ALLAN JAMES and COMCARE

[2010] AATA 393

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 393

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3665 &
  )          2008/4439

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ALLAN JAMES

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Dr P. Wilkins, Member

Date27 May 2010

PlaceCanberra

Decision The decisions under review are affirmed.

.....................[sgd].........................

Mr S. Webb, Presiding Member

CATCHWORDS

COMPENSATION - accepted left knee injuries – pain - claims for periods of incapacity - underlying degenerative osteoarthritis – pseudogout - left knee replacement surgery - incapacity not the result of injury - decisions affirmed

Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 19, 67

REASONS FOR DECISION

May 2010 Mr S. Webb, Member
Dr P. Wilkins, Member       

1.      Allan James suffers from osteoarthritis and pseudogout (chondrocalcinosis)   in his left knee. He has two accepted injuries to his left knee – a strain to the cruciate ligament[1] and aggravation of osteoarthrosis.[2] In February 2008 he underwent left knee replacement surgery. He claimed compensation for periods of incapacity. The specific periods of incapacity claimed are:

1 October 2007 to 30 January 2008, and

31 January 2008 to 15 March 2008.

[1] Date of injury – 9 May 2006.

[2] Date of injury – 24 September 2007.

Mr James’ entitlement to incapacity during these periods was determined in the negative in two separate decisions.[3] Unhappy with this result, Mr James requested reconsideration and, having not obtained satisfaction, applied for review.

[3] T58 and T65.

2.      The issue for determination is Mr James’ entitlement to compensation for incapacity during these periods. Essentially, to be so entitled, it must be established that the periods of incapacity resulted from an injury under the Safety, Rehabilitation and Compensation Act 1988 (the Act).

3.      Mr James asserts that the periods of incapacity resulted from one or more compensable injuries to his left knee. In his submission, his left knee was injured in three separate incidents at work.[4] He says the first incident occurred in March 2006 while undergoing fitness testing – a ‘beep test’. His evidence is that he twisted his left knee during exercises on a rubber mat: he heard an audible snap in his left knee and experienced pain which subsequently subsided, but never went away. The second incident apparently occurred in May 2006 on a shooting range: he bumped his knee (the inferior patella) on a metal spike and experienced increased symptoms of pain and swelling. Subsequently, on 22 November 2006 Dr Miniter, an orthopaedic surgeon, conducted an arthroscopic investigation of Mr James’ left knee and performed “a resection of a degenerative lateral meniscal tear, a notchplasty and stabilisation of the lateral meniscal remnant.”[5] The Doctor noted a large amount of pseudogout changes in the knee. Shortly thereafter, Mr James’ left knee became swollen and a further arthroscopic wash-out for possible septic arthritis was performed. A further arthroscopy was performed on 13 February 2007 by Dr Morris, another orthopaedic surgeon, in which biopsies were taken and the earlier diagnosis of pseudogout was confirmed. The third incident occurred on 24 September 2007: Mr James fell, hitting his left knee on a trolley and the concrete floor; he experienced increased symptoms as a result.

[4] Exhibit A1.

[5] Exhibit R2.

4.      In Mr James submission each of these incidents and procedures has given rise to one or more of the following injuries:

(a)frank physical injury to his left knee;

(b)aggravation of previously asymptomatic osteoarthritis in his left knee; and/or

(c)aggravation of previously asymptomatic pseudogout in his left knee.

Mr James asserts that the aggravation of underlying osteoarthritis and pseudogout are injuries within the meaning of ‘disease’, being aggravations of an ailment to which his employment contributed in a material or a significant degree. In his submission, the issue that is determinative concerns the onset and continuation of pain in his left knee. This, he says, is indicative of the ongoing effects of the injuries that were caused or contributed to in requisite degree by his employment.

5.      In Mr James’ submission, determining with precision which specific incident or incidents resulted in the injury or injuries that resulted in the claimed periods of incapacity is of but little moment, as the evidence is sufficient to establish, as a matter of probability to the civil standard of proof, that the aggravation injuries occurred and caused the subject incapacity, bringing forward the need for left knee replacement surgery. These circumstances, in Mr James’ submission, enliven his entitlement to compensation for incapacity as medically certified during the particular periods. That being so, he urges us to set aside the decisions under review.

6.      We are not persuaded to that conclusion, however.

7.      At this point it is necessary to note that Mr James claimed compensation for the cost of the knee replacement surgery. His claim was denied. That matter is not the subject of these proceedings. Furthermore, it appears that Mr James is asking us to make a finding of liability against Comcare for an injury or injuries that may not previously have been claimed or determined. Mr James has not, for example, claimed compensation for an injury to his left knee during or as a result of arthroscopic surgery. Clearly, absent a claim and consideration of such matters at the primary determination or reconsideration stages, the tribunal has no jurisdiction in relation to those matters. That said, we do not propose to dwell on related issues of jurisdiction as, for reasons that will appear, it is not necessary to do so.

8.      Entitlement to compensation for incapacity arises if the particular incapacity is as a result of an injury.[6] The meaning given to ‘injury’[7] includes a ‘disease’, and ‘disease’ is defined to include the aggravation of an ailment if the employment contributed to the aggravation in a significant[8] or a material degree[9] (amendments to the definitions of ‘injury’ and ‘disease’ came into effect on 13 April 2007).

[6] Section 19, Safety, Rehabilitation and Compensation Act 1988.

[7] Section 5A, Safety, Rehabilitation and Compensation Act 1988.

[8] Section 5B, Safety, Rehabilitation and Compensation Act 1988.

[9] Section 4, Safety, Rehabilitation and Compensation Act 1988, in force prior to 13 April 2007.

9.      It is clear enough on the medical evidence of Dr Miniter, Dr Morris, Dr Howse, Dr Pascall, Dr Bodel, Dr Burke, Dr Barrett and Dr Moller that Mr James suffers from degenerative osteoarthritis and pseudogout in his left knee that is constitutional and “is not a direct consequence of his work injury”.[10] Mr James, Dr Bodel, Dr Howse and others gave evidence that the pseudogout was rendered symptomatic by incidents in Mr James’ employment in 2006. But the present evidence does not lead us to that conclusion.

[10]  Report by Dr Bodel, Exhibit A7, p4.

10.     We are reasonably satisfied that Mr James has a history of gouty complaints, including in relation to his toes, ankles and knee, spanning a number of years prior to 2006[11], in relation to which he was prescribed Indocid, a non-steroidal anti-inflammatory medication.[12] The Hughes Family Practice medical notes clearly reveal prescriptions for Indocid over a number of years, including in 2005. Dr Miniter noted that “he also has gout and has been given this diagnosis over a number of years”.[13] Dr Howse noted that it was highly likely that the degenerative changes were present prior to the injuries sustained in 2006.[14]

[11] See report by Dr Riddell, 15 January 2004, Exhibit A6, for example.

[12] Report by Dr Riddell, 23 December 2004, Exhibit A6.

[13] Report, 13 November 2006, Exhibit A4.

[14] Report, 10 October 2007, Exhibit A3, p2.

11.     It appears that Dr Bodel[15] and Dr Howse[16] relied on the history provided by Mr James. But there are serious questions about the reliability of Mr James’ evidence. His evidence is that he experienced an onset of pain when he injured his left knee during training (running on rubber mats during a ‘beep test’) in March 2006 and experienced left knee pain in varying degrees thereafter. But the contemporaneous and historical medical evidence points to a different scenario. As we have said, there appears to be a history of treatment for gout, including in relation to Mr James’ knee, prior to the incident in March 2006.[17] Dr Bodel reported the onset of right ankle symptoms in August 2006, following a motor vehicle accident, but the clinical notes of the Hughes Family Practice point to the earlier onset of gouty right ankle symptoms. There is radiological evidence that points to disease in his right foot, right ankle, both knees, and left hip.[18] Dr Morris and Dr Lawrence reported a history in which his left knee condition “seemed to settle entirely”[19], but he had progressive worsening of swelling and pain from August 2006.[20] Dr Miniter reported that Mr James’ left knee “went back to normal in his opinion”[21] after the beep test incident in March 2006, only becoming an issue again in May 2006 as a result of the shooting range incident.[22] As can be seen, Mr James account of left knee symptoms appears to have changed over time. We prefer the contemporaneous reports of Mr James’ treating doctors to his oral evidence, the reliability of which may be diminished by the effluxion of time.

[15] Exhibit A7.

[16] Reports dated 10 October 2007 and 5 November 2007, Exhibit A3.

[17] Clinical notes produced by the Hughes Family Practice and the Phillip Family Practices, Exhibits A6 and A2 respectively.

[18] Report by Dr Duncan, 18 May 2007, Exhibit A6.

[19] Report by Dr Morris, 9 January 2007, Exhibit A5.

[20] Report by Dr Lawrence, 8 January 2007, Exhibit A5.

[21] T4 folio 5 (2008/3665).

[22] Report by Dr Miniter, 13 November 2006, Exhibit A4.

12.     Dr Bodel reported that Mr James told him that he felt something snap in his left knee during the beep test; this was later described as an audible snap. It appears, however, that Mr James omitted to mention this to his treating doctors at the time. In our opinion if Mr James experienced a snapping sensation in his left knee as he now asserts, it is simply implausible to suggest that he omitted to inform his treating doctors about this. We find his evidence on this point less than compelling.

13.     Furthermore it appears that Mr James suffered a twisting injury to his left knee on 27 January 2006 in relation to which he consulted the Hughes Family Practice.[23] Mr James gave evidence that he could not recall this injury. We find this difficult to accept when Mr James had no apparent difficulty recalling incidents in March and May 2006 in the context of his employment. We do not go so far, however, to conclude that Mr James is deliberately lying in his evidence; rather, we have serious questions about the reliability of his memory. To that extent we will treat his uncorroborated evidence concerning events in 2006 and 2007 with care and will give more weight to contemporaneous documentary evidence of his treating doctors.

[23] Daily record, Exhibit A6.

14.     It is tolerably clear that pseudogout may be susceptible to flare up in response to trauma, including surgery. All of the medical evidence supports this conclusion, suggesting that such flare-ups are within the nature of the disease. It appears that the symptoms of Mr James’ pseudogout disease may have flared in March 2006, May 2006 and September 2007. Having regard to the abundant medical notes and reports, it is tolerably clear that these were not the only occurrences of such flare-ups.[24] But that is beside the point. The important point concerns the effect of such flare-ups on the condition of Mr James’ left knee: the medical evidence divides on this point. On the one hand, Dr Pascall[25] and Dr Bodel[26] are of the opinion that Mr James’ knee condition deteriorated irreversibly, albeit in small measure, as a result of each flare-up; on the other hand Dr Miniter[27] and Dr Burke[28] are of the opinion that each occurrence was of short duration and did not affect the progress of the underlying osteoarthritis or pseudogout. Dr Pascall, Dr Burke and Dr Bodel accepted that Dr Miniter and Dr Morris are well placed to comment on the issues in relation to Mr James’ left knee as both have relevant medical expertise and performed arthroscopies on Mr James’ left knee. We agree.

[24] Report by Dr Pascall, T35 folio 78 (2008/3665).

[25] Oral evidence and T35 (2008/3665).

[26] Oral evidence and Exhibit A7.

[27] See T4 (2008/3665) for example.

[28] Oral evidence and Exhibit R1.

15.     For this reason we directed that a further question be put to Dr Miniter and Dr Morris, neither of whom was called to give oral evidence. The responses are to be found in Exhibits R2 and R3. In sum on this point, we accept that minor traumas to Mr James left knee in 2006 and 2007 caused his previously existing pseudogout condition to flare up. It appears likely that the arthroscopy performed by Dr Miniter on 22 November 2006 caused such a flare-up. We are reasonably satisfied that the overt symptoms of each flare-up resolved in a short span of days of possibly weeks after each event. We accept the evidence of Dr Miniter that it is possible that a minor injury can sometime cause acceleration or precipitation of pre-existing problems.[29] Furthermore, we accept the theoretical possibility that a pseudogout flare-up may cause some minor change in the underlying condition of the affect joint – that possibility cannot be ruled out on the present evidence concerning Mr James’ left knee. But that is as far as we can go.

[29] Report dated 7 July 2008, Exhibit A4

16.     There is not sufficient evidence, in our opinion, to establish that any such changes occurred in Mr James’ left knee as a result of one or more of the flare-ups of pseudogout he experienced. All that can be said on that subject is that there is clear evidence that pseudogout is a progressive degenerative condition, in which crystals form in the structures and tissues of affected joints causing irreversible damage to those parts. That is the nature of the disease.[30] The evidence of Dr Miniter clearly indicates the presence of advanced disease in November 2006 that was sufficient to justify knee replacement surgery. We note, too, that similar findings were made in relation to Mr James’ right ankle. As can be seen knee replacement surgery was recommended by Dr Miniter and Dr Barrett well before the minor injury and related flare-up of symptoms that occurred in September 2007.

[30] See T35 folio 78 (2008/3665) for example.

17.     There is insufficient evidence to establish, as a matter of probability, that the pseudogout and osteoarthritis Dr Miniter identified in Mr James’ left knee in November 2006 were caused or accelerated or aggravated in a lasting manner, directly or in material part, by the two earlier incidents in March and May 2006. The evidence of Dr Miniter, Dr Morris, Dr Burke and Dr Howse suggests no more than the possibility of a causal relationship between these incidents (and the incident in September 2007) and progress of Mr James’ underlying pseudogout and osteoarthritis diseases. The contemporaneous evidence suggests a course of advancing disease in a number of joints, including Mr James’ knee, over a period of years: the disease was not rendered symptomatic by any event in 2006 in the course of Mr James’ employment; symptoms associated with those incidents resolved over a short span of days or weeks and Mr James experienced increasing and ongoing symptoms in his left knee from August or September 2006, about which he complained to Dr Barrett, and as a result of which he was referred to Dr Miniter.

18.     We are reasonably satisfied, therefore, that the work-related incidents in March 2006, May 2006 and September 2007 caused minor traumas that are consistent with minor frank injuries, and those minor injuries caused Mr James’ pseudogout symptoms to flare for a short period. It can be accepted that the injuries caused incapacity for work during those short periods. But once the elevated symptoms diminished, Mr James’ left knee condition returned to a state involving persistent and increasing symptoms and ongoing incapacity for work, in varying degrees. We are reasonably satisfied that these persistent symptoms and degrees of incapacity for work are attributable to the progress of his pre-existing degenerative disease and not to the minor injuries and related elevation of symptoms in March 2006, May 2006 and September 2007.

19.     It is possible that the tear of the lateral meniscus Dr Miniter identified and repaired when performing the arthroscopy in November 2006 was caused by a twisting injury. Dr Miniter and Dr Howse considered that such a course was likely. It is far from clear whether the injury in January 2006 or the beep test incident, about which there is little contemporaneous evidence, may be implicated. Nevertheless, even if the tear is attributable to the beep test incident, and we make no such finding, it does not assist Mr James’ case. The meniscal tear was successfully treated and stabilised by Dr Miniter. Even though this procedure appears to have caused a flare-up of pseudogout symptoms, the flare-up was also effectively treated and the symptoms again diminished after a short period. There is no compelling evidence that this flare-up or the arthroscopic procedures contributed in any material or significant degree to any acceleration or lasting aggravation of the pre-existing pseudogout or osteoarthritic disease; that possibility lies open but is not proved on the civil reasonable satisfaction standard on the balance of probabilities.

20.     We prefer and give greater weight to the evidence of Dr Miniter and Dr Morris to that of Dr Bodel, Dr Pascall and Dr Howse. Dr Miniter and Dr Morris had the benefit of examining Mr James’ left knee at arthroscopy, whereas the other doctors did not. Furthermore, Dr Bodel and Dr Howse proceeded on the basis of a history provided by Mr James; in our opinion those histories are faulty. Dr Howse reported that the presence of pseudogout can accelerate the deterioration of osteoarthritis in a joint and was not able to quantify the effect of the injuries reported by Mr James.[31] Dr Pascall reported that each of the flare-ups had ceased to have effect after a short period[32], although she thought that it was likely that each flare-up may alter the underlying state of Mr James’ left knee joint. As it appears to us the evidence of Dr Pascall and Dr Howse does not take the matter further and simply confirms the possibility that one or more of the incidents involving trauma to Mr James’ left knee may have had an ongoing effect. But mere possibility is not sufficient to make out Mr James’ claim or to establish the requisite connection between the claimed periods of incapacity and the injuries to his left knee.

[31] Report, 10 October 2007, Exhibit A3, p2.

[32] T35 folio 78 (2008/3665).

21.     We accept the evidence of Dr Miniter and Dr Morris that the knee replacement surgery in February 2008 was necessary treatment for Mr James’ underlying degenerative pseudogout and osteoarthritis diseases. We are reasonably satisfied that the incidents in March 2006, May 2006 and September 2007 did not contribute in any material or significant degree to aggravate these underlying diseases in a lasting manner, and any minor aggravations that did result were temporary and came to an end within a short period, well before the arthroscopy in November 2006. We note that on 28 November 2007 Dr Barrett reported to Comcare that “The aggravation fo [sic - of] 24/10/07 [sic – 24/9/07] has not resolved”.[33] It appears that on 11 September 2007 Dr Barrett referred Mr James to Fit To Manage for rehabilitation and strengthening of his left leg, and good results were obtained.[34] On 2 October 2007, 30 October 2007 and 26 November 2007 he was found to be fit for his pre-injury duties.[35] We also note that on 30 October 2007 Dr Barrett referred Mr James to Dr Morris as a priority for left knee replacement – “He tripped over a box and hit his knee on the edge of a trolley and then hit the concrete floor. There was no # but of course this has exacerbated the previous knee pain”.[36] Dr Barrett was not called to give oral evidence, so this apparent inconsistency could not be properly tested. Weighing this evidence we are not persuaded by Dr Barrett’s report that any exacerbation of Mr James’ left knee condition resulting from the incident on 24 September 2007 had not resolved on 28 November 2007.

[33] T30 (2008/3665).

[34] See T6, T28 and T31 (2008/3665).

[35] T12 folio 31 and T23 (2008/3665).

[36] T21 (2008/3665).

22.     For present purposes we must consider whether Mr James suffered any incapacity during the periods under claim that resulted from one or more of the injuries to his left knee to which we have referred above. The present evidence indicates that from 2 October 2007 to 2 December 2007, from 5 to 16 December 2007 and from 18 December 2007 to 30 January 2008 Mr James was fit for his pre-injury duties, which were restricted in nature as a result of the underlying ongoing pseudogout and osteoarthritis in his left knee.[37] There is no compelling evidence before us that Mr James’ partial incapacity is the result of an injury, rather being the result of his ongoing degenerative pseudogout and osteoarthritis. On 8 January 2008 Dr Barrett certified that Mr James was unfit for work on 3 and 4 December as a result of an “exacerbation of pain”[38], but this is not attributed to an injury. On 20 December 2007 Dr Moller certified that Mr James was unfit for work on 17 December 2007, this, too, is not attributed to an injury – Dr Moller certified that the “Symptoms are entirely consistent with known knee diagnosis [osteoarthritis left knee]”.[39] It is accepted that Mr James was rendered fully unfit for work from 31 January 2008 to 15 March 2008 as a result of left knee replacement surgery.

[37] See for example, T6, T28, T31, T35 folios 70 and 73, T40, T41 (2008/3665); T44, T49 folio 98, T52 and T53 (2008/4439).

[38] T53 (2008/4439); T41 (2008/3665).

[39] T52 (2008/4439); T40 (2008(3665).

23.     We are reasonably satisfied that Mr James’ incapacity for work on 3, 4 and 17 December 2007 and from 31 January 2008 to 15 March 2008 is attributable to the underlying pseudogout and osteoarthritis in his left knee and to the related knee replacement surgery. It follows that Mr James’ incapacity during these periods is not the result of an injury under the Act. We so find.

24.     Thus, in conclusion, we find that the periods of incapacity under claim, from 1 October 2007 to 15 March 2008, are not the result of an injury for the purposes of the Act. We are reasonably satisfied that the varying degrees of incapacity for work that Mr James experienced during these periods was the result of his underlying degenerative pseudogout and osteoarthritis disease. It follows that he is not entitled to compensation for incapacity during these periods and the decisions under review must be affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Dr P. Wilkins, Member

Signed:         .....................[sgd]...........................................................
           T. Amos, Associate

Date/s of Hearing  11-12 February & 12 May 2010
Date of Decision  May 2010
Counsel for the Applicant         Mr L. Grey
Solicitor for the Applicant          Mr P. Crabb
Counsel for the Respondent     Mr P. Walker
Solicitor for the Respondent     Ms A. Alford & Ms A. Burke