Monsma v Masonic Memorial Homes Inc and Elderly Citizens Homes of SA Inc [2003] SAWCT 107

2 The following facts are agreed or I find them to be established by the evidence:-

1 The applicant was born on 28 May 1944. She is now aged 59.

2 She is a graduate registered nurse having post-graduate qualifications including a Masters Degree in Health Services Management and Certificates in Gerontology. Her professional career for the last two decades has been spent in the field of aged care and with dementia patients.

3 She worked for MMH from 1988 to early April 1999.

1 That she slipped on some Mylanta on the floor on 21 January 1990. The report mentions an injury to the right wrist.

2 On 18 March 1990 she knocked her left knee on the side of a wooden door.

3 On 5 December 1992 she slipped or tripped going upstairs and fell heavily and struck her left knee.

The above claims resulted in claims for compensation which were accepted.

5 She left MMH for almost two years between the dates of 4.2 and 4.3 above to undertake psychiatric nurse training at Glenside.

6 On 2 September 1993 on referral from her GP she consulted Mr Anthony Menz, Orthopaedic Surgeon. Mr Menz performed a chrondoplasty on her left knee on 21 September 1993.

7 Mr Menz rearthroscoped the left knee on 22 February 1994.

8 A series of return to work plans controlled the ambit of her duties from December 1993 until the end of February 1995.

9 On 20 and 21 February 1995 Ms D Winter, an Occupational Health Physiotherapist, conducted a Functional Capacity Evaluation of the applicant's capacity for work. Ms Winter concluded that there were eleven areas of restriction on the applicant's physical capacity. One recommendation was that the applicant should not be required to climb stairs more than once or twice per shift.

11 On 3 April 1995 the applicant was offered and accepted a s 43 assessment of loss of efficient use of the left knee of eight per cent.

12 Thereafter the applicant was placed in the position of clinical nursing consultant in Murray ward which is the dementia wing of MMH.

13 In late 1998 she was transferred to Gambier and Barossa wards.

14 MMH embarked upon a rebuilding program early in 1999.

15 In March 1999 the applicant resigned her employment effective 2 April 1999.

16 Thereafter the applicant worked at Fullarton Private Hospital in psychiatric nursing until she went to ECH on 1 November 1999.

17 On 17 December 2000 the applicant whilst on leave from ECH bent down to remove a hose across the front steps of her home. Her left knee collapsed.

18 In January 2001 she was referred to Mr Michael Henningsen, Orthopaedic Surgeon. He has thereafter assumed control of the treatment for her left knee disability.

1 The applicant provided a comprehensive statement which served as her evidence in chief. She said that her left knee was first injured in January 1990 but her initial obvious injury was to her right wrist upon which she fell to break her fall, her knee within days became swollen and she treated it by bandaging.

2 Thereafter she continually suffered from a sore left knee. She said she consulted Ms Winter at the direction of MMH.

3 She often wore a bandage on her left knee. After 1995 she did not make any formal complaints because management knew of her problems.

4 The work in Barossa and Gambier wards in 1998/1999 required stair climbing. Although there was a lift, it was in constant use by other staff, kitchen staff, workmen and maintenance staff. To discharge her duties adequately and promptly she had no choice other than to use the stairs.

5 She had previously functioned adequately in Murray ward between 1995 and 1998. That ward was on one floor.

6 At the time she resigned she did not mention her difficulty in Barossa and Gambier wards. However she had in March 1999 sought reassurance from the Director of Nursing, Leonie Pratt, who was her supervisor, as to what role would be assigned to her after the rebuilding. It seemed that she would be assigned to duties heavier than those that she was undertaking in Barossa and Gambier wards. She decided to leave that employment. She said there was no deliberate plan by management to force her to leave, but the circumstances as they unfolded in March 1999 caused her to leave.

5 The thrust of her evidence was that following the three injuries there was continuous pain until she came to surgery with Mr Menz. Thereafter, before she resumed full time work she underwent the functional evaluation and thereafter worked within the parameters of that evaluation at least in Murray ward. In the period immediately preceding her resignation, the pain in her left knee worsened considerably.

6 The case against ECH was that immediately following her engagement in November 1999 she worked only a couple of shifts per week. The frequency of work increased. By June 2000 she was effectively working full time. There was a lot of walking on hard concrete floors. However the condition of her knee had improved to that which obtained when she left MMH, but in the latter part of 2000 it was deteriorating. In December she needed a holiday.

7 It was while she was on holiday that the incident with the hose occurred.

8 She claimed compensation against MMH on 30 January 2001. This was rejected by the determination of 2 April 2001. The substantial grounds were that she had sustained a secondary disability with ECH.

9 The applicant said she made the claim for compensation against ECH on the advice of the MMH administration. That claim was made on 28 May 2001. It being rejected by determination of 17 July 2001 relying on the opinion of Mr R J Bauze that the employment with ECH had not contributed to whatever disability she had in her left knee.

10 To complete the picture, on 5 November 2001 a further claim against MMH for disabilities in the right wrist, left wrist, right knee, mid and lower back was made. They were rejected by a determination of 18 December 2001.

11 By letters of 14 September 2001 and 17 October 2001 the applicant, through her solicitor, wrote to MMH asserting that she was ready, willing and able to continue employment with MMH within the parameters of her current medical certificate.

12 By letter of 19 November 2001 MMH advised that it was not able to provide any duties.

13 A statement from Ms L E Pratt (the applicant's supervisor) of MMH was tendered. She gave her version of the history of the applicant's employment with MMH. Ms Pratt denied that the applicant's duties in Barossa and Gambier wards required her to use the stairs. She said a lift was available. She could recall the applicant complaining about her left knee in 1999. It appeared swollen to Ms Pratt. The rebuilding program precluded her from relocating the applicant's duties. Ms Pratt said the applicant's work in Murray ward in 1995/1998 was all on one floor and that floor was a ground floor. Ms Pratt considered the work given to the applicant at all times was consistent with the recommendations of Ms Winter.

14 ECH tendered a number of statements from senior medical staff as to the conditions there.

15 As medical evidence:- There were prescribed medical certificates from Drs BD Cowling of 24 January 1990, Dr F Qureshi and Dr R Ravindran, Orthopaedic Surgeon of 7 December 1993. And Dr V Mayne of 12 August 1993 (General Practitioner) and a series of reports from Mr A Menz the first starting on 2 September 1993 detailing his treatment.

16 Historically Mr Menz had been the original treating Orthopaedic Surgeon and a copy of his correspondence with the General Practitioner between 2 September 1993 and 2 November 1994 was available.

17 Mr Menz also reported to WorkCover Corporation on 28 June 1994. Prophetically this report said:-

"It is possible she may suffer a recurrence of aggravation of the degeneration in the knee if she returns to normal work duties." (TB 84)

"the prognosis here is good although it must be a little guarded considering the degeneration within the knee joint. Overall her knee is not too bad and I believe that she should be able to return to her normal work duties if she is careful." (TB 85)

18 Dr Vanessa Mayne, the GP, reported to WorkCover on 15 March 1995.

19 On 22 February 2001 the applicant came under the care of Mr Michael Henningsen, Orthopaedic Surgeon.

20 After the incident of 20 December 2000 she returned to Mr Anthony Menz but he was about to go on holiday and wanted to operate immediately. The applicant was not prepared to submit to this so in consultation with her General Practitioner it was arranged that Mr Henningsen should take over her treatment.

21 Mr Henningsen's views are contained in his reports of 26 April 2001, 9 May 2001 and 21 August 2001. He gave evidence and was cross-examined. In summary his views are that in December 2000 the applicant sustained a torn meniscus against the background of a slowly progressive osteoarthritis. Her current condition is an exacerbation of a long standing history of degenerative disease following the original injury at work. Mr Henningsen did not accept that the incident of 17 December 2000 wholly accounts for the applicant's disability nor would he agree that all of her symptoms after 17 December 2000 can be related to that incident:-

"Q Do you accept that the incident has overwhelmed anything that has gone before.

Q You said that stair climbing places significant stresses on the patello femoral joint and we know from Mr Menz's arthroscopy that there were significant changes in the patello femoral joint. The operations of Mr Menz in '93 and '94 didn't cure the underlying degeneration. Those operations relieved the symptoms.

A Overall the ECH employment would have made a contribution of one to two per cent and if she was doing mainly sedentary work that contribution would be minimal." (tr 158)

22 What happened on 17 December 2000 was that an essentially degenerative meniscus tear occurred and if there is established arthritis in the knee that would itself have accelerated the degeneration.

23 Mr Henningsen says that the applicant is unfit for her pre-injury duties. She needs another arthroscopy, and partial medial menisectomy. Ultimately she may face knee arthroplasty. He estimated she had lost 20 per cent of the efficient use of her left knee.

24 Mr R J Bauze examined the applicant of behalf of ECH. He reported on 4 February 2001 and 16 July 2002. He assesses the loss of the efficient of the left knee as 30 per cent. He says:-

"There is a significant aggravation of the left knee degeneration when she slipped at work in 1989 (1990) which led to the subsequent surgery." (TB 102)

"The incident on the 17 December 2000, at home, appears to have been a significant incident. This would have been an aggravation of the pre-existing condition.

The pre-existing condition is one of a constitutional degeneration which was aggravated particularly in the incident in 1989 (1990)". (TB 103)

2 The fall incident in 1989 (1990) showed a minimal and insignificant role in the course of degeneration of her knee.

26 In this, he differs from Mr Henningsen who says in his report of 21 August 2001 "It's my belief that the incident of 1989 (1990) and December 2000 were significant events involved in the initiation and subsequent progression of Mrs Monsma's left knee osteoarthritis."

27 In evidence Mr Bauze said that the applicant had osteoarthritis in both knees, the left worse than the right. It's not possible to say whether the meniscus tear was entirely caused by the December 2000 incident. In contrast to his written report, his view was that there was no contribution to the left knee condition from the employment. He also agreed in his report that he had used the term "aggravation" not "irritation" and this implied permanent damage. He would not deny the possibility that because the applicant had three incidents to her left knee they contributed to the way she will end up in the long run ie when the condition might require major surgery which would take place earlier than otherwise would have been the case.

28 As a preliminary observation I say that the applicant initially placed the first incident in April 1989. That date is reproduced in some of the medical reports. It is understandable because that date is mentioned no less than 21 times in the compensation documents up to 1995. It transpires and it is an agreed fact that the first incident occurred on 21 January 1990. A claim form confirming that date is in the trial book.

29 I accept the applicant as truthful. I accept that shortly after the first incident her left knee became swollen. The balance of her evidence as to the dates of her injury and periods of incapacity up to January 1995 was not disputed.

30 To the extent that MMH submitted (but faintly) that the very late amendment to the applicant's statement about the date when the first incident took place meant that I should not accept her evidence linking the incapacity to her employment - I reject that submission. Their own documents show the correct position.

31 The applicant has adequately established that the condition of her left knee as it was at the date of the functional evaluation by Winter was employment caused.

32 Thereafter the applicant was, as Mr Kernot puts it nicely:- "under the umbrella of the recommendations of the Winter report" (my emphasis).

33 Ms Pratt accepts this when she said that she thought that the applicant's work duties were within the restrictions mandated by Winter, even as late as March 1999.

34 As to the period of about eight months prior to the applicant leaving MMH, I accept the applicant in preference to Ms Pratt.

35 That is to say the applicant used the stairs as often as she said she did. Sometimes she had to use them and climb them in a crabwise fashion. That she could have used the lift is not to the point.

36 At common law the existence of a lift would not have saved MMH. The employer's duty of care goes further than merely providing a system that the employee could use without risk of injury. The employer is bound to ensure that the employee does that. It is the employers duty to ensure that the system actually used does not unreasonably expose the employee to risk of an injury. Employees are not left to work things out for themselves.

37 That of course is not the issue here - but the factual consequences are identical. Ms Pratt conceded that the applicant had complained about the knee to her, and Ms Pratt observed that the knee was swollen.

38 MMH advances a number of reasons why it should escape liability:-

1 There is some doubt about the date of the alleged first injury. I have dealt with that.

2 The applicant has not established any relationship between the Menz surgery and the employment.

She has. In the very first sentence of the Menz report of 2 September 1993 to the GP the relationship is stated.

3 The December 1992 incident of the applicant falling on the stairs was mostly ignored in evidence and that incident, at least on the view of one orthopaedic surgeon in 2001, was regarded by that surgeon as being the most significant.

At best, that submission is a throwaway forensic comment because MMH at the end of the day does not deny either that it occurred or that it occurred in the course of employment.

4 Mr Menz does not report on causation therefore his views of that subject are unknown.

That is not correct. The Menz reports pages 77, 82 and 95 of the trial book provide adequate linkage between the condition as he treated it and the employment.

MMH paid for the surgery. It paid compensation for the time off. It organised and adopted the Winter report. It would be difficult to imagine a clearer demonstration of acceptance of a causal link.

5 The applicant did not complain about her left knee between 1995 and 1999.

(a) That is factually not true. Ms Pratt remembers at least one complaint.

(b) Ms Pratt saw the knee swollen probably early 1999.

(c) The applicant was assigned duties initially in Murray ward which had no stairs and was on a ground level, precisely because of the injured knee.

6 Alternative to 5 above it is suggested that the applicant had symptoms but no incapacity.

That as a general proposition is contrary to the evidence. The Winter report establishes that, even apart from the applicant's own evidence.

7 As an alternative to the above, after 1995 MMH fulfilled its obligation to provide the applicant with employment suitable to her partially disabled condition.

The short answer to that, is that it may have been true whilst the applicant was in Murray ward, it was certainly not true of her work in Barossa and Gambier wards.

ROH Industries v Trepic (1989) 52 SASR 158 has nothing whatsoever to do with these facts. Trepic dealt with s 67 of the old Act (equivalent to s 35(2)(b) and perhaps s 58B) and the precise point in Trepic's case was whether the obligation of providing suitable employment was dependent upon the employers knowledge of partial incapacity.

After the Winter report, MMH was not in any way ignorant of the worker's disability.

BHP v Morley (1994) SAWCAT 83 does not assist.

There, the worker had returned to unrestricted duties to BHP on one view, and to the extent that the duties were not unrestricted they were "suitable" to the worker's disabled condition. Whether such duties were or were not suitable is a question of fact. I have found that the duties provided in Barossa/Gambier ward were not suitable. It is quite a different case from Morley.

8 MMH submitted that by resigning, the applicant had breached mutuality. As a subset to that argument, her action had effectively precluded MMH from providing employment duties more accommodating to the her disabilities.

Further, the effect of the applicant's resignation precluded MMH from fulfilling its obligation under s 58B of the Act.

Those arguments cannot prevail. WorkCover Corporation v Snell 2000 SAWCT 137 was mentioned in this context. It has nothing to do with these facts.

The facts as I find them are that following the return to work in early 1995 the applicant was always under, to borrow Mr Kernot's felicitous phrase, "the umbrella of the return to work plan". There was no one in the MMH organisation better placed than Leonie Pratt to ensure this occurred. She had knowledge of the disability. She signed off on behalf of MMH at least eight of the return to work plans.

She had the executive ability to ensure that the applicant's duties were within the plan's restrictions.

Hence Ms Pratt had both the knowledge and the executive capacity required.

Furthermore she says she heard a complaint from the applicant about her knee and she saw the applicant's swollen knee.

Against that background an assertion that the applicant breached mutuality is not tenable.

If an employer has not provided suitable duties where it is obliged so to do, the employee does not breach the employees duty of mutuality by not complaining, or as is the case here, of resigning.

The cases show the duty of the employer is ongoing. If it chooses not to fulfil those obligations, it cannot escape the consequences by asserting that the employee by leaving, has breached its obligations of mutuality - because that presupposes that the duties from which the employee walked away, were suitable to the employee's compensable disabilities - which is contrary to the facts here.

Indeed Ms Pratt's longstanding knowledge of the applicant's condition is the very opposite to the facts in Trepic's case, which if anything, directly supports the applicant.

MMH by failing to provide suitable employment, was the party which breached mutuality.

Hence it follows that any submission based on the applicant's alleged breach of mutuality fails.

9 Likewise any submission based on the alleged failure of the applicant to restore mutuality must also fail. The applicant had no obligation to restore mutuality for the reasons given above.

39 MMH asserted that the letters from the applicant's solicitors of 14 September 2001 and 7 October 2001 were merely a poor, pro forma attempt to revive mutuality, and the solicitors were "just going through the motions". If that point was relevant, and I had to decide it, I would find as a fact that the letters discharged any obligation the applicant had.

40 At the time the applicant was embroiled in the litigious process. She was obtaining constant legal advice. Her solicitor warned her of the very thing that a competent and prudent solicitor would do, which is to write letters to make the applicant's position clear to MMH. After all, the applicant was a highly trained and highly credentialled professional. Her work record is exemplary.

41 In my opinion, she wanted to use her superior qualifications in the practice of her profession rather than sit at home and nurse a badly damaged knee. If I had to decide the point I would hold that the offer on behalf of the applicant was prudently made and was genuinely made. But I emphasise, the applicant not being in breach of her obligation of mutuality had no obligation to restore that which the other party in the contract of employment had breached.

42 Naturally RJ Brodic Pty Ltd v Pennell [1968] HCA 73; (1968) 117 CLR 665 and its progeny received a passing mention - as did Kanoon v Cable Makers Ltd 1975 WCR (NSW) 268, Kelvinator and Jezior (1988) 49 SASR, and WorkCover Corporation (Plastec Pty Ltd) v Gregor [1994] SASC 4450; 1994 62 SASR 283 made short guest appearances, but again they are not to the point.

43 The essence of the relationship was, that for the last eight or nine months of the applicant's employment with MMH the applicant found the work unsuitable.

44 As to the medical evidence there is not a great deal of difference except perhaps on a critical point of causation between Mr Henningsen and Mr Bauze:-

* Both agree that arthritis is a progressive degenerative process.

* Both agree that it exists in both left and right knees of the applicant.

* Both agree that it is worse in the left knee than the right.

* Both agree that walking up and down stairs should be avoided.

45 Mr Henningsen relates the symptoms in the left knee to the gradual progression of the arthritis therein that was caused by or permanently aggravated by the employment injuries.

46 Mr Bauze says that the left knee shows "constitutional degeneration", but he said the constitutional degeneration was aggravated by the original work injury - however that plays an insignificant role in the natural history of the degeneration of the knee.

47 Both opinions on causation are from highly qualified and expert witnesses and is an exercise in retrospective speculation, albeit informed.

48 I prefer the opinion of Mr Henningsen. I do so because:-

1 He is the treating doctor and is looking at the patient from the point of view of operative treatment.

2 The condition of the left knee is worse than the right knee. I gather it is significantly worse.

3 This is a specialist Tribunal. I am entitled to call into my knowledge of the subject matter. It is commonly accepted by practitioners in the field of industrial medicine:-

(a) Knee injuries are always serious injuries. They affect a major weight bearing joint in the body.

(b) Such injuries invariably reoccur and are aggravated. Such injuries very seldom improve.

(c) If there has been surgical intervention (and here there were two operations by Mr Menz) the natural process of degeneration is accelerated. All that an arthroscopic examination and chrondoplasty does is to temporarily relieve the symptoms. The articular surfaces of the knee continue to degenerate.

(d) On 21 September 1993 Mr Menz found p 78 "quite a large area of deep chrondral damage in the inter-condylar groove".

"Both these areas unfortunately are quite significant and may cause her some ongoing problems but hopefully most of her symptoms will settle." (TB 78)

"she has developed a chronic synovitis within her knee joint". (TB 80)

"It is possible she may suffer a recurrence of aggravation of the degeneration in the knee joint if she returns to normal work duties." (TB 84)

"there are no contributing factors to her condition ... the prognosis here is good although it must be a little guarded considering the degeneration within the knee joint. Overall her knee is not too bad and I believe that she should be able to return to her normal work duties if she is careful." (TB 85)

51 What Mr Menz prophesied a decade previously was accurate. Mr Henningsen comes in at the end of the process when the knee has broken down.

53 I do not think that Mr Bauze has given sufficient weight to the employment injuries and the period 1995 to 1998 when the applicant could manage the work. He hasn't given sufficient weight to the difficulty she had in Barossa/Gambier wards.

54 I hold that the incident of 17 December 2000 is as Mr Henningsen put it, one of medial meniscal trauma against a background of slowly progressive osteoarthritis.

55 Therefore the determination of MMH of 2 April 2001 should be set aside and the claim should be accepted.

58 After seven months, the applicant increased the number of shifts she worked. There was no evidence of any socio-economic work pressure so to do. Presumably she felt capable of the extra work.

59 I am not persuaded on the state of the evidence that the conditions of employment at ECH were such as to make any real contribution to the progress of the degeneration. Presumably the floors there are no harder than the pavements near her residence, or the floors in the supermarket at which she shops.

60 When pressed, Mr Hennginsen ascribed an almost miniscule contribution from the ECH employment, a contribution probably no greater than that of daily living.

61 I confirm the determination of ECH of 19 July 2001.

62 As to the claims against MMH for the injuries to the right wrist, right knee, mid and lower back.

63 The evidence was scant almost to the point of being impossible to detect.

64 The applicant's evidence in her statement was that the transfer to Barrossa-Gambier ward:-

"exacerbated my left knee condition and in doing so had caused injury to my right knee to mid-to-lower back and as I attempted to compensate for the increasing deterioration in my left knee." (TB 132)

65 That statement is a melange of supposition and medical inference, which has very little probative value.

66 The applicant did not report any such disability.

68 I presume as she moved into less physically demanding areas of work at Fullarton Hospital and ECH (where she took on increased duties) there was less strain on the left knee and her symptoms settled down.

69 In my view the claim is an afterthought and made by a careful solicitor concerned that nothing that could be said in favour of her client should be left unsaid.

70 Mr Guirguis was brought in as a medico-legal expert for these claims. I was not assisted by his views.

71 There remains the applicant's claim pursuant to s 43 for the loss of the permanent and efficient use of the left knee.

72 The applicant has already accepted eight per cent loss in 1994 for the condition of the knee as it was then.

73 Mr Henningsen assesses the loss in 2000 as 20 per cent.

74 Mr Bauze in 2001 assessed the loss as 30 per cent.

75 The condition is progressively degenerating. Both surgeons agree the applicant has a quite serious disability in the left knee.

76 I already stated my own views on knee injuries. I regard them as being invariably serious.

77 Estimates are always idiosyncratic. Under the system mandated by this Act the difference between 20 and 30 per cent is one of impression not of scientific accuracy.

78 In the circumstances, and bearing in mind that the applicant is facing the certainty of one operation and the possibility of major reconstructive surgery I assess her present disability as 30 per cent of the loss of the efficient use of the left knee.

1 The determination by MMH dated 2 April 2001 rejecting the applicant's claim for left knee disability is reversed. The claim should be accepted.

2 The determination by ECH of 19 July 2001 rejecting the applicant's claim for a left knee disability is confirmed.

3 The determination by MMH of 18 December 2001 relating to the claims for wrist and back is confirmed.

4 The claim pursuant to s 43 of the Act for the permanent loss of the efficient use of the left knee at or above the left knee is currently assessed at 30 per cent loss.

6 I will hear Counsel on the implications of Orders 4 and 5 above.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.