Balit and Australian Postal Corporation (Compensation)

[2017] AATA 3055

Balit and Australian Postal Corporation (Compensation) [2017] AATA 3055 (30 October 2017)

Division:GENERAL DIVISION

File Number(s):      2015/5990

Re:Reinee Balit

APPLICANT

AndAustralian Postal Corporation

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:30 October 2017

Place:Sydney

The reviewable decision of 14 September 2015 is set aside and substituted with the following: the Applicant suffered a bone injury to her right knee in the fall on 4 November 2014 which had a destructive effect on the right knee cartilage resulting in continuing aggravation and acceleration of the condition of osteoarthritis in the right knee giving rise to an entitlement to compensation pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1998 as and since 15 June 2015.

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

Senior Member M J McGrowdie

CATCHWORDS

WORKERS COMPENSATION – fall causing injury to right knee- whether effects of injury continue – whether effects of the injury continue - aggravation/acceleration of an underling osteoarthritic condition of the right knee – establishment of entitlement to compensation for incapacity and medical expenses – decision under review set aside and substituted     

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16 and 19

CASES

Martin v Australian Postal Corporation [1999] FCA 655

REASONS FOR DECISION

Senior Member M J McGrowdie

30 October 2017

INTRODUCTION

1. The applicant, Reine Balit, was born in January 1953. She had a fall at work on 4 November 2014 when she was working with the respondent, the Australian Postal Commission. In this fall, she injured her right knee. For a considerable period before the fall, she suffered bilateral knee pain, particularly in the right knee, due to underlying arthritis. There is little doubt that she will need right knee replacement surgery. The applicant brings these proceedings following a determination by the Respondent, being the reviewable decision dated 18 September 2015 affirming an earlier determination dated 15 June 2015, that there was no present liability to pay compensation to the applicant under section 16 and 19 of the Safety. Rehabilitation and Compensation Act 1988 (Cth), as the effects of the injury in November 2014 had resolved.

   LEGISLATIVE SCHEME

2. The applicant is seeking compensation for medical expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) and for incapacity under section 19 of the Act.

3. Injury is defined in section 5A to include an aggravation of a physical injury suffered by an employee (s 5A(1)(c)). Pursuant to section 4, ‘aggravation’ includes acceleration. Of course, changes in pathology will be relevant in determining an aggravation.

   ISSUES

4. The issue is whether the effects of the November 2014 injury to the right knee continue giving rise to an ongoing entitlement to weekly compensation and/or medical expenses.

   CONSIDERATION

5. In 2013 the applicant had a fall at home and fractured a bone in her left foot requiring her to wear a boot.  This placed stress on her right knee and caused symptoms in her right knee, by way of pain and limitation of movement.  She was off work from November 2013 to March 2014.  She returned to work essentially on her full casual duties.

6. However, she did see Dr Gursel, Hip and Knee Surgeon, on the referral of Dr Cameron, the applicant’s general practitioner, before the fall in November 2014.  An MRI scan dated 19 May 2014 of the right knee showed quite advanced arthritis.  It was Dr Gursel’s view that the applicant would ultimately require a total knee replacement earlier than otherwise would have been the case.  Dr Gursel has provided a number of reports.

7. Dr Gursel also saw the applicant subsequent to the November 2014 fall at work.  He gave oral evidence at the hearing.  Consistent with his written opinion, Dr Gursel expressed the view that the fall at work in November 2014 exacerbated her previous problems from which she had made a reasonable recovery.  Dr Gursel considered that the applicant suffered a bone injury and oedema in the fall and that as a result the cartilage over the top of the bone, degrades and breaks down more quickly than it would otherwise do.  As a consequence of this, the applicant would require a knee replacement sooner than if the applicant had not suffered the damage to the knee sustained in the fall.

8. Further, according to Dr Gursel the applicant’s right knee problems remained worse following the fall.

9. Associate Professor McGill also gave evidence at the hearing and has produced a number of reports at the request of the respondent.

10. When A/Professor McGill gave oral evidence he accepted that the fall would have caused bone oedema but that this would resolve and that the applicant would go back to her already existing cartilage problems.  Further, A/Professor McGill did not consider that the second MRI scan indicated that there had been a change in the cartilage problem and one would expect that her right knee would deteriorate over time.  The A/Professor was prepared to accept that any acceleration of her right knee condition would continue to be accelerated and that the fall had the potential to damage cartilage although this was not apparent on the MRI and one was dependent on the clinical history.

11. Both Dr Gursel and A/Professor McGill had available to them an MRI scan of 2 December 2014, post the fall, that could be compared to the earlier scan of 19 May 2014.  The later scan showed increased bone marrow oedema reflecting bone stress.

12. The applicant gave oral evidence and the hearing that the problems in her right knee have remained heightened since the fall.  Following the fall, the applicant ceased work although returning for a short time on restricted duties.  In mid-January 2015 the applicant travelled to Canada as was her plan, as her daughter there had recently had a baby.  The applicant developed leg problems in the flight and was investigated for deep vein thrombosis but not confirmed.  She also experienced problems with her recently injured right knee.

13. Tendered on behalf of the applicant was a Statement from the applicant’s daughter, Corrine Balit.  Mrs Balit is a medical graduate from Sydney University.  She says that upon her mother’s arrival the applicant was experiencing significant pain in the right knee with restricted movement.  The applicant spent most of her time indoors at her daughter’s home and managed her pain with anti-inflammatories.  There was no new trauma.

14. No doubt the long flight caused the applicant problems with her recently injured right knee.  There is no real suggestion that there was any alteration in pathology as a result of the flight.

15. As stated in the Federal Court by Burchett J in Martin v  Australian Postal Commission [1999] FCA 655, at [36]:

    Mr Martin’s condition of disability was attributable to something other than the aggravation or acceleration only in the sense that the underlying osteoarthritis was a predisposing cause upon which the aggravation or acceleration operated.

16. Upon review of the evidence I am of the opinion that the fall of November 2014 did result in an alteration of pathology in the manner explained by Dr Gursel.  That is, the fall caused bone oedema which accelerated the deterioration of cartilage in her right knee.  Dr Gursel had the benefit of seeing the applicant both before and after the November 2014 fall and was clearly of the view that there had been a significant worsening in respect of her right knee condition following the fall that has continued.  He was clear in his opinion as a surgical specialist of the knee of how the oedema would rapidly result in cartilage destruction in an already damaged knee.  The respondent takes the applicant as they find her and the fall in my view permanently aggravated/accelerated the pathological changes in her knee.  In this regard I accept the evidence of Dr Gursel and with the acceptance by A/Professor McGill that once accelerated the condition remains accelerated.  I believe that this occurred to a significant degree.

    DECISION

17. In conclusion, the reviewable decision of 14 September 2015 be set aside and instead a decision be substituted that the Applicant suffered a bone injury to her right knee in the fall on 4 November 2014 which had a destructive effect on the right knee cartilage resulting in continuing aggravation and acceleration of the condition of osteoarthritis in the right knee giving rise to an entitlement to compensation pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1998 as and since 15 June 2015.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

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

Associate

Dated: 30 October 2017

Date(s) of hearing:	19, 20 October 2016
Counsel for the Applicant:	Mr G Barter
Solicitors for the Applicant:	Mr A Albornoz, Team Legal Group
Solicitors for the Respondent:	Mr B O'Brien, Moray and Agnew