Brereton and Australian Postal Corporation
[2001] AATA 594
•27 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 594
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q99/1389, Q00/18
GENERAL ADMINISTRATIVE DIVISION )
Re SHIRLEY CLAIRE BRERETON
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Deputy President DP Breen, Presidential Member
Date27 June 2001
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant, SHIRLEY BRERETON, be paid compensation pursuant to Sections 14, 16, 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 in accordance with these reasons. The Tribunal further directs that the respondent pay the applicant's costs as agreed, or failing agreement, as taxed by the District Registrar of the Tribunal in accordance with the Tribunal's Practice Direction.
(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
COMPENSATION - whether meniscal tear and osteoarthritis were work-related - whether the impact of work factors can be separated from underlying degeneration in terms of impairment.
Safety Rehabilitation and Compensation Act 1988 ss 4, 4(9), 14(1), 16(1), 19(4), 24 (1), (2),(4), (5) and (7), 27(1)
Re Prica and Comcare (1996-7) 44 ALD 46 at 51
Comcare v Amorebieta (1996) 66 FCR 83 at 96
REASONS FOR DECISION
27 June 2001 Deputy President DP Breen, Presidential Member
This was an appeal against a decision of the respondent dated 10 February 1998, which was affirmed by internal review on 3 May 1999, determining that any condition which the applicant suffered with respect to her knees was not related to her employment with Australia Post.
The matter was heard by me in Ballina on 26 February and in Brisbane on 27 and 28 February 2001. The applicant, Shirley Brereton, was represented by Mr M Perry of Counsel instructed by Messrs Mitchell Playford and Radburn. The respondent was represented by Mr N Polin of Counsel instructed by Messrs Sparke Helmore. Written submissions were received from the respondent on 18 May 2001 and from the applicant on 1 June 2001. No request was received for an opportunity to present submissions in reply.
Oral evidence was taken from the applicant; Dr Peter Jackson, Muscular Skeletal Physician and Dr Bruce Martin, Orthopaedic Surgeon. The following documents were also taken into evidence:
Exhibit 1 "T" Documents
Exhibit 2 Report of Dr Peter Jackson dated 4.3.00
Exhibit 3A Report of Dr A. David N. White dated 7.4.98
Exhibit 3B Report of Dr A. David N. White dated 28.4.99
Exhibit 3C Report of Dr A. David N. White dated 5.10.00
Exhibit 4 Notes of Dr A Castagna
Exhibit 5 Memo from Far North Coast County Council dated 27.6.97
Exhibit 6 Various reports of Dr Ray Randle
Exhibit 7 Extra Reports and x-rays reports from Dr Castagna
Exhibit 8 Report of Dr Bruce Martin dated 29.11.00
Exhibit 9 Separate Report of Dr Bruce Martin dated 29.11.00
Exhibit 10 X-ray Report of Dr Barbara A Laing dated 24.11.00
Exhibit 11 Report of Dr Neil G Thompson dated 28.7.99
Exhibit 12 Report from North Coast Radiology dated 7.9.98
Applicant's evidence
Mrs Brereton was born on 30 June 1944. She commenced work with the respondent on 17 January 1994 as a permanent part-time cleaner. Between January 1994 and 5 November 1997 the applicant was engaged on a number of short-term contracts, usually to cover for cleaners who were off sick or on leave. When she was working on one of those contracts it would be full-time work. This work involved some general cleaning duties but mainly involved using a mop and bucket and an industrial polisher. The last two duties would occupy between 2½ to 4 hours per day.
There were a number of concurrent employments engaged in by Mrs Brereton. These were:
(a)8 hours per week domestic cleaning for Mrs K Lovell of Casino between 1990 and 1996;
(b)1 hour per day, 5 days a week part-time cleaning work with Far North Coast County Council from 1 February 1992 until the present;
(c)3 hours per week domestic cleaning for Mrs S Tower of Casino from 17 January 1994 to November 1997; and
(d)3 hours per week domestic cleaning for Mrs J Pratt until November 1997.
These employments all involved domestic and light cleaning and did not involve the use of a mop and bucket or an industrial polisher.
The last and most extensive period of work Mrs Brereton undertook with Australia Post was from 2 September until 3 November 1997. In early October she noticed her knee becoming sore and on 22 October she experienced severe swelling from her knee to her ankle. She informed her supervisor and returned to work the next day. She said that she was putting hot and cold compresses on her leg and had not wanted to take time off for fear of losing her job. On 31 October 1997 she attended her local general practitioner, Dr Castagna, who noted that she had a painful right leg, particularly the knee and hamstrings.
On 3 November the applicant assisted in filling in a compensation claim form at the request of her supervisor. There was no entry with respect to the injury sustained but, under the heading "Authorisation of Medical Information", there was written "right calf muscle, Dr Castagna". The applicant said that she did not write this.
The applicant finished work on 3 November 1997 and her employment was terminated some time later. On 6 February 1998, Dr Randle, Orthopaedic Surgeon, performed an arthroscopy. It was not until August 1998 that she was able to return to work at the Far North Coast County council for one hour per day on fairly light cleaning duties. She has basically undertaken no work apart from work at the Council since the injury.
According to Dr Castagna's clinical notes, Mrs Brereton complained of knee pains in 1987 and 1995 and was sent for x-rays on each of those occasions. Mrs Brereton did not recall those incidents.
Medical evidence
Dr Randle
Dr Ray Randle was Mrs Brereton's treating Orthopaedic Surgeon. He provided a number of reports which formed Exhibit 6 but did not give oral evidence.
Dr Randle's notes from the arthroscopy in February 1998 are as follows:
"Details: EUA stable. Arthroscopy patello femoral joint grade 0 to 1 changes. Medial tibio femoral joint normal. Lateral femoral condyle grade 2 to 3 changes with an area of unstable articular cartilage smoothed and bevelled. Medial meniscus normal. Lateral meniscus several large degenerative tears resected arthroscopically. ACL and PCL normal."
Dr Randle stated on 19 February 1998 that "it is possible that this action [the use of a mop and bucket] could have resulted in the meniscal tears noted at arthroscopy on 6 February 1998". He stated on 22 May 2000 that "there is no doubt that use of a joint causes wear in the joint which is normally expressed as osteoarthritis". On 21 July 2000 he expressed the further opinion that:
"Meniscal injury normally occurs when the tibia is rotated against the femur in a flexed knee. In this regard it is possible that Mrs Brereton could have injured her knee …. While she was using an orbital polisher".
Dr White
Dr White, Orthopaedic Surgeon, examined Mrs Brereton on three occasions and provided reports dated 7 April 1998, 28 April 1999 and 5 October 2000. He did not give oral evidence at the hearing.
In his first report he gave the opinion that:
"This lady would appear to have suffered articular cartilage and meniscal damage to the right knee consistent with the history given [Dr White was aware of Mrs Brereton's work duties]. This has been superimposed on a knee suffering from pre-existing, though previously unknown, degenerative osteoarthritis …. It does seem likely that she will be left with a permanent partial disability as a consequence of this injury."
On 28 April 1999 he made the following observations:
"The long-term prognosis is unfavourable and significant osteoarthritis of the knee is likely to be progressive …. I would consider that her present impairment according to Comcare Table 9.2 is ten percent …. It appears more probable than not that her condition has been significantly aggravated by the employment duties described on or about 22 October 1997."
In his final report, Dr White conducted a review of the previous x-rays of the applicant's right knee. He found that the x-ray from 1995 showed only mild degenerative change consistent with the applicant's age. The degeneration had increased in 1997 and then increased significantly by 1999. He drew the following conclusions about her condition:
"There are no reliable criteria on which 'from an orthopaedic point of view' extended periods of operation of an orbital polisher/cleaner or the operation of a mop bucket pedal with the right foot can be readily correlated to 'wear and tear on the right knee joint'.
There is no question that your client suffers from degenerative osteoarthritis of the right knee which is consistent with the definition quoted of a 'disease' and, on an historical basis, this has been aggravated by her work duties in a material degree.
…..
The valgus position of the right knee, in part, is the consequence of the increasing degenerative changes associated with progressive narrowing of the lateral compartment of the knee joint as the disease has progressed.
The radiological evidence (1995) would suggest that the pre-existing degenerative change in her right knee was relatively mild and, as indicated above, her work duties have contributed to an aggravation of the underlying condition.
It has been well established in the orthopaedic literature that there is no significant correlation between the plain radiographic evidence of degenerative change, pain and employment. In view of this it is not possible to predict when the mere presence of an underlying degenerative condition 'would have become so symptomatic as to cause incapacity to the extent now witnessed' and such an assessment would be 'entering the realms of speculation'.
It does however appear reasonable to conclude that the presence of any degree of pre-existing change in the right knee, associated with significant obesity, would at some time have produced sufficient symptomatology to adversely effect employment of a physical nature.
…..
It would appear reasonable to attribute half of her impairment to pre-existing factors.
The treatment administered by Dr R Randle would appear to have been rendered necessary by the work-related aggravation of the underlying condition.
Her present impairment, according to Comcare Table 9.2 is ten percent and according to Comcare Table 9.5 is twenty per cent."
Dr White noted in all three reports that the applicant had valgus knees but this did not prevent him from finding that her work duties materially contributed to her condition.
Dr Jackson
Dr Peter Jackson, Muscular Skeletal Physician, provided a report dated 4 March 200. He made the following observations.
"My diagnosis is premature osteoarthritis and internal derangement of the knee secondary to occupational overuse at Australia Post.
…..
The work activities that I consider more likely than not to have aggravated the disease once it had been initiated are repetitive use of the mop and pedal and repetitive and extended use of the polisher/stripper which applied considerable twisting force to her knees.
…..
In my opinion her permanent impairments are significantly due to her employment with Australia Post…..pursuant to Table 9.5 her level of impairment is 20%.
Conditions other than the work-related degenerative condition in the knee, which may be presently contributing to the impairment so assessed, are her weight and her 'knocked knees'".
In oral evidence, Dr Jackson reiterated his opinion that the work undertaken by the applicant caused the meniscal tears and accelerated the degeneration and osteoarthritis. However, he could not explain the extensive swelling described by the applicant on 22 October 1997. He did not see that as a symptom attributable to a meniscal tear. He also accepted that the applicant's arthritis was now deteriorating irrespective of her work duties.
Dr Thompson
Dr Neil Thompson, Consultant Orthopaedic Surgeon, reviewed Mrs Brereton on 28 July 1999 and provided a report of the same day. Dr Thompson did not give oral evidence.
Dr Thompson was of the view that Mrs Brereton simply suffered a temporary strain to her right leg in 1997 and that the osteoarthritis is of long-standing origin. He based this opinion on the understanding that the applicant's knee pain had resolved with treatment after October 1997 and again after surgery in February 1998. He was of the view that Mrs Brereton did not need any treatment at the time of his report, nor did her work duties need to be restricted.
Dr Martin
Dr Bruce Martin, Orthopaedic Surgeon, reviewed Mrs Brereton on 24 November 2000 and provided two reports both dated 29 November 2000. His opinion is that the applicant has advanced lateral compartment osteoarthritis and advanced patello-femoral osteoarthritis affecting the right knee. He did not consider that she suffered from any condition which had been contributed to by her employment, rather, her condition results from a developmental predisposition, valgus mal-alignment of the right knee joint and obesity.
Dr Martin said that a meniscal tear would not account for the swelling of Mrs Brereton's lower leg on 22 October 1997. He accepted that the work undertaken by the applicant was the type which would produce symptoms in knees in the condition which Mrs Brereton's were. He also accepted that the use of a polisher could have produced or contributed to the meniscal tears. However, Dr Martin was of the view that the degeneration in Mrs Brereton's knees had been present for at least 15 years prior to the 1998 surgery and that this degeneration was the cause of the pain. Finally, he was the opinion that Mrs Brereton's condition was progressive and that only knee reconstruction would assist her.
The law
The relevant Sections of the Safety Rehabilitation and Compensation Act 1988 are set out below.
"Interpretation
4.
'impairment' means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;
'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, that employment;
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;
4(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
Compensation for injuries
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.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
Compensation in respect of medical expenses etc.16(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Compensation for injuries resulting in incapacity19(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)where the employee is in employment – the amount per week that the employee is earning in that employment;
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition – the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment – the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee – whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g)any other matter that Comcare considers relevant.
Compensation for injuries resulting in permanent impairment
24(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
….
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
…..(7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
Compensation for non-economic loss27(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment."
The Tribunal accepted Mrs Brereton's description of her duties with respect to all of her employments and her description of the symptoms she suffered. The Tribunal is of the view that the cleaning duties from the other employments were not relevant to the injury suffered. Relevantly, no witnesses were called to contradict Mrs Brereton's evidence as to the pain she experienced on 22 October 1997 or the manner in which she reported it to her supervisor.
The first issue for the Tribunal to determine is whether the applicant suffered an injury which arose out of or in the course of her employment.
The Tribunal particularly prefers the evidence of Dr Randle and Dr White who reviewed the applicant within six months of the incident described. The Tribunal does not rely on the evidence of Dr Thompson, as he had the mistaken understanding that the pain in the knee resolved and, contrary to the other doctors, he is of the view that her condition did not require ongoing treatment.
Dr Martin did not see the applicant until November 2000, some three years after the incident, and her knee had degenerated significantly since that time. He was of the view that the degeneration had been longstanding and that the work had not impacted on the degeneration. This is in contrast with the views of the surgeon who performed the arthroscopy, who was willing to accept that the meniscal tears he saw were related to work activities. Further, while the x-rays of 1987 and 1995 show that whilst the arthritis was long-standing, it had only been minor and was consistent with that of a person of Mrs Brereton's age. The significant increase in the degeneration only occurred from 1997 onwards. As such, the Tribunal prefers the opinion of the doctors who dealt with Mrs Brereton around the time of the incident.
The Tribunal accepts the evidence of Dr Jackson in that it conforms with the evidence of the doctors who treated Mrs Brereton around the time of the incident.
The Tribunal accepts that the applicant had pre-existing degeneration in her knees at the time of the accident and has valgus mal-alignment of her knees which contributed to the degeneration, as did her obesity. However, the x-ray reports [Exhibit 7] make it clear that in 1987 the degeneration was minor, in 1995 it was mild, in 1997 it was moderate and in 1999 it was significant. Given that the applicant's employment with the respondent began in 1994, her longest period of continuous employment with the respondent was in 1997 and the operation occurred early 1998, there is at least a temporal connection between the work and the increase in the degeneration. This connection is persuasive towards the view of a relevant and causative connection as well.
It is important to note that there are two complaints of knee pain recorded in Dr Castagna's reports prior to the 1997 incident. While the applicant did not recall either the incident in 1987 or 1995, the Tribunal does not find these incidents of particular importance. Two complaints over a period of eight years is not particularly significant and at most they confirm that there was a mildly symptomatic underlying degenerative condition in Mrs Brereton's right knee.
Dr Randle was clear that the use of the mop and bucket and the use of the polisher could possibly have caused the meniscal tears. He did not use the word "possible" as opposed to "probable" and as he was not called to give evidence the Tribunal could not ascertain whether he was in fact drawing that distinction.
Dr White could not say from an orthopaedic standpoint whether the use of the mop and bucket itself had caused the wear and tear in the joint, but he was very definite that work duties had caused a material aggravation of the condition in the knee.
Dr Jackson said that the use of the polisher and the mop and bucket led to a twisting in the knees which significantly contributed to the degeneration. Dr Martin agreed that a polisher could have caused or contributed to the formation of meniscal tears.
While neither Drs Jackson nor Martin thought the swelling in the calf related to a meniscal tear, neither of them ruled out the possibility that Mrs Brereton did suffer a strain of the calf muscle, as suggested by Mr Castagna, as a result of the same force which may have caused her meniscus to tear. The Tribunal is of the view that the inability to explain this concurrent symptom is not fatal to the applicant's claim.
The Tribunal is satisfied on the basis of the medical evidence, that on the balance of probabilities, the work at Australia Post materially aggravated her underlying degenerative condition. Prior to the 1997 incident, the condition was mildly symptomatic involving two recorded complaints in eight years. After the period of extended work with Australia Post, involving use of the mop and bucket and the polisher, her symptoms increased to a level which required surgery. These symptoms have not abated and the level of degeneration has increased markedly since the incident in 1997. As such, Mrs Brereton has suffered an impairment in her knees and her work has aggravated her underlying arthritis.
The second issue is whether Mrs Brereton has suffered an "incapacity" for work. With respect to the definition in subsection 4(9)(b), the Tribunal made the following observations in the case of Re Prica and Comcare (1996-7) 44 ALD 46 at 51:
"Hence construction of s4(9)(b) which permits a finding of an incapacity for work in circumstances where the applicant, subsequent to an injury, is engaged in light duties at their former salary does not produce any anomaly within the Act and recognises that incapacity for work is a relative concept and a matter of degree."
In this case, Mrs Brereton was able to return to the much lighter duties involved with her cleaning at the Far North Coast County Council, but according to the weight of the medical evidence, was not fit, and continues to be unfit, to return to her full duties at Australia Post. She did attempt to undertake other work, although no other work was offered by Australia Post. She only ceased her work after she had a heart turn in February 2000.
Therefore, the Tribunal is satisfied that Mrs Brereton fulfils the requirements of Section 14 of the Act and the respondent is liable to pay compensation. It follows that Section 16 is also satisfied and the respondent would be liable to pay reasonable medical costs.
With respect to the applicant's claim under Section 24, the Tribunal is satisfied that the applicant suffers from an impairment which is permanent and only going to get worse. The initial assessment by Dr White was 10% under Table 9.2. He later said that under Table 9.2 her incapacity remained the same but under Table 9.5 the applicant would have a 20% impairment and that it would be reasonable to assess half of that as relating to underlying factors. Dr Jackson was of the view that the applicant simply suffered from a 20% impairment under Table 9.5. The question for the Tribunal is how much of that impairment "results from" the work-related injury.
In the case of Comcare v Amorebieta (1996) 66 FCR 83 at 96, Jenkins J held that:
"The measure of that compensation (per s24) is the degree of permanent impairment which has resulted from the aggravation of the disease, and in contemplation of law the degree of impairment to which the aggravation brings the respondent's spine is caused by – 'results from' – that aggravation, whatever the extent to which events and degenerative processes preceding that aggravation contributed to cause that degree of impairment."
However, where it is possible to isolate the compensable effects of an injury upon a pre-existing condition, the assessment of the degree of permanent impairment should reflect only the impairment due to those compensable effects.
The Tribunal is of the view that the aggravation from work activities increased the level of the degeneration to the state found in 1998 at the operation and turned a mildly symptomatic condition into a continually symptomatic condition. However, the Tribunal is also of the view that there has been further degeneration since the applicant ceased work with Australia Post, which is due to her obesity, valgus knees and the now natural progression of the underlying disease, albeit prematurely accelerated through work. As such, the Tribunal finds that the appropriate level of permanent incapacity for which the respondent should be held liable is the assessment of Dr White on 28 April 1998, namely, 10% under Table 9.2.
Therefore, the Tribunal finds that the applicant satisfies Section 24 and has a 10% impairment of her right knee. Entitlement under Section 27 follows as a result of this finding.
Insufficient evidence was placed before the Tribunal to allow for assessment of compensation. As such, the matter of assessment is remitted to the respondent for calculation.
For the above reasons the Tribunal sets aside the decision under review and in substitution therefor determines that the applicant, Shirley Brereton, be paid compensation pursuant to Sections 14, 16, 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 in accordance with these reasons. The Tribunal further directs that the respondent pay the applicant's costs as agreed, or failing agreement, as taxed by the District Registrar of the Tribunal in accordance with the Tribunal's Practice Direction.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed: Denise Burton
SecretaryDate/s of Hearing 26, 27, 28 February 2001
Written submissions 1.6.01
Date of Decision 27.6.01
Counsel for the Applicant Mr M Perry
Solicitor for the Applicant Messrs Mitchell Playford and Radburn
Counsel for the Respondent Mr N Polin
Solicitor for the Respondent Messrs Sparke Helmore
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