Chatfield and Australian Postal Corporation
[2004] AATA 32
•16 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 32
ADMINISTRATIVE APPEALS TRIBUNAL ) N2001/1339
) N2001/1485
GENERAL ADMINISTRATIVE DIVISION ) N2002/804
) N2002/1848Re RHONDA CHATFIELD Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member
Dr MEC Thorpe, MemberDate16 January 2004
PlaceSydney
Decision The decisions under review are affirmed. ...............................................
Ms SM Bullock Presiding Member
CATCHWORDS
COMPENSATION - Overuse Injury Left Wrist - Left Knee Injury - Material Contribution - Degenerative Condition
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 20, 21, 24, 25, 27
AUTHORITIES
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Australian Postal Corporation v Bywater, Federal Court, 11 August 1997, 747/1997
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
REASONS FOR DECISION
16 January 2004 Ms SM Bullock, Senior Member
Dr MEC Thorpe, Member1. Ms Chatfield has made a number of applications for review to the Administrative Appeals Tribunal ("the Tribunal") about a number of reconsideration decisions made by the Respondent, the Australian Postal Corporation. Essentially, Ms Chatfield's claims relate to conditions she believes were caused by work. On 16 September 1998, Ms Chatfield claimed having left wrist and forearm pain and on 12 May 1999, she injured her left knee when she fell on concrete.
2. By a determination of 7 May 2001, liability for compensation was ceased for Ms Chatfield's left knee injury (T44, Bundle 1). Ms Chatfield sought a reconsideration of the decision and on 13 July 2001, a delegate of the Respondent agreed with the initial decision (T69, Bundle 1). On 7 September 2001, the reconsideration decision was varied by the Respondent to also include no compensation for permanent impairment or non-economic loss to the left knee (T80, Bundle 1). Thus compensation was determined not to be payable in respect of sections 14, 16, 19, 20, 21, 24, 25 and 27 of the Safety, Rehabilitation and Compensation Act 1988 for the left knee injury. Ms Chatfield also sought review of another reconsideration decision made by the Respondent on 16 April 2002 (T43, Bundle 2) in respect to the condition to her left wrist and forearm strain. The reconsideration decision agreed with the determination at 5 April 2002, that liability cease for compensation in respect to the left wrist and forearm strain from 5 April 2002 (T40, Bundle 2). Subsequently, on 12 November 2002, a claim was made by Ms Chatfield for permanent impairment and for non-economic loss in respect of the left wrist condition. By reconsideration dated 26 November 2002, the determination of 16 April 2002, was varied to include no liability for compensation for permanent impairment and non-economic loss. Liability was ceased in relation to the left wrist condition under all relevant sections of the Safety, Rehabilitation and Compensation Act 1988 (T9, Bundle 3), including sections 14, 16, 19, 20, 21, 24, 25 and 27.
3. Ms Chatfield was represented by Mr P Stockley of Counsel and the Respondent was represented by Mr G Elliott, of Counsel. Ms Chatfield provided evidence to the Tribunal. Concurrent evidence was provided by Dr RD Whittaker, Consultant Rheumatologist and Dr AW Searle, Orthopaedic Surgeon. Dr B Casey, Orthopaedic Surgeon, also provided evidence to the Tribunal. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”: T1-T82, N2001/1339, Bundle 1; T1-T46, N2002/804, Bundle 2; T1-T10, N2002/1848, Bundle 3; T1-T2, N2001/1485, Bundle 4). A number of exhibits were taken into evidence, listed in Schedule 1, attached to this decision
issues
4. The issues in this matter are whether or not Ms Chatfield is entitled to ongoing liability and compensation in respect of a left wrist and forearm strain including for medical expenses, permanent impairment and non-economic loss and also whether or not she is entitled to ongoing liability and compensation in respect to the left knee injury also including medical expenses, permanent impairment and non-economic loss.
legislation
5. A determination in this matter requires consideration of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). Consideration of the assessment of any compensable conditions is undertaken under the requirements and Tables contained in the “Guide to the Assessment of the Degree of Permanent Impairment” (the Guide”).
6. The relevant legislative provisions in relation to this decision are contained in Schedule 2 to this decision.
evidence of ms rhonda chatfield
7. Ms Chatfield commenced employment at Australia Post in Dubbo on 22 May 1991, as a private box sorter. In providing her evidence, she explained to the Tribunal on a number of occasions that she had difficulty in remembering precise details and dates about her left wrist problem and also her left knee condition.
8. Prior to her formally reporting any difficulty with her left wrist to her employer, Ms Chatfield stated that she had pain in her left wrist for about two months. Ms Chatfield also described a ganglion which developed in her left wrist but did not seem to be reported anywhere until 23 April 2001, where it appears in the clinical notes of the Wingewarra Street Medical Surgery, Dubbo, in a NSW Workers Compensation Medical Certificate (Exhibit A1).
9. Ms Chatfield told the Tribunal that prior to reporting her left wrist condition and there being any changes to her work duties, she was working approximately 23 hours per week on a permanent part-time basis, Monday to Friday. Her busiest period occurred on Monday when she worked for five hours. From Tuesday until Thursday, Ms Chatfield would work up to four hours and on Friday she worked for approximately five hours. Ms Chatfield is right hand dominant. Her duties included collecting mail from the pigeonholes and she would then stand to sort the mail with both hands, which could occur for approximately three hours. When Ms Chatfield stood to collect the mail from the pigeonholes, she would then put it into a tray approximately 18 inches wide and four inches deep. It was then taken to be sorted. She estimated that she would take a bundle of mail of between 50 to 60 items in her left hand and then would place them with her right hand into the various mailboxes. Ms Chatfield's other duties included working with the second class mail which consisted of larger letters or mail items. She would not place these items into the trays but into an "ULD" which was described by Ms Chatfield as a large cage-like container. Ms Chatfield stated that the majority of her work involved the sorting of letters. In relation to sorting parcels, this was not a great part of her work and there was a general Australia Post weight restriction of 16 kilograms in terms of mail officers personally lifting items.
10. Prior to completing the Incident Report of 16 September 1998, in respect of her left wrist, Ms Chatfield stated that she was experiencing pain in her left wrist with the pain experienced at the joint of the wrist and in the left hand. It was definitely symptomatic when she was sorting the mail, had a gradual onset but was a constant source of pain. Ms Chatfield stated that there were some days which were better than others and later stated that it was not as bad when she was sorting the mail. Sometime later than 16 September 1998, Ms Chatfield noticed a lump on her left wrist which she referred to as a ganglion. She was eventually referred to what she described as a "Government Doctor" who was a General Practitioner, Dr Logan. Ms Chatfield stated that she did not receive any treatment for her left wrist condition but was provided with medical certificates. It was noted that in the Incident Report in respect to the left wrist and in subsequent medical certificates from Dr Logan and perhaps other doctors, there is a reference to a left shoulder problem. Ms Chatfield stated that there was at the time some difficulties with her left shoulder, but that problem resolved spontaneously after approximately one month. It is apparent from Ms Chatfield's evidence that there was no particular incident in relation to the left shoulder or indeed left wrist. Ms Chatfield stated that she has had no motor vehicle accident prior to her left wrist problem and that she had not in fact submitted any previous workers compensation report.
11. Ms Chatfield stated that later in 2001, she had surgery for the removal of the ganglion on her left wrist (T4, Bundle 2). She had approximately one month off work following that surgery. Ms Chatfield stated that now her left wrist condition is not much better but she has good and bad days in terms of the pain. Subsequently, she has developed another small lump on her left wrist and she has seen her local doctor, Dr S Tomas, about that. Dr Tomas has informed Ms Chatfield that if the ganglion becomes worse or larger, then she will be referred to Dr PJ Scougall, Hand and Wrist Surgeon, who had undertaken the initial left hand surgery. Dr Scougall had in fact told Ms Chatfield when he operated on her initially, that she might expect to have another ganglion occur.
12. In relation to Ms Chatfield's current work, she will collect the mail and put it into a tray. In relation to country mail, she is required to work to eight country mailmen. Mail is sorted into boxes, which can include large letters, but again that is not a major part of her work. She is now working 23 hours per week undertaking such duties. Ms Chatfield agreed with a proposition put by Mr Elliott that in terms of the physical activity involved in holding letters, this required minimal manipulation of the left hand. Ms Chatfield stated that she can be on her feet for up to 15 minutes but the majority of her duties involve her sitting down. She can get up and walk around and also stands depending on her comfort level. There is no ongoing treatment for her left wrist condition apart from seeing Dr S Tomas, her General Practitioner. In terms of exercises for her left wrist, Ms Chatfield stated that she uses a "stress ball" and demonstrated for the Tribunal the exercise action she does by squeezing the stress ball. Ms Chatfield also bent her left wrist up and down. These exercises she undertakes from time to time and had been given them previously by a physiotherapist. She continues to do them on her own initiative, deciding that this may be helpful to her.
13. Ms Chatfield stated that she tried to use her left hand wrist naturally. She described an incident in relation to the left wrist, although the Tribunal was not able to find out precisely when this incident occurred, apart from that it has been in recent times. Ms Chatfield attempted to lift an electric jug full of boiling water and her left wrist gave away causing her to burn her right hand. She stated that she also has difficulty with vacuuming.
14. Considering the left knee injury, this injury occurred on 12 May 1999 when Ms Chatfield fell over on her left knee in the loading dock area, having stumbled on something (T7, Bundle 1). Ms Chatfield was assisted to her feet by two female colleagues, who helped her to walk into the office. She was subsequently taken by her daughter to the local hospital, had x-rays taken and it was ascertained that there were no bones broken. Her knee was bleeding. She did not return to work the next day but on the second day after the injury. Ms Chatfield told the Tribunal that about the month or so after the left knee injury, she would wake up at 1am or 2am in a great deal of pain. She reported this to her supervisor. She further stated that she kept on working but was often in pain. Ms Chatfield referred to herself as "making a rod for my own back", because she kept on working. She stated the reason for her not seeking any specific medical attention for a period of approximately six months after her initial presentation at hospital, related to her waiting to obtain the correct approval form from Australia Post for her to seek medical attention. Eventually she did seek medical attention. Despite the delay in seeking medical assistance, Ms Chatfield stated that the problem with the knee was always there but similar to the left wrist condition, some days were better than others. Prior to the left knee injury, Ms Chatfield used to walk for approximately one hour every day. Since her injury, she has been unable to do this.
15. Ms Chatfield had an arthroscopy of her left knee on 22 December 2000 (T17, Bundle 1). Since that surgery, her knee has not been much better, she stated. She experiences symptoms from time to time. She does try to walk or exercise approximately once per fortnight for 15 to 20 minutes. Her left knee is stiff in the joint, she stated. Ms Chatfield denied that she could in fact undertake her pre-injury duties.
16. There was a reference in the material to Ms Chatfield, singing as an entertainer. She told the Tribunal that she does this as a hobby. The Tribunal noted an article from the local Dubbo paper and a photograph of Ms Chatfield standing up singing (Exhibit R2). Ms Chatfield stated that she would sing in the wheelchair if she had to, as she loves singing so much. She agreed that she could in fact stand up for up to 30 minutes while undertaking singing engagements but later in evidence stated that during her performance she would sit down.
17. There was reference in the documents to Ms Chatfield being assisted with Return to Work Programs by the Commonwealth Rehabilitation Service ("CRS") and that she did not wish to upgrade her duties at work because she believed her left knee problem was of sufficient severity that precluded her undertaking extra duties. Ms Chatfield explained to the Tribunal that if she stands up for any period greater than 30 minutes, then she becomes "fidgety" and she then favours her right knee because of the difficulties she experiences with her left knee. She estimated that she has been undertaking the same duties for the last 18 months for 23 hours per week.
18. In terms of the video evidence provided to the Tribunal, Ms Chatfield identified herself as shopping in a supermarket. She stated that there is a difference for her in moving around and walking, as compared with standing still on the one spot. Ms Chatfield agreed that the video depicted her shopping over a two-day period and that on each occasion she was shopping for in excess of 40 minutes. Ms Chatfield also agreed in relation to her left knee that the pain fluctuated and that there were times when she had no pain at all.
19. Later, in her evidence, Ms Chatfield told the Tribunal that she could possibly undertake her pre-injury work, but there is a limit to that and that she could not do it consistently over a period of time.
concurrent evidence of dr aw searle, orthopaedic surgeon and dr rd whittaker, consultant rheumatologist
dr searle
20. Dr Searle provided reports to the Tribunal dated 25 June 2001 (T60, Bundle 1, p119); 25 June 2001 (Exhibit A2); 18 July 2001 (T71, Bundle 1, p139); 7 May 2002 (T5, Bundle 3); 7 May 2002 (T6, Bundle 3).
21. At hearing, Dr Searle confirmed his opinion in relation to the left wrist condition that Ms Chatfield had a typical overuse syndrome. Dr Searle reported that in early 1998, Ms Chatfield began to develop pain in the region of her left wrist which has persisted. The pain was on the back of her left wrist and was not present all the time but was aggravated by using her hand especially lifting weights, or by changes of the weather. When the pain was bad, it spread up to her elbow. He also reported excision of a ganglion from the back of her left wrist by a hand surgeon, Dr P Scougall in September 2001. Dr Searle's view is that the general nature and conditions and obligations of Ms Chatfield's employment caused the overuse syndrome including extensor tendonitis at the wrist, left lateral epicondylitis and capsulitis of the left shoulder. Dr Searle opined that hundreds of cases of overuse syndrome in his experience had symptoms for quite a long time before patients would seek medical attention. Furthermore, the tenderness of Ms Chatfield's lateral epicondyle was typical of her overuse syndrome. Dr Searle considered it reasonable to assume that the ganglion on the left wrist developed as a result of the overuse syndrome, whereas Dr Whittaker considered it developed spontaneously. Removal of the ganglion removed one of the symptoms of Ms Chatfield’s left wrist condition, but it did not solve the overall overuse problem, Dr Searle further opined. Dr Searle explained that there are microcysts in the ligaments which is a type of degenerative condition caused by wear and tear and can be caused by the overuse syndrome. One of those cysts then develops and become a ganglion. While the ganglion can be surgically removed, there is a likelihood that one of the other cysts will also develop into a ganglion. Dr Searle further noted that according to the surgeon, Dr Scougall, there is microscopic evidence of abnormality of that ligament.
22. Dr Searle acknowledged that arthritis of Ms Chatfield's fingers may well be present but that it was irrelevant to her extensor tendon problems and that the definite evidence of problems in the left wrist joint and the tendons and lateral epicondyle combined with the complaints of pain in the shoulder, with her history, are absolutely typical of the overuse syndrome.
23. Dr Searle's examination of Ms Chatfield demonstrated tenderness over the wrist joint and tenderness over the extensor tendons. He also considered that Ms Chatfield had "a little bit of tenderness at the base of her left thumb", but he did not consider that it was related to the overuse syndrome. The surgical finding indicated to Dr Searle that there was abundant synovitis on the dorsoradial aspect of the wrist (T78, p149, Bundle 1) and this is typical of an overuse syndrome. Dr Searle opined that the partial tear of the scapholunate ligament found at surgery was a form of damage related to the overuse syndrome.
24. In reply to Mr Elliott's question as to whether it was possible that there could be any condition productive of Ms Chatfield's hand or wrist problem apart from the one he described as occupational overuse syndrome, Dr Searle replied that Ms Chatfield could have pain in the finger joints from arthritis, she could have pain in her wrist joint from arthritis, but that would not account for the tenosynovitis of her tendons and the appearance of this on the bone scan and also of epicondylitis. Dr Searle agreed with Mr Elliott there was no objective evidence of pathology to support epicondylitis or problems in the shoulder. Dr Searle stated however, that medical diagnoses were often made without objective findings. Dr Searle also agreed that no other doctor had found an elbow problem.
25. Dr Searle agreed that a Rheumatologist would be better placed to diagnose arthritic conditions than an Orthopaedic Surgeon. However, Dr Searle stated that having generalised osteoarthritis did not preclude the presence also of an overuse syndrome.
26. Concerning Ms Chatfield's left knee, Dr Searle considered that the knee injury was an injury to the small joint behind the kneecap and the anterior knee pain was typical of a patello-femoral problem. Dr Searle opined that the fall at work caused significant articular surface damage in Ms Chatfield’s lateral compartment of her left knee as well as traumatic chondromalacia of the patello-femoral joint.
27. Under cross-examination, Dr Searle stated that Ms Chatfield did not have arthritis of the patello-femoral joint, because the surgeon, Dr S Rizkallah, had a look at it. The surgeon, Dr Rizkallah, found problems within the knee joint proper but not in the patello-femoral joint. Dr Searle did not consider Ms Chatfield’s knee symptoms arose from the degeneration or osteoarthritic condition in the knee, but were coming from the patello-femoral joint. This was based on the fact that the pain described was in the patello-femoral joint and not in the lateral femoral condyle, nor in the lateral compartment of the joint. Dr Searle stated that arthritis of the lateral compartment did not cause patello-femoral pain per se.
28. Dr Whittaker had made a comment that when one has a valgus deformity in the knee, as Ms Chatfield has, then all of a sudden the patient has patello-femoral maltracking, because the normal alignment of the tibiofemoral joint is abnormal and that can produce pain due to abnormal patella tracking. In reply, Dr Searle stated that none of the doctors who examined Ms Chatfield found maltracking. Dr Whittaker replied that patients who have a valgus deformity are overweight and have a predisposition to osteoarthritis, can develop patello-femoral joint pain, even if they have not shown patello-femoral degeneration.
29. Dr Searle had a history from Ms Chatfield of her seeing a doctor within one month of her injuring her knee. When Dr Searle was made aware of Ms Chatfield’s evidence to the Tribunal of being pain free and also of her experience at 1am of feeling a significant pain in her knee, Dr Searle opined that this was not entirely consistent with the classical picture of trauma to the knee. Furthermore, periods of being pain free was also not typical of trauma, where one would expect ongoing significant problems as a result of that trauma. Dr Searle had not taken a history of pain free periods of the knee. Ms Chatfield had told Dr Searle that the pain had initially improved but then worsened. While Dr Searle agreed that Ms Chatfield could have degenerative arthritis of the left lateral compartment of the knee, he emphasised that the pain she experienced and described is in the patello-femoral joint and not in the lateral compartment of the joint. The fact that Ms Chatfield has described pain in different areas of the knee and on different occasions, did not alter Dr Searle's opinion. Dr Searle thus accepted that there could be degenerative osteoarthritis of the left lateral compartment of the knee, but emphasised that that was not where she described her pain. Dr Searle also could not accept an alternative hypothesis that the original knee injury has settled and what Ms Chatfield was now experiencing was an arthritic problem. This alternative hypothesis was unacceptable to Dr Searle because there was no osteoarthritis in the patello-femoral joint. Dr Searle concluded that Ms Chatfield has arthritis developing in various parts of her body but this could not entirely explain her left knee symptoms.
30. Dr Searle acknowledged the possibility that given Ms Chatfield's evidence that her left knee condition has not improved even though she performs extremely light work because of work restrictions, then that could mean that work was not a factor in her symptomatology.
dr whittaker
31. The Tribunal had available to it the report of Dr Whittaker dated 18 February 2002 (T33, Bundle 2).
32. In relation to Ms Chatfield's left wrist, Dr Whittaker considered the symptoms in the wrist in 1998, could be consistent with a ganglion and this may have contributed to her thumb low grade tendonitis. Dr Whittaker noted that Ms Chatfield had recalled the gradual onset of generalised soreness of the left wrist in mid 1998, initially diagnosed as tendonitis. Dr Whittaker noted however in relation to the ganglion, that it would have developed regardless of Ms Chatfield's employment. The ganglion develops slowly and quite often, patients can present with wrist pain and the ganglion if small enough, may only be detected on an ultrasound examination not on clinical examination. Ms Chatfield did not have any test, so it was not possible to say that the ganglion was causing the symptoms over the proceeding three years, until it became clinically detectable. The ganglion had its origin in the scapholunate ligament which is deep in the wrist underneath all the other structures next to the ligament which joins the two bones (Transcript, 21 July 2003, p107). The other potential cause is that the scapholunate ligament is degenerative. Dr Whittaker noted that what Dr Searle was discussing, was that this degenerative ligament can cause some symptoms and discomfort before the ganglion develops. If patients are putting a great force through the wrist joint, enough to increase the interarticular pressure, then one can experience bulging of the synovial fluid into the ganglion which can cause some distension and pain. Dr Whittaker did not believe this was relevant to Ms Chatfield’s pathology. When Ms Chatfield had surgery on her left wrist, Dr Whittaker noted that it was found that the ganglion had localised synovitis not tenosynovitis and not tendonitis. There is no mention in the surgical notes or reports of Dr Scougall of tendonitis. Dr Whittaker opined that over time, another pathology had developed. While Dr Searle had found evidence on examination of tenosynovitis in Ms Chatfield's upper left limb, Dr Whittaker did not find that. Dr Searle noted that he found the tendons were tender just above the left wrist where the tendon sheaths are found and Ms Chatfield’s left wrist joint was also tender as a separate entity (Transcript, 21 July 2003, p108).
33. Dr Whittaker did not consider that the presence of the overuse syndrome was supported by the distribution of Ms Chatfield's symptoms. She had symptoms more extensive than just the left wrist and quite mild in many areas. Dr Whittaker also stated that it was important to note that Ms Chatfield is right handed. She works approximately 30 hours per week, sorting mail and does fine movements which are repetitive with her right hand, while her left hand is static holding a bundle of mail with the wrist in the neutral position as she sorts with the hand. The repetitive movement that could possibly be considered to cause an occupational overuse syndrome is being done with the other arm, not the left arm. Thus, Dr Whittaker concluded that Ms Chatfield does not have an occupational overuse syndrome and if one was to suggest that the ganglion was work-related, then it would be expected to have occurred in the right arm. Dr Whittaker opined that diagnoses of overuse syndrome were made far too frequently without consideration of all the available evidence and of other factors or potential causes for a patient's symptoms.
34. In relation to the bone scan of Ms Chatfield’s left wrist, Dr Whittaker had in fact reviewed the scan himself and noted that on the blood pool phase, there was some slight increase over the radial aspect to the wrist joint and on the delayed films, there was a small amount of uptake in the right third proximal phalangeal joint, so that the first small joint in the middle finger, the right grade and the left thumb joints, the first metacarpal phalangeal joint, the right base of thumb all indicated a fairly typical joint for women with arthritis, which developed into a fairly typical inflammatory disease picked up on the bone scan and also over the left radial styloid (Transcript, 21 July 2003, p85). There was not any abnormal uptake in the ulnas, Dr Whittaker stated.
35. Combining the evidence, for Dr Whittaker, it was far more consistent to consider that Ms Chatfield has a mild evolving generalised osteoarthritis which may be a lot worse in the left knee. As Dr Whittaker did not examine Ms Chatfield’s knee, as he had not been requested to do so, he was not able to provide much more than general comment.
36. Dr Whittaker noted that on examination, there was a considerable component of exaggeration and that was borne out by his observation of Ms Chatfield in the video evidence, when he viewed Ms Chatfield shopping using both of her upper limbs equally and in a normal functional matter for a naturally right handed person. Dr Whittaker acknowledged that on the video, Ms Chatfield did not demonstrate a full range of left wrist flexion because she was not observed close up. She was not shown to be favouring the left lower limb in the supermarket. Dr Whittaker also did not observe any functional restrictions and believed she had a fully functional range of movement in the left upper limb.
37. Dr Whittaker acknowledged that it is possible to have both of an overuse syndrome and osteoarthritis. But this is not the case with Ms Chatfield, he opined, as she did not have a job in which one would expect there to be the development of an occupational overuse syndrome. If Ms Chatfield was doing anything in a repetitive manner, it is Dr Whittaker's view that she is doing it with her right arm yet she had developed symptoms in her left hand. This was especially the case when there are the other legitimate medical diagnoses that are likely to occur in women of her age group and that could easily account for her symptoms. It is the totality of Ms Chatfield's symptoms in combination with the video evidence, which Dr Whittaker considered to be entirely consistent with minor early generalised osteoarthritis which was supported by the bone scan and was entirely consistent with a woman of Ms Chatfield's age. Developing symptoms in the distribution which she has, Dr Whittaker firmly believed were not consistent with the true form of occupational overuse syndrome and concluded that Ms Chatfield's work duties and hours worked were not consistent with an overuse syndrome. Furthermore, Dr Whittaker opined that the protected and restricted wrist movements at the time of examination of Ms Chatfield, were consistent with a "non-organic flavour to Ms Chatfield's presentation".
evidence of dr b casey, consultant orthopaedic surgeon
38. Dr Casey provided a report dated 20 November 2001 (T15, p20, Bundle 2) and an assessment report also dated 20 November 2001 (Exhibit R1). Dr Casey also provided evidence to the Tribunal.
39. Dr Casey diagnosed Ms Chatfield as having degenerative arthritis of the left knee lateral compartment with the main origin of that condition relating to her obesity and valgus limb alignment. Dr Casey opined that from the pattern of the time off work, it appeared to him that the injury to Ms Chatfield’s left knee in May 1999 was minor with a return to work on full duties two days later. Pain then subsequently developed in the left knee. Dr Casey opined that there appeared to him to be some exaggeration by Ms Chatfield of the symptoms judged by his clinical findings. Dr Casey acknowledged that she was managing on restricted duties at work and on her history, she could not increase these duties. Dr Casey suggested that independent observation of her outside work would suggest whether or not she could carry out heavier type activity. Overall, Dr Casey opined that there was no connection between the original fall injuring her knee in May 1999 and Ms Chatfield's degenerative arthritis of the left knee which he regarded as secondary to her obesity and valgus limb alignment. Dr Casey made an impairment assessment from Table 9.2 of the Guide of 10 per cent in addition to 10 per cent from Table 9.5 of the Guide.
40. Under cross-examination, Dr Casey opined that the trauma to Ms Chatfield as described, would not have produced the changes in the lateral compartment of Ms Chatfield's left knee. He was of the opinion that the arthroscopy findings did not support patello-femoral pathology and he also did not consider the patella to be maltracking. Dr Casey had obtained a history that the left knee "started playing up" one to two months after the accident. He assumed that Ms Chatfield would have been pain free for this period. This was a different history from that recorded in the Wingewarra Street Medical Surgery clinical notes, which indicated on 22 June 1999, periodic pain over the patella (Exhibit A1).
41. Dr Casey stated in his evidence that he could not obtain a clear localisation of the knee pain in terms of symptoms. It seemed to Dr Casey that the pain was fairly diffuse around the knee although he noted that there were some places where the pain was a little worse (Transcript, 22 July 2003, p11). On the arthroscopic pictures which Dr Casey had seen of the patello-femoral joint, if there was a significant condyle malacia, then it would not have had the smooth appearance that was apparent in the picture. Similarly, there was no indication of any softening in the groove of the patella, that is the sacro-trochlea groove. There was however definite wear and tear visible in the lateral compartment. The medial compartment seemed to be good in terms of the images and any wear at that site was minimal because anything major would have been visible.. While Dr Casey had made assessment of 10 per cent impairment, it was his view that this is not related to Ms Chatfield’s work injury, but underlying osteoarthritis in the lateral compartment of her left knee. There is no objective evidence of a continuing problem as noted from the arthroscopy. In relation to the arthroscopic finding of wear on the lateral femoral condyle and lateral tibial plateau, this would, in Dr Casey's opinion, be productive of pain in the back of the knee. Dr Casey did not agree that Ms Chatfield’s complaint of anterior knee pain is more likely to indicate damage at the patello-femoral joint.
42. Specifically in relation to degenerative arthritis conditions, Dr Casey opined that it was not necessarily correct that it would be expected to occur in both the right and left knee. He explained that for reasons doctors do not understand, one knee would be worse than the other and that applied not only to the knees but also to hips. Sometimes the deterioration is at much the same rate resulting in bilateral joint replacements. Over half of all joint replacements are of a single joint. It was not necessarily the case that the reason for a unilateral joint replacement related to a history of trauma. The difficulty with Ms Chatfield is that a trauma to the knee as she described would not be expected to produce degeneration in the lateral compartment of the knee as evidenced in the arthroscopic findings. Dr Casey also did not agree that the incident of 12 May 1999 to the left knee could have produced temporary aggravation of Ms Chatfield’s degenerative condition because the nature of the fall did not correlate with a degenerative condition. The fall had not worsened Ms Chatfield's arthritis, Dr Casey stated.
43. In relation to the tendonitis that Ms Chatfield presently exhibits in her left knee, and given the history Dr Casey took of Ms Chatfield not experiencing any knee problems for a one or two months period after the May 1999 injury, on the balance of probabilities, it indicated to Dr Casey that it was unlikely that patella tendonitis followed the fall, in that it appeared to him that the fall was not as severe to cause a change. Dr Casey acknowledged that in general, trauma could relate to tendonitis as a trauma is a quite common precipitating factor. Dr Casey did not think however that tendonitis in Ms Chatfield's case was caused by trauma (Transcript, 22 July 2003, p20). While Dr Searle opined that Ms Chatfield's complaints related to symptoms of pain in the front of the knee, Dr Casey opined that the findings from the arthroscopy showed no significant damage to the patello-femoral joint at the front of the knee and accordingly there were no objective signs of pathology in that patello-femoral area. Furthermore, the arthroscopic findings did not support the diagnosis of patella maltracking.
evidence of dr d bray, orthopaedic surgeon
44. Dr Bray provided a report dated 15 March 2001 (T34, Bundle 1). Dr Bray opined that injury to Ms Chatfield's left knee at work has been superimposed on some degree of damage to the lateral compartment of the knee worsened by her build and tendency to genu valgum or "knock knee" which she has on both sides. Dr Bray further opined the questions have to be asked about the actual objective evidence of disease and whether or not any future knee replacement is related to a fall or constitutional changes. Thus Ms Chatfield suffers from a painful knee with underlying lateral compartment degenerative changes of uncertain extent. The clinical findings to support this diagnosis are quadriceps wasting, loss of extension of the knee and loss of flexion. Dr Bray noted that there was a long delay between Ms Chatfield's injury and the onset of a more comprehensive assessment and it may well be that the injury on 12 May 1999 is playing relatively little part in her present problems. It is certain, Dr Bray opined, that to some extent her present problems relate to her build, her being overweight and her tendency to be knock kneed. Dr Bray could not exclude the possibility that the injury of 12 May 1999 played some part in her present troubles and there was no doubt that this has caused a temporary aggravation at the very least of problems with the knee with precipitation of acute pain in the knee. Dr Bray opined that Ms Chatfield should increase her activity level, the prognosis was dependent almost entirely upon Ms Chatfield's ability to lose weight, gain more movement in the left knee and resume more normal activities.
evidence of dr a ganora, consultant in rehabilitation medicine
45. Dr Ganora provided a report dated 3 August 2001 (T75, Bundle 1). Dr Ganora noted the clinical history is of established osteoarthritis of the left knee, present at the time of the fall but not apparently causing her any problems prior to the fall. It was likely that the May 1999 fall aggravated her left knee and rendered the knee symptomatic causing a progressive pain and loss of mobility. Dr Ganora opined that Ms Chatfield was fit to continue work, which should allow her to sit, stand and walk at will within her tolerance. From Table 9.5 of the Guide, Dr Ganora assessed a 30 per cent impairment of the left lower limb.
evidence of dr s rizkallah, orthopaedic surgeon
46. Dr Rizkallah provided a number of reports dated 15 August 2000 (T13, Bundle 1); 22 December 2000 (T17, Bundle 1); 9 January 2001 (T18, Bundle1); 24 January 2001 (T21, Bundle1); 21 February 2001, (T31, Bundle 1). Dr Rizkallah performed an "arthroscopic chondroplasty and E/O plica" on 22 December 2000 (T17, Bundle1). Dr Rizkallah noted that Ms Chatfield has moderate/severe degeneration of the lateral compartment of the left knee and although exacerbated by the incident at work, the findings on surgery indicated ongoing degeneration in her left knee.
47. In his last report dated 21 February 2001, Dr Rizkallah noted that he could not explain Ms Chatfield's continuing pain and stiffness with quadriceps contraction and she did not have any significant intra-articular pathology to explain her pain and stiffness. Dr Rizkallah suggested Ms Chatfield obtain a second opinion and opined that she should be able to return to normal employment by the end of March 2001.
dr s tomas, general practitioner
48. Dr Tomas has provided a number of medical certificates and reports about Ms Chatfield's left wrist and left knee.
49. In relation to the left wrist, Dr Tomas noted on 25 April 2001 (T42, Bundle 1), in a referral to Dr P Scougall, Hand and Wrist Surgeon, that Ms Chatfield had left wrist pain for four or five years, that is since 1996 or 1997, with it becoming worse over the past three years with associated pain in her left shoulder and arm. Dr Tomas noted no particular injury. Examination in April 2001, revealed dorsal wrist tenderness on the left with a ganglion situated laterally.
50. In relation to Ms Chatfield's left knee condition, Dr Tomas noted on 28 June 2001 (T4, Bundle 3), that although it was too early for Dr Tomas to give an accurate prognosis in relation to Ms Chatfield's left knee condition, it appeared to him that she has significant disability and pain associated with left knee injury sustained at work in May 1999. Dr Tomas acknowledged Ms Chatfield could undertake full-time work, but doubted she could return to her pre-injury duties and he saw that significant improvement in Ms Chatfield's left knee was unlikely.
51. In report dated 13 February 2002 (T32, Bundle 2), Dr Tomas noted that Ms Chatfield could sort while sitting down and could card parcels as long as she was only performing the written component. Standing and sorting was not possible due to her left knee injury. Dr Tomas noted that Ms Chatfield was going to have time off during the next one or two weeks because of the problems she was having with her joint and associated stress she was under. She was going to take holidays rather than using work cover.
evidence of dr pj scougall, hand and wrist surgeon
52. Dr Scougall provided report dated 18 September 2001 (T4, Bundle 2), 17 October 2001 (T8, Bundle 2); and 12 December 2001, (T18, Bundle 2).
53. Dr Scougall examined Ms Chatfield initially on 6 July 2001 (T65, Bundle 1) and reported pain mainly only on the dorsoradial aspect of the left wrist and that the pain was aggravated as a mail sorter. Clinically, Dr Scougall recorded a painful dorsal ganglion in her left wrist. An MRI scan (T74, Bundle 1) confirmed the dorsal ganglion arising from the scapholunate ligament associated with a partial ligament tear. Open excision of the ganglion was performed on 3 September 2001 and the operation's report confirmed a large ganglion (T78, Bundle 1). There was also abundant synovitis on the dorsoradial aspect of the wrist extending towards the styloid process. The ganglion was removed.
54. Ms Chatfield was examined on follow up and at her last visit to Dr Scougall on 30 January 2002, Ms Chatfield was described as experiencing ongoing pain in the wrist, mainly on the dorsoradial aspect. Examination revealed moderate diffuse tenderness over the dorsoradial aspect of the wrist and distal forearm. Dr Scougall questioned whether or not a pain management clinic might assist.
evidence of dr d glenn, orthopaedic surgeon
55. Dr Glenn provided report dated 14 June 2001 (T55, Bundle 1). He reported a ganglion of the left wrist developed over the past six or eight months with a painful left arm for which he could find no structural abnormality. Dr Glenn believed the condition began a minor overuse syndrome that has persisted with some embellishment and probable psychological overlay. Dr Glenn believed that the present symptoms and ganglion can be attributed to the initial overuse incident beginning in September 1998.
radiological findings
56. Plain X-rays of the left wrist was normal. A bone scan was taken on 17 December 2001 (T20, Bundle 2). Degenerative arthritis was noted within a number of small joints of both hands. There were features of a low-grade vascular bony reaction in the region of the left radial styloid. It was noted that the cause of this appearance was uncertain. It was possible that De Quervain's tenosynovitis could result in this appearance, although it was also noted that low-grade focal inflammatory arthritis could result in a similar scan pattern.
consideration and findings
57. In reaching a decision in this matter, we have considered the oral and documentary evidence, the legislation and the case law.
58. The two conditions about which we have to determine whether there is a causal relationship between Ms Chatfield's work at the Dubbo Post Office relates to her left knee condition and left wrist condition. If there is a causal relationship determined between these conditions and Ms Chatfield's work, then she is also seeking to have medical treatment expenses and also permanent impairment and compensation for non-economic loss.
left wrist condition
59. It is argued that the repetitive nature of Ms Chatfield's work has caused her left wrist and forearm strain which has continued since she first reported it in 1998. Certainly, liability was accepted by the Respondent for this condition until 5 April 2002, following her claim in September 1998. In Ms Chatfield's claim for the left wrist condition, she did not fill in the section reporting when she first noticed the illness or when the injury happened (T4, p11, Bundle 1). In evidence, Ms Chatfield noted that the symptoms had been present for about two months before her claim and the ganglion on her left wrist was not recorded until about July 2001.
60. Prior to her claim, Ms Chatfield had been undertaking permanent part-time work of 23 hours per week. Ms Chatfield is right handed. Her duties as a box sorter included collecting mail from pigeonholes and standing to sort mail for up to three hours. Ms Chatfield said that she used both hands to sort mail and acknowledged that there was a minimal load. The onset of left wrist pain was gradual. Ms Chatfield also stated that she would notice pain at home when she undertook certain activity. Furthermore, Ms Chatfield noted that some days would be better than others.
61. Ms Chatfield consulted Dr Logan, General Practitioner, who on 18 September 1998 certified that from that date until 3 October 1998, there should be modification of Ms Chatfield's work with provision of a letter sorting rack to allow her to use both hands to sort mail (T5, p15, Bundle 1). Dr Logan’s medical certificate appeared to consider that Ms Chatfield was not using both hands to sort mail, which is different to the evidence provided by Ms Chatfield to the Tribunal. Dr Logan certified that she would be fit for duties with no restrictions, subject to work modification, from 18 September 1998 to 3 October 1998. Dr Logan also indicated that Ms Chatfield was sorting letters for five hours and again that is contrary to Ms Chatfield's evidence to the Tribunal. On 2 October 1998, Dr Logan noted Ms Chatfield was suffering from left wrist and left shoulder pain (T5, p16, Bundle 1). The left shoulder issue, now no longer present, it seems, is one about which the Tribunal makes no findings. On 2 October 1998, Ms Chatfield was certified fit to undertake her pre-injury duties with work place modification. On 23 November 1998, Dr Logan certified Ms Chatfield did not require any time off work. Perusal of Ms Chatfield's medical records shows no time off from work for the left wrist and no further report until 18 July 2000 (T12, p42, Bundle 1) when there is an onset of a complaint on 15 July 2000 of tendonitis. Ms Chatfield had one day off work and was certified fit for suitable duty not using her left hand and fit for all pre-injury duty from 21 July 2000.
62. It appears to us, that there is no specific injury causing the left wrist condition. As Mr Elliott submitted, in such circumstances Ms Chatfield’s condition should be considered to be a disease and not an injury. The Tribunal agrees with this submission. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, the Full Federal Court discussed the requirement that there be a contribution to a disease in a material degree by the employee’s employment. In the context of the 1971 Act, the Full Federal Court noted that the evidence must show that "in fact and in truth" the employment of a worker contributed to the conditions complained of. The causal connection must be established on the balance of probability and not left in the area of possibility or conjecture. Once a link is established, it then does not matter whether the work contribution is large or small only that it exists. In Australian Postal Corporation v Bywater, Federal Court, 11 August 1997, 747/1997, Lindgren J noted Treloar v Australian Telecommunications Commission (supra) in addition to Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (at pp 632-633 and 641). Applying these decisions to this case, Ms Chatfield would be entitled to be successful if the left wrist condition was contributed to by the state of affairs to which she was subjected during the course of her work at the Dubbo Post Office.
63. What evidence is there of overuse of Ms Chatfield’s left wrist beyond 5 April 2002, when liability for the left wrist condition was ceased? Ms Chatfield's evidence is and the Tribunal finds that she was a part-time worker, working 23 hours per week, with the longest hours undertaken on Monday of five hours and then the other days each four hours and up to five hours on Friday. The Tribunal finds that on the evidence, half of Ms Chatfield’s work involved small letter sorting. Ms Chatfield was not loaded up by way of letters and the Tribunal finds that on her evidence, she was not using the left hand more than the right and indeed Ms Chatfield is right hand dominant. Ms Chatfield agreed that there was minimal manipulation of her left wrist and the Tribunal so finds. Ms Chatfield was able to self-regulate her work. She handled some parcels out of an ULD but there was a general work restriction of 16 kilograms and Ms Chatfield herself had a weight restriction of one kilogram.
64. Dr Searle opined that this work was of the repetitive type to cause an overuse syndrome. Dr Whittaker did not agree with Dr Searle's opinion. Furthermore, Dr Whittaker’s evidence was that he has seen employees perform the type of tasks performed by Ms Chatfield when he attended Australia Post facilities, not specifically the Dubbo facility.
65. Ms Chatfield commenced light duties because of her left knee condition in January 2001. It is at this time that she recommenced complaints about her left wrist problem. These symptoms are thus being reported at the very time she is undertaking the lightest work she has ever undertaken. The Tribunal finds that at the time Ms Chatfield is considered to be suffering from her repetitive work causing overuse syndrome, her duties were at their most light and shortest, as a result of work restrictions. Furthermore, from Ms Chatfield's evidence, she would experience symptoms in the left wrist and hand at home when undertaking physical activity as well as at work.
66. The Tribunal has also considered Ms Chatfield’s medical history. It is seen that she was quite accustomed to attending doctors for illnesses such as reflux, viruses, coughing and other medical conditions. Ms Chatfield had however suggested to the Tribunal that she did not attend a doctor for her left wrist condition either because she was being stoic or because she was waiting for the correct Australia Post form to allow her to be referred to a nominated doctor. It would seem to the Tribunal, as submitted by Mr Elliott, that had Ms Chatfield felt the medical need to seek attention for her left wrist, given the history which is presented in her medical notes, she would have done so. Ms Chatfield agreed in evidence that had she felt the need she would have attended a doctor. This is not to say that Ms Chatfield may not have had symptoms from time to time, but it is the Tribunal’s view from her evidence and from the clinical notes, that her condition was not sufficient to warrant her continuing to require medical attention and that it was and is an intermittent problem. Thus after the initial examination by Dr Logan in September and November 1998, when there was modification of her work, Ms Chatfield was then certified fit for her pre-injury duties from 2 October 1998 (T5, p16, Bundle 1). Following a review on 23 November 1998 (T5, p17, Bundle 1), Ms Chatfield then did not attend for any medical care until 18 July 2000, when she consulted Dr White who noted tendonitis of the left wrist but said that she was fit for pre-injury duties on 21 July 2000, with no use of her left hand to occur on 19 July 2000 (T12, Bundle 1).
67. Ms Chatfield consulted Dr Tomas and was then referred to Dr Scougall for surgery on a ganglion. While Dr White reported tendonitis in July 2000, Dr Scougall in his operation report dated 18 September 2001 (T4, Bundle 2), does not make any findings of tendonitis. Dr Searle opined that there were overuse symptoms with findings of tendonitis at the back of the left wrist of the extensor muscles in the wrist and near the elbow and that there was also epicondyle tenderness. The Tribunal notes and as is submitted by Mr Elliott, that no other doctor has noted elbow problems. The Tribunal also finds that the evidence does not support a history of repetitive movement and considers that Dr Searle may have made some assumptions about Ms Chatfield’s work not borne out by the weight of evidence.
68. Considering the ganglion in the left wrist, this was first reported on 27 April 2001. Dr Searle asserted that this ganglion is also associated with an overuse syndrome. However, the Tribunal notes that the ganglion emerged at a time, as noted earlier in this decision, when Ms Chatfield was undertaking the lightest work. Accordingly, on the balance of probabilities we are not convinced that the ganglion can be linked to overuse of the left wrist as a result of Ms Chatfield’s work. We understand, in making this finding, that a ganglion is slow in its development, but nevertheless, we are not able to make a link between the ganglion and Ms Chatfield’s work given all the available evidence. There is equivocal evidence as to whether or not the ganglion is a coincidental idiopathic phenomena or whether there is a causal nexus between the ganglion and an overuse syndrome. As Mr Stockley submitted, even if the ganglion were a coincidental pathological phenomenon, the underlying cause to the left wrist problem must still be addressed.
69. The Tribunal prefers Dr Whittaker’s evidence that Ms Chatfield suffers from a generalised osteoarthritis condition in her left wrist. The Tribunal also considers that Dr Whittaker’s speciality of rheumatology is best placed to come to an accurate diagnosis in this regard, as was agreed by Dr Searle. There are clear objective medical findings to support this diagnosis. While Mr Stockley further submitted that there has been consistent and continuous symptomatology of the left wrist, notwithstanding Ms Chatfield’s difficulty with the chronology and discussion of her various conditions, the Tribunal finds that this is not borne out by the weight of medical evidence. The Tribunal notes Dr Glenn’s opinion on 14 June 2001, concerning the contribution of an overuse syndrome and that this was during the period liability had been accepted. Dr Glenn also noted significant embellishment and psychological overlay and noted no abnormality on physical examination apart from tenderness of the ganglion.
70. The Tribunal finds that Ms Chatfield does not continue to suffer from an overuse syndrome of the wrist as a result of her work with Australia Post. Whatever work contribution to Ms Chatfield’s left wrist condition that was present in the past is no longer present . We further find that on the balance of probability, Ms Chatfield suffers from osteoarthritis of the left wrist, which accounts for her symptomatology. Thus, the decision under review is affirmed, that is, that liability for the left wrist condition was correctly ceased from 5 April 2002. Accordingly, the decision is also affirmed that there is no permanent impairment or non-economic loss in relation to the left wrist condition. Even if liability were to have been found to continue, in terms of all the evidence, including the video, the Tribunal would not see any evidence to support on an impairment of at least ten per cent.
left knee condition
71. In relation to Ms Chatfield’s left knee condition, that occurred following an injury on 12 May 1999. In December 2000, an arthroscopy was undertaken by Dr Rizkallah and from January 2001, Ms Chatfield was undertaking light duties which involved carding and sorting of business replies and registered mail, predominantly a seated task; carding parcels, also performed seated; and, other clerical tasks as identified by the postal delivery manager, those duties being undertaken for approximately two hours per day (T20, p53, Bundle1). There were a number of Workplace Assessments undertaken in relation to the left knee occurring on 19 January 2001 (T20, Bundle 1); 25 January 2001 (T23, Bundle 1); 22 February 2001 (T29, Bundle 1); and 23 February 2001 (T32, Bundle 1).. On 26 February 2001, Ms Chatfield upgraded to normal hours with some standing duties. She was being encouraged to increase her walking and standing (T33, Bundle 1). There was a further review on order 12 April 2001 (T39, Bundle 1). The Tribunal notes that during these various reviews in relation to the left knee, there was no mention in the detailing of Ms Chatfield’s duties, of any restrictions or concerns about her left wrist. It would be expected that as is the nature of such work programs, that if there had been any concern about other conditions such as the left wrist, that this would have also been mentioned as requiring attention. Further reviews were then undertaken in relation to the left knee on 9 May 2001 (T46, Bundle 1) and the final Rehabilitation Report was made on 3 July 2001 (T64, Bundle 1).
72. Liability for Ms Chatfield’s left knee condition was ceased from 7 May 2001. In the documentary evidence, the left knee condition was not reported on again after the initial injury on 12 May 1999 until approximately June 1999, when she consulted Dr Logan. Ms Chatfield’s evidence was that during the time since the injury, she had pain free periods in respect of her left knee. This is supported by what appears to be Dr Logan’s entry dated 22 June 1999, in the Wingewarra Street Medical Surgery clinical notes when he referred to Ms Chatfield suffering from “periodic pain over patella” (Exhibit A1). Ms Chatfield was not given time off work. Then, by 3 February 2000, the clinical notes from the Wingewarra Street Medical Surgery (Exhibit A1) indicate some ongoing pain in the left knee which continued and is reported on again on 21 February 2000 and 23 February 2000. Ms Chatfield was referred to Dr Rizkallah who examined her on 15 August 2000. Dr Rizkallah undertook an arthroscopy of the left knee on 22 December 2000 and found that the patello-femoral articulation was not aggravated by the fall and her knee condition reflected ongoing degeneration. Dr Rizkallah continued to review Ms Chatfield noting that on her visit of 22 January 2001, her movement was reduced since the examination of 5 January 2001 and that Ms Chatfield had moderate to severe arthritic changes and that she must concentrate her efforts on mobility as lack of movement was at issue (T21, Bundle 1). On Dr Rizkallah’s final examination of Ms Chatfield on 21 February 2001, he noted that she was still having considerable pain and stiffness in her left knee and that there was “obvious voluntary contraction of the quadriceps during attempted flexion” (T31, Bundle 1). Dr Rizkallah recorded that he could not explain her continuing pain and stiffness with quadriceps contraction and that there was no significant intra-articular pathology to explain her pain and stiffness. Dr Rizkallah concluded that he could not further help Ms Chatfield and opined that she should seek another opinion and that indeed, she should be able to resume her pre-injury duties by 21 March 2001.
73. The Tribunal agrees with Mr Elliott’s submission that there is nothing in the opinions of Dr Rizkallah, Dr Bray or Dr Whittaker to suggest that the pathology opined by Dr Searle in relation to the left patello-femoral compartment was present. Dr Searle considered that there are continuing symptoms in the patello-femoral area. The difficulty in accepting Dr Searle’s opinion is that there is no support for it by other medical opinion and as Dr Searle himself agreed, there are no objective findings to support it. Dr Rizkallah had reported on two occasions that the patello-femoral compartment was not irritable. Furthermore, Dr Casey noted that the diagnosis of Ms Chatfield’s left knee condition is degenerative arthritis of the lateral compartment. He had specifically considered the photographs taken at the arthroscopic surgery looking at the lateral compartment and the patello-femoral compartment and opined that the photographs appeared to be good without any tear of the cartilage of the back of the patella or the trochlear groove. Dr Casey noted that it was difficult for him to examine the knee because of Ms Chatfield’s complaint of pain and her restriction to normal examination manoeuvres. Dr Ganora has opined that the fall on the knee aggravated the already existing degenerative arthritic condition.
74. The Tribunal finds that there is concern about the extent of Ms Chatfield’s left knee symptomatology repeated in many of the medical reports about Ms Chatfield. It is accepted by the Tribunal that Ms Chatfield currently suffers from left knee pain, however it is the extent of the symptomatology and the causation that is at issue. Thus, in recent times, concerns about voluntary guarding and restriction, exaggeration of symptoms and inability to provide objective reasons for symptoms are found in the reports of Dr Rizkallah, Dr Whittaker, Dr Glenn, Dr Bray, Dr Ganora and Dr Casey. When one considers Ms Chatfield’s presentation on the video and the opinion of many doctors including her treating surgeon, Dr Rizkallah, casting doubt upon her presentation of symptoms, the Tribunal must be careful about its conclusion when Ms Chatfield says that there is pain in a particular area. The Tribunal simply does not consider that there is a patello-femoral injury as opined by Dr Searle, as it is not borne out by the weight of the material. There is however evidence of degeneration in terms of osteoarthritis in the lateral compartment of her left knee.
75. As the Tribunal has found, Ms Chatfield does experience pain in her left knee but it is the explanation for the pain that is at issue and its site. The Tribunal prefers the opinions expressed by Dr Rizkallah, Dr Casey and though limited, Dr Whittaker’s general opinion in terms of his examination of the material available concerning the left knee. This is particularly so in terms of the issue of exaggeration of symptoms as expressed by Dr Ganora, Dr Bray, Dr Whittaker, Dr Casey and Dr Glenn. Again support for this view comes also from the fact that Ms Chatfield reports periods of being pain-free in the left knee and that there is not continuous reporting of symptoms. Dr Bray notes that Ms Chatfield has underlying lateral compartment degenerative changes supported by the clinical findings of quadriceps wasting, loss of extension of the knee and moderate to severe osteoarthritic condition. In relation to Dr Ganora’s opinion that the fall aggravated the osteoarthritic condition, the Tribunal is of the view that there may have been a temporary aggravation of the condition which then abated. The symptoms that Ms Chatfield now experiences are as a result of the progression of the degenerative arthritic condition. This is particularly so given the extremely light duties which Ms Chatfield carries out in conjunction with the Tribunal’s concern about her guarded presentation with various doctors and the concern of exaggeration of symptoms, particularly when contrasted with the video presentation.
76. The Tribunal also notes that in relation to Ms Chatfield’s activity of singing, she is able in that context to extend herself beyond what would have been expected given her work restrictions. Thus, the Tribunal finds that the effects of the 12 May 1999 injury have ceased and the symptoms of pain she experiences now are related to her degenerative arthritic condition. In such circumstances, the Tribunal affirms the decision to cease liability for compensation for the left knee from 7 May 2001. As liability has ceased, there is no entitlement for permanent impairment or non-economic loss.
77. In all of the circumstances and for the reasons expressed above, the Tribunal has decided pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decisions in relation to matter numbers: N2001/1339; N2002/804; N2002/1848; and N2001/1485.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr MEC Thorpe, Member.
Signed: .......................................................................................
AssociateDates of Hearing 21 and 22 July 2003
Date of Decision 16 January 2004
Counsel for the Applicant Mr P Stockley
Solicitor for the Applicant Ms S McTegg, Paul A Curtis & Co, Solicitors
Counsel for the Respondent Mr G ElliottSolicitor for the Respondent Ms H Dejean, Australian Government Solicitors' Office
SCHEDULE 1
EXHIBITS
Number DESCRIPTION DATE A1 Clinical Notes from the Wingewarra Street Medical Surgery Various A2 Supplementary Report from Dr AW Searle, Orthopaedic Surgeon 25 June 2001 R1 Impairment Assessment from Dr B Casey, Orthopaedic Surgeon 20 November 2001 R2 Extract from Dubbo local paper in relation to the Applicant 9 July 2003 R3 Video Tape of Ms Chatfield and Report of Brimar Investigations Pty Ltd February 2002 R4 Employee Leave History Various R5 Patient’s Notes by Dr B Casey 16 November 2001
SCHEDULE 2
legislation
(1) Section 4 of the Act deals with interpretation and of specific relevance to this matter is the definition of "injury" under subsection 4(1) of the Act, which states:
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
...
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.
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
…"
(2) Section 14 of the Act deals with compensation for injuries and as relevant states:
“14 Compensation for injuries
(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.”
(3) Section 16 of the Act deals with compensation in respect of medical expenses.
(4) Section 19 of the Act deals with injury resulting in incapacity.
(5) Section 24 of the Act deals with compensation for permanent impairment and requires amongst other things an impairment of at least 10 per cent under the provisions of the "Guide to the Assessment of the Degree of Permanent Impairment" ("the Guide").
(6) Section 25 of the Act deals with the interim payments of compensation and section 27 of the Act provides for compensation for non-economic loss.
0
3
0