David and Comcare (Compensation)
[2019] AATA 5490
•19 December 2019
David and Comcare (Compensation) [2019] AATA 5490 (19 December 2019)
Division:GENERAL DIVISION
File Number(s): 2016/6495
2017/0423
Re:Albert David
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member M J McGrowdie
Date:19 December 2019
Place:Sydney
The decision of the Tribunal is that:
(1)The determinations of Comcare dated 19 October 2016 and 6 January 2017 are set aside in matter numbers 2016/6495 and 2017/0423 respectively and in substitution Comcare is liable pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of right-sided fractures of the mid-tarsal bones on 3 January 2003 and the aggravation of a disease known as Charcot’s foot taken to have occurred on 3 January 2003;
(2)The matter is remitted to Comcare to determine any compensation payable in respect of a claim or claims pursuant to the Act; and
(3)The Respondent is to pay the Applicant’s costs of the proceedings in matter number 2016/6495 and matter number 2017/0423.
...................[sgd].....................................................
Senior Member M J McGrowdie
CATCHWORDS
Workers Compensation — Whether fracture in right foot in January 2003 – delayed diagnosis of fracture – whether aggravation of Charcot’s Foot with history of diabetes – liability to pay compensation – decision set aside and substituted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14
CASES
Brackenreg v Comcare [2010] FCA 724
Prain v Comcare [2017] FCAFC 143
Telstra Corporation Ltd v Hannaford (2006)151 FCR 253REASONS FOR DECISION
Senior Member M J McGrowdie
19 December 2019
INTRODUCTION
The Applicant, Albert David, born in 1966, brings these proceedings against Comcare for compensation benefits under the Act.
From 1985, the Applicant worked for the then Australian Customs and Border Protection Service and in 1993 began working out of Sydney Airport.
It is the Applicant’s case that on 3 January 2003 he suffered an injury to the right foot, namely, a stress fracture of the mid-tarsal bones, while climbing stairs to the control room.
The compensation sought in Matter No. 2016/4389 was for a “gym program”. In a reviewable decision made by Comcare on 16 June 2016 Comcare denied liability. However, at the hearing, the Applicant withdrew that claim.
A claim for permanent impairment is the subject of Matter No. 2016/6495. In a reviewable decision made on 19 October 2016, Comcare denied liability to pay compensation.
The Application in Matter No. 2017/0423 relates to a claim for medical expenses, incapacity payments, household services and attendant care services. A reviewable decision made on 6 January 2017 denied liability to pay compensation. The basis for the determination was said to be that the Applicant’s current condition, diagnosed to be Charcot’s foot secondary to diabetes, was that Comcare was no longer liable.
The background to this is that initially, Comcare had accepted liability for ankle strain on 3 January 2003 and had later amended that to “fracture of one or more metatarsal bones” of the right foot.
As the hearing developed, and given the Applicant’s pre-existing diabetes, Comcare raised the question of whether the condition of the Applicant’s right foot related to any incident on the stairs.
ISSUE
The central issue is whether the incident climbing stairs on 3 January 2003 resulted in a fracture of the Applicant’s right mid-tarsal bone which has contributed to a material degree to the progression of what has been described as a Charcot’s foot.
BACKGROUND AND DISCUSSION
Charcot’s foot is a description of a marked disorganisation of the bony structure of the foot particularly the joints and is a form of diabetic neuropathy.
The Applicant was diagnosed with diabetes in 1997 and had suffered with ulcers of the right foot prior to the incident on the stairs. He also had a history of being obese.
The issue of whether the Applicant suffered a fracture of the right foot on the stairs on 3 January 2003 first arises from because the initial report of injury by the Applicant following the incident was pain in the calf or lower leg. He was treated for a sprained ankle. It was only on 29 August 2003 when the Applicant had an X-ray that there had been a fracture in the right foot with some other bony disintegration.
Dr Keller, from the Airport Medical Centre, who had requested the X-ray, saw the Applicant on 1 September 2003. On that occasion, Dr Keller noted that the Applicant tripped on the stairs and diagnosed “Charcot joint post-traumatic fracture”. This is the first mention of “a trip”. Dr Keller referred the Applicant to Dr Rizkallah, orthopaedic surgeon who saw the Applicant on 2 September 2003.
In a report dated 10 September 2003 there is a history that on 3 January 2003 the Applicant tripped while climbing stairs. In the report Dr Rizkallah states that:-
“I had a chance to review his recent X-ray performed on the 29th August 2003 and this demonstrated soft tissue swelling around the ankle joint with no recent fracture. However, his right foot demonstrated a large fracture involving the head of the Talus with multiple fractures and disorganization of the mid-foot joints. His foot joints are out of alignment and there is evidence on the X-ray to indicate that these problems are long-standing although the fracture involving the Talus may be relatively recent.”
The Applicant was also referred by Dr Keller to Dr Grace Warren, a specialist in the area. Dr Warren saw the Applicant on 22 September 2003 and reported on 25 September 2003. In her report, Dr Warren says that:-
“The state of the bone on the radiographs would certainly be in keeping with a stress fracture in January this year. It is well accepted that stress fractures show very few initial symptoms, and so could easily be missed. I frequently see fractures (that) have not been specifically treated, in a similar condition to Albert’s, in the 6-12 month post-trauma period.”
Dr Warren continued to treat the Applicant with a series of contact casts.
The only history recorded by Dr Warren of an event was that the Applicant was walking upstairs in January 2003 and was treated at the time for muscle trauma and swelling of the ankle area which persisted until the X-ray in August 2003.
As time passed the Applicant’s version of what happened on 3 January 2003 has varied and has perhaps become more colourful. Dr Pascall, Occupational Physician, who saw the Applicant on behalf of the Respondent, has a history in his report dated 20 March 2007 that the Applicant’s right foot slipped on the stairs and fell back down a number of steps and struck his shins in the process. Consistent though with what the Applicant had on earlier occasions indicated, the Applicant thought he had sprained his right ankle and felt pain in the calf.
At odds with any other history is the history recorded by Exercise Physiologist Ms Miadineo that the Applicant fell on a set of stairs while chasing an individual in the International Airport. I do not think that it is likely that this is an accurate recording of any assertion of fact made by the Applicant and does not accord with any other histories given even allowing for variation.
The history recorded by Dr Panjratan in his report of 11 February 2015 was that the Applicant had stated that he struck his right foot against some stairs and experienced pain in the foot, ankle and leg.
Dr Tong, Rheumatologist, in his report of 23 August 2016, records a history of the Applicant slipping on stairs and falling back 3-4 steps. He states that the Applicant developed pain in the right calf but not in the foot initially.
I will come later to the report of Dr Patrick obtained by the Applicant and the report of Professor Youssef obtained by the Respondent. Both doctors gave oral evidence.
The Respondent has, in the light of the varying histories, sought to question its earlier determination accepting as an injury “fracture of one or more metatarsal bones”. The Applicant submits that this was never raised by the Respondent prior to the hearing and that the Applicant is prejudiced given the time that has elapsed since the injury is said to have occurred.
In support of its argument, the Respondent referred to such cases as Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 as authority for the proposition that the Tribunal may look behind the determination made by Comcare. Also, in Brackenreg v Comcare [2010] FCA 724 it was held by Marsfield J that the Tribunal could decide what condition or conditions resulted from an event notwithstanding an earlier determination by Comcare on that question.
The question relevant to the present case is whether the Applicant suffered a fracture in the incident involving the stairs in January 2003. There are different reasons why the versions of what happened may have differed over time. One possibility is that the Applicant has attempted to reconstruct the events of the day particularly after the discovery of a fracture in the foot shown on X-ray. This is not to say that the Applicant has deliberately falsified what had occurred.
Whilst the Applicant may have tripped or slipped or not, I am satisfied that the Applicant did suffer a stress fracture, a fracture of one or more of the metatarsal bones of the right foot on 3 January 2003. While the precise mechanism involved might not be beyond question, I consider that the Applicant was vulnerable to sustaining a stress fracture in his right foot, given that the structures of the foot were already compromised by an already progressing diabetic foot, and did so.
The Applicant was consistent in his complaints in relation to the lower part of his right leg from the time of the event on the stairs, certainly up to the X-ray at the end of August 2003 which revealed stress fractures. I consider that the Applicant already had diabetic neuropathic arthropathy in the right foot at the time and a loss of feeling in the right foot such that the Applicant did not specifically refer to pain in his right foot.
Both Doctors Rizkallah and Warren, who saw the Applicant in September 2003, referred to the X-ray of August 2003. Dr Warren, in her report of 25 September 2003, refers to stress fractures showing few initial symptoms and easily missed. Dr Rizkallah refers to the likelihood that the Applicant had a long-standing Charcot joint involving the right foot that has been exacerbated by the recent trauma in January 2003 “when he fractured his Talus”.
Dr Patrick, Surgeon, saw the Applicant at the request of his solicitors for a medico-legal opinion. Dr Patrick provided a number of reports and gave oral evidence. In his report of 28 August 2008 he said that the fractures in the foot may not have been fully appreciated by Mr David because of the lack of normal sensation in his foot, as a consequence of his significant pre-existing diabetic peripheral neuropathy. He went on further to say that post fracture, the Applicant continued to walk and weight bear, with accelerated development of Charcot arthropathic foot.
The history recorded by Dr Patrick was that on 3 January 2003 the Applicant was walking up steps when his right foot impacted forcibly with the lip of the step, causing him to slip. Whilst that mechanism of injury may not be supported on the evidence, the relevant matter is the Applicant having suffered a stress fracture on that day which, in my view, underpins the same conclusions which he reached.
Professor Youssef, Rheumatologist was called to give oral evidence by the Respondent. He also produced a report dated 29 November 2017. In that report Professor Youssef expresses the view that “…the injury in January 2003 did not cause the neuropathic arthropathy but … accelerated the process”. Further, he states that “The incident in January 2003 precipitated a permanent aggravation of the underlying diabetic neuropathic arthropathy. It resulted in a structural change in the foot.”
Attached to the report of Professor Youssef is an article titled “Rapidly Progressive Charcot Arthropathy following Minor Joint Trauma in Patients with Diabetic Neuropathy”. The article refers to a number of cases where minor trauma has led to neurogenic acceleration of degenerative joint disease in patients with diabetic neuropathy.
A further article produced by Professor Youssef is an article entitled “Charcot Arthropathy Risk Elevation in the Obese Diabetic Population”. There is no question that the Applicant was diabetic and obese. In my opinion the Applicant is likely to have had an undiagnosed Charcot foot pre-dating the fractures. In the article it is stated that:-
“Charcot arthropathy often results from some type of traumatic event that patients may or may not recognize … with diminished or absent sensation, the patient continues using the affected limb and the process of bone and joint destruction ensues.”
Professor Youssef, in his report, considered that it is likely that the Applicant would be in the same state whether or not there was an injury in 2003. This was based on a progression of the process or the possibility of another injury occurring. There is no evidence, however, of a subsequent injury occurring and an acceptance by Professor Youssef that a fracture in the right foot in January 2003, accelerated or aggravated the underlying condition of Charcot’s foot.
I consider that what happened in January 2003 both aggravated and accelerated the underlying condition of Charcot’s foot the effects of which have been ongoing and continue to the present time.
Dr Patrick describes the X-ray in August 2003 as showing a large fracture involving the heads of the talus with multiple fractures and disorganization of the mid-foot joints. Dr Patrick considered that there is evidence on the X-ray that the problems were of longstanding, although the fracture to the talus may be relatively recent. This is generally in accordance with what has been reported by Drs Warren and Rizkallah.
As indicated, I accept that on 3 January 2003 the Applicant suffered a stress fracture involving the head of the talus and that other fractures were related to the Charcot foot condition which was aggravated on that date on an ongoing basis.
I am satisfied that the Charcot foot condition is to be regarded as “a disease” process and that such disease was aggravated to a material degree on 3 January 2003. As referred to in the legislation disease may include an aggravation of an ailment that was contributed to by the employee’s employment.
As the legislation stood at the time of in the Applicant’s foot injury, the contribution had to be a contribution to a material degree (see Prain v Comcare [2017] FCAFC 143).
Also, an injury in the case of a disease is to be taken to have happened when the aggravation first resulted in impairment, which in the present case, I would regard the date that the injury is to be taken as happened as 3 January 2003, the date of the incident and the date when the Applicant sought medical attention.
I conclude that liability exists under Section 14 of the Act namely, a right-sided fracture of the mid-tarsal bones on 3 January 2003 and the aggravation of a disease known as Charcot’s foot taken to have occurred on 3 January 2003.
DECISION
The decision of the Tribunal is that:-
(1)The determinations of Comcare dated 19 October 2016 and 6 January 2017 are set aside in matter numbers 2016/6495 and 2017/0423 respectively and in substitution Comcare is liable pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of right-sided fractures of the mid-tarsal bones on 3 January 2003 and the aggravation of a disease known as Charcot’s foot taken to have occurred on 3 January 2003;
(2)The matter is remitted to Comcare to determine any compensation payable in respect of a claim or claims pursuant to the Act; and
(3)The Respondent is to pay the Applicant’s costs of the proceedings in matter number 2016/6495 and matter number 2017/0423.
I certify that the preceding 42 (forty- two) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie
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Associate
Dated: 19 December 2019
Date(s) of hearing: 30, 31 October 2018 and 1, 7 November 2018 Counsel for the Applicant: Mr L Grey Solicitors for the Applicant: Mr H Zreika - Drexler Litigation Lawyers Pty Ltd Counsel for the Respondent: Mr M Snell Solicitors for the Respondent: Mr B Kelly - Lehmann Snell Lawyers
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