Gibbins and Australian Postal Corporation
[2003] AATA 722
•31 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 722
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/772
No N2002/1655
GENERAL ADMINISTRATIVE DIVISION ) Re KIM GIBBINS Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Dr M Thorpe, Member Date31July 2003
PlaceSydney
Decision 1. The determination of 21 March 2002 as varied by the determination of 25 October 2002 is set aside and in substitution thereof, the Tribunal finds the applicant Ms Kim Gibbins is entitled to compensation for permanent impairment in relation to the left knee condition, pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1998.
2. The rate of permanent impairment is assessed at 10 per cent.
3. The matter is to be referred to a delegate Australian Postal Corporation for assessment of non-economic loss.
4. Costs are awarded pursuant to section 67(8) of the Act in accordance with the Tribunal's Practice Direction.
[Sgd] Dr M Thorpe Member
CATCHWORDS
WORKERS COMPENSATION – claim for compensation – liability ceased - knee injury – what is the nature of the injury - whether the knee condition a result of the injury sustained at work – Safety, Rehabilitation and Compensation Act 1988 – decision set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – sections 14, 19, 20, 21, 24, 25 and 27
REASONS FOR DECISION
31 July 2003 Dr M Thorpe, Member 1. This is an application by Ms. Kim Gibbins (nee Hobson) (“the Applicant”) to the Administrative Appeals Tribunal (“the Tribunal”) for review of a decision of the Australian Postal Corporation (“the Respondent”) dated 21 March 2002, varied by a determination dated 25 October 2002. Under this decision, the Respondent affirmed the previous decision of 19 December 2001 to deny liability for the Applicant’s knee injury under sections 14, 19, 20, 21, 24, 25 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
2. On 8 March 2001, the Applicant lodged a claim for compensation for a left knee injury sustained on 22 February 2001. On 21 March 2001, the Respondent accepted liability under section 14 (1) of the Act. On 22 March 2001, payment of compensation under section 19 of the Act was approved. On 19 December 2001, the Respondent made a determination to cease liability in relation to the condition on 20 December 2001. . That determination was affirmed in a decision dated 21 March 2002 under section 62 of the Act.
3. To remove any doubts which may have existed regarding the Tribunal’s authority to consider the Applicant’s claims under section 24 and 27 of the Act, the Respondent issued a further section 62 decision on 25 October 2002 specifying the extent of the cessation and denial of further liability:
“Australia Post is not liable to pay compensation to Ms Gibbins in respect of any injury to the left knee. The denial of liability encompasses al relevant provisions of the Act, including sections 14, 16, 19, 20, 21, 24, 25 and 27”.
4. The Tribunal convened a hearing in this matter in Sydney on 6 May 2003. Mr Harris of Counsel represented the Applicant and Mr Kelly of Counsel represented the Respondent.
5. The following exhibits were tendered to the Tribunal:
Exhibit
Description
Date
TD1
T documents (T1 – T100) N2002/772
TD2
T documents (T1 – 5) for N2002/
A1
Dr Sorial report
9 October 2002
A2
Dr Sorial report
28 October 2002
A3
Dr Sorial report
24 March 2003
A4
Bundle of documents
Various dates, August – December 1995
A5
Clinical notes of Mudgee Medical Centre Chronology
Various dates 1998
A6
Chronology
10 April 2003
R1
Report of Dr Thomson
23 September 2002
R2
Report of Dr Thomson
11 November 2002
R4
Report of Dr Thomson
22 April 2003
ISSUES BEFORE THE TRIBUNAL
6. The basis of the decision under review is whether the Applicant is entitled to compensation for permanent impairment in relation to “left knee condition” sustained on 22 February 2001 pursuant to Sections 24 and 27 of the Safety, Rehabilitation and Compensation Act1988.
7. The parties agreed with the views of Doctor’s Sorial and Thomson that the Applicant has a 10 per cent permanent impairment of the left knee. The parties were in dispute over whether the work incident on 22 February was responsible for the 10 per cent permanent impairment of the left knee or whether the impairment resulted from an earlier injury to the knee. It was agreed that if the Applicant was successful the matter be referred to the delegate for assessment of non-economic loss.
LEGISLATION
8. The legislation relevant to this matter is section 24 and 27 of the Act. These sections relevantly provide:
24 Compensation for injuries resulting in permanent impairment
24(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
24(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
24(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
24(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
24(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
24(6)The degree of permanent impairment shall be expressed as a percentage.
24(7)Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
24(8) Subsection (7) does not apply to any one or more of the following:
(a)the impairment constituted by the loss, or the loss of the use, of a finger;
(b)the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
24(9) For the purposes of this section, the maximum amount is $80,000.
…
27 Compensation for non-economic loss
27(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
27(2)The amount of compensation is an amount assessed by Comcare under the formula:
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
BACKGROUND
9. The Applicant was born on 25 March 1959 and worked formerly as a Postal Services Officer at Springwood Post Office. The Applicant currently lives in Canberra with her husband and nine-year-old daughter. She previously lived in Mudgee from 1986 to 1999.
10. The Applicant had a motor vehicle accident in 1976, which did not involve an injury to her left knee. In 1995, the Applicant had some problems with her knees associated with heavy activity. . In 1995 Dr Wood performed an arthroscopy on the left knee.
11. The Applicant continued to play tennis, to pushbike and caddy for her husband after the 1995 arthroscopy. Following the anthroscopy, the Applicant took no medication and sought no medical treatment for the left knee until the incident in 2001.
APPLICANT’S EVIDENCE
12. On 22 February 2001, the Applicant sustained an injury to her left knee while at work at Springwood Post Office. . She told the Tribunal that a customer came in and asked for a registered letter, so she crouched down to retrieve the letter from a folder on the ground and when she stood up her left knee made a crunching sound and she experienced pain. She reported the incident, and continued to work for the rest of the day in pain.
13. On 24 February she saw her local doctor Dr Dias who referred her to Dr Sorial, Orthopaedic Surgeon. In a report dated 9 March 2001, Dr Sorial diagnosed the Applicant’s condition as consistent with a lateral meniscus tear. (T12, p21-p22)
14. On 8 March 2001, the Applicant made a claim for compensation for the injury sustained at work on 22 February 2001. On 21 March 2001, the Respondent accepted liability for the left lateral meniscus tear. (T15, p25)
15. On 5 April 2001, an MRI of the Applicant’s left knee was conducted, diagnosing no definite evidence of a meniscus tear. (T21, p32) On 30 April 2001, the Applicant was examined by Dr Downes on behalf of the Respondent. (T28, p40 - p43).
16. On 22 May 2001, Dr Sorial conducted arthroscopy on the Applicant, which demonstrated a large grade 111 crevice over the central crest of the patella. (T36, p53)
17. The Applicant said that following the anthroscopy her knee was very painful and more severe than in 1995.
18. Following the anthroscopy, the Applicant undertook a rehabilitation program. In a report dated 6 August 2001, Dr Sorial stated that the Applicant described a 50 to 60 per cent improvement in overall symptoms and that she had retuned to full work duties.
19. In August 2001 during physiotherapy, the Applicant sustained a further injury to her knee during a squat in her exercise program. Her evidence was:
"They were trying to get me to squat again, like to bend my knees as far as I could. I was against the wall as I was sliding down the wall, then my knee again made like a crunching – was just he same feeling, the same sensation in February when I first hurt my knee---. The knee pain has not subsequently gone away although there has been a slight improvement".
.
20. On 16 October 2001, Dr Bruce Caldwell diagnosed the Applicant’s left knee condition as patellofemoral damage and in his opinion determined that the Applicant had never sustained a meniscus tear. Dr Caldwell did not find a connection likely between the condition and the incident, which occurred on 22 February. (T64, p91 – p94)
21. Under cross-examination the Applicant agreed that she had no treatment in respect of her knee following arthroscopy 31 October 1995 and the injury in 2001.She told the tribunal that she had no problems with her knees between 1996 and February 2001.
22. The Applicant told the Tribunal that prior to the left knee anthroscopy in 1995 she had similar pain in both knees. She told the Tribunal that “[T]hey thought they'd do the left knee first and then would go to the right knee after." The Applicant said she would not dispute Dr Wood’s record that the left knee pain was greater than the right. The Applicant told the Tribunal that at the time she told Dr Wood that she had shooting pain up and down the left leg, occasional giving away of the knee, clicking in the knee and occasional catching.
23. The Respondent drew the Applicant’s attention to Dr Leal’s referral to Dr Wood:
“Thank you for seeing this 36 year old lady who complains of chronic knee pain which related to a motor vehicle accident 15 years ago. She was unsure of what was actually injured at the time but her knees have been sore ever since”
The Applicant replied:
"They haven't been sore all those years, no. I mean, you know, as they asked me had I had an accident, had I had any injuries from this --- “
The Applicant said she first experienced knee pain in 1994 and in 1995:
"They asked me had I had an accident so that they could sort of think that maybe that could be related to why my knees were paining. I mean, I was still playing sport, still doing lots of things, it hadn't affected my life style at all from the accident in 1995 until when I had the arthroscopy – when I was 17 to when I had the first arthroscopy in 1995."
24. The Applicant said that in August 1995 she told Dr Leal that her knees had been getting worse over the past few months. She did not dispute Dr Wood's record that she had physiotherapy intermittently over the years and said she never found it to be of any use.
25. In a determination dated 19 December 2001, the Respondent declined liability for the Applicant’s continuing claim.
26. The Applicant returned to normal working hours from November 2001 with restrictions as to sitting, squatting and standing. The Applicant has continued with a modified exercise and weekly physiotherapy program. She is currently working normal hours at Canberra GPO, full time/part time depending on the work availability.
MEDICAL EVIDENCE
27. Numerous Medical reports were available from the Applicant’s current treating Orthopaedic specialist Dr R Sorial. His initial report 9 March 2001 (T12) following referral from Dr Dias reported that she was crouching to get some mail and as she stood up, twisting at the same time, felt a crunching within the knee, leading to pain and swelling over the subsequent few days.
28. There was a prior history of arthroscopy to the knee by Dr David Woods following a motor vehicle accident ten years ago. He reported no abnormal findings at the arthroscopy. He also reported she had no intercurrent problems with that knee joint up until this incident. Examination showed no effusion and only mild patellofemoral irritability. The Applicant had moderate tenderness over the lateral joint line and acute tenderness over the medial joint line. Dr Woods considered her history was consistent with a meniscal tear and examination moderately supported this.
29. The Applicant had an MRI a month later and this showed the menisci to be intact. In his report of 18 May 2001 (T32) he reported that she was keen to have something done to further elucidate the origin of her symptoms of ongoing pain in the knee joint that remained anterior with radiation to both medial and lateral joint lines.
30. The Applicant came to arthroscopy on 22 May 2001, which demonstrated a large Grade 111 crevice over the central crest of the patella requiring a chondroplasty with the vaporiser probe. She also had a thickened medial synovial plica that was abrading the medial edge of the medial femoral condyle and a debridement of this area was performed. Following arthroscopy the Applicant reported improvement of her symptoms (T36, p.53) and was to continue a physiotherapy rehabilitation program over the next six to eight weeks. On 6 August 2001 the Applicant reported a 50 - 60 per cent improvement in overall symptoms and that she had returned to work on full duties (T50, p73).
31. The Applicant reported a further injury sustained to the left knee in August 2001. She overdid it with squatting activities and during a squat felt a rearing sensation over the medial aspect of her left knee joint. An MRI scan excluded a new injury to the knee joint.
32. On 14 December 2001, Dr Sorial injected the Applicant’s knee with Kenacort A40 and lignocaine. In a 22 May 2002 medical review Dr Sorial indicated the knee symptoms to be low grade and noted that the Applicant continues her normal work activities and domestic chores without restrictions. (T98, p138).
33. In a report dated 24 March 2003, Dr Sorial confirmed his diagnosis of patellofemoral and medial compartment arthrosis and that this diagnosis was substantially related to the incident on the 22 February 2001.(Exhibit A3)
34. The changes at arthroscopy performed by Dr Wood were different to his findings on arthroscopy and were not a natural progression of the minor findings identified in 1995. He also reported that the Applicant had not reported to him any interim symptoms, in particular preceding the injury in 2001.
35. Dr N Thomson, Orthopaedic Surgeon in his report of 23 September 2002 (Exhibit R1) considered the Applicant had sustained a patella subluxation of the left knee at the time she bent down while at work in a crouching position to obtain a letter from the bottom shelf. He considered the arthroscopic findings showed a retropatellar chondral lesion consistent with patella subluxation. He considered the patella subluxation was related to the pre-existing condition of mild patella femoral dysplasia, which predisposed to patella subluxation. It was likely that the need for arthroscopy in 1995 was possible episodes of patella subluxation.
36. In a further report of 27 November 2002 (Exhibit R3), Dr Thomson considered that the arthroscopic findings of a large grade 3 crevice over the central crest of the patella and a thickened medial synovial plica were related to a chronic condition of repeated episodes of subluxation of the patella and the thickened medial synovial plica which was a congenital condition and anatomical variant causing damage to the medial femoral condyle. In a further report of 22 April 2003 (Exhibit A4), Dr Thomson reported bone scan evidence of mild degenerative arthritis involving the patellofemoral compartments of both knees. He also confirmed that there were pre-existing changes in the left knee in the patellofemoral compartment within the medial compartments of the left knee.
37. In a letter dated 25 September, Dr David Wood informed Dr Leal that the Applicant had been involved in a motor vehicle accident fifteen years previously and her knees had never recovered. He reported that the Applicant complained of shooting pain up and down the leg and occasionally giving away as well as clicking and occasional catching. Examination revealed marked medial joint line tenderness of the right knee and medial joint line tenderness as well as pes anserinus bursal tenderness of the left knee.
38. Dr Wood organised a bone scan at Dubbo Nuclear Medicine and Ultrasound. The scan report dated 19 September 1995 stated that “There is scan evidence of mild degenerative arthritis involving the retro-patellar compartments of both knees and also within the medial compartment of the left knee”. Arthroscopy was performed 13 October 1995 for “Patellofemoral changes and ? medial meniscal tear, left knee.” The findings were “Very mild retropatellar changes with grade 1 changes on the tibial plateau.” (Exhibit A4)
39. On 30 April 2001, Dr Michael Downes, Medico Legal consultant in the field of Orthopaedic Surgery, examined the Applicant for the Australian Postal Corporation. (T28, p40). He made no diagnosis, as there were several possibilities. He advised arthroscopy that was subsequently performed.
CONCURRENT EVIDENCE
40. Dr Sorial said when the Applicant originally presented her tenderness, it was mostly focused over the medial aspect of the joints and the presumptive clinical diagnosis was that of a meniscal tear. An MRI scan was performed which excluded a meniscal tear. She same to arthroscopy which identified two principal findings. One was a deep crevice in the crest of the patella injuring the chondral surface and a thickened medial synovial plica that was abrading the medial aspect of the femoral condyle. The plica was re-sected, the chondylar flaps were debrided and debridement was performed around the patella minor. However, it was argued that with a crevice identified as such there's little that can be done at the time.
41. The Applicant improved 50 to 60 per cent and then re-presented again 29 October 2001 after another tearing sensation during physiotherapy. This was treated non-operatively. A further MRI showed no further change. The Applicant was able to return to work and is able to participate in full work duties but with residual symptoms. Dr Sorial was unaware of the prior history of knee injury at the time of his surgery. On reviewing Dr Wood's notes Dr Sorial was of the opinion there was a new injury and that the large grey tree crevice, which he identified, would certainly have been picked up by Dr Wood and was obviously not present at the arthroscopy in 1995. Her ongoing symptoms, the thickened synovial medial plica and the changes to the medial femoral condyle were obviously new.
42. Dr Thomson said that he was aware of the arthroscopic inspection by Dr Sorial and that he found a cleft in the ridge of the patella. He also said that the Applicant had a thickened plica on the medial aspect of the knee. His opinion was that those types of findings were seen in chronic subluxation of the patella and splitting on the retro-patellar surface of the patella is evident.
43. Dr Thomson believed the injury sustained on 22 February 2001 was due to a subluxation of the patella and the subluxation was one in a number of subluxations over a number of years. Dr Thomson was aware of Dr Wood's report. He considered that by December 2001, there was ample time for resolution of the subluxation at the time of the incident of 22 February 2001. He stated that any ongoing symptoms would have been due to a pre-existing dysplasia in the extensor mechanism of the knee joint, which was associated with minor subluxations of the patella.
SPECIALIST’S QUESTIONING
44. Dr Sorial agreed with Dr Thomson regarding the findings normally seen with chronic patella femoral subluxation. He stated that when you see someone with chronic, even mild patella femoral subluxation they tend to have symptoms intermittently year in year out. Dr Sorial stated that he could not correlate why the Applicant responded well to a minor surgical procedure in 1995 and then reported no symptoms until this work related incident. He told the Tribunal the he believed the interval of 5 years is inconsistent with someone who has a chronic problem.
45. Dr Thomson agreed that it would be unusual for the Applicant at age 43 to present later in life without a history of previous subluxations and that it was possible she was having minor problems. He believed the fact that she had presented to Dr Wood at an earlier date indicated that there were previous problems occurring on the left knee joint. Dr Thomson considered that Dr Sorial's findings on arthroscopy indicated this was a chronic problem of patella subluxation.
COUNSEL QUESTIONING
46. In response to Mr Harris, Dr Sorial considered the fact that the crevice was still evident was of itself a basis for permanent impairment. Also as the Applicant had sworn on oath that she had no problems with the knee between 1996 and 2001, it was more likely that the grey tree crevice occurred at the time of the work injury rather than being a pre-existing injury.
47. Dr Thomson stated that if he were to accept the evidence that there had been no symptoms for the 5-year period between 1996 and 2001, he would agree that the Applicant does not have a chronic subluxation problem. He considered the findings on the retro-patellar surface were not of a major acute injury. Dr Thomson told the Tribunal that if the retropatella surface is damaged, it does not necessarily mean that symptoms will arise from the area. He considered it a very difficult and grey area.
48. Dr Thomson was surprised that the Applicant was sufficiently symptomatic to warrant arthroscopy in 1995. He said that based on the evidence that she was completely pain free 1996 to 2001 and had full physical activities, one would have to assume that she was not having patella subluxations at that time. He agreed that the ongoing grey tree crevice does not have the capacity to heal and that the crevice was an ongoing impairment.
49. In response to the Respondent, Dr Sorial and Dr Thomson agreed that with a long-standing history of knee pain prior to arthroscopy in 1995 and given the fact Dr Wood didn't actually carry out a repair, it was unlikely the Applicant’s knee symptoms would resolve after arthroscopy.
50. Dr Sorial considered the large crevice over the central crest of the patella was indicative of a major acute injury. He said that although flaps and chondral changes can be progressive, this particular crevice was more consistent with a traumatic injury.
51. In response to the Respondent both Doctors agreed that a thickened plica can simulate a medial meniscus problem and that it can cause erosion of the femoral condyle. Dr Thomson believed it was something often seen accompanying recurrent patella subluxation.. Dr Sorial said that it is associated in most cases with damage to the medial femoral condyle or the lower femoral bone and coming to the cleft in the retropatellar space. Dr Thomson said that a major cleft might have been due to an acute episode that put pressure on the retropatellar surface, and made a minor cleft bigger. Dr Thomson added that if it was a grade three, it was not through the full thickness of the articular surface and he did not necessarily think it would be symptomatic. Dr Thomson told the court that “a residual cleft did not necessarily become painful later on until the bone has worn down to the articular – to bone (sic) and then there's grade four with damage to the articular surface”
52. Dr Sorial looked at the picture of the patellar surface he took intra operatively and opined:
"It just doesn't have these changes you'd expect with a chronic sublaxation because on each side of that central crest the articular surface is fairly normal --- that makes me feel this is not a chronic problem but that just an opinion based on the finding."
53. In a report dated 16 October 2001 (T64), Dr Bruce Caldwell considered it likely that the Applicant had long standing chondromalacia patellar. He opined that the incident was an aggravation of this damage and that the contribution in the long-term sense must only be considered as a small part. He considered she had some patellofemoral damage of uncertain aetiology and that there was no connection with her work. However he reported she may have a minor subluxation in the patellar, sustaining damage to the patellar ridge. In evidence he affirmed his opinion that the left knee was a long standing degenerative problem and that it could have been aggravated by the squat. He described any ongoing aggravation as minor or slight as opposed to substantial. He was less certain about a subluxation but thought the patellar may have moved to the side a partial dislocation. Dr Caldwell did not think the squat was a substantially contributing factor to the tear.
54. Under cross-examination Dr Caldwell said the age of a tear couldn’t be determined by looking at it. He could not say if the tear was acute or degenerative. Dr Caldwell told the Tribunal that if the Applicant had been truly symptom free from 1995 to 2001 it was more likely to be acute. He said that Dr Wood could only have assumed that there was a dashboard injury to her knees in the motor vehicle accident.
SUBMISSIONS
55. Mr Harris submitted that the incident in August 2001 was part of the Applicant's rehabilitation and physiotherapy as treatment for the original injury and should be treated as an accumulative injury rather than a separate injury. Both the Respondent and the Tribunal agreed that an injury that occurs in the course of treatment is covered by the Act. Mr Harris was not suggesting there was a meniscal tear as originally diagnosed. He understood the injury to be a grade 3 crevice over the central crest of the patellar.
56. Mr Harris changed his mind about Dr Caldwell whose evidence was that there was an ongoing aggravation. He recognised the difference of opinion between Dr Sorial and Dr Thomson. Dr Caldwell summarised the left knee problem as mainly degenerative and any aggravation as minor. Dr Sorial's view was that it was a traumatic event. Dr Thomson said it was a subluxation that caused the tear and that the effects were long standing.
57. Mr Harris said it was a case of credit. He had to concede that if there were ongoing symptoms right up until 2001 then the view put forward by Dr Thomson or Dr Caldwell would have more weight. He did not doubt there were prior problems, information that was available to all doctors except Dr Caldwell. Mr Harris argued that there was no material before the Tribunal of any complaint to a doctor from 1996 until the incident in 2001..
58. The Respondent drew the Tribunal’s attention to the matter of credit and in particular to the issue of whether the Applicant was truly symptom free for the period 1996 to 2001. He referred to Dr Leal's report dated 24 August 1995 recording bilateral knee pain, left being greater than right, to the motor vehicle accident 15 years ago and the medical reports that the knees had never fully recovered. The Respondent also pointed to the fact that Dr Wood obtained a history of bilateral knee pain, left greater than right. The Respondent questioned why the Applicant had not told Dr Caldwell of the earlier arthroscopy to the left knee.
59. The Respondent said Dr Thomson had not resiled from his position that the 22 February 2001 injury was a subluxation of the patellar that would, in the normal course of events resolve within a period of months. His opinion was that the Applicant had symptoms referable to the underlying condition of chronic subluxation of the patellar, dating back to the motor vehicle accident in 1976. The Respondent submitted that Dr Thomson’s report dated 23 September 2002 said the arthroscopic inspection of the knee showed a retropatellar condyle lesion, which would be consistent with a patellar subluxation. The Respondent added that it was clear when one reads Dr Thomson’s reports and has regard to what he said in the witness box, that he was referring to a process of repeated subluxations over a number of years.
60. The Respondent told the Tribunal that little weight should be given to Dr Caldwell’s opinion that there was an ongoing aggravation as he had not seen the Applicant again. The Respondent said that Dr Caldwell did not think there was a subluxation in the particular incident 22 February 2001 although he did say it was possible. Dr Caldwell did not resile from his opinion that the findings made by Dr Sorial on arthroscopy were indicative of long standing changes rather than changes occurring in trauma on that particular date in the Respondent's submission.
61. The Respondent submitted that the Tribunal was left with the opinions of Dr Thomson and Dr Caldwell stating the problem was a longstanding one, not resulting from the incident 22 February 2001 as against Dr Sorial who thought that it was. The Respondent submitted that Dr Thomson's view that none of the 10 per cent permanent impairment of the left knee was related to the incident 22 February 2001, was correct. Dr Caldwell did not express an opinion as to the degree of permanent impairment. However, it was the Respondent's submission that Dr Caldwell understood the majority of the impairment as resulting from changes that occurred prior to 22 February 2001. It was the Respondent's submission that the Applicant had to establish a whole person impairment of 10 per cent arising out of the injury 22 February 2001 and possibly further aggravation in August 2001 in order to succeed on the question of impairment.
TRIBUNAL’S DELIBERATIONS
62. As agreed by the parties the Applicant has a 10 per cent permanent impairment for a left knee condition. Two principal questions were before the Tribunal:
(a) What was the nature of the left knee condition?
(b) Was the knee condition a result of the injury sustained 22 February 2001?
Nature of the left Knee condition
63. The Tribunal had the benefit of three principal specialist opinions with the background information of the treating specialist for an earlier left knee problem. Much of the medical debate centred on the interpretation of the arthroscopic examinations by Dr Wood in 1995 and Dr Sorial in 2001. In summary, Dr Wood’s findings were “Very mild retropatellar changes with grade 1 changes on the tibial plateau”. Dr Sorial's findings were “A large grade 111 crevice over the central crest of the patellar requiring a chondroplasty”.
Diagnostic Opinions:
64. Dr Sorial diagnosed the injury as patellofemoral and medial compartment arthrosis substantially related to the 22 February 2001 incident. He opined that it was an acute injury.
65. Dr Thomson diagnosed a pre-existing condition of mild patellar femoral dysplasia, which predisposed to chronic subluxation. He considered the Applicant sustained a subluxation at the time of the 22 February 2001 injury, but that this subluxation was part of a chronic condition of repeated episodes of subluxation of the patellar. Dr Thomson believed that the large grade 111 crevice over the central crest of the patellar and the thickened synovial plica were related to repeated subluxations of the patellar. He considered it likely the need for arthroscopy in 1995 was possible subluxations.
66. Dr Caldwell considered the injury likely to be long standing chondromalacia patellar. He determined that the incident on 22 February 2001 would have been an aggravation of a chronic degenerative process. However, in the long-term sense it would have played only a small part. Dr Caldwell considered the patellofemoral damage of uncertain aetiology with no connection to the 22 February 2001 work incident. He reported the Applicant might have a minor subluxation in the patellar.
67. Dr Downes posited a number of different pathologies including a trans-chondral shearing tear to the articular cartilage of the patellar and femur and a synovial injury. Both Dr Sorial and Dr Thomson supported the damage to the patellar and the synovial injury.
68. Before the Tribunal was the Applicant with a 10 per cent permanent impairment and the trichotomy of opinion. In simple terms it was not argued that there were changes present at arthroscopy in 2001 that were not present in 1995. The changes in 1995 were at best minimal. The possible origins of the changes were trauma, recurrent subluxation or an aggravation of a degenerative process in the knee. Dr Caldwell the author of the degenerative changes aetiology had the disadvantage of seeing the Applicant only once and was alone in his opinion that the arthroscopic changes in 2001 were a natural progression of the chronic degenerative process. He did however concede an aggravation at the time of the injury and also conceded the possibility of a minor subluxation.
69. The Tribunal agreed with the opinions of Dr Sorial and Dr Thomson. Neither resiled from their opinions when giving concurrent evidence and the Tribunal noted the exemplary standard of courtesy and professionalism.
70. Dr Sorial said the grade 111 crevice was a direct consequence of the 22 February incident. Dr Thomson considered that the Applicant suffered another patellar subluxation on 22 February 2001, which was part of a long-standing chronic problem of patellar subluxation dating back possibly to approximately 1995. This would in normal circumstances be expected to produce ongoing symptoms over this period. His opinion was that recurrent subluxation of the patellar would give rise to ongoing symptoms. The Tribunal then turned to the evidence of the Applicant.
71. The Applicant’s evidence was that she was effectively symptom free over the period 1996 to 2001 and that she was able to work full time and carry out normal activities. During this period she undertook her usual sporting activities. There was no evidence before the Tribunal that she sought any medical treatment for her knee during this period. Her treating specialist Dr Sorial also obtained no history of problems during the 1996 to 2001 period. The Respondent in submissions instanced a number of situations where there were inconsistencies in her history. None of these inconsistencies related to the period 1996 to 2001.
72. Before coming to a conclusion the Tribunal must look at the events prior to 1995. The Tribunal considered the motor vehicle accident in 1976. There was no evidence before the Tribunal of an actual injury to the knee in the accident. Dr Leal the General Practitioner and Dr Wood the treating Orthopaedic Surgeon both referred to her knees being sore ever since the motor vehicle accident. A bone scan at that time did show some change and was a factor in the Applicant coming to arthroscopy. The bone scan also influenced Dr Caldwell’s opinion that there was evidence of a degenerative problem at that time. It was a surprise therefore that the Applicant’s arthroscopy in 1995 was essentially normal and also that subsequent to arthroscopy she became essentially symptom free.
73. The Tribunal relying on the arthroscopic findings concluded that there was an injury to the knee in 2001 that was not present in 1995. The Tribunal accepted that the Grade 111 crevice arose as a consequence of a new injury sustained, consistent with the injury at work. This finding is consistent with the history by the Applicant that she was essentially free of symptoms in the period 1996 to 2001.
74. Dr Sorial reported that the intra operative pictures did not have the changes expected with a chronic subluxation because the articular surface was fairly normal on each central crest. The pictures revealed that it was more just right in the centre where the injury was sustained This was an indication to Dr Sorial that this was not associated with a chronic problem. The Tribunal would have great difficulty going past the findings of the operative treating specialist. This in no way discredits the other specialists in that their opinions could be the explanation in a different situation.
75. The Tribunal therefore finds that the Applicant is entitled to compensation for permanent impairment in relation to “left knee condition” sustained on 22 February 2001. The Tribunal determines the degree of impairment as 10 per cent as is required under section 24 of Act in order for the Applicant to qualify for permanent impairment. The Tribunal finds that any aggravation caused by the further incident in August 2001 is to be included in the 10 percent. The Tribunal did not apportion a specific percentage of the 10 per cent impairment to the 22 February 2001 incident, as it was satisfied this was the acute injury and there was no impairment prior to that date. The Tribunal was cognisant of Dr Caldwell’s opinion that there was an aggravation at the time of an underlying degenerative condition of chondromalacia patellar. Having been persuaded that the injury was of an acute nature and that the permanent impairment followed this acute injury, there was no need for the Tribunal to consider aggravation when assessing permanent impairment.
DECISION
76. The determination of Australian Postal Corporation of 21 March 2002 as varied by the determination of 25 October 2002 for the purposes of permanent impairment is set aside and in substitution thereof, the Tribunal finds the Applicant Ms Kim Gibbins is entitled to compensation for permanent impairment in relation to the left knee condition, pursuant to sections 24 and 27 of the Act
77. The rate of permanent impairment is assessed at 10 per cent.
78. The matter is to be referred to a delegate Australian Postal Corporation for assessment of non-economic loss.
79. Costs are awarded pursuant to section 67(8) of the Act in accordance with the Tribunal’s Practice Direction.
I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Thorpe, Member
Signed: A. Krilis
AssociateDate of Hearing 6 May 2003
Date of Decision 31 July 2003
Counsel for the Applicant Mr John Harris
Solicitor for the Applicant Ms Jennifer Fraser
Counsel for the Respondent Mr Brendan Kelly
Solicitor for the Respondent Ms Emma O'Connor
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