Boyd and Australian Postal Corporation

[2005] AATA 823

Administrative

Appeals

Tribunal

 

WRITTEN REASONS FOR ORAL DECISION [2005] AATA 823

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1171

GENERAL ADMINISTRATION  DIVISION		)              N2005/880
Re		BRIAN BOYD

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal   Senior Member, Mrs Josephine Kelly

Date of Decision   2 August 2005

Date of Written Reasons   24 August 2005

Place Sydney

Decision

1.     The reviewable decision on 19 August 2004, in proceedings N2004/1171, is varied as follows. As of 15 October 2002 Australian Postal Corporation is not liable to pay compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 for injury to the right knee.

2.     There is no order for costs for the Applicant in proceedings N2004/1171.

3.     The reviewable decision on 27 June 2005 in proceedings N2005/880 is affirmed.

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS

WORKERS’ COMPENSATION – several injuries to the right knee – only concerned with the accident that occurred in 2002 – claim for compensation for injury to right knee and compensation for medical expenses – permanent impairment claim for right knee - underlying gout condition - osteoarthritis has not developed in his knee due to work injuries – gout condition temporarily aggravated – no costs awarded - decision varied

LEGISLATION
Administrative Appeals Tribunal Act 1975 section 37
Safety Rehabilitation and Compensation Act 1988 sections 14 and 16

CASELAW
Australian Postal Corporation v Bessy [2001] FCA 266
Australian Postal Corporation v Oudyn [2003] FCA 318
Ortega v Comcare 2005 AATA 502

WRITTEN REASONS

1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Respondent requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.

WRITTEN REASONS FOR ORAL DECISION

Senior Member, Mrs Josephine Kelly         

Introduction

1.      The applicant, Mr Brian Boyd, was employed by Australia Post, the respondent, from 1989 until his resignation on 16 January 2004 (T58 at 149). For the majority of that time he was a delivery officer who rode a motorcycle delivering mail and also doing some sorting. He started work for Australian Post in Dubbo and moved to a position in Metford near East Maitland in 1997.

Issues for consideration

2.      It is not in dispute that Mr Boyd suffers gouty arthritis. 

·     The first question is whether the condition in his right knee has been aggravated by various incidents that occurred during his work in the period beginning 1991 to 2003. I am only concerned with the accident that occurred on 2002. That has become clear when I have considered the reviewable decision but evidence was given in relation to various other incidents.

·     The second question is whether he also suffers from osteoarthritis in his right knee which has developed as a result of his injuries at work.

·     The consequential question is should he be compensated pursuant to the Safety Rehabilitation and Compensation Act 1988.

Proceedings

3.      There is some confusion as to which decisions are reviewable decisions in proceedings N2004/1171, which I consider later in the decision. Proceedings N2005/880 is a permanent impairment claim for the right knee.

Evidence

4. I had a bundle of documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 in each of the proceedings. That material included various incident reports, claim forms and medical reports. A supplementary report of Professor Sambrook dated 19 May 2005 was Exhibit A1 and clinical notes from the Greenhill Medical Centre were Exhibit R1. Mr Boyd gave evidence at the hearing and Dr McGill gave evidence by telephone.

Findings

5.      Mr Boyd did his best to give evidence honestly. However, his memory was not reliable in relation to particular dates when incidents occurred or about the condition of his right knee at particular times. For example, he was asked about an incident in 2003 and could not recall it until he was prompted by the address being given. Where his evidence is inconsistent with contemporaneous records I have preferred the contemporaneous records.

6.      In 1991 Mr Boyd injured his leg, and I emphasise leg, on 1 November 1991 when he was dislodged from his motorcycle while delivering mail. His leg required three stitches for a laceration and also his lower elbow was lacerated. (T4 at 13) The question was which leg. There is only one record in a medical certificate of 1 November 1991 that states it was his right leg (part of T4, page 22).  However, the overwhelming balance of material by witnesses and his treating doctor refers to his left leg having been injured. (eg T4 at 18, 20, 23, 25 and 26) I find that his right leg was not injured in that accident although Mr Boyd's recollection now is that it was.

7.      On 28 April 2000 Mr Boyd's right leg was injured when his motorcycle stalled while he was on a gradient.  He fell to the right and took the weight on his right leg when "severe pain was felt on straightening. Proceeded in delivery causing  and aggravate" (and that is illegible). That incident report is T8. He did not finish his shift but returned to the Metford delivery centre.

8.      Mr Boyd said between 1991 and 2002 his right knee "just deteriorated". He lost strength compared to what he felt it should have been. He gave up sport including social soccer, coaching soccer and general touch football before leaving Dubbo in around 1993/94. He finds it hard to sleep now because of cramping in the knee itself and also in the calf muscle of the right leg only. He said he did not seek assistance from a doctor because he “had never been a doctor person” but relied on remedies such as Dencorub. 

9.      After the 2000 injury Mr Boyd was sent for help by Australia Post to Dr Raffan who placed him on Indocid and that doctor then sent him to Dr Tarrant who saw him on 8 June 2000 (T18, page 64). Mr Boyd said he had relief from Indocid but had been in discomfort and was unable to perform his duties.  He went to work as much as he could but had some time off work. If he did a full day's work he had difficulty riding the motorcycle and standing and sorting. He said that Australia Post had time standards but he wasn't making those standards and he lost money. He also had some physiotherapy. 

10.     When Mr Boyd saw Mr D’Amico, a rehabilitation consultant, he reported that he had injured his right knee in 1991 and jarred it again in 1999 and had two days off work (T14). There is no record of a 1999 accident involving the right knee and time off work. The only 1999 incident appears to be a bee sting to the left hip (T7 at 31). He repeated a similar history to Dr Tarrant but added that he had x-rays in 1999 which were fine (T18). When Dr Tarrant saw him on 8 June 2000 he presented with “pain and swelling, inability to weight bear…”. The doctor wished to perform an arthroscopy.  Mr Boyd was referred to Dr O'Keefe for an opinion about the need for such a procedure. (T21)

11.     The history Mr Boyd gave Dr O’Keefe was of an injury to the knee 10 years ago in a bike accident, of returning to normal duties after that and “hadn't really given him any problem up until the second incident" in 2000. Current symptoms told to that doctor including grinding and catching and occasionally giving way. He was on light duties and felt he would have difficulty going back to normal motorcycle deliveries.  That doctor's diagnosis was a “torn medial meniscus right knee” (T21).

12.     In cross-examination Mr Boyd had no memory of an incident in 1999 and I find there was no such incident in relation to his right knee.

13.     Australia Post accepted liability for the arthroscopy which Dr Tarrant carried out.  He did not find a minuscule tear:

...although in fact he had extensive gout.  There was a quite incredible coating of all articular surfaces with gout crystals and I sent a specimen to pathology which has confirmed sodium urate crystals.

14.     His recommendation for medication was “to stop an acute attack of gout". 

15.     After the arthroscopy he went back to work for a period of time which Mr Boyd described as being "under sufferance" and he didn't operate to the best of his ability.  He was worried about damaging his leg which was always tender. He returned to his normal duties, including motorcycle rounds, although he said it took more time "presenting himself to the bike", using his left leg to hold the bike and found it uncomfortable keeping his right leg in one position. He still had grinding and anything strenuous caused his knee to lock. 

16.     On 1 October 2002 Mr Boyd had another accident while on his motorbike when he was attacked by a magpie (T30, pages 81 to 82). He was on a gradient, put his right leg down and had the same sharp painful feeling as in 2000.  He knee became swollen. He finished his duties.

17.     He went on taking Indocid but he still had the grinding and locking and he was tired after 1.5 hours standing.  Before 2000 he could have stood two to three hours while sorting. For a time he did sorting on a shift of 7 hours 21 minutes when he lost his drivers licence for a short time. When on a bike he sorted with periodical 15 minute and 30 minute breaks over 3.5 hours. At break time, he said that his right knee and lower back were starting to tire out.   

18.     On 2 July 2003 another injury to his right knee is recorded (T40 and 41).  However, when asked about it Mr Boyd could not recollect it.  It was only when the address Moriarty Close, Ashtonfield was told to him that he explained that he went underneath a tree on his motorcycle while delivering mail. A branch clipped his helmet pushing him sideways when he put his right leg out and strained it which resulted in swelling.  After finishing work that day he had time off work.

19.     He stated that between the 2002 and 2003 his knee was as it was after the arthroscopy in that there was grinding. He could not recall how long it was swollen and said:

Can't recall much about knee except continual grinding.

20.     He resigned in January 2004 and has not worked since although he has made one job application to Centrelink for a computer job. He was unsuccessful in obtaining this job. His knee "is pretty much the same". He has the grinding sensation and the locking of the knee.  If he overdoes things he lies on the lounge with an ice pack or hot wheat pack. He described limits on his activities including mowing the lawn in sections over a period of seven days, walking no further than 500 metres to one kilometre and difficulties with various kinds of gradients and terrain.  Otherwise if he goes too far and his knee becomes sore he will go home by taxi or train and hobble the rest of the way. When he overdoes it and he feels it in his knee, it feels like it is cramping or tired. If sitting in a chair for a quarter of an hour when he gets up his knee is tight but it will loosen up after a short walk. He gave up bowls about two years ago because of the embarrassment of trying to get up out of a chair and not being able to.

21.     When asked about the medication he is now taking he said Zyloprin has been suggested for his arthritic condition and he will try that.  He has tried magnet therapy which did not help and takes Indocid when he needs it.  He says he takes it regularly once a fortnight, two tablets, 25 milligrams and one tablet every four hours with food until he has recovered.  He also uses the ice pack and heat pack referred to earlier.

22.     I find that Mr Boyd was not bothered regularly by his right knee pain from 1991 until the 2000 incident. I accept that it progressively deteriorated in that period.  That is what he told Dr O'Keefe as set out above and also what he told Dr Caldwell earlier this year. Accordingly the history given to Professor Sambrook of right knee problems within two years of an injury in September 2002 is not supported by any other material and as I say I do not accept Mr Boyd's evidence to the contrary.

23.     I do not give any weight to Mr Boyd's giving the 1992 date instead of the 1991 injury date but find he was referring to his previous motorcycle accident in 1991 as set out above.

24.     Mr Boyd had been diagnosed with gouty arthritis on 22 July 1999 when he suffered acute swollen great toe. There was a report of gout in his swollen right hand on a date some time in late 2002 or early 2003 (Exhibit R1).

25.     It is clear that Mr Boyd had a substantial level of alcohol intake of six schooners of beer a day for some years, probably since he joined Australia Post, although at the moment it is rather less. He lost his licence two years ago for a low range PCA offence. That alcohol intake has contributed to his gout condition in the opinion of both Professor Sambrook and Dr McGill.

Findings on the Medical Evidence

26.     Dr McGill, consultant rheumatologist provided a report at T12.  In summary he gave a history of the 2000 episode with no mention of the 1991 episode.  That doctor's opinion is that it is without doubt that Mr Boyd suffers a gout condition in the right knee and that is the explanation of the episodes occurring at the time of the accident from 2000 and the other incidents described above. Mr Boyd mentioned no history other than his right knee although he did acknowledge that his left foot swelled up every two weeks since 2000.  There was not much of a problem with his right foot although there were abnormal signs. He had a swollen left index finger. When specifically asked about his elbows he said they are actually quite shocking. The other joint involvement came out only with specific questioning.

27.     When Dr McGill was asked during oral evidence about Dr Gabriel's opinion of 8 September that no other joints were involved he expressed surprise and said that Mr Boyd has marked gout with deposits all over the place and that such deposits or tophi take years to develop. So that in September 2004 they would have been obvious. Dr McGill also considered that the condition was not permanent and that appropriate treatment would improve it over the long term.

28.     When asked about Professor Sambrook's reports of 19 May 2005, which refers to x-rays which were said to be taken on 31 May 2005, but in any event were considered in a report purportedly dated 19 May 2005, Dr McGill said that he had not seen them, although he conceded that they would be helpful.  When the report in Dr Sambrook's report was read to him, Dr McGill suggested that those comments reflected generally synovitis with loss of medial and lateral cartilage which was symmetrical in both knees of equal degree and that such an appearance on x-ray was of gouty arthropy not that of osteoarthritis which shows usually asymmetrical loss.  The description was of gouty arthropathy and that was consistent with his clinical findings.

29.     Consequently, Dr McGill said that Mr Boyd's problems in his right knee arose from gout and he did not agree that there was osteoarthritis in this case and that the condition was not related to the right knee trauma which has been set out in the various incidents discussed above. He also said that the appropriate form of medication was a key strategy to control the uric acid level in the blood such as a medication of Allopurinol to give a lower uric acid level. In the early phase of treatment the patient may suffer from frequent attacks of gout.  It has to be done slowly or something else also has to be used to reduce the pain but the patient must not reduce the medication. 

30.     He said there would be a steady progressive improvement in his capacity.  He also said a reduction in alcohol would have two advantages. Firstly it would be  easier to keep uric acid levels in the ideal range plus he said that people who are taking too much alcohol are not good at taking medication. Just in relation to Allopurinol I would note that at some time in 2004 Mr Boyd had been taking that and that had apparently ceased.  Why this was the case was not investigated and there was no evidence before me.

Conclusion

31.     My conclusion is that I prefer Dr McGill's opinion to that of Professor Sambrook.  While Professor Sambrook diagnosed polyarticular gout affecting "at least his right knee and both olecranon bursae.” and he referred to a probable involvement of the left great toe and possible involvement of the left knee:

There is also a degree of co-existing osteoarthritis given the joint space narrowing on x-ray.

32.     Although he did have the x-rays his findings based on them are contrary to Dr McGill's view and, having had the advantage of Dr McGill's oral evidence and cross-examination, I prefer his view.

33.     In summary, Professor Sambrook accepted that gout accounts for a proportion of Mr Boyd's ongoing symptoms but he attributes a contribution to osteoarthritis which may, he says, well be a separate condition secondary to the injuries he sustained at work. His diagnosis of that condition sounds very speculative in my opinion. He also discounted Dr Tarrant's findings on arthroscopy which I do not find persuasive.

34.     For the above reasons I find that Mr Boyd suffers from gout in the right knee which has been aggravated by injuries that have occurred during his employment relevantly in 2002 and 2003. Those aggravations have not made the underlying condition worse but have been temporary.  I do not accept that the case of Australian Postal Corporation v Bessy [2001] FCA 266 precludes compensation for such temporary aggravation when that decision is read fully in its context. See paragraphs 6 to 9.

Having made those findings what are the appropriate decisions? 

35.     Given my finding that Mr Boyd has suffered temporary aggravations of an underlying gout condition which is not related to his employment as a result of the injuries in 2002 and 2003 and that the gout condition is in any event treatable, I affirm the decision of 27 June 2005 refusing the claim for permanent impairment for the right knee in proceedings N2005/880.

36.     A decision in proceedings N2204/1171 is more difficult.  First, which decision or decisions are to be dealt with. There was a dispute between the parties, however a clear reading of the reviewable decision dated 19 August 2004 is that the only decision the subject of that reconsideration is that of 25 July 2003 (T67 at 161, second and third paragraphs). There was an opportunity for Mr Boyd's solicitor to clarify what was in issue but that was not done in an appropriate time and has not been sorted out since.

37.     Although the respondent did not take a jurisdictional point in relation to the other decisions said to be the subject of that request it is not open to me to make a decision that goes beyond the reviewable decision. My findings on the 2003 accident set out above may be of assistance to the parties in relation to that matter.

38.     In light of the decision of 25 July 2003 the reviewable decision must be varied to accord with the principles in Australian Postal Corporation v Oudyn [2003] FCA 318. Accordingly, I vary the reviewable decision and find that as of 15 October 2002 Australia Post was not liable to pay compensation pursuant to the Safety Rehabilitation and Compensation Act sections 14 and 16, for an injury to the right knee.

Costs

39.     I have a discretion in relation to costs in proceeding N2004/1171. I note the effect of this order is to alter the decision so that it does accord with Oudyn.  Mr Elliott for the respondent relied on a case of Ortega v Comcare 2005 AATA 502, a decision of Senior Member Constance in which a similar circumstances arose, that is that the applicant was unsuccessful in the substantive matter but the decision had to be varied or substituted because it was in breach of Oudyn.  In that case there was no order as to costs of the proceedings.

40.     In this matter, unfortunately Mr Boyd has not been successful in these proceedings in the substantive matter and, given my discretion, it is my view that it is also not appropriate to make an order for costs in that case.

41.     In relation to the other proceedings, N2005/880, the question of costs does not arise as Mr Boyd was not successful.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly

Signed: Miss Sacha Keady
  Associate

Date/s of Hearing  1 August 2005
Date of Decision  2 August 2005
Date of Written Reasons          24 August 2005
Counsel for the Applicant         Mr M Vincent
Solicitor for the Applicant          Bale Boshev Lawyers
Counsel for the Respondent     Mr G. Elliott
Solicitor for the Respondent     Graham Jones Lawyers