Also, I cannot see that it would be a strict “novus actus interveniens” anyway.
81
The only independent medal examiner who possibly considers it to be so is
Dr Soliman who apparently was given some information that she fell at home on 16 or 17 January and had a "flare up." He only states that the fall was not the result of her compensable injury or directly related to it.
82 He does not comment whether there was any new injury or whether there was a novus actus interveniens as a result of the "fall." Mr Leslie, her physiotherapist, referred her back to Mr Vo on 3 January 2016 with "stopped improvement including a painful catch at about 30 degrees." He did have a specific history of the cat incident. I have already referred to that aspect in his report.
83 In any event, there is a difference between a new injury occurring and symptoms arising from a previous accepted injury. For example, it is not unusual for an accepted back injury to cause symptoms at home, such as after bending over to pick something up from the floor. Although a back spasm resulting from such activity may be seen as a new injury, it may also be related to the original injury and be symptomatic from the original injury itself.
84 I believe I can take into account Mr Leslie's observations and examination details before and after the cat incident. I accept that symptomatically at least there was no lasting flare up of symptoms after that incident let alone a “novus actus interveniens”.
85 Mr Vo in his 10 August 2015 report noted that "Shannon was fully aware that if we are unable to de-bulk the entire fat pad there is always the small chance of recurrence." I find that is what occurred in this case and there was no new or lasting injury in the cat incident.
86 In his report of 30 March 2016 Mr Vo notes the lack of improvement on 20 January 2016 which Mr Leslie had noted on 3 January 2016. He advised further arthrotomy and arthroscopy debridement of the fat pad. The Monash Health note indicates that was the procedure undertaken and there was no new or other procedure being undertaken. There is no suggestion that there was anything more heinous, or separately related to the cat incident, referred to in the Monash Hospital note.
87 The surgery on both occasions was to the fat pad which was injured in the work related fall.
88 I find that the original injury continued, though it had settled down somewhat ,but was still subject to flare up on activity which in fact occurred in the cat incident. Even if the fat pad was further injured in the cat incident it was not a novus actus interveniens having regard to Mr Vo's earlier opinion and Mr Leslie's observations on examination.
89 In any event I accept Ms Wilde's evidence that she stopped suddenly in the cat incident and sat backwards onto her buttocks. On all the evidence I accept that her work related injury and resultant incapacity for work and need for reasonable and like expenses continued and continues despite the limited activity in the football game and the cat incident.
90 She is therefore entitled to reasonable medical and like expenses, amount reserved, as well as weekly payments from 16 February 2016 to 8 August 2016 as claimed in this case.
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