Compensation Court of New South Wales CITATION : Carstens v Holiloy Pty Ltd [2001] NSWCC 87 PARTIES : Jeanette E Carstens Holiloy Pty Ltd trading as Katies Haven Coffee Shop MATTER NUMBER(S) : 1879 of 2000 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 11/5/01 EX TEMPORE JUDGMENT DATE : 05/11/2001 FOR APPLICANT: Mr A T Brown instructed by Thomas Lycock Solicitors LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M C Newton instructed by Leigh Virtue and Associates JUDGMENT: 1. This is an application by Jeanette Elizabeth Carstens in which she claims to have suffered injury in the employ of the respondent, Holiloy Pty Ltd, trading as Katies Haven Coffee Shop, on 1 May 1998 when she was stepping out of a cool room onto the kitchen floor and suffered injury to her right knee. As a result she claims 30 per cent permanent impairment, as it is put in the Application for Determination, meaning presumably thereby loss of use of the right leg at or above the knee, together with a s 67 lump sum, reflecting 40 per cent in proportion to a most extreme case (i.e. $20,000) for pain and suffering. The issues were conveniently defined by Mr Newton of counsel at the commencement of proceedings in a manner for which I am grateful as being firstly impairment or loss, secondly nexus between injury and impairment or loss, and thirdly the application of s 68A of the Act. 2. The applicant gave evidence and I have no hesitation in saying that she impressed as a witness of truth and indeed was anxious to make clear the mechanics of her injury so far as she could in a way that she must have known was not advantageous to her case. I accept her evidence in all respects. Indeed, the contrary was not suggested by Mr Newton in addresses, who rather adopted the applicant's evidence to suggest that s 9A had some application. I should mention in passing that although s 9A of the Workers Compensation Act 1987 ("the Act") was not defined as in issue at the commencement of the proceedings by Mr Newton, it later was, and Mr Brown indicated (the section being pleaded in the Answer) that there were no additional questions of the applicant nor other steps in the litigation which he needed to take, so no prejudice would appear to result to the applicant as a result of the late raising of that issue. 3. The applicant was at the time of injury on 1 May 1998 working in a family business, in fact a coffee shop, which was run by the respondent company and had been conducted by herself and her family for some time. The work in that business seems to have involved the familiar activities of cooking and other kitchen activities, serving customers and generally being on her feet for most of the day. She seems to have done that more or less all day for seven days a week, as is often the case with people running small businesses. 4. Her evidence was, and I accept, that she did this work without problem until the subject incident on 1 May 1998. Several attempts were made by Mr Brown and later myself in questions of the applicant to ascertain exactly what happened in that incident. The applicant was unable to be precise as to what happened, except that (as reflected in the Application for Determination) it occurred while she was stepping down from a cool room to a kitchen floor. Mr Newton did not dispute that it was open to me to look at the histories in the various medical reports in order further to illuminate this issue. 5. I note that in his report of 16 March 1999 Dr Paul Mayers, the applicant's treating general practitioner, records that when he saw her on 18 May 1998, which of course is only some 18 days after the incident, he was told by her that while at work she had been walking out of a cool room and that as she stepped down from the cool room to the kitchen floor, she heard a 'snapping' sensation in her right calf and experienced pain in her right knee and right calf areas. The best the applicant was able to say in evidence, both in chief and in cross-examination, was that sometime between when she slid the door of the coolroom open and commenced to step down a stair dividing the cool room from the kitchen floor and reaching the kitchen floor, her right knee gave way. She was not therefore able to say upon which leg her weight was placed at the time the incident occurred. 6. Some further light, though not much, is cast on what occurred by Dr Mayer's report from which I have quoted. A similar history occurs in Exhibit D, which is Dr Berton's report of 22 March 1999, Dr Berton being the applicant's treating orthopaedic surgeon, in that he too received a history of stepping out of the cool room and developing acute pain to the right knee and calf. Associate Professor Gordon Kerridge, orthopaedic surgeon in a report of 29 April 1999, which is Exhibit C, received a history that the applicant was coming out of the cool room at her business, stepped down a step from the cool room and felt something snap in her right leg posteriorly. A similar history is contained in the report of Dr Ghabrial of 18 October 2000, which was Exhibit D, and in varying ways a similar history is also given to Dr Kim Edwards, whose report of 26 October 2000 is Exhibit 1, Dr Allen Innes-Brown, whose reports of 31 October 2000 is Exhibit 2, and Dr J H Drew, whose reports of November 1999 are Exhibit 3. 7. Doing the best I can, I think what happened is that the applicant while weight-bearing in varying degrees on both her legs was stepping down a stair at work on the day in question in the course of her duties, and she experienced a 'snapping' sensation in her right calf consistent with the appearance on arthroscopy, as I shall relate shortly, of a meniscal tear. That took place, as I shall trace, in the presence of previously developing degenerative changes in the knee which give rise to the application of s 68A. The respondent pleads and relies on s 9A but none of its medical evidence, as I read it, suggests that the incident was trivial, or may have happened at home, or was entirely the result of the applicant's pre-existing state of health or the existence of any hereditary risks, or was contributed to by her lifestyle or activities outside the workplace, or raises any of the other matters mentioned in the sub-paragraphs of s 9A(2). 8. All of the doctors whose reports were tendered by the respondent, with the exception of Dr Innes-Brown, accord some role in the applicant's ongoing problems to the subject injury, attributing various permanent percentage losses in the right leg at or above the knee to the injury. Dr Innes-Brown is somewhat on his own in suggesting that the applicant's current symptoms are due to constitutionally based osteoarthritis, the effects of any aggravation of that in the subject incident having in his view ceased within a few weeks. It is evident from his analysis, however, that even Dr Innes-Brown does not consider that the subject incident had no role in producing the applicant's injuries and that they simply occurred spontaneously. 9. The only authority of which I am aware in the Court of Appeal, and the only one to which I was referred by counsel, albeit in passing, on the application of s 9A in circumstances such as this is Mercer v ANZ Banking Group Ltd (2000) 20 NSWCCR 70. It seems to me to be made clear in the course of the reasons of the President, Mr Justice Mason, that in a circumstance where the applicant executes a manoeuvre at work in the course of his or her duties which he or she was reasonably required or expected to do to execute those duties, and as a result of performing that manoeuvre suffers injury, then even if that manoeuvre is relatively trivial, and not such as would cause injury in a person not disposed to such by a pre-existing degenerative condition, s 9A may nevertheless be found to have no operation. That is to say the employment may still be found to be a substantial contributing factor to the injury. 10. This seems to be the case here in my opinion. All of the doctors whose evidence in report form was tendered, with the exception of Dr Innes-Brown, think that the applicant has an ongoing permanent loss of use of the right leg at or above the knee in various percentages as a result of the subject injury. Those opinions seem to me to involve implicit recognition that not only was the work the applicant was doing in descending a step from the cool room to the kitchen on the respondent's premises a substantial contributing factor to her injury, but that indeed it was the only one, apart from the pre-existing degenerative changes which also contribute to the applicant's loss in varying percentages, according to the opinions of the different doctors, with the exception of Dr Innes-Brown. In those circumstances it seems to me proper to find, and I do, that the applicant's employment was a substantial contributing factor to her injury and that s 9A therefore does not provide the respondent with a defence to the applicant's claim. 11. The applicant's history after the injury was typical of people in middle age after such injuries, in that she never returned satisfactorily to all of the work she was doing in the family business conducted by the respondent company, and after some 10 to 12 weeks off work she returned to what could be found for her by way of light duties in the business. Eventually the business was sold, and she and her family moved from the Newcastle area where the business was situated to Old Bar where they now run a mini-mart, which I gather is a species of corner store. The applicant works in that business, where her activities so far as she can manage are limited to such things as entering goods as they arrive in the computer records of the business, and selling from a counter where she is able to sit in a chair. She admitted to stacking shelves on occasions, but said that by and large she avoided it, as I understood her evidence. 12. She said she enjoyed dancing before the subject injury and is unable to do it, and is also unable to walk over broken ground such as one would find on the local beach at Old Bar. The impression I had from her evidence is that she tried walking on such ground and had difficulty in so doing. She was also limited in how far she could walk, and she was made very aware of her ongoing knee problems by pain, which occurs on such activities as getting out of a chair and climbing up or particularly down stairs, or descending hills. She said that when she went up and down stairs she always looked for something to hold on to, and I did not find this in any way surprising. 13. I have already covered part of Mr Newton's capable cross-examination on the subject of the occurrence of the subject injuries. In addition to what the applicant said to Mr Newton on that issue, she was also prepared to concede, relevantly, that she did not have pain at all times in her knee, but only from time to time, and she was well able to work in the family business at the present time, albeit with the limitations I have mentioned. Generally she seemed to me to be wholly prepared to concede in reply to Mr Newton's questions that she was not by any means severely disabled on an ongoing basis by her knee injuries, although she was always aware of them, and they created ongoing problems. She admitted to being a little better after arthroscopy at the hands of Dr Berton, which took place on 20 November 1998 during an overnight stay at Lake Macquarie Private Hospital, but she did not concede that she was very much better as a result of that procedure, despite suggestions to that effect in the report of Dr Berton of 26 November 1998, which was Exhibit 4 in the respondent's case. 14. That report, however, seems to me to reflect principally conclusions by Dr Berton on examination and from the applicant's history rather than history directly given by the applicant. Dr Berton remarked that when seen on the day of the report, 26 November 1998, the applicant was "going very well" for example, which sounds to me more like a conclusion formed by Dr Berton, understandably as the treating surgeon who had operated, that the applicant had done well from his surgery, rather than a direct reflection of exactly what the applicant told him at the time. I do not suggest that the applicant told him anything different, and no doubt she too was optimistic that she had done well as a result of the surgery when she saw Dr Berton, but I do not think it tells against the applicant's credit that a slightly more optimistic picture is presented in Dr Berton's report of her condition at the time he last saw her on 26 November 1998, as compared to her evidence. 15. Passing to the medical evidence, it is enough to say that all of the applicant's medical witnesses who gave evidence in report form agree that the applicant had a meniscal tear as a result of descending a stair on the day in question. Dr Paul Mayers in his report which is Exhibit A, which I have mentioned, simply relates his treatment of the applicant in a way that corroborates what the applicant said in her evidence and her referral to Dr Berton. He agrees that the applicant is likely to have residual symptoms which will impact upon her life, as indeed she complained in her evidence. Dr Berton in his report of 22 March 1999, which is Exhibit B, relates his arthroscopy as set out above when a complex tear of the lateral meniscus was found which was excised, and he says also that the medial compartment and patello-femoral compartment were intact, and that she had tightness of the lateral retinaculum and moderate degenerate change of the lateral tibial surface. Post-operatively he says she had initial treatment. His final diagnosis was threefold, firstly patella mal-tracking, secondly lateral meniscal tear, and thirdly bilateral tibial condyle degenerate change. He found 25 per cent permanent loss of the use of the right leg at or above the knee, of which 40 per cent was the result of her work injury (i.e. 10 per cent out of 25 per cent) with the remainder being constitutional. 16. Associate Professor Gordon Kerridge, orthopaedic surgeon in his report of 21 April 1999, which was Exhibit C, found a 15 per cent permanent impairment of the knee, of which 10 per cent was due to the injury to the lateral meniscus and 5 per cent constitutional. 17. Dr Ghabrial, orthopaedic surgeon in a report of 18 October 2000, which as I have said was Exhibit D, found a 30 per cent permanent loss of efficient use of the right leg at or above the knee including losses below the knee. Mr Newton criticised that report in that he said it did not reveal the precise pathology found on arthroscopy and gave no indication that Dr Ghabrial was ever aware of what it was. I prefer not to express any view as to that criticism, but I remark in passing that Dr Ghabrial's assessment is very much higher than everybody else's and somewhat out of proportion to the applicant's evidence, and does not consider in any way the application or otherwise of s 68A, and for those reasons I am not disposed to accept it. 18. Exhibit E is an x-ray report of Dr Hugh Scotton, dated 18 May 1998, and he concluded on plain x-ray of the right knee that there was a large joint effusion or haemarthrosis with no underlying bone or joint lesion detected. This appears to me to suggest fresh pathology as a result of the subject injury, as Mr Brown of counsel suggested in addresses, and appears to accord with Dr Burton's diagnosis that the applicant had a torn lateral meniscus, apparently as a result of the subject injury. 19. Dr Kim Edwards, surgeon, as I have said, wrote a report of 26 October 2000, which was Exhibit 1, and he thought that as a result of partial lateral meniscectomy the applicant, on application of the AMA Guide to the Evaluation of Permanent Impairment (4th edition), had a 2 per cent loss of use of the right leg. I have often remarked that the AMA guide is not necessarily a completely adequate expression of what I am required by the statute to look at which is the loss of use of a body part, in this case the right leg, at or above the knee. As Department of Public Works v Morrow (1986) 5 NSWLR 166 demonstrates, the day by day use of the affected part, as described in the lay evidence, must also be looked at as well as the performance of it on examination by various doctors before permanent loss can be ascertained, and I have of course undertaken that exercise in this case. Dr Edwards only thinks it is possible that the applicant had a meniscal tear at the time of the injury, but in accordance with the view of Associate Professor Kerridge, in particular, I think it is in fact probable that it occurred. 20. The opinion of Dr Allen Innes-Brown in his reports, one long and one short, of 31 October 2000, Exhibit 2, I have already discussed. I do not accept Dr Innes-Brown's view because I do not consider it consistent either with the vast majority of medical opinions otherwise available to me in this case, and because it is inconsistent with the applicant's complaints, to my mind truthfully made, of symptomatology more or less continuously from the date of injury until the present time. 21. Exhibit 3 was the reports, one long and one short, of Dr J H Drew, orthopaedic surgeon, dated 9 November 1999, and he thought that the applicant had an 8 per cent permanent loss of use of the right leg at or above the knee as a result of the subject injury and of pre-existing degenerative changes, of which half was due to the incident at work in 1998 and half due to the pre-existing changes. He also offered an assessment of permanent loss of use of the left leg, but that need not detain me as the applicant makes no claim to any such loss, Dr Drew in any event considering that any left leg loss was entirely due to pre-existing degenerative changes. 22. Doing the best I can, I find Dr Ghabrial's assessment somewhat above the mark, as I have said, and I consider the assessments of Dr Drew, Dr Edwards and to a lesser extent Associate Professor Kerridge somewhat conservative. Doing the best I can and implementing the applicant's own evidence which I accept as truthfully given, as I have said, I think that Dr Berton's assessment that the applicant has a total permanent loss of use of the right leg at or above the knee of 25 per cent should be accepted. He is the treating doctor who after all has seen the applicant on a large number of occasions in non medico-legal circumstances and has the advantage of the other doctors in that respect. 23. It might be thought, therefore, that this dictates that I should accept Dr Berton's assessment that 40 percent (i.e. 10 per cent out of 25 per cent) of the applicant's loss is the result of work injury, with the remainder being constitutional. The trouble I have with that view is that the applicant was, as Mr Brown points out in addresses, symptom free on her own evidence which, as I have said, I accept, until the subject injury occurred. There is no doubt that the applicant had, as Dr Berton thinks, pre-existing degenerative changes in both knees. There is no doubt that these contributed to injury by way of meniscal tear in a reasonably non-strenuous manoeuvre, descending a stair. Nevertheless, the fact that the applicant has had continuous knee problems ever since the subject injury and has fresh pathology as a result of it, namely a right meniscal tear, as distinct, for example, from a mere aggravation of pre-existing degenerative changes, means in my view that I should accord the subject injury more role in the applicant's ongoing permanent loss of use of the right leg at or above the knee than her pre-existent degenerative changes. 24. Doing the best I can, the proper result, reflecting as it does the considerable degree of such pre-existing degenerative changes, appears to me to be to reverse Dr Berton's percentages, so as to find that 40 per cent of the applicant's ongoing loss of 25 per cent is the result of pre-existing degenerative changes and 60 per cent is the result of the subject injury. The result is that the applicant is entitled to be compensated, after s 68A deduction of 10 per cent from Dr Berton's assessment of 25 per cent, in respect of 15 per cent permanent loss of use of the right leg at or above the knee. In making this assessment, I observe, as did the Court of Appeal in such cases as Manning Valley Senior Citizens Home Pty Ltd v Cleveland (unreported, Court of Appeal, 29/8/95) that I am not a "captive of the doctors" in relation to s 66 assessment and that as s 68A itself suggests, as do the authorities on it, particularly Government Cleaning Services v Ellul (1996) 13 NSWCCR 344, that I am not bound to accept such medical evidence as is before me as to the extent of an s 68A deduction. 25. The result is that the applicant passes the s 67 threshold. I have already related in my summary of the applicant's evidence the ways in which she is affected on a day by day basis by her right knee loss. I must be careful in assessing s 67 compensation to reflect the fact that 40 per cent of the applicant's ongoing right knee problems are the result of pre-existing degenerative change, so that the award under s 67, having regard to these matters and the applicant's age, must to my mind be relatively modest. The appropriate award appears to me to be on the basis of 10 per cent or 1:10 to a most extreme case under s 67. 26. I make the following findings: 1. Injury to applicant arising out of and in the course of employment of respondent on 1 May 1998. 2. Such employment was a substantial contributing factor to such injury. 3. Resulting from such injury applicant has permanent loss of use of right leg at or above knee of 25 per cent. 4. Deductable proportion of such loss for pre-existing degenerative changes to which such loss is also due is 40 per cent of above loss or 10 per cent. 5. Resulting from nett loss of 15 per cent found above to result from above injury applicant has experienced and does and will experience pain and suffering of a proportion of 10 per cent or 1:10 to a most extreme case. 27. I make the following award in the applicant's favour: 1. $11,250 for 15 per cent permanent loss of use of right leg at or above knee under s 66. 2. $5,000 under s 67 for pain and suffering. 3. Respondent to pay applicant's costs. Mr A T Brown instructed by Thomas Laycock Solicitors appeared for the applicant. Mr M C Newton instructed by Leigh Virtue and Associates appeared for the respondent DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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