Brooks and Australia Postal Corporation
[2010] AATA 812
•22 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 812
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/6116
GENERAL ADMINISTRATIVE DIVISION ) Re AMANDA BROOKS Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member; and
Associate Professor J B Morley RFD, MemberDate22 October 2010
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes its decision that the Australian Postal Corporation continues to be liable to pay compensation to the applicant under the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of incapacity for the aggravation of greater trochanteric bursitis left hip. .................[Sgd]...................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Prior acceptance of liability for greater trochanteric bursitis of left hip – Decision to cease liability on basis that incapacity from accepted condition ceased – Different description of accepted condition in reviewable decision – Reconsideration of diagnosis - Decision set aside – Continuation of liability.
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16, 19
Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263
Buhr v Comcare [2007] FCA 575
Brackenreg v Comcare [2010] FCA 724REASONS FOR DECISION
22 October 2010
Mr R G Kenny, Senior Member; and
Associate Professor J B Morley RFD, MemberBACKGROUND
1. Amanda Brooks has been employed by Australia Postal Corporation since 2007. Until July 2008, she was a postal delivery officer. On 19 November 2008, she completed a claim for rehabilitation and compensation in respect of “greater trochanteric bursitis left hip/leg/thigh area”. She alleged that this occurred as a result of constant dismounting and mounting of her motor cycle while delivering mail to business premises. On 4 December 2008, the respondent accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for “greater trochanteric bursitis left hip”. On 13 November 2009, the respondent determined that it no longer had a liability to pay compensation to Ms Brooks under the Act. That determination was affirmed in a reviewable decision on 9 December 2009.
ISSUES AND LEGISLATION
2. The issue for the Tribunal to determine is whether the respondent is liable to pay compensation to Ms Brooks for an injury which has resulted in and continues to result in incapacity for work or impairment. The term injury is defined in s 4(1) of the Act in a manner which includes greater trochanteric bursitis if that condition arose out of, or in the course of, Ms Brooks’ employment. While the initial acceptance was for greater trochanteric bursitis, the reviewable decision was made on the basis that liability was for a work-related aggravation of a constitutional condition which had ceased. Because of this, it was submitted by the parties that the Tribunal had jurisdiction to re-visit the condition as diagnosed in the original decision.[1] We accept the correctness of that submission.[2] Accordingly, if the evidence confirms that the original condition suffered by Ms Brooks was an aggravation of an underlying constitutional condition, the issue for the Tribunal is whether the incapacity referable to the aggravation has continued so that associated liability continues from 13 November 2009.
[1] In reliance on the Full Federal Court decision in Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263.
[2] Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263 at 265 and 282-283; and see Buhr v Comcare [2007] FCA 575 at [32] and Brackenreg v Comcare [2010] FCA 724 at [37-39].
EVIDENCE
Ms Brooks
3. Ms Brooks described her delivery duties as requiring her to stop her motor cycle, dismount, enter business premises to hand-deliver postal articles, return to and remount her motor cycle before proceeding to the next business delivery some 50 to 60 times each working day of five hours in duration. She experienced pain in her left hip in the twisting motion involved in dismounting from her motor cycle on an occasion in May 2008. She thought she had developed a muscular problem and continued with her duties with further experiences of pain until she filed an incident report with the respondent on 10 July 2008. In her supplementary statement, she recorded that she suffered a back injury in 2004 during previous employment.[3] The respondent sent her to a designated general practitioner, Dr William Rath, who diagnosed left trochanteric bursitis and provided medical certificates for Ms Brooks on various days in 2008 and 2009. He administered the first of three Celestone (cortisone) injections, and later referred her to orthopaedic surgeon, Dr Cameron Cooke, who saw her twice in March 2009. Other treatment has included physiotherapy, massage and hydrotherapy.
[3] Exhibit 3.
4. Ms Brooks has returned to full-time work with the respondent. This is unrestricted except that she no longer delivers mail. Rather, she sorts mail at the depot. She has not ridden a motor cycle since she ceased deliveries for the respondent although she owns and, on infrequent occasions, rides a motor tricycle which she described as involving a simple step-through mode of mounting rather than that traditionally used with a motor cycle.
5. Ms Brooks’ evidence was that she continues to experience pain in her left hip and that this limits her in carrying out activities such as washing and hanging clothes, vacuuming, mowing the lawn, shopping and standing for long periods. She described difficulty in joining in play time with her young grandson, walking for more than a few minutes, negotiating steps and engaging in previously-enjoyed sporting activities. She has given no recent history of back pain.
The medical evidence
6. As this matter proceeded, it became important that the nature of Ms Brooks' compensable medical condition be clarified. This proved to be no easy task as the medical experts indicated that this injury is not a fully understood pathological entity. The medical evidence consisted of the reports of three investigations of Ms Brooks' left hip region and of medical reports from Ms Brooks' designated general practitioner and four orthopaedic surgeons, three of whom also gave oral evidence.
The investigation reports
7. The first of the investigations was requested by Dr Rath. This was an ultrasound examination of the left trochanteric bursa in conjunction with a second cortisone injection. This was conducted on 7 November 2008 by Dr Michael Crouch, whose report reads:
Initial ultrasound demonstrates some thickening of the soft tissues in the region of the trochanteric bursa indicating changes of trochanteric bursitis. Under ultrasound guidance 2 ml of Celestone Chronodrose and 2 ml of Marcain was injected into the subacromial bursa without complications. Mrs Brooks will monitor her own progress over the next few days.[4]
[4] Exhibit 1, T9/12.
8. Subsequently, Dr Rath’s practice colleague, Dr Mark Zischke, arranged Ms Brooks' x-ray examination of her left hip. On 30 January 2009, Dr Eugene Lim reported the findings:
Slight bony sclerosis is seen at the superior articular surfaces in keeping with early osteoarthritis. There is a sclerotic bony lesion in the proximal femoral shaft in keeping with a bone island. Mild degenerative changes are seen at the lest [sic: left] S1 [sic: SI, i.e. sacro-iliac] joint.[5]
[5] Exhibit 1, T20/29.
9. This was followed, on 6 March 2009, by an MRI scan of Ms Brooks' left hip, performed at the request of her treating orthopaedic surgeon, Dr Cameron Cooke. Dr David Simpson provided the report:
Findings
There is mild increase intrasubstance signal involving the left gluteus minimus tendon associated with peritendinous soft-tissue oedema. Appearances would be in keeping with gluteus minimus tendinosis and 'trochanteric bursitis'. The left gluteus minimus tendon remains intact.
The left gluteus medius tendon appears normal and intact. Both the left gluteus minimus and medius muscle bellies appear of good quality without signs of fatty atrophy.
The left hip articular cartilage appears well maintained. No subchondral oedema or cystic change. There are therefore no significant left hip joint degenerative changes. There are no areas of marrow oedema to suggest transient osteoporosis or avascular necrosis. No signs of femoral neck or pubic rami stress fracture.
The origins of the left rectus femoris and hamstrings appear normal. The distal left iliopsoas tendon appears normal. No sign of iliopsoas bursitis.
No displaced labral tear or paralabral cyst formation.
The coronal T2 weighted images of the pelvis demonstrates [sic] less marked right gluteus minimus tendinosis and 'trochanteric bursitis'. The pubic symphysis, right hip joint and both sacroiliac joints have a satisfactory appearance.
Comment
1. Left gluteus minimus tendinosis and 'trochanteric bursitis'.
2. No significant left hip joint degeneration or other significant findings.[6]
Both of the parties presented evidence from two orthopaedic surgeons. For Ms Brooks, Dr Mark Dekkers provided a report[7] as did Dr Greg Gillett who also gave oral evidence[8]. The respondent had five medical reports, two from Dr Cooke[9], and three from Dr Simon Journeaux,[10] both of whom also gave oral evidence. As well, a report from Dr Rath was included in the Tribunal documents[11].
Dr William Rath, general practitioner
[6] Exhibit 1, T25/36.
[7] Exhibit 6.
[8] Exhibit 7.
[9] Exhibit 1, T33/47-48 and T54/90.
[10] Exhibit 1, T50/76-85; Exhibit 4; Exhibit 5.
[11] Exhibit 1, T55/91-92.
10. In his report, dated 22 September 2009, Dr Rath outlined Ms Brooks’ history of the lateral left thigh pain and left knee pain, beginning three to four weeks before he first saw her on 10 July 2008. He diagnosed left trochanteric bursitis related to her work. On 11 July 2008 he injected her left trochanteric bursa with Celestone Chronodose. However, in September 2008, he recorded a pain grading at level 8 and this continued in December 2008 and March 2009. He noted that she was working "in a supported environment" in Australia Post and had undergone hydrotherapy. She described pain which worsened when dressing and undressing, walking or standing for prolonged periods, or twisting. Dr Rath’s examination of Ms Brooks disclosed tenderness maximal over the left greater trochanter, and left leg weakness.
Dr Cameron Cooke, orthopaedic surgeon
11. In his first report[12], dated 26 March 2009, Dr Cooke described Ms Brooks' presentation to him nine months previously, after her left hip pain began, which she had attributed to her repetitively dismounting and remounting her postal motorcycle in the course of making her business postal deliveries. She described recent easing of the pain when she had been on holiday and referred to three cortisone injections into the hip, with only the first affording temporary relief, but otherwise being well. Dr Cooke observed Ms Brooke’s gait to be normal, but with marked tenderness over the greater trochanter of her left hip; the hip joint itself moved normally, but with pain at extreme external rotation. He noted that plain left hip joint x-rays had shown early degenerative changes; and that her left hip MRI scan had demonstrated gluteus minimus tendinosis. Ms Brooks declined the suggestion of a further cortisone injection into the trochanteric bursa, because of possible general effects of the cortisone. He advised her to use her walking stick in her right hand and to perform alternative work duties for two months. Dr Cooke prognosed that trochanteric bursitis usually resolves spontaneously over 12 to 18 months, provided that aggravating activities were avoided.
[12] Exhibit 1, T33/47-48.
12. Dr Cooke’s second report, dated 16 September 2009, resulted from his review of Ms Brooks six months later.[13] Because of the persistence of her pain, she was distressed that she may be required to return to her motorcycle postal delivery duties and concerned that her symptoms would worsen and that she would lose her job. Dr Cooke recommended redeployment to "another area within Australia Post."
[13] Exhibit 1, T54/90.
13. At the hearing, Dr Cooke confirmed that he agreed with Dr Simpson's MRI scan diagnosis of gluteus minimus tendinosis. He added that a more appropriate term than greater trochanteric bursitis, often preferred in the orthopaedic surgical community, was 'trochanteric pain syndrome.' He said that this includes the elements of any of:
× inflammation of the bursa, or bursitis; and/or
× inflammation of the tendon ('tendinosis') of the gluteus minimus and/or gluteus medius muscles; and/or
× a tear of the gluteus minimus and/or gluteus medius muscles.
Dr Cooke said that the tendons of these two muscles adhere or attach to the greater trochanter (bone protrusion) of the femur or thigh bone, and that the bursa is a fluid‑filled cushion lying between the tendons where they attach to the trochanter. He described trochanteric bursitis as a diagnosis made on its clinical features, because its cause is incompletely understood with various explanations having been proposed. He said that a clear-cut injury manifestation of this trochanteric pain syndrome is an actual tear that might occur in either of the muscles; and it is this, he said, that can be amenable to surgery.
14. When asked how incapacitating might be the gluteus medius tendinosis, Dr Cooke indicated that this can vary considerably; nevertheless, he said that, if the aggravating movement is avoided, the tendinosis typically is self-limiting. He said that surgical treatment was "problematical", especially if the tendon was not torn; that various other manoeuvres have been tried; but that no treatment had been proved to be reliably effective by any randomised trial study. He considered that other factors which may predispose to persistence of the condition were chronic low back pain, and excess body weight.
Dr Simon Journeaux, orthopaedic surgeon
15. Ms Brooks' first consultation with Dr Journeaux, on 27 August 2009, was arranged by Ms Smith of Australia Post.[14] He first obtained her history of onset of her left outer hip pain 14 months after she commenced working as a postal delivery officer. She advised that, after about a month, her designated general practitioner Dr Rath, on diagnosing trochanteric bursitis, had injected cortisone into the bursa with "a few days of relief." After another month or more, the second injection under ultrasound, and then physiotherapy, afforded no benefit, whereupon she then was referred to Dr Cooke who advised no further specific treatment. She described current intermittent left hip pain in the outer aspect, recurring daily, aggravated by twisting, bending, lying on it, dressing, or doing heavier household tasks. She advised that she no longer used a motorcycle.
[14] Exhibit 1, T50/76-85.
16. Dr Journeaux began the record of his examination of Ms Brooks by noting that her height was 160 cm, weight 77 kg, and BMI (body mass index) 30.1. In his references at the commencement of his report he quoted that a BMI of "over 30 indicates obese."[15] His examination further revealed "perhaps a slight antalgic gait" of her left leg, and palpation disclosed "clear evidence of a trochanteric bursitis." He described no other abnormalities in her lower limbs.
[15] Exhibit 1, T50/77.
17. Dr Journeaux noted the results of Ms Brooks’ investigations, with the MRI diagnosis of left gluteus minimus tendinosis and trochanteric bursitis, and no significant left hip joint degeneration. He concluded that she had abductor tendinosis of the gluteus minimus tendon, with more florid trochanteric bursitis, and incidental mild left osteoarthritis. He diagnosed recalcitrant trochanteric bursitis.
18. Dr Journeaux then answered a series of questions put to him by Ms Smith. He advised that Ms Brooks’ "trochanteric bursitis/abductor tendinosis" was a constitutional degenerative condition, which had been temporarily aggravated by her work. He considered that, on the balance of probabilities, her current condition no longer was related to her previous employment as postal delivery officer,[16] as he would have expected the effect of the temporary aggravation to have lasted between three and six months.[17]
[16] Exhibit 1, T50/82, question 3.
[17] Exhibit 1, T50/83, question 5.
19. On 15 February 2010, at the request of the respondent's solicitors, Dr Journeaux answered some additional questions in a supplementary report.[18] He advised that avoidance of motorcycle activity may have to be a permanent restriction; but also opined that Ms Brooks would have experienced symptoms of her constitutional condition even if she had not undertaken motorcycle duties.[19]
[18] Exhibit 4.
[19] Exhibit 1, p 2.
20. Dr Journeaux’s third report, dated 17 June 2010, again was a response to the respondent's solicitors who had forwarded to him copies of reports about Ms Brooks by other orthopaedic surgeons, including Drs Gillett and Dekkers. He remarked:
×It would be reasonable to surmise that her motorcycle work had accelerated her symptoms but not the underlying pathology.
×She was predisposed to this condition being of short stature, overweight, and of female gender.
×He disagreed with Drs Dekkers and Gillett that there was an "absolute" relationship between her work and her condition[20] and that, on reading their reports, he did not change his already expressed opinions.[21]
[20] Exhibit 5, pp 3 and 4.
[21] Exhibit 5, p 4, para 3.
21. With regard to Dr Gillett's report, Dr Journeaux offered two comments:
I note Dr Gillett was of the view that there was a permanent aggravation of a constitutional condition and here I would describe an analogy of a marathon runner with an osteoarthritic hip. If a marathon runner with this condition runs a marathon and becomes symptomatic it is clearly not the marathon itself that is causative in terms of the condition but the underlying constitutional condition. This would be a similar analogy.[22]
... Dr Gillett feels that there is a permanent aggravation. As always in medical conditions, it is difficult to be absolute. I would point out that I am actually trying to make my opinion on the basis of the facts outlined to me and on the basis of evidence in the literature rather than purely on personal opinion.[23]
[22] Exhibit 5, p 3, para 4.
[23] Exhibit 5, p 4, para 2.
22. In his evidence, Dr Journeaux confirmed that, having read and commented on Dr Gillett's report, he still adhered to his opinion. When then asked to comment on Dr Cooke's use of the term "trochanteric pain syndrome," he indicated that the condition is a collection of clinical features without specifying its cause. He told us that his view of greater trochanteric bursitis, or the trochanteric pain syndrome, is that it is a constitutional degenerative condition. He said that, although not fully understood, essentially the same pathological changes, of an age-related so-called ‘myxoid' degeneration, occur in the greater trochanter bursa as in the gluteus medius and minimus muscle tendons. He confirmed that Ms Brooks’ short stature, excess weight, and female gender, were known predisposing factors to developing these changes. He drew attention to Ms Brooks' MRI scan findings revealing less marked effects in her non-symptomatic right hip. Because her left hip became symptomatic during her motorcycle postal delivery duties, he agreed that, on the balance of probabilities, that work was an aggravating factor for that hip. However, he said that many people have such degenerative conditions which remain asymptomatic, even for their lifetimes.
Dr Mark Dekkers, orthopaedic surgeon
23. Ms Brooks was referred to Dr Dekkers for opinion by her family general practitioner, Dr Paul Jenkins. He saw her on 5 February 2010.[24] In his report of that same date, after reviewing her history, he observed her "antalgic short leg left sided gait," and tenderness both over her greater trochanter and over her abductor muscles which also were weak against gravity. He noted that her imaging confirmed that she had trochanteric bursitis and gluteus medius tendonopathy. In Dr Dekkers’ opinion, Ms Brooks "continues to have trochanteric bursitis," which he regarded as "undoubtedly" being due to her work.[25] He advised against surgery, recommending intermittent physiotherapy and strengthening, as well as ongoing restrictions. He offered no opinion regarding prognosis.
Dr Greg Gillett, orthopaedic surgeon
[24] Exhibit 6.
[25] Exhibit 6 p 1, para 5.
24. In his report, dated 8 March 201, Dr Gillett referred to the history of the development of Ms Brooks’ left hip pain, her treatment with physiotherapy, massage, hydrotherapy and three cortisone injections, and diagnosis of trochanteric bursitis with advice against surgical treatment. He noted that, since changing her Australia Post duties to mail sorting, she since had had only one day off work. Dr Gillett noted that Ms Brooks described her current complaints of persistent but variable left hip pain over the lateral thigh region, sometimes causing her to limp, and worse when lying on that side; difficulty squatting and donning shoes and socks or trousers; and as having no back pain or right leg or hip complaints.
25. In his examination, Dr Gillett noted Ms Brooks was of short stature; that left leg Trendelenburg testing induced some pain; that left hip joint range of movement was normal; that her left trochanteric region was tender; and that resisted left leg abduction produced pain. Dr Gillett examined her left hip x-rays, and noted the reports of her ultrasound examination and MRI scan.
26. In response to specific questions from her referring solicitors, Dr Gillett diagnosed Ms Brooks as having "trochanteric bursitis gluteus medius muscle tendinosis type syndrome." He prognosed that her condition "will remain as it is in the long term."[26] Regarding its aetiology, he wrote:
In my view the aetiology of her current situation could be described as multifactorial. In relation to this condition in general terms it can be associated with the ageing process (degeneration occurring with age) or it can be related to acute events. It is seen in persons who have an acute injury to the hip joint of a direct blow type injury. It occurs in persons who have no evidence of injury or problems. It can be regarded as part of the ageing process. There is no direct injury associated with your client's aetiology. With regard to possible causes it is reasonable to support the concept that in a person who is getting on and off a motorcycle on a regular basis that to stabilise their left leg they are actually utilising their gluteal muscles to stabilise the leg in this action and it is possible that extra stresses and strains are occurring to the region of the trochanteric gluteal muscle insertion area causing it to become symptomatic. I think on the balance of probabilities it is more likely than not there is permanent aggravation of a pre-existing pathological process that occurred in relation to the work practice that this individual has done. I would think at this time that she has persistent symptomatology related to a permanent aggravation of a degenerate condition and had she not had this work practice it is debatable whether she would have developed symptomatology. Persons may have pathological processes associated with the trochanteric bursa gluteal area without symptoms. It would appear on the balance of probabilities that the work practice is a significant cause of her condition of a trochanteric bursitis.[27]
[26] Exhibit 7, p 4.
[27] Exhibit 7, p 5.
27. Dr Gillett went on to opine that, although Ms Brooks was not totally incapacitated for work, she had a permanent incapacity for riding a motorcycle. He regarded her as partially incapacitated for work, and considered that office-type work would be appropriate for her.[28]
[28] Exhibit 7, p 5.
28. At the hearing, Dr Gillett said that predicting the conversion of an asymptomatic degenerative condition to symptomatic "had no scientific basis," being simply a matter of an individual professional opinion. On cross-examination, he accepted that Ms Brooks had an underlying degeneration; and agreed that, although age, body weight and gender were predictive factors of this degenerative disorder, there were no reliable predictors of when the asymptomatic state would become symptomatic.
29. Continuing under cross-examination, Dr Gillett said that he was aware that he differed with Drs Journeaux and Cooke in considering that her aggravation was permanent. However, in his experience, he said that a small percentage of aggravated cases do not get better, and he called this circumstance a permanent aggravation. He preferred that construction in Ms Brooks’ case, based on the description of her work practice at the time that her symptoms began.
30. In answer to supplementary questions that were asked of him, Dr Gillett amplified his explanation of the aetiology as detailed in his report.[29] He explained that the trochanteric bursa immediately overlies the greater trochanter (a smooth bone protrusion of the femur), separating it from tendons of the gluteus medius and minimus muscles as they attach to the trochanter; thus, the bursa and these tendons are in intimate proximity to each other. He assumed that Ms Brooks already had age-related changes under way in these structures before her symptoms began. However, he described how, by placing her left foot on the ground when dismounting and remounting her motorcycle with her left leg "propping" action, Ms Brooks was contracting her left gluteus minimus and medius (particularly the gluteus minimus) muscles, straining to stabilise her left hip joint, and rotating her upper body outwards and tilting it more to her left side, to assist raising her right leg over the motorcycle. He said that, the shorter and/or heavier the person, the greater is this strain; and that the wider female pelvis further increased this strain by mechanical leverage.
[29] Exhibit 7, p 5, para 36.
31. Dr Gillett considered that, by repeating this muscle action perhaps 50 or more times within a few hours each working day, this repetitive straining induced "microtrauma" in these muscles' tendons where they attach to the trochanter. He said that this results in chronic inflammation of the tendons (tendinosis) from this repeated damage at that bone attachment point. He also said that, such is the very slow healing nature of any tendon's tissue that its ongoing repetitively damaged healed tissue is of inferior quality (i.e. it is "degraded") compared to the originally pristine tendon tissue - hence this potentially permanent nature of the aggravation. His opinion was that, on the balance of probabilities, this was the situation with Ms Brooks.[30] He added that this chronic inflammatory pathological process in the bursa and the gluteal minimus muscle tendon had been shown in her MRI scan[31] and he said that this process and these changes were analogous to those that are known to occur in the condition of the rotator-cuff injury of the shoulder.
[30] Exhibit 7, p 5, para 3.
[31] Exhibit 1, T25/36.
32. Dr Gillett acknowledged that, as yet, there is no conclusive medical scientific evidence for this proposed explanation. However he said that, about 15 years ago, Dr Tim Bunker in the United Kingdom described such changes in these gluteus minimus and medius tendons of patients undergoing hip surgery for a fracture of the neck of the femur.[32] Furthermore, he said, MRI scan changes indicative of this same pathological process have since been described in various other reports.[33]
[32] Bunker TD et al, "Rotator-Cuff Tear of the Hip" (1997) 79-B Journal of Bone and Joint Surgery [Britain] 618. The authors describe a previously unreported finding in a study of 50 patients with fractured neck of femur; 11 (22%) had a tear at the insertion of gluteus medius and gluteus minimus.
[33] For example: Pfirrmann CWA et al, "Abductor Tendons and Muscles Assessed at MR Imaging after Total Hip Arthroplasty in Asymptomatic and Symptomatic Patients" (2005) 235 Radiology 969.
SUBMISSIONS
33. Mr McLeod, for the respondent, submitted that Ms Brooks’ greater trochanteric bursitis should have been accepted as a degenerative condition which was an aggravation of an underlying constitutional condition. He contended that the symptoms relating to that aggravation were of a temporary nature which would have resolved within three to six months of the incident in May 2008. He also argued that her current symptoms are related to the pre-existing constitutional condition which would have been experienced by her irrespective of her employment. Accordingly, he submitted, the decision to cease liability should be affirmed.
34. Mr Shillington, for Ms Brooks, submitted that the symptoms relating to her greater trochanteric bursitis have not subsided and remain directly referable to the injury she sustained in her employment and that the decision to cease liability should be set aside. He argued that the respondent's case, founded on Dr Journeaux's evidence that the temporary aggravation lasted for only some six months, had no demonstrable basis to explain a "magic period" when the aggravation ceases and the pre-existing degeneration resumes. He remarked that it was curious that, although she has the MRI changes of the condition demonstrated in both hips, curiously her right hip has never been symptomatic. He contended that Dr Gillett's opinion of repetitively "microtraumatic inflammation" provides an explanation of permanent aggravation of Ms Brooks' condition.
CONSIDERATION
35. As we have indicated, although the initial acceptance was for greater trochanteric bursitis caused by Ms Brooks’s employment, the reviewable decision was made on the basis that the accepted liability was for a work-related aggravation of a constitutional condition which had ceased. We accept the submission by the parties that we have jurisdiction to re-visit the original diagnosis of the condition.[34] We also accept that the evidence confirms that the original condition suffered by Ms Brooks was a work-related aggravation of an underlying constitutional condition and that the issue for the Tribunal is whether the incapacity referable to the aggravation has continued from 13 November 2009.
[34] In reliance on the Full Federal Court decision in Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263 at 265 and 282-283; and see Buhr v Comcare [2007] FCA 575 at [32] and Brackenreg v Comcare [2010] FCA 724 at [37-39].
36. Of the two opposing opinions put to us on this question, Dr Journeaux, supported by Dr Cooke, opined that incapacity has ceased; the opinion of Dr Gillett and Dr Dekkers is that it has not.
37. Before having to weigh the evidence presented to us by these doctors, we first examined the material which they have provided about the nature of Ms Brooks' greater trochanteric bursitis left hip/leg/thigh area. We regard it as significant that each one of Dr Journeaux,[35] Dr Cooke,[36] Dr Gillett[37] and Dr Dekkers,[38] although in various forms, has described this condition as a combination of the inflammatory conditions of greater trochanteric bursitis and gluteus minimus/medius tendinosis, and as demonstrated on Ms Brooks' MRI scan.[39]
[35] Exhibit 1, T50/81, para 1; See para 24 of these reasons.
[36] See para 19 of these reasons.
[37] Exhibit 7, p 4, para 8; See para 38 of these reasons.
[38] Exhibit 6, p 1, para 4; See para 29 of these reasons.
[39] Exhibit 1, T25/36.
38. We deliberately use the term "described" the condition, as distinct from defining it. Without implying a criticism of those doctors who gave their oral evidence to us most helpfully, they could not give us a conclusive account of the pathological cause of its inflammatory changes. Dr Cooke referred to it as a syndrome embracing elements of inflammation of the greater trochanter bursa (“bursitis”), and/or inflammation of the tendons ("tendinosis") of the gluteus medius and/or medius muscles, and/or actual tearing of either or both of these muscles.[40] Dr Journeaux considered it to be an age-related “myxoid" degeneration which similarly involves both the bursa and the gluteus medius/minimus muscle tendons.[41] Dr Gillett has regarded it as multifactorial, including age-related degeneration, sometimes being a chronic inflammation caused by repetitive minor injury ("microtrauma").[42]
[40] See para 19 of these reasons.
[41] See para 28 of these reasons.
[42] Exhibit 7, p 5, para 3; See paras 39, 43, 44..
39. These differing concepts are understandable, because it is clear from the evidence that the scientific knowledge of the cause of the underlying inflammatory changes is still incomplete. Dr Cooke designated it as a syndrome, and told us that it is a diagnosis that has to be made on its clinical features, because its cause is not fully understood.[43] Dr Journeaux spoke of it as a collection of clinical features without a specified cause.[44] Dr Gillett could offer no conclusive medical scientific evidence of its basis.[45] We had no opportunity to question Dr Dekker regarding his views.
[43] See para 19 of these reasons.
[44] See para 28 of these reasons.
[45] See para 46 of these reasons.
40. This brings us to the not unfamiliar situation in which, despite the best of intentions and resources available, the present state of knowledge of this part of medical science or, in this case, orthopaedic surgical science is only able to assist us to a limited extent. In these circumstances, we must consider such information as has been made available to us and then apply it in our determination with the application of simple common sense.
41. Of the doctors who have given evidence to us, only Dr Gillett has proposed an explanation of the aggravation process to us.[46] This is that Ms Brooks' continuing symptoms are derived from "a permanent aggravation of a degenerative condition."[47]
[46] Exhibit 7, p 5, para 3; See para 39 of these reasons. .
[47] Exhibit 7,, p 5, para 3.
42. There has been no dispute that Ms Brooks has had recognised predisposing physical factors. She is female, and constitutionally has a short overweight body habitus. Her trochanteric pain syndrome symptoms commenced in her middle age of 44 years; and, although she had no history of more recent back pain, she had a back injury requiring treatment some two years before.
43. Dr Gillett premised his proposition on the basis of repetitive microtrauma causing chronic inflammatory degeneration of Ms Brooks' gluteus minimus muscle tendon. He has argued that this has resulted from the strain of Ms Brooks' overweight body tilting outward as it pivoted around her left hip joint, concentrating this resulting strain in the gluteus minimus muscle tendon where it attaches to the greater trochanter. The biomechanics of her short stature and relatively wider female pelvis result in her body's centre of gravity being even more to the right of her left hip joint, further increasing the strain on her gluteus minimus tendon attachment to the greater trochanter. This is because her gluteus minimus, in variable concert with the gluteus medius, are the instrumental contracting muscles that accomplish that outward body tilting. In short, this strain is a form of trauma.
44. In his report, Dr Gillett introduced this by characterising this aetiology as "multifactorial" and then identifying two particular causes, namely ageing process degeneration, and acute direct injurious events.[48] We recall that, when giving us his evidence, Dr Cooke also referred to this syndrome sometimes involving outright trauma to the gluteus medius and minimus muscles.[49] It is simple to conceptualise that the much milder but prolonged and repetitive microtraumatic mechanism proposed by Dr Gillett is at the other end of this "trauma spectrum." In short, Dr Gillett's explanation is credible, because it makes sense, to the extent of being more probable than not.
[48] Exhibit 7, p 5, para 3.
[49] See para 19 of these reasons.
45. We found the explanation that Dr Gillett proffered as to the continuing effects of the aggravated condition to be of particular significance. The permanent nature of this aggravation is embodied in his explanation of the very slow healing nature of a tendon; and, if it is continuously subjected to this injurious straining, it heals imperfectly.[50] In other words, the repetitively damaged tendon eventually becomes permanently degraded compared to its originally healthy state.
[50] See para 45 of these reasons.
46. We have noted that Dr Cooke described the incapacitating nature of trochanteric bursitis as varying considerably and, in his first report, stating that it usually resolved spontaneously over 12 to 18 months provided that aggravating activities were avoided. The respondent made a determination to cease liability a bare 18 months after Ms Brooks’ symptoms commenced. Dr Journeaux foreshadowed a much shorter duration of the aggravation in the order of 3 to 6 months. Yet, he first saw her well outside of that time-frame and she continued to experience severe pain at that time. We also note Dr Cooke’s observation that no treatment had been proved to be reliably effective for trochanteric bursitis.
47. On the basis of Dr Gillett’s evidence, we are satisfied that Ms Brooks’ incapacity from the aggravation of her greater trochanteric bursitis left hip had not ceased by November 2009 and that, after that date, liability continued under ss 16 and 19 of the Act.
DECISION
48. The Tribunal sets aside the decision under review and substitutes its decision that the Australian Postal Corporation continues to be liable to pay compensation to the applicant under the Act in respect of incapacity for aggravation of greater trochanteric bursitis left hip.
I certify that the preceding 48 paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member, and Dr B Morley, Member.
Signed: ...............[Sgd]......................................................
Kate Slack, Research AssistantDate of Hearing 1 October 2010
Date of Decision 22 October 2010
Solicitor for the Applicant Slater and Gordon
Counsel for the Applicant Mr S McLeod
Solicitor for the Respondent Phillips Fox
Counsel for the Respondent Mr D Shillington
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