!Undefined Bookmark, I IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE WORKCOVER DIVISION Case No. B10238315 FAYE MOUNSEY Plaintiff v SALTWAY INVESTMENTS PTY LTD Defendant --- MAGISTRATE: P. LAURITSEN WHERE HELD: MELBOURNE DATE OF HEARING: 27 28 SEPTEMBER 2011 DATE OF DECISION: 6 OCTOBER 2011 CASE MAY BE CITED AS: MOUNSEY v SALTWAY INVESTMENTS PTY LTD REASONS FOR DECISION --- Catchwords: Accident Compensation Act 1985, s 98C injury to right knee whether plaintiff sustained injury in compensable circumstances declaration of liability sought by the plaintiff extent of incapacity for work relevant periods of no current work capacity, and current work capacity weekly payments of compensation for specified periods. APPEARANCES: Counsel Solicitors --- For the Plaintiff For the Defendant Hounslow & Associates Thomsons Lawyers
HIS HONOUR: Introduction 1 Faye Mounsey seeks weekly payments of compensation and a declaration under s 98C of the Accident Compensation Act 1985 1. There are two main issues -- whether she sustained an injury in June 2010 in compensable circumstances; and, if so, the extent of her incapacity for work. Circumstances 2 Since September 2008, the defendant has employed Mounsey as a kitchen hand. On 11 November 2009, she crouched to pick up a frozen package from a shelf and injured her right knee. She ceased work. She attended her general practitioner. Although a CT scan revealed only joint effusion 2, on 10 February 2010, John Rehfisch performed a partial menisectomy to a torn medial meniscus. During the procedure, he noted a disrupted anterior cruciate ligament. He reviewed her on 24 March. There was swelling present. On 3 May, she returned to work on restricted duties. 3 Throughout her time with the defendant, Mounsey worked the same shift, starting at 3.00 pm and ending at 11.00 pm. This shift overlapped with an earlier shift, which finished at 4.00 pm. Mounsey worked in an area called the kitchen. It is about 30 metres long and 15 metres wide. Her job was to take food packages from shelves, put them into plastic tubs and stack the tubs. There was no sitting; she stood throughout. The employees wore gumboots and floor was painted with an anti-slip substance. 4 Following the arthroscopy, Mounsey underwent treatment with a physiotherapist, Rod Hidlebaugh. After four sessions, on 15 March, he noted progress with weak quadriceps but no longer using crutches. 1 The amended statement of claim speaks of s 98. Clearly, the plaintiff seeks a declaration of liability under s 98C. 2 Exhibit V. VMC 1 DECISION
5 On 21 May, Mounsey slipped at a Coles supermarket while wheeling a trolley. She was not injured. 6 On 15 June, Gerald Moran, an orthopaedic surgeon, examined Mounsey. He found wasting of the vastus medialis muscle in the right leg. There was no effusion of the right knee with a full range of movement without patello-femoral crepitus. Mounsey complained of tenderness over the medial and lateral joint lines. 7 On 23 June 2010, Mounsey went to obtain plastic tubs. She slipped. Her right leg splayed outwards. By placing her palms on the floor, she prevented a fall to the floor. The slip caused pain in her right knee. During the incident, she noted a CCTV camera almost directly overhead and believed that the incident was recorded. No one witnessed the accident even though there were about 15 women in the kitchen at the time. She did not report the incident to her supervisor, Dot Johnstone, because she believed Ms Johnstone was absent from work that day. In that she was mistaken. Records indicate that Ms Johnson was present, having been absent the previous two days through illhealth. However, Mounsey believed that she was absent. She did not report to another supervisor, Christine Saliba, because she did not relate well with that person. She did not complete an injury report that day even though its completion was a known expectation of the defendant. She continued working for the rest of her shift. She worked the next day but not Friday. Her normal week was Monday to Thursday. 8 On Friday, 25 June, she attended Hidlebaugh. This was a regular appointment. She had attended him since the arthroscopy in February. She complained to him of a fall at work this week. He noted a marked change in her condition 3 : On examination she had objective signs of significant edema, 3 Exhibit K. VMC 2 DECISION
hamstring spasm where she lacked the last 8 degrees (?) of extension. Ligament tests appeared normal but she was positive for lateral meniscal test, McMurray s with [was?] palpable and described by Faye as a click with associated pain. She has an obvious limp, and is unable to squat due to pain. She also has obvious lack of quads and no VMO contraction as she had in previous weeks. The knee has significantly deteriorated, and is now worse than she was initially when seen in February 2010. 9 Although Mounsey was due to start a functional restoration program that day, Hidlebaugh paused its commencement, arranged for more physiotherapy sessions and prepared a letter for her to take to her general practitioner, Kilner Brasier, whom she saw the next day. 10 On 26 June, Brasier examined her and noted 4 : Fall at work re-injury to the right knee unable to squat and clicking fell and re-injured knee again. R knee swelling noted traumatic effusion. Review cont[inue] with restrictions for another month review with Rehfisch. 11 To Brasier, she appeared more disabled than before. She needed a cane to walk and wore a knee brace. Her symptoms were consistent with those due to a fall. Notwithstanding the increased disability, he certified her fit for alternate until 24 July with the same restrictions as before 5. 12 On Monday, 28 June, Mounsey attended work and contacted Cheryl Jones 6. Jones is an administration manager in charge of payroll, WorkCover and OH&S. She told Jones of the fall. Jones gave her an injury report form to complete, which she did. In it, Mounsey described the incident: I slipped on the floor and fell as I was getting some white tubs were [where?] I pick the frozen dinners. I do not think that anyone saw what happen. It happen at about 4.15 to 4.30 pm on a Wednesday. 13 Jones read the incident form on the Tuesday morning. With another employee, she then viewed the CCTV footage for Wednesday, 23 June and did not see any fall. She queried Mounsey about this, who suggested checking footage of the previous day between the same times. Jones did this, 4 Exhibit M. 5 Exhibit B. 6 During the hearing, counsel for both parties agreed that a statement made by Jones on 29 September 2010 would be tendered. Unfortunately, they forgot to tender the document. At my request, the plaintiff s solicitors sent me a copy. It became an exhibit. VMC 3 DECISION
again without seeing a fall. Finally, Mounsey nominated the Monday between 3.00 and 5.30 pm. The same process yielded the same result. When told of this, Mounsey insisted that she fell. Jones did not believe her. On 7 July, she wrote to the authorised agent and Brasier advising that the defendant did not believe that the accident occurred. 14 How much footage did Jones view for 23 June? This issue was canvassed at length in her cross-examination and re-examination. Jones answers were vague and contradictory. In cross-examination, she said she viewed footage from 4.15 pm until the employees went to a tea break at about 5.00 pm. In reexamination, she said she viewed nearly two hours of footage. 15 There was extensive cross-examination of Jones about the accuracy of dates recorded in her September statement to an investigator. It established that Jones was inaccurate about dates and demonstrated carelessness. It undermined my confidence in the accuracy of her evidence about viewing times even in its vague state. 16 I do not accept that Jones viewed footage before 4.00 pm on 23 June. I do not accept that she viewed footage of nearly two hours duration for that day. If anything, it is more likely that her evidence in cross-examination is correct that she viewed footage between 4.00 pm and about 5.00 pm. That finding is supported by the fact that only footage after 4.00 pm was saved. Although the decision to save was made by her fellow employee without consulting her, if nearly two hours was viewed then one would expect that period to be saved, not a lesser period. 17 On 7 July, Rehfisch re-examined Mounsey. He found effusion. She had a positive McMurray s test. She complained of pain and tenderness on the lateral joint line and lateral sided click. Plain x-rays proved normal. Her condition was different from that seen on 24 March. Rehfisch thought she had a torn lateral meniscus. On 15 July, MRI scans were undertaken but these VMC 4 DECISION
negated his tentative diagnosis. He sought permission from the authorise agent to undertake a diagnostic arthroscopy to see if there was some form of internal derangement due to the severity of her symptoms. Permission was not given. He referred her to the orthopaedic clinic at the Frankston Hospital to undergo the diagnostic procedure. 18 After 23 June, Mounsey continued working at the same job. 17 September was a Friday. On that day, she got out of bed and felt a click in her right knee accompanied by pain. There was considerable swelling. She did not return to work on Monday, 20 September or since. 19 On 8 December 2010, Brasier felt that Mounsey was fit for suitable duties with restrictions to her hours of work and duties 7. Previously, on 28 September, he had certified her unfit for any duties between that date and 26 October 8. On 26 October, he reverted to his earlier certifications of fitness for alternate duties. I might add that Brasier has extensive experience as an occupational physician. Interestingly, he considers that Mounsey suffers from a chronic pain syndrome. 20 Peter Kudelka is an orthopaedic surgeon. On 27 September 2010, he examined Mounsey at the request of the authorised agent. Accepting a history of hyper-abduction of both hips on 23 June, Kudelka thought Mounsey had significantly aggravated her existing degenerative changes of her knee. He supported Rehfisch s recommendation of a diagnostic arthroscopy. 21 Mounsey lodged a claim for compensation, which was rejected. During 2011, she lodged a claim for impairment benefits, also rejected. 22 On 29 July 2011, Andrew Weber, an orthopaedic surgeon, examined her at the Frankston Hospital. Weber was aware of the July 2010 MRI scans. He could not explain her level of pain from the MRI scans. Implicitly, he 7 Exhibit L. 8 Exhibit H. VMC 5 DECISION
considered she suffered from a chronic pain syndrome. He thought she should see a pain management specialist before further consideration of surgery. 23 Rodney Simm is an orthopaedic surgeon. On 1 August 2011, he examined Mounsey at the request of her solicitors. His examination revealed little objectively. There was no significant swelling of the knee, no fluid within the joint, no patellofemoral crepitation, reasonable flexion, mild anterior cruciate laxity and no wasting of the right quadriceps. She had marked right-sided antalgic gait. She was reactive to light palpation, particularly around the patella. Clinically, Simm could not explain Mounsey s complaint of severe posterolateral and anterior right knee pain. He commented 9 : It is quite possible she had increased levels of pain which have persisted as a result of that soft tissue injury on 22 nd or 23 rd June 2010 but this diagnosis does not explain the full clinical picture which has features of a chronic adverse pain syndrome 10. 24 He supported Rehfisch s recommendation that a diagnostic arthroscopy be undertaken. He felt she was incapacitated for her pre-injury employment. This involved standing all the time where Mounsey had difficulty in squatting, kneeling and doing sustained duties while on her feet. 25 On 1 September 2011, Moran re-examined Mounsey. His examination disclosed slight effusion, wasting of the vastus medialis muscle, some limitation of movement and signs of a tear of the anterior cruciate ligament. There was complaint of tenderness over the medial and lateral joint lines. He diagnosed a tear of the anterior cruciate ligament. She was unfit for her preinjury employment and fit only for sedentary employment. Discussion 26 As with these contested matters, there is merit on each side. Mounsey bears the burden of proving that she sustained an injury in compensable 9 Exhibit S at p. 5. 10 Brasier supports this diagnosis of chronic pain syndrome. VMC 6 DECISION
circumstances. In the context of the conduct of case, this means establishing a fall on or about 23 June. 27 In the face of vigorous cross-examination, Mounsey appeared as a credible witness. In her injury report form, she said the fall occurred between 4.15 pm to 4.30 pm. In evidence, she said it occurred between 3 pm and 4 pm. She said so by reference to the end of the other shift at 4 pm and the presence of those shift workers at the time of the accident. That is plausible. Why she nominated the later times in her injury report was not established. There was no suggestion that she did so by reference to a wristwatch or clock. 28 As said earlier, I do not accept that Jones viewed footage of 23 June before 4 pm. If I accept Mounsey s evidence of a fall between 3 pm and 4 pm then what Jones saw is largely immaterial. 29 Mounsey wore rubber boots. The floor is anti-slip. These facts make a slip, even on a wet surface, less likely. I saw a minute or so of footage at 4 pm on 23 June. It does not show Mounsey in any discomfort while moving about. 30 Eight days before 23 June, the condition of Mounsey s right knee was reasonable. There was no effusion. There was a full range of movement. There was no patello-femoral crepitus. There was wasting of the vastus medialis muscle and complaints of tenderness of the medial and lateral joint lines. Two days after 23 June, there was significant oedema, hamstring spasm and crepitus. She limped and could not squat. She was worse than when first seen by Hidlebaugh four months earlier. All the intervening improvement had disappeared. 31 On 28 June, Mounsey nominated the date of the fall and a short time span during which it occurred. She did so shortly after the event, in writing, when it should be fresh in her mind. The possibility of a mistake would be less than when giving evidence more than a year later. Placing the time of the fall between 3 pm and 4 pm is more soundly based because of the reference VMC 7 DECISION
point of the going of another shift. This is acceptable if one regards the earlier time span as carelessly given. That something happened on 23 June is supported by her presentation to Hidlebaugh and Brasier on 25 and 26 June respectively. There is no evidence, based on CCTV footage, to the contrary. Given the nature of her footwear and the anti-slip nature of the floor, the possibility of a slip and fall is reduced but no one suggested it would be eliminated. Overall, the evidence favours the finding that Mounsey slipped and fell at work on 23 June 2010 between 3 pm and 4 pm in the manner she described and causing pain in her right knee. 32 There have been suggestions as to the nature of the injury. Rehfisch still thinks that there has been a tear of the lateral meniscus despite the negative MRI findings. Unfortunately, scans can provide false negatives where, at least, the menisci are concerned. This case may be an example. The CT scan revealed only effusion while the arthroscopy revealed a torn meniscus. Kudelka is less precise, opting for an aggravation of the pre-existing degenerative changes. Simm remains puzzled by the symptoms and tentatively offered an aggravation of the earlier injury. Moran thought it was a tear of the anterior cruciate ligament. However, Moran was unaware of Rehfisch s operative finding of disruption of the anterior cruciate ligament, unrelated to the November 1999 incident. 33 On these opinions, it would be unwise to describe the condition with any particularity. An aggravation of the pre-existing injury is the safest in the circumstances. Accordingly, Mounsey sustained an injury, as that term is understood in this legislation. 34 No one seemed concerned that the event, which precipitated Mounsey s incapacity occurred at her home. Apparently, it was assumed that it was a manifestation of her injury suffered on 23 June, if I found that to be the case. Whether or not it was so assumed, I am satisfied that her incapacity from 20 September results from her injury sustained on 23 June. VMC 8 DECISION
Incapacity 35 Except for Brasier, none of the medical practitioners suggested that Mounsey has no current work capacity. Perhaps they did not turn their minds to it. However, they agree that she is unfit to perform her pre-injury employment. In the most recent certificate of Brasier, which I have seen, he certified her fit for alternate duties. He did so after she had ceased work on 20 September. The view of her general practitioner is strong evidence of capacity. 36 Mounsey is now 44. Her formal education is limited, having completed Year 9. Even completion of that level may be misleading because she had difficulties in spelling and writing. Since school, she has worked as a barmaid, in takeaway-food outlets, a process worker in various factories and a kitchen hand at a private hospital. These are unskilled occupations. They are not sedentary jobs for there would be frequent standing. Nevertheless, her disability would not preclude a range of unskilled jobs, which do not require standing most of the time. Since 26 October 2010, she has had a current work capacity. 37 The defendant s counsel queried the soundness of the practitioner s opinions in this regard because of the omissions in the histories given them. He relied upon Paric v John Holland (Constructions) Pty Ltd 11, which in turn drew upon the judgment of Samuels JA when the case was before the NSW Court of Appeal 12. In my opinion, the assumed facts are sufficiently like the true facts to provide a fair climate for the opinions. Conclusion 38 I am satisfied that on 23 June 2010 Mounsey sustained an injury to her right knee in compensable circumstances. From 20 September 2010 until 25 October 2010, she had no current work capacity. From 26 October to the present, she has had a current work capacity. She is entitled to weekly 11 (1985) 59 ALJR 844. 12 [1984] 2 NSWLR 505. VMC 9 DECISION
payments from 20 September to 25 October at the rate applicable to no current work capacity and from 26 October to the present at the rate appropriate for a current work capacity. She is also entitled to a declaration under s 98C that she suffered an injury to her right knee in compensable circumstances. 39 I will hear the parties on the form of orders and on the issues of interest and costs. VMC 10 DECISION