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IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE WORKCOVER DIVISION

Case No.E13266055 ZORA PETROVSKA Plaintiff v WILTARI PTY LTD Defendant

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MAGISTRATE: S GARNETT

WHERE HELD: MELBOURNE

DATE OF HEARING: 15, 16 & 17 APRIL 2015

DATE OF DECISION: 28 APRIL 2015

CASE MAY BE CITED AS: PETROVSKA v WILTARI PTY LTD

REASONS FOR DECISION

--- Catchwords: S 109 Rejection of claim: alleged injury to right knee on 2 April 2014 – tear of the right medial meniscus – whether the injury arose out of or in the course of employment and/or during the journey on way home from work that evening. Credit of worker and lay witnesses in question – contemporaneous medical records do not support worker’s assertions – Claim dismissed.

--- APPEARANCES:

Counsel Solicitors

For the Plaintiff Ms Lang Zaparas Lawyers For the Defendant Ms Myers Hall & Wilcox

1 DECISION

HIS HONOUR:

1 Mrs Petrovska is aged 63 years and alleges that she sustained injury to her

right knee at approximately 8:40 p.m. on Wednesday 2 April 2014, in the

course of her employment with Wiltari Pty Ltd, where she was employed as a

part-time cleaner. In particular, she alleges that she sustained her injury when

bending to lock an office door at 459 Collins Street Melbourne and that her

injury got worse when travelling on a bus on her journey home that evening.

2 Mrs Petrovska lodged a WorkCover claim on 5 May 2014, stating that she

sustained an injury to her right knee at 8.40 p.m. when locking a door in the

office building which she had finished cleaning and then at 9.10 p.m. when

she was travelling home on a bus. The claim was rejected by the defendant

on 5 June 2014, primarily on the grounds that her injury did not arise out of or

in the course of her employment and that the incident alleged was not a

significant contributing factor to the recurrence, aggravation, acceleration,

exacerbation or deterioration of any pre-existing injury or disease.

3 The court heard evidence from Mrs Petrovska, her sister, Mrs Bosevska who

worked with her and her husband, Mr Petrovski who collected her from the

train station on the evening of 2 April 2014. The evidence of each was

obtained through the assistance of a Macedonian interpreter. Dr Baglar,

treating general practitioner also gave viva voce evidence. The defendant

called evidence from Ms Zeneli who is employed by the defendant as a

cleaning supervisor. The parties tendered numerous documents, medical

records and reports.

4 The issue to determine is whether the incident occurred at 8.40 p.m. on 2 April

2014 as alleged.

5 Mrs Petrovska gave evidence that she has worked as a cleaner for various

employers since 1989 at 459 Collins Street Melbourne. She said that she

commenced employment with the defendant in March 2007, four hours per

2 DECISION

day from 5 p.m. to 9 p.m., Monday to Friday of each week. She said that her

normal practice was to commence employment at approximately 4:50 p.m. so

that she could leave the premises by 8:50 p.m. in order to catch public

transport home. She gave evidence that the defendant would employ 12 to 13

cleaners at 459 Collins Street and she would be required to clean four floors

over her four-hour shift. She told the court that she would normally work with

her sister, Mara. Her duties involved cleaning, emptying bins, dusting and

vacuuming.

6 Mrs Petrovska gave evidence that at approximately 8:40 p.m. on Wednesday

2 April 2014, she was locking the door of an office on the 15th floor and in

order to do so she bent forward as the lock was situated at the bottom of the

door and as she straightened up, “her right knee twisted she felt pain”. She

said that at the time she was working on her own. She gave evidence that this

was near the end of her shift so she proceeded to take the trolley to the lift to

go down to the ground floor to the cleaners room. She said she left the trolley

in the appropriate area and collected her belongings. She also said that the

other cleaners had gone home except for her sister. Mrs Petrovska gave

evidence that her sister asked her, “what happened to you?” and she told her

that she had injured her knee when locking the door. When asked during

examination in chief as to what prompted her sister to ask that question, Mrs

Petrovska said that her sister had asked her why she was late and she

responded by telling her that she was in pain, could not walk on her leg

properly, could not put a lot of pressure on her leg and was limping.

7 Mrs Petrovska gave evidence that she and her sister walked to the tram stop

outside the building and caught a tram to Parliament Station in order to catch

a train home. She said that the trains were cancelled and they had to wait for

a bus to collect them and transport them to Clifton Hill Railway Station where

they caught a train to South Morang Railway Station and her husband picked

her up. She gave evidence that her sister helped her from the office building

3 DECISION

to the tram stop as she was limping and in pain. She said that walking caused

the pain to get stronger and she experienced more pain when she put more

pressure on her leg getting onto the bus. She told the court that when her

husband picked her up at the railway station she told him straight away that

she had injured her knee and it was painful and her knee was swollen.

8 Mrs Petrovska told the court that she was unable to attend work on Thursday

3 April or Friday 4 April because of the pain she was experiencing and she

was struggling to walk. She said that she rang her supervisor, Ms Zeneli, on

Thursday morning to inform her that she was unable to work that afternoon

because she had a painful and swollen knee. She told the court that she told

her supervisor that she injured her knee when she was going home but said

that she did not tell her “properly” and told the supervisor that she would tell

her what happened when she came in to work.

9 Mrs Petrovska gave evidence that she attended Dr Baglar, her family doctor

of many years, on 3 April and told him that she had twisted her knee after

getting up after locking a door at work the previous day. She told the court that

she converses with Dr Baglar in English. She said that Dr Baglar gave her a

certificate to be off work for two days which she gave to her sister to give to

the supervisor. She told the court that over the weekend of 5 and 6 April, her

knee was so painful that she had to attend the Northern Hospital with her

daughter on Saturday 5 April, was prescribed tablets and x-rays were

performed. She told the court that she informed the hospital staff that the

injury happened at work and that her knee was “more painful when she

caught the bus and that she may have twisted it again”. She told the court that

she conversed with the hospital staff in English. Mrs Petrovska said that she

did not work on Monday 7 April and attended Dr Baglar on that date who

referred her to Mr Owen, orthopaedic surgeon, who she saw, accompanied by

her husband, on Wednesday 9 April. She told the court that Mr Owen

arranged for her to undergo an MRI scan which was performed on 13 April.

4 DECISION

She said that she also told Mr Owen what happened, that being, that she

injured her knee when straightening up after locking a door on the 15th floor.

She told the court that Mr Owen provided her with a certificate on 14 April that

she was unfit for work until 18 April. She said that she attended work on 14

April (subsequent evidence indicates she may have attended on 16 April) and

gave the certificate to Ms Zeneli and told her that she injured her knee “at

work on the 15th floor when locking the door at 8.40 p.m. and as she was

going home it was more painful”. When questioned as to why she did not

provide the supervisor with details of her injury earlier, she said it was

because, “she gets easily upset and it is better if I tell her face to face”. Mrs

Petrovska told the court that after she told Ms Zeneli what happened she was

advised to report the injury by ringing the CARE Hotline number which she

believes she did on 28 or 29 April. (subsequent evidence indicates the call

was made on 29 April). She told the court that she recalls informing Kate on

the hotline number that she had twisted her leg at work and it had become

more painful on her way home and was told that they would send forms to her

for her to complete.

10 Mrs Petrovska gave evidence that she returned to work on 22 April even

though her knee was still painful. She said that she worked with her sister who

provided her with assistance at the direction of Ms Zeneli. She told the court

that after she had called the hotline number she was informed on 29 April that

she was not to attend work until she was 100% fit to do so. Mrs Petrovska

gave evidence that she has not been able to work since although she would

like to try but the defendant has not invited her to do so. She said that her

daughter completed the WorkCover claim form dated 5 May 2014 on her

behalf on the information she gave to her. She told the court that she

underwent arthroscopic surgery performed by Mr Owen on 29 August 2014.

She said that she experiences constant pain in her right knee, takes Celebrex

medication, exercises and walks as recommended by her physiotherapist.

5 DECISION

11 In cross-examination, Mrs Petrovska was asked whether she had any

problems with her right knee prior to 2 April 2014. She told the court that she

may have experienced some aches and pains but could not remember. She

then said; “maybe one morning both knees were hurting and I saw a doctor, I

can’t remember exactly”. It was then suggested to her that she did see her

doctor in 2014 and prior to 3 April and she responded by telling the court that,

“if the doctor writes it was the same year, it must be so”. When it was

suggested that she had 3 days off work following her attendance on Dr Baglar

on 3 March 2014 for knee pain she said that she could not recall. Mrs

Petrovska told the court that she was involved in a car accident in 1997 where

she injured her sternum but could not recall sustaining any other injuries at

any other time. Later she recalled that she previously had an accepted

workers compensation claim for a thumb injury. She confirmed that she

received treatment for her motor vehicle accident injuries at the Austin

Hospital but the only doctor she could recall attending between 2000 and

2014 was Dr Baglar. She denied seeing other doctors for other conditions

apart from women’s problems. Mrs Petrovska told the court that as at the date

of injury she was taking medication for high blood pressure, Nurofen for

headaches, cholesterol medication and Nexium for heartburn. Mrs Petrovska

could not recall if she had been prescribed Celebrex prior to 2 April but was

adamant she never consumed it prior to that date. She did recall experiencing

past heel pain for which she sought treatment from Dr Baglar and Dr Trinca at

the Barbara Walker Centre for pain management at St Vincent’s Hospital. She

told the court that she attended the clinic every six months and that she may

have attended the clinic after suffering injuries in the motor vehicle accident.

She told the court that she recovered from the injuries sustained in the motor

vehicle accident by 2000. Mrs Petrovska denied complaining of feet pain

radiating to her knees before 2 April 2014 and denied that the condition

caused her to limp but eventually agreed that she may have previously limped

when she was informed of an entry made by Dr Trinca in September 2013

6 DECISION

that she had observed Mrs Petrovska with a “significant limp”

12 Mrs Petrovska agreed that she had been shown medical records indicating

that she had complained of knee problems prior to 2 April 2014. When

questioned as to whether she complained of knee pain to her doctor on 3

March 2014, she said that it was possible she did but it did not require time off

work. When told that she was prescribed Celebrex medication at that time,

she informed the court that she did not consume it. Ultimately, when

presented with a copy of her Leave Application Form dated and signed by her

on 6 March, requesting 3 days off work, she agreed that she had that time off

because of knee pain. Mrs Petrovska also agreed that she attended Dr Trinca

on the morning of 2 April complaining of a recent exacerbation of chest pain

and back pain. She also agreed that she informed Dr Trinca that she had

increased her use of Celebrex and Nurofen Plus and was taking tramadol.

She then said that she was prescribed Celebrex but did not take it and that Dr

Trinca’s notation was wrong. Mrs Petrovska agreed that notices were

displayed in the cleaners room at 459 Collins Street as to the procedure

involved in reporting an injury to the hotline number. She also agreed that the

number of the hotline was displayed on the keys given to cleaners to enter

offices in that building. She confirmed that the cleaners were required to sign

on and off when commencing and finishing work each day.

13 Mrs Petrovska gave evidence during cross-examination that she would

normally clean the floor levels in the same order with level 15 being the last

floor that she cleaned. She said that she had to clean two offices on level 15

and in order to gain access to the office she would use a swipe card and key.

She confirmed the evidence she gave during examination in chief that she

initially hurt her right knee when she twisted it when bending to lock the office

door and further twisted it when she was getting onto a bus at Parliament

Station. She said that it was already painful before she got on the bus but

“thought” she may have twisted it again.

7 DECISION

14 Mrs Petrovska also confirmed during cross-examination that when she

attended Dr Baglar on 3 April, she was accompanied by her husband. She

was adamant that she told her doctor that she injured her right knee when she

was locking the office door at work and was also adamant that she provided

this history to the doctors when she attended the Northern Hospital with her

daughter on 5 April. She confirmed that her husband accompanied her when

she first saw Mr Owen on 9 April 2014 and that she also told him that she first

injured her knee when she was locking the office door and then on her way

home. She disputed that she did not tell him that her injury was work related

until after she had surgery on 29 August 2014 and could not recall telling Mr

Owen that she had no past history of knee complaints. Mrs Petrovska denied

that she did not report the injury to her supervisor prior to her ringing the

hotline on 29 April. She told the court that she reported the injury to her

supervisor by phone on 3 April when she told her she twisted her knee and

that she also reported the injury to her in person on 14 April. When it was

suggested to her that she actually informed her supervisor that she had

twisted her knee on the way home from work, she replied by stating that she

said that she had “twisted her knee”. Mrs Petrovska was then asked to explain

why she had informed the investigator who had obtained a signed statement

from her on 20 May 2014, that she had explained everything to her supervisor

for the first time on 22 April 2014. Once again she informed the court that she

recalled informing her supervisor of what occurred on 14 April. Ultimately, she

agreed that she did not tell her supervisor during the telephone call with her

on 3 April because she; “was in pain and not thinking” as she had told the

investigator on 20 May but added that she may have “misunderstood” what

the investigator was asking. Mrs Petrovska was also challenged on her

evidence that her supervisor arranged for her sister to work with her when she

returned to work on 22 April. She informed the court that her supervisor told

her sister to help her because of the knee pain she was experiencing. When

questioned as to why she did not ring the hotline until 29 April to report her

8 DECISION

injury, she told the court that she thought that she would be “all right”. When it

was suggested to her that she could have called the hotline on 22 April when

she returned to work she responded by informing the court that she did not

have the telephone number although agreed the number was displayed on a

notice in the cleaners room and on the key ring she used to access the

offices. She conceded that she was aware of her obligation to report injuries

to the hotline as the requirement was displayed on notices in the cleaners

room and was also mentioned at regular toolbox meetings. She agreed that

she was angry when she was told on 29 April that she could not work until she

was well, agreed that she wanted to work on that day and also agreed that her

supervisor did ask her on that day as to why she did not report to her that she

had sustained a work injury. Mrs Petrovska gave evidence that she did not do

so because her supervisor “gets easily upset”, and that she did not tell Jason,

the Manager about it, because “she was scared of losing her job”.

15 Mrs Petrovska could not recall denying a past history of knee complaints

when she saw Dr Davison on behalf of the defendant on 29 May 2014 and Mr

Kossmann who she saw on behalf of her lawyers on 6 February 2015. Mrs

Petrovska was also taken to various paragraphs in her statement to the

investigator and agreed that she told the investigator that; “I have never

previously lodged a Workcover claim”; “I have never suffered from a similar

injury or condition before”: “I called Ifeta (the supervisor on 3 April) when I got

back from this appointment and told her that I had hurt my knee. I think I told

her it was getting on the bus and I don’t think I told her about the door. I was

in pain and not thinking. I told Ifeta that I had twisted my knee”; and, “On 22

April 2014 I went to work as normal for my shift. I managed to hobble to work

and do my shift slowly. Ifeta was there and I then explained everything that

had happened. I then told her about the twisting my knee locking the door and

the locking of my knee when I went to catch the bus. I worked the 22nd, 23rd

and 24th that week”. Although agreeing that the statement was read to her

before she signed it she told the court; “how much I understood, I do not

9 DECISION

know”. She also told the court that when she made the statement she was

alone and did not have the assistance of an interpreter. In concluding cross

examination, it was suggested to Mrs Petrovska that she told her supervisor

that the injury occurred on her way home because that’s what actually

happened. She responded by saying; “it happened that night, at work and

then getting on the bus”. When it was also suggested to her that she told the

Emergency Department at the Northern Hospital that the injury occurred whilst

walking because that is what happened, she responded by saying; “I told

everyone it happened at work and on my way home”.

16 Mrs Bosevska, gave evidence that she has been employed as a cleaner

working at 459 Collins Street for a period of 25 years. She told the court that

she worked with her sister on 2 April 2014 and that they travel to and from

work together by train. She said that when she finished work she saw her

sister downstairs in the cleaning room at approximately 8:50 p.m. and her

sister told her that she had hurt her knee on level 15 when locking the office

door. She confirmed that the locks are placed at the bottom of the door and

you have to get on your knees to lock them. Mrs Bosevska told the court that

she noticed her sister was limping and that when they finished work she

helped her get onto the tram outside the building and was assisting her by

holding her hand because she was complaining of right knee pain. She

confirmed that they caught the tram along Collins Street to Parliament Station

but then had to catch a bus to go to Clifton Hill Railway Station as no trains

were running from Parliament Station. She said she helped her sister get onto

the bus. She said that once they arrived at Clifton Hill Railway Station they

caught the train to South Morang Railway Station where her sister was met by

her husband. Mrs Bosevska said that she recalled working with her sister

when she returned to work for a couple of days and was told to do so by the

supervisor.

17 In cross-examination, Mrs Bosevska agreed that she and her sister have a

10 DECISION

close relationship, live close by and socialise on occasions. She told the court

that she recalled her sister being involved in a motor vehicle accident many

years ago but was unaware of the injuries she sustained and was also

unaware as to whether she was still receiving medical treatment as a result of

that accident. She told the court that she was unaware as to whether her

sister had sustained previous injuries to her knee or whether she had any

other medical problems requiring treatment. She gave evidence that she

found out that her sister was not at work on 3 April when she was told by the

supervisor and agreed that she subsequently took a certificate of incapacity to

work for her. She gave evidence that she did not ring her sister to find out how

she was feeling because she “did not have time to do so”.

18 Mrs Bosevska gave evidence that the cleaners normally leave work together

when they have finished their shift and sometimes they are on the same tram

and train on the journey home. She said that on the evening of 2 April it was

only herself and her sister on the tram and she did not see any of their co-

workers waiting at the train station. When told that her sister had given

evidence that she had twisted her knee on her journey home, Mrs Bosevska

said that she injured her knee on level 15 and was not aware that she had

injured her knee on her way home. She told the court that when her sister

returned to work the supervisor asked her to work with her in order to help.

She said this conversation occurred in the cleaners room. She told the court

that she first helped her sister clean her floors and then she cleaned her floors

over the four hour shift period. She said that in order to do this she started

work half an hour earlier over the 2 or 3 day period that her sister returned to

work. She said she did this at the request of the supervisor and with her

permission. When questioned further, Mrs Bosevska said that she did not

work for 4 hours on her sisters allocated floors but was unable to recall how

long she helped her sister on her floors. She then told the court that they

worked together at the same time and after they finished her sisters floors

they then cleaned hers. When questioned as to the work her sister performed

11 DECISION

on her floors she said that she believed she rested because of her leg pain.

When questioned as to where she rested she said she did not know and was

confused. Mrs Bosevska then told the court that her sister came with her

when she was cleaning her floors but was not sure where she might have

rested.

19 Mrs Bosevska was questioned regarding the procedure of signing in when

commencing work and signing off when finishing work. She initially told the

court that if she started early she would sign in at 4:30 p.m. or 4:40 p.m. but

then said she would always sign in at 5 p.m. even though she may have

started earlier as that’s the way they did it.

20 Mr Petrovski gave evidence that he picked up his wife from the train station

on 2 April at approximately 10 p.m.. He told the court that he observed her

limping and asked her what happened and she told him that she injured her

right knee when she was locking the door at work. He said that when they

arrived home he questioned her further and she told him that she locked the

door and when she got up her right knee twisted. He confirmed that he took

her to Dr Baglar on 3 April and he assisted her into the consultation room as

she could not walk on her own. He gave evidence that she told Dr Baglar that;

“she injured at work and when went home on the train she caught bus and

felt more pain in bus”. He also confirmed that he attended the appointment

with Mr Owen on 9 April and that she told Mr Owen that she injured her knee

when locking the door and she felt further pain when she was on the bus. Mr

Petrovski gave evidence that they conversed with Mr Owen in English. He

also told the court that he recalled that his wife saw Dr Baglar in March 2014

about her knees and x-rays were arranged. However, he said he could not

recall her complaining of pain in her knee before 2 April.

21 In cross-examination, Mr Petrovski said he recalled that his wife experienced

pain in the heels in 2013 and that she found it hard to walk. He said he could

not recall her limping but recalled she was taking various medications before 2

12 DECISION

April 2014. He said he also recalled that she complained of back pain before 2

April. He disputed that his wife did not tell Dr Baglar that the injury occurred at

work. He said she told the doctor that she twisted it at work and that she had

more pain when she was stepping on the bus. When told that Mr Owen

recorded a history that she was hurt “whilst walking home last week”, Mr

Petrovski suggested that Mr Owen may have misunderstood what he was

being told.

22 Ms Zeneli gave evidence that she has been employed as the cleaning

supervisor at 459 Collins Street for a period of 3 years and works from 1 p.m.

to 9 p.m., Monday to Friday. She told the court that she has 17 cleaners who

are under her supervision and that each cleaner normally cleans four floors of

the building. She told the court that signs are placed in the cleaners room

reminding them of the company policy regarding reporting injuries and also

notification of the telephone hotline number to ring if any incidents or injuries

occur. She said that the hotline number is also displayed on the key rings

given to all cleaners which they use to access the offices. She told the court

that she first became aware that Mrs Petrovska alleged that she sustained

injury on the 15th floor when she was contacted by a person from Allianz. She

said that she became aware that Mrs Petrovska contacted the hotline at the

end of April when she was told by the manager that she had done so. She

said that when talking to Mrs Petrovska they normally converse in the

Macedonian or Serbian language.

23 Ms Zeneli told the court that Mrs Petrovska rang her on 3 April and told her

that she would not be attending work that afternoon because she had “a fall in

the tram”. She recalled that she next spoke to Mrs Petrovska on 9 April when

she told her that she would not be at work that week and that she wanted to

apply for 2 weeks annual leave. She said that Mrs Petrovska rang again later

that week to check that she had received the Leave Application Form from her

sister. She gave evidence that she rang Mrs Petrovska on the 14th or 15th of

13 DECISION

April to discuss her sick leave entitlements and on 16 April, Mrs Petrovska

attended work to check on her sick leave entitlements and told her that she

would take annual leave, filled in a form to do so, gave her a certificate that

she was unfit for work until 18 April and would return to work on 22 April. By

reference to attendance record documents she confirmed that Mrs Petrovska

was absent on sick leave between 3 and 21 April 2014. She told the court that

when Mrs Petrovska returned to work on 22 April, she did not speak to her

prior to her commencing her shift.

24 Ms Zeneli said that it was the usual practice for Mrs Petrovska and her sister

to work together and that she did not arrange for them to do so because of her

complaint of right knee pain. She said that although they had a separate

allocation of floors to clean they often worked together.

25 Ms Zeneli gave evidence that she received a call from her office manager on

29 April to inform her that that Mrs Petrovska had contacted the CARE hotline

number to make an Incident report. She gave evidence that she told Mrs

Petrovska that she could not work until she received a clearance from her

doctor. She said that Mrs Petrovska was very angry because she wanted to

work.

26 In cross examination, Ms Zeneli agreed that sometimes the cleaners start

work early, in order to finish early. She conceded that when the cleaners take

sick leave they do not always inform her of the full details of their sickness.

She told the court that toolbox meetings are held each month and she always

reminds the cleaners of the CARE number to call if any incidents or injuries

occur. She disputed that Mrs Petrovska told her on 3 April that she would

provide full details of what happened when she attended work. She said that

when Mrs Petrovska rang her on 3 April she told her that she would not be

attending work and that she had a fall on a tram and would provide a medical

certificate which would be given to her by her sister. She said that she was not

told by Mrs Petrovska that she had twisted her leg. She also disputed that Mrs

14 DECISION

Petrovska told her of the injury occurring at work when she attended on 16

April and confirmed that she was not aware of any such incident until she was

told of the incident report made by her to the Care hotline on 29 April. She

also disputed that she arranged for Mrs Bosevska to work with Mrs Petrovska

when she returned to work on 22 April in order to assist her because of her

knee pain.

27 Dr Baglar gave evidence and extracts of his clinical notes and medical

reports prepared by him dated 4 July 2014, 8 July 2014 and 13 April 2015

were tendered. The medical records indicate that Mrs Petrovska attended on

3 March 2014 with a complaint of bilateral knee pain and morning stiffness

and was referred to have x-rays performed. On 5 March she attended to

discuss the results of the x-rays which indicated no abnormality with a

notation that she was to try Celebrex medication. On 3 April she attended

with a history recorded that she twisted her right knee yesterday, was feeling

pain, tender and swollen. She was prescribed Celebrex and Tramal. On 7

April, it was recorded that she fell on her knees with her right knee painful,

swollen and tender. On 17 April, Dr Baglar recorded that she had medial

meniscus degeneration, required arthroscopic repair and surgery. On 29 April

is was recorded that an arthroscopy was proposed and that she is to lodge a

WorkCover claim and was counselled. On 30 April, it was recorded that she is

to lodge WorkCover forms, she was counselled and prescribed Celebrex and

told to rest.

28 In his report dated 4 July 2014, Dr Baglar stated; she first contacted me on 3

April 2014 for her current condition and stated that she twisted her right knee,

previous day while doing cleaning (my initial entry states that she fell at work

but upon close questioning during the following consultation, it was clarified by

her that there was no actual fall but it was an incident of twisting her knee.

She finished her cleaning tasks and she bend down to lock the building.

Whilst as she got up from the bent down position, her right knee was twisted.

15 DECISION

Apparently, the lock was placed low and to lock it she had to bend down).

Although Zora felt a pain at the time of her injury, she was not concerned

much at that time and when she was catching a bus to go home, just after 9

PM, she twisted her right knee again.

29 Dr Baglar reported that an x-ray performed on the following day was normal

and there was no evidence of arthritis. He noted that he referred her to Mr

Owen, orthopaedic surgeon who arranged for an MRI of the right knee which

revealed a small to moderate sized joint effusion along with degenerative

articular surface fraying at the superior margin of the posterior horn of the

medial meniscus associated with chondral thinning and surface fraying at the

adjacent medial femoral condyle. A possibility of a tiny tear was also

discussed in the report. Dr Baglar reported that when she found out the extent

of the damage in her knee, she decided to lodge a WorkCover claim. He

opined that although it was undeniable that she had a pre-existing condition in

her right knee, the degree of degeneration and fraying in the posterior horn of

the medial meniscus does not happen overnight and with the act of single

twisting. However, he noted that until the incident on 2 April, she was

asymptomatic and able to work and the twisting as reported by her most likely

caused further damage to the already weakened cartilage and rendered her

symptomatic and led to her current disabled state. He therefore considered

that the described injury and her employment was a major contributing factor

in her condition.

30 In his report dated 13 April 2015, Dr Baglar confirmed that she underwent

arthroscopic surgery on 29 August 2014 with Mr Owen noting that her medial

meniscus had a complex tear. When giving evidence, Dr Baglar stated that

when he sees Mrs Petrovska they converse in English. He told the court that

ideally he tries to record everything that is said by his patient including the

cause of the problem so that he can plan their treatment. In cross

examination, he told the court that he is the only doctor at the clinic and it is

16 DECISION

very busy and estimated a standard consultation would take on average, 15 to

20 minutes. He said that usually Mrs Petrovska would attend appointments

accompanied by her husband and he understood that it was important to take

a full and accurate history from patients as to the cause of their particular

medical problem so that he can work out the best way to deal with it. He said

that he is familiar with the WorkCover system as he has many patients who

are on WorkCover and therefore appreciates that it is important to take

accurate notes. Dr Baglar gave evidence that Mrs Petrovska has been

attending the Barbara Walker clinic for many years as a result of back pain

caused in a motor vehicle accident. He confirmed that he has previously

prescribed Celebrex medication for her. He stated that she has suffered from

shoulder, knee, hypertension and other problems over the years and recalled

that she experienced pains in her legs and feet one month before April 2014.

He said that she has also previously suffered from spurs and plantar fascitis.

31 Dr Baglar was referred to and acknowledged receiving numerous reports from

the Barbara Walker Centre which indicates that Mrs Petrovska had attended

the clinic since 2008 for numerous conditions including; pain in both feet

radiating up the leg to the knee (13 June 2008); pain in the right foot with x-

rays of the feet indicating calcaneal spurs and complaints of tenderness in the

plantar fascial area (7 June 2011); tendonitis of the right ankle as

demonstrated on ultrasound (29 July 2011); pain in the right heel (13 February

2013); plantar fascitis (8 March 2013); increasing pain in the right foot

suggestive of ongoing plantar fascitis – really struggling with quite a significant

limp (11 September 2013); chest pain and back pain with an increase in use

of Celebrex and Nurofen Plus – headache, leg pain and generalised pain

better but waking up stiff and sore every day (2 April 2014).

32 Dr Baglar confirmed that the first mention of Mrs Petrovska lodging a

WorkCover claim occurred on 29 April 2014. When questioned as to the first

occasion on which she told him that she had twisted her knee at work he said

17 DECISION

that it was in the “early stage”. He then told the court that she told him that she

had twisted her knee at work when he first saw her on 3 April and that he

made a mistake by recording that she told him that she fell on her knees when

he saw her on 7 April. He explained his error by telling the court that when he

understood that the matter was to be a medico legal case he questioned Mrs

Petrovska more thoroughly regarding causation and that is why he corrected

himself to change the history from a fall to a twisting injury. He said that Mrs

Petrovska initially did tell him it was a fall but he corrected that later to be

twisting. He denied that the correction was made as a result of Mrs Petrovska

later telling him what had occurred and said that he was confused earlier at

her first consultation with him on 3 April.

33 A medical report from the Emergency Department of the Northern Hospital

was tendered. The report indicates that Mrs Petrovska attended at 12:42 PM

on Saturday, 5 April 2014. It records that the presenting problem was; painful

right knee post walking and twisting on it, associated difficulty walking,

associated numbness post, Nil falling, taken Celebrex.

34 Medical reports from Mr Owen, orthopaedic surgeon, dated 10 April 2014 and

18 December 2014 was tendered. In his report to Dr Baglar dated 10 April he

noted that she hurt the knee while walking home last week. The knee

suddenly became sore to the point where she couldn’t walk on it, nor could

she move it….she didn’t have any problems with the knee prior to this trouble

last week. In his report dated 18 December to Zaparas Lawyers, Mr Owen

noted that he first saw Mrs Petrovska on 7 April 2014 on referral from Dr

Baglar. He obtained a history that she was walking home a week ago and

suddenly her right knee became sore, locked and she could not weight bear

on it. He reported that an MRI scan indicated a torn medial meniscus. He

performed arthroscopic surgery on 29 August 2014 which indicated she had a

complex tear of the medial meniscus which was resected back to a stable

base. On 5 November 2014, he believed she could return to work as a

18 DECISION

cleaner. He reported that she then told him that it was a WorkCover matter

and that she had originally twisted the knee at work in a hyper extension type

injury, as well as twisting it on the bus on the way home from work. He also

reported that she initially did not tell him that the injury was at work and

subsequently after the surgery did say it was at work and therefore given the

circumstances in the way the story has unfolded he was unable to absolutely

attribute her tear to a work injury.

35 Mr Kossmann, orthopaedic surgeon, assessed Mrs Petrovska on behalf of

her lawyers on 6 February 2015. He obtained a history that at approximately

8:40 p.m. on 2 April 2014, when she was locking up the offices on the 15th

floor, she bent down to lock the door lock, which was situated on the bottom

edge of the door, and as she straightened her right knee, the right knee

twisted and became acutely painful. She also told him that she informed her

sister that she was running late on account of twisting her knee and after they

left the building she needed the assistance of her sister to help her on the way

home. She also told him that whilst she was getting onto a bus at proximally

9:10 p.m. she had a further twisting injury to her right knee. Mr Kossmann also

reported that she informed him that she had no musculoskeletal symptoms

prior to the injuries sustained on to April 2014 including symptoms in the right

knee although she had a past history of hypertension, hypercholesterolemia

and dyspepsia. After referring to radiological investigations he diagnosed that

she sustained an acute medial meniscus tear of the right knee and

aggravation and exacerbation of medial and patellofemoral osteoarthritis of

the right knee. He expressed the opinion that it was possible she could return

to full-time work after a trial period of part-time work although she was likely to

continue to experience knee pain which should not prevent her from returning

to full-time work in her previous role as a cleaner.

36 Dr Davison, occupational physician, assessed Mrs Petrovska on behalf of

Allianz on 29 May 2014. He reported that Mrs Petrovska denied any previous

19 DECISION

history of problems with her right knee and informed him that she was locking

up the 15th floor offices at 8:40 p.m. on 2 April 2014 and that as she knelt

down on her left knee to lock the door and got up somehow she twisted her

right knee. She then told him that as she got on the bus to go home she again

twisted her right knee which became more painful. She told him that her knee

locked up and on the journey back to her home the pain was worse and

worse. He noted that her examination was dominated by pain and illness

behaviours as well is inconsistency. He thought her presentation seemed out

of proportion to the MRI findings. He opined that her condition was due to

degeneration of the medial compartment of the right knee, evident on MRI

scanning on 14 April 2014 and that her condition was pre-existing. On the

basis of the history that she sustained an injury to her knee while travelling

home by bus and did not report having suffered any injury in the context of

workplace activity, he considered it unlikely that locking the door at work

would have caused any aggravation, acceleration or deterioration of the pre-

existing medial compartment degeneration.

Conclusion

37 I did not form a favourable impression of Mrs Petrovska, her sister or her

husband. I did however find Ms Zeneli to be a credible and honest witness.

After considering the evidence given by each of the witnesses, including Dr

Baglar, and the contemporaneous documentation tendered, leads me to

conclude that the incident alleged to have occurred in the workplace at 8.40

p.m. did not in fact occur. Mrs Petrovska has failed to discharge the onus of

proving on the balance of probabilities that she sustained injury which arose

out of or in the course of her employment as she alleges.

38 Mrs Petrovska was evasive at times when giving evidence particularly when

questioned as to the sequence of events after leaving work on 2 April 2014.

She provided differing versions as to what caused her pain to worsen after

ceasing work. Initially, she told the court that walking to the tram stop caused

20 DECISION

her pain to get stronger and then when she put more pressure on her legs

including getting onto the bus at Parliament Station. She told the court that

she informed staff at the Northern Hospital that her knee was more painful

when she caught the bus and that she may have twisted it again. She told the

court that she informed Ms Zeneli on 14 April (more likely 16 April) and Kate

to whom she spoke at the CARE hotline that her knee was more painful as

she was going home. In cross examination, she told the court that she

“thought” she suffered a further twisting injury to the right knee when she was

getting onto the bus at Parliament Station.

39 The evidence she gave to the court needs to be compared to what is

contained in the contemporaneous medical records. The records of Dr Baglar

indicate that the injury occurred as a result of twisting her right knee (3 April)

or that she fell on her right knee (7 April). The records of the Northern Hospital

indicate her right knee problem was caused post walking and twisting on it (5

April) and the report of Mr Owen indicates that she told him that she hurt her

knee while walking home (9 April). I do not accept the evidence of Mrs

Petrovska or her husband that she gave Dr Baglar and Mr Owen a full

description of how her injury occurred at her first consultation with them as

she alleged in court. Whilst I appreciate that what is contained in the medical

records cannot be relied on as a verbatim record of what the worker said

during the consultation1, the absence of the specific alleged causes of injury

as stated by Mrs Petrovska in evidence in combination with the other

discrepancies revealed during the running of the case, leads me to conclude

that what is contained in those records is an accurate account of what she told

the doctors at the time. If the “door locking incident” has occurred there is no

plausible reason for her not telling the doctors of it and them recording that

history. Furthermore, I do not accept the evidence of Mr Petrovski that his wife

told Mr Owen about the “door locking incident”. If she had, he would have

recorded it.

1 See Woolworths Ltd v Warfe [2013] VSCA 22 at para 112.

21 DECISION

40 Although mindful that an interpreter was not present when Mrs Petrovska

attended consultations with Dr Baglar, the Northern Hospital and Mr Owen, it

appeared to me that her English skills were adequate as she managed to

understand and answer questions in English, particularly when she became

agitated. The medical records indicate that she has been able to communicate

in English as there is no record of an interpreter accompanying her to any of

the medical appointments she has attended, be that with Dr Baglar over a 20

year period or at the Barbara Walker Centre since 1997. Furthermore, the

WorkCover claim form completed on her behalf by her daughter indicated that

she did not require the assistance of an interpreter.

41 Mrs Petrovska’s credit was also diminished by her evidence denying receiving

regular medical treatment before 2 April 2014 until she was presented with

documentary evidence to the contrary. Her credibility was also tarnished by

denying past knee complaints, including on 3 March 2014, until she was

presented with evidence to the contrary. Her explanation for failing to provide

Ms Zeneli with a complete history of what she alleged occurred when she

telephoned her on 3 April is not accepted by me as being truthful. I find that

she was aware of her responsibility to report a work-related injury as soon as

possible and that she was aware of the procedure to do so. I accept the

evidence of Ms Zeneli that she was not aware of the “door locking incident”

until 29 April after she was informed that Mrs Petrovska had made a report to

the hotline that day. The evidence of Mrs Petrovska that she did not call the

hotline when she returned to work on 22 April because she did not know the

number is not accepted by me as being truthful considering that the number

was displayed on notice boards at the work premises and on the key rings she

used to access offices in the building.

42 I found the evidence given by Mrs Bosevska was tailored to give support to

her sisters claim. On a number of occasions during cross examination, she

was hesitant before answering questions and paused to look at her sister for

22 DECISION

what appeared to be guidance before doing so. I do not accept her evidence

as being truthful that she noticed her sister limping immediately on leaving

work on 2 April 2014 and that her sister told her of the “door locking incident”

at that time. I do not accept her evidence that Ms Zeneli asked her to give

assistance to her sister when she returned to work on 22 April because of her

knee injury. It appeared to me that Mrs Bosevska only changed her evidence

concerning the time she ‘signed in’ on the Attendance Record when she

realised that there may be documentary evidence to the contrary. I found her

evidence confusing and contradictory concerning what work she and Mrs

Petrovska did when Mrs Petrovska returned to work on 22 April. I did not

accept her a being a witness of truth.

43 I do not accept the evidence of Dr Baglar that he confused the early entries in

his medical records regarding causation. In cross examination, he conceded

that he obtained a more complete history from Mrs Petrovska during

subsequent consultations. I find that it is more probable that he recorded what

he was actually told by her on 3 April but the subsequent discussions with her

caused him to be convinced that she actually told him the “full story” on 3

April.

44 Accordingly, for the reasons given I do not accept the evidence of Mrs

Petrovska that the “door locking incident” occurred. I find that she aggravated

her pre-existing degenerative knee condition resulting in a tear of the medial

meniscus during her journey home after ceasing work on 2 April 2014. On this

basis, I find that she did not in fact sustain an injury which arose out of or in

the course of her employment with the defendant.

45 The proceeding is dismissed.