Douglas Williams and Telstra Corporation Ltd

[2010] AATA 168

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 168

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3011

GENERAL ADMINISTRATIVE DIVISION		)
Re		Douglas Williams

Applicant

And Telstra Corporation Ltd

Respondent

DECISION

Tribunal

Mr G L McDonald, Deputy President

Dr R McRae, Member

Date10 March 2010

PlaceMelbourne

Decision The decision under review is set aside and a decision is substituted that the respondent is liable to pay for the applicant’s proposed left total knee joint replacement arthroplasty.

......(sgd. G L McDonald)......

Deputy President

CATCHWORDS

COMPENSATION – left knee locked during employment – tear in the lateral meniscus – tri‑compartmental advanced arthritis – total knee joint arthroplasty – whether applicant’s work activity contributed to his condition – permanent deterioration – decision under review set aside

Administrative Appeals Tribunal Act 1975 s 37

Safety Rehabilitation and Compensation Act 1988 s 4

Accident Compensation Commission v McIntosh [1991] 2 VR 253

Health Insurance Commission v Van Reesch (1996) 45 ALD 302

Zickar v MGH Plastic Industries Pty Limited (1996) 140 ALR 156

REASONS FOR DECISION

10 March 2010	Mr G L McDonald, Deputy President
Dr R McRae, Member

The Application

1.      The applicant is applying for the review of a 7 April 2008 determination, made under the provisions of the Safety Rehabilitation and Compensation Act 1988 (the Act), and affirmed on review on 10 June 2008, in which it was decided that the respondent was not liable to pay compensation for a left total knee joint replacement arthroplasty.

The Hearing

2. At the hearing the Tribunal had before it the documents filed for purposes of s 37 of the Administrative Appeals Tribunal Act 1975.  As well as the applicant giving oral evidence, Dr Minoo Patel, his treating orthopaedic surgeon, Mr Russell Miller an orthopaedic surgeon who examined and reported on his condition and the applicant’s general medical practitioner Dr Ng gave oral evidence on behalf of the applicant.  Mr Peter Lugg who is also an orthopaedic surgeon examined the applicant on two occasions and provided written reports and gave oral evidence on behalf of the respondent.  The Tribunal accepts all three orthopaedic surgeons who gave evidence as being very experienced and highly qualified in their field.

The Evidence

3.      The applicant was born on 18 November 1954.  He is a communications technician and has worked in that capacity since the age of 21 until March 2007, including working for the respondent since 1986.  On 22 March 2007 the applicant was allocated work in South Melbourne where he was to repair a defective line connection in an underground Telstra installation known as a pit.  In the course of preparing to commence work at the site the applicant’s left knee locked and he was unable to move or unlock it.  He telephoned his team manager who attended the site and arranged for an ambulance to take the applicant to the Epworth Hospital emergency department.  Later that day the applicant was seen by Dr Patel who manipulated the left knee and it unlocked.  An arthroscopy performed later that week confirmed a tear in the lateral meniscus and tri-compartmental advanced arthritis in the knee.[1]

[1] T documents, T8, page 27.

4.      The respondent accepted liability for ‘effusion of the left knee’.  A return to work program was arranged and the applicant was to refrain from squatting, kneeling, walking or standing for long periods, climbing stairs and was not to lift weights over 10 kilograms.  The applicant has continued to work for the respondent on modified duties of an administrative nature.

5.      In his 24 April 2007 report, Dr Patel noted the applicant would require a total knee joint arthroplasty in the medium to long term.  His condition has deteriorated since and it was proposed that the arthroplasty operation would be carried out in November 2009 at the Epworth Private Hospital.  It did not proceed, the applicant claiming he did not have sufficient funds to pay the gap between his level of medical insurance and the advised estimated cost.  The operation was postponed pending the outcome of his compensation claim.  He remains on a public hospital waiting list for the procedure.

6.      In 1993 the applicant reported to his long standing general medical practitioner, Dr Ng, that he had injured his left knee while playing indoor cricket.  Dr Ng referred the applicant to Mr Douglas Gardiner, an orthopaedic surgeon.  A report from Mr Gardiner to Dr Ng dated 16 December 1993 records that a lateral meniscus tear was found as well as “some grade II osteoarthritis of the medial femoral condyle with osteophytes in the notch.”[2]  Mr Gardiner reported that he debrided the notch and the medial femoral condyle and removed the meniscal fragments.  While in his oral evidence to the Tribunal the applicant was unable to recall any specific event occurring in the course of playing indoor cricket which he could relate to that activity, he agreed that he must have told Dr Ng that it was the cricket which led to him seeking the doctor’s assistance.

[2] Attachment to Exhibit A2.

7.      The applicant consulted Dr Ng in March and September 2004 and in March 2006 about pain in the medial region of his left knee.  The applicant agreed that he had seen Dr Ng a number of times when experiencing pain in both his left and right knees.  He could not recall attributing the pain to anything occurring at work.  Dr Ng had no note of the applicant making a connection between work and his left (or right) knee pains until March 2007.  There is no evidence which indicates that the 1993 incident involving his left knee was in any way work related and the Tribunal is satisfied that it was not.  The Tribunal accepts that there is no evidence which indicates that the applicant connected the 1993 left knee circumstances or other subsequent consultations with Dr Ng concerning pain to the left knee with any specific work related occurrence.  Nevertheless it was Dr Ng’s evidence that the physical aspects of the applicant’s work accounted for the more advanced arthritis present in the applicant’s left knee than would be expected in a man of the applicant’s age.  Dr Ng also agreed that the 1993 arthroscopy would have weakened the left knee and that the applicant’s general condition of being overweight may also have been causes of the more advanced arthritis found to be present.

8.      The facts leave the Tribunal satisfied that the applicant recommenced work after recovering from his 1993 left knee arthroscopic surgery and despite intermittent episodes of pain that his left knee condition did not interfere with his work capabilities again until the incident on 22 March 2007.  The fact that the applicant, who is not a medical practitioner, did not make any connection between his left knee pain and his work is hardly surprising and is not determinative of the issue of whether his work in fact contributed either to the 22 March 2007 incident or to the deterioration to any underlying left knee arthritic condition.

9.      Dr Patel and Mr Lugg are both orthopaedic surgeons.  The former treated the applicant following the March 2007 incident and continues to treat him.  Dr Patel has provided reports dated 22 March 2007,[3] 5 April 2007,[4] 6 August 2007,[5] 4 February 2009[6] and 11 May 2009.[7] Mr Lugg examined the applicant on two occasions and provided reports dated 14 November 2007,[8] and 28 April[9] and 30 July 2009.[10]

[3] T documents, T5, page 19.

[4] T documents, T8, page 27.

[5] T documents, T12, page 33.

[6] Exhibit A5.

[7] Exhibit A6.

[8] T documents, T14, page 38.

[9] Exhibit R1.

[10] Exhibit R2.

10.     From their reports and oral evidence both orthopaedic surgeons agree that the applicant requires a total left knee replacement.  Dr Patel maintained that the operation should be carried out as soon as possible as the applicant was experiencing a degree of pain consistent with a readiness to undergo the operation despite his relatively young age for this procedure.  Mr Lugg believed another arthroscopic procedure should be undertaken prior to any decision to undergo a total knee replacement, even though ultimately the applicant would reach a stage where a total knee replacement would be necessary.  Both agree that the applicant suffers severe tri-compartmental osteoarthritis of the left knee.  Both agree that the left knee locking occurring on 22 March 2007 was work related.  Both agree that the restrictions as imposed on the applicant’s work activity should continue and be reviewed after the total left knee replacement operation has been carried out[11] or after other procedures proposed had been carried out.[12]

[11] Dr Patel.

[12] Mr Lugg.

11.     One of the issues where the surgeons differ relates to whether or not the applicant has loose material behind his left kneecap, the movement of which may be the cause of the applicant suffering pain.  Despite information to the contrary in his report of 6 August 2007, Dr Patel found no loose bodies in the left knee joint.  For the purpose of resolving this case the principal difference between Dr Patel and Mr Lugg is whether the applicant’s work activity caused a permanent deterioration of the applicant’s knee condition[13] or whether it caused only a temporary aggravation of the condition which is otherwise endogenous in nature.[14]

[13] Dr Patel.

[14] Mr Lugg.

12.     Dr Patel opined that while it was difficult to precisely determine the work/left knee causal relationship.  He said it was more likely than not that the applicant’s work activity, which involved the applicant squatting for lengthy periods of time and carrying out other physical activities, which placed a greater strain on the applicant’s knees than would normally be the case, accelerated the arthritis in the applicant’s left knee.  In particular Dr Patel noted that a medial meniscal tear in the left knee occurred in the course of the applicant’s work on 22 March 2007 and that after the arthroscopic management, the applicant’s arthritic symptoms of the left knee rapidly increased.  Dr Patel maintained that while the applicant had managed to maintain his work pattern in the preceding years with little left knee pain the locking of the knee of 22 March 2007 was ‘the breaking point’; that is, the point when the symptoms became apparent following a long period of deterioration contributed to by the applicant’s work activities.

13.     On the other hand, Mr Lugg stated that the left knee locking of 22 March 2007 was caused by either a meniscal tear or a loose body but that it did not cause the tri‑compartmental osteoarthritis.[15]  Despite being informed that Dr Patel had not found any loose material when he carried out the left knee arthroscopy in late March 2007, Mr Lugg maintained that it would be preferable to perform an MRI (magnetic resonance image) to double check.  If there was in fact loose material then it would be preferable to ensure it was removed before consideration was given to a total knee replacement.  Mr Lugg maintained that there was no literature or research which associated hard work, or particular activities, with the onset or deterioration of a pre-existing arthritic condition.  He maintained that in cases where a person had received a specific injury the subsequent development of osteoarthritis may occur.  That, however, was not the case for the applicant.  Mr Lugg listed the following matters, in descending order of importance, as being the cause of osteoarthritis in the knee joint:

-    constitutional factors (inherited characteristics);

-    loss of lateral meniscus;

-    osteochondritis; and

-    obesity.

[15] T documents, T14, page 39.

14.     In his report of 14 November 2007 Mr Lugg records the applicant as saying that he first noticed pain when undertaking a walking holiday in New Zealand two years ago.  The applicant denied ever going to New Zealand.  In his oral evidence Mr Lugg stated that whether or not this was correct made no difference to his diagnosis.  Mr Lugg mentions in the same report, and confirmed in his oral evidence, that he palpated the applicant’s left knee which led to his identification of a loose body in the suprapatellar region of the left knee.  In evidence, the applicant told the Tribunal that Mr Lugg did not palpate his knee on the occasion of his first examination.  The applicant said that he demonstrated to Mr Lugg the presence of a lump by himself palpating the knee and that the lump was on the right hand side of his left knee just above the level of his left kneecap.  The Tribunal is satisfied that whether the palpitation was carried out by Mr Lugg or the existence of the moveable lump was demonstrated to him by the applicant palpating his left knee is immaterial.  The point, which the Tribunal accepts, is that the applicant had a lump in his left knee which could be palpated.  Mr Lugg agreed that the lump may be indicative of the presence of loose material in the knee joint, but that this was not necessarily the case.  Other explanations, such as the presence of a synovial membrane fold, a bone spur or a femoral condyle fragment due to OCD, may explain the lump.  Mr Lugg stated that none of these would be the cause of pain associated with the applicant’s arthritic condition.

15.     In his most recent report Mr Lugg opined that it was unlikely that at the time the arthroscopy was performed on the applicant’s left knee by Mr Gardiner on 30 November 1993 that the applicant‘s work would have caused him to develop moderate tri-compartmental osteoarthritis.  Mr Lugg places this at a time when the applicant had only been working for the respondent for a period of five years.  Mr Lugg seems unaware that the applicant worked carrying out the same work activity for other employers for at least 15 years prior to 1993.  Mr Lugg disagrees with Dr Patel’s opinion that, if loose material is present in the left suprapatellar pouch, there would no benefit to the applicant if the loose body currently present in the left knee joint was removed.  In Mr Lugg’s opinion the removal of loose material, if present, may result in the deferral of the need to undertake the left total knee arthroplasty.

16.     The applicant also obtained a medico-legal report from another orthopaedic surgeon, Mr Russell Miller, dated 13 August 2009.  Mr Miller does not list with which other medical reports he was provided prior to undertaking a consultation with the applicant, but mentions seeing reports from Dr Patel and Mr Gardiner.  It is Mr Miller’s opinion that while the applicant’s work activity did not cause his left knee condition it accelerated and aggravated it, caused it to become symptomatic and continues to make a ‘significant’ contribution to the pain the applicant suffers.

The Provisions Of The Act

17.     The precipitating event – the locking of the applicant’s left knee joint while in the course of his employment – occurred on 22 March 2007.  The Act was amended in 2007 with effect from 13 April of that year.  The provisions to be considered in this case are those pertaining prior to the 2007 amendments.  The applicant’s left knee joint locking on 22 March 2007 resulted in him incurring a work related injury.  The evidence established that it is not an inevitable consequence of his accepted underlying left knee osteoarthritic condition that his left knee would lock.  His circumstance can be compared to those of the claimants in Zickar v MGH Plastic Industries Pty Limited.[16]  In that case the High Court approved a finding in Accident Compensation Commission v McIntosh[17] that a sudden rupture of blood vessels arising from an arteriovenous malformation was a physical injury.  Similarly a claimant was held to have incurred an injury upon the occurrence of a disc prolapse: Health Insurance Commission v Van Reesch.[18]

[16] (1996) 140 ALR 156.

[17] [1991] 2 VR 253.

[18] (1996) 45 ALD 302.

18.     Section 4 definition of ‘injury’ in the Act extends to include any aggravation of a physical injury.  The Tribunal is satisfied that the locking of the applicant’s left knee on 22 March 2007 is an injury and that it entitled the applicant to the payment of compensation at that time.  So much is accepted by the respondent.

19.     The substantive question now to be determined is whether the applicant’s work activity continues to contribute to his condition such that the respondent is required by the provisions of the Act to meet the cost of the proposed left total knee joint arthroplasty.

Consideration

20.     The respondent accepts liability for the incident of 22 March 2007 when the applicant’s left knee became locked in the course of the applicant’s work as a linesman.  The central issue for the Tribunal is whether there is any relationship between that incident and the applicant’s current need for a left total knee replacement.  The views of two orthopaedic surgeons – Dr Patel, the applicant’s treating surgeon, and Mr Lugg, who examined the applicant on behalf of the respondent – concerning the progress of the applicant’s osteoarthritic left knee cannot be reconciled.  The evidence leaves the Tribunal satisfied that the applicant has been unable to undertake the physical work he engaged in prior to that 22 March 2007 event.  The Tribunal accepts that from that date the applicant has continued to suffer pain, his work duties have been dramatically altered and restrictions placed on the physical activities which he can safely undertake.  He has been engaged in sedentary work since the incident.  His mobility and day-to-day non-work activities have been greatly restricted.  The applicant accepts the need for, and wants to undergo, a left total knee replacement operation.

21.     It is conceded by all three orthopaedic surgeons who gave reports and oral evidence that the understanding of the relationship between physical activity in which a person may engage and any subsequently developing osteoarthritic condition is problematic.  No empirically-based scientifically tested evidence has been reported which indicates that any connection exists.  However both Dr Patel and Mr Miller observed that their clinical experience informed them that repeated physical activity may cause a more rapid deterioration of any endogenously based arthritic condition.  A point was reached where, although there had been no significant alteration in the symptom of pain prior to an incident such as that experienced by the applicant on 27 March 2007, once the condition manifested, there could be a rapid acceleration of symptoms.  They maintained that this was what had occurred to the applicant.  The Tribunal accepts the clinical experience of both Dr Patel and Mr Miller as establishing that the continuous physical work carried out by the applicant, including crouching for extensive periods of time, has contributed to his tri-compartmental left knee osteoarthritic condition.

22.     Mr Lugg agreed that it was possible that could be the case, but he was not prepared to confirm it, as there was no credible medical literature which identified such a connection.  Often there will be connection between clinical experience and research results.  However this will not always be the case.  A lack of reported, proven medical research is not necessarily fatal to a claim for workers’ compensation.  Clinical experience from acknowledged senior surgeons, even when not universally supported by all of their colleagues, may be logically probative to the degree that a fact-finding body or Tribunal is satisfied, on the balance of probabilities, to accept it as discharging the onus of proof.  The Tribunal is satisfied that this is one such case.  Accordingly, the Tribunal is satisfied that the applicant’s work resulted in a deterioration of the applicant’s underlying left knee tri‑compartmental osteoarthritis.  It is not so much a case of his work aggravating the condition.  An aggravation, by its nature, cannot be permanent.  What the Tribunal is satisfied has occurred in this case is that the applicant’s work contributed to the permanent deterioration of his left knee osteoarthritic condition.  It follows that the respondent is responsible for the costs of an operation which may result in the condition being relieved.  The evidence is clear that this is a left total knee arthroplasty.

23.     For the above reasons the decision under review is set aside and a decision substituted that the respondent is liable to pay for the applicant’s proposed left total knee joint replacement arthroplasty.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G L McDonald, Deputy President

Dr R McRae, Member

Signed:         ..............(sgd D De  Andrade).....................
  D De Andrade   Personal Assistant

Date/s of Hearing  27 and 28 January 2010
Date of Decision  10 March 2010
Counsel for the Applicant         Ms C. Serpell
Solicitor for the Applicant          Ms L. Hickey, Ryan Carlisle Thomas
Counsel for the Respondent     Mr J. Ferwerda
Solicitor for the Respondent     Mr J. Johnson, Sparke Helmore