Robinson v Tempo Services Pty Limited [2001] NSWCC 40

Compensation Court of New South Wales

CITATION : Robinson v Tempo Services Pty Limited [2001] NSWCC 40 PARTIES : Helen M Robinson v Tempo Services Pty Limited MATTER NUMBER(S) : 53127 of 1999 JUDGMENT OF: Ashford J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 23/01/01 EX TEMPORE JUDGMENT DATE : 01/23/2001

FOR APPLICANT: Mr B A Guest instructed by Cawoods Solicitors. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M Newton instructed by P W Turk and Associates.

JUDGMENT: 1. In these proceedings the applicant seeks payment of compensation pursuant to the provisions of s 66 and s 67 in respect of an alleged injury to her left leg in the employ of the respondent, the date of injury claimed being that of 10 July 1997. By way of caution the application has been amended to also include incidents occurring in the course of employment on 20 March 1996 and on 25 February 1997. Those incidents do not give rise to any further claim in relation to the present matter. A subsequential claim is made pursuant to the provisions of s 67. 2. The respondent raises in issue the question of injury, the provisions of s 9A, quantum of any s 66 and s 67 claim and the provisions of s 68A. 3. The applicant was born on 27 December 1946. She commenced employment with the respondent in 1994 as a cleaner in schools. She gave evidence that she sustained injury on 20 March 1996 when she fell on steps, striking her left hip. She was apparently not off work after that incident nor did she seek medical attention. She recovered from that event. She gave evidence that on 25 February 1997 she again slipped at work. She sustained injury to her lower back at that stage, but did not require medical treatment and was not off work. 4. She said that on 10 July 1997 whilst in the course of her employment and using a polishing machine, this machine hit an object and then jerked away from her, causing her to twist her body, her back and legs, particularly to the left side. She said after that event her left knee became very sore. She reported to her supervisor. She was provided with pain medication and ice. She attended her general practitioner some two days later, seeing Dr Malouf. 5. It was her evidence she had suffered prior left knee problems and on occasion had sought medical attention. It was also her evidence that she experienced some giving way of her left knee at times prior to that incident in July 1997 and experienced pain in her left knee, although her evidence was that she did not find this pain to be as severe as after the incident of July 1997. She described her prior condition as being an arthritic type of pain. 6. Following July 1997 she was referred by Dr Malouf to see a number of specialist practitioners, and ultrasounds x-rays and the like were undertaken. She was referred to Dr Walker and also to Dr Michael Johnson for treatment. An arthroscopy was performed by Dr Johnson and thereafter she was off work for two months, resuming on lighter duties for a period and then again to her normal duties. 7. On 17 August 1998 whilst at work she experienced some giving way of her left knee whilst going down stairs, and experienced severe pain and locking of her knee at that stage. She again saw Dr Johnson. A further arthroscopy was performed in September 1998. Following that procedure she was off work for about three months and was afforded physiotherapy. A bone scan and an EMG were undertaken. She resumed light employment on 21 January 1999 for a period of time and then performed full duties. She was afforded an MRI examination in the year 2000 because of continuing symptoms. 8. It was her evidence that since the 4 July 1997 incident she has experienced more severe pain. She is unable to undertake activities such as gardening or mowing lawns, nor is she able to dance as before. It was her evidence she is unable to walk for long distances because of swelling and pain in her knee and she continues to experience those symptoms to the present time. 9. In cross-examination the applicant admitted she had not provided a history of her prior knee problems to doctors who had examined her in relation to this injury. A claim form was tendered on which the applicant notes that prior to the incident in July 1997 she had a normal left knee and had not suffered any problems. 10. A multitude of medical reporting has been tendered. It would appear from the series of x-rays and examinations of a diagnostic kind there is evidence of a pre-existing abnormality of the left knee of a degenerative kind. 11. It appears no other condition was found at operation by way of a meniscal tear or the like, and it is noted in the reporting of Dr Johnson that damage to the chondral area of the knee was found at arthroscopy. There was also a synovitis following an incident in 1998. An haemarthroses was drained in hospital by Dr Johnson. He requested EMG testing because of a complaint of pins and needles and numbness of the soles of the feet. This apparently did not show any damage other than a suggestion of a mild peripheral neuritis. Dr Johnson was prepared to assess a disability at the time of last examination to be 23 per cent loss of function of the left lower limb at or above the knee due to the effect of her injuries. His reporting indicates that he was not aware of the prior symptoms of which the applicant gave evidence today. 12. Dr Spencer provided medical reporting relating to his examination. It was his view the applicant has tendonitis of the left knee. He did not make any assessment of loss. 13. Dr Stuckey has performed medico-legal examination and has provided reports in relation to his examination. He did not obtain any history of prior problems of the left knee. He thought on initial reporting there were degenerative changes evident in the left knee. Whilst he thought there had been initially a tear of the lateral meniscus, after provision of further information his opinion was that there was a degenerative condition present in the left knee. He initially assessed there to be a 10 per cent loss in the left leg at or above the knee. By later reporting and following provision of further material he was prepared to assess there to have been injury to the cartilage and degenerative conditions, and then assessed15 percent loss of the left leg at or above the knee. 14. The respondent has tendered medico-legal reporting and the clinical notes of Drs Spencer and Malouf. No reporting of Dr Malouf is in evidence. However, that does not seem to me to be particularly significant, noting the provision of the reports of treating orthopaedic doctors. 15. Dr Mastroianni did not obtain a history of prior difficulties of the left knee nor of any previous injury. He thought there to be a degenerative condition of the left knee and assessed there to be a 10 per cent loss of the left leg at or above the knee, postulating this to be as a result of injury in 1997. Again, however, I must reiterate that he obtained no history of her prior difficulties. 16. Dr Casey did not obtain any history of prior injury either. He thought there was a patello femoral chondromalacia or degenerative osteoarthritis. He did not believe it possible to assess a permanent impairment evaluation as at the time of his examination he thought further investigation should be undertaken prior to making such assessment. 17. The reporting of Dr Sherry was also tendered. His reporting is of little assistance, being in 1998, and noting that at that stage he was of the view there had been a meniscal injury. 18. The applicant, in my view, should be accepted in relation to her evidence of injury to her left knee on 10 July 1997. I am satisfied however that she did have pre-existing problems of her left knee. From the medical reporting to which I have referred, it appears the condition of her left knee is of a degenerative kind, either chondromalacia or an osteoarthritic degeneration. From the evidence of the applicant that she had prior problems with her left knee in relation to pain and swelling, albeit not of such a severe kind as present since July 1997, it seems to me more probably than not there has been aggravation of those pre-existing changes on 10 July 1997 in the course of her employment. 19. Whilst I am satisfied she did sustain injury to her left knee in the manner described by her in the course of her duties on 10 July 1997, it seems to me I should make a deduction pursuant to the provisions of s 68A in respect of those pre-existing degenerative conditions. 20. I accept her to have 15 per cent loss of the left leg at or above the knee,with a 20 per cent deduction pursuant to the provisions of s 68A in respect of those pre-existing conditions. 21. There will be an award for the applicant in the sum of: $9,000 in respect of 12 per cent permanent impairment of the left leg at or above the knee, (subject to a 20 per cent deduction pursuant to the provisions of s 68A.) That amount does not cross the threshold pursuant to the provisions of s 67. 22. Costs Pt 29. Mr BA Guest instructed by Cawoods Solicitors appeared for the applicant Mr M Newton instructed by PW Turk and Associates appeared for the respondent