Davis and Comcare
[2007] AATA 1216
•11 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1216
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200500017
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN ANTHONY DAVIS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr E T Eriksen (Member) Date11 April 2007
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
DR E T ERIKSEN
(Member)
CATCHWORDS
COMPENSATION – Commonwealth employee – knee injury – medical ligamentous strain right knee – osteoarthritis right knee, causation, possible causation, probable causation – arthroscopy – normal meniscus of knee – osteoarthritis, fibrillation of cartilage of the medial femoral condyle, x-rays right knee non-contributory – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14
REASONS FOR DECISION
11 April 2007 Dr E T Eriksen (Member) 1. This is an application by Mr John Davis (the applicant) for review of a decision dated 5 October 2004 (T30) that the respondent (Comcare) was not liable to pay compensation with respect to the diagnosed condition of osteoarthritis of the right knee or medical expenses for consultation with his general practitioner on 5 December 2003. This decision was affirmed by a review officer on 21 December 2004 (T34).
2. The Tribunal received into evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) (Exhibit R1) and supplementary T documents (Exhibit R2). In addition, the applicant’s statement was received as Exhibit A1.
3. The applicant represented himself and Comcare was represented by Mr Bell of counsel. In addition, the Tribunal heard oral evidence from the applicant who was assisted in giving his evidence by the Tribunal.
4. The applicant had originally tried to have oral evidence given by his treating Orthopaedic Surgeon, Dr Buki Oloruntoba. At a directions hearing the Tribunal agreed to try, on behalf of the applicant, to arrange telephone evidence by Dr Oloruntoba, but on multiple occasions was unsuccessful in doing so. Despite the most strenuous endeavours of the Tribunal it was not possible for Dr Oloruntoba to give telephone evidence at the requested time and his notes were accepted into evidence (Exhibit R2).
5. Comcare called Orthopaedic Surgeon, Mr Jonathan Middleton to give evidence.
history of application
6. On 27 May 1996 the applicant sustained a right knee medial ligamentous strain with incapacity for work from 27 to 30 May 1996, which was accepted as a compensable condition by Comcare.
7. On 5 December 2003 Dr Don McQuistan issued a medical certificate for workers’ compensation (T21) with a period of incapacity from 5 December 2003 to 5 February 2004 for a stated anterior cruciate ligament injury of the right knee with the date of occurrence of the injury being 27 May 1996.
8. On 5 October 2004 Comcare issued a primary determination denying liability for osteoarthritis of the right knee and medical expenses associated with a visit to Dr McQuistan on 5 December 2003.
9. On 29 October 2004 the applicant requested a reconsideration of the primary determination dated 5 October 2004 and on 21 December 2004 Comcare affirmed the decision of 5 October 2004.
10. On 24 January 2005 the applicant applied to this Tribunal for review of the decision of 21 December 2004.
11. Comcare agreed that if the applicant’s appeal was successful he would be entitled to medical expenses associated with doctor’s visits and subsequent arthroscopic surgery and weekly payments from 5 December 2003 to 5 February 2004.
background
12. The applicant is 56 years of age. He is currently in receipt of a Centrelink Disability Support Pension for a back condition. This is stated on the medical certificate issued by Dr McQuistan dated 5 December 2003.
13. The applicant was born in Holland, but came to Australia at the age of 5. He attended secondary school until the age of 14, completing second year of secondary school.
14. After leaving school the applicant worked as a baker and pastry cook for 7 years up until the age of 22. In October 1973, at the age of 22, he joined the then Commonwealth Railways, which were subsequently renamed Australian National Railways (ANR), where he was employed until his retrenchment on 12 September 1997.
15. Initially, the applicant worked as a metal trades helper, and then a foundry worker. At the time of his right knee injury he was employed in the motor shop as a driver. He drove motor vehicles, utilities, trucks, forklifts, mobile cranes and inspected cars.
16. At the time of his retrenchment he was on modified duties for a low back injury he had sustained on 2 January 1990. He was on compensation entitlements until 8 December 2000, when it was deemed that his compensable condition had resolved and his ongoing condition was that of an arthritic degeneration of his back. He has not worked since retrenchment.
applicant’s evidence
17. The applicant’s undated statement, received by the Tribunal on 10 October 2005, was admitted as Exhibit A1.
18. The applicant gave the following oral evidence:
·Prior to the date of injury of his right knee there had been no previous injury of his right knee. He had played tennis at school, but not football or any other robust sports.
·On 27 May 1996, he was climbing down from a rail truck. His right foot either slipped or twisted or gave way coming down the steps of the truck and he felt a severe sharp pain in his right knee.
·There were about six steps on the truck and he was not sure how far he was down the steps. There may have been another step to descend when he slipped and fell. He was not carrying anything at the time.
·He reported the injury to his supervisor, but worked the rest of the day, sitting down or hobbling around because of pain, swelling and stiffness of his right knee.
·The next day his right knee pain was worse in severity. He reported to the Casualty Sister at the main workshop, who referred him to the Port Augusta Medical Centre where he saw his General Practitioner, Dr Yeung. When he saw Dr Yeung he had pain over the inner aspect of his right knee, the big toe side, and could not bend his right knee past 60 degrees.
·The applicant referred to the notes of the Port Augusta Medical Centre (Exhibit R2/4-10). He agreed that these notes stated that on 27 May 1996 he got off a truck and sprained his right knee. He was very tender over the medial condyle (a bony prominence of the inner aspect of the right knee just above the joint line) and flexion was to 60 degrees. The diagnosed injury was to the medial collateral ligament of the right knee. He found it hard to bend his knee when he sat down or got into his car.
19. There was a further assessment by Dr Yeung on 30 May 1996. At that time the applicant was able to bend his knee further, but was still limping. He felt he was able to get into his truck, and Dr Yeung certified him fit for normal working activities from 31 May 1996.
20. The applicant stated that he saw Dr Yeung on 8 June 1996 with pain and swelling and locking of the right knee. A pneumarthrogram (an injection of air into his knee) was performed to exclude a more serious injury. This was normal with no evidence of ligamentous or meniscus injury. A plain x-ray of his right knee was also reported to be normal.
21. Dr Yeung referred the applicant to Dr Felix Lim, Orthopaedic Surgeon, whom he saw on 26 June 1996. Dr Lim confirmed the clinical diagnosis of a strain of the medial ligament of his right knee and recommended that he see a physiotherapist. Dr Lim also recommended he see the applicant again in two months if his knee did not improve, but the applicant was unaware of this fact.
22. The applicant subsequently had cortisone injections to his right knee, and although these helped they were painful experiences and he understood from his work mates that they could have adverse effects.
23. He did not want to have surgery to his right knee and stated that his right knee never felt normal. He experienced locking and clicking of his right knee when he walked any distance or put pressure on it. He strapped his right knee for support and used a tubigrip bandage when walking any distance or putting pressure on it.
24. The last visit to his General Practitioner concerning his initial right knee injury was on 12 October 1996 and after that he “just put up with it”. He defined no further accidents to his right knee and has no problems with his left knee.
25. The applicant’s next significant episode of pain in his right knee occurred in mid 2003. He was kneeling to get something out of the fridge crisper and on straightening his right leg he experienced pain and locking of his right knee which continued for several hours.
26. On 27 October 2003, on referral from Dr McQuistan, the applicant saw Dr Oloruntoba who undertook an arthroscopy of his right knee on 1 December 2003.
27. Further x-rays of his right knee showed no significant abnormality and at the time of operation fissuring and fibrillation of the cartilage of his right knee was seen, but no meniscus abnormality. Since the arthroscopy of his right knee there has been persistent pain which, although improved by firm bandaging, limits his ability to stand and walk for prolonged periods of time.
28. The applicant has significant back problems for which he takes pain killers and he is on a part Disability Support Pension, as his partner works.
cross-examination from mr bell
29. The applicant continued to work for 1 year, 4 months after his right knee injury, but did not seek any further treatment because he did not want any further injections.
30. He gave no history of limitations of his working activities after his right knee injury and up until his retrenchment.
31. He described the “fridge incident” as similar to his initial work injury to his knee with severe painful locking of his right knee. He agreed that he gave a history to Dr Oloruntoba of an initial injury to his knee at work, which was treated non-operatively and resolved. He experienced recurrent symptoms approximately two months before seeing Dr Oloruntoba which he would put at about mid 2003.
32. Dr Oloruntoba told him that he may need a reconstruction within 18 months to two years.
evidence of dr j middleton
33. Dr Middleton was of the opinion that the injury in 1996 was minor, and not a major joint problem. It was not likely to be connected to an osteoarthritis of the right knee.
34. He considered that the applicant’s osteoarthritis of the knee was more likely to be idiopathic (idio–own pathos disease) and not caused by external factors, and could be related to advancing age. There is no objective evidence to evaluate how long osteoarthritis had been present prior to 2003, and it is possible that early changes of osteoarthritis may have been present in 1996 but not detected.
35. Medical evidence would exclude a medial meniscus injury either in 1996 or 2003.
36. Dr Middleton stated that, in his opinion, the fact that the applicant worked with ANR for 25 years is not directly related to the development of osteoarthritis of his right knee.
37. Dr Middleton’s explanation for repetitive locking/catching of the knee is most likely the synovium (membrane lining the knee joint surface) getting caught between opposing surfaces of the knee joint.
38. In cross-examination, Dr Middleton stated that there was no specific reason for arthritis occurring in the right knee as compared to the left. He could not rate the contribution of the 1996 incident as more than a possible cause and to a larger extent believed it was coincidental that the 1996 event was in the same joint.
39. Dr Middleton reaffirmed his opinion that Mr Davis’ occupation was not a causative factor. Arthritis is a disease and aging process and occurs more often in people not using their joints, such as paraplegics.
40. Based on varying sets of facts and accepting the situation that there was resolution of his right knee symptoms for five years, the 1996 incident either had no or extremely little lasting effect.
41. It was Dr Middleton’s opinion that, accepting that there were some ongoing symptoms from 1996, the 1996 incident contributed to some degree. The correct history of being asymptomatic or symptomatic in Dr Middleton’s opinion would vary the likelihood of contribution, but in either scenario the basic degenerative process is the more important factor.
42. Dr Middleton agreed with the statement in his report dated 6 June 2005 (Exhibit R4) that the degenerative process is more likely the problem with the applicant’s right knee, but it is possible there may be a small contribution from the work injury in 1996, particularly if there have been ongoing symptoms.
43. He agreed with the theoretical possibility put to him by the Tribunal of the applicant having had a forgotten childhood trauma temporarily aggravated by the 1996 injury.
medical report of dr b oloruntoba
44. Dr Oloruntoba was unable to give evidence by telephone and his report dated 3 August 2004 (Exhibit R1/T27) was accepted into evidence.
45. Dr Oloruntoba initially saw the applicant on 27 October 2003 when he recorded a history of right inner knee pain for the previous two months. The applicant reported no clicking, but locking, with loss of full extension of the right knee. He said he had dull continuous pain aggravated by activity, which had started two months previously when he attempted to get something out of the fridge. The problem had started in 1996 when he twisted his right knee. He had been treated conservatively for a medial ligamentous strain.
46. Dr Oloruntoba further reported that x-ray examination was non-contributory.
47. An arthroscopy performed on 1 December 2003 showed degenerative changes of the right knee, and the menisci were normal.
48. Dr Oloruntoba saw the applicant again on 25 May 2004 in relation to his left ankle. The applicant did not complain of or mention any symptoms relating to his right knee, and told Dr Oloruntoba that he was walking 1-2 km three to four times per week.
49. In his medical report dated 3 August 2004 (T27/43), Dr Oloruntoba was of the opinion that the applicant’s condition may be related to the incident in 1996 as there was no other history of trauma volunteered to him. However, it was impossible for him to know if there was any underlying degeneration that was part of the natural ageing process. Again, his impression was based on the history that the incident in 1996 contributed in some degree to the applicant’s present condition.
dr f lim
50. Dr Lim saw the applicant on 26 June 1996. In his report of 27 June 1996 (ST2/10) he stated that a clinical examination showed tender medial side of right knee joint, which was aggravated by stressing the right knee joint.
51. Dr Lim diagnosed a possible meniscus tear, but said that the applicant’s pneumarthrogram and x-ray were normal. Due to the possibility of meniscus injury, Dr Lim advised the applicant to see him again in two months if his condition did not improve.
dr d mcquistan
52. On 5 December 2003 Dr McQuistan issued a medical certificate for workers’ compensation (T21) with a period of incapacity from 5 December 2003 to 5 February 2004 for a stated anterior cruciate ligament injury of the right knee, with the date of occurrence being 27 May 1996. (It appears Dr McQuistan had understood at the time of arthroscopy that a ruptured anterior cruciate ligament was present, but this was not correct).
53. In order to investigate all possible relevant contemporaneous records, the Tribunal requested the applicant to provide a copy of his application to Centrelink for Disability Support Pension together with any supporting medical information or reports. On 19 January 2007 a response was received from the applicant with an attached treating doctor’s report dated 29 January 2001 signed by Dr McQuistan. In the list of conditions, no reference was made to the applicant’s right knee injury. However, in his covering letter, the applicant stated that Dr McQuistan had only become his treating doctor about two weeks before the application was made, and was not aware of his right knee injury, and that Dr McQuistan “was referred to me by Doctor Norm Broadhurst, senior visiting medical specialist, QEH to treat my back injury” (Exhibit A2). A telephone directions hearing on 22 March 2007 was undertaken to ascertain whether either party wished to make any further submissions regarding this material. The parties advised that they did not wish to do so.
legislation
54. The applicant’s entitlement to compensation arises under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Section 14(1) of the SRC Act provides:
“14(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.
…”
55. Section 4 of the SRC Act defines the term “injury” as follows:
“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.”
The word “disease” which is included in paragraph (a) of the definition of injury is defined as follows:
“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”.
56. Comcare accepted liability for the physical injury suffered by the applicant. If that physical injury, or any disease contributed to in a material degree by his employment with ANR, has resulted in impairment, the applicant is entitled to have the degree of impairment (if any) and the degree or non-economic loss (if any) resulting from the 1996 injury to his right knee assessed according to the Guide to the Assessment of the Degree of Permanent Impairment (ss 24 and 28 of the SRC Act).
findings of fact
57. There is no historical material or evidence before the Tribunal that there was any injury or symptoms of the right knee prior to 27 May 1996 when the applicant suffered a work related injury. Dr Yeung, Dr Lim and the applicant’s treating physiotherapist all agree that it is most likely that there was a strain of the medial collateral ligament of his right knee.
58. The applicant was incapacitated from work from 27 May 1996 to 30 May 1996 and returned to work at his request. It is accepted that he could have been incapacitated for three weeks if he did not have the attitude and motivation to request a return to work after three days.
59. His acute condition settled over three months and he had improvement with two injections of local anaesthetic and hydrocortisone.
60. It is accepted that this was a painful injection, which he did not want to have repeated unless it was necessary, and that he did not want to undertake operative treatment unless required. There was no clinical evidence of an injury to the meniscus or a tear of the ligaments of the knee giving rise to abnormal movement.
61. The applicant had symptoms of his right knee, but no treatment until a further episode of knee pain occurred in mid 2003.
62. There is now medical evidence on arthroscopy of the applicant’s right knee of an established osteoarthritis of his right medial joint compartment.
63. There has only been, on current evidence, one traumatic knee event.
consideration
64. There is no doubt of a very genuine presentation on the facts and evidence given by the applicant.
65. On the balance of evidence before the Tribunal, it is accepted that the applicant recovered from the acute injury of his right knee which was a strain of the medial joint. It is accepted that he may have had minor symptoms, but it is also noted that at the initial consultation with Dr Oloruntoba he stated that his symptoms had recurred two months previously and were identical to an injury to his right knee in 1996.
66. There is agreement between both Dr Middleton and Dr Oloruntoba that acceptance of varying degrees of symptoms post-accident and injury between 1996 and 2003, there is a possibility of contribution and a possibility of causation, but not a probable degree of causation. I am not reasonably satisfied, on the balance of probabilities, that the applicant’s current degree of osteoarthritis is related to his compensable injury of his right knee on 27 May 1996, and further, that it is related to his employment with ANR.
67. If the applicant makes a future claim for subsequent medical expenses or incapacity payments and if further medical evidence becomes available, the issues canvassed in this decision could be reconsidered.
68. For the above reasons, I find that the applicant is not entitled to reimbursement of the cost of medical treatment on 5 December 2003 or loss of earnings from 5 December 2003 to 5 February 2004.
decision
69. The decision under review is affirmed.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E T Eriksen (Member)
Signed: .......J Coulthard........................................................................
AssociateDate of Hearing 3 October 2006
Date of Decision 11 April 2007
Advocate for the Applicant In person
Counsel for the Respondent Mr M Bell
Solicitor for the Respondent Thomson Playford
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