Adao and Australia Postal Corporation
[2007] AATA 1016
•22 January 2007
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1016
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/184
GENERAL ADMINISTRATIVE DIVISION ) Re MARY-LOU ADAO Applicant
And
AUSTRALIA POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr J Campbell, Member
Air Vice Marshal F D Cox, AO (Ret’d), MemberDate22 January 2007
PlaceSydney
Decision The decision under review is affirmed.
(Sgd) M.D. ALLEN
...........................................
Presiding Member
CATCHWORDS
WORKERS COMPENSATION – claim for permanent impairment for “aggravation of underlying arthritis and medial meniscus tear” – Applicant predisposed to osteoarthritis – no discrete incident or trauma to the Applicant’s knee – whether the Applicant’s activities as a Postal Delivery Officer caused or contributed to an aggravation of her condition – Tribunal satisfied based on medical opinion that the Applicant’s condition was by its very nature progressive and that her duties did not cause any additional symptoms – decision under review affirmed.
Safety, Rehabilitaion and Compensation Act 1988 – sections 4, 14, 24, 27
Telstra Corporation Ltd v Hannaford [2006] 151 FCR 253
Comcare v Canute (2005) 148 FCR 232
Zikar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310
Federal Broom Co. Pty Ltd v Semlitch [1964] NSWR 511
REASONS FOR DECISION
22 January 2007 Senior Member M D Allen
Dr J Campbell, Member
Air Vice Marshal F D Cox, AO (Ret’d), Member1. By application made the 21st day of February 2006, the Applicant sought review of a "reviewable decision" made the 17th day of February 2006, which decision affirmed prior determinations denying further liability for the condition described as "aggravation of underlying arthritis and medial meniscus tear", and refusing a claim for compensation in respect of permanent impairment arising from the said condition.
2. The Applicant originally commenced working for Australia Post in June 1999 as an employee of a labour hire company ADECO. Her duties at that time were sorting mail and delivering mail to commercial premises at the Chatswood Shopping Centre. The mail delivery took approximately 2.5 hours. In performing these duties the Applicant pushed a trolley and at times used a backpack.
3. In March 2001, the Applicant was accepted for full-time employment with the Respondent. Prior to commencing permanent employment she undertook a comprehensive medical examination and was passed fit for the duties of her employment. Her duties also changed in that she was required to deliver mail to residential areas of Chatswood in addition to her previous route. The additional duties extended the time spent at delivering mail to 3.5 to 4 hours per day. She estimated that at times her mail trolley carried a weight of 20 kg.
4. By September 2001, she began to notice discomfort in her left knee after delivering mail; also her knee began to swell at the end of the day and she began to take time off from work.
5. On 4 October 2001, she consulted a Dr Nguyen who is apparently an Australia Post nominated doctor. The Applicant stated that this consultation followed a night during which she experienced severe pain in her left knee and was unable to sleep. She also stated that she was unable to position the knee so as to make it comfortable; even the use of a pillow behind the knee failed to give relief. The Applicant was prescribed Brufen but she ceased taking this medication because of an allergic reaction.
6. The Applicant continued with her normal work but continued to experience ongoing discomfort and swelling affecting her left knee. In March 2002, her delivery area was reduced, and in June 2002, she moved from being a Postal Delivery Officer into a night sorters position. In this job she found that unloading mail caused her to suffer pain in the left knee, so that by November 2002 she had been excused unloading duties.
7. Dr Nuygen referred the Applicant to Orthopaedic Surgeon, Dr Bruce, who examined the Applicant on 12 February 2003. Following an MRI scan conducted on 20 February 2003, Dr Bruce diagnosed osteoarthritis of the left knee together with a medial meniscal tear. On 29 October 2003, Dr Bruce performed an arthroscopy on the left knee. Following this procedure the Applicant had a graduated return to work together with physiotherapy, and currently is still employed as a night sorter.
8. As has been pointed out by those medical practitioners who have given evidence in this matter or furnished reports, osteoarthritis is a degenerative condition and the Applicant was predisposed because of her constitutional varus alignment. As a result of her osteoarthritis, she suffered a tear of the medial meniscus. In the Applicant's case she can point to no incident which would indicate an acute tear of the meniscus, but the medical evidence postulates that the tear developed as a result of the degenerative process in the knee. In the absence of specific trauma to the knee, the question for the Tribunal is whether the Applicant’s activities as a Postal Delivery Officer caused or contributed to an aggravation (which term in s 4 of the Safety Rehabilitation and Compensation Act 1988 includes acceleration) of her condition.
9. As pointed out by Drs Caldwell and McGill for the Respondent and Dr Bruce in his report to the Applicant's solicitors, either a tear in, or the removal of, the medial meniscus will accelerate the osteoarthritic process.
10. Dr Bruce was the Applicant's treating surgeon. In a report dated 16 July 2003, he took a history of pain and swelling in the left knee commencing in September 2001, but with no acute injury. Following an MRI scan he diagnosed a tear of the medial meniscus and osteoarthritis in the left knee. In that report, which was to the Applicant's solicitors, he discussed causation in the following terms:
“It has been shown that the risk factors for the development of osteoarthritis of the knees are:
· obesity
· heavy manual labour
· knee injury
This is supported by the following articles …
In view of the fact that postal work is not generally regarded as heavy manual labour, I think it is unlikely that this is the cause of her chrondal wear but it could be."
11. Apparently the Applicant's solicitors were not satisfied with this report (and we note that Dr Bruce was not called by the Applicant). On 19 August 2003, Dr Bruce again wrote to the Applicant's solicitors stating:
"In answer to your specific questions, I am not sure why you are unclear on my opinion as to the relationship between your client's condition and her employment. Standing is not a heavy manual job and takes less than 2 times body weight through the knee.
Walking, i.e. delivering mail, takes approximately 2 to 3 times body weight through the knee and is not regarded as heavy manual work. You say that she delivered mail in the Chatswood area which was extremely hilly terrain. She therefore may have taken 3 to 4 times body weight through the knee. Heavy manual labour would take 4 to 6 times body weight through the knee.
It the patient tore her meniscus at work there could be damage to the articular surface regardless of whether this was a heavy or light job. Therefore it is conceivable that her job in Australia Post was a contributing factor in the wear of her knee.”
12. In the absence of Dr Bruce, we interpret his comment regarding work conceivably being a contributory factor, as an opinion that the osteoarthritis may have been contributed to by work if it could be shown that the meniscus tore whilst at work.
13. The Respondent did accept responsibility for the arthroscopy performed by Dr Bruce. The decision accepting liability for injury and resultant medical expenses was accepted by a reconsideration decision dated 4 September 2003, and was based upon a report by Dr Caldwell, Orthopaedic Surgeon.
14. The fact that the Respondent accepted liability for an injury does not mean that at a later time it can resile from that decision and argue that an injury was not work caused – see Telstra Corporation Ltd v Hannaford [2006]151 FCR 253.
15. The report of Dr Caldwell noted that an x-ray taken on 23 February 2002, of the Applicant's left knee showed osteoarthritic changes, and the later MRI scan showed a tear of the medial meniscus, being of the nature of a "classic degenerative tear", adding, "she has a ceptated parameniscal cyst which indicates chronicity of her problem and is more consistent with a two year history of medial meniscus tear." His diagnosis was of a "medial meniscal tear with medial meniscal cyst and mild underlying osteoarthritis". He then added:
“1. Diagnosis – Medial meniscal tear with medial meniscal cyst and mild underlying osteoarthritis.
…
5. One could only consider this is an aggravation or deterioration of her pre-existing condition. It is undoubtedly that she has a constitutional varus alignment which has led to development of increased loading in the medial compartment. This has been associated with wear on the bearing surface and degeneration in the medial meniscus. There is no doubt that the regular walking, squatting, kneeling and lifting to contribute to wear in the medial compartment but in this sense it could only be considered as an aggravation or deterioration in the pre-existing condition. She will have continuing incapacity for work until appropriate surgery is undertaken."
16. Dr Caldwell went on to add under the heading "Comment":
“Following appropriate meniscectomy and removal of the meniscal cyst this lady will be able to return to full levels of work. Unfortunately the unfairness of the workers compensation, is such that her inability to identify an injury or date, means that she is unlikely to get this treated under workers compensation. It may be in the Post Office best interest to agree to the arthroscopy but to deny liability for the long-term osteoarthritis."
In evidence he adhered to this view, stating that given the Applicant's varus alignment the Applicant had "wear and tear" in her left knee from her life experience.
17. Questioned by the Tribunal, Dr Caldwell stated that the tear in the Applicant's mediae meniscus was a degenerative tear that may have been contributed to by work, in that work accelerated the process. He confirmed that he had taken no history of any identifiable event. More importantly, however, in cross-examination he maintained that osteoarthritis will be accelerated by obesity or injury, or loss of the meniscus due to injury. He further stated that high activity levels are not associated with the osteoarthritis.
18. In a report dated 4 September 2003 to the Applicant's solicitors, Dr Blake, Orthopaedic Surgeon, noted that the Applicant had joined a gymnasium about four months before the onset of her left knee symptoms but cancelled that membership in November when symptoms developed in her left knee. After examination and viewing of the x-ray of 23 February 2002 and the MRI scan of 20 February 2003, he diagnosed degenerative osteoarthritis of the left knee associated with a horizontal tear of the medial meniscus of gradual spontaneous onset.
19. As to causation, Dr Blake opined:
“In my opinion the development of the degenerative arthritis on the inner side of the left knee, by the information available, has been of a constitutional nature. However, the more demanding compliments of Ms Abarin’s (sic) work as a postal delivery officer, have brought the condition to light and produced symptoms and disability, earlier than might have occurred were she undertaking work physically less demanding on her legs."
20. Orthopaedic Surgeon, Dr Pillemer, furnished a report to the Respondent dated 10 August 2005. In that report he stated:
"As far as diagnosis is concerned, she is developing the medial compartment osteoarthritis of both knees, which in my opinion is a constitutional condition for her. As noted there was no history of any particular injury, but the nature and conditions of her work as a postal officer, often doing deliveries for up to four hours per day, in my opinion is an aggravating factor will, but unlikely to be a substantial contributing factor to the eventual problems she is going to have with both of her knees,"
adding under the heading "ATTRIBUTABILITY":
“In my opinion the nature and conditions of her work as a postal delivery officer is an aggravation of an underlying constitutional degenerative condition of both knees", and stated, "as far as liability for treatment is concerned, I feel that it is very reasonable for Australia Post to accept liability for her original surgery and her time off from work, but I feel that any surgery in the future will be on the basis of her underlying constitutional condition, and not the responsibility of Australia Post."
21. Dr Pillemer was not called by either party. We have some difficulty in reconciling his statement that the Applicant's work at Australia Post was an aggravating factor but unlikely to be a substantial contributing factor to the eventual problems the Applicant is going to have.
22. Dr Pillemer then stated in a later report dated 28 October 2005:
"With regard to the question of Australia Post's overall liability status in relation to her compared support left knee injury, in my opinion and as noted, I feel that the nature and conditions of her work was simply an aggravating factor of an underlying condition. In this regard then, I do feel Australia Post was liable for her original surgery and say six weeks after care, but that any further treatment for her knee would not be the liability of Australia Post but would be due to her underlying degenerative condition.”
23. During the course of the investigations referred to above, the Applicant was also examined by Occupational Physician, Dr Gibson. Dr Gibson did not express an opinion as to causation but did opine that the Applicant could undertake a Return to Work Programme for full duties as a Mail Sorter but would be unlikely to be able to return to work as a Postal Delivery Officer.
24. The Applicant obtained a report from Surgeon, Dr Endry-Walder. We did not obtain any benefit from Dr Endry Walker’s report or evidence, as he was speaking outside the terms of his professional experience. He conceded in cross examination that he was a general and trauma surgeon. He had not performed surgery for meniscal tears and as a surgeon he did not treat osteoarthritis of such. He conceded that the treatment of inflammatory conditions such as osteoarthritis belongs to the speciality of rheumatology.
25. The only specialist Rheumatologist to give an opinion in this matter was Dr McGill. In his report of 6 July 2006, he noted on examination, a varus alignment of both knees, and opined that the Applicant's now bilateral knee symptoms were entirely constitutional. He added that there is no evidence that walking, including walking up and down hills, producers or aggravates osteoarthritis, neither does it produce a meniscal tear.
26. As to the pain and discomfort experienced by the Applicant at work, Dr McGill added:
"I believe that the state of both knees currently would have been the same regardless of whether or not she had worked for Australia Post. I think the level of discomfort that she experienced while she was performing delivery work may have been temporarily increased by her work duties at times that those work duties would not have accelerated the changes in either knee”.
27. In evidence, Dr McGill stated that walking up and down hills does not cause cartilage damage, but did concede that once the meniscus had been torn, the osteoarthritic process was likely to be accelerated. That tear, however, could have occurred as just part of the degenerative process and was not related to work.
28. When regard is had to the majority of medical opinion in this matter, it is clear that the consensus is that osteoarthritis is the degenerative condition and that neither walking nor standing will cause it. There is some dispute as to whether the Applicant's duties as a Postal Delivery Officer aggravated that condition. Dr McGill is firmly of the view that it would not. As a Rheumatologist, osteoarthritis is particularly within Dr McGill's field of specialisation.
29. Dr Bruce, the Applicant's treating surgeon, was quite specific in rejecting the Applicant’s walking or standing in the course of her duties as causative of osteoarthritis. He did concede that if the Applicant had torn her meniscus at work then that would have aggravated her underlying condition.
30. In the course of his oral evidence Dr Caldwell resiled somewhat from his report. It seems clear that whereas he is of the opinion that the Applicant's underlying condition is purely degenerative and as a result of her life experience, the meniscal tear, although also part of the degenerative condition, should have been accepted by the Respondent on some sort of just and equitable grounds.
31. Similar comments can be made regarding the reports of Drs Blake and Pillemer. Dr Blake, whilst conceding that the osteoarthritis was degenerative and the meniscal tear of gradual spontaneous onset, implies that the Applicant's work accelerated the process. We reject this opinion given the opinions of Drs McGill and Bruce. Dr Bruce, in his report of 19 August 2003, specifically refutes suggestions that the Applicant's work could be described as "demanding".
32. Dr Pillemer also referred to an underlying degenerative condition aggravated by work. For the reasons outlined above, we reject any opinion that the Applicant's work was of such a nature so as to make a material contribution to her condition.
33. Even given the opinions of Drs Blake and Pillemer the Tribunal must be satisfied that given the constitutional cause of the Applicant's osteoarthritis her employment made a "material contribution" to the ailment – namely osteoarthritis – suffered by her.
34. As was pointed out by the majority in the Full Court decision of Comcare v Canute (2005) 148 FCR 232 at 249, the insertion of the word "material" in the definition of "disease" in s 4 of the SRC Act 1988, must be given its effect.
35. Canute supra was reversed on appeal to the High Court but that Court did not address the concept of material contribution referred to by the majority in the Full Court. It seems clear, having regard to that majority decision, that this Tribunal must take into account the deliberate insertion by the legislature of the concept of a material contribution.
36. As to what is a material contribution, we can only state that material is a common English word, although of its very nature imprecise. A reference to the Oxford English Dictionary 1970 Clarendon edition gives the following meanings, namely:
“5. Of serious or substantial import; of much consequence; important.”
Meaning 5(d) under the subheading “LAW” then states:
“Applied to evidence or facts, which are of such significance as to be likely to influence the determination of a cause; to alter the character of an instrument.”
37. In this matter we are satisfied, given the evidence of Drs McGill and Bruce, that the Applicant’s osteoarthritis is constitutional, and the duties of a Postal Delivery Officer did not make a material contribution to the condition nor did they aggravate the said condition.
38. We are. however, satisfied that the tear of the Applicant's medial meniscus did aggravate her osteoarthritis. There is no evidence whatsoever that the tear was materially contributed to by work.
39. Likewise, there is no evidence that the tear was occasioned at work so as to impose liability upon the Respondent in the circumstances explained in Zikar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310. The Applicant has repeatedly denied that any specific incident occurred at work, and in particular, denied any happening on the day before she experienced severe pain and a sleepless night prior to consulting Dr Nuygen.
40. Finally, we are not satisfied that anything in the Applicant's employment in fact aggravated her osteoarthritis. What is clear from all the medical reports, including those of Drs Pillemer and Caldwell, who advised the Respondent to accept liability for the Applicant's arthroscopy, is that her condition was by its very nature progressive, and there is no evidence that her duties caused any additional symptoms.
41. Moffitt J in Federal Broom Co. Pty Ltd v Semlitch [1964] NSWR 511 at 519 said:
"A disease which is a progressive according to its nature may, by reason of external stimuli, have its progress accelerated. Before such acceleration can be found to have caused incapacity there must be more severe all additional symptoms arising from the acceleration which have produced an incapacity which would not otherwise have existed. In this event there is an incapacity caused by an acceleration of the disease. Symptoms in the case of a progressive disease however may be only evidence of the acceleration without producing in themselves any harmful effects, in which event there may be a celebration of the disease with no present resultant incapacity."
In this matter, the evidence is that the Applicant's osteoarthritis would have an advanced to its present stage in any event. Given this circumstance, there is no liability in the Respondent pursuant to s 14 SRC Act.
42. As the Respondent is not liable pursuant to s 14, then it is not liable to make payments pursuant to ss 24 and 27 of the SRC Act. The decision under review is therefore affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal
Signed: [Amanda Aitken]
..................................................................................
Associate
Date/s of Hearing 15 & 16 December 2006
Date of Decision 22 January 2007
Counsel for the Applicant Mr C Ward
Solicitor for the Applicant Slater & Gordon Lawyers
Counsel for the Respondent Miss R Henderson
Solicitor for the Respondent Graham Jones Lawyers
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