Chaplin & Q-COMP v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/as Brisbane Catholic Education [2013] QIRC 70

CITATION: Mandy Rae Chaplin AND Q-COMP AND The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/as Brisbane Catholic Education (WC/2012/174) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Mandy Rae Chaplin AND Q-COMP AND The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/as Brisbane Catholic Education (WC/2012/174) COMMISSIONER KNIGHT 9 May 2013 DECISION [1] This is an appeal by Ms Mandy Rae Chaplin (the Appellant) pursuant to s. 550 of the Workers Compensation and Rehabilitation Act 2003 (the Act) against the decision of the Q-COMP Review Unit (Q-COMP) dated 30 March 2012. The decision of Q-COMP confirmed an earlier decision of WorkCover Queensland (WorkCover) not to accept the Appellant's claim for compensation, contending that she did not sustain an injury in accordance with s. 32 of the Act. The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/as Brisbane Catholic Education (BCE) sought and was granted leave to appear in this matter on 26 October, 2012. Brief Overview and Issues for Determination [2] Ms Chaplin, a 34 year old school teacher, is claiming compensation for an injury which she says has arisen out of an incident which took place on 26 February 2010 when a chair directly hit her kneecap whilst carrying out her duties as a secondary school teacher at Mt Maria College, Petrie, (the school) on behalf of BCE. [3] Ongoing pain and symptoms in her right knee since this date have subsequently been diagnosed as Chondromalacia Patellae. [4] The key issue for determination in this appeal is whether the Appellant suffered a personal "injury", namely a knee injury subsequently diagnosed as Chondromalacia Patellae, within the meaning of s. 32 of the Act. Relevant Legislation [5] Section 32 of the Act relevantly provides as follows: "32 Meaning of Injury (1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. … (3) Injury includes the following – ... (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation – (i) a personal injury; (ii) a disease; (iii)a medical condition if the condition becomes a personal injury or disease because of the aggravation; (4) For subjection (3)(b), to remove any doubt it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.". Onus of Proof [6] The Appellant bears the onus of proof. For the appeal to succeed, the Appellant must prove on the balance of probabilities, that: • she suffered an injury, being Chondromalacia Patellae; • the injury arose out of, or in the course of, her employment with Brisbane Catholic Education; and • the Appellant's employment with BCE was a significant contributing factor to the injury. -- 1 of 12 -- 2 The Evidence [7] The Appellant gave evidence she commenced employment as a secondary school teacher with the school in July 2008. Ms Chaplin's duties included teaching English, History and Religious Education subjects to students from grades 8 to 12. [8] On 26 February 2010, in the period after the morning tea break but before lunch, Ms Chaplin was assisting a group of Year 10 English students with their computer assignments in the school library when one of the students she was standing behind reversed his chair directly into her right knee. [9] Ms Chaplin said she was: "...making my way around and stood behind Hayden Helm, and then the other teacher came up and was speaking with me, and then without any warning he just, Hayden Helm just reversed his plastic chair hard and fast" (T1, P8, L1-10). [10] Under cross examination, Ms Chaplin said the chair was a stiff plastic chair with back legs which stuck out on an angle. An incident investigation report (Exhibit 10) prepared and signed on 31 March 2011 by Ms Kerri Cassidy, a health and safety officer working at Brisbane Catholic Education's (BCE) head office, contains an attachment of a photo of a chair with back legs which stick out on an angle. [11] Ms Chaplin said the pain at the time the chair struck her knee was excruciating, recalling that: "I tried to compose myself because of the pain and so I was just sort of in a bit of shock at the time because I didn't want to swear or anything, it was quite excruciating and then I remember saying 'Ouch, that really hurt'." (T1, P8, L30-40). [12] Ms Chaplin gave evidence she attended the school office at lunchtime on the same day, reporting the incident to the school administrator, Ms Felicity Bagley-Mills, who provided her with an icepack and assisted Ms Chaplin with the completion of a sick room incident report form which was dated 26 February 2010 (Exhibit 6). The incident report includes a note suggesting Ms Chaplin visit a doctor if the injury got worse or did not go away. Ms Chaplin gave evidence she also reported the incident to the school's workplace health and safety representative, however it is unclear on the evidence as to when and how this occurred. [13] Under cross-examination Ms Kerri Cassidy, the BCE health and safety officer confirmed she was provided with a copy of the incident report after the event, but that the school administration had failed to properly record the incident on the school's on-line incident and injury reporting system on 26 February 2010. It is not possible to determine from Ms Cassidy's evidence when the school forwarded the incident report to Ms Cassidy or any other representative from BCE head office. [14] In her Incident Investigation Report prepared thirteen months later and dated 31 March 2011 (Exhibit 10), Ms Cassidy included the following: "This incident was not reported on the WSS Incident and Injury Reporting System until 22 March 2011.". In a section of the same report which allowed for recommendations, Ms Cassidy typed: "Recommendations: 1. Ensure all staff incident (sic) are reported on the WSS Incident and Injury Reporting System within 24 hours of incident occurring". [15] In cross-examination, Ms Cassidy agreed with the proposition that the school administration's failure to record the incident on the WSS system may well have impeded any subsequent follow up or investigations by head office into the incident involving Ms Chaplin on 26 February 2010. [16] Ms Chaplin gave evidence she attended an appointment with Dr Sadeghi, a General Practitioner at Medicross Strathpine the day after the incident, providing the doctor with details about a chair colliding with her knee at work (T1, P10, L1-30). [17] Dr Sadeghi gave evidence Ms Chaplin presented at his surgery on Saturday 27 February 2010, advising a teenager had reversed his chair and hit her right kneecap. In Ms Chaplin's medical notes provided by Medicross Strathpine (Exhibit 9), Dr Sadeghi recorded: -- 2 of 12 -- 3 "Date: Saturday, 27/02/2010 12:14 PM Provider: Dr Shahram SADEGHI History: She is a highschool teacher and has a teenager that reverted her chair and hit her right knee cap yesterday. It was a plastic chair. no limping, she has no moving problem.". [18] Dr Sadeghi gave evidence his examination of Ms Chaplin on 27 February 2010 involved checking her legs for disfiguration and tenderness of the medial collateral ligaments; however he was unable to find any problem at that time and assured Ms Chaplin that it did not appear to be a serious problem. [19] In his notes, which were included in the Medicross medical records for Ms Chaplin (Exhibit 9), Dr Sadeghi recorded "nil findings" against the "Diagnosis" heading. [20] Ms Chaplin confirmed Dr Sadeghi was unable to provide any suggestions in relation to the treatment of her knee, agreeing in cross-examination the doctor could not find any limping or swelling, but still insisting her knee was tender on the day. [21] Ms Chaplin gave evidence she took the management of the injury into her own hands, purchasing a knee brace and wearing it for a period of two weeks after the incident and then intermittently at times when she experienced an aching pain in her right leg, above and below the knee (T1, P10, L30-50). [22] Ms Chaplin said the pain got worse over time observing: "...It would happen at the end of the day, and I would notice when things would slow down, so particularly at night when I was going to bed I could feel the pain and it was enough to distract me from going to sleep... And that's when I would put the brace on. It would just ache intensely." (T1, P11, L1-10); And later; "...and the pain going up and down my leg, that got worse over time." (T1, P11, L40-50). [23] Separate to that pain, Ms Chaplin said she intermittently experienced pain around her knee after the incident of 26 February 2010 when she crouched or squatted, which was often accompanied by a clicking or popping noise (T1,P11, L20-30). [24] Ms Chaplin's medical records (Exhibit 9) indicate she visited Medicross Strathpine on nine occasions between 27 February 2010 and 25 January 2011, with a variety of requests for medication and other ailments that did not include complaints about her right knee. [25] Dr Bosch, a General Practitioner at the same practice as Dr Sadeghi, gave evidence Ms Chaplin did not raise any complaints in relation to her knee when he saw her in an appointment on 20 November 2010. [26] In appointments with her on 25 January 2011 and 5 February 2011, Dr Sadeghi recorded Ms Chaplin complained of pain in her right knee. In Ms Chaplin's medical records for 25 January 2011 (Exhibit 9), Dr Sadeghi recorded: "Date: Saturday, 25/02/2011 5.20 PM Provider: Dr Shahram SADEGHI History: had an incident last year whilel (sic) a student reversed a chair to her right knee. It was fine until since Christmass (sic) it started to cause pain. pain is going up and the hip started to hurt. doesn’t lock or give away, hurts more when she kneel ". Examination: no swelling or tenderness no findings for cruciate or meniscus damage, no findings for infrapatellar ligament sprain. SLR test normal. Plan: Mobic 15mg Tablet one tablet mane (sic) with food if not better in few days come back for referral to Othopaedics.". [27] When questioned in re-examination as to why she did not make any comments to her Doctor in the period between 27 February 2010 and 25 January 2011, Ms Chaplin said: "Because he had said that everything was fine on having a look at my knee and bending and flexing it. I sort of forgot to come back and notify him and when the pain was happening, started happening to my knee, I did not link it back to the incident." (T1, P47, L30-40). And later: -- 3 of 12 -- 4 "The point I was getting to, it took me quite a while to recognise that the pain had been happening on a frequent basis." (T1, P48, L1-10). [28] Ms Cassidy (an occupational, health and safety office from BCE) gave evidence she attended the school on 31 March 2011 to conduct an investigation into a workplace incident which was originally reported to the school by Ms Chaplin approximately twelve months prior to this on 26 February 2010. [29] It is unclear from Ms Cassidy's or Ms Chaplin's evidence what communication took place between Ms Chaplin and the school and/or BCE before Ms Cassidy was requested to conduct the investigation in late March 2011. [30] When giving evidence, Ms Cassidy had difficulty remembering the full details of her conversations with Ms Chaplin during her investigation or the content of the report she finalised on 31 March 2011 (Exhibit 10), but was able to recall Ms Chaplin reported she had been standing and speaking to a student in the library on the morning of 26 February 2010 when another student sitting beside him pushed his chair back and hit her in the right knee (T1, P52, L30-40). [31] When asked to provide details about the investigation, Ms Cassidy recalled Ms Chaplin reported she visited the school office at about 1:00p.m. on the same day as the incident to have ice applied, that she had visited a doctor on the following day and that her knee continued to be sore for about a week after the incident (T1, P53, L10- 40). [32] When asked if she was able to recall if Ms Chaplin reported any further pain in her knee between the week after the incident and the period leading up to Christmas, Ms Cassidy, referred to her report and said: "Mandy explained that she had no further pain until just before Christmas 2010 when she away and kneeling to wrap Christmas presents." (T1, P54, L1-10). [33] In her formal investigation report, dated 31 March 2011 (Exhibit 10) Ms Cassidy wrote: "Deb explained that Mandy went overseas to get married at Christmas time. Mandy explained that she was kneeing (sic) whilst wrapping Christmas presents when she felt a 'pop' in her right knee and felt pain. Mandy reported that after a period of time (approximately 1 -2 weeks after Christmas) it began to hurt again and now it continues to hurt. Mandy expressed that right knee 'does this poppy out thing' randomly and hurts every night.". [34] Under cross-examination, Ms Cassidy's evidence in relation to the time period which lapsed between when she converted her handwritten notes to a formal report was inconsistent; at one point stating she was unable to recall when she prepared the formal incident investigation report but later, in re-examination, agreeing she prepared the report on the same day. [35] Ms Cassidy agreed with the suggestion she did not provide a copy of the formal incident investigation report to Ms Chaplin and others who participated in the investigation to ascertain whether they agreed with the accuracy of the typed Incident Investigation Report (T1, P54, L40-60). [36] On 30 March 2011, after continuing to complain of pain in her knee, Dr Marius Bosch, another Doctor at Medicross Strathpine who Ms Chaplin saw from time to time, recommended a baseline x-ray and referral to an orthopaedic surgeon for Ms Chaplin. [37] Dr Bosch included a note of "? chondrmalacia (sic) knee" against the heading "'Diagnosis" in Ms Chaplin's medical records (Exhibit 9) for 30 March 2011. [38] Ms Chaplin was referred by Dr Bosch to Dr Hugh English, an Orthopaedic Surgeon, and attended her first appointment on 20 April 2011. [39] In a Workers Compensation claim form dated 22 April 2011 (Exhibit 2) and received by BCE on 27 April 2011, Ms Chaplin listed the cause of her injury as a student reversing a chair into her knee. The Specialist's Evidence [40] The following specialists gave evidence: For the Appellant • Dr Hugh English - Orthopaedic Surgeon and Approved Medical Specialist for WorkCover, New South Wales; • Dr Mark Dekkers - Orthopaedic Surgeon and Associate Professor, University of Queensland. -- 4 of 12 -- 5 For the Respondent • Dr Peter McMeniman - Orthopaedic Surgeon and Clinical Lecturer at the University of Queensland. [41] The evidence provided by the specialists, including written reports, fell into four broad categories: a. the Specialist's respective clinical examinations and/or review of medical reports, including the diagnosis of Chondromalacia Patellae in Ms Chaplin's right knee; b. the nature, symptoms and triggers of Chondromalacia Patellae and associated pain arising out of the disease; c. the contribution of work and non-work factors to the onset or aggravation of Chondromalacia patella in Ms Chaplin's right knee; and d. the relationship between the initial injury arising out of the reported incident on 26 February 2010 and a pre- Christmas 2010 "kneeling and popping" event. [42] Dr English said he took into account the history Ms Chaplin provided to him when he first examined her on 20 April 2011 when preparing his report. [43] In his report dated 12 June 2012 (Exhibit 8), Dr English wrote: "She was working at school in February 2010 when a Year 10 student suddenly pushed backwards fast in a chair striking her right kneecap with immediate onset of pain. She had pain for a week or so. She saw her GP and was reassured. The pain recurred in December and she had had intermittent anterior knee pain since this time.". [44] Dr English said his examination on 20 April 2011 revealed an irritable outer side of the right kneecap along with tight and painful fibrous tissues to the side of the kneecap. At that time, he arranged for an MRI scan because he suspected Chondromalacia Patellae, which was subsequently confirmed following his review of the MRI. [45] In his report dated 8 March 2012 (Exhibit 7) Dr English, in response to a question around the actual diagnosis of Ms Chaplin's injury, recorded: "Aggravation of Chondromalacia Patellae right knee". [46] In his evidence, Dr English described Chondromalacia Patellae as: "a disease or process where the back of the kneecap, which is meant to be covered in the glossy white smooth cartilage, becomes damaged and fissured, and essentially it's an early patch of osteo-arthritis, or damage behind the kneecap that causes pain in the front of the knee. And classically causes pain if you go into a deep squat or you kneel or you sit for a long time when your knee bent." (T1, P26, L10-20). [47] In response to questions around the difficulties of diagnosing the condition without an MRI, he said: "You can - you can (sic) suggestion of it clinically, but an MRI - is the final way to make the diagnosis, yes." (T1, P 27, L1-10). [48] In cross examination Dr English agreed with the proposition that certain individuals, particularly knock-kneed females, are predisposed to develop Chondramalacia patellae in the second and third decades of their life (T1, P29, L1-10). [49] Dr English said Ms Chaplin was not particularly knock-kneed but agreed she was more at risk than a man to developing Chondromalacia Patellae without any incident. [50] Dr English described pain associated with Chondromalacia Patellae as being "intermittent" and dependent on what someone was doing with their knee at the time, suggesting: "going up and down steps would trigger it often, kneeling down, or squatting down or sitting down for a long time with your knee bent would all trigger it.". [51] In cross-examination, in response to a suggestion that "what occurred in February 2010, if at all related to the Chondromalacia Patellae was a minor aggravation of it," Dr English said: "--Well, it could have been one or two things. It could have been the initial trigger that damaged the cartilage that led to develop later more significant pain ---- Mmm?----- or it could have aggravated an underling condition that was previously pre-existent but not known about." (T1, P30, L1-10). -- 5 of 12 -- 6 [52] And in response to questions about the relationship or otherwise between the February 2010 incident and the reported "popping" incident before Christmas 2011, he said: "Not necessarily. I mean I guess the question is would December - would the December incidents have happened if the February hadn't happened and I think probably the December incident happened partially because of the February injury. --But, Doctor, you're assuming that there's been some significant injury surely in the February? -- Well, I think there was - there was an injury that was significant enough to take it to a GP, yes (T1, P30, L40-50). --That's right. But that doesn't necessarily mean that it's a significant injury, does it? -- Well, it's a bit different to a scratch that she ignores. She was reporting a week's worth of pain and seeing a doctor for it. I think it implied there was some significance to it." (T1, P30, L1-10). [53] Dr English expressed the view that pain associated with the condition can be intermittent but that in Ms Chaplin's case the fact that she had a relatively minor injury to the knee, had some short term discomfort, had no symptoms for ten months or so, and then suddenly developed quite severe pain indicated the minor injury was not the whole cause of the current problem. [54] In his report dated 12 June 2012 (Exhibit 8), Dr English wrote: "The Chrondromalacia patellae may be partially work related and partially unrelated to work. In terms of apportionment perhaps a 50/50 apportionment would be reasonable.". [55] When it was suggested in cross-examination that any contribution at all to the presentation after December 2010 was insignificant or minor, Dr English said: "I think it's very hard to say why kneeling in December would give you pain if you hadn't a prior injury to the knee.". And later: "But she's had a documented injury with a week of pain ten months prior. I mean we commonly see this condition when people strike their knee against the dashboard at times. She said she had a direct blow to her kneecap. It's quite clearly documented ten months previously. She'd had a week of pain. She's seen a GP and then she's gone on to develop more pain later. So the two incidents would appear to be obviously linked." (T1, P32, L1-10). [56] When it was suggested the pain between the two events was not continual, Dr English said the condition was one that "comes and goes. It's one of life's irritations, like back pain that you have a flare and then it goes away again." (T1, P32, L10-20). [57] Ms Chaplin was also referred by Dr Bosch to Dr Mark Dekkers, an Orthopaedic Surgeon, and attended her first appointment on 4 May 2012, at which time she provided the Doctor with a history of the alleged incident and the subsequent symptoms and pain which followed. In his report dated 4 May 2012 (Exhibit 11), Dr Dekker wrote: "She sustained an injury to her right knee at work on 26 February, 2010. She states that a student reversed a chair into her. Unfortunately it impacted directed on the anterior aspect of her right knee. Her right knee did swell up at the time. The swelling has slowly subsided. Since then she has had persistent patellofemoral pain. This is made worse with any activity including pump classes, prolonged sitting and walking up and down stairs... She states her knee was completely asymptomatic prior to this incident.". [58] Under cross-examination, Dr Dekkers agreed with the proposition the history he had been provided with from Ms Chaplin in relation to the emergence of pain after the initial 26 February 2010 incident was somewhat different to that recorded in her medical records of 22 January 2011, where Dr Sadeghi had recorded: "had an incident last year while a student reversed a chair to her right knee. It was fine until Christmas…". (My emphasis). [59] When questioned as to whether he had any concerns about the inconsistent histories provided to him, he said the lack of reported pain by Ms Chaplin to her GPs following the 27 February 2010 incident and the pre-Christmas "popping" incident did not concern him, noting symptoms associated with Chondromalacia Patellae could be intermittent (T1, P64, L1-10). -- 6 of 12 -- 7 [60] In his report dated 4 May 2012, (Exhibit 11) Dr Dekkers confirmed "the presence of mild Chondromalacia Patellae.". [61] He gave evidence the disease was attributable to Ms Chaplin's work injury on the basis she received a direct blow to the anterior aspect of her knee which irritated the patella and subsequently led to symptoms associated with the disease. [62] Dr Dekkers provided examples of trauma associated with the onset of the disease which included tripping over and falling directly on your patella, falling off a bike onto your patella or a direct blow up against a wall, confirming that a student reversing a chair into a knee was the sort of trauma he would associate with the onset of Chondromalacia Patellae (T1, P61, LL1-20). [63] Under cross examination Dr Dekkers agreed with the proposition knock-kneed females are predisposed to developing Chondromalacia Patellae in their second or third decade, suggesting later that it was more likely to develop without incident in their second decade (T1, P65, L1-10). [64] Dr Dekkers agreed with the proposition Ms Chaplin was knock-kneed but also said "we're all knock-kneed" and "I felt that her knees were aligned in valgus, which was within normal limits." (T1, P61, L40-50). [65] Under cross-examination around whether Ms Chaplin's Chondromalacia Patellae might have developed without incident, he said: " -- but she's got a history that is consistent with her developing unilateral or one-sided patellofemoral pain. If it's - if it's - if it does occur without injury then it's often bilateral.". [66] Whilst Dr Dekkers agreed the act of kneeling or walking upstairs could aggravate patellofemoral pain that existed beforehand, he indicated he had no concerns about attributing the pain in the December "'popping" incident to the initial February 2010 incident and was not prepared to accept that someone who had no pain in their knee beforehand, could kneel down and then develop patellofemoral pain as a result of kneeling down (T1, P66-68). [67] Dr Peter McMeniman did not physically examine or meet with Ms Chaplin. His evidence, including his written report prepared on 20 November 2012 (Exhibit 12), was based on a file review of reports and information provided to him by the Respondent's legal representative in this matter, MVM Legal. [68] Attachment "'A" of Dr McMeniman's report, lists a series of documents which were taken into consideration in its preparation. These documents included relevant statutory claim documents, appeal documents, an incident investigation report (31 March 2011), an OHS incident and injury report (22 March 2011), various records of Medicross Strathpine, the medical Reports of Dr Hugh English (8 March 2012 and 12 June 2012) and Dr Mark Dekker's report (4 May 2012). [69] Dr McMeniman's summary of Ms Chaplin's history included: "Examination demonstrated no lower limb alignment, no swelling, no warmth, no tenderness on palpation either or the superficial soft tissues or over the patella-femoral joint…No diagnosis was arrived at, apparently because there were no positive clinical findings. There does not appear to be any further reference to Ms Chaplin's right knee in her general practitioner file until January 2011. During that period of time, Ms Chaplin was reviewed periodically for other reasons but no mention of her right knee is contained in the general practitioner file until 25/01/2011. Apparently in the pre-Christmas period, Ms Chaplin experienced acute discomfort in her knee while she was wrapping presents. She described a 'pop' and subsequent discomfort in her right knee. It would appear from that time Ms Chaplin experienced intermittent ongoing symptoms in her right knee.". (My emphasis). [70] In his report of 20 November 2012 (Exhibit 12), Dr McMeniman described Chondromalacia patella as degenerative arthritis of the patella-femoral joint, commonly presenting in the second and third decades of life in an adult female. He noted the disease can be associated with increased physical activity and direct trauma but that it usually manifests without any specific history of injury. [71] Dr McMeniman gave evidence that the reported symptoms which included mild valgus attitude to her lower limbs (knock-kneed), tightness of the lateral retinaculum of her patella and crepitus indicated Ms Chaplin had a pre-disposition to developing patella-femoral symptoms, noting that the resolution of her symptoms after the 26 February 2010 incident until December 2010 suggested the February incident had no specific relationship to Ms Chaplin's ongoing knee problems. -- 7 of 12 -- 8 [72] Under cross-examination, Dr McMeniman confirmed "everyone" has mild valgus attitude to their lower limbs (knock-kneed). He also agreed with the proposition it was more common to see the symptom of bilateral pain (pain in both knees) in people with a pre-disposition to developing Chondromalacia Patellae. [73] In his report of 20 November 2012 (Exhibit 12) Dr McMeniman acknowledged Chondromalacia Patellae could also be caused by direct trauma to the knee but stressed it needed to be "real direct trauma" such as motor vehicle accidents or being hit by heavy things. When he was asked if a pedestrian walking past a car and bumping the car with their knee could fall into this category he said it depended on how hard it was bumped, but later acknowledged that someone falling down on their knee could be classified as a major injury. [74] When it was suggested in cross-examination that a 15 year old male reversing backwards could be a major injury, Dr McMeniman asserted that in such a circumstance you would expect to see clinical signs and evidence of the injury such as pain and swelling on examination, noting that in Ms Chaplin's case there was no clinical signs of a major injury. Considerations and Findings [75] There is no contest Ms Chaplin suffered a personal injury in the form of Chondromalacia Patellae, an early degenerative arthritis of the patella-femoral joint which can manifest for a number of reasons including increased physical activity, direct trauma or a pre-disposition to develop the condition due to the physiological alignment of a person’s lower limbs. [76] In this appeal, Ms Chaplin is required to prove on the balance of probabilities that her Chondroalacia patellae arose out of, or in the course of her employment as a teacher at the school. This denotes a causal or consequential relationship between the employment and the injury but it does not require a proximate relationship (see Lackey v Workcover Queensland1). [77] Notwithstanding this, there is a requirement for a causal or proximate relationship between the injury and the work which is being performed. In this way, the Act requires the employment to be a significant contributing factor to the injury. For employment to be a significant contributing factor, whether the injury is an injury in its own right or whether the injury is an aggravation, there must be a real or effective cause (see Croning v Workers Compensation Board of Queensland2). [78] More specifically in this appeal, the Commission is required to consider the question of whether the pain and discomfort associated with the Chondromalacia Patellae Ms Chaplin says she was suffering when she made her application for compensation in April 2011 is causally related to the workplace incident which occurred on 26 February 2010. And if so, was the 26 February 2010 incident a significant contributing factor to the Chondromalacia Patellae? [79] In addition to proposing Ms Chaplin's Chondromalacia Patellae is a pre-existing condition that was aggravated by kneeling or bending, the Respondent has also submitted the medical notes establish there was little or no injury, and nil findings when she was examined by Dr Sadeghi on 27 February 2010. Further, that the Commission could not be satisfied Ms Chaplin experienced a continuation of pain between the 26 February 2010 incident and the December 2010 kneeling incident; and that the evidence of Dr McMeniman supports the view there is no relationship or link between the workplace incident of 26 February 2010 and Ms Chaplin's reported pain after December 2010 leading to a subsequent claim for Workers Compensation in April 2011, more than one year later. [80] In contrast, the Appellant has submitted the workplace incident of 26 February 2010 led to Ms Chaplin experiencing intermittent pain between February 2010 and January 2011, but that she put up with the pain because she had been told there was nothing wrong with her knee. Further, that the Respondent has not been able to demonstrate Ms Chaplin has any particular physiological factors that predispose her to the development of Chondromalacia Patellae and finally, that the evidence of both Dr English and Dr Dekkers supports the view the Chondromalacia Patellae is directly attributable to the 26 February 2010 workplace incident, which in turn is a significant contributing factor to Ms Chaplin’s knee injury. [81] I accept this is a somewhat unusual case given fourteen months lapsed between the initial reported incident involving Ms Chaplin's right knee and her eventual claim for Workers Compensation in April 2011. [82] Before even considering the question of whether the incident on 26 February 2010 was a significant contributing factor to the injury, it is important to take into account the Respondent's submission that Ms Chaplin's 1 Lackey v WorkCover Queensland (2000) 165 QGIG 22. 2 Croning v Workers Compensation Board of Queensland (1997) 156 QGIG 100. -- 8 of 12 -- 9 Chondromalacia Patellae is a pre-existing condition that was aggravated by kneeling or bending. In partial support of this position, Dr McMeniman's report (Exhibit 13) concludes "the documentation would suggest that she has physiological factors that predispose her to the development of early patella-femoral osteoarthritis which is not unusual in her age group.". [83] In cross-examination, Dr McMeniman, having not physically examined Ms Chaplin, recalled that "someone" had said this in one of their clinical examinations, subsequently acknowledging that "everyone's got a mild valgus attitude to their lower limbs" and that it is "normal". Likewise, both Dr English and Dr Dekkers gave evidence Ms Chaplin's gait was within normal limits. [84] In his report, Dr McMeniman also confirmed Chondromalacia Patellae can develop without incident in females in their twenties and thirties for reasons associated with increased physical activity, direct trauma or without any specific injury. [85] However, Dr Dekkers gave evidence Ms Chaplin's history was consistent with developing unilateral or one-sided patellofemoral pain, noting that females who are prone to developing Chondromalacia Patellae without an incident or trauma often present with bilateral pain. [86] In cross-examination Dr McMeniman agreed with the proposition that if you have a predisposition to Chondromalacia Patellae then you are more likely to have the condition in both knees. [87] In my view, there is simply not enough evidence in this matter to support the assertion Ms Chaplin had any particular physiological factors that predisposed her to the development of Chondromalacia Patellae. Whether the incident at work was a significant contributing factor to the injury: [88] Whilst it is true Ms Chaplin's evidence at times during the hearing could be described as a little unclear or vague, her recall of the events leading up to, during and after the workplace incident on 26 February 2010, as well as the reported pain that followed the event was persuasive and strongly supported not only by the completion of a sick room report containing details of the incident on the day, but also by the existence of a contemporaneous note in Ms Chaplin's medical records completed by Dr Sadeghi on 27 February 2010 when she sought treatment for her knee. [89] Ms Cassidy from BCE also acknowledged the existence of the sick room incident report in her own evidence, noting the school had failed to enter the incident report into the online WSS Incident and Injury Reporting System until more than twelve months after the event (T1, P55, L10-20). [90] In these circumstances, the Commission accepts Ms Chaplin's evidence that on 26 February 2010, a student backed his chair directly into her kneecap whilst she was in the library and that the pain at the time of the incident was significant. The link between the reported injury and the 26 February workplace incident: [91] The Respondent has called Ms Chaplin's credibility into question, particularly in so far as her complaints of knee or associated leg pain between March 2010 and January 2011, given the absence of any record of pain in her medical notes. In turn, this raises uncertainty about the link, if any, between the February 2010 workplace incident and the subsequent pain and diagnosis of Chondromalacia Patellae diagnosed after December 2011. [92] In her evidence, Ms Chaplin was given the opportunity to explain why she had not reported the pain to any of her GPs between March 2010 and January 2011. She explained that she had continued to experience intermittent pain and popping in the knee but that because her doctor "had said that everything was fine on having a look at my knee and bending and flexing it. I sort of forgot to come back and notify him and when the pain was happening…", and that it took a while for her to recognise the pain was happening on a frequent basis; and that she initially did not link the pain back to the incident when it started to reoccur. [93] Dr McMeniman, who did not physically examine or meet with Ms Chaplin, noted the resolution of her symptoms after the 26 February 2010 incident until December 2010 suggested the February incident had no specific relationship to Ms Chaplin's ongoing knee problems and that "if she had real problems, she would have sought treatment" (T1, P79, L50). Dr English confirmed the pain associated with Chondromalacia Patellae could be intermittent suggesting the condition was one that "comes and goes". Dr Dekker said the symptoms of the condition could be intermittent. [94] I prefer the evidence of both Dr English and Dr Dekkers who both, in quite different contexts, convincingly described the pain or symptoms of Chondromalacia Patellae as being intermittent or variable. -- 9 of 12 -- 10 [95] Dr McMeniman's report was prepared on the basis of the information which was provided to him, rather than any physical examination or interaction he may have had with Ms Chaplin. Part of the background of Dr McMeniman's report contained a reference to Ms Cassidy's incident investigation report, prepared over twelve months after the initial workplace incident and including reference to a "popping" incident whilst wrapping Christmas presents. Ms Chaplin was not asked to view the final form of the Incident Investigation Report to confirm its contents. [96] Ms Chaplin also gave evidence she was pressed by WorkCover at some point in or around early 2011 to provide an example of a situation where she had experienced pain or popping and that she provided the pre-Christmas popping example due to the memorable time of year. It is understandable that she would provide the same example to Ms Cassidy when she conducted her incident investigation in late March 2011. [97] Whilst Ms Chaplin was unable to provide specific dates of her pain or details of other popping incidents I accept her evidence that it took her some time to recognise the increasing frequency of the pain associated with her knee and that the December 2010 "popping incident" was not the first time she experienced the 'popping' sensation. [98] Ms Cassidy's evidence also suggests the failure of the school administration to enter the incident into BCE's online incident reporting system may have impacted BCE's ability to effectively follow up the reported injury and therefore any opportunity Ms Chaplin may have had to raise concerns or discuss issues arising out of the incident, including any ongoing pain during this period. [99] Further, given Dr Sadhegi had previously told Ms Chaplin he was unable to find anything wrong with her knee in late February 2010, it is not surprising that it took her some time to raise the issue with her GPs when the pain and symptoms did start to reoccur. [100] Whilst I acknowledge the Respondent's concerns around Ms Chaplin's evidence in relation to the frequency of the pain and symptoms she described during this period, given all of these circumstances, I am persuaded the symptoms and pain associated with the condition can "come and go" and that she did experience pain from time to time between February 2010 and January 2011, albeit perhaps not so significantly that she remembered to raise it with her respective GPs whilst attending appointments about other unrelated health matters. [101] Even if I were to accept the Respondent's submission that Ms Chaplin did not suffer any pain and discomfort in her knee between when she had the incident on 26 February 2010 up until 25 January 2011, I would be persuaded by the evidence of Dr Dekker, who when confronted with a history that did not include a continuation of pain during this timeframe, remained unconcerned about his diagnosis, noting the symptoms of the condition were intermittent and variable. [102] The Commission must now consider whether Ms Chaplin's employment was a significant contributing factor to the injury. [103] The Appellant has submitted the answer to this question is a mixed issue of law and fact, referring to Newberry v Suncorp Metway Insurance Limited3 and Croning v Workers Compensation Board of Queensland4 noting the issue for determination by the Commission is whether the employment is the real cause of Ms Chaplin's knee injury, or whether the employment is merely an incident which precedes the history of the events and further, that for employment to be a "significant contributing factor" the work related contribution must also be a "significant" cause of the applicant's condition but that this does not mean it must be the sole or even the major cause of the injury. [104] The Respondent has submitted the answer to the question of whether employment is a significant contributing factor to any injury is a question of fact for the Commission, but that it can be guided by medical evidence. [105] Dr Sadhegi was unable to identify little or no sign of any injury on the day after the initial 26 February 2010 workplace incident. In his evidence, Dr Dekkers said Dr Sadhegi's inability to find any symptoms associated with the condition was not uncommon. [106] In her evidence, Ms Chaplin acknowledged Dr Sadeghi's findings had been unremarkable, but that she took the management of her injury into her own hands, buying herself a knee brace and experiencing intermittent pain and 'popping' from March 2010 onwards. [107] Providing examples of trauma associated with the onset of the disease, which included falling directly onto your patella, Dr Dekkers gave evidence Ms Chaplin's knee condition was directly attributable to her work injury on 3 Newberry v Suncorp Metway Insurance Limited (2006) QCA 48 at [40]. 4 Croning v Workers Compensation Board of Queensland 4 (1997) 156 QGIG 100. -- 10 of 12 -- 11 the basis she received a direct blow to the anterior aspect of her knee which irritated the patella and subsequently led to symptoms associated with the disease. [108] Dr Dekkers maintained his position in relation to his diagnosis of Ms Chaplin's condition, even when it was suggested the history of pain he had based his findings on was somewhat different to that which Ms Chaplin had initially provided to him. [109] When a history which included an absence of symptoms between March 2010 and December 2010 was put to Dr English, he noted in his report that such a history would make it hard to associate all of the current symptoms with the work related knock. In the same report Dr English wrote: "The Chrondromalacia patellae may be partially work related and partially unrelated to work. In terms of apportionment perhaps a 50/50 apportionment would be reasonable.". [110] In cross-examination, when it was suggested that any contribution at all to the presentation after December 2010 was insignificant or minor, Dr English said: "But she's had a documented injury with a week of pain ten months prior. I mean we commonly see this condition when people strike their knee against the dashboard at times. She said she had a direct blow to her kneecap. It's quite clearly documented ten months previously. She'd had a week of pain. She's seen a GP and then she's gone on to develop more pain later. So the two incidents would appear to be obviously linked." (T1, P32, L1-10). [111] On the basis of the information provided to him, Dr McMeniman's report described the incident of 26 February 2010 as having no specific relationship to Ms Chaplin's ongoing knee problems. [112] In response to questions about the relationship or otherwise between the February 2010 incident and the pre- Christmas "popping", Dr English said: "Not necessarily. I mean I guess the question is would December - would the December incidents have happened if the February hadn't happened and I think probably the December incident happened partially because of the February injury. --But, Doctor, you're assuming that there's been some significant injury surely in the February? --Well, I think there was - there was an injury that was significant enough to take it to a GP, yes (T1, P30, L40-50). --That's right. But that doesn't necessarily mean that it's a significant injury, does it? -- Well, it's a bit different to a scratch that she ignores. She was reporting a week's worth of pain and seeing a doctor for it. I think it implied there was some significance to it." (T1, P30, L1-10). [113] The combined evidence of Dr Dekkers and Dr English, supports the Appellant's assertion the work related incident of 26 February 2010 is a significant contributing factor to her knee injury. But for her employment, Ms Chaplin's knee would not have been struck by the back of a chair. Even if we accept, on its own, Dr English's assessment of a 50% attribution of Ms Chaplin's work injury to the February work incident, this is still a significant figure. [114] The Appellant bears the onus of establishing, on the balance of probabilities, that the condition she was suffering when she made her application for compensation in April 2011 is causally related to the workplace incident which occurred on 26 February 2010 and further, that the same incident was a significant contributing factor to the onset of Chondromalacia Patellae. [115] There is sufficient evidence for me to be satisfied Ms Chaplin's knee injury and subsequent diagnosis of Chrondromalacia patellae arose out of or in the course of employment and employment was a significant contributing factor. This is because Ms Chaplin received a direct blow to her knee on 26 February 2010 which in turn irritated her patella and subsequently led to the onset of symptoms associated with the condition. [116] I am satisfied Ms Chaplin experienced some intermittent knee pain associated with symptoms which arose as a result of the initial knock during the period between the initial workplace incident in February 2010 and January 2012. [117] On the evidence before the Commission, I have formed the view that Ms Chaplin has discharged the requisite burden of proof. [118] I find that Ms Chaplin sustained an injury under s. 32(1) of the Act on 26 February 2010, being a direct blow to the kneecap which led to the onset of Chrondromalacia patellae. -- 11 of 12 -- 12 [120] The appeal is upheld and the decision of the Q-COMP Review Unit is set aside. [121] The matter of costs is reserved. [122] I order accordingly. M.L. KNIGHT, Commissioner Hearing Details: 2012 13 December 14 December 2013 21 January (written submissions) 04 February (written submissions) 06 February (oral submissions) Released: 9 May 2013 Appearances: Ms C. Hartigan of Counsel, instructed by Tresscox Lawyers for the Appellant. Dr M. Spry of Counsel, directly instructed for Q-COMP. Mr P. Rashleigh of Counsel, instructed by MVM Legal for The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/as Brisbane Catholic Education. -- 12 of 12 --