Baker and Australian Postal Corporation
[2003] AATA 987
•1 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 987
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2001/773
GENERAL ADMINISTRATIVE DIVISION ) V2002/1241 Re ROBERT BAKER Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mrs J. Dwyer, Senior Member Date1 October 2003
PlaceMelbourne
Decision 1. In matter V2002/1241:
(i) The Tribunal sets aside the reviewable decision made on 10 October 2002, which revoked the initial decision dated 9 December 1999 accepting liability for "pain in left knee and lower back" sustained on 1 November 1999 and all subsequent determinations accepting liability to pay compensation to Mr Baker in respect of "pain in left knee and lower back".
(ii) The Tribunal remits the matter to the respondent for reconsideration in accordance with the direction that all determinations made before 25 October 2000 accepting liability to pay compensation to Mr Baker in respect of his left knee injury on 1 November 1999, remain in force.
2. In matter V2001/773:
(i) The Tribunal sets aside the reviewable decision of 30 April 2001.
(ii) In substitution the determination of 25 October 2000 is varied to provide:
(a) the injury to Mr Baker's left knee, sustained on 1 November 1999, continued to result in incapacity from 25 October 2000;
(b) Mr Baker is entitled to weekly payments of compensation for incapacity for work since 22 October 2002, when work on restricted duties ceased to be made available to him; and
(c) Mr Baker continues to be entitled, pursuant to s 16 of the Act, to compensation in respect of the cost of medical treatment reasonably obtained in relation to the left knee injury.
3. The Tribunal orders, under s 67(8) of the Safety, Rehabilitation and Compensation Act1988, that Mr Baker's costs of these proceedings be paid by the respondent.
(Sgd) Joan Dwyer
Senior Member
COMPENSATION - accepted claims for compensation for left knee injury and back pain - revocation of original determinations accepting liability - whether applicant made a wilful and false representation attracting s 7(7) of the Safety, Rehabilitation and Compensation Act 1988 that he did not suffer or had not previously suffered from "that disease" - whether injury to left knee an "injury" or a "disease" or an aggravation of a "disease" - whether false statements constitute a false representation that applicant did not suffer from "that disease" - whether applicant aware he suffered chondromalacia patella - whether applicant suffered injury to his back - cease effects determination - whether applicant ceased to suffer effects of injury to left knee - decisions set aside
WORDS AND PHRASES — "injury", "disease", "wilful and false representation"
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 7(7), 14(1)
Comcare v Porter (1996) 138 ALR 469
Zickar v MGH Plastic Industries Pty Ltd (1995) 140 ALR 156
Van Reesch v Health Insurance Commission and Comcare Australia, Federal Court, 5 February 1996, 110/1996
Health Insurance Commission v Van Reesch and Another (1996) 45 ALD 302
Australian Postal Corporation v Burch (1998) 26 AAR 312 (Northrop J)
Australian Postal Corporation v Burch (1998) 156 ALR 483 (Full Court)
Kavanagh v The Commonwealth (1960) 103 CLR 547
Kennedy Cleaning Service Pty Ltd v Petkoska (2000) 200 CLR 286, [2000] HCA 45
Re Leone and Director-General of Social Security (1982) 4 ALN N104
REASONS FOR DECISION
1 October 2003
Mrs J. Dwyer, Senior Member
BACKGROUND
1. This is an application for review of two reviewable decisions made under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). The reviewable decision in matter V2001/773 was made on 30 April 2001. It affirmed a determination of 25 October 2000 to cease liability for Mr Baker’s claim in respect of "pain in left knee and lower back".. That claim had been accepted as compensable by a determination made on 9 December 1999. The reviewable decision in matter V2002/1241 was made under s.62(1) of the Act on 10 October 2002. It was "an own motion" decision by Australian Postal Corporation ("Australia Post"). It revoked the initial decision of 9 December 1999 accepting liability for "pain in left knee and lower back", and all subsequent determinations accepting liability.
2. At the hearing Mr S. McCredie of Counsel appeared for the applicant and Mr M.J. Gorton of Counsel appeared for the respondent. Mr Baker gave evidence. Evidence on his behalf was also given by Mr Hadley, an orthopaedic surgeon and by Mr Morris who is Mr Baker’s treating orthopaedic surgeon. The respondent called Mr Jones who is an orthopaedic surgeon. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 in both matters, which were numbered consecutively from page 1 to page 399. The Tribunal also had before it the exhibits tendered during the hearing.
3. The matter arises out of a claim for compensation lodged by Mr Baker on 25 November 1999, (T8 p32), claiming compensation for left knee injury and lower back pain, which he claimed was sustained on 1 November 1999. Mr Baker, in the statement attached to his claim form, described how the incident occurred. He wrote that, after putting two tubs of mail on a colleague's bench, he noticed that they were for his section, so he picked them up and turned quickly to put them into his section. At that stage he felt a sharp pain in his left knee and lower back. He rested, “it felt OK". He added:
…So I kept unloading the mail as I needed the trolley for the next load of mail to come. I went home after work. I sat down on a chair and when I got up I was very sore in my left knee and lower back so I rang Fitzroy delivery centre and spoke to Karl the manager and told him I was going to the doctors as I have hurt my knee and back. He told me to [ring] Michael Riley at the Abbotsford post office which I did and told him what happened and he made me a doctor's appointment with Doctor Flaime.
THE ISSUES
4. The issues in dispute between the parties in the two matters are:
(i)whether Mr Baker sustained injury at work on 25 November 1999;
(ii)if so, whether s.7(7) of the Act applies so that any disease or aggravation of a disease shall not be taken to be an "injury" for the purposes of the Act, on the ground that Mr Baker made a wilful and false representation that he did not suffer or had not previously suffered from that disease; and
(iii)if it is found that s 7(7) is not applicable, and that Mr Baker suffered an injury, whether he ceased to suffer any incapacity or impairment or to require medical treatment for that injury on 25 October 2000, or on any other date.
(i) whether Mr Baker suffered injury at work on 1 November 1999
5. Mr Baker gave an account of the incident at work on 1 November 1999, which was essentially similar to that in his statement in support of his claim. He explained that the incident occurred early in the morning when he was the only one present at Abbotsford Post Office. He was distributing tubs of mail to his colleagues' "sections" ready for them to start their sorting. He said the tubs he was carrying were white large letter tubs. He estimated the two tubs would have weighed about 25‑30 kilograms combined.
6. Mr Baker said that, as he picked the tubs up and turned to walk away, he felt "a sharp pain in my left knee which went up into my lower back area" (trans. p.27). He said he put the tubs down straightaway and sat down for about ten minutes and had a rest. After about ten minutes it felt "a bit sore but not over sore" so he continued work. He went home at the usual time after his shift of approximately three and half‑hours.
7. Mr Baker, as at 1 November 1999, was working two different part‑time jobs for Australia Post. At Abbotsford Post Office he worked as a box sorter from 5:30 a.m. to 9:00 or 10:00 a.m. In the afternoon he worked for Messenger Post, which is part of Australia Post from 2:00 to 6:00 p.m.
8. Mr Baker said that when he went home after his morning shift, on the day of the incident, he had some coffee and sat down and rested as usual, after coming home from his morning shift. Then, probably when he got up to have a shower before going to the afternoon job, "I felt that my knee and lower back had seized up" (trans. p27). He said that, after telephoning the afternoon supervisor to tell him that he would not be in, he went to his local doctor, Dr Wood.
9. There are significant credibility issues in this matter. Mr Baker failed to disclose in his application for employment with Australia Post (R4), completed on 13 June 1995, that he had up until that day been receiving compensation in respect of a back condition, even though the form asked, "Do you have any form of physical or mental disability?" He also gave an inaccurate employment history and inaccurate education details on that form. When he was examined by Dr Paulson, of the Australian Government Health Service, for a Health Status Assessment on 3 August 1985 (T3 pp6‑14), Mr Baker disclosed his lower back condition, but failed to disclose a number of other conditions from which he had suffered, including a fracture of the patella of the left knee sustained in a motor vehicle accident in December 1990. There are numerous inaccuracies in the medical histories obtained by examining doctors.
10. Because of those credibility issues about Mr Baker's evidence, I place considerable weight on records of medical attendances on or about 1 November 1999, when Mr Baker claims he injured his left knee and back at work. Dr Wood's certificate dated 1 November 1999 is at T26 page 75. It states that Mr Baker was suffering from "Acute pain L knee while carrying boxes".. The diagnosis is "pain L knee at work". Dr Wood recorded "…PH [past history] injury to patella '90". Dr Wood certified Mr Baker unfit for any work duties from 1‑3 November 1999 inclusive.
11. On 4 November 1999, Dr Wood saw Mr Baker again and diagnosed the injury as "Twisting injury to L knee".
12. Mr Baker said that his supervisor arranged an appointment for him to see Mr Flaim (the Facility Nominated Doctor) on 4 November 1999 and 6 November 1999. Mr Flaim certified him as suffering from “back injury" (T26 p77) and noted that he had reported symptoms of "back pain" “left knee pain”. Mr Flaim reported that Mr Baker was unfit for all work on 4 and 5 November 1999, but fit for work four hours per day, from 6 November 1999 to 10 November 1999 (T26 pp77). On 10 November 1999 he saw Mr Baker again and certified him fit to continue working four hours per day until 15 November 1999 (Tdocs p78). Restricted duties certificates from 15 November 1999 to 13 January 2000 (Tdocs pp79-82) were issued by Dr Tunaley, who was at the same clinic as Mr Flaim.
13. Mr Baker saw Mr Morris, an orthopaedic surgeon, on referral from Dr Tunaley on 1 December 1999. On 7 December 1999, Mr Morris wrote to Australia Post requesting approval for an arthroscopy of Mr Baker’s left knee. It was approved by Australia Post and carried out on 20 January 2000.
14. Mr Morris, in a report of 23 December 1999 (T12 p37), advised Australia Post that he believed the arthroscopy related to the incident on 1 November 1999, and that the diagnosis was patellofemoral chondromalacia. In a report dated 28 January 2000 (T14 p40), Mr Morris wrote that the findings at arthroscopic examination were of a Grade III chondromalacia patella. He wrote that treatment consisted of chondral debridement, that he expected Mr Baker to be fit to return to his normal duties 4-6 weeks post operatively, and to be fit for modified duties after 2 to 3 weeks.
15. I find that Mr Baker felt pain in his left knee and back as a result of a twisting movement while carrying tubs of mail at work on 1 October 1999. I make that finding on the basis of Mr Baker's evidence which is supported by the medical certification and reports of Dr Wood, Mr Flaim, Dr Tunaley and Mr Morris. I also find that, as a result of that incident, Mr Baker suffered incapacity and required medical treatment.
(ii) whether s 7(7) applies
16. If there were no issue as to the application of s 7(7) of the Act, that would be sufficient to give Mr Baker an entitlement to compensation under s 14(1) of the Act for an "injury", as that term is defined in the Act. However, in this matter there is a question as to whether s 7(7) of the Act prevents Mr Baker relying on the incident as an "injury" under the Act. That raises a number of issues. The first issue requires me to find whether Mr Baker suffered what is sometimes described as an "injury simpliciter" or “a disease” or an “aggravation of a disease”.
17. That issue is relevant because s 7(7) has effect only in respect of “disease suffered by an employee or aggravation of such a disease". It provides:
(7) A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
18. The representations relied on by the respondent, as made by Mr Baker "for purposes connected with his…employment or proposed employment", were the omission of any reference to his back condition in the employment application (R4), and to his left knee in the questionnaire relating to the examination by Dr Paulson (T3 p9 - qs 27, 29 and 36).
19. The meaning of s 7(7) of the Act was explained by Jenkinson J in Comcare v Porter (1996) 138 ALR 469 at p479. His Honour concluded that there was no difference between the words "wilful and false" and "wilfully false" and held that the clause requires that the representation be made "without any belief that it is true". His Honour explained:
…There is no reason to suppose, upon a consideration of the whole Act, that the legislature would intend to attach to an innocent misrepresentation about the existence of a disease — a subject notoriously liable to human misapprehension — the dire consequence of exclusion of the representor from the benefits otherwise available under the Act in respect of the disease and its aggravation.
In Commonwealth v Christoffelsz (1988) 18 FCR 415 79 ALR 611 and in Owens v Australian Postal Corp (Fed C of A, VG No 510 of 1992; 6 July 1994, unreported) the reasons for judgment of Neaves J and Keely J respectively assume the correctness of the construction I have given s 7(7), which was not called in question in either case.
20. Before considering whether Mr Baker's statements are "wilful and false representations", which attract the application of s 7(7) of the Act, it is appropriate to consider whether s 7(7) does apply to the claimed back and left knee conditions. It must be remembered that it applies only to "a disease suffered by an employee, or the aggravation of such a disease". In order to understand the significance of s 7(7), and to decide whether Mr Baker suffered an "injury" or a "disease" or an "aggravation of such a disease", reference must be made to s 14(1) of the Act and to the relevant definitions in s 4(1) of the Act.
21. Section 14(1) of the Act provides for liability to pay compensation in respect of an injury which results in incapacity for work. It reads as follows:
14 (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
The term "injury" is defined in s 4(1) of the Act as follows:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, thatemployment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
The term "disease" is also defined in s 4(1), as is the term "ailment". The definitions provide:
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);
22. There is authority for the view that, because compensation legislation is beneficial legislation, in situations where a condition could be characterised as either an "injury" or a "disease", the worker can contend for which ever characterisation is more beneficial in its application.
23. That was expressly stated in Zickar v MGH Plastic Industries Pty Ltd (1995) 140 ALR 156 at p187, where Kirby J stated:
…No longer is there a dichotomy between “personal injury” in its full sense and “disease injury” within the additional part of the definition. A worker is entitled to succeed if he or she can bring a claim within either head of recovery. Logically, the first question to ask, including in cases which might otherwise be classified as manifestations of a “disease”, is whether, notwithstanding that manifestation, the case falls within the primary definition of “injury” as a “personal injury arising out of or in the course of employment”.. In that context, the word “injury” should not be given a narrow meaning. It should have an ample application, in no way read down because parliament, additionally, has provided a separate head of recovery for cases of work-related diseases. It is not to the point to complain that this will lead to adventitious outcomes depending upon the nature of the precise “injury”. (emphasis added)
24. Another relevant decision which raises similar issues to those arising in this matter is the decision of the Full Court of the Federal Court in Health Insurance Commission v Van Reesch and Another (1996) 45 ALD 302. The Tribunal in that matter had found that Mrs Van Reesch had made a "wilful and false representation" that she did not suffer from a back disease in a pre‑employment medical questionnaire. The Tribunal held that because of s 29(3) of the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act"), which was similar in operation to s 7(7) of the Act, Mrs Van Reesch was not entitled to compensation in respect of a disc prolapse which was a consequence of that disease. However, her "wilful and false representation" did not exclude her from receiving compensation in respect of an "injury", in the lay sense. The Tribunal rejected Mrs Van Reesch's application, finding that her condition constituted a “disease”, and not an “injury” and that therefore she was ineligible for compensation due to s 29(3) of the 1971 Act.
25. On appeal, Finn J, in Van Reesch v Health Insurance Commission and Comcare Australia, Federal Court, 5 February 1996, 110/1996, set aside the Tribunal's decision. His Honour held that the Tribunal had failed to address the applicant’s submission that, because her incapacity arose out of a personal “injury”, rather than a “disease”, s 29(3) had no application to her case.
26. The Full Court dismissed an appeal from the decision of Finn J. Northrop J said at pp307‑308:
From a consideration of the reasons for judgment in Zickar, it follows that the first matter that should have been determined by the tribunal in the present case was whether personal injury arising out of or in the course of her employment, was caused to Mrs Van Reesch. It may be accepted that there was evidence before the tribunal to support a finding that she suffered a disc prolapse described by the treating surgeon as a "right S1 nerve root compression due to extended nucleus L5-S1" arising out of or in the course of her employment with the commission during the week commencing 13 October 1986. To adapt the wording of Toohey, McHugh and Gummow JJ in Zickar, the present case is not one of an autogenous disease. Or, to put it more accurately, it is not an autogenous disease upon which Mrs Van Reesch relies. It may be accepted that her back condition was an autogenous disease but her claim to personal injury is based on the disc prolapse which occurred. There is evidence that the disc prolapse was not an inevitable consequence of the disease. The rupture, being the prolapse, has been treated. If there was no rupture there would be no event answering the description of personal injury and Mrs Van Reesch would be driven to rely upon the definition of disease and s 29 of the 1971 Act. But there was such an event and the presence of the disease does not preclude reliance upon that event as personal injury. (emphasis added)
In the same way, the conclusion of Kirby J can be applied. A worker is entitled to succeed if he or she can bring a claim within either head of recovery. Logically, the first question to ask, including in cases which might otherwise be classified as manifestations of a "disease", is whether, notwithstanding that manifestation, the case falls within the primary definition of "injury" as a personal injury arising out of or in the course of employment. In that context, the word should not be given a narrow meaning. It should have an ample application, in no way read down because parliament, additionally, has provided a separate head of recovery for cases of work‑related diseases. (emphasis added)
In the present case, the tribunal concentrated on the disease aspect of the claim and the application of s 29 of the 1971 Act and in particular s 29 (3). As a result, the tribunal gave no proper consideration to the primary claim being made, a claim based upon personal injury irrespective of disease.
The tribunal should have considered whether the disc prolapse suffered by Mrs Van Reesch constituted personal injury arising out of or in the course of her employment. The provisions of s 29 of the 1971 Act have no relevance to that question. If the answer was in the affirmative, then s 27 imposed a liability on the Commonwealth to pay compensation to her in conformity with the 1971 Act. If the answer to the question was in the negative, the tribunal should have considered whether the disc prolapse was a disease or the aggravation, acceleration or recurrence of a disease which came within the provisions of s 29 of the 1971 Act. This would involve the question whether the employment was a contributing factor to the contraction, aggravation, acceleration or recurrence of that disease. If the answer to that question was in the negative, the disease was not a deemed injury. If the answer was in the affirmative, the tribunal then should have considered whether s 29 (3) had any application.
In the present case, the tribunal concentrated on this last question long before it became an issue. As a result it was led into error. Further, in considering that question it formed and expressed strong views as to the truthfulness of Mrs Van Reesch, views which might have no relevance to the consideration of the first question. Accordingly, on the remit, the tribunal should be constituted differently. (emphasis added)
27. The Full Court in Van Reesch was considering the 1971 Act which had different definitions of injury and disease. However, in Australian Postal Corporation v Burch (1998) 156 ALR 483, the Full Court considered the definition in s 4 of the Act. In that matter Mr Burch suffered a stroke while bending down at work. The Tribunal held that the stroke was an “injury” within paragraph (b) of the definition of injury in s 4(1) of the Act, namely "an injury (other than a disease)".. The Tribunal found:
104. In conclusion, I find that on 29 September 1994 Mr Burch experienced a sudden disturbance of his physiological state, being the occlusion of his right middle cerebral artery, which resulted in a stroke. The stroke, which has given rise to a degree of incapacity, did not occur as a result of disease. Rather, it was an injury in the primary sense, being an "injury simpliciter" in the context already explained in these reasons. As such, Mr Burch's stroke was an injury within the meaning of s 4(1) of the Act.
Thus Mr Burch was entitled to compensation under s 14 of the Act because his injury arose “in the course of the employee’s employment”.
28. On appeal, it was submitted before Northrop J (Australian Postal Corporation v Burch (1998) 26 AAR 312) that the differences between the definitions in the 1971 Act, considered in Van Reesch, and those in the Act were "so great that the principles enunciated in Van Reesch have no application to the present case". Northrop J rejected that submission. He commented, at pp314 and 317, that the draftperson of the Act did not appreciate fully the artificial meanings of the definitions of the words “disease” and “injury”.
29. His Honour, Northrop J, explained at p317:
It is readily apparent that in the S R & C Act the word "disease" has a limited meaning. The word is limited to compensational diseases, namely those that were contributed to in a material degree by the employee's employment by the Commonwealth. In the course of submissions the expression "sub-set" was used, diseases within the meaning of the S R & C Act constitute a sub-set of "ailments" as defined in that Act or of diseases as generally understood. A warning is given.. When considering the S R & C Act, the word "ailment" should be used instead of the word "disease" since the latter raises with it the connotation of a compensational disease being one that was contributed to in a material degree by the employee's employment by the Commonwealth. In many claims based on an ailment, this is the essential issue to be determined, namely was there a connection between the ailment and the employment.
After setting out the definition of “injury” in s 4(1) of the Act, (see para 21 of these reasons), his Honour continued:
It is noted that under paragraph (a) of the definition, "injury: means a "disease" as defined. Of necessity such a disease must be an ailment of a limited type (the sub‑group ailment) "suffered by an employee". The importance of paragraph (a) is that if an employee has suffered such a disease, under s 14 the Commonwealth is liable to make compensation in conformity with that section and with the S R & C Act since, by definition, it is an injury.
Secondly, it is noted that paragraph (b) otherwise excludes a disease from an injury as each is defined. Thus, for the purpose of the S R & C Act a "disease" and an "injury" as defined are mutually exclusive. The position remains the same as it was under the Compensation Act 1971. There, a compensational disease, in its normally understood meaning, was deemed to be an injury for the purpose of imposing a liability on the Commonwealth to make compensation under s 27 of that Act. The effect of paragraphs (a) and (b) of the definition of the word "injury" in the S R & C Act has the same effect.
Thirdly, it is noted that in paragraph (c) of the definition of "injury", injury is defined to mean an "injury" of a limited kind. This limited kind is in the nature of a sub-set of the set of injuries. The word injury must still have the meaning it is generally understood to have in order to determine the limits of the sub-set type injuries as defined. In this respect, the discussion of what is meant by an injury, within its generally understood meaning, in authorities binding on this Court remain binding. In particular the opinions contained from the extracts of the judgment of Toohey, McHugh and Gummow JJ in Zickar set out earlier in these reasons, should be accepted.
Fourthly, the limitation contained in paragraph (b) of the definition of "injury" has the effect of defining "injury" as a compensational injury under s 14 of the S R & C Act.
Fifthly, it is not necessary to expand upon the extension contained in paragraph (c) of the definition. This extension is similar both with respect to a disease and an injury.
Northrop J concluded that the Tribunal had been correct in concluding that Mr Burch’s stroke was an “injury” within the meaning of the Act. In his closing comments he made reference to s 7(7) of the Act, which was not relevant to the issues before him saying:
Counsel referred also to s 7 of the S R & C Act. That section contains provisions similar to those contained in the Compensation Act. Subsection 7(1) corresponds to the former s 30, subsection 7(2) corresponds to the former s 31, subsection 7(6) corresponds to the former s 31 and subsection 7(7) corresponds to the former s 29 and in particular to subsection 29(3). These provisions do not assist in determining the issue before the Court. They are directed to problems involved with equating either by a deeming provision or by definition a disease with an injury and the onus of proof in certain circumstances. It should be noted, however, that in some of the provisions of s 7, a contrary intention may appear as a result of which the word "disease" is not to be given its defined meaning. It is not necessary to consider this matter further. Similar difficulties may arise with the word "injury" appearing in other sections of the S R & C Act such as s 6. The Legislature should give serious consideration to the difficulties and uncertainties arising from the current method of using definitions of words to impose obligations in complex legislation.
30. On appeal the Full Court in Burch, at p486, summarised the case put on appeal as follows:
First, in the expression "(other than a disease)" in par (b) of the definition of "injury", "disease" is not used in the statutorily defined sense (ailment materially contributed to by employment) but in the ordinary sense of an ailment, whether or not connected with employment. Mr Burch suffered a disease in that sense; therefore he could not have suffered an injury within the meaning of par (b). Necessarily involved in that argument is the contention that not only was Mr Burch's condition properly characterised as a "disease" (in the ordinary sense) rather than an "injury" (in the ordinary sense) but, notwithstanding his alternative case advanced before the Tribunal, his disease (in the ordinary sense) was not contributed to in a material degree by his employment.
Secondly, there was no basis for the finding that Mr Burch suffered an injury in the ordinary sense, or at any rate there were insufficient findings of fact to support this conclusion.
The Full Court rejected both those submissions saying, at p486-7:
As to the first argument, we do not accept the appellant's construction of the expression "(other than a disease)". The word "disease" in that expression is used in its statutorily defined sense.
The matter can be approached in this way. In lay terms injury and disease are different concepts, notwithstanding that there may be some instances where the appropriate categorisation is problematic. But one would unhesitatingly speak of cancer or influenza as a disease and a broken leg or concussion as an injury.
Since both injury and disease are misfortunes which may have a relationship to employment, workers' compensation legislation has long provided for compensation in each case. But the necessary relationship to employment may be, generally speaking, less readily susceptible to proof of work connection for disease than injury.
The policy manifest in the drafting of the Act is to require a higher level of work connection in the case of disease. In the case of disease there has to be a contribution in a material degree by the employment. In the case of injury, it is sufficient to show that the injury arose out of or in the course of the employment - there need not be a causal connection.
Thus an employee seeking compensation, like Mr Burch, will naturally enough try first to show that he or she has suffered an injury (in the ordinary sense) because it will only be necessary then to establish that the injury arose in the course of employment. Such a claimant may, as an alternative, again like Mr Burch, seek to show that if what was suffered was not an injury in the ordinary sense, then it was a disease in the ordinary sense, and that there was contribution to a material degree by employment to that disease. This Mr Burch also attempted to do. He gave evidence as to alleged harassment in the workplace by fellow employees which contributed to his condition. But because he won on the first issue of injury (in the ordinary sense), it was not necessary for the Tribunal to reach any conclusion as to this alternative claim.
The definition of "injury" in s 4(1) is consistent with this analysis, although some confusion is caused because the alternative meanings of "injury" are set out in a somewhat illogical sequence. It would make more sense if the first possible meaning of "injury" was injury (in the ordinary sense) arising out of or in the course of employment. If an employee satisfied this lower test of work connection there would be no need to go any further. However, it is we think reasonably clear that the expression "(other than a disease)" is inserted to make it clear that par (b) of the definition, which requires only the lower level of work connection, is referring to something different from disease (in the statutory sense) referred to in par (a) which requires the higher level of work connection (contribution to a material degree). (emphasis added)
31. The Full Court also confirmed that an "injury" does not require "something external to the body." The Full Court referred to the comments of Dixon CJ in Kavanagh v The Commonwealth (1960) 103 CLR 547 at 533, to the effect that a rupture of the gullet was "an injury by accident":
"... a sudden destruction of tissue by force or pressure. It is true that the force or pressure was not exerted from without the body, but that I think makes no difference nor does it make any difference if it occurred, as it may have done, as a consequence of another organ of the body, namely the stomach, responding to a virus infection."
The Full Court rejected the view that as a matter of law “rupture or breaking is an essential prerequisite to a finding of injury (in the ordinary sense) of an internal nature”. Their Honours concluded:
In Accident Compensation Commission v McIntosh [1991] 2 VR 253 there is an extensive discussion of the concept of accident (in the ordinary sense) by Murphy J, a judge of great experience in workers' compensation. In a judgment in which Crockett and Cummins JJ concurred his Honour said (at 263):
"Long before the inclusion of these references to `disease' in the definition of `injury' [in the New South Wales legislation considered in O'Neill v Lumbey (1987) 11 NSWLR 640], claims for coronary occlusions, cerebral haemorrhage, ruptured aneurysms, aorta, oesophagus etc. had commonly been made and had succeeded if occurring during a protected period, on the basis that they were `injury by accident', being clearly a physical injury - and accidental - being unexpected by the worker at the time that they occurred: cf. Clover, Clayton & Co. Ltd. v. Hughes [1910] A.C. 242."
His Honour went on to observe (at 264):
"It is a remarkable development that today it is being suggested that in an Act which has consistently demonstrated a widening of cover to a worker, (being in the nature of social insurance or security) the inclusion in the definition of `injury' of references to disease contributed to by the employment has prompted argument that mishaps, formerly accepted without debate to be `injury', are no longer to be so considered, but are rather to be characterised as the very disease to which they are due, and excluded, unless work contributes to them." (Emphasis in original)
McIntosh was approved by Toohey, McHugh and Gummow JJ who were members of the majority in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at 335. (Of course under the Act it is only necessary to show injury (in the ordinary sense), not injury by accident: Zickar at 319.)
Here the stroke was the injury. There was no contest as to what a stroke was. It was a disturbance of the normal physiological state (Hume Steel Ltd v Peart (1947) 75 CLR 242 at 252-3) or an ascertainable lesion or dramatic physiological change (McIntosh at 257). (emphasis added)
The appeal in Burch was dismissed.
32. The High Court in Kennedy Cleaning Service Pty Ltd v Petkoska (2000) 200 CLR 286, [2000] HCA 45, considered the issue of whether a worker was entitled to compensation under the Workers' Compensation Act 1951 (ACT) in respect of a stroke at work, caused by a brain lesion which was a result of her suffering from rheumatic mitral disease. A Full Bench of the High Court (Callinan J dissenting) held that the brain lesion which caused the stroke was an "injury" entitling her to compensation even though her employment did not cause or contribute to the rheumatic mitral valve disease. The High Court refused to distinguish or reverse its previous decision in Zickar.
33. Gleeson CJ and Kirby J quoted, with approval, from the decisions of the Supreme of Victoria in McIntosh and from the Full Court of the Federal Court in Burch.. Their Honours said at pp298‑301:
…
There are differences in the approaches adopted in the majority comprised of the joint reasons of Toohey, McHugh and Gummow JJ, and the reasons of Kirby J in Zickar. But less important than the differences are the points in common which all members of the majority recognised and emphasised.
These included the reminder that a long line of decisions in Australia had recognised that an “injury”, being a sudden or identifiable physiological change, could nonetheless qualify within the ordinary application of that expression appearing in workers’ compensation legislation, although the change was internal to the body of the worker. It did not have to be external or necessarily produced by external causes. Moreover, the inclusion in the definition of “injury” in s 6 (1) of the Act of “mental injury” makes it plain beyond argument in this case that the injuries for which the Act provides are not confined to those originating externally to the body of the worker.
Secondly, the mere fact that a sudden physiological change is in some way connected with an underlying “disease” process does not, of itself, prevent the classification of such a change as an “injury” within the primary statutory provisions that apply to such a case. All the members of this court in the majority in Zickar referred with approval to the remarks of Murphy J in McIntosh, with whom both Crockett and Cummins JJ agreed. The reasoning in McIntosh was also accepted by the Full Court of the Federal Court in the present case.
34. In Petkoska, Gaudron J, who had dissented in Zickar on the ground that the meaning of "injury" was concluded by previous authority, expressed her preference for the meaning adopted by the majority. Her Honour said at p303:
...
Whether physiological change resulting from a progressive disease that is not employment-related is or is not an injury for the purposes of workers’ compensation legislation depends on the terms of the legislation in question. There is no doubt that, as a matter of ordinary language, the word “injury” is apt to include sudden physiological change resulting from a disease, as in the case of stroke resulting from progressive heart disease or the rupture of an aneurysm as a result of the progressive weakening of an arterial wall.
Gaudron J concluded, at p304:
[W]hen the words of the definition are given their ordinary meaning, they clearly extend to a sudden physiological change, even one that results from a progressive disease.
35. Their Honours McHugh, Gummow and Hayne JJ were also part of the majority in Petkoska. They delivered a separate joint judgment. Their Honours referred to the finding of fact of the magistrate that "something physical" had happened causing an injury to Mrs Petkoska's brain. Their Honours stated, at p306:
…As Gleeson CJ and Kirby J point out in their reasons for judgment, it is appropriate to treat the present case on the footing that the term “lesion” was used in the medical reports to indicate a sudden change or disturbance to the physiological state of the respondent and thus in its ordinary sense as connoting primarily an injury.
36. Their Honours in their joint judgment then went on to say, at p308:
…
The Full Court proceeded on the footing, which we do not understand as having been challenged in the appellant’s submissions to this court, that the lack of an external cause will not necessarily exclude the disabling event from being characterised correctly as a “personal injury” for the purposes of s 7 (1). Finn and Merkel JJ said that it was not a prerequisite to the finding of an “injury” which is of an internal nature, that a physical event or incident involve a “rupture or breaking”, and that an occlusion, causing a disturbance of the normal physiological state, will suffice.
The circumstance that a sudden physiological change has been caused or provoked by disease does not prevent it from constituting a “physical injury” for the purposes of s 7 (1). …
37. Thus, McHugh, Gummow and Hayne JJ expressly accepted the view expressed by Finn and Merkel JJ in the Full Court in Petkoska that a finding of an "injury" could be made where there was evidence of "a disturbance of the normal physiological state", even without any "rupture or breaking".
38. Similarly, in Zickar, Kirby J, at p183, referred to “the hallmarks of an 'injury', being a sudden and identifiable pathological change”.. I conclude from the comments of the High Court in Petkoska and of the Full Court in Burch], and of Kirby J in Zickar, that if Mr Baker suffered “a disturbance of the normal physiological state”, or “a sudden and identifiable pathological change”, in the course of his employment on 1 November 1999, that disturbance or change was an “injury” and s 7(7) of the Act has no application in this matter.
39. As Northrop J explained in Van Reesch, “[a] worker is entitled to succeed if he or she can bring a claim within either head of recovery”.. That comment was made in circumstances similar to those in this matter, where the reason for choosing to rely on an “injury” rather than a “disease”, was to avoid the effect of a provision similar to s 7(7) of the Act.
40. With that understanding, it is appropriate to turn to the medical evidence. As set out in paragraphs 13 and 14 of these reasons, Mr Morris performed an arthroscopy of the left knee on 20 January 2000. In his first letter requesting approval of the arthroscopic examination (T9 p33), Mr Morris on 7 December 1999 had simply written that Mr Baker had chondromalacia patella which was not settling with physiotherapy. In his second letter dated 23 December 1999 (T12 p37), Mr Morris wrote:
I believe that Mr Baker’s arthroscopy relates to the incident on the 1st of November 1999. The diagnosis at the present time is of patellofemoral chondromalacia and I would plan to perform chondroplasty at arthroscopy. This will be performed as a day case.
The planned arthroscopy I believe will correct Mr Baker’s knee condition, however there are many factors involved in a patient’s recovery. In general Mr Baker will be off work for a period of 2 weeks, followed by a period of light duties for a further 2 weeks. Usually 4 weeks post operatively he would be allowed to return to his normal duties.
41. In his report after surgery (T14 p40), dated 28 January 2000, Mr Morris reported that the findings were of Grade III chondromalacia patella and treatment was with chondral debridement. Mr Morris provided a somewhat more detailed report to the applicant’s solicitors on 25 March 2002 (A1). He wrote:
HISTORY
Mr Baker reported he was a 38 year old Australia Postal worker who drove a delivery van and was also a box sorter. Mr Baker presented on 1st December having injured his left knee on 1st November, 1999. Mr Baker reported he twisted on his left knee whilst carrying two trays weighing approximately 20kg. He felt a sudden sharp pain in the anterior aspect of the knee which then radiated into his lower back region. He sat down for 10 minutes and then continued working. Since that time Mr Baker had reported troubling anterior knee pain. He had been treated with physiotherapy, anti inflammatory medications and taping. He had a past history of a fractured left patella sustained in a motor car accident. This was treated operatively. Mr Baker reported this injury had occurred 10 years previously.
EXAMINATION
There was an anterior midline scar consistent with his previous surgery. There was patellofemoral irritability and patellofemoral crepitus. There was no effusion, a full range of movement and normal stability.
INVESTIGATION
X-rays were unavailable.
DIAGNOSIS
At the time the diagnosis was of a post traumatic chondromalacia patella. There had been a previous injury and a recent exacerbation.
SURGERY
Mr Baker underwent arthroscopic examination of his left knee at Mercy Private Hospital on 20th January, 2000. Findings were of a Grade III chondromalacia patella. There was a Grade III chondromalacia patella affecting the odd and medial facets of the patella. These areas were debrided using the arthroscopic shaver.
A chondral loose body was removed from the lateral gutter. Further examination of the knee was normal. Mr Baker made an uneventful recovery following surgery.
42. In evidence, Mr Morris, said that he practices exclusively in knee surgery. He explained why he had performed the debridement of the patella (trans. p108):
Because there was an obvious area of abnormal condyle surface which I felt to be responsible, at least in part, for his pain and we therefore remove the damaged surface, one, because the damaged area is unstable and pieces can break off as there was in his knee, a loose piece of chondral tissue and this causes inflammation and can cause pinching if these little bits get caught inside the knee.
Mr Morris said that at arthroscopy he had seen two small areas of fibrillated cartilage and a “loose body”. He said the loose body “was sitting in an another part of the knee, which had obviously come from the chondral surface of the patella. That was removed. But otherwise the knee looked fairly normal” (trans. p108).
43. It is not in dispute that Mr Baker had suffered a fracture of the left knee in December 1990 as a result of a motor vehicle accident. But, Mr Morris said he did not see any damage resulting from that fracture. He said it was his opinion that the chondromalacia he saw was not referable to the fracture. He explained why at trans. p109, saying that it had:
a more typical appearance of a general chondropathology that you would see in a general - in a routine situation of a patient who presents with either a sporting injury or an over-use injury, or general degeneration of the knee. But not the sort of chondropathology you would see following a fracture.
44. Mr Morris was asked to explain what he considered happened to Mr Baker’s knee in 1999. He replied, at trans. p110:
Well, obviously he had had a previous fracture of the patella, of that patella. So one must make an assumption that there was some damage to the area. He had been complaining of no symptoms at all as far as I know. All of a sudden, one day he was at work when the described injury happened, and he started complaining of symptoms, and so even though we could argue that there were probably or possibly some pathologies affecting the patella prior to injury, he was not complaining at that stage. So obviously something has happened at that injury that has made his symptoms worse, and so I would describe that as exacerbation of a pre-existing condition. Whether that be I couldn't see any evidence at arthroscopy of a pre-existing condition, but maybe there was some softening of the cartilage or damage to the bone, you know, and that this had just simply been made worse after his injury. But I just have to assume that when a person says to me, "I hurt my knee at that time and now it is sore," that that is the cause of his current symptoms, whether there was a pre-existing injury or not.
45. Mr Morris described the incident on 1 November 1999 as both an exacerbation of a pre‑existing condition and an injury. He said "obviously something has happened at that injury that has made his symptoms worse".. He did not identify precisely what pathological change occurred, but it was clear from his evidence that, when he saw Mr Baker in early December 1999, he accepted, from Mr Baker's account, that there had been "a disturbance of the normal physiological state of" Mr Baker's knee on and from 1 November 1999.
46. Mr Morris was shown the Austin Hospital report (R6) of the treatment of the left knee in December 1990 and 1991 following its fracture in a motor vehicle accident (the report has some confusion as to dates). Mr Morris explained that the surgery described, namely, “excision of the inferior pole of the left patella” related to a non‑weight bearing structure and that explained why there was no evidence, when he performed the arthroscopy in January 2000, of damage to the chondral surface of the patella referable to the 1990 fracture and repair. Nor had he observed damage to the chondral surface of the trochlea. Mr Morris explained that if there had been significant injury to the patella, leading to ongoing progressive disease since the 1990 fracture, he would not have expected to find the chondral surface of the trochlea intact, as he had noted in his operation report in January 2000. He explained the significance of the fact that he did not see any reciprocal injury on the trochlea, which is the opposite surface to the chondral surface of the patella. He said (trans. p128):
[T]he fact that I didn't [see any injury or damage to the trochlea] confirms that point, that the chondral pathology was not severe, that Mr Baker had, and had obviously not been present for a long period of time. I am talking years, possibly a year or two, or months but not for 13 years [sic, should have been 9 or 10 years] and not severe. It may have been present in a very mild form for 13 years [sic] but not severe, no.
47. In cross-examination, Mr Morris stated a number of times that he does not do medico-legal work and that the only reports he provides are from his treatment records, and from his operation notes. He agreed with Mr Gorton that he had made some assumptions. He had no record of having asked Mr Baker, when he first saw him, whether he had been having knee symptoms from his earlier knee injury prior to the incident on 1 November 1999, or of having checked whether or not there was wasting of the left leg. In spite of those criticisms of Mr Morris’ evidence, the evidence of a treating doctor, especially of a treating surgeon will almost always be the most helpful to a Tribunal in determining issues as to the nature of an injury which has required surgery (see Re Leone and Director-General of Social Security (1982) 4 ALN N104). This is because the treating surgeon sees the patient prior to the decision to operate. Further, he or she makes observations at surgery.
48. I find that the effect of the history Mr Baker gave to Mr Morris, was as Mr Morris explained (trans. p123):
[L]ook, I hurt my knee at work in November and since then I have had this pain; can you fix it? And I go about doing what I need to do to try and fix it. So I don't go into detail as to determine whether or not he had pain beforehand or not. But you are absolutely correct, I would have made an assumption that: I injured my knee in November and now it hurts; well, I make an assumption that, well, therefore, it didn't hurt before the injury. And that is just a doctor - patient relationship thing.
49. I also find, as Mr Morris said, (trans. p128), that if there had been obvious wasting of the left leg on examination, he would have noticed and documented it.
50. The evidence is that Mr Baker had been working two jobs, one of which was as a driver for Messenger Post, without difficulty prior to the incident on 1 November 1999. He said he had not been troubled by knee symptoms. There is no evidence that knee symptoms had caused any incapacity for work in the four years Mr Baker had worked for Australia Post prior to 1 November 1999. From that afternoon, four doctors who saw him all accepted that he had incapacity for work due to knee pain and he was treated with rest, physiotherapy and arthroscopy. I find that there was a “sudden and identifiable pathological change” on 1 November 1999, to use the words of Kirby J in Zickar, or a disturbance of Mr Baker’s “normal physiological state” to use the words of the Full Court in Burch, as adopted by the High Court in Petkoska.
51. Mr Jones in his report of 8 September 2000 (T18 pp50-54) expressed the opinion that Mr Baker had aggravated some pre-existing degenerative changes affecting the articular surface of his left patella when he twisted around at work on 1 November 1999, but he believed that aggravation was relatively minor and had ceased by 6 September 2000. That opinion is consistent with there having been “a sudden and identifiable pathological change” or “a disturbance of [Mr Baker’s] normal physiological state” as a result of the twisting incident at work on 1 November 1999. Mr Jones’ opinion supports a finding that Mr Baker sustained an “injury” arising out of and in the course of his employment on 1 November 1999. In fact, as Mr Gorton acknowledged, Mr Jones in his two reports described the incident of 1 November 1999 as an “injury” although in his evidence, on questioning by Mr Gorton, he said it was really an “incident” rather than an “injury”.. I find that the aggravation of the pre-existing degenerative change identified by Mr Jones, which occurred on 1 November 1999, was, on all the evidence, a sudden change in the pathological state of Mr Baker’s knee. It caused a disturbance of his “normal [pre 1 November 1999] physiological state”, so that he commenced to have knee pain which he had not suffered prior to 1 November 1999.
52. I find that Mr Baker sustained an “injury” to his left knee arising out of and in the course of his employment on 1 November 1999. Thus s 7(7) has no application to the left knee injury and Mr Baker is entitled to compensation in respect of that injury under the Act in respect of incapacity resulting from that injury.
53. Further, I find that s 7(7) of the Act would have no application to the knee pain, even if I had concluded that Mr Baker sustained an aggravation of a disease, namely chondromalacia patella. That is because the only representation which attracts s 7(7) is “a wilful and false representation that he . . . did not suffer, or had not previously suffered from that disease” (emphasis added). There is no evidence that Mr Baker was ever told that he was suffering from chondromalacia patella either following the fracture of a patella he sustained in December 1990, or at any other time prior to 1 November 1999. While Mr Baker no doubt knew that he had injured his left knee in the motor vehicle accident and that he had fractured the patella of that knee, there is no evidence that he knew that he was suffering from chondromalacia patella.
54. I do not consider it necessary to decide whether Mr Baker made “a wilful and false representation”, in T3 p9, that he had not suffered a fracture of the left patella. It may be that he did, in response to question 29 or 36, although they do not specifically ask about fractures. But even if he did, that would not make s 7(7) of the Act applicable to the knee claim. A representation that he had not suffered a fractured patella would be a representation as to an “injury” and not “a wilful and false representation that he . . . did not suffer and had not previously suffered from that disease”.
55. Similar issues arise in respect of the failure to refer to a back disability in completing the application for employment with Australia Post (R4). Mr Baker did refer to back pain in T3, but he answered "No" in his application for employment (R4) in answering the general question, “Do you have any form of physical or mental disability?”
56. Mr Gorton pointed to the WorkCover certificates at T31 pp191-195 as inconsistent with that statement. They show Mr Baker was certified as unfit for any work duties due to lumbar sprain from 12 June 1995 to 11 July 1995, which period covers 13 June, the date on which he completed R4. Mr Baker was also certified to be fit for modified duties with restrictions from 5 June 1995 to 12 June 1995.
57. Those certificates lead me to find that either Mr Baker was making wilful and false representations to Dr Pattison who gave him the certificates, or he made a wilful and false representation in filling in the application for employment with Australia Post (R4). In view of the fact that he worked for Australia Post from 17 June 1995 to 1 November 1999, apparently without significant back problems, I am not able to find that the wilful and false representation was made in R4 rather than to Dr Pattison.
58. It is not necessary for me to decide whether Mr Baker made a wilful and false representation in respect of his back. Although there is evidence of back pain as a result of the incident on 1 November 1999, that seems to have been a radiation of pain from the knee to the back in consequence of the knee injury.
59. There is no evidence of any injury to Mr Baker's back in the incident on 1 November 1999, save that Mr Baker reported that he had pain there that day and afterwards. Mr Baker described the mechanism of that pain to Mr Morris as radiating from the knee “into his lower back region” (A1). The history he gave to Mr Jones, as set out in his report of 8 September 2000 (T18 p50), was as follows:
…He saw his treating doctor on 01.11.99 who examined his left knee. The patient also asked her to check his back as he had noticed some pain in his lower back which he stated had extended up from his left knee up the back of his thigh to his back although there was no history of specific injury to his back at the time of the incident.
Mr Jones, in reply to questions asked of him, advised that he believed that Mr Baker had aggravated pre-existing degenerative changes affecting the articular surface of his left patella when he twisted around at work on 1 November 1999. He added that he was unable to relate that injury to the back symptoms, although Mr Baker had some symptoms and signs suggestive of mild degenerative disease affecting his lumbar spine. He said he could not relate the back condition to Mr Baker's employment.
60. Mr Morris did not express any opinion to the effect that Mr Baker injured his back on 1 November 1999. Mr Jones and Dr Tunaley both referred to that question and said they could not say that the incident on 1 November 1999 injured or aggravated an injury to Mr Baker's back.
61. The only medical witness supporting the view that Mr Baker's employment contributed to his back pain was Mr Hadley. Mr Baker saw him on 24 April 2002. He gave Mr Hadley an inaccurate history saying that he had had no previous history of back pain. On that history Mr Hadley expressed the opinion (A3):
As a result of working for Australia Post he is suffering from:
1.Injury to his low back with a chronic strain in the attachment of muscles to his lumbar region, from injury to his lumbar facet joints with causing or aggravating mild to moderate L4/5 facet joint arthritis on the left and from probable injury to his lumbar discs.
2.Injury to his left knee with aggravation to chondromalacia of his patella.
62. When Mr Hadley was given an accurate history, he declined to alter his opinion saying (trans. pp78-79 ):
If he had continued to have - I say if - he continued to have back pain through his employment with Aussie Post prior to November 1999 and continues to have it, then that would alter your opinion, wouldn't it as to the relationship between his current back complaints and the incident in November 1999? --- No, well as I said, his injury at work aggravated his pre-existing condition.
And his pre-existing condition which you believed did not cause him any incapacity, pain or difficulty at all? --- That is right.
I accept Mr Gorton’s submission that Mr Hadley’s opinion that the incident on 1 November 1999 aggravated a previously asymptomatic back condition, is unpersuasive, bearing in mind that he was given an inaccurate history by Mr Baker and that he did not see Mr Baker until April 2002.
63. I find that Mr Baker's current back symptoms do not result from any injury or aggravation of a back condition on 1 November 1999, but are rather lingering symptoms of the compensable back condition from which he was suffering in early 1995, when he joined Australia Post.
64. I do not find that Mr Baker suffered any "injury" to his back on 1 November 1999. I find that he felt some pain radiating from the knee to the back on that day, as a result of the "injury" to his knee.
65. My finding that Mr Baker suffered an injury to his knee on 1 November 1999 means that s 7(7) of the Act has no application to the claim for compensation in respect of left knee. Accordingly, the decision under review in matter V2002/1241 (T36 pp393-7) will be set aside. That means that the revocation of all the determinations accepting liability for the knee injury before 25 October 2000 will be set aside. In order to comply with s 43(1)(c) of the Administrative Appeals Act 1975 I will remit the matter for reconsideration in accordance with the direction that all determinations made before 25 October 2000 accepting liability to pay compensation to Mr Baker in respect of his left knee injury on 1 November 1999, remain in force.
(iii) whether Mr Baker ceased to suffer incapacity resulting from the left knee injury sustained on 1 November 1999, on 25 October 2000 or any other day
66. The next issue before the Tribunal, is the review of the reviewable decision of 30 April 2001 (T24 pp64-67), which affirmed a determination of 25 October 2000 (T22 pp60-62) ceasing liability to pay compensation for “pain in left knee and lower back sustained on 1 November 1999”. That decision was made on the basis of a report of Mr Jones of 8 September 2000 (T18 pp50-54).
67. In order to consider whether the reviewable decision should be affirmed it is necessary, first, to set out the history of Mr Baker’s treatment, symptoms and incapacity, following the arthroscopy in January 2000 until 6 September 2000, when he saw Mr Jones.
68. After his arthroscopy, Mr Baker returned to work doing restricted duties 4 hours per day, from 29 February 2000 (T26 p84). He gradually increased the hours, although still on restricted duties. The T documents show that he was working six hours a day at the Dead Letter Office from 2 May 2000 (T17 p47). In cross‑examination (trans p 55), Mr Baker said that he worked full hours at the Dead Letter Office from 30 April 2002.
69. In his first report, after seeing Mr Baker on 6 September 2000 (T18 pp50-54), Mr Jones, as set out in paragraphs 51 and 59 above, confirmed that, in his opinion, Mr Baker had sustained an aggravation of pre‑existing degenerative changes affecting the articular surface of the patella on 1 November 1999. He wrote that, given the nature of the injury and the arthroscopic findings as described by the treating surgeon, Mr Morris, he believed that the left knee condition, as at 6 September 2000, was no longer related to the event of 1 November 1999.
70. Mr Baker had given Mr Jones a history of the prior left knee injury. Mr Jones expressed the opinion that Mr Baker’s knee problems were likely to result from that prior injury. He added that he would have expected the aggravation, which may have been caused on 1 November 1999, to be only transient.
71. Mr Jones, in his report, confirmed that Mr Baker had continuing restrictions as a result of his left knee condition. He wrote in paragraphs 11‑16:
“11. This patient’s left knee condition would be aggravated by squatting, kneeling and climbing stairs or ladders. …
12. The patient would be capable of carrying out driving duties alone immediately although these periods of continuous driving should be limited to approximately an hour with the ability to get out and walk around and perhaps make light deliveries.
13. I am uncertain as to the Certificate which has been provided for this patient and whether it relates to his left knee or back. I believe it is his left knee which is his major limiting condition.
14. This patient would be capable of undertaking full-time duties as a Postal Sorting Officer on a full-time basis provided he has the option of alternating standing for one hour and sitting for one hour.
15. I believe this man could work for thirty‑six hours and forty‑five minutes given the previous restrictions.
16. In the future this man will continue to experience anterior knee pain symptoms proportionate to the amount of squatting, kneeling and stair climbing. A slow deterioration in his anterior knee pain can be anticipated with the progression of his osteoarthritis in the knee joint. There was no particular surgical treatment available for his knee condition at this time. In regard to his back it is likely that his symptoms of mild degenerative disc disease will slowly progress with the passage of time."
72. The material produced in response to summonses issued by the respondent provided information as to Mr Baker’s prior left knee injury. The best history of the injury to Mr Baker’s knee in the car accident in 1990 is probably found in the report of Dr Ward (R1). Dr Ward provided a medical report to Mr Baker’s then solicitors on or about 6 April 1993, concerning injuries Mr Baker sustained in the car accident.
73. The history of left knee injury, Mr Baker gave to Dr Ward, is set out on page 2 of Dr Ward’s report (R1) as follows.
Treatment
The fracture of his left patella required open reduction and internal fixation. Following the surgery he was placed in a plaster of Paris case for 6 weeks and he gradually mobilised on crutches. Some of the internal fixation hardware was removed at operation and he was then prescribed a knee brace which he wore for a further 4 weeks and he then attended physiotherapy at the Austin Hospital outpatient department on a regular basis for 12 weeks.
When he was discharged from the hospital’s care, he went to see his local medical practitioner (Dr Wilson) and he was referred to physiotherapy privately which he attended each week for both his cervical spine and left knee condition.
74. At page 4 of his report Dr Ward reported on examination of the left lower limb as follows:
Examination of his left lower limb revealed 1” of wasting in his left thigh muscles when compared with the corresponding level in his right thigh.
There was a well healed 5” long surgical scar over the anterior aspect of his left patella and there were signs of active irritation in his left patellofemoral articulation. There was no effusion, there were no signs of internal derangement, there were no signs of either anterior or posterior cruciate ligament laxity and there were no signs of collateral ligament laxity. Flexion of his knee joint range of movements was reduced by 30 degrees. His left calf and ankle was normal.
75. Dr Ward in 1993 obtained a history that Mr Baker had been working since October 1992 as a casual cuber/loader for IPEC and was currently working 20 hours per week and wanting to increase his working hours. He wrote as follows:
(d) Mr Baker will always have problems with his left knee joint due to the expected increased degree of degenerative change in his patellofemoral articulation with the passage of time.
(e) Basically his condition has stabilised but he will suffer an increased degree of degenerative change in his left patellofemoral articulation over that normally expected by the ageing process.
(f) There will be accelerated deterioration in his left patellofemoral articulation but at present his symptoms are improving and this degree of deterioration, although confidently predicted, is difficult to assess on prognosis.
(g) I believe that Mr Baker has suffered percentage permanent impairment which will be described shortly.
76. Dr Ward wrote that Mr Baker had flexion of the left knee reduced by 30 degrees and that he suffered post traumatic patella irregularity. He concluded his report with the following prognosis-
Mr Robert Baker is making a good recovery from his injuries. He still has residual stiffness in his cervical spine and he still has pain and stiffness in his left knee and I believe that he requires specific exercise rehabilitation of his left lower limb and would expect some symptomatic improvement.
In general I believe Mr Baker’s prognosis is good although I do point out that it is likely that he will suffer increased degree of degenerative change in his left patellofemoral articulation over that normally expected by the ageing process.
…..
I have commented that I believe that Mr Baker is fit to continue working in his present job and that he is fit for suitable employment.
I believe that Mr Baker’s left knee condition should improve symptomatically provided he follows a diligent programme of exercise rehabilitation of his left lower limb as described and I believe that a review of Mr Baker’s general condition in 6 months time would be worthwhile.
77. In his evidence Mr Baker said that he occasionally wore a knee brace and performed weight lifting exercises at home for about three years after the car accident in 1990, but that when he applied for employment with Australia Post, in June 1995, his knee had fully recovered and was not causing him any pain or restriction or impairment. He said that there was at that stage no wasting of his left thigh. He said he was not suffering any problem with his knee prior to the twisting injury on 1 November 1999.
78. Mr Baker said in his evidence that after the arthroscopy in January 2000 he was still having some pain in his knee and taking pain killers for that pain. He said he had returned to Mr Morris in late 2000 and he had recommended further surgery which Mr Baker had hoped to have. Mr Baker said that because of the determination of 25 October 2000 ceasing his entitlement to compensation, he had not had the surgery. He said he had not investigated whether it could be done as a public patient.
79. Mr Baker explained that he had not been able to return to his driving job with Messenger Post after 1 November 1999. He had returned to work at Abbotsford Post Office and then, when it became privatised, had transferred to the Dead Letter Office. He seems to have increased his hours there to six hours a day, from 2 May 2000 (T17 p47) and to full hours, from 30 April 2002 (trans. p55). Mr Baker said he could cope with that job, but he did need to take painkillers for the pain in his left knee. He said he used Panadol or Panadeine Forte which was prescribed for him by Dr Tunaley.
80. Mr Baker’s work at the Dead Letter Office came to an end when a letter was written by Australia Post dated 22 October 2002 (A2) in the following terms:
To whom it may concern
Robert Baker is currently employed by Australia Post as a Postal Delivery Officer. However due to his current medical restrictions relating to a non-work related injury he is required to take sick leave. Robert has exhausted his sick leave credits and is currently on sick leave without pay, as at 15/10/02.
Australia Post will resume paying Mr Baker his nominal salary upon his re-commencement of duty, at a date yet to be determined.
81. Mr Baker said he would return to work at the Dead Letter Office immediately, if such work were made available to him. He said he would attempt box sorting duties if they were offered, but would not be able to do his former driving duties. He said he was not currently having physiotherapy and was seeing Dr Tunaley for prescriptions of Panadeine Forte.
82. There was no evidence as to how often Mr Baker saw Dr Tunaley. Nor did Dr Tunaley give evidence. The Tribunal had a report from him dated 16 October 2002 (A4) in which he wrote:
Mr Baker was first seen by Mr Michael Flaim at this clinic on the 4/11/99 when he complained of low back pain and left knee pain after having lifted several twenty kilogram tubs of mail at work with Australia Post. He worked in two positions at the Abbotsford centre and in a messenger post position. It was noted in the history that he'd had a past injury to the knee in 1990 from a motor car accident but that he had in fact commenced employment with Australia Post in 1995 and passed their pre-employment medical and had not had knee pain, up until this injury, but had back pain in 1995. It was noted the past history was of a fractured patella in the past. He stated to us that on the 1/11/99 is when he injured his lower back and left knee with repeated lifting of mail tubs that weighed about twenty kilograms. It would therefore be our opinion that his knee pain was related to his employment with Australia Post as he stated he had been working for them for over four years without pain from the knee despite having had injuries to them in 1990. It is noted however that he already had back pain but may have further aggravated it at work with Australia Post.
The relationship to employment of the current injuries is that he continues to have pain in the knee and back since 1999 and this pain has not resolved. He is able to cope with duties but is in constant pain. It is likely he aggravated the pre-existing degenerative changes and chondromalacia patellae in the knee with the injury and this aggravation has continued.
Currently his knee pain and back pain increased during his employment but I do not think with the type of work that he is currently doing that he is aggravating the condition. It would be my opinion that his pain which was an aggravation of the pre-existing condition would probably be present whether he was at home or at work, but was aggravated in 1999.
Currently he is not fit for his pre-injury duties.
Currently he is fit for alternative duties which he is currently performing in the dead letter office. Even though he has pain while doing these duties he is able to complete a day’s work and use simple analgesics and recover well enough to attend the next day.
In relation to Mr Jones report I agree with his point a) but I disagree with point b) as Robert stated he did not have pain in the knee prior to the incident on the 1/11/99 and now he does, therefore I believe that his employment had been a causal factor and in fact aggravated the pre-existing problem. He has continued to have pain since then so the aggravation is not transient. In regards to the back injury we are unaware of his previous condition but he continues to report lower back pain that he stated he did not have prior to the incident on the 1/11/99, though reports suggest (Mr Mills) he did already have back pain prior to 1999. One would therefore conclude that his aggravation continues for the knee but I am unable to state his back is related to the 1999 aggravation as it was previously present in 1995.
In relation to the prognosis it is one of continuing deterioration over a period of time and I agree with Mr Jones in this regard.
83. As I have said above, evidence from treating doctors is helpful. I would have preferred to have heard evidence from Dr Tunaley or, at least, to have seen copies of his clinical notes. I would then have known how often Dr Tunaley had seen Mr Baker between 25 October 2000 and 16 October 2002, what complaints Mr Baker had made and what medication or other treatment Dr Tunaley had prescribed. However, as that evidence was not made available by either party, Dr Tunaley's report is the only evidence available as to the continuity of Mr Baker's knee symptoms from November 1999 until October 2002.
84. Mr Morris’ report of 25 March 2002 (A1) explains what he found when Mr Baker returned to him on 17 October 2000. He wrote:
PROGRESS
Mr Baker returned to see me on 17th October, 2000. He was complaining of ongoing anterior knee pain particularly with kneeling and ascending and descending stairs. There was tenderness over the anterior aspect of the site of previously inserted wires.
INVESTIGATION
X-rays revealed some loss of patellofemoral joint space, a subtle subchondral cyst and a small medial patella ossicle. These findings were consistent with his previous injury, surgery and subsequent patellofemoral chondromalacia. A bone scan was performed and revealed some increased uptake in the suprapatellar region and posterolaterally in the tibial plateau.
Given these findings I recommended considering further arthroscopic lateral release.
I have not had occasion to review Mr Baker since 4th December, 2000. I have not proceeded with further surgery at this time.
SUMMARY
In summary, Mr Baker suffers from chondromalacia patella. He has had a previous patella fracture treated operatively 10 years previously. He has x-ray findings of a subchondral bone cyst and a small medial patella ossicle. There does appear to be some loss of patellofemoral joint space although this is subtle. Bone scan reveals ongoing bony activity in the suprapatellar region. I feel that Mr Baker’s more recent injury in 1999 was an exacerbation of a pre existing condition. Given his failure to respond to simple arthroscopic debridgement I feel Mr Baker’s prognosis is only fair. He will have ongoing pain and crepitation associated with stair climbing and kneeling.
85. Mr McCredie asked Mr Morris to explain the significance of the x-ray findings to which he referred in his report, and in particular whether they were relevant to either the ongoing pain or the injury on 1 November 1999. Mr Morris replied, at trans. p116:
They may be. The loss of patella femoral joint space is very subjective and that - judging by the results of his arthroscopy, that probably was not the case. Certainly a subchondral cyst is relevant, and that can be secondary to chondropathology patella, or previous injury. The small medial patella ossicle is very common. May have been as a result of either the injury, the car accident, or previous injuries as a young man playing football or something like that. But I don't believe that that is relevant to his current, or was relevant to his pain at that time.
And why is that? --- The pain was in the wrong place. The area wasn't tender, so I just - usually these ossicles are totally asymptomatic.
86. Mr Morris said that the finding of “increased uptake” in the bone scan indicated that there was some inflammation which he said was a secondary phenomenon of the chondropathology of the patella and loose bodies. He said he recommended the lateral release surgery because Mr Baker had not settled down as well as he would have hoped after the arthroscopic surgery.
87. Mr Morris explained that in Mr Baker’s situation a lateral release may alleviate his pain. He said it is a low risk procedure with small morbidity and therefore could be an appropriate step to take. He described the effect of lateral release surgery (trans. p118):
The lateral release changes the biomechanical forces through the patella, or its forces through the patella onto the trochlea. The most common reason for pain is mal-tracking, or altered biomechanics. That can - very, very complex, but that can be a result of injury and weakness, and as has already been noted, Mr Baker did have, you know, some altered muscle function after his fractured patella which may have persisted. It also is a source - it is a very sensitive area, and so cutting it can reduce pain by decreasing nerve input to the patella. It used to be done very, very commonly. Almost always, for anterior knee pain syndrome. It is used much more selectively now, and I must admit, I don't do it very often, but in selected cases it is used..
88. In cross-examination Mr Gorton put to Mr Morris the history Mr Baker had given to Dr Ward in April 1993 of a painful left knee with symptoms made worse by:
(a)prolonged sitting;
(b)prolonged standing;
(c)ascending and descending steps.
Mr Baker had also told Dr Ward in 1993 that the knee occasionally had a “giving way” sensation. Mr Baker had told Dr Ward that he was not able to jog comfortably but that the knee was “slowly improving”. Those symptoms, Mr Baker agreed in cross‑examination, were the same symptoms as he was currently suffering, but he said they were "more apparent" now (trans p48).
89. Mr Morris said that the symptoms described in that report were “classically patella in origin”. Mr Morris also agreed that an observation made by Dr Ward of “active irritation in his left patello-femoral articulation” was “certainly consistent with chondro pathology of the patella”.
90. Mr Morris said that he diagnosed Mr Baker as having anterior knee pain when he saw him in December 2000, and that it was to investigate that pain that he ordered the X-rays and bone scan. Mr Morris said that the fibrillation he observed in January 2000 was reasonably advanced and could not possibly have been a consequence of the injury on 1 November 1999.
91. That is consistent with Mr Morris’ arthroscopy operation notes, which he said indicated there was fairly longstanding chondropathology. He repeated that he did not observe any evidence of lasting damage from the fracture of the patella. He said it was his opinion that the chondropathology he observed in December 1999 had been present “possibly a year or two, or months but not for 13 [sic] years and not severe. It may have been present in a mild form for 13 [sic] years but not severe” (trans. p129).
92. Mr Morris in his evidence (trans p128) explained that a common presentation is that an incident, such as a fall, or a car accident or a twist makes a knee sore. He said that even where such an incident does not cause the chondropathology, it may cause the presentation of symptoms. He referred to the question of liability in such instances as a “grey area”, and said “the patient says to me that he had the injury and now he is sore, now it hurts”.
93. The question for the Tribunal to resolve in this matter is in that “grey area”. I must decide whether Mr Baker’s knee pain and other symptoms after 25 October 2000 result from the twisting injury on 1 November 1999, or whether, by 25 October 2000, he had recovered from the twisting injury and was suffering symptoms of the underlying chondropathology which was present at the time of the arthroscopy in January 2000, but was not caused by the event on 1 November 1999. Mr Morris’ evidence did not provide much assistance in determining that issue. The question is made very difficult because of the credibility problems presented by Mr Baker's evidence.
94. As discussed earlier in these reasons, Mr Jones accepted that the twisting injury of 1 November 1999 had aggravated the pre-existing condition, but was of the opinion that the aggravation caused by the “relatively minor” injury had ceased by 6 September when he examined Mr Baker.
95. It is relevant that the symptoms described by Mr Baker to Mr Jones on 6 September 2000 were very similar to those he had described to Dr Ward in April 1993. Mr Jones wrote (T18, p51):
The patient is currently working six hours a day in the dead letter office which involves sitting for periods of one hour followed by a period of 5-10 minutes rest and walking around followed by standing for the subsequent hour. He continues to complain of problems in his left knee. He reports that squatting is painful and he has difficulty walking up and down stairs. The left knee feels sore and has a sensation that it is going to give way. Sitting or standing in one position causes his knee to ache.
96. Mr Jones provided a second report after he had examined Mr Baker again on 25 September 2002. He noted (R3 p2):
In the left knee the patient indicated pain at the front of his knee. His range of left knee movement was from zero to 150 degrees. There was slight left quadriceps muscle wasting. Some minor patello-femoral crepitus was noted and a mildly positive patello-femoral compression test. The previously noted healed surgical scar was evident.
Plain x-rays of the patient’s left knee dated 18.10.00 appeared normal.
A bone scan of both his left and right knees was produced and I was unable to discern any difference between the two joints.
Mr Jones advised:
a)This patient suffers from symptoms and signs consistent with early patello-femoral arthritis affecting his left kneecap. …
. . .
c)This patient has a significant history of a left knee injury believed to be a fracture of the patella for which he underwent internal fixation following a motor car accident in 1990.
I believe it is this that has led to his current knee condition. I believe the incident of 01.11.99 to have been no more than a transient aggravating factor for this progressively arthritic knee condition. I do not think the incident he described or his work in general has been a significant aggravating factor to the progress of his left knee condition.
97. In cross-examination Mr Jones agreed with Mr McCredie that when a person has chondromalacia Grade 3 there is wear of the articular cartilage. He explained that a twisting movement while carrying some weight can give rise to “an abrasive-type twist”. He said it is “really a translation-type movement”. He said there would be some compressive element in the articular surface of the patella. He agreed that such a movement might cause pain to someone who suffers a Grade 3 chondromalacia and that it is presumed that the pain is caused by the effects of the degeneration enervating nerves nearby.
98. Mr Jones said he did not accept that Mr Baker was not suffering any symptoms from his chondromalacia patella Grade 3 before 1 November 1999. When he was asked to explain his view, the reasons he advanced were unpersuasive (trans pp95‑97). He said it was because of the quick recovery Mr Baker had made following the incident on 1 November 1999. When it was pointed out to him that Mr Baker had not made a quick recovery, but had gone on to have an arthroscopy in January 2000, he simply changed the word to improvement. Mr Jones was unable to explain why the fact that Mr Baker had made sufficient improvement to return to light duties on restricted hours before the arthroscopy on 20 January 2000, had any bearing on whether or not he was suffering symptoms from his chondromalacia patella before 1 November 1999.
99. Mr Hadley saw Mr Baker on 24 April 2002 at the request of his solicitors. He found Mr Baker had a full range of movement of both knees with patello-femoral crepitus which was painful in his left knee but not in his right knee. There was no cruciate or collateral ligamentous instability in his knees. In the left knee there was tenderness over the medial joint line. Mr Hadley measured some wasting of the left thigh, and stated that the left quadriceps muscle was weak and wasted.
100. Mr Hadley agreed with Mr Gorton that the symptoms Mr Baker suffers, such as pain and difficulty with stairs are characteristic of chondromalacia patella. He explained that he accepted that Mr Baker may have had no symptoms in his left knee before 1 November 1999, because Mr Baker had asymptomatic chondromalacia in his right knee when he examined him.
101. Mr Hadley agreed that the scenario described by Mr Jones of a knee suffering a transient aggravation of a progressively arthritic condition is quite possible, but he added “but in this case it is not so” (trans. p78). Mr Hadley explained (trans. p78):
Well, if you take his history, his knee was apparently free of symptoms until he twisted it and then from since then, in spite of having an arthroscopy, his knee has been painful for most of the time.
102. As is apparent from that response given by Mr Hadley a great deal depends, particularly in a “grey area” such as this, on the reliability of the history given to examining doctors. Unfortunately the evidence shows that Mr Baker has very often given doctors unreliable and inaccurate histories. As well as telling Mr Hadley that he believed no fracture of his patella had been found on investigation in 1990, he also told both Mr Jones (T18 p51) and Mr Hadley (A3 p2) that he had had no injury or symptoms with his back before he worked for Australia Post. Both statements were false.
103. Mr Baker made a workers’ compensation claim for a lumbar back condition in 1995 and was on workers’ compensation payments for that condition for much of the first half of 1995. Exhibit R2 includes medical certificates certifying Mr Baker unfit for any work duties due to a lumbar sprain from 24 February 1995 to 5 March 1995 and then as fit for light duties from 6 March to 13 March 1995 with a comment “if cannot be given light duties will be unfit for all work until 13 March 1995”.. He was then certified unfit for any work duties due to lumbar sprain by Dr Pattison from 3 April 1995 to 4 June 1995 and again from 12 June 1995 to 15 July 1995. It is relevant that the sick leave records (R5) give 17 July 1995 as the date Mr Baker started work with Australia Post. I find Mr Baker must have known, when he saw Mr Jones on 6 September 2000 and Mr Hadley on 24 April 2002, that he had had symptoms and problems with his back in the first half of 1995, sufficient to cause him to be given certificates of incapacity from 24 February 1995 to 15 July 1995.
104. Further, as explained earlier in these reasons, Mr Gorton, in cross‑examination, produced documents showing that Mr Baker had made a number of false statements in relation to his application for employment by Australia Post, and to doctors who had examined him in relation to his employment and this workers’ compensation claim. I have found that those false statements are not relevant in respect of the claim for compensation arising as a result of the knee injury for the purposes of s 7(7) of the Act, because the twisting injury to the knee on 1 November 1999 gives rise to an entitlement to compensation under paragraph (b) of the definition of “injury” in s 4(1) of the Act. However, they are relevant to issues of credibility, in respect of the knee and back claim.
105. A serious credibility issue arises because Mr Baker, in his application for employment by Australia Post completed on 13 June 1995 (R4), answered "No", to a question whether he had "any form of physical or mental disability". But the WorkCover records (R2) show that, as at 13 June 1995, he was in receipt of compensation payments for total incapacity, relating to the WorkCover claim for lumbar back sprain he had made when working for his previous employer, Eibertrans. Further, in his employment application Mr Baker had set out a work history showing that he was still employed by Eibertrans. That was also not correct.
106. Another matter pointed out by Mr Gorton was that, in the questionnaire Mr Baker completed for his medical assessment for the purpose of probationary employment in the Australian Public Service, (T3 p.9), Mr Baker had stated in answer to questions 15, 17, 24, 25, 26, 27 and 29 that he did not have, and had never suffered from-
“(15) migraine or frequent headaches
(16) stomach or duodenal ulcers, or frequent indigestion
(17) hernia or rupture
(24) nervous or mental condition
(25) anxiety or stress reaction or depression
(26) back or neck pain or injury
(27) joint pain or arthritis
(29) pain in lower limbs or feet”.
107. The answers to the questions specified were all inconsistent with histories reported by doctors in the file obtained from the Transport Accident Commission (R1).
108. Mr Baker attended a medical examination for a Health Status Assessment on 3 August 1995, in respect of his probationary employment by Australia Post. He was examined by Dr Paulson of the Australian Government Health Service. The record of that examination (T3 pp7-14) shows that he gave Dr Paulson a history of an earlier injury to his back as set out at T3 p10:
“sore back - carrying a box when he fell. Bruised the lower back was off work altogether for three months (2/95 - 5/95). He then left that job and started current work. Treatment: physio, swimming, no further treatment now
NOW: back “not bad actually” can get stiff if sits too long, is ok if keeps moving. Bending and lifting ok now, has encountered no problems with the lifting …”
109. Dr Paulson examined Mr Baker on 3 August 1995 and reported, T3 p12:
Full range of spinal movement; full range straight leg raising; no neurological deficit.
He appears to have made a full recovery from the earlier back injury.
110. Dr Paulson was not told by Mr Baker that he had, until 15 July 1995, been in receipt of compensation because of the same back injury, from which she found he had made a full recovery. Nor did Mr Baker disclose to Dr Paulson in the medical questionnaire or examination that he had been involved in a motor vehicle accident in 1990 and that his injuries had included a fractured patella.
111. Other discrepancies between Mr Baker’s evidence and the histories in medical reports relate to whether he continued with physiotherapy after the determination ceasing entitlement to compensation. He told the Tribunal he might have had it once after October 2000. According to Mr Jones’ report of 30 September 2002 (R3), he told Mr Jones on 25 September 2002 that his treatment over the last two years involved physiotherapy once a fortnight to his knee and to his back. He denied having suffered headaches in the past in his employment questionnaire (T3 p10), but the reports of Dr Ward (R1) and Dr Moore (T32 pp324-329) both contain a history of headaches for some years after the 1990 car accident..
112. Another issue which causes me concern about the matter of Mr Baker’s credibility was the fact that he did not follow up Mr Morris’ suggestion of further surgery, by way of lateral release, for what he said was ongoing pain in his knee. Mr McCredie said in opening that this was because of the cease effects determination of 25 October 2000. But there was no evidence that Mr Baker had made any attempt to seek approval of that operation, or even to ask Mr Morris or Dr Tunaley whether the surgery may have been able to be performed as a public patient. The fact that Mr Baker apparently made no attempt to obtain that surgery causes me to have some reservations about his evidence of ongoing knee pain after 1 November 1999 restricting his activities.
113. I regard Mr Baker as a very unreliable witness. I turn therefore to the medical evidence to see the level of support for his evidence that he still suffers pain and other symptoms in his left knee which result from the incident on 1 November 1999. The medical witnesses who have examined him since 1 November 1999 all seem to have accepted that he was suffering pain and had some difficulties with steps and squatting and bending of his left knee. Mr Jones and Mr Hadley both reported some wasting of the left thigh and Mr Morris said the bone scan report indicated there was some mild inflammation. Mr Baker had regular physiotherapy until the cease effects determination of 25 October 2000 (T19 p55). The physiotherapist, Mr Trabanino, reported that he was giving Mr Baker “an exercise and taping regime” with which he was “managing quite well”.
114. Dr Tunaley, who saw Mr Baker as a facility nominated doctor, continued to certify him fit for work six hours per day with restrictions, which, as at 20 September 2000, were as follows (T17 p47):
No regular lifting more than 5 kgs, Occasional lifting up to 12 kgs, Alternate seated and standing work 3 hrs each with 10 min break each 50 min. No squats, stairs, climbing, No driving jobs at present.
115. I am conscious that there is no evidence as to how often Dr Tunaley has seen Mr Baker since September 2000, but I infer that he must have been seeing Mr Baker and certifying him as fit for restricted duties only, at least up to 22 October 2002 when Australia Post wrote the letter (A2) saying that Mr Baker had “current medical restrictions relating to a non-work related injury”. That suggests that Dr Tunaley would be the doctor most familiar with Mr Baker’s presentation in regard to his knee problems.
116. The only evidence as to Mr Baker’s attendances on Dr Tunaley in respect of his knee subsequent to 20 September 2000, is in Dr Tunaley’s report of 16 October 2002 (A4) in which, as set out at paragraph 65 of these reasons, Dr Tunaley wrote:
The relationship to employment of the current injuries is that he continues to have pain in the knee and back since 1999 and this pain has not resolved. He is able to cope with duties but is in constant pain. It is likely he aggravated the pre-existing degenerative changes and chondromalacia patellae in the knee with the injury and this aggravation has continued.
117. I am troubled by Mr Baker’s lack of credibility. I accept that as at 1 November 1999 he had chondropathology which, in Mr Morris’ opinion, was not related to the fracture of the patella in 1990 (trans. p109), but had been present for a shorter time. Mr Morris’ evidence is that the 1 November 1999 incident may have made symptomatic a pre-existing but asymptomatic condition. He said that is a grey area.
118. There is evidence from Mr Baker that the knee has been symptomatic since 1 November 1999 and had not been symptomatic during the time Mr Baker worked for Australia Post from mid‑June 1995 until 1 November 1999. That evidence as to a lack of symptoms prior to 1 November 1999, as I have said, is consistent with Mr Baker's extensive sick leave records (R5) which do not show any time off for a left knee condition between 1 July 1995 and 1 October 1999. Further, the evidence is that Mr Baker performed a job driving a van and delivering parcels, which would have been likely to have aggravated a knee condition, if it was symptomatic at the time. The evidence I rely on for that finding is that of Mr Morris who said (trans. p118):
Well, obviously with a patella femoral condition the knee is going to be most affected when the knee is bent, and particularly when the knee is put under load, and this is things like squatting, kneeling, climbing stairs, walking inclines and being seated for long periods of time, and the classical symptoms for patients are, "When I go to the picture theatres my, you know, after an hour my knee starts to hurt and I have got to get up and move around to stop the ache." And similarly, driving is a, you know, patients drive down to see me from the country. By the time they get there they are in trouble, because they have been sitting in one position with the knee bent for quite a while. Also the clutch. I mean, obviously driving a manual car or truck, you are required to clutch repetitively, particularly in the traffic, and that would be an absolute contra-indication to a person who is suffering from symptoms of chondropathology of the patella.
Similarly, the medical restrictions Dr Tunaley imposed after 1 November 1999 consistently stated “no driving at present” (T17 pp46-47).
119. I find, as Mr Jones wrote in his first report, that the injury on 1 November 1999 was “relatively minor”, but there is no evidence of any recovery from that injury. Mr Jones’ attempt to explain his opinion on the basis of a recovery or an improvement in the symptoms in the knee subsequent to 1 November 1999 was not supported by the evidence. There is no evidence that Mr Baker ever recovered to the extent that his knee was again pain free as it was before 1 November 1999.
120. Mr Gorton attempted to establish that Mr Baker did have some symptoms in his knee between 1995 and 1999. In his closing address he referred to an admission by Mr Baker that he had difficulty with stairs and steps while working for IPEC, as if it supported the view that Mr Baker had knee symptoms after 1994 and before starting at Australia Post. As set out in paragraph 75 of these reasons, Mr Baker worked for IPEC in 1992, which is before he reported those symptoms in his left knee to Dr Ward and Dr Moore. That does not establish that he had any problems with his left knee between 1995 and 1999.
121. With some hesitation, I find, in spite of my reservations about Mr Baker's credibility, that the evidence establishes that Mr Baker has continued to have symptoms in his left knee since the injury on 1 November 1999, and that they have resulted in incapacity for work, as certified by Dr Tunaley so that Mr Baker required work with specified restrictions. There is no evidence that Mr Baker suffered ongoing symptoms in the left knee between starting with Australia Post in mid‑1995 and 1 November 1999. Nor is there any evidence that he recovered from the injury on 1 November 1999, even though it was relatively minor. I find that his current left knee condition results from the injury on 1 November 1999 which exacerbated and made symptomatic an underlying degenerative knee condition, which had been asymptomatic for four and a half or five years prior to 1 November 1999.
ENTITLEMENT TO COMPENSATION
122. In find that Mr Baker continues to suffer incapacity as a result of the injury to his left knee on 1 November 1999. Until 22 October 2002, Mr Baker was working full hours on restricted duties, in spite of his incapacity from the injury to his left knee. Accordingly, he was not suffering any loss of income and had no entitlement to weekly payments of compensation. The evidence is that, from 22 October 2002, the work on restricted duties ceased to be made available to him and he was required to take sick leave without pay (A2). As I have found that Mr Baker has continued to suffer incapacity resulting from his knee injury on 1 November 1999, it follows that he has continued to be entitled to compensation for incapacity under s 19 of the Act from 22 October 2002 and also to the cost of reasonable medical treatment under s 16 of the Act.
123. The reviewable decision made 30 April 2001 will be set aside. In substitution the determination of 25 October 2000 will be varied to provide:
(a)the injury to Mr Baker's left knee, sustained on 1 November 1999, continued to result in incapacity for work from 25 October 2000;
(b)Mr Baker is entitled to weekly payments of compensation for incapacity for work since 22 October 2002, when work on restricted duties ceased to be made available to him; and
(c)Mr Baker continues to be entitled, pursuant to s 16 of the Act, to compensation in respect of the cost of medical treatment reasonably obtained in relation to the left knee injury.
124. Under s 67(8) of the Act, I will order that Mr Baker's costs of these proceedings be paid by Australia Post.
I certify that the 124 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member
Signed: Grace Carney
Personal AssistantDates of Hearing 18 November 2002 and 27 February 2003
Date of Decision 1 October 2003
Counsel for the Applicant Mr S McCredie
Solicitor for the Applicant Slater and Gordon
Counsel for the Respondent Mr M J Gorton
Solicitor for the Respondent Australian Government Solicitor
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