Ali and Australian Postal Corporation
[2006] AATA 794
•18 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 794
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1132
GENERAL ADMINISTRATIVE DIVISION ) Re MOHAMMED ALI Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal MS N BELL Date18 September 2006
PlaceSydney
Decision The decision under review is affirmed. ..........................................
CATCHWORDS – Workers compensation – Permanent Impairment – Knee Injury - Medial Meniscal Injury - Difficulty with Grades and Steps - Guide to Permanent Impairment tables – Decision under review Affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
MS N BELL 1. Mr Ali has worked for Australia Post since 1989. In April 2003 he injured his left knee at work and later claimed compensation for permanent impairment of his knee arising out of that incident. Australia Post refused that claim and contended that the effect of any injury suffered by Mr Ali was temporary, now resolved and consequently does not amount to a permanent impairment.
2. Compensation for permanent impairment is provided for by section 24 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). In determining whether an impairment is permanent, regard must be had to the duration of the impairment, the likelihood of improvement, rehabilitative treatment undertaken and other relevant matters. The percentage degree of permanent impairment in any case is determined by reference to the Guide to Permanent Impairment table published by Comcare. The table in that Guide relied on by Mr Ali is Table 9.5 concerning the lower limbs. Table 9.5 requires “difficulty with grades and steps” for an impairment rating of 10%.
issues
3. The issues to be considered are whether the incident in April 2003 caused an injury of continuing effect and, if so, whether Mr Ali has a permanent impairment that attracts a rating of 10% under the Guide. In determining the latter question, we must also consider whether Mr Ali has difficulty with grades and steps.
what was the effect of the incident in April 2003?
mr ali’s evidence
4. Mr Ali gave evidence of a number of incidents at work in which he says he was injured. These included, in relation to his left knee, an incident on 3 May 1997 in which he says he struck his left knee on the ground and felt immediate pain which continued for some time; an incident on 4 May 2000, lifting a bag, which produced pain in his left knee but over time became only a minor problem; an incident on 21 April 2003 in which a ULD gate struck him, making him fall onto his left knee after twisting it as he stumbled – this was, he said, the incident that caused the permanent impairment of his knee. Mr Ali said there were also incidents in May and December 2004 and later in April 2005 which caused temporary pain in his left knee.
5. Mr Ali said, during cross examination, that he did not fall onto his left knee in the April 2003 incident but, rather he twisted his knee. He then agreed that his claim for compensation in relation to that incident does not mention twisting his knee. He also agreed he told Dr Dave, his treating Orthopaedic Surgeon, that the gate hit his knee.
6. Mr Ali said he felt, immediately after the incident, a sharp “needle” pain in the middle and front part of his knee and could not stand on it. He saw his general practitioner the next day and was later placed on light duties. He was referred to Dr Dave after his knee did not improve, as it had begun to hyperextend and give way He had an MRI in July 2003 and an arthroscopy by Dr Dave in early 2004. He said the arthroscopy has not helped him and he returned to work on light duties on 8 March 2004.
7. Mr Ali said he has problems with his knee walking up or down hills and steps because his left knee “gives way” and is painful. He said that, when walking down stairs, he has to use his right leg first instead of putting one foot in front of the other. He has hydrotherapy three or four times per week by walking in water but says it does not help him. He takes one Mobic per day and Panadeine Forte three or four times per week.
8. Mr Ali said he used to play soccer, volleyball and tennis until about 1991 and stopped because he no longer had the time.
9. In cross examination Mr Ali was unable to remember a large number of matters put to him, mainly concerning statements he had made to examining doctors and the circumstances of his injury in April 2004. His evidence was often inconsistent in these respects and with statements he had made previously on claim forms and to medical examiners. He did not present as a reliable historian.
investigations
10. An X-ray of Mr Ali’s left knee on 25 September 1997 showed some calcification adjacent to the medial collateral ligament. Dr Maxwell, Orthopaedic Surgeon, considered it mild and clinically insignificant (p.345, TDC) and Dr McGill, Rheumatologist, considered it gave rise to no symptoms or functional problem (p.349, TDC).
11. An MRI on 7 July 2003 found “subtle MRI evidence to support the presence of low grade interstitial injury along both the lower end of the ACL (anterior cruciate ligament) and the anterior end of the PCL (posterior cruciate ligament).” (p.46, TDB) On the basis of this MRI, and a provisional diagnosis of a medial meniscus injury, Dr Dave undertook an arthroscopy on 19 February 2004. He found, rather, a “punched out lesion over the medial edge of the patella with chondrial loose fragments (which) required debridement. Menisci were intact as were the cruciates. He had relatively well preserved articular surface on the medial and lateral femoral condyle and tibial plateau. He has required debridement of the patellar side of the patellofemoral joint.” (p.112, TDB)
12. A CT scan on 26 August 2004 found no evidence of any lesion apart from a small pellegrini steida lesion on the left femoral condyle consistent with old collateral ligament injury (p.6, TDA). A CT scan on 9 April 2005 found nothing further.
13. On the basis of these investigations, the only objective evidence of knee injury is the calcification at the site of the femoral attachment of the left medial collateral ligament, the low grade abnormalities described in the MRI and the medial patellar lesion found at arthroscopy.
dr berry
14. Dr Berry first reported on Mr Ali’s left knee on 24 March 2002 following his injury in 1997 and noted a full range of movement and no instability but difficulty with slopes and stairs. In cross examination, however, Dr Berry agreed he had not been aware of the 1998 x-ray and also agreed that the calcification shown by that x-ray must have been present for years prior to 1997; this incident is not implicated in any condition suffered by Mr Ali now.
15. On 22 September 2004 Dr Berry reported a history of Mr Ali twisting his left knee in April 2003 and a difficulty with kneeling and crouching but no mention of difficulty with grades or stairs. He found no swelling, deformity or instability on examination but some crepitus with flexion and extension. While he did not address range of movement, he stated that Mr Ali’s knee should be assessed under Table 9.2 of the Guide, which deals only with range of joint movement of a lower extremity.
16. In a report dated 3 December 2004 Dr Berry noted pain and restricted movement and assesses 10% impairment under Table 9.2 and, on 21 November 2005, reported difficulty with stairs, slopes and distances and still referred to Table 9.2. He also noted crepitus and, on flexion and extension, medial joint line tenderness. Finally, in a report dated 20 February 2006, Dr Berry turned his attention to Table 9.5 and assessed an impairment of 10% arising out of difficulty with grades and steps. He agreed, in cross examination, that apart from Mr Ali’s reporting of subjective symptoms and the consistency of that reporting with the pathology, there is no reason to reach this conclusion in relation to Table 9.5. He also agreed that Mr Ali’s hyperextension is not explained by any of the work incidents concerning his knee.
dr dave
17. On 23 June 2003 Dr Dave reported a history of Mr Ali having had a gate fall on his leg causing a hyperextension injury. He noted 10 degrees of hyperextension to 140 degrees of flexion and medial joint line pain and tenderness. On 9 September 2003 Dr Dave provisionally diagnosed medial meniscal injury “despite the fact that the MRI has not picked it up” and recommended an arthroscopy. Following the arthroscopy, Dr Dave reported on 2 March 2004, after canvassing his findings, a good recovery with full extension and flexion and very little swelling.
dr mcgill
18. Dr McGill reported on 30 November 2005, taking a comprehensive history and undertaking a full examination. Apart from five degrees of hyperextension there was no abnormality found on examination, including no crepitus. Nor was there any tenderness along the medial or lateral joint lines and no muscle wasting. Mr Ali did report tenderness in the region of the insertion of the medial collateral ligament proximal and distal to the joint line. Dr McGill concluded that the symptoms in Mr Ali’s knee are due to the combination of an old injury, that resulted in the calcification shown on the 1998 x-ray, and minor degenerative change. He considered that the various work incidents concerning his left knee did cause temporary aggravation of his knee symptoms but it is unlikely that any of the incidents continue to have effect. In oral evidence, Dr McGill explained that the mechanics of the April 2003 incident were unlikely to have caused the abnormalities shown on arthroscopy.
19. In his report dated 8 March 2006, Dr McGill said the results of the arthroscopy do not enable him to determine whether the abnormality was caused or aggravated by the April 2003 incident or whether it reflected a previous injury. He also concluded that an assessment of impairment under Table 9.5 is not in keeping with the clinical findings, the arthroscopic findings of Dr Dave or the clinical history recorded by Dr Dave. He found no impairment under the Tables.
dr burke
20. Dr Burke considered the probable cause of Mr Ali’s symptoms is the combination of an old strain injury and degenerative changes in both knees. He found, on examination, the only abnormal range of movement was hyperextension which he considered had been caused by a stretch, at some stage, of the anterior cruciate ligament and unlikely to have been caused by any of the incidents at work. He found scars on Mr Ali’s left knee that Mr Ali was unable to explain. He said he found no medial line tenderness and no crepitis. He said he found nothing that would interfere with his ability to deal with grades and steps.
consideration
21. The weight of medical opinion is that the effect, if any, of the incident in April 2003 on Mr Ali’s left knee was temporary. Only Dr Berry considered that the incident had lasting effect. We found his reports to be inconsistent in many respects and the concessions he made in cross examination rendered his conclusions entirely dependent on the subjective history given to him by Mr Ali.
22. As we noted above, Mr Ali was not a good historian. His evidence was not consistent and we note, in particular, the conflicts in his evidence and with previous statements made by him to examining doctors and in documentation, particularly in relation to the details of the incident and injury in April 2003. We also note Mr Ali’s previous sporting activity and the lack of any explanation of the trauma behind the results of the 1998 x-ray. We also note his inability, when asked by Dr Burke and in cross examination, to explain scarring on his left knee. These discrepancies, together with the lack of objective medical evidence, make us disinclined to rely on Mr Ali’s evidence of his continuing symptoms. We conclude that the effect of the April 2003 incident and injury was temporary. It follows that he does not suffer any permanent impairment arising from that incident.
23. In any event, although none of the examining doctors specifically tested Mr Ali’s ability to deal with grades and steps, there is no objective medical evidence to support or explain a difficulty of the kind described in Table 9.5. We are not persuaded in this respect by Mr Ali’s evidence alone.
decision
24. The decision under review is affirmed.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.
Signed: ………………[Sanjiv Shah]………………
AssociateDates of Hearing 13 July 2006, 14 July 2006
Date of Decision 18 September 2006
Counsel for the Applicant Mr D Epstein
Solicitor for the Applicant Andresakis and AssociatesCounsel for the Respondent Mr G Johnson
Solicitor for the Respondent Forners Solicitors
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