Baker and Comcare
[2008] AATA 1109
•12 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1109
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2079
GENERAL ADMINISTRATIVE DIVISION ) 2008/4014 Re JASMINE BAKER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr I Alexander, Member Date12 December 2008
PlaceSydney
Decision The decisions under review are affirmed.
....................[Sgd]......................
Dr I Alexander
Member
CATCHWORDS
COMPENSATION - injury - arising out of, or in the course of, an employee's employment - medial meniscus tear - MRI - decisions under review affirmed.
Safety, Rehabilitation and Compensation Act 1998 – sections 14, 16 and 19
REASONS FOR DECISION
12 December 2008 Dr I Alexander, Member INTRODUCTION
1. On 6 September 2002, while working as a Centrelink Customer Service Advisor, Ms Baker had a fall and injured her right knee. Comcare accepted liability for this injury.
2. In August 2006, Ms Baker lodged a claim for compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1998 (“the Act”) in respect of an injury to her right lower limb arising out of a fall at home on 6 July 2006 on the basis that her right knee had given way and caused her to fall.
3. The precise date of the claim is unclear as Ms Baker appears to have incorrectly dated her claim, but was most likely to be 18 August 2006.
4. In a reviewable decision dated 10 April 2007, Comcare affirmed an earlier determination to reject the claim.
5. In June 2008, Ms Baker lodged a claim pursuant to sections 16 and 19 of the Act for compensation for medical expenses and incapacity and in respect of an operation on the right knee that was performed in September 2006 on the basis that the operation was required as a result of the injury she suffered in 2002.
6. In a reviewable decision dated 26 August 2008, Comcare affirmed an earlier decision to reject this claim.
7. In the current proceedings, Ms Baker seeks review of the two decisions by Comcare. After having considered all the evidence and for reasons that follow, I find that Ms Baker is not entitled to compensation which means that her applications for review have been unsuccessful.
ISSUES
8. Section 14 of the Act states that Comcare is liable to pay compensation in respect of an injury suffered by an employee.
9. Section 4 defines injury as:
(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 …
10. Section 16 of the Act provides for compensation in respect of the cost of medical treatment in relation to a work related injury and section 19 of the Act provides for compensation in respect of incapacity resulting from a work related injury.
11. There is no dispute that Ms Baker suffered an injury to her right knee on 6 September 2002 in the course of her employment and that Comcare is liable to pay compensation in respect of that injury.
12. The substance of Ms Baker’s claim is that the injury she suffered at the time of her fall was a tear of the medial meniscus in her right knee and that, since that time, she has continued to suffer symptoms particularly pain and frequent “giving way” of the right knee.
13. She claims that the fall at home in July 2006 occurred because her right knee gave way and that, therefore, the fall was causally linked to her work related injury so that the injury she suffered, as a result of the fall, arose out of her employment and that, therefore, she is entitled to compensation pursuant to section 14 of the Act.
14. Ms Baker also claims that the medial meniscus tear had persisted and resulted in degenerative change, which required surgical treatment and that, therefore, she is entitled to compensation for her medical expenses and incapacity pursuant to section 16 and 19 of the Act.
15. Comcare contends that the injury suffered in September 2002 was not a tear of the medial meniscus of the right knee and that Ms Baker’s subsequent difficulties with her right knee were not related to that injury.
16. Alternatively, Comcare contends that the fall at home in July 2006 did not occur as a result of the right knee giving way and, therefore, cannot be causally linked to her accepted work related injury.
17. Thus, the relevant issues to decided in this matter are:
(i)Did Ms Baker suffer a tear of the medial meniscus in her right knee at the time of her fall at work in September 2002?
(ii)If so, was her fall at home in July 2006 causally linked to this injury to her right knee?
MS BAKER’S EVIDENCE
18. In her amended Statement of Facts and Contentions dated 5 June 2008, Ms Baker stated that on 6 September 2002 while at her workstation at Centrelink’s office in Grafton she “tripped over some electric and/or computer cabling and landed on her right knee, suffering injury”.
19. She also claimed that between 2003 and 2006 her knee “gave way” on many occasions and that from time to time this would cause her to stumble, but that she was usually able to save herself and had no serious falls until July 2006.
20. With respect to the fall at home in July 2006, Ms Baker stated that while descending the four steps from her backdoor, her right knee gave way causing her to fall down the steps. In doing so she claimed that she “twisted her right leg and knee causing her right shin to contact heavily on the post supporting the stair rails causing laceration thereto, and injury to her right leg and knee.”
21. In August 2006, Ms Baker was referred to Dr Jovanovic, Orthopaedic Surgeon, who recommended an arthroscopy of her right knee, which was performed on 12 September 2006.
22. In her oral evidence, Ms Baker described the incident on 6 September 2002 as tripping on some electrical cords, falling forward and landing heavily on her right knee.
23. She said that immediately following the incident she noticed a lot of pain and had difficulty in walking and that, subsequently, she noticed significant swelling and bruising.
24. Ms Baker indicated that she was treated with physiotherapy over a number of weeks, but continued to suffer pain and swelling as well as episodes of her leg “giving out” about three times per week.
25. In May 2003, because of continuing symptoms, Ms Baker was referred to Dr Pearce, Orthopaedic Surgeon, who recommended an operation. The operation did not occur because she had to submit a claim to pay for it.
26. In September 2003, after representation to Comcare by Ms Baker’s General Practitioner (“GP”), an MRI of the right knee was performed.
27. Ms Baker stated that in July 2004 she had another fall at work where she tripped over a child with her right knee ending on the back of the child thus breaking her fall. She said that she noticed only a small bruise on the right knee and did not submit a compensation claim.
28. Ms Baker claimed that between May 2003 and July 2006 the only symptoms she suffered “was a bit of swelling and my leg giving out approximately three times per week”.
29. In describing the incident at home on 6 July 2006, Ms Baker said that as she was going down the back stairs to collect her washing, her right leg “gave out” or “wobbled“ as she placed it on the third step causing her to fall backwards. She claimed that as she fell back her left leg bent and her right leg went up and collected the timber upright holding up the roof of the back porch thereby injuring her right shin.
30. Ms Baker said that she did not injure her back despite falling on the tile covered cement steps.
31. At the conclusion of her evidence in chief in response to prompting from counsel, Ms Baker stated that when she fell in September 2002, her right knee “would have twisted”.
32. When challenged by Counsel for the respondent as to why she had not mentioned “twisting of the knee” in her earlier evidence and why the contemporaneous clinical records do not contain any reference to a twisting injury, Ms Baker responded that she did not know.
33. During cross examination, Ms Baker said that her right knee started to give way about three times per week within two weeks of the injury in September 2002 and agreed that she would have discussed this problem with her GP.
34. With regard to the fall in July 2004, Ms Baker conceded that she had consulted Dr Le Roux in respect of a tender, swollen and bruised right knee, but was unable to recall that he had made a provisional diagnosis of medial meniscal tear.
35. Ms Baker was also unable to recall that in November 2004, Dr Le Roux had noted that she still had pain and recommended a referral to Dr Pearce.
36. In response to precise questioning by Counsel for the respondent, Ms Baker conceded that the railing on the back porch did not extend to the outside steps and that there were in fact no posts on the back steps apart from the posts at the top of the landing which were holding up the roof.
37. Ms Baker also conceded that she was carrying a clothes basket in front of her body so that she could not actually see the steps and confirmed that when she put her right leg on the third step from the top, she fell backwards onto her bottom and that her right leg went up into the air.
38. In describing her fall Ms Baker was, in my view, unable to provide a satisfactory explanation as to how she could have injured her right shin on a post that was two to three steps above and behind her right shoulder.
MEDICAL EVIDENCE
Grafton Base Hospital
39. An Emergency Department record entry dated 6 September 2002 noted a history of falling onto both knees with the right being quite tender especially laterally.
40. The report of an x-ray of the right knee performed on 6 September 2002 noted “[c]onsiderable swelling and oedema of the soft tissue above, anterior, below and medial to the patella” and “[m]inimal degenerative osteoarthropic changes in the knee joint”.
41. Clinical notes dated 6 July 2006 noted a history of “tripped onto steps” and described bruising anteriorly in the middle part of the right shin with a diagnosis of pre-tibial abrasion.
42. Clinical notes dated 13 July 2006 noted a history of injury to the shin one week ago and described cellulitis on examination. Treatment with oral antibiotics was commenced.
43. On 14 July 2006, Ms Baker was admitted because of spreading cellulitis requiring treatment with intravenous antibiotics, being discharged on 18 July 2008.
Dr Muscio, General Surgeon
44. In a letter dated 1 August 2006, Dr Muscio noted that Ms Baker had fallen “awkwardly on to her right shin in early July, sustaining deep abrasions, superficial lacerations and a large haematoma”. He added that a week later, Ms Baker presented with cellulitis that eventually settled with intravenous antibiotics.
Queen St Clinic clinical records
45. On 6 September 2002, Dr Bradshaw noted a history of tripping in computer cords at work and on examination found a large pre-patellar haematoma. Treatment included crutches, crepe bandage, ice and rest.
46. On 23 September 2002, Dr Bradshaw noted that the right knee was still stiff and sore.
47. On 18 October 2002, Dr Bradshaw noted residual pre-patellar fluid and some swelling of lower leg, but “walking normally”.
48. The next entry was in 27 March 2003 where Dr Bradshaw noted slow resolution of pain following the fall in September 2002 and commented that tenderness over upper tibia, chondromalacia patella pain and medial joint line tenderness was consistent with osteoarthritis.
49. On 31 March 2003, Dr Bradshaw noted some “arthritis on xray and some minor medial narrowing”.
50. On 9 May 3003, Dr Harding noted referral to Dr Pearce.
51. On 19 September 2003, Dr Harding noted that an MRI scan of the right knee showed some degenerative changes, intact ligaments and menisci.
52. On 16 July 2004, Dr Le Roux noted that Ms Baker had tripped over a child and injured her right knee. On examination he found the knee to be swollen and bruised with tenderness over the medial joint line and diagnosed right medial meniscal tear.
53. On 22 September 2004, Dr Le Roux noted that the knee had settled, but that there was still pain “over the medial meniscus”.
54. On 8 November 2004, Dr Le Roux noted continuing pain and suggested referral to Dr Pearce.
55. I note there is no record of any consultation with Dr Pearce.
56. Between 8 November 2004 and 10 July 2006 there was no mention of any problem with the knee in the clinical notes and, in particular, there was no mention of any problem with walking or the knee giving way.
57. In fact, there was no reference in the clinical notes to the knee giving way until 7 August 2006 when Dr Harding noted that Ms Baker thought that her knee gave way and caused her to fall down the steps at home.
Dr Pearce, Orthopaedic Surgeon
58. In a brief letter dated 30 May 2003, Dr Pearce noted that Ms Baker had injured her right knee at work and developed early swelling and bruising of the knee and that she complained of continuing pain with occasional giving way.
59. Dr Pearce noted that clinically the knee had normal alignment and was stable with full range of movement, but with some medial tenderness. He noted that the x-ray was normal and stated that it was his impression that Ms Baker had damaged the medial meniscus and that he felt arthroscopy was appropriate.
60. In response to questions from Comcare contained in a fax dated 6 June 2003, Dr Pearce made notes on the document where he wrote “possible meniscal tear R knee” and that she “claims twisting injury at work”.
61. In a letter to Comcare dated 25 August 2003, in response to a request to organize an MRI, Dr Pearce stated that in his opinion Ms Baker showed very good evidence of a meniscal tear and if he had felt she needed an MRI he would have organized one. Dr Pearce indicated that he discharged Ms Baker from his care until a decision was made in respect of arthroscopy.
Dr Bradshaw, General Practitioner
62. In a letter to Comcare dated 5 August 2003, in the context of seeking approval for an MRI, Dr Bradshaw noted that although Ms Baker complained of ongoing pain there was no history of locking, recurrent attacks of pain with effusion or giving way, which were the usual symptoms for meniscal tear.
Additional Radiological Investigations
63. An x-ray of the right knee performed on 28 March 2003 was reported as showing “patellofemoral arthritis with superior and inferior osteophytic lipping as well as medial and lateral osteophytosis.” The report also noted minimal degenerative change present in the knee joint with slight narrowing of the medial compartment.
64. The report of MRI scan of the right knee performed on 17 September 2003 noted that there was no evidence of a meniscus tear and that the medial and lateral menisci were intact. Other findings included subchondral cysts in the anterior aspect of the femoral condyle and patella, which were considered to be degenerative or post traumatic. The report also noted cartilage thinning, especially the patella articular cartilage and the weight bearing portion of the medial tibiofemoral compartment, as well as small marginal osteophytes. These findings were said to be in keeping with osteoarthritis.
Dr Jovanovic, Orthopaedic Surgeon
65. In a letter to her GP dated 11 August 2006, Dr Jovanovic noted that Ms Baker presented with a longstanding knee problem since an injury sustained on 6 September 2002 when her foot got caught in computer cords and she “twisted her knee and fell down” and subsequently, among other symptoms, her knee gave way from time to time.
66. He also noted that Ms Baker had a fall in July 2006 which “was not related to her knee”.
67. On clinical examination, Dr Jonanovic noted bilateral varus knee deformity with tenderness over the medial joint line and positive McMurray’s test on the right knee and bilateral positive patella grind tests.
68. He also noted that an MRI performed in 2002 showed early degenerative changes of the patellofemoral compartment with some degeneration of the medial meniscus, but did not show a frank medial meniscus tear.
69. He concluded that in his opinion Ms Baker had a degenerative medial meniscus tear of her right knee and commented that “[a]lthough it cannot be clearly related to her injury in 2002 I cannot for sure rule out that event as a possible cause of her problems.” He recommended arthroscopy and trimming of the medial meniscus.
70. On 12 September 2006, Dr Jovanovic performed a right knee arthroscopy, partial medial menisectomy and chondroplasty and, in the operation report, he described the findings as a degenerative medial meniscus tear as well as grade II to III degenerative changes involving the patellofemoral and medial compartment.
71. In response to a request from her solicitor seeking clarification regarding some points from the history given by Ms Baker, about her fall in July 2006 at the time of her first consultation, Dr Jovanovic wrote in a letter dated 10 November 2006 that he had contacted Ms Baker and on specific questioning she told him that “she was walking upstairs and carrying a heavy basket of clothes when her knee gave way causing her to fall directly hitting her shin against the step”.
72. He then went on to say that the fact that the original injury sustained in 2002 when Ms Baker “twisted her knee and sustained medial meniscus tear and also aggravated her degenerative changes has left her with frequent giving way in addition to all other symptoms … makes it very likely that her injury on 6 July was actually the result of problems that she developed following original injury. It is quite obvious that giving way as a constant problem following original injury in 2002 has directly caused another injury on 6 July”.
73. In his oral evidence, Dr Jovanovic confirmed that the symptom of “giving way” was commonly associated with medial meniscus injuries and was caused by part of the meniscus being caught between the “thigh bone and the shin bone” resulting in a feeling that the knee is going to buckle. He added that sometimes a person may have a temporary sensation and keep walking and sometimes they may fall to the ground.
74. In respect of the mechanism of injury, Dr Jovanovic stated that a medial meniscus tear is usually caused by twisting of the body toward the inside of the knee with the foot planted on the ground and the knee bent inwards and in slight flexion. He added that the foot must remain entirely stationery as the body moves.
75. Dr Jovanovic agreed that he found a degenerative tear at arthroscopy and indicated that this form of tear was different to a clearly traumatic tear seen soon after the traumatic injury to the knee.
76. When asked whether his findings at arthroscopy were consistent with a simple traumatic tear of the medial meniscus in September 2002, Dr Jovanovic said it was possible. When pressed he agreed that on balance it was likely if he assumed the description of the mechanism injury that been put to him by Counsel for the applicant.
77. In response to a question from the Tribunal, Dr Jovanovic conceded that from his findings at arthroscopy he was not able to determine when the degenerative tear had actually occurred, but from his experience he estimated that it was likely to be a bit older than 12 months.
78. Dr Jovanovic agreed that the MRI performed in September 2003 did not show any evidence of a tear to the right medial meniscus. He also stated that MRI is quite accurate, but that in about 4% of patients who have a medial meniscus tear the MRI is reported as normal. He quoted a published study which found MRI to be accurate in about 94% of cases. He added that in his practice he does not rely on the MRI for final diagnosis if the patient has a history suggestive of medial meniscus tear.
79. In cross examination, Dr Jovanovic agreed that in the absence of a history of a twisting injury he would not expect to diagnose a tear of the medial meniscus.
80. Dr Jovanovic conceded that he had not taken a history from Ms Baker that she had suffered a fall in July 2004, and agreed that the clinical findings at that time as described by Dr Le Roux, were consistent with a diagnosis of medial meniscus tear.
81. He also agreed that in considering the aetiology of his findings at arthroscopy in 2006 it would have been important to be appraised of the 2004 incident and that an MRI after this incident would have been helpful.
82. When pressed by counsel with regard to the probability of the meniscus tear having occurred following the incident in 2004 rather than the one in 2002 on the basis of the normal MRI in 2003, Dr Jovanovic appeared uncertain and replied that he was unable to give a probability, but that both incidents could have been responsible.
83. In response to a question from the Tribunal with reference to the x-ray findings in 2002, Dr Jovanovic commented that these finding were consistent with falling directly onto the knee cap.
Dr Hyde Page, Orthopaedic Surgeon
84. In a medico-legal report dated 5 June 2007, Dr Hyde Page noted a history that Ms Baker had a fall at work on 6 September 2002 and injured her right knee. He also noted that Ms Baker had ongoing symptoms on the knee and was referred to Dr Pearce who felt she had suffered a medial meniscus tear in the right knee and needed an arthroscopy.
85. Dr Hyde Page commented that the right knee never settled down and that Ms Baker suffered increasing pain and discomfort that caused restriction of activities and, in particular, she started stumbling and developed catching in the right knee.
86. Dr Hyde Page noted that in July 2006, Ms Baker suffered further injury when her right knee caused her to stumble and fall “3 steps to the ground” with her right leg being “caught around the stair post as she fell”.
87. He also noted that an arthroscopy was performed in September 2006.
88. Dr Hyde Page concluded that it “would appear that following the fall at work on 6 September 2002, Ms Baker suffered an injury to her right knee where she almost certainly suffered a medial meniscus tear”.
89. Relevantly, Dr Hyde Page took no history of the fall in 2004 and made no reference to the MRI performed in 2003.
90. In a supplementary report dated 13 May 2008, in response to various questions put by Ms Baker’s solicitor, Dr Hyde Page confirmed that in his opinion she had suffered a tear in the right medial meniscus in 2002 and added that if an arthroscopy had been performed in 2003 as suggested by Dr Pearce the “medial meniscus tear would not have become degenerative”.
91. In his oral evidence Dr Hyde Page stated that just prior to the hearing he did discover an MRI report which he had not seen before.
92. He conceded that his opinion was significantly influenced by the opinion of Dr Pearce on the basis that Dr Pearce was a fully trained orthopaedic surgeon.
93. When asked what weight he would give to a negative MRI, he stated that there was a false negative rate of 15 to 20 per cent and suggested that clinical examination was usually sufficient “particularly in the acute situation”.
94. In cross examination, Dr Hyde Page indicated that he only used MRI if there was something “about the patient that doesn’t fit the clinical picture” and commented that Dr Pearce gave “an emphatic picture of the lady who has torn her medial meniscus”.
95. He went on to say that the clinical opinion of a fully trained orthopaedic surgeon was usually sufficient and that investigations like MRI are used as a backup if there is any doubt.
96. In response to a question from the Tribunal, Dr Hyde Page conceded that in his own practice the clinical history and physical examination is not always consistent with the findings at arthroscopy.
97. Dr Hyde Page agreed that MRI is a highly sensitive investigation and when asked on what he basis his view that there are 15 to 20 false negatives, he said “I go to a lot of meetings, I listen to - I read a lot of journals. I can’t definitely say where I’ve gleaned that. But that’s the figure that I sort of ran on”.
98. Dr Hyde Page also agreed that notwithstanding the initial clinical findings, with a negative MRI one would “certainly go back and look at your history of examination well and truly” and implied that he would have re-examined Ms Baker to reconfirm the diagnosis.
99. Dr Hyde Page conceded that in forming his own opinion he had relied significantly on Dr Pearce’s letters and placed more weight on them than any other documents, but added he had also had the benefit of seeing Ms Baker and had gained the impression that “her knee had never settled down after September 2002”.
100. He said that that the symptoms described by Ms Baker suggested ongoing mechanical problems in the right knee.
101. Dr Hyde Page conceded that at time of writing his reports, he was not aware of an injury to the right knee in 2004 and agreed that apart from any history provide by Ms Baker he was not in a position to say when the meniscus tear actually occurred.
CONSIDERATION
102. There is no dispute that Ms Baker had a fall in the course of her employment in September 2002 and that as a result of that fall she suffered an injury to her right knee and is entitled to compensation in respect of that injury.
103. There is also no dispute that she has suffered a degenerative tear in the medial meniscus of the right knee as confirmed by the findings of the arthroscopy in September 2006.
104. Therefore, the essential question that must be resolved in deciding this matter is whether this medial meniscus tear occurred at the time of her fall in September 2002 or at some other time.
105. Ms Baker claims that it occurred at the time of her fall at work in September 2002 and relies significantly on the opinion of Dr Pearce as well as her complaints of continuing symptoms particularly the frequent and persistent episodes of giving way.
106. A significant barrier to her claim is the result of the MRI of the right knee performed in September 2007, which was reported to show normal menisci and no evidence of a medial meniscus tear.
107. In his oral evidence, Dr Jovanovic confirmed that he had viewed the MRI images and agreed that there was no evidence of a medial meniscus tear.
108. He went on to express the opinion that the MRI is quite accurate, but that in 4% of patients, who are found to have a medial meniscus tear at arthroscopy, the MRI is reported as normal.
109. Dr Jovanovic supported his opinion with reference to published research that demonstrated that the accuracy of MRI was approximately 94%.
110. In his oral evidence, Dr Hyde Page stated that he had only become aware of the MRI report in the previous 24 hours and had not viewed the MRI images himself.
111. During cross examination, Dr Hyde Page agreed that it was his opinion that there was a 15-20% false negative rate with MRI. In my view, his explanation with regard to his opinion could best be described as uncertain and somewhat unconvincing and, therefore, I have placed less weight on his opinion on this issue.
112. It follows that for Ms Baker to succeed in her claim I must be satisfied that she falls into the small group of patients who despite a normal MRI are found to have a medial meniscus tear at arthroscopy.
113. Ms Baker submits that I should be so satisfied on the basis:
·That she suffered a “twisting injury” at the time of her fall in 2002, and
·That her treating doctor, Dr Pearce, was a qualified orthopaedic surgeon and made a clinical diagnosis of medial meniscus tear, and
·Of her sworn evidence of persistent symptoms characteristic of medial meniscus tear from within weeks after the fall.
114. Comcare submits that Ms Baker’s sworn evidence was unreliable both in respect of the claim of a twisting injury and the persistence of symptoms on the basis that her evidence was significantly inconsistent with contemporaneous clinical records. Also that her evidence, with regard to her fall at home in 2006, was not only inconsistent with clinical records, but also implausible when considering the precise nature of the injury she had sustained at that time.
115. With regard to Dr Pearce’s opinion, Comcare submits that his evidence was of limited value as it is both untested and quite brief.
116. After having considered all the evidence, I find I have some difficultly with accepting Ms Baker’s submissions.
117. The precise circumstances of the fall in September 2002 appear somewhat uncertain and whether Ms Baker suffered a twisting injury sufficient to cause a medial meniscus tear is unclear particularly as the conclusion depends primarily on her own recollections, which in my view could best be described as influenced by retrospective speculation.
118. The contemporaneous clinical records of the Queen St Clinic and the Grafton Base Hospital favour a conclusion that Ms Baker had fallen in such a way that she had landed on the point of her right knee and that she suffered a prepatellar haematoma.
119. Dr Pearce appears to have seen Ms Baker on one occasion on 30 May 2003 about eight months after the injury. In a brief two paragraph letter, Dr Pearce noted continuing pain and occasional giving way and stated that his impression was that Ms Baker had damaged the medial meniscus and felt that arthroscopy was appropriate.
120. In a subsequent note, Dr Pearce refers to Ms Baker’s claim of a twisting injury at work and a possible medial meniscus tear.
121. Dr Pearce’s documentation could best be described as succinct and provides little explanation. Also, I can only agree with the observation made by Counsel for Ms Baker when in formulating a question to Dr Hyde Page he said “[n]ow there is nothing on the face of Dr Pearce’s reports, of course, to tell us precisely what clinical testing he might have carried out”.
122. I note also that the tone of Dr Pearce’s letter to Comcare, with regard to organizing an MRI, gives a clear impression that he did not appreciate any challenge to his clinical assessment.
123. I now come to the issue of Ms Baker’s sworn evidence where she claimed that within two weeks of the fall in 2002, she began to experience episodes of her right knee giving way about three times per week and that these episodes continued until 2006 when, as a result of one of these episodes, she fell down the stairs at home.
124. During cross examination, she agreed that she would have discussed these symptoms with her GPs.
125. I note that apart from the reference to giving way by Dr Pearce, there appears to be no reference to this symptom in the clinical records of the various GPs seen by Ms Baker until 7 August 2006, about one month after Ms Baker’s fall at home, and just prior to the submission of her claim for compensation.
126. Relevantly, I note that in his letter to Comcare dated 5 August 2003 Dr Bradshaw specifically stated that in respect of Ms Baker’s symptoms, at that time, there was no history of the characteristic symptoms of a medial meniscus tear, particularly any history of giving way.
127. I also note that after the MRI result in September 2003, despite several visits to her GP, there was little reference to any significant knee problem until July 2004 when Ms Baker again fell over at work and injured her right knee.
128. During cross examination, she agreed that she had suffered a fall in 2004 at work where she injured her right knee, but was unable to recall that her GP had diagnosed a possible medial meniscus tear and subsequently referred her to Dr Pearce.
129. Ms Baker appeared to try and minimise the significance of this episode and it was not clear why, despite suffering an injury at work, she did not pursue a claim for compensation.
130. Relevantly, I note that during 2005 and until her fall at home in July 2006, despite several consultations, her GP did not make any reference in the clinical notes to any problems with the right knee.
131. During precise cross examination regarding her fall at home in 2006, Ms Baker described in some detail the physical layout of her back porch and steps.
132. She also described the manner in which she fell down the steps, but was unable to satisfactorily explain how she had sustained an injury to the front middle part of her right shin. Her explanation for the injury to her right leg was, in my view, clearly not plausible.
133. I also note that the history Ms Baker gave Dr Jovanovic, when he telephoned her to discuss the circumstances of her fall, was inconsistent with her oral evidence.
134. Furthermore, in my view, the MRI showing no evidence of a medial meniscus tear in September 2003 is very persuasive in pointing to a conclusion that Ms Baker had not suffered a right medial meniscus at the time of her fall at work in 2002.
135. Although I accept the evidence of Dr Jovanovic that in a small proportion of patients the MRI appearance may be normal despite the presence of a tear, I am not satisfied that the evidence in Ms Baker’s case is sufficient, on balance, to support the contention that she falls into this small group.
136. In the face of the significant inconsistencies between the contemporaneous documentation and Ms Baker’s recollection of both her symptoms and the relevant events, I am not persuaded that the untested clinical diagnosis of Dr Pearce alone is sufficient to allow me to conclude that Ms Baker had a medial meniscus tear despite no evidence of a tear on the MRI.
137. I find, therefore, that Ms Baker did not suffer from a medial meniscus tear when she injured her right knee at work in September 2002.
138. This means that the injury to her right leg following her fall at home in 2006 and the degenerative medial meniscus tear diagnosed in 2006 did not arise out of, or in the course of, her employment and, therefore, were not injuries within the meaning of section 14 of the Act so that Ms Baker is not entitled to compensation.
139. Although I have found that Ms Baker did not suffer a tear of the medial meniscus at the time of her fall in 2002 for completeness I intend to address the opinions expressed by Dr Jovanovic and Dr Hyde Page on this issue.
140. In his letter to the GP in August 2006, Dr Jovanovic expressed uncertainty about the relationship between Ms Baker’s fall in 2002 and his clinical diagnosis of a degenerative medial meniscus tear. Also, he commented that the fall in 2006 had no relationship with the knee.
141. In a supplementary letter dated 10 November 2006, in response to a letter from her solicitor, Dr Jovanovic revised his opinion and stated that on the basis that Ms Baker had suffered a medial meniscus tear in 2002, her injuries in 2006 were very likely to have been caused by problems resulting from that injury.
142. On reading the substance of this letter, it appears that the Dr Jovanovic’s revised opinion was primarily based on Ms Baker’s version of events as he provides no other explanation. Relevantly, in neither letter does he refer to any injury suffered by Ms Baker at the time of her fall in 2004 and I can only infer that he was not told about it. Also, as already noted above, the history he was given about the fall in 2006 was inconsistent with Ms Baker’s oral evidence.
143. During cross examination when asked to consider his revised opinion in the context of the MRI in 2003 showing no evidence of a medial meniscus tear and the history of the fall in 2004, Dr Jovanovic appeared to revert to his original opinion, but was clearly unable to determine when the medial meniscus tear had actually occurred.
144. As a result of the manner in which Dr Jovanovic formulated his revised opinion and the fact that it was based on an incomplete history coupled with the reservations I have already expressed about Ms Baker’s recollection of her symptoms, I have placed less weight on his opinion in respect of issue as to whether a medial meniscus tear occurred in 2002.
145. Dr Hyde Page in his written reports clearly was of the opinion that Ms Baker suffered a medial meniscus tear in the right knee at the time of her fall in 2002.
146. Relevantly, the history on which he based his opinion did not include the fall in 2004 and he made no reference to the findings of the MRI in 2003.
147. In his oral evidence, it was clear that Dr Hyde Page had formulated his opinion primarily on the basis that Dr Pearce was a qualified orthopaedic surgeon and that, therefore, his clinical diagnosis was sufficient and also partly on Ms Baker’s reported symptoms.
148. In addition to the comments I have already made above about Dr Hyde Page’s evidence in respect of MRI, I note that I found his evidence about the role of MRI in the management of suspected meniscus tears somewhat confusing and not particularly helpful.
149. In response to a question from the Tribunal, Dr Hyde Page conceded that in view of the additional history provided at the hearing he was not in a position to say whether the medial meniscus tear had occurred in 2002 or 2004.
150. On the basis that Dr Hyde Page formulated his opinion on an incomplete history and that he had not considered the MRI, I have placed little weight on his written reports. Also, I find nothing in his oral evidence that would persuade me to change my conclusion that the medial meniscus tear of the right knee had not occurred in 2002.
151. As I have decided that Ms Baker did not suffer a medial meniscus tear when she injured her right knee at work in September 2002 and that, therefore, there is no link with her fall at home in 2006, I do not need to consider whether the fall in was caused by the giving way of the right knee.
152. I would add, however, that in my view the evidence in respect of the fall in 2006 could best be described as unreliable.
DECISION
153. For the above reasons I find that Ms Baker did not suffer from a medial meniscus tear when she injured her right knee at work in September 2002.
154. Therefore, neither the injury to her right leg following her fall at home in 2006 or the degenerative medial meniscus tear diagnosed in 2006 arose out of, or in the course of, her employment so that these were not injuries within the meaning of section 14 of the Act and Ms Baker is not entitled to compensation.
155. The decisions under review dated 10 April 2007 and 26 August 2008 are affirmed.
I certify that the 155 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member
Signed: .....................[Sgd].....................
Ms Radhika Prasad, AssociateDates of Hearing 27 August 2008 and 31 October 2008
Date of Decision 12 December 2008
Counsel for the Applicant Mr D Twoomy
Solicitor for the Applicant Mr G Egan, Lee Sames Egan Solicitors
Counsel for the Respondent Mr M Gollan
Solicitor for the Respondent Mr C Hutchins, Australian Government Solicitors
0
0
0