Huhta and Comcare
[2004] AATA 305
•25 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 305
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/644
GENERAL ADMINISTRATIVE DIVISION )
Re PETER JOHN HUHTA Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms J Cowdroy, Member Date25 March 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
....................(Sgd)......................
J Cowdroy
Member
CATCHWORDS
COMPENSATION – knee injury – claim for an arthroscopic debridement of knee - osteoarthrosis - present condition related to a progression of arthritis not original injury – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 s 16
REASONS FOR DECISION
25 March 2004 Ms J Cowdroy, Member 1. This decision relates to a determination dated 4 April 2002 in which Comcare disallowed the applicant’s claim for an arthroscopic debridement of his right knee. This Tribunal reviewed that decision on 3 September 2003.
Hearing
2. The applicant represented himself and gave evidence. Dr Mark Welsh and Dr Bruce Martin, orthopaedic surgeons, gave evidence. The T-documents were admitted into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 1), together with the following documents, which were admitted into evidence as exhibits:
Exhibit 2 Report of Dr M Welsh dated 19 December 2002
Exhibit 3 Report of Dr B Martin dated 6 February 2003
Exhibit 4 Bundle of documents and e-mails from applicant
Background
3. The following serves by way of background to the hearing and is not in dispute. The applicant is a former employee of the Department of Business and Consumer Affairs. He retired on 1 March 1982.
4. On 15 October 1979, the applicant injured his right knee and on 23 January 1980, the respondent accepted liability for a condition described as traumatic synovitis right knee (T8). In subsequent determinations it is referred to as “injury to right knee”.
5. In August of 1984 he underwent an arthroscopy of his right knee, and further arthroscopic surgery occurred in April of 1993. On 24 January 2002, Dr Khoury, orthopaedic surgeon sought permission from Comcare to perform an arthroscopic debridement of the applicant’s right knee. By determination dated 4 April 2002 Comcare disallowed this claim on the basis that it did not relate to the applicant’s compensable condition but to the pre-existing condition of osteoarthritis. The decision was reviewed and affirmed on 12 June 2002.
The Issue
6. The issue for the Tribunal to determine is whether the applicant is entitled to compensation in respect of his right knee surgery.
Evidence
7. The applicant is aged 76 years. At the time he sought reconsideration of Comcare’s decision he was seeking approval for the cost of an arthroscopic debridement of right knee. However, it was subsequently determined that the appropriate treatment was right knee replacement, which was carried out by Dr M Welsh on 1 March 2003. He seeks the cost of this procedure.
8. The applicant has consulted various practitioners for his knee problem over many years. On 24 August 1984 Dr G J Bookless, orthopaedic surgeon carried out an arthroscopy on that knee. By letter dated 10 January 1984 Dr G J Bookless, orthopaedic surgeon diagnosed mild osteoarthritis and a probable meniscus tear. At that stage Dr Bookless reported that the pathology in the applicant’s knee had not been defined.
9. On 24 August 1984 Dr Bookless carried out an arthroscopy of the applicant’s right knee. In a report dated 16 October 1984 (T22/42) Dr Bookless stated that the surgery revealed horizontal cleavage tear of the posterior part of the medial meniscus, which was resected. Chondromalacia affecting the medial femoral condyle was also detected. He described the right knee condition as permanent and static following surgery on 20 August 1984.
10. Comcare met the cost of that procedure in addition to another arthroscopy in 1993, performed by Dr Welsh.
11. The applicant indicated that after that surgery, his right knee was comparatively pain free until late 2001, at which time he sought medical advice from a general practitioner who in turn referred him to M E Khoury, orthopaedic surgeon. At that consultation, Mr Khoury advised that his knee required an exploratory arthroscopy and possibly a knee replacement. The applicant contended that Mr Khoury was initially supportive of his contention that the need for surgery was due to his 1979 injury, however he later altered this opinion on that aspect, stating that the applicant was suffering from osteoarthritis, mainly of the medial compartment of the right knee.
12. The applicant was concerned that, in expressing that opinion, Dr Khoury was relying on clinical examination of his right knee. He considered that, in rejecting his claim for compensation, the respondent had placed more weight on that opinion than that of Dr Welsh who performed surgery on his knee. He also considered that Dr Welsh’s report should be accorded considerably more weight than that of Dr B Martin, another orthopaedic surgeon, who had provided a report at the request of the respondent dated 6 February 2003 (exhibit 2). His right knee was currently asymptomatic.
13. The applicant acknowledged that in his report of injury at T4/12 he stated that he felt his right knee “give” and that no reference is made to a “crack”, however he thought he heard or felt his knee crack and this is the description he provided to Dr Welsh.
14. Dr Welsh supplemented his written report of 19 December 2002 with oral evidence. He concluded in that report:
“Assuming that the findings at arthroscopy of 1984 were directly related to the incident of 1979, then that incident has a significant contribution to Mr Huhta’s current clinical condition. The mechanism of injury described to me is consistent with meniscal tear in the knee. I believe the incident of 1979 is a significant contributing factor to Mr Huhta’s current condition in his right knee.”
15. Dr Welsh stated that Mr Huhta’s symptoms related to osteoarthritis of right knee, primarily in the medial compartment but to a lesser degree in the patella femoral and lateral compartments. He acknowledged that osteoarthritis could occur independently of traumatic events.
16. Mr Huhta had provided him with a description of his symptoms and the treatment he had received in relation to his right knee. Mr Huhta had described the initial injury to him as a “crack” of some severity, and he was of the understanding that it was of a more severe nature than simply the knee giving way or twisting. He may have read Dr Bookless’ report. His understanding was that findings were made in 1984 of a torn medial meniscus, a horizontal tear with chondromalacia. Such findings were a precursor to arthritis. When he performed an arthroscopy in 1993, there was significant synovitis in the knee and further tearing of the medial meniscus.
17. His interpretation of the x-rays of March 1993 was that there was moderate to severe osteoarthritis in the medial compartment of the knee and the patello-femoral joint with numerous bony bodies. He believed that the applicant obtained good results from the procedures in 1984 and 1993.
18. Dr Welsh was aware of Dr Martin’s opinion that the event in 1979 was not a significant contributor to the applicant’s knee condition in 2002. However, he considered that the incident in 1979 was most likely the initiating event and that it played a major factor in the presentation of the applicant’s knee.
19. Dr Martin’s report and his oral evidence were to the effect that he considered that the applicant’s injury in 1979 was of a minor nature. X-rays taken on 3 December 2002 showed advanced medial compartment osteoarthritis with complete loss of joint space and subchondral sclerosis. He provided a diagnosis of osteoarthritis right knee joint. He had perused Dr Bookless’ report of 16 October 1984 in which he makes reference to horizontal cleavage tear of medial meniscus and chondromalacia affecting medial femoral condyle. He considered the condition of the condyle was not caused by trauma, but that it was attributable to a longstanding degenerative condition, which worsened as the applicant aged.
20. He considered the development of such a tear was not unusual, that it was degenerative in nature and that it was not associated with the type of injury described by the applicant. The development of such a tear in only one knee was also not of significance. He concluded that the applicant had progressive osteoarthritis affecting his right knee which was in no way associated with the injury in 1979.
Legislative Framework
21. This matter falls for consideration pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988, which states:
“Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.”
Consideration and Findings
22. The respondent referred to the reports of Mr Khoury and Dr Martin, who are both of the opinion that there is no causal connection with the applicant’s knee condition and the injury in 1979.
23. Mr Khoury’s report at T51/88 states:
“The relationship between this (his present condition) and his compensable condition is difficult to assess. This is due to the time lapsed since the original injury and the fact that traumatic injuries only serve to aggravate pre-existing arthritis and are not causal in themselves.”
24. He concludes:
“Given that Mr Huhta recovered from his original episode after the initial arthroscopy by Dr Bookless in 1983, I would expect that his present condition is related to a progression of arthritis and not the original injury.”
25. Dr Martin was of the same opinion and in forming that opinion, he had regard to the findings of Dr Bookless at arthroscopy in 1983. It is has not been suggested that the findings at arthroscopy in 1993 by Dr Welsh relate to the incident of 15 October 1979.
26. Dr Welsh’s opinion that the injury was contributory to the applicant’s knee condition (prior to knee replacement), was provided without the benefit of the comprehensive reports spanning the applicant’s treatment over many years, and for that reason, the respondent submitted that Dr Martin’s and Mr Khoury’s opinions are to be preferred. It was pointed out that Dr Martin considered a plethora of documents relating to the applicant’s medical history.
27. The Tribunal noted that, whilst Dr Welsh had provided recent treatment for the applicant’s right knee condition and that this should put him in a better position than other specialists who have not provided such treatment, his opinion is made on the assumption that the findings at arthroscopy in 1984 were directly related to the incident of 1979.
28. Dr Bookless’ report at T22/42, after arthroscopy, was of the view that the applicant’s right knee condition at that time was due to the injury on 15 October 1979. He related the description of that injury in the following terms (T18/38):
“stepping out of a lift and turning. This produced severe knee pain with a cracking in the joint”.
29. Dr Welsh referred to the history provided to him by the applicant as a “crunch” in the knee. The Tribunal notes Dr Welsh’s understanding that the injury was more than a simple twisting or giving way. Despite the fact that the injury is described in somewhat different terms in the claim, the Tribunal did not consider that such difference is so significant as to cast doubts as to the weight to be given to the opinions of Dr Bookless and Dr Welsh on that aspect.
30. The Tribunal also had regard to the argument that less weight should be placed on Dr Welsh’s report on the basis that it relied, to a considerable degree on the history given to him by the applicant. However, there is nothing in the report to suggest that Dr Welsh had not been given an accurate summary of events by the applicant.
31. The Tribunal considered all the other medical evidence before it which can be summarised as:
(i) the residual effects of the injury in 1979 ceased many years ago;
(ii) the injury was minor in nature; and
(iii) the applicant has suffered from osteoarthrosis, diagnosed as early as 1979, initially described as mild and gradually advancing in severity.
32. It also had regard to the fact that whilst Dr Martin was aware of the tear in the medial meniscus and resection, he did not consider that this contributed to the presence of advanced osteoarthrosis in the medial compartment.
33. Whilst according Dr Welsh’s opinion considerable weight, it is apparent that he has not had the opportunity to consider the plethora of contemporaneous opinions as to the status of the applicant’s knees. To that extent, his opinion is entirely reliant on the findings of Dr Bookless at arthroscopy, without regard to other material. The preponderance of medical opinion supports the view that the applicant’s right knee replacement is not attributable to the injury sustained in 1979.
34. That being the case, the Tribunal affirms the decision under review.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed: Nicca Grant
AssociateDate/s of Hearing 3 September 2003
Date of Decision 25 March 2004The Applicant appeared in person
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Sparke Helmore
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