Brown v Maranatha Lodge Incorporated
[2008] NSWWCCPD 113
•13 October 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Brown v Maranatha Lodge Incorporated [2008] NSWWCCPD 113 | |||||
| APPELLANT: | Gail Maree Brown | |||||
| RESPONDENT: | Maranatha Lodge Incorporated | |||||
| INSURER: | Catholic Church Insurances Limited | |||||
| FILE NUMBER: | WCC9590-07 | |||||
| DATE OF ARBITRATOR’S DECISION: | 24 June 2008 | |||||
| DATE OF APPEAL DECISION: | 13 October 2008 | |||||
| SUBJECT MATTER OF DECISION: | Reasons; failure to consider submissions as to consequences of injury | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Bussoletti Lawyers | ||||
| Respondent: | Hicksons | |||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination of 24 June 2008 is confirmed. | |||||
| Each party is to pay her or its own costs of the appeal. | ||||||
BACKGROUND
Mrs Brown started work for Maranatha Lodge Incorporated (‘Maranatha’) in 1992. On 28 February 2005, she walked from the kitchen to the staff area via a stairway. As she reached a landing, she turned to walk down the second flight of stairs and felt a sharp pain behind her right knee. She reported the incident to the employer’s registered nurse, ceased work and has not returned.
Mrs Brown subsequently developed deep vein thrombosis (‘DVT’) and pulmonary emboli involving the left and right pulmonary arteries. Whilst she recovered from the DVT and pulmonary emboli, she has continued to experience significant symptoms in her right knee. The cause of her right knee symptoms became the main area of dispute in the proceedings before the Arbitrator and on appeal.
Her claim was provisionally accepted by Maranatha’s workers compensation insurer, Catholic Church Insurances Limited, but ultimately denied by letter dated 20 April 2006, with weekly compensation ceasing on 1 June 2006. The notice denying the claim is in a most unsatisfactory form. It purported to deny the claim on the following grounds:
“Following investigations of your claim we wish to advise that liability has been disputed, pursuant to section 9A, 33 and 60.
In our opinion work is not a substantial contributing factor.” (emphasis included)
The two sentences quoted above are completely meaningless and demonstrate a fundamental lack of understanding of the legislation. As has been explained in many decisions, both in the Commission and in the former Compensation Court of NSW, section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’) only requires that a worker’s employment be a substantial contributing factor to his or her injury. Employment does not have to be a substantial contributing factor to the claimed incapacity, impairment or medical expenses (see Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725; Bielecki v Rianthelle Pty Ltd t/as Belflora [2008] NSWWCCPD 52; Matar and anor v Zeineddine [2008] NSWWCCPD 51). Whether the claimed incapacity is compensable depends on whether the condition causing the incapacity has resulted from the work injury (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452).
Nevertheless, the notice also quoted part of a report from Dr Hitchen, dated 24 March 2006, on which the insurer relied to support its decision. That quote made it tolerably clear that the insurer disputed liability because it alleged that Mrs Brown’s right knee condition had not resulted from her injury on 28 February 2005, but was degenerative and, as a result, her ongoing symptoms were not work related. Essentially, it seems, the insurer did not dispute that an injury occurred on 28 February 2005, but did dispute the nature of that injury and that any continuing condition had resulted from it. That should have been made clear in a statement identifying the matters in dispute in the notice denying liability.
By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 14 December 2007, Mrs Brown sought weekly compensation from 1 June 2006 to date and continuing together with hospital and medical expenses.
The Arbitrator identified the issues in dispute as those set out in the insurer’s letter of 20 April 2006 (Statement of Reasons for Decision (‘Reasons’), page three point two), but seems to have incorrectly considered that employment had to be a substantial contributing factor to Mrs Brown’s current condition. He also appears to have considered that ‘injury’ was in issue (Reasons, pages 8 and 10). On appeal, neither party has challenged the Arbitrator’s approach, however, this case highlights the need for insurers and arbitrators to accurately identify and state the issues in dispute.
At the arbitration on 4 April 2008, the Arbitrator took no oral evidence, but heard lengthy submissions from counsel for each side. In a reserved decision delivered on 24 June 2008, the Arbitrator made an award in favour of Maranatha.
By an appeal filed on 17 July 2008, Mrs Brown seeks leave to appeal the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding will, if it stands, result in Mrs Brown receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 24 June 2008, records the Arbitrator’s orders as follows:
“That the forensic medical reports of Dr Wilcox dated 3 April 2006 and 29 February 2008 are not admitted into proceedings in accordance with s127(3) of the Work Injury Management and Workers Compensation Act 1998 and cl 43 of the Workers Compensation Regulation 2003.
That there is an award to the Respondent for all claims for weekly payments of compensation and medical and related expenses from 1 June 2006.
That there is no order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator:
(a)failed to consider all relevant and material evidence in relation to the issues of injury, the consequences of the injury and incapacity, and
(b)failed to provide an adequate analysis of the evidence and provide adequate reasons in relation to the issues of injury, the consequences of the injury and capacity, and thereby failed to exercise his function fairly and according to law.
There is no challenge to the Arbitrator’s determination in respect of the reports from Dr Wilcox.
FRESH EVIDENCE
Neither party seeks to rely on fresh evidence or additional evidence on appeal.
THE EVIDENCE
Maranatha runs an aged care facility at Batehaven. Mrs Brown started work with Maranatha as a kitchen hand and cook in 1992. In 2003, she became the catering manager. At about 9.15am on Monday 28 February 2005, she was preparing food orders and rostering. As she was walking down some stairs she turned on a landing and felt a sharp pain behind her right knee. After reporting the incident she returned to her office, but within minutes she noticed her knee swell and that she was unable to bend it.
Mrs Brown attended at Batemans Bay Hospital and saw Dr Way, general practitioner, who, suspecting an anterior cruciate ligament rupture, referred her to Dr Long, orthopaedic surgeon. She was fitted with a splint, provided with crutches, and saw Dr Long about one week later. Dr Long removed the splint and advised Mrs Brown to stay on crutches and gradually build up her leg. At the request of Dr Long, an MRI scan was performed on 10 March 2005 (‘the first MRI scan’). The scan revealed normal morphology of the medial meniscus and that the anterior cruciate ligament was intact. The scan concluded:
“The posterolateral corner complex is intact. There is oedema in the origin of the soleus muscle [a flat, broad muscle of the calf of the leg]. There are early cartilaginous changes in the medical femoral condyle.”
On 24 March 2005, Mrs Brown saw Dr Goater, injury management consultant, at the request of the insurer. He noted that she had ceased wearing the splint. He confirmed her history of developing pain behind her right knee whilst walking down stairs and turning on a landing. Dr Goater telephoned Dr Long and was informed that Dr Long thought Mrs Brown had strained her soleus muscle and had referred her for physiotherapy. Dr Goater felt that the most likely diagnosis was a partial internal tear of the soleus muscle.
While still using the splint, Mrs Brown noticed pain in her calf muscles, swelling in her right ankle, and nausea. In late March 2005, she woke in the middle of the night feeling clammy, with pain in her chest, and having difficulty breathing. Investigations on 29 and 30 March 2005, revealed her to have DVT and bilateral pulmonary embolisms. She was commenced on warfarin therapy.
On 3 May 2005, Mrs Brown submitted an “Employee Compensation Claim” identifying her injury as severe bruising, torn muscle and blood clots. The insurer accepted provisional liability by letter dated 16 May 2005.
A further venous duplex study of the right leg on 24 May 2005 revealed a further DVT and, incidentally, a small Baker’s cyst (a cyst containing synovial fluid communicating with synovial fluid of a joint).
Dr Way reported to the insurer on 21 June 2005 that, though he initially suspected ligament damage, “the injury was [subsequently] found to be only [a] relatively minor soleus strain with full recovery expected in 4 to 6 weeks”. He felt that her work injury had caused her “collection of problems”.
A venous duplex scan on 19 August 2005, revealed that the DVT had cleared and there was no popliteal cyst.
On 26 October 2005, Dr Long wrote to Dr Way and said:
“Thanks for referring Gail back to see me. Her problem is what I feared when I first saw her, that is, due to immobility Gail has developed maltracking of the patellofemoral joint. She also appears to have had an adhesion within the knee which broke when she stepped off the bus as her range of motion improved following this incident.
At the moment the mainstay of treatment is weight loss, hamstring stretches, VMO strengthening and patience. There is definitely going to be no surgery that can address this problem until those other factors have been taken into account.”
Mrs Brown saw Dr Le Leu, occupational physician, at the request of the insurer on 31 October 2005. He reported on 3 November 2005 that the DVT had cleared, but she still had a lot of trouble with her right knee. She was unable to squat or kneel, walking was restricted because of pain, standing caused her leg to ache and swell, and she could only handle stairs one at a time. He noted that she weighed 112kg and that she had been around that weight for many years. Her height was 161cm. Dr Le Leu felt that Mrs Brown had probably suffered a strain to the hamstring and the soleus muscle and there did “not appear to be evidence of an intrinsic knee injury”, though he had not seen the MRI scan. The DVT was due to immobility and, as a consequence, she developed pulmonary emboli.
Professor Gatenby, physician, reviewed Mrs Brown on 11 November 2005 and reported to Dr Way on 27 November 2005. He recommended a continuation of oral anticoagulation with warfarin, but the situation needed to be kept under review.
A further venous duplex scan on 5 January 2006 revealed no DVT, but did show an unruptured Baker’s cyst.
Dr Gibson, general practitioner in Dr Way’s practice, first saw Mrs Brown in late January 2006, after she had a fall onto her right knee, which improved her pain. On examination, he felt she had a problem with her medial meniscus and he referred her for a second MRI scan, which was performed on 24 February 2006 (‘the second MRI scan’). This scan showed minor grade 1 chondral wear of the patellofemoral articular cartilage. There was a small knee joint effusion and a small to moderate sized Baker’s cyst. The medial meniscus showed a degenerative signal, consistent with tearing of the posterior horn.
On receipt of the second MRI scan, Dr Gibson referred Mrs Brown to Dr Nott, orthopaedic surgeon. In his referral letter of 2 March 2006, Dr Gibson set out his history and added:
“The question is, was the meniscus the problem all the time, or had this been damaged in he [sic, the] fall [sic] this year. I believe the original injury was not evident on the first MRI, but we don’t know where the first MRI is to review.”
Before seeing Dr Nott, Mrs Brown saw Dr Dowda, consultant occupational physician, for a medico-legal assessment on 7 March 2006 at the request of her solicitor. He recorded that Mrs Brown had a fall on 11 February 2005 in which she jarred her right knee, but within two hours her knee had settled in terms of swelling and pain. After the fall of 11 February 2006, Mrs Brown was able to resume her domestic activities, something she had not been able to do up to that time. Though she experienced chronic knee pain up until the February 2006 fall, since that time her symptoms “only flare and then settle” and, on occasions, she experiences no pain at all and it feels normal on these occasions (Dr Dowda, page four).
Dr Dowda recorded that Mrs Brown complained of chest tightness on occasions and feeling breathless. She described a burning, tingling feeling occasionally in the right calf, but the swelling had resolved. She wore elastic supporting stockings on both legs and said that swelling still occurred in the right foot and ankle if she did not wear stockings. She remained on warfarin, as her clotting disorder had not stabilised. On examination, she was unable to fully extend the right knee and had pain behind the knee. She could flex both knees to a normal range and there was no evidence of collateral or cruciate ligament instability.
Dr Dowda concluded that it was probable that Mrs Brown’s injury lead to her DVT and pulmonary emboli. The DVT had not yet stabilised, but pulmonary emboli had cleared. In respect of the right knee, Dr Dowda noted that a medial meniscus tear had been identified clinically and on the second MRI scan, but the condition had not stablised (Dr Dowda, page six). He considered - based on the assumption that Mrs Brown had damaged her medial meniscus - that there was “a relationship between her right knee condition and the accident that happened at work on 28 February 2005”. Assuming the knee surgery proposed by Dr Nott was successful and the recovery uncomplicated, Dr Dowda saw no reason why Mrs Brown should not be able to work as a chef. He would not place any restriction on her work capacity with respect to her pulmonary emboli, but because her DVT had not completely cleared he was not “inclined to put her in a situation where she is required to carry out protracted standing or walking” (Dr Dowda, page eight). He concluded:
“Ultimately, if there is reasonable control with anticoagulant therapy, thus protecting her and preventing her from having further deep vein thrombosis and there is a good outcome from her right knee surgery, then I would see no reason for her not to return to her normal job in her full capacity as a chef/supervisor. A determination of any specific restriction that might have to apply to her right knee subsequent to the surgery would have to remain until that surgery has been completed and the condition stabilised.”
The insurer arranged for Mrs Brown to be examined by Dr Hitchen, orthopaedic surgeon, on 21 March 2006. In his report of 24 March 2006, he recorded that Mrs Brown had no effusion of her right knee, but there was generalised tenderness to light touch all over her knee “not conforming to any anatomical landmarks” (Dr Hitchen, page three). He felt that such “hyperpathia was consistent with exaggerated pain behaviour”. With encouragement, Mrs Brown demonstrated her quadriceps to be fully functional with grade 5 power and no lag and she was able to fully actively extend her knee joint. There were no signs of patellofemoral crepitus.
Dr Hitchen examined the first MRI scan and noted that it showed some mild oedema around the soleus muscle, but no evidence of a Baker’s cyst. He thought it showed no clear evidence of an injury to the medial meniscus, but on reviewing the films there appeared to be some “abnormal signal within the body of the medical [sic, medial] meniscus consistent with intrasubstance degeneration without tear”. He also noted that the x-rays of 24 January 2006 showed mild degenerative changes at the patellofemoral articulation.
Dr Hitchen also examined the second MRI scan and observed that there was some degenerative signal in the posterior horn of the medial meniscus “suggestive of a degenerative tear”.
Given the history, his findings on examination, and the investigations, Dr Hitchen concluded (at page four):
“it is probable that Mrs Brown sustained a spontaneous rupture of a Baker’s cyst in the right knee when at the workplace. As you would be aware, a Baker’s cyst is a degenerative swelling of the knee joint branching into the popliteal fossa. In some individuals the cyst can spontaneously rupture and cause the contents to rapidly enter into the calf. This causes swelling of the calf, and in some cases compression of the posterior tibial nerve causing transient pins and needles in the foot.”
He added that the walking episode at work would not have caused the cyst to rupture and Mrs Brown was at risk of the cyst rupturing at or about the same time in her life. The fact that the cyst had formed again was understandable, as it is a degenerative condition prone to recurrence. In respect of the MRI evidence of abnormal signal within the medial meniscus, he stated that Mrs Brown’s pain was not consistent with a degenerative tear of the medial meniscus and that her generalised pain was not readily explained on a “patho-anatomical basis”. He added:
“Mrs Brown’s right knee condition is not related to an injury, but was due to a degenerative condition. The sequelae of such a degenerative condition was serious in that she developed thromboembolic complications thereafter. Nevertheless there was nothing specific at work that would have induced the Baker’s cyst to spontaneously rupture. Her ongoing symptoms are not related to a work injury. It follows that her right knee condition is not consistent with an injury. Employment is not a substantial contributing factor to her right knee condition.”
In Dr Hitchen’s opinion, there was no need for any further investigation or treatment of the right knee and he strongly recommended against arthroscopic knee surgery. He stated that the insurer had no liability for the proposed knee surgery. As her diffuse knee pain was not explained by the minimal changes seen on the MRI scan, the prospects of arthroscopic surgery providing any benefit were “minimal” (page five). He recommended a return to work as rapidly as possible and added that there was no organic reason why her right knee should prevent a return to pre-injury duties within a month of returning to work. In view of her weight, he felt that she was at high risk of premature onset of degenerative changes in both knees.
Mrs Brown saw Dr Nott on 13 April 2006. In his report of that date to Dr Gibson, Dr Nott recorded that Mrs Brown presented with right knee pain having sustained a twisting injury to that knee in the course of her work 14 months ago. He also noted that a second injury occurred in January 2006. Though this injury, described as a “twist” by Dr Nott, helped her knee pain “for a while” the pain returned as bad as ever. Whether this was the injury that Dr Dowda described as having happened on 11 February 2006 is not known. Mrs Brown complained of recurrent swelling, but there was no locking or instability.
Dr Nott found it difficult to examine Mrs Brown’s knee. She was diffusely and exquisitely tender around the entire knee and it was impossible to examine her ligaments. He noted that the second MRI scan demonstrated a “possible medial meniscal tear” and that the first MRI failed to identify a tear. Given Mrs Brown’s stiffness and diffuse severe tenderness, Dr Nott suggested that an arthroscopic debridement might not fix her problem. He organised a third MRI scan and, if it confirmed a medial meniscal tear, he would consider an arthroscopic debridement “with some trepidation”.
On 17 April 2006, Professor Gatenby noted there had been no further evidence of DVT or pulmonary emboli. He thought she could probably give up taking warfarin, but should stay on low-level prophylaxis such as aspirin. She should definitely wear compression stockings.
The third MRI was performed on 5 May 2006 and demonstrated a torn medial meniscus and widespread mild patellar articular cartilage loss. There was moderate chondromalacia in the femoral trochlea, with a little marginal osteophyte formation. A Baker’s cyst was also noted.
On 26 May 2006, Dr Nott reported to Dr Gibson and the insurer. To Dr Gibson he wrote:
“An MRI scan of Gail’s knee demonstrates a complex medial meniscal tear. I therefore feel that an arthroscopic debridement may be helpful, although I am a little concerned about the amount of stiffness in the knee, and the duration of symptoms. This is clearly a work related injury, but I understand that workcover are denying liability.”
To the insurer, he wrote:
“Enclosed is a copy of my clinical notes. I feel that Gail’s work related twisting knee injury has generated a medial meniscal tear and secondary Baker’s cyst.
It seems clear cut to me that this is a work related injury, and I request workcover approval to perform Gail’s knee surgery…” (emphasis added)
Mrs Brown was admitted to Batemans Bay District Hospital on 20 June 2006 for arthroscopy of her right knee. The operation report is incomplete and the “operative diagnosis” and “operation performed” are both blank, but the notes suggest that a chondroplasty was performed. There is no mention of the state of the medial meniscus.
On 29 June 2006, Dr Nott wrote to Maranatha referring to the arthroscopic debridement of Mrs Brown’s knee and stated:
“She has a degenerate knee which may cause ongoing problems for her, but I feel that she will require 3 months off all duties at Maranatha before returning to full duties.”
Dr Nott made no comment as to the cause of the degenerate knee.
Dr Dowda reviewed Mrs Brown on 19 September 2006. He noted that a chondroplasty had been performed on 20 June 2006, but “there was no actual meniscal damage despite the findings described in a[n] MRI done in May 2006 of there being a torn meniscus” (Dr Dowda, page one). Dr Dowda thought the medical status of Mrs Brown’s right knee was “anything but resolved” and the issue of stabilisation could not be addressed until all medical treatment was completed. He expressed no further opinion on the cause of Mrs Brown’s condition.
Dr Dowda stated that Mrs Brown had completely recovered from the DVT and pulmonary emboli. As a result, there was not likely to be any permanent residual respiratory impairment or impairment due to peripheral vascular disease relating to those conditions.
On 20 November 2006, Dr Nott reported to Dr Gibson that Mrs Brown was not happy with her knee and felt it was getting worse. He felt sure that “a lot of her pain is coming from the patellofemoral joint, but she does have diffuse arthritis affecting the knee”. He tentatively placed her name on the waiting list for a total knee joint replacement.
In his report of 19 June 2007, Dr Nott said he was “not terribly enthusiastic about” the knee replacement option and he injected her knee marcaine and celestone.
Dr Nott’s last report was addressed to Dr Gibson on 20 September 2007. He noted that Mrs Brown had failed to receive any benefit from the cortisone injection into her knee and that her pain was persistent and disabling. New x-rays of 20 September 2007 showed early medial compartment degenerative change and some patellofemoral joint arthritis. Whilst he was reluctant about a knee replacement operation, he did not feel there was any other option.
THE ARBITRATOR’S DECISION
In a reserved decision, the Arbitrator reviewed the evidence and posed (at page eight of his Reasons) the following questions for determination: did Mrs Brown suffer an injury in accordance with section 4 of the 1987 Act and, if so, whether her employment was a substantial contributing factor to that injury?
He did not accept “the Baker’s cyst theory” advanced by Dr Hitchen, because it was not “backed up by any contemporary scientific evidence” (Reasons, page eight, point eight). He preferred the evidence of Dr Way and, based on that evidence, he found (Reasons, page nine) that:
“the pathology of injury suffered on 28 February 2005 was a strain of the soleus muscle in Ms Brown’s right leg. Following treatment Ms Brown developed secondary DVT and pulmonary embolism. Following further and appropriate treatment of the secondary conditions Ms Brown was cleared of any lingering effects of DVT and pulmonary embolism (Prof P Gatenby’s report of 17 April 2006 and venous duplex scan of the right leg done on 26 May 2006). I am satisfied on the medical evidence that there was a causal link between the secondary injuries and the initial injury of 28 February 2005.”
The Arbitrator ruled out the alleged tear of the medial meniscus as an injury “following the arthroscopy procedure undertaken by Dr Nott”. He concluded that Mrs Brown’s employment was a substantial contributing factor to the injury, but that the injury had resolved by mid 2006 and any ongoing problems had not resulted from the incident at work on 28 February 2005 or the secondary injuries (the DVT and pulmonary emboli) but from her pre-existing and non work related degenerative conditions (Reasons, page ten).
SUBMISSIONS
Mrs Brown submits:
(a)as a result of the injury, Mrs Brown’s leg was immobilised in a splint for a period and that immobilisation caused maltracking of the patellofemoral joint;
(b)it is consistent with the Arbitrator’s finding that the DVT and the pulmonary emboli were causally related to the accident, that any other consequences of the immobilisation are also causally related to the accident;
(c)Mrs Brown had no knee pain prior to the accident and has consistently complained of pain since 28 February 2005;
(d)Dr Long stated in his report of 26 October 2005, that Mrs Brown developed maltracking of the patellofemoral joint “due to immobility”;
(e)Dr Nott noted in his report of 20 November 2006, that “a lot of her pain is coming from the patellofemoral joint, but she does have diffuse arthritis affecting the knee”, and
(f)the Arbitrator failed to consider a further consequence of the initial injury, that is, maltracking of the patellofemoral joint and this failure has affected the outcome because there is nothing in the medical reports which contradicts Dr Long’s opinion. His opinion is consistent with Dr Nott’s view as to the established source of the ongoing pain in the right knee.
Maranatha relies on its submissions made at the arbitration, and submits on appeal:
(a)there is no medical evidence to support ongoing disability resulting from the pleaded injury on 28 February 2005;
(b)the Arbitrator’s decision that Mrs Brown had received the “all clear” in relation to the workers compensation related injury and its sequelae by April 2006, was accurate and supported by medical evidence, and
(c)it was an opinion available on the evidence.
DISCUSSION AND FINDINGS
The failure to make findings on matters in dispute constitutes an error because it demonstrates a failure on the part of the Arbitrator to carry out properly his or her function of determining the issues in dispute (see Najdovski v Crnojlovic [2008] NSWCA 175 at [21]). It is not disputed that Mrs Brown’s counsel submitted that her injury was an aggravation of the patellofemoral joint. His submission is found at T11.32, where he said:
“So, in accordance with the evidence, my submission is the nature of the injury is an aggravation of the patellofemoral joint, as Dr Long seemed to suggest in that report, maltracking of that joint, and that is consistent with Dr Nott’s view and, in my submission, if you read Dr Dowda’s reports together, consistent, you may accept that the injury has continued to cause damage.”
The Arbitrator erred in not referring to or determining this issue and, as a result, the matter must be re-determined. As Mrs Brown did not give oral evidence and there are no credit issues involved, I am in as good a position to determine this issue and that is the course I propose to adopt.
Mrs Brown’s argument is that, as a lot of her pain is coming from her patellofemoral joint (Dr Nott) and she has developed maltracking of the patellofemoral joint “due to immobility” (Dr Long), the current condition of her right knee has resulted from the original injury or its sequelae and is therefore compensable. The evidence does not support this argument, and I do not accept it. No doctor expresses the conclusion Mrs Brown asks the Commission to draw.
The only evidence touching on this issue is Dr Long’s report of 26 October 2005. That report is of limited assistance in determining the nature and extent of Mrs Brown’s injury and in determining whether any part of her current complaints or condition have resulted from that injury.
Whilst I accept that Dr Long saw Mrs Brown on at least three occasions, his only report (dated 26 October 2005 and reproduced at [28] above) did not set out the history, his findings on examination, or his diagnosis. Dr Long’s original diagnosis, referred to in Dr Goater’s report of 24 March 2005, was apparently of a strain of the soleus muscle. The fact that Dr Long later thought that Mrs Brown had developed maltracking of the patellofemoral joint due to immobility is of limited, if any, probative value in determining whether Mrs Brown’s current condition has resulted from her injury on 28 February 2005. The doctor provided no explanation as to the relevance of the maltracking of the patellofemoral joint to Mrs Brown’s current condition or the impact it may have had on her right knee and the development of her current symptoms.
Dr Nott does not support Mrs Brown’s argument. He initially found it difficult to examine her knee because of diffuse and exquisite tenderness around the entire knee. Though the second and third MRI scans suggested a medial meniscus tear, the doctor recommended arthroscopic surgery “with some trepidation”. With the benefit of hindsight, his reservations were well founded. The surgery did not confirm a medial meniscal tear and the doctor’s opinion that that condition was “clearly a work related injury” cannot be accepted. His post surgery report made no comment on causation, but merely noted Mrs Brown’s current condition to be a “degenerative knee” (Dr Nott, 29 June 2006).
Dr Nott’s statement that “a lot of Mrs Brown’s pain is coming from the patellofemoral joint” is of little assistance. Even assuming that to be the case, the evidence does not establish that the maltracking of the patellofemoral joint, due to immobility, caused or aggravated the pain in the patellofemoral joint. That issue was not addressed in the evidence in any persuasive way.
Based on the MRI scan evidence of a medial meniscal tear, Dr Dowda accepted (in his first report), that there was a relationship between the right knee condition and the incident on 28 February 2005 (see [36] above). That opinion, however, cannot stand in the light of the findings at surgery. In his second report, Dr Dowda merely observed that the right knee had “anything but resolved” (see [52] above), but made no further comment on whether Mrs Brown’s continuing symptoms had resulted from the initial injury or its sequelae.
As Dr Long’s evidence does not support a finding that the current condition of Mrs Brown’s right knee has resulted from the injury on 28 February 2005 or its sequelae, it is not necessary for there to be contradictory evidence. Mrs Brown has not established her case. Nevertheless, a contrary opinion is found in the evidence: Dr Nott’s opinion is that Mrs Brown has a “degenerative knee”. In the absence of probative evidence that that condition resulted from or was aggravated by the work injury or its sequelae, Mrs Brown’s claim must fail.
The weight of the evidence supports the Arbitrator’s conclusion (with which I agree) that Mrs Brown suffered a strain of her soleus muscle at work on 28 February 2005 and that, as a result of the immobility caused by that strain, she developed DVT and pulmonary emboli, and that all of those conditions resolved by mid 2006 and her continuing symptoms are the result of non work related degenerative changes. That evidence includes the following:
(a)Dr Way’s initial suspicion of an anterior cruciate ligament rupture was proven incorrect by the first MRI scan. His subsequent diagnosis was of a “relatively minor soleus strain with full recovery expected in 4 to 6 weeks” (see [26] above);
(b)whilst the first MRI scan identified the presence of “early cartilaginous changes in the medial femoral condyle”, there is no persuasive evidence that the incident on 28 February 2005 caused or aggravated those changes;
(c)Dr Long’s initial view (recorded in Dr Goater’s report) was that the injury on 28 February 2005 was a strain of the soleus muscle;
(d)Dr Goater concluded that the most likely diagnosis was a partial tear of the soleus muscle;
(e)Dr Le Leu concluded that Mrs Brown probably suffered a strain to the hamstring and the soleus muscle and that there did not appear to be evidence of an intrinsic knee injury;
(f)the suggestion of a medial meniscal tear did not arise until after a second, non-work related, incident. In any event, the evidence at arthroscopy does not support the diagnosis of a medial meniscal tear;
(g)Dr Dowda’s opinion supporting a connection between Mrs Brown’s knee symptoms and the work incident cannot be accepted for the reasons set out at [69] above;
(h)Dr Nott’s final diagnosis was of a “degenerate knee”, but he did not suggest that the degeneration had been caused or aggravated by the work incident, or its sequelae, and
(i)Dr Dowda concluded in his report of 19 September 2006 that Mrs Brown had completely recovered from her DVT and pulmonary emboli.
CONCLUSION
It follows that I do not accept Mrs Brown’s submission that the Arbitrator’s orders should be revoked and an order made that the effect of the initial injury included maltracking of the patellofemoral joint. Having conducted a “review on the merits” (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am comfortably satisfied that the Arbitrator’s determination is correct and, for the reasons given in this decision, I agree with it.
DECISION
For the reasons given in this decision, the Arbitrator’s determination of 24 June 2008 is confirmed.
COSTS
Each party is to pay her or its own costs of the appeal.
Bill Roche
Deputy President
13 October 2008
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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