Clifford Rusten and Telstra Corporation Limited
[2014] AATA 8
[2014] AATA 8
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5548
Re
Clifford Rusten
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 10 January 2014 Place Sydney The Tribunal sets aside the decision under review, and in place of that decision decides that as the date of reviewable decision:
(a) Mr Rusten was incapacitated for work within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cth); and
(b) Any medical treatment received by Mr Rusten for his knee osteoarthritis was treatment received in relation to his accepted injury.
The Tribunal remits the matter to the respondent to determine, in accordance with the above decision and the Tribunal’s reasons for decision:
(a) Mr Rusten’s entitlement to compensation, if any, under s 16 of the Safety, Rehabilitation and Compensation Act 1988;
(b) the extent, if any, of Mr Rusten’s incapacity for employment;
(c) the compensation if any payable to Mr Rusten under s 19 of the Safety, Rehabilitation and Compensation Act 1988.
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Senior Member A K Britton
CATCHWORDS
WORKERS' COMPENSATION - osteoarthritis - liability accepted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Clement v Comcare [2012] FCA 166
REASONS FOR DECISION
Senior Member A K Britton
10 January 2014
Clifford Rusten is in his mid-50s and suffers from severe osteoarthritis in both knees. Mr Rusten worked as a linesman with Telstra for over twenty years. He has not worked since 2004.
In 2002 Telstra accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of “aggravation of osteoarthritis in knees” (the accepted injury). In February 2003 Mr Rusten was placed on “suitable duties”, and in May 2004 his employment with Telstra was terminated.
Mr Rusten received compensation for incapacity (s 19 of the Act) and medical expenses (s 16 of the Act) until August 2012, when a delegate of Telstra decided that any incapacity suffered by Mr Rusten, or need for medical treatment, was no longer the result of the accepted injury.
Mr Rusten has applied to the Administrative Appeals Tribunal for review of that decision.
The primary question to be decided is whether Mr Rusten’s incapacity for work is “a result of” the accepted injury. Mr Rusten argues that while not the only cause, his osteoarthritis is attributable in part to his employment with Telstra. Telstra on the other hand contends that any aggravation of Mr Rusten’s osteoarthritis caused by work, resolved long ago.
STATUTORY FRAMEWORK
Telstra will be liable to pay compensation to Mr Rusten if he is incapacitated for work as “a result of” the accepted injury (s 19 of the Act). Section 4(9) of the Act defines “an incapacity for work” to mean an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by … a licensed corporation in that work or any other work immediately before the injury happened.
Telstra will be liable to pay compensation in respect of medical treatment obtained in relation to his accepted injury:
16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…
BACKGROUND
As a Telstra linesman Mr Rusten was required to kneel, squat and crouch for extended periods, climb up and down ladders, sometimes carrying loads. This work was often undertaken in cramped and confined spaces: under buildings and in manholes.
In a statement prepared in 2002, Mr Rusten stated that he first noticed “right knee troubles” in 1994 after sitting in a manhole for many hours while working on a cable. He stated that at the end of the shift he noticed that his right knee was “quite sore” and reported this to his supervisor. On his account while the pain resolved within a short period from then on, his knee symptoms would “come and go” with no apparent pattern. He claimed that while at the time he decided to report the incident, he did not lodge a claim for compensation because he did not see a doctor or require time off work.
Mr Rusten went on to state that about 12 months later he started to experience left knee symptoms, which were mild at first but over time became more frequent and intense. He claimed that he did not want to be seen as a “whinger” so continued to work. As he recalled, he eventually decided to seek medical treatment in about mid-2000.
In a statement prepared for these proceedings dated 25 April 2013, Mr Rusten gave a different account of the onset of his symptoms. In that statement he claimed that in the early 1990s he noticed a gradual onset of pain in both knees. He also stated that in 1994 he suffered an injury to both knees when endeavouring to join a cable.
The account given by Mr Rusten in his 2002 statement is broadly consistent with the history taken by orthopaedic surgeon, Dr David Wood — apparently the first specialist Mr Rusten consulted about his knees. In a report dated 20 November 1998, Dr Wood wrote that Mr Rusten presented with left knee pain that had “troubled him on and off for several years”. When he reviewed Mr Rusten four years later, Dr Wood recorded that Mr Rusten “now presents with right knee problems”.
Mr Rusten’s 2002 statement is probably a more reliable account of the history of the onset of the condition than that contained in his most recent statement: it is closer in time to the onset and consistent with the contemporary records.
MEDICAL OPINION ON CAUSATION
As noted the primary issue between the parties is whether Mr Rusten’s current knee problems, primarily pain and restricted movement, and consequent incapacity, are “a result of” the accepted injury. For the purpose of these proceedings, in 2012 Mr Rusten was assessed by orthopaedic surgeons Dr Raymond Wallace and Dr David Maxwell. Each prepared reports and gave oral evidence concurrently. Before proceeding to examine their opinions it is useful to consider the reports prepared by the other medical practitioners who have assessed Mr Rusten over the past decade.
When Dr Wood first saw Mr Rusten in November 1998 he concluded that Mr Rusten had a medial meniscus tear which was giving him long standing patellofemoral instability and secondary osteoarthritis. Dr Wood performed an arthroscopy apparently in 2000. Consultant surgeon, Dr Stuart Porges commented in a report prepared in 2002 that the arthroscopy showed “degenerative change and no evidence of anything that could be done”. The available material does not contain a report of the arthroscopy.
In a report to Mr Rusten’s GP dated 15 November 2002, Dr Wood recorded that Mr Rusten had “bilateral genu varum [bowlegedness]” and “nasty patellofemoral crepitus with apparent bone on bone in both knees”. In a letter to Mr Rusten’s GP dated 15 November 2002, Dr Wood did not express an opinion about the cause of Mr Rusten’s condition but recorded that “Mr Rusten felt that his work as a linesman had aggravated his condition”.
In November 2002 Mr Rusten was referred to Dr Porges for assessment. In a letter to Telstra’s insurer dated 6 November 2002, Dr Porges wrote that Mr Rusten had moderately severe osteoarthritis in both knees. In his opinion there had not been any specific episode “precipitating the onset of his degenerative change”, and Mr Rusten’s symptoms were a natural progression of pre-existing degenerative changes which had been developing over many years. Dr Porges thought Mr Rusten’s employment “would act as an aggravation to the degenerative changes”. He wrote :
The work related contribution has now decreased as he is now on reduced activity, with minimal squatting. The progress of degenerative change will probably continue ...
Dr Porges was of the opinion that the incident on 23 July 1994 had not led to Mr Rusten’s incapacity. He wrote:
The causes of osteoarthritis of the knee are many and varied. I have carried out a Medline search and the recent literature, and recurrent stress on the knee from the type of activity and the congenital nature of the knee both seem to play a part in etiology. This man’s work would have placed a fair amount of stress on his knees, however he was probably going to develop knee arthritis at any rate, albeit of a less severe form regardless of his work. Undoubtedly his work has made his osteoarthritis more symptomatic however.
In a supplementary report dated 26 November 2002, Dr Porges wrote:
This man has continuing aggravation of his pre-existing degenerative changes whilst at work, particularly if he attempts any job that requires squatting. The aggravation continues whilst he is at work.
In 2003 Mr Rusten was assessed by orthopaedic surgeon Dr John Bosanquet. In Dr Bosanquet’s opinion, Mr Rusten’s “moderately severe [knee] osteoarthritis” was attributable to:
1His general body habitus with a genu varu deformity and external tibial torsion.
2His genetic pre disposition, being aggravated by the type of work he has been doing with Telstra.
In 2008 Mr Rusten was assessed at the request of Telstra’s insurer by orthopaedic surgeon, Dr David Bornstein. In a report dated 30 June 2008 in answer to the question “What is the precise relationship, if any, between any present condition and his employment with Telstra ?”, Dr Bornstein wrote:
The condition is a wear and tear condition. I note the problem has been accepted as work-related having regard to his age so I would assume that the relationship with Telstra would be a wear and tear phenomenon.
After recording Mr Rusten’s physical signs and symptoms — obvious crepitus, geni varum in both knees — Dr Bornstein wrote “the cause of symptoms is usually constitutional at this age”.
Mr Rusten was assessed by occupational physician Dr Tim Anderson in 2008. In a report to Telstra’s insurer dated 1 December 2008 Dr Anderson focused on the issue of Mr Rusten’s capacity for employment. He touched on the cause of Mr Rusten’s osteoarthritis and wrote that the condition was “predominantly constitutional and is probably associated with the pes planus [flat feet] and pronation of the ankles”.
In October 2009 Mr Rusten was assessed by orthopaedic surgeon Dr John Bentivoglio. In Dr Bentivoglio’s opinion “most of the degenerative changes present in [Mr Rusten’s] knee … are constitutional in origin as there was no specific incident at work”. Dr Bentivoglio did not explain the basis for that opinion.
Around the same time Mr Rusten was assessed by occupational physician, Dr Michael Gliksman. In his report to Telstra Dr Gliksman did not address the cause of Mr Rusten’s osteoarthritis.
Mr Rusten’s GP, Dr Michael Nicholson, in a report dated 6 December 2002 wrote that Mr Rusten’s knee osteoarthritis was caused by the nature of the work he had been doing for many years. He wrote:
Osteoarthritis is wear and tear directly related to the degree of activity carried out by the joint and/or that of injury.
In a report dated 11 September 2012 prepared at the request of Mr Rusten’s solicitors, apparently in answer to a question about the cause of his patient’s osteoarthritis, Dr Nicholson wrote:
The nature of his previous employment and the accidents in 1974 and 1999 aggravated an underlying tendency to [osteoarthritis].
OPINIONS OF DRS MAXWELL AND WALLACE
The main point of disagreement between Drs Maxwell and Wallace is the aetiology of Mr Rusten’s osteoarthritis, in particular, the role played by work.
Dr Maxwell was of the opinion that Mr Rusten’s osteoarthritis was “essentially constitutional in nature” and probably related to his genu varum deformity. He explained that this deformity altered the line of force between the hip and ankle, placing increased force on the medial aspect of the knees. He also thought that hereditary factors probably played a role, pointing to Mr Rusten’s mother’s knee replacement in her sixties.
Dr Maxwell strongly disagreed with the proposition that the type of work Mr Rusten performed as a linesman contributed to his osteoarthritis. He accepted that some of Mr Rusten’s work activities probably exacerbated his symptoms but in his opinion there was “no evidence that his arthritis had been caused by physical activity”. He stated that physical activity does not accelerate the rate of progression of osteoarthritis, if anything, it tends to reduce its symptoms and slow its progress. He explained that osteoarthritis is a progressive degenerative disease which causes the loss of articular cartilage which acts to cushion the knee joint. He contended that rather than destroying cartilage, exercise encourages its regeneration, pointing to a study of rabbits which he stated revealed that knee joint immobilisation resulted in degenerative joint disease. He went on to assert that there was “no evidence” that activities such as walking or squatting contribute to knee osteoarthritis.
Dr Wallace, on the other hand, was of the opinion that the type of work undertaken by Mr Rusten as a linesman contributed significantly to his osteoarthritis. While he agreed that exercise was generally beneficial he contended that not all types of physical activities are beneficial in the treatment of osteoarthritis. In his opinion many of the activities undertaken by Mr Rusten — repeated bending, squatting and kneeling for prolonged periods and climbing ladders, often carrying loads — involved loading of the knee joints and could hasten the process of osteoarthritis. He also thought it significant that Mr Rusten often performed the movements involved in those activities in confined spaces. In his opinion it was therefore likely that the movements were executed by Mr Rusten from awkward positions using poor posture.
In oral evidence Dr Wallace referred to a large number of studies which he asserted point to a strong correlation between occupational factors and knee osteoarthritis. Dr Maxwell said that he was unfamiliar with many of the studies cited by Dr Wallace, but agreed there was a body of medical literature which suggested a link between occupational factors and knee osteoarthritis. Dr Maxwell asserted that unless based on a controlled clinical trial they were unlikely to be of any value. He argued that if, as Dr Wallace contended, there was a correlation between knee osteoarthritis and repeated knee joint use, it is likely that there would be a higher incidence of the disease within those Asian communities where squatting is an everyday activity.
On questioning, Dr Wallace disagreed with the assertion that he had ignored Mr Rusten’s genu varum deformity, pointing out that in his report of 5 December 2012 he recorded “knee alignment shows 8° of varus bilaterally”. He agreed with Dr Maxwell that the genu varum deformity caused the medial compartment of the knee to carry an abnormal load. In oral evidence he asserted that of itself, the deformity would not have caused Mr Rusten to be suffering severe osteoarthritis at the relatively young age of 40. Dr Wallace thought it probable that osteoarthritis had caused an increase in the degree of Mr Rusten’s knee misalignment, but conceded that in the absence of any information about the state of his knees, when he commenced with Telstra, it was not possible to be certain.
Dr Wallace thought it significant that there was evidence of osteoarthritis in all compartments of Mr Rusten’s knee. In his opinion, if, as Dr Maxwell contended, the genu varum deformity was the sole cause of degenerative change, it would be confined to the medial compartment. Dr Maxwell asserted that this is precisely what the available radiological evidence reveals. Dr Wallace agreed that the evidence showed that the medial compartment was mainly affected, but insisted that it also revealed degenerative change in the lateral and patellofemoral compartments. Drs Wallace and Maxwell agreed that degenerative change can only be seen on weight bearing X-rays, but disagree about which of the X-rays taken of Mr Rusten’s knee (1998, 2002 and 2012) were weight bearing, and which reveal degenerative change outside the medial compartment.
Both doctors agreed that Mr Rusten was relatively young to be suffering from such an advanced form of osteoarthritis.
FINDINGS AND CONCLUSIONS
Mr Rusten will be incapacitated for work as “a result of” the accepted injury if it is a material cause of the relevant incapacity (Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29). In Clement v Comcare [2012] FCA 166 (at [8]), Jagot J approved the following statement of the law:
[The phrase “as a result of”] refers to an operative cause that is not confined to the immediate proximate cause of incapacity and imports a test of causal connection that requires a common sense evaluation of the causal chain between the claimed incapacity and the injury. [Footnotes omitted]
Apart from Drs Maxwell and Wallace, few of the doctors who assessed Mr Rusten over the past decade provided a detailed opinion about the aetiology of his osteoarthritis. With the exception of his GP, those who did considered the condition to be largely constitutional. Some, notably Drs Porges and Bosenquet, were of the opinion that work played a role.
Counsel for Mr Rusten, Mr Grey, contended that it is apparent from his use of the phrase “wear and tear condition” that Dr Bornstein was of the opinion that work contributed to Mr Rusten’s osteoarthritis. Counsel for Telstra, Mr Clark, argued that it is apparent from Dr Bentivoliglio’s report that he ruled out the possibility that work contributed to Mr Rusten’s osteoarthritis.
Neither Dr Bornstein nor Dr Bentivoliglio addressed the issue of causation in any detail in their respective reports. The few comments each made on the issue are arguably open to a number of interpretations. Having carefully reviewed their reports, I have decided it would be unsafe to attribute to Drs Bentivoliglio and Bornstein the opinions the parties contend they hold.
Mr Clark argues that the opinion of Dr Maxwell should be preferred because, in contrast to Dr Wallace, he took into account all relevant material including the opinions of colleagues who had assessed Mr Rusten over the past decade. Mr Clark also contends that Dr Wallace’s opinion is weakened by his reliance on Mr Rusten’s self-report, which he asserts is unreliable.
As Mr Clark correctly points out, in oral evidence Dr Wallace stated that he had not read the reports prepared by the other experts. However, his supplementary report suggests otherwise. In that report after stating that he had reviewed Dr Maxwell’s report of 23 April 2013, Dr Wallace went on to challenge his opinion that repetitive bending, squatting, crouching and kneeling played no role in Mr Rusten’s osteoarthritis. I accept, however, as argued for Telstra, that Dr Wallace probably did not have regard to the opinions of any of his colleagues, other than Dr Maxwell.
Mr Clark argues that it is relevant that in his most recent statement Mr Rusten failed to mention his lower back problems. The clinical notes of Mr Rusten’s GP and physiotherapist reveal that since leaving Telstra Mr Rusten has received physiotherapy treatment for his knees, but since 2006 the focus of treatment has been his lower back. Counsel contends that this raises doubts about the reliability of Mr Rusten’s self-report, in particular the description of symptoms given in his statement of 28 April 2013: “a long continuous progression in terms of pain and immobility”. Counsel submits that this in turn raises doubts about the reliability of Dr Wallace’s opinion.
While Drs Wallace and Maxwell disagree about its cause, they agree that given the advanced stage of Mr Rusten’s osteoarthritis, he is now unfit to undertake his pre-injury duties, an opinion shared by all doctors who have assessed him since he was placed on suitable duties in 2003. If, as Mr Clark suggests, Mr Rusten has exaggerated the extent to which he is now disabled by knee osteoarthritis, it does not follow that the opinion of Dr Wallace, or indeed any of the experts who relied on Mr Rusten’s report of progressive worsening of symptoms, should be disregarded. The issue here is not the degree of Mr Rusten’s incapacity but its cause.
Given the conflicting opinion about whether the radiological evidence shows degenerative change is confined to the medial compartment, I have decided it would be unsafe to make a finding on this issue.
Dr Maxwell believes that Mr Rusten knee osteoarthritis is “essentially constitutional in nature”. He is emphatic that work played no role in its development or progression. Dr Wallace is equally emphatic that work played a role and was lukewarm in his support for the proposition that Mr Rusten’s genu varum deformity was a contributing factor.
I have difficulties with aspects of the opinions expressed by both Drs Maxwell and Wallace. Both were equally dogmatic. In my opinion Dr Wallace probably downplayed the extent to which Mr Rusten’s deformity contributed to his osteoarthritis. On the other hand, Dr Maxwell was too readily dismissive of the possibility that in Mr Rusten’s case, work might have played a role in the development of his osteoarthritis.
In his reports Dr Wallace made no mention of the studies he referred to in oral evidence, which he asserted support his opinion that work contributed to Mr Rusten’s knee osteoarthritis. This was unfortunate. Had he done so, Dr Maxwell would have had an opportunity to examine those reports and provide a considered opinion. I admitted those reports for the narrow purpose of acknowledging (as had Dr Porges) that there was a significant body of literature which suggests that there is a higher risk of knee osteoarthritis in some occupations which involve prolonged and repeated knee flexion. Because this evidence took Telstra by surprise and was not tested in any significant way I am unable to make any findings about the reliability and validity of those studies or to place any weight on them.
The weight of medical opinion is that constitutional factors are the main cause of Mr Rusten’s knee osteoarthritis. I am nonetheless satisfied that by late 2012, Mr Rusten’s knee osteoarthritis was at least in part, a result of the accepted injury. In reaching that conclusion I note that Dr Wallace is not alone among the experts in his opinion that the work performed by Mr Rusten contributed to a worsening of his osteoarthritis. The hypothesis he advanced — that repeated and prolonged flexion of the knee often while carrying loads, contributed to his condition — is plausible. It is also significant that, as agreed by Drs Maxwell and Wallace, Mr Rusten is relatively young to be suffering from such an advanced form of knee osteoarthritis even after making an allowance for his genu varum deformity. While it does not follow from this that the severity of Mr Rusten’s condition is necessarily attributable to work, it is nonetheless consistent with Dr Wallace’s opinion. I am satisfied that it is more probable than not that the type and incidence of work undertaken by Mr Rusten while employed at Telstra contributed not only to a worsening of the symptoms of his osteoarthritis during his period of employment, but also to an acceleration in the rate of progression of degenerative change in his knees.
CONCLUSION
It was agreed by the parties that, if found that Mr Rusten’s incapacity for work was a result of the accepted injury, the question of the amount of compensation payable, if any, under s 19 of the Act should be remitted to Telstra for determination. It was also agreed that if that finding was made the cost of any “reasonable medical treatment” in relation to the accepted injury would be payable by Telstra.
I have decided that the preferable decision is to set aside the decision under review and in place of that decision decide that as at the date of reviewable decision:
a. Mr Rusten was incapacitated for work within the meaning of the Act; and
b. Any medical treatment received by Mr Rusten for his knee osteoarthritis was treatment received in relation to his accepted injury.
I remit the matter to Telstra to determine in accordance with the above decision and these reasons for decision:
a. Mr Rusten’s entitlement, if any to compensation under s 16 of the Act
b. The extent, if any, of Mr Rusten’s incapacity for employment
c. The amount, if any, of compensation payable under s 19 of the Act to Mr Rusten.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ........................................................................
Associate
Dated 10 January 2014
Dates of hearing 3 & 4 December 2013 Counsel for the Applicant Mr L Grey Counsel for the Respondent Mr C Clark
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