John and Comcare
[2008] AATA 1019
•12 November 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1019
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600156-158
GENERAL ADMINISTRATIVE DIVISION ) Re JENNIFER SHIRLEY JOHN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr P A Staer, MemberDate12 November 2008
PlacePerth
Decision The Tribunal decides as follows:
Application No W 200600156
· The Tribunal sets aside the reviewable decision of the respondent dated 24 August 2005 and, in substitution therefor, decides that the respondent is liable under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) to pay compensation in accordance with s 19 of that Act to the applicant for incapacity for work in the period 1 – 5 November 2004 resulting from an injury, namely, anxiety and depression.
Application No W 200600157
· The Tribunal sets aside the reviewable decision of the respondent dated 27 April 2006 and, in substitution therefor, decides that:
- on and from 16 January 2006 to the present date, and as at the present date, the respondent continues to be liable under s 14(1) of the SRC Act to pay compensation in accordance with that Act to the applicant in respect of her right knee injury, namely, aggravation of degenerative patello-femoral arthropy with associated patellar subluxation;
- the respondent is not liable under s 14(1) of the SRC Act to pay compensation to the applicant in respect of her left knee condition.
Application No W 200600158
· The Tribunal sets aside the reviewable decision of the respondent dated 27 April 2006 and, in substitution therefor, decides that the respondent is liable under s 14(1) of the SRC Act to pay compensation in accordance with that Act to the applicant in respect of an injury, namely, a vaginal prolapse sustained by her in or about July/August 2005.
Application may be made to the Tribunal in relation to the costs of these proceedings within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant employed in Australian Taxation Office – applicant claimed compensation for mental condition, condition affecting knees and vaginal prolapse – applicant suffered anxiety and depression, bilateral patello-femoral arthropy and vaginal prolapse – applicant’s anxiety and depression a “disease” – applicant’s anxiety and depression not suffered as result of failure to obtain benefit – applicant’s anxiety and depression an “injury” – applicant’s right knee condition an “injury” – applicant’s left knee condition not an “injury” – applicant’s vaginal prolapse an “injury” – compensation payable to applicant for anxiety and depression, right knee condition and vaginal prolapse – compensation not payable to applicant for left knee condition – reviewable decisions set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4 and s 14(1)
Comcare v Ross [1996] FCA 1669
REASONS FOR DECISION
12 November 2008 Deputy President S D Hotop
Dr P A Staer, MemberIntroduction
1. Jennifer Shirley John (“the applicant”), who was born in December 1949, commenced employment in the GST Division of the Australian Taxation Office (“ATO”) in July 2000 and was employed, at all material times, as a GST Field Officer/Compliance Officer.
2. The applicant claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) in respect of a mental condition and a lower back condition. Comcare (“the respondent”) accepted liability under the SRC Act to pay compensation to the applicant in respect of her lower back condition and it subsequently extended its acceptance of liability to include a condition affecting her knees. The respondent, however, subsequently decided to cease the payment of compensation to the applicant in respect of her knees. The respondent also decided that it was not liable to pay compensation to the applicant in respect of a mental condition. Finally, the respondent considered whether it was also liable to pay compensation to the applicant in respect of a condition described as “vaginal prolapse” and it decided that it was not so liable.
The Issues and the Tribunal’s Determination
3. The issues for the Tribunal’s determination are whether the respondent is liable to pay compensation to the applicant in respect of a mental condition, a condition affecting her knees, and/or a vaginal prolapse condition.
4. For the reasons which follow, the Tribunal has determined that the respondent is liable to pay compensation to the applicant in respect of a mental condition, a right knee condition and a vaginal prolapse condition.
The Legislation
5. The relevant provisions of the SRC Act (as in force at all material times) are as follows:
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
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.
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
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.
…
(9)A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…
14 Compensation for injuries
(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.
…”
Section 16 of the SRC Act provides for the payment of compensation in respect of medical expenses incurred in relation to an “injury” (as defined in s4 (1)), and s19 provides for the payment of compensation for incapacity for work resulting from such an injury.
The Evidence
6. The evidence before the Tribunal comprised:
·the “T Documents” lodged by the respondent in accordance with s37 of the Administrative Appeals Tribunal Act 1975 (Cth) in respect of Application No W200600156 (T1-T65, pp 1-154), Application No W200600157 (T1-T68, pp 1-214), and Application No W200600158 (T1-T16, pp 1-82);
·Exhibits A1-A11 tendered by the applicant;
·Exhibits R1-R11 tendered by the respondent;
·the oral evidence given by the following witnesses:
-the applicant, and Mr T Robinson, Mr J Taylor, Dr D Watson, Dr P Nugawela and Professor C Michael (who were called by the applicant); and
-Dr J Charkey-Papp, Mr M Alexeeff, Dr V Chapple, Mr P Wan and Mr I Dunn (who were called by the respondent).
The applicant’s evidence
7. The applicant tendered in evidence her signed Outline of Evidence, dated 26 March 2008, as follows:
“1I was born on … December 1949 and was at all material times employed on a full-time basis as a GST Field Compliance Officer at the Australian Taxation Office (ATO).
2My duties include attending clients, ensuring clients’ compliance with GST regulations and preparing reports. I work both at home and at the ATO in Perth.
3In approximately October 2004 in the course of my employment I attended a meeting at work organised by our Team Leader. The meeting took place approximately 3.5 months after I underwent surgery to remove both my adrenal glands.
4At the meeting my Team Leader advised me that I was no longer able to work from home and that I must work at the office on a full-time basis. The Team Leader requested that I obtain a medical certificate from my doctor stating how many days I was able to work at the ATO building in Perth and if it did not amount to full-time hours, I would have to reduce my hours to those which the doctor certified me fit to work at the ATO.
5I became very worried and anxious over this as I knew that I was not able to work full-time in the office and any reduction in my hours would reduce my income and place me under considerable financial strain.
6As a result of the stress I was suffering I attended my General Practitioner and was advised to take 2 weeks off work and provided me (sic) with anti-depressant medication.
7I took five days of sick leave, but did not take the anti-depressant medication. I also attended a Clinical Psychologist.
8When I returned to work I requested a transfer to another team. I was subsequently appointed to a different team with a different Team Leader.
9I did not require any further time off work as a result of work-related stress. On 28th April 2005 I brought a bag containing my laptop computer and client files to work.
10In order to unpack my bag, I had intended to lift it onto my work chair. I reached down to lift my bag and held onto both handles as I lifted the bag. As I did so I experienced a severe pain in my lower back. I immediately dropped my bag due to the pain in my back.
11I asked a work colleague to assist me in lifting the bag onto my chair so that I could unpack it. I explained that I was unable to lift my bag due to the pain in my lower back.
12Once I had unpacked my bag I sat down at my desk and attempted to work. It was very uncomfortable to sit down due to the pain in my back.
13I experienced pain and discomfort when standing and I experienced unbearable pain when I attempted to walk. I also noticed a twitch in my right knee when I attempted to walk, but I did not think much of it at the time due to the overwhelming pain to my lower back.
14I consumed painkillers and rang my Osteopath in order to make an appointment as I felt that I needed to obtain urgent treatment to my back. The first available appointment with the Osteopath was in the afternoon, so I decided to attend the morning meeting at the office.
15As I sat in the meeting I felt as though I was going to lose consciousness due to my cortisone levels becoming depleted as a result of my back pain. I took some cortisone tablets to counteract this.
16Following the meeting I continued to attempt to work. I did not believe I was in any position to leave the office as I was not able to walk and I felt that I would not be able to drive as my back pain was unbearable.
17In the afternoon a work colleague drove me to the Osteopath and I underwent manipulation of my back. I did not attend my General Practitioner at this stage.
18After attending the Osteopath my pain and mobility improved but did not abate.
19I returned to work but I experienced discomfort when sitting down for lengthy periods or standing. I left work early.
20In the two weeks following my accident I attempted to work from home as much as possible. However, due to the pain in my back I frequently had to reduce the number of hours that I was working. I continued to attend the Osteopath and underwent 4 treatment sessions before I was able to walk unassisted. I continued to take pain medication and extra cortisone.
21I believed that it would be more beneficial for me to attend the Osteopath rather than Dr Nugawela. I believed that Dr Nugawela would only have referred me to the Osteopath or Physiotherapist in any event.
22As I continued to experience difficulty driving and sitting for lengthy periods of time I did not attend my General Practitioner, Dr Nugawela until 2 weeks after my accident.
23When I attended Dr Nugawela he referred me to a Physiotherapist and I commenced physiotherapy treatment. However, the physiotherapy treatment seemed to aggravate my back pain. I informed my physiotherapist of this and he advised me to resume swimming pool based walking exercises.
24In the course of exiting a swimming pool, having completed my recommended water based exercises, I experienced a pain in my right knee.
25Prior to this I had noticed that my knees seemed to be moving when I walked however due to the overwhelming pain to my back, I did not take much notice of the pain to my knees.
26My knees continued to feel like they were moving out of place and each time I experienced this sensation I also experienced a sharp pain in my knees.
27The following week I attended the swimming pool and experienced a sharp pain in my left knee whilst in the pool.
28I subsequently attended my General Practitioner and informed him that I was experiencing pain in my knees. I was referred for x-rays of both knees and upon viewing the films my General Practitioner referred me to Mr Robinson, an Orthopaedic Surgeon.
29Mr Robinson suspected that I had maltracking of the patellas in both knees and referred me for an MRI scan, which confirmed his diagnosis.
30Mr Robinson referred me for physiotherapy treatment on my knees. The Physiotherapist provided me with manual treatment, taped my knees and instructed me on exercises to perform. However, after several months of treatment my knees had not improved.
31I was advised by Mr Robinson that I required surgery in order to correct the maltracking of my knees.
32Due to the residual effects of my Cushing’s disease, the surgery would be more complicated. Four operations would be required, two on each knee. Mr Robinson advised that I would require 6 weeks off work following each operation.
33I was not able to have the surgery as I could not afford to have the time off work. My knee condition has continued to deteriorate. I have been provided with shoe inserts and a knee brace, however neither assisted my condition and I have had to cease using the knee brace as it caused me great discomfort.
34My back pain continued to cause me discomfort but the type of pain that I was experiencing changed from a sharp pain to a constant dull ache.
35In July 2005 my General Practitioner referred me to a Neurosurgeon as the pain to my back had not resolved.
36I continued to attend my Physiotherapist for treatment and to use pain relief medication. I did not take any time off work.
37In approximately June or July 2005 I began to experience abdominal discomfort and difficulty emptying my bowel and bladder. I thought that the discomfort would go away, but it did not. In August 2005 I felt a large lump protruding externally from my vagina.
38I attended my General Practitioner the following day and he referred me to a Gynaecologist.
39The first available appointment I could obtain with my Gynaecologist was in October 2005. My Gynaecologist confirmed that I was suffering from a vaginal prolapse and I underwent surgery in November 2005 to correct the condition.
40Following the surgery I required 6 weeks off work and my back pain resolved.
41I returned to work in January 2006. Due to my back and knee pain the ATO had provided me with a trolley so that I would be able to slide my bag from the boot of my car onto the trolley without having to lift the bag.
42In approximately January 2006, I was sliding my bag from the car onto the trolley when I experienced a pain to my back.
43The following day I noticed that both mucus and blood were coming from my bowel. I reported the incident to my employers as I thought that the sliding action I used to remove my bag from my car had caused me to split my stiches.
44The bleeding and mucus continued for approximately 4 months. I attended my Gynaecologist who examined the area which had been operated on and advised that it was fine. He advised me to return to my General Practitioner and get a referral to a Bowel Specialist.
45In February 2006 I attended my General Practitioner who referred me for a Barium Enema. Unfortunately the test did not show the position of the bowel.
46In April I attended a bowel specialist who referred me for a colonoscopy.
47I was then referred to another specialist who advised that a second prolapse had occurred. I was referred back to my Gynaecologist.
48In approximately June or July 2006 I began to experience pain in my lower back.
49In October 2006 I underwent surgery to correct the prolapse. Following the surgery the pain to my back resolved and I returned to work approximately 6 weeks after the operation.
50As a result of my work injuries and the pain in my back I experienced discomfort sitting for lengthy periods of time and have had to avoid bending and lifting as such actions aggravated the pain in my back.
51I also required assistance performing domestic duties in my home for approximately 6 weeks following both operations, as I was unable to clean my floors, hang out my washing or change my sheets.
52Following both operations I was unable to drive for a period of approximately 4 weeks.
53I continue to experience pain to my knees when I stand up or sit down. I also experience pain to my knees when climbing stairs. The pain in my knees has slowed me down.
54My work injuries have restricted my ability to play with my grandson, as I am unable to kneel down on the floor and play with him.” (Exhibit A1)
8. In the course of her oral evidence the applicant demonstrated her bodily movements in the lifting incident of 28 April 2005 referred to in paras 9-10 of her above Outline of Evidence. She indicated that she bent forward and reached down to grasp the handle of the bag and as she commenced to lift the bag she felt severe pain in her lower back and immediately dropped the bag. She did not indicate that she performed any squatting or twisting movement in the course of that incident. She added that, in that incident, she also felt a “twinge” in her knees and a “clicking” in her kneecaps towards the outside of her knees.
The evidence of the medical witnesses
Dr Patrick Nugawela
9. Dr Nugawela said that he has been practising as a general practitioner since 1976 and that he has been the applicant’s general practitioner for approximately 30 years.
10. In his oral evidence Dr Nugawela confirmed that:
· in 1996 he treated the applicant for “psychiatric distress” and his treatment comprised counselling, and anti-depressants, relaxants and hypnotics for up to 6 months;
· from 1996 to late 2004 he was not aware of the applicant’s having any psychological problems which required treatment;
· he saw the applicant on 29 October 2004 when she referred to “problems re work”;
· he next saw her on 2 November 2004 when she presented as “teary” and with symptoms of anxiety and depression, and he prescribed Aropax (an anti-depressant) but she was “not keen to take it” and he certified her as unfit for work for the period 1-5 November 2004;
· he next saw her on 5 November 2004 when he noted that her depression had diminished but that her anxiety had increased;
· although her depression had reduced at that time it was, in his opinion, still “within the clinical range” for a diagnosis of depression;
· he has not subsequently treated her for depression or anxiety;
· in relation to the applicant’s knees, on 4 January 1989 he noted that her left knee/leg was normal but that there were some signs of femoral patellar osteoarthritis in the right knee/leg;
· from 1989 to 28 April 2005 the applicant did not consult him about problems or pain in either of her knees;
· on 3 May 2005 he saw the applicant in relation to a back injury sustained on 28 April 2005 [the Tribunal notes that on that date he issued a “Workers’ Compensation FIRST Medical Certificate” in respect of “back strain” (T4 (W200600157))];
· he noted that the applicant subsequently had a CT of the lumbar spine and the right knee which showed, in relation to the right knee, patello-femoral osteoarthritis [the Tribunal notes a report of a CT arthrogram of the right knee and a CT of the lumbar spine, dated 24 May 2005, addressed to Dr Nugawela in relation to clinical details described as “Lower back pain. Some pain in right knee.” (T9 (W200600157))];
· prior to 28 April 2005 he had not treated the applicant for, or had any cause to be concerned about the applicant’s having suffered, a vaginal prolapse;
· on 18 August 2005 he saw the applicant and noted that she had suffered “a 2nd degree utero-vaginal prolapse, secondary to lifting”.
Mr Tony Robinson
11. Mr Robinson, Orthopaedic and Knee surgeon, first saw the applicant, following a referral by Dr Nugawela, on 13 June 2005 and he provided a report of that date to Dr Nugawela as follows:
“ …
HISTORY:
Jenny sustained a twisting injury to her right knee whilst at work at the end of April 2005. The patient was lifting a heavy case on to a chair when she experienced significant back pain and mild right knee pain.
Subsequently the back pain has diminished but the patient has developed increasing right knee pain and three weeks ago, left knee pain.
PRESENT SITUATION:
Jenny is complaining of anterior bilateral knee pain which occurs with twisting and attempting to squat, kneel, and go up and down stairs.
There are no abnormal mechanical symptoms.
Prior to the accident Jenny did not have any problems with either knee.
INVESTIGATIONS:
A CT arthrogram revealed some mild to moderate osteoarthritis in all three compartments of the right knee.
EXAMINATION:
On examination there is a small effusion on the right side.
In both knees I noted tenderness with palpation of the medial joint line, lateral joint, and with the patellar grind test.
The rest of the examination was normal except for some lateral joint line, laxity on both sides.
DIAGNOSIS:
The diagnosis is most likely patellar maltracking and osteoarthritis of both knees. The differential diagnosis is a torn medial meniscus in both knees.
RECOMMENDATIONS:
I have organized Jenny to have some physiotherapy in the form of McConnell’s exercises. She will have an MRI of her right knee.
..” (T13 (W 200600157)).
12. On 28 June 2005 Mr Robinson reported to Dr Nugawela that the MRI showed “significant damage to the retropatellar area of the left (sic) knee” and “evidence of patellar maltracking”, and that he had arranged for the applicant to have a “patellar skyline CT scan” (T19). On 19 July 2005 Mr Robinson reported to Dr Nugawela that the patellar skyline CT scan showed “significant patellar tilting with muscle contraction, patellar subluxation on both sides” (T25 (W 200600157)).
13. On 30 August 2005 Mr Robinson wrote to the respondent conveying his recommendation that the applicant undergo “left and right patellar re-alignment of her knees” (T35). In response to a request by the respondent for a “detailed report” on the applicant, Mr Robinson provided a report, dated 19 September 2005, as follows:
“ …
As I have already mentioned in my previous letter, Ms John should undergo a right knee arthroscopy, chondroplasty, and probable lateral release procedure. The patient should then have a tibial osteotomy to re-align the patella.
A similar procedure would need to be carried out three months later on her left knee.
The precise diagnosis is retropatellar chondral damage of both knees and significant patellar maltracking. The latter is seen clinically and also on the patellar skyline CT scan …
With regard to your 2nd last question, the effects of the condition has (sic) not ceased and in fact have persisted despite appropriate and adequate conservative treatment. The latter has consisted of an exercise programme and strapping.
Ms John has been able to continue with her job for the Australian Tax Office. However she experiences knee cap pain on both sides with twisting of the knee joint. She also experiences pain when attempting to squat, and go up and down stairs.
Thus the patient is significantly limited from the point of view of her work when she has to go up and down steps. She is also significantly limited from the point of view of outside everyday duties.
With regard to your other itemized enquiries, I will answer them as stated:
1.Ms John squatted and twisted in order to lift a heavy case at work on April 28, 2005. The case contained files and a laptop. She was lifting the heavy case off the ground and on to a nearby chair.
The patient experienced low back pain and right knee pain.
The low back pain subsequently diminished but the right knee pain increased, especially in late July when Ms John was carrying out a hydrotherapy programme. The patient was climbing a ladder in order to come out of the water when her right knee pain significantly increased.
Furthermore, Ms John developed left knee pain in July when carrying out exercises in the water.
2.The patient is suffering from bilateral anterior knee pain, worse on the right than the left. Her condition is due to patellar maltracking and retropatellar chondral damage.
The damage behind the knee cap was probably present before the accident at work. However it was asymptomatic. When the patient squatted and twisted then this caused the previously asymptomatic condition of the knee cap to become problematic.
Thus the aetiology of the patient’s pain is the accident which occurred at work on April 28, 2005. The pain in her left knee is due to carrying out exercises in the water when undergoing supervised rehabilitation.
The patient’s symptoms is (sic) pain at the front of the knee which occurs with twisting. Ms John avoids squatting, kneeling, and going up and down steps.
On examination of both knees I noted a small effusion on the right side. There is tenderness with palpation of the joint lines and with the patellar grind test.
The rest of the examination was normal.
The history and signs are consistent with anterior knee pain due to chondral damage of both patellae.
3.a. I believe that on the balance of probabilities the patient’s knee problems are due to the accident when working with the Tax Department in April 2005.
b. There is some previous damage to the kneecaps of both knees. However, Ms John did not have any prior problems with her knees. Thus I believe that the accident has caused the previously asymptomatic knee cap problems to become symptomatic.
c. I do not think the patient’s problem is the natural progression of the underlying condition.
d. There are no other health issues.
e.I do not think there is any other aspect of the patient’s Commonwealth employment which would attribute (sic) to the condition.
f.I believe that the patient does not have factors unrelated to work which are causing the problem. Ms John has injured her left knee but this has occurred whilst she was undergoing treatment for both knees in the hydrotherapy pool.
g.I do not think the patient’s problem is due to any underlying degeneration due the natural aging process.
3.3.1 Ms John squatted and lifted a heavy weight off the floor and on to a chair. She twisted whilst doing so and this not only caused pain in the front part of her knee joint, but also would have caused stress on the tracking of the kneecap as she stood up. This occurred in April 2005 when the patient was at work with the Australian Tax Department.
3.2I do not think the condition which was contributed to by the patient’s employment with the Commonwealth has ceased.
3.3I do not believe that the initial compensable condition has been superseded by a different condition. There is still the same pain the patient initially experienced in her right knee. There is an extra added pain of similar nature in her left knee. This is due to the exercise programme which the patient has undergone in the form of hydrotherapy.
4. …
5.Ms John has been able to work in a normal capacity with the Australian Tax Department. However she has to avoid twisting, kneeling, squatting, and going up and down stairs. By doing this she has managed to continue with her office work and meeting clients.
It is my belief that the patient is able to perform these duties in a modified capacity on a full time basis.
…”(T39 (W200600157), pp 91-93)
14. Mr Robinson subsequently provided a report dated 27 November 2006 and a report dated 6 February 2008 to the applicant’s solicitors (Exhibits A2 and A3, respectively). In his report of 6 February 2008 Mr Robinson noted that (inter alia) the applicant:
· has not undergone any form of operative intervention in respect of her knees;
· last had physiotherapy in 2005 and hydrotherapy in June 2006;
· reported an increase in the pain in both knees which she felt occurred “spontaneously” or because of a lack of recent treatment.
He also stated:
“I would anticipate that the patient would need to undergo a tibial tubercle osteotomy on both knees in the foreseeable future in order to realign the patellae. However, I do not think this is indicated at the present as she is able to cope with her work duties.”
15. In his oral evidence Mr Robinson acknowledged that the reference to the applicant’s having “squatted” and “twisted” in his description of the lifting incident of 28 April 2005 in his abovementioned reports was based on an “assumption” by him. He also reiterated his opinion that the applicant’s right knee symptoms result from the lifting incident of 28 April 2005 whereas her left knee symptoms result from water-walking exercises or hydrotherapy in which she was previously engaged.
Mr Michael Alexeeff
16. Mr Alexeeff, Consultant Orthopaedic Surgeon, examined the applicant on 10 July 2007 at the request of the respondent’s solicitors and he subsequently provided a report dated 14 August 2007 and a report dated 12 September 2007 to those solicitors (Exhibits R6 and R7, respectively).
17. In his report of 14 August 2007 Mr Alexeeff set out the applicant’s history in the course of which he referred to the lifting incident of 28 April 2005 as follows:
“This lady advised that she injured herself at work on 28/04/2005 (date of injury). She advised that she sustained injury to her lower back and knees. Specifically, she had arrived at work and in the office, in the process of lifting her case onto a chair so that she could unpack it, with this presumably similar to the case that you provided, she described sudden onset of severe back pain. She described it ‘like a pinched nerve’. She could hardly walk. She stated that she took a painkiller (Advil) but this provided no help. At a subsequent meeting, she ‘nearly collapsed’. She took some Cortisone. She then rang and made an appointment with an osteopath whom she had seen previously, for later the same day. She indicated she required 4-5 treatments before she noted some improvement in her back symptoms.
She advised that she also injured her right knee. She described knee pain with ‘abnormal’ patellar movement. She described a sensation of ‘popping in/popping out’. She denied swelling, insecurity or any knee locking. There was no subsequent swelling.
In respect of the left knee, she described an ‘odd sensation’. Despite all this, she kept working. She indicated that she was able to work from home.” (original emphasis)
He subsequently commented on matters specifically put to him by the respondent’s solicitors regarding the applicant’s bilateral knee condition as follows:
“ Question 1
A history of the applicant’s pre-injury medical condition, injuries or accidents and employment.
This lady provided no pre-injury history of any medical condition, injuries or accidents with regard to her employment or otherwise, with respect to the knees. Indeed, she advised herself in correspondence enclosed, that there were no symptoms.
…
Question 3
What is your diagnosis of the applicant’s condition?
This lady suffers from patello-femoral arthropathy. This is a degenerative pathology. In my opinion, she likely aggravated pre-existing degenerative arthropathy of the patello-femoral joint at the time of her injury.
…
Question 6
On the balance of probabilities, did the applicant’s employment with the ATO make a material contribution to the applicant’s condition?
On the balance of probabilities, the abovenamed’s employment with the ATO has made no material contribution to her clinical state in respect of the knees.
…
Question 8
The applicant’s fitness for pre-injury occupation or duties.
Given that her vocation is ostensibly of a sedentary nature (clerical), in my opinion, her fitness for pre-injury occupational duties is unencumbered.
Question 9
What, if any, future treatment the applicant should undergo?
There is no specific future treatment that the applicant should undergo. If symptoms become unrelenting and pathology progressive, she will however inevitably seek further treatment. Initially, this may be of a non-operative nature. I note that no injections have been undertaken. Whether she would respond to steroid injection into the knee joint given that she currently medicates with steroid medication, is problematic. I can see no logical reason why an injection of long acting steroid could not be trialled into the knee joint. This might be more of an issue in respect of the left knee with there (sic) was evidence of suprapatellar pouch swelling, indicative of a degree of suprapatellar pouch synovitis.
Simple analgesia may suffice to control symptoms. There may be a case for non-steroidal anti-inflammatory agents. Failure of non-operative treatment will inevitably lead to consideration of surgical treatment.
Surgical treatment of patello-femoral arthritis is controversial. Arthroscopic debridement on its own, usually provides short term relief only. Although athroscopic chondroplasty, lateral release and tubercle realignment has been advocated, this approach in the medical literature, has limited outcomes. I would add that patella mobility appeared satisfactory with Insall’s test indicating at least 2cm medial translation. In other words, the lateral retinaculum is not tight. The place for tubercle realignment (Fulkerson procedure) in this setting, has variable outcomes. In addition, this lady displayed no evidence of tubercle lateralization. In her circumstances, tubercle elevation without medialisation has been described (Maquet procedure) in the medical literature. This procedure has variable outcomes reported in the treatment of advanced patello-femoral arthritis but has met with some success in my practice.
More recently, dedicated patello-femoral arthroplasty has become available. This might be a more definitive procedure to consider when circumstances dictate.
Once tri-compartmental arthritis becomes established, with failure of non-operative and other measures, total knee arthroplasty would become indicated.
…
Question 11
The nature and extent of any disabilities caused by those injuries. How long each of the disabilities lasted or will last?
This lady possibly aggravated pre-existing pathology in respect of particularly the right knee. Left knee symptoms were not a feature initially. This may have been caused by the lifting event. The lifting event did not lead to patello-femoral arthritis. The arthritis appeared pre-existing.
In the presence of degenerative pathology, there is no hope for cure, only symptom suppression. In that regard, the pathology will remain until such time as it is more actively treated by joint replacement or arthroplasty.
Question 12
The prognosis of the applicant’s work related condition, if any.
In my opinion, the prognosis in respect of the abovenamed’s work related injury is optimistic. She simply aggravated pre-existing pathology. With avoidance of inappropriate activities, she may find that symptoms are manageable or indeed settle.
…” (original emphasis)
18. In his report of 12 September 2007 Mr Alexeeff responded to a further question asked of him by the respondent’s solicitors as follows:
“…
Question 2
If you assume that the applicant did aggravate her pre-existing bilateral knee condition during the lifting incident on 28 April 2005 – was the aggravation of the applicant’s pre-existing degenerative knee condition permanent or temporary? If the aggravation was temporary, please state (if possible) approximately when you believe the effects of the aggravation ceased and the reasons for your opinion.
In respect of knee symptoms, knee symptoms did not commence initially but developed subsequently. This may be because back symptoms predominated.
…
In my opinion, any effect from the accident would have been temporary. Given that this lady remains symptomatic, in my view her symptoms likely reflect the presence of ongoing patello-femoral arthropathy. In my view, any accident effect has resolved.”
Professor Con Michael
19. Professor Michael, Gynaecologist, provided a report, dated 27 October 2005, to the respondent as follows:
“I should like to inform you that Ms Jennifer John was referred to me on 03 October 2005 by her general medical practitioner, Dr Patrick Nugawela.
I saw her in consultation on 12 October 2005 when she gave a history of vaginal prolapse of 2 months duration. She related this to repetitive heavy lifting at work but she states that the problematic heavy lifting occurred on 28 April 2005. Since then she has had backache and then subsequently the vaginal prolapse occurred. She finds she is unable to empty her bladder or bowel completely and has a sensation of prolapse which persists.
Her past history includes a hysterectomy undertaken when she was aged 35 years.
On clinical examination there was no abnormality of the abdomen. A small cystocoele and a moderately large rectocoele were present but the vaginal vault was well supported and no vault prolapse was present. There was no other pelvic abnormality.
I advised that she required an anterior and posterior vaginal compartment repair.
…
It is always difficult to relate the occurrence of vaginal prolapse to an injury, particularly heavy lifting. There is however a cause and effect relationship and the evidence in this situation would suggest that the vaginal prolapse occurred as a result of the heavy lifting episode on 28 April 2005. Prior to this there had been no history of vaginal prolapse.
…” (T6 (W200600158))
20. In response to a request by the respondent, Professor Michael provided a further report, dated 7 November 2005, as follows:
“I write in reply to your letter dated 02 November 2005 seeking further information in relation to the occurrence of her vaginal prolapse as a result of repetitive heavy lifting at her place of work on 28 April 2005.
I will respond to the questions as listed in your letter.
…
2. … The employee suffered some vaginal prolapse which has caused her discomfort and inability to empty her bladder and bowel completely. Causative factors in vaginal prolapse are increasing intra-abdominal and pelvic pressure as the result of heavy lifting and heavy exertion. Given that her symptoms occurred following the 28 April 2005 there appears to be a relation between her heavy lifting and the occurrence of the prolapse.
3. It seems likely that the occurrence of the vaginal prolapse is related to the incident on 28 April 2005. There does not appear to be a pre-existing congenital or underlying condition that would contribute to the employee’s symptoms.
The natural progression of the condition is usually one of increasing symptoms and increasing clinical findings of prolapse, although the timing of progression cannot be estimated.
…
Vaginal prolapse can occur as a result of the natural ageing process and is more common in older women. However it would be difficult to exclude the incident on 28 April 2005 as being the precipitating factor.
4. Providing no heavy lifting is undertaken I could see no reason for the employee’s Commonwealth employment not to continue. It may not adversely affect the vaginal prolapse. …
5. The initial precipitating condition on 28 April 2005 has ceased and no further episode is evident.
6. I am unaware of the employee’s initial compensable condition being superseded by a different condition. I am not qualified to comment on the effect of the Cushing’s Syndrome.” (T8 (W 200600158))
21. In his oral evidence Professor Michael said that he performed vaginal repair surgery on the applicant on 23 November 2005. He added, however, that the applicant subsequently suffered a further prolapse and he then referred her to Dr John Taylor, Urological Surgeon, for prolift mesh repair surgery.
22. He initially reiterated that it was difficult to dissociate the applicant’s first vaginal prolapse from the lifting incident of 28 April 2005, but he subsequently expressed the opinion that it was probably repetitive lifting, including the lifting incident of 28 April 2005, rather than that incident alone, which precipitated that vaginal prolapse. As regards the applicant’s second vaginal prolapse, he confirmed that it was situated above the site of the first repair and opined that any number of factors may have contributed to its occurrence.
Dr John Taylor
23. Dr Taylor, Urological Surgeon, first saw the applicant, on referral from Professor Michael, on 15 September 2006 in relation to a recurrent vaginal prolapse. In a report to the applicant’s solicitors dated 22 November 2006 (Exhibit A7), Dr Taylor noted that, on examination of the applicant on 27 September 2006, a large rectocoele was found and, on 11 October 2006, he performed a prolift mesh repair of the rectocoele which, on subsequent examination, was found to be successful. As regards the cause of the applicant’s recurrent rectocoele, he opined that it was probably a consequence of tissue weakness owing to her taking cortisone for her Cushing’s disease condition. In a subsequent report to the applicant’s solicitors dated 17 May 2007 (Exhibit A8), however, Dr Taylor reiterated that opinion but added:
“The rectocoele could have been exacerbated by an episode of heavy lifting in the course of Mrs John’s employment on 28.04.05.”
Dr David Watson
24. Dr Watson, Consultant Physician, examined the applicant on 15 November 2005 at the request of the respondent and subsequently provided a report, dated 23 November 2005, as follows:
“ …
HISTORY:
Occupation/Work Duties:
Ms John has worked for the Australian Taxation Office since May of 2000. Her duties involve assessing clients for compliance with taxation law and, in particular, the GST. She uses a bag on wheels, the size of a typical carry-all bag used as cabin baggage. In that she usually carries files and a laptop computer. The weight, I understand, varies from 6-12kg.
She works from home three days per week and in her office two days per week. She has to lift this heavy bag into and out of the boot of her car and until the time of her injury on 28 April 2005, she would wheel the bag from her car into her office or home, where she would lift it up onto a chair. It was easier for her to unpack the bag when it was on a chair than to do it on the ground.
Depending on what she was doing, she might have to lift the bag into or out of the car or up to and off a chair several times per day.
When going out to clients, she did not use the heavy bag, but had a smaller carry-case for the files she needed and her laptop computer.
She also has some relevant past history. In November 2001, she was finally diagnosed as having Cushing’s disease due to an ACTH secreting pituitary tumour. …
…
Mechanism of Alleged Injury/Sequence of Events
On 28 April 2005, Ms John apparently lifted her case of files and computer onto a chair in the office and immediately experienced severe back pain and some pain in her knees.
Initial/Early Treatment Received:
She attended an osteopath that day and had some treatment for her back over the next three or four days, with some improvement. She then became more aware of pain in her knees.
She was finally diagnosed as having problems with the tracking of her patellae which were tending to sublux sideways.
Subsequent Progress/Specialist Management:
She was referred to Dr Tony Robinson, Orthopaedic Surgeon, and underwent a CT arthrogram of the right knee, a CT of her lumbar spine (24 May 2005), an MRI of her right knee (26 June 2005) and plain X-rays of both knees and CT scans of the knees (5 July 2005).
During the course of July and early August, Ms John was aware of some problems with her bowels. These were characterised by a sense of incomplete emptying. At the same time she was aware that urine flow from her bladder through the urethra was also somewhat slower. She did not have urinary retention.
In August of 2005, after drying herself following a shower, she became aware of ‘a lump’ in her vagina. She sought advice from her family physician, who then referred her to Professor C A Michael, who confirmed the diagnosis of a prolapse characterised by both a small cystocele anteriorly and a moderately large rectocele posteriorly. Professor Michael is planning a pelvic floor repair and surgical correction of the prolapse in St John of God Hospital, Subiaco, on 23 November 2005.
I note that Ms John had undergone a hysterectomy in the mid-1980s, without removal of her ovaries. She had also had two successful and uneventful pregnancies in 1975 and 1976 and has had no other known gynaecological problems.
…
SUMMARY AND ASSESSMENT:
In response to the specific questions outlined in your letter of 2 November 2005:
1. The history of the employee’s condition as reported to you.
In my view, on the balance of probabilities the vaginal prolapse has arisen as a result of the lifting of her heavy bag. She said that this is the only heavy lifting she normally does. It is probable that this was related to the events of 28 April 2005, notwithstanding the fact that she only became aware of the prolapse in August, although she had symptoms for at least a month before that.
2. From what specific condition does the employee currently suffer?
*Please provide a short description of the condition including its known aetiology and progression.
* Please include clinical signs and symptoms to support your conclusions.
The problem with Cushing’s disease (arising from an ACTH secreting pituitary tumour) or Cushing’s syndrome (as a result of either Cortisol secreting adrenal tumours or the administration of excess doses of exogenous cortisone-related drugs) is that one of the characteristics of the presentation is muscle weakness. This is usually permanent even if the condition is completely corrected.
In that context, Cushing’s disease as it affected Ms John, by virtue of the fact that it weakens all muscles including the pelvic floor muscles can be a contributing factor to the development of a vaginal prolapse. This is more likely to occur in the context of heavy lifting. However, vaginal prolapse also occurs with the efflux of time and is perhaps more likely to occur in older women who have undergone previous gynaecological surgery, including hysterectomy.
In that context, Ms John’s Cushing’s syndrome is a contributing factor to her vaginal prolapse.
…” (T49 (W200600157))
Dr Vince Chapple
25. Dr Chapple Consultant Obstetrician and Gynaecologist, prepared a report, dated 15 March 2006, regarding the applicant at the request of the respondent. In that report Dr Chapple confirmed that he had been requested by the respondent to prepare his report on the basis of documentation provided to him by the respondent for that purpose and without seeing or examining the applicant.
26. In his report Dr Chapple stated:
“ …
Summary of History/Chronology and Other Relevant Facts:
Ms John is a 56-year old woman. Her past medical history includes two vaginal births (it is unclear when these births occurred and by what means delivery was achieved), a hysterectomy aged 35 years, surgery for ovarian cysts and a diagnosis and subsequent treatment of Cushing’s disease secondary to an ACTH secreting pituitary tumour in November 2001.
…
On 28 April 2005 at approximately 8.45am on arriving at work Ms John injured the lower left side of her back when lifting a trolley weighing somewhere between 6 and 12kg from the floor onto her desk. As a result of this injury she found it necessary to leave work and seek medical attention, which she received from an unnamed osteopath. She was subsequently treated and investigated for orthopaedic injuries by Dr Patrick Nugawela her general practitioner and subsequently Dr Tony Robinson.
On 3 October 2005 Dr Nugawela referred her to Professor C A Michael for a gynaecological opinion with regard to urinary and bowel symptoms and sensation of a vaginal lump, related to a vaginal wall prolapse. Professor Michael saw Ms John on 12 October 2005. He wrote a report dated 27 October 2005 in which he stated that the onset of her vaginal prolapse was two months prior to his consultation. Professor Michael’s examination findings were of a small cystocele and a moderately large rectocele with a well-supported vaginal vault, for which he recommended corrective surgery with an anterior and posterior vaginal repair. The history provided by Professor Michael with regard to the onset of symptoms is further expanded in Dr David Watson’s report dated 23 November, where he recorded that prolapse symptoms developed ‘during the course of July and early August’. Dr Watson further stated that Ms John became aware of a lump in her vagina in August 2005.
Assessment:
In answer to your specific questions with regard to this case:
1.The likelihood Ms John suffered vaginal prolapse as a result of the accident (on the balance of probabilities) taking into account the delay between the accident and Ms John first becoming aware of the prolapse?
In my opinion it is unlikely (on the balance of probabilities) that Ms John suffered vaginal prolapse as a result of the workplace injury she sustained on 28 April 2005.”
Dr Chapple then explained the basis for that opinion. He noted that pelvic organ prolapse is usually a multi-factorial condition arising as a result of damage to pelvic organ supports through excessive load bearing brought to bear on those supports either chronically or acutely. In the case of the applicant, Dr Chapple opined that the factors likely to have had a causal relationship to her developing prolapse were as follows:
· reduction of connective tissue strength as a result of the applicant’s menopausal condition and her Cushing’s disease;
· pelvic floor muscle weakness resulting from her Cushing’s disease;
· connective tissue damage as a result of her having previously undergone two vaginal births and a hysterectomy.
He added that chronic repetitive straining when lifting her heavy trolley may also have been a causal factor. He concluded:
“In my opinion there is no single material cause for Ms John’s pelvic organ prolapse. Because of the significant temporal distance between the injury and the development of associated symptoms I consider that on the balance of probabilities the accident has had a minimal contributory effect.”
27. In a subsequent report, dated 18 September 2007, addressed to the respondent’s solicitors (Exhibit R8), Dr Chapple generally reiterated the opinion expressed in his earlier report. As regards his earlier reference to “chronic repetitive straining”, however, Dr Chapple stated:
“ … on reflection I believe lifting her trolley a couple of times at the beginning of the day and a couple of times at the end of the day probably would not constitute a chronic repetitive strain which I would consider more likely to be something that was occurring several times in the hour throughout the day such as a chronic cough, chronically raised intra-abdominal pressure from moving in association with obesity and repeated bending over. The movement of her trolley to and from work probably represents no more strain than other activities of daily life.”
Dr Julia Charkey-Papp
28. Dr Charkey-Papp, Consultant Psychiatrist, examined the applicant on 6 December 2006 at the request of the respondent’s solicitors and subsequently provided a report dated 27 February 2007 (Exhibit R3). In that report Dr Charkey-Papp set out the applicant’s relevant history as follows:
“ HISTORY AND BACKGROUND TO THE ALLEGED INJURY
On examination, Ms John was a 56-year-old woman who stated that she worked as a ‘Field Officer’ within the GST Department of the Australian Taxation Office (ATO).
She went on to inform that she had suffered with Cushing’s syndrome twice, undergoing surgical intervention eventually to remove the diseased adrenal glands in June 2004.
At that stage, she stated that she had her adrenal glands surgically removed to help with the recurrent Cushing’s syndrome, which did not respond to a previously performed pituitary surgery.
Following the resection of the adrenal glands, Ms John became ‘Addisonian’, meaning that she developed a state of adrenal insufficiency, physiologically and biologically this being the opposite of Cushing’s syndrome. Hence, Ms John advised, she needed continuous hormone replacement, in the form of ‘steroid’ hormones, so-called gluco-corticoids and mineralo-corticoids, which are essential for the maintenance of the body’s homeostasis.
Ms John stated that her stress in the workplace occurred approximately four months following her last surgery in June 2004, ie around October-November 2004. She pre-empted that she had ‘not been coping’ with the aftermath of the primary ‘disease’, especially with the muscle weakness and osteoporosis acquired as complication of the prolonged Cushing’s Syndrome, aggravated to an extent by the Addisonian state, which her replacement treatment tried to rebalance and correct.
She advised that she found it hard to adjust in terms of her functioning and activities of daily living, as well as trying to come to terms with the medical perils inherent to the Addison’s Disease.
Within a few minutes into the interview, she warned the writer that she lived in continuous and fully justified fear of losing her life. She added that as a sufferer of a potentially life-threatening condition, she had to ‘protect’ herself as well as she could.
She informed that since she had insufficient cortisol levels in her body to start with, at times of stress these levels could become even lower trigger (sic) a so-called ‘adrenal crisis’, by which she meant an acute adrenal insufficiency state leading to coma and even a fatal outcome.
…
She described herself as being generally an ‘easygoing person’, who has a complete ‘safety net’ set up around her in order to manage the risks associated with her medical condition(s). …
She described how she had carefully set up her home with a security alarm button and automatic dialling on her home phone to enable her to contact close friends if she were feeling unwell. She described this ‘safety net’ in terms of an intricate series of ‘interlinking chains’, which were essential for the functioning of the whole system and in turn, dependent on the functioning and integrity of other similar ‘links’ within the chain as well.
Therefore, Ms John advised, any perturbation in the system would lead to disastrous consequences and potential threat to her life. Hence, such events made her ‘feel panicky’, she announced.
Ms John went on to describe that such a potential modification to her carefully set up safety system occurred approximately 19 months prior to this assessment. She stated that on or around 18 October 2004, she had a meeting with her Team Leader and with the Occupational Health and Safety Officer.
The purported intent behind the meeting was to ascertain whether Ms John was fit to work full-time and if she were, whether she could carry out her duties predominantly in the office setting. She clarified that prior to that date, her work arrangements and full-time position involved working two days a week at the office in Northbridge, with three days of work performed from home. Apparently, the ‘work from home’, as long as certain security and privacy conditions were satisfied, was available to most Field Officers within the ATO ‘at the discretion’ of the organization.
According to Ms John, her Team Leader and OH&S Officer suggested that she would probably need to work at the office more than before, since they were not able to provide work at home any longer. To the claimant, this suggestion or possibility had immediate terrifying effects. Ms John’s understanding of the meeting was that the other parties that provided new medical certification were to be issued in order to revise her employment conditions and allow Ms John to work at the office on a full-time basis (sic).
…
When the Team Leader and the OH&S Officer suggested that work from home might become unavailable at ATO, and since Ms John was only certified fit to work two days a week in the office, that she might want to consider applying for ‘partial invalidity’. This suggestion, however, was largely overlooked by the claimant, since apparently she became somewhat distraught and apprehensive about the significance of the suggested changes, which she thought inevitable and about to be implemented no matter what.
Ms John became extremely anxious about the potential repercussions and implications of part-time work with the ATO.
Immediately, she apparently concluded that a lower income (based upon part-time earnings) would lead to her not being able to meet mortgage repayments on her unit, hence it meant potentially losing her home, with all the security and safety installations, contacts nearby, telephone customised services, her comfort derived from her pets who live with her etc, threatened.
Ms John admitted that her thinking became marred by catastrophic amplification and conclusions, which led to extreme anxiety, as well as fed her underlying insecurity and difficulty coping with her medical condition in general. She stated that her trust in her Team Leader was acutely shaken, since in her opinion, he and his offsider insisted that Ms John should consider working part-time.
…
Subsequently, Ms John stated that she spent a whole weekend ruminating about these issues, worrying and ‘stewing over it’. She stated that because of the stress, she needed extra cortisone, whilst she feared more terrible consequences arising as well.
The following week, Ms John continued to feel very anxious, and apparently burst into tears one day, left the workplace and went home. Subsequently, she had two weeks off work. …
Ms John stated that she had been prescribed an antidepressant medication Aropax (Paroxetine) by her GP but she chose not to take it. She specified that it would have meant relying on something to dampen the stress levels without actually solving the problem.
…”
Dr Charkey-Papp went on to express the following opinion:
“ SUMMARY AND OPINION
On balance, having examined all of the evidence presented in the form of historical details provided by the claimant, of the findings on examination, and the extensive perusal of all documents provided, it is my considered opinion that on a balance of probabilities, it is more likely than not that:
·Ms John, a 56-year-old Field Officer with ATO claiming compensation for ‘work related stress’ has no, currently or retrospectively identifiable clinical psychiatric disorder that one could diagnose on the basis of current nosological nomenclature (this opinion is constructed upon the absence of severe enough, lasting social and occupational impairment in functioning, full recovery in the absence of treatment, and no clinically pervasive symptoms persisting for long enough to warrant a diagnosis).
·The symptoms described and experienced by Ms John around October-December 2004, constituting the subject of this claim, can be if not wholly, then at least predominantly attributable “to an acute decompensation within her Obsessive-Compulsive Personality Disorder and/or to the gradual destabilisation thereof. The latter occurred not only as the immediate aftermath of the alleged meeting, as well as the industrial issues raised by this meeting, but was also the result of a gradual attrition of coping mechanisms since the diagnosis of a potentially fatal condition prior to these events. For a person with an excessive need for control, nothing can be worse than the total and ultimate loss of control conferred by illness, by the limitations.
…” (original emphasis)
Finally, Dr Charkey-Papp responded to a series of questions posed by the respondent’s solicitors, including the following:
“6. On the balance of probabilities did the applicant’s employment with the ATO make a material contribution to the applicant’s condition?
Yes, it appears so.
The grounds for this opinion are represented by the temporal sequence between the event(s) that took place on or around 18 October 2004, possibly misinterpreted by the applicant as an attack on her livelihood, and forcing her to jump to hasty but exceedingly alarming conclusions about the significance of the matter.
…”
Additional medical evidence
29. The material in evidence before the Tribunal also includes a report of Mr Peter Bath, Consultant Orthopaedic Surgeon, dated 3 March 2006, addressed to the respondent, which states as follows:
“ …
HISTORY:
…
Mechanism of Alleged Injury/Sequence of Events:
Ms John described today an incident at work on 28 April 2005, when she arrived at work at 8.30 am and attempted to lift her trolley up onto a chair, so that she could empty the contents onto her desk. She sustained severe low back pain at the time and another worker had to help getting the trolley onto the chair. Ms John went ahead and unpacked her trolley and although she stated she almost blacked out with the pain, she was able to subsequently walk approximately 20 metres or so to another room, where there was a team meeting and she sat during this meeting for 2½ hours or so. She felt as if she was fading away and therefore she took Cortisone medication at approximately 10.15 am.
…
At the same time as Ms John sustained low back pain, she stated that she felt a popping sensation in her knees, but the predominant symptom at the time was severe low back pain. She felt the popping sensation in the right knee was greater than the left and she stated that she felt that her kneecaps were loose and were sliding to one side when she got up and down.
When in the pool, one week later, doing her routine activities for muscle strengthening exercises, Ms John stated that she was using the steps and felt a sharp pain in her right knee, which once again gave her the sensation of sliding out to one side.
The pain was severe and it took her breath away. One week later she sustained the same symptomatology in her left knee on similar lines. At that stage there was less pain in her back and overall, Ms John had not had any time off work.
Subsequent Progress/Specialist Management:
Ms John consulted her general practitioner regarding her knee symptoms within the first two weeks. She was referred to physiotherapy three times per week for a period of two weeks and then was reassessed.
Because of ongoing symptomatology in her knees, Ms John was referred to an orthopaedic surgeon sometime in approximately June 2005. X-rays had been carried out by her general practitioner in April or so and the orthopaedic surgeon, Mr Robinson, carried out a MRI scan of the right knee in June.
Physiotherapy management continued at three times per week with respect to a generalised muscle strengthening program.
Symptomatology and Function over the Last Nine Months or so
Over this period, Ms John states that she continually experiences difficulties with a feeling of her kneecaps jumping out and then in every time she flexes and extends her knee on a weight bearing situation. This is with getting in and out of a chair, for example, and to minimise symptoms she has to slide both legs out of the car on to the ground, before she alights. Kneeling and squatting give her similar symptoms.
Over the last six months, Ms John has received benefit from using patella controlling braces on her knees. Some taping was used initially but this was not a long term answer and therefore elastic braces were used.
Currently, Ms John stated that she avoids stairs, sitting and kneeling as much as possible. Her symptoms affect her gardening at home.
Associated Symptomatology:
As outlined in previous reports, Ms John has had Cushing’s disease treated initially with pituitary surgery and then followed by bilateral adrenalectomy in 2004. There has been a problem of generalised weakness of the muscles since the onset of the disease and Ms John has been involved with pool activities over the last four years, with a view to both strengthening the muscles and decreasing the amount of muscle weakness she would have sustained. She continues to exercise in the pool once per week.
…
SUMMARY AND ASSESSMENT:
Ms Jennifer John has radiological evidence of significant degenerative changes at the patellofemoral joints of both the right and left knees. She describes ongoing symptomatology dating from an incident at work on 28 April 2005, but both clinically and radiologically, there is no real evidence of the patella actually subluxing. The evidence is more towards degenerative changes, mostly in the lateral patellofemoral compartment.
The radiological changes described would have been present for a considerable period of time prior to the incident on 28 April 2005. It is noted in the history that Ms John had not experienced any previous symptoms prior to this incident.
In response to the specific questions posed in your referral letter:
…
5.Diagnosis of any knee injuries suffered by Ms John as a result of the accident and/or hydrotherapy treatment in July 2005.
There has been no actual injury sustained by Ms John. The symptoms are those of degenerative changes in the patellofemoral compartment and the underlying pathology has been present for some time. The incident as described has not been an injury, but there have been symptoms arising from the pre-existing degenerative changes, from that date. A similar weight bearing aggravation of symptoms on the bent (sic) knee occurred when Ms John was carrying out her hydrotherapy subsequently.
…
8.The most likely cause of Ms John’s current knee condition, on the balance of probabilities.
The cause of the knee condition, which is that of degenerative changes at the patellofemoral joint, cannot be stated with certainty. There is no prior history given of symptoms in either knee and certainly no longstanding history of any subluxation of the patella. There is some alteration of patellar tracking at the present time with respect to the degenerative condition, but it would be the degenerative condition causing this feature rather than the reverse. The alignment of the tibial tubercle is normal.
It is not uncommon for persons of Ms John’s age to present with significant degenerative changes, bilateral, and without any previous evidence of injury or anatomical alteration.
9.Has the accident or hydrotherapy treatment contributed to the condition in a material degree?
In my opinion, the incident as described at work and the incidents described at hydrotherapy have been purely episodes of symptoms occurring with a pre-existing degenerative condition.
…
Ongoing symptoms with respect to the degenerative changes at the patellofemoral joint of both knees cannot be attributed to the incident as described in the workplace on that occasion [28 April 2005].
…” (T65 (W 200600157))
The evidence of the lay witnesses
Iain Dunn
30. Mr Dunn’s witness statement, dated 5 October 2007, is as follows:
“1. My name is Iain Dunn. I was previously a team leader in the Cash Economy section of the Australian Taxation Office (ATO), Northbridge, Western Australia. My team was called Cash 5.
2.I have been employed by the Australian Taxation Office for the past 22 years.
3.Jennifer John (the applicant) commenced employment at the ATO in 2000 in the Goods and Services Tax (GST) section.
4.At that time GST had recently been introduced and teams were comprised of GST field staff whose duties were to educate/assist businesses regarding their GST obligations and also to perform a compliance role with respect to the legislation. Attached and marked ‘A’ is a copy of [a] pamphlet outlining the ATO GST field staff background and general information.
5.Around the middle of 2001 the applicant advised her then team leader she was ill and would require surgery for a condition she suffered from called ‘Cushing’s disease’. Following surgery the applicant said she would require a few months off work to recover before she could return to full-time work.
6.In November 2001 the applicant underwent surgery and was off work for 2 to 3 months.
7.In early 2002 the applicant returned to work part-time as a GST field officer.
8.After she had returned to work the applicant commenced working from home. At that time the ATO did not have a definitive working from home policy and many GST employees in the Northbridge office worked from home.
9.A formal ‘working at home’ policy was adopted by the ATO on 11 June 2003. Attached and marked ‘B’ is a copy of an email from Mr Alan Jones which explains this policy.
10.The work from home policy was formally adopted into the ATO certified agreement in 2004. Attached and marked ‘C’ is a copy of the relevant section of the certified agreement.
11.The applicant formally applied to work from home on 8 July 2003 and her request was approved shortly afterwards.
12.I became the applicant’s team leader in October 2003. The previous team leader and the applicant both provided briefings on the applicant’s medical condition.
13.In around October 2003 the applicant told me that she had been diagnosed with cyclical pituitary dependant Cushing’s syndrome which required further surgery (in the form of a bilateral adrenalectomy). She described how she had still felt unwell following her surgery in 2001 and required a number of specialist consultations and tests to be performed before her condition was definitively diagnosed.
14.The applicant explained to me that following her surgery her specialists expected she would make a full recovery be (sic) that it may take 9 to 12 months for optimum improvement to be reached.
15.Given the applicant’s circumstances and the nature of the duties being undertaken at that time by our team, it was possible to accommodate the applicant working from home 3 days per week while waiting to undertake her operation.
16.Towards the end of 2003 and the beginning of 2004 there became less of a need for GST field officers to work in the field and work from home. This was due to the increased awareness of businesses in relation to their GST obligations and a change in work priorities within the ATO.
17.As a consequence the ATO decided to embark on a policy shift of gradually requiring more employees to work in the office and less in the field and at home. It was thought to be better to have employees working from the ATO offices for a number of reasons including OH&S issues, security of both employees and documents, reduced need for GST operatives to work outside the office etc.
18.Attached and marked ‘D’ is a copy of a Cash 5 team meeting (sic) held on 9 February 2004. The minutes of the meeting record the Branch Head’s view that there was to be no long term storage of documents at people’s homes and a preference for the majority of non-field time to be spent in the office.
19.Another Cash 5 team meeting was held on 30 June 2004. The change in policy towards employees working less at home and more in the office was discussed, as was the need to avoid storing documents and files at home. Attached and marked ‘E’ is a copy of the minutes of the meeting.
20.The applicant had her operation in mid 2004. The applicant was reviewed post the operation by the Commonwealth Medical Officer who advised that by the end of September 2004 the applicant could hopefully attend the office 3 days per week.
21.Another Cash 5 team meeting was held on 18 August 2004. The policy shift towards working in the office was discussed again, as was a new directive that employees were not to store any client documentation at home. Attached and marked ‘F’ is a copy of the minutes of the meeting.
22.In the context of the changing office work requirements and the change in policy to reduce staff working from home I decided to have a meeting with the applicant to discuss these issues. On 18 October 2004 I discussed with the applicant the changing work requirements being undertaken by our team and the directive from the Branch Head for employees to work 3 days in the office or more. I also discussed with the applicant the issue of security and document storage at home and problems with her having to cart documents to and from the office to be able to work on them at home. I told the applicant that I was concerned for her safety if she worked from home. I told her the ATO had a duty of care to look after her but that it would be difficult, if not impossible, for the ATO to discharge this duty if she was absent [from] the office and working at home. This was because we had no way of knowing if the applicant was unwell at home or not. If the applicant worked in the office we could provide her with a car park, ready access to medical assistance and a supportive environment to work in. As far as I knew, if she worked at home she would be working by herself and if she collapsed on the ground, for example, no one would be able to help her.
23.I also raised my concerns about the applicant’s ability to work in the field. Given her mobility problems and other associated issues I was concerned that, as I had no control over the environment she would be required to work in, assigning her field duties could put her at risk. The applicant advised that she had no issues in undertaking field duties. This perplexed me as she had obvious concerns about attending the office where we could provide her with assistance in regards to her condition.
24.A further Cash 5 team meeting was held on 20 October 2004. The work at home policy was discussed again and the team was told that everyone was required to work at least 3 days in the office. Monday to Wednesday was to be the standard office days. Attached and marked ‘G’ is a copy of the minutes of the meeting.
25.I am aware of the claim made by the applicant that she felt stressed as a result of our discussions. I believe that the applicant became upset as a result of thinking of the impact of her medical conditions on her ability to continue working and paying her mortgage.
26.Grace Zalkosny and I clearly stated to the applicant that we wanted her to work 3 days in the office and 2 at home instead of 2 days in the office and 3 at home. This was in the context of the changing requirements of the business of the GST section.
27.Employees are still able to access work from home. However, because it is discretionary, the granting of the entitlement to do so depends on a number of factors such as the need to work from home, whether there is any work that can be done from home, whether documents from the office need to be transported to home or not, whether the person still performs at a satisfactory level working from home etc.
28.As a result of the discussions outlined above the applicant made an internal complaint to the ATO alleging that she was being unfairly discriminated against because of her medical condition. This complaint was investigated and, to the best of my knowledge, it was thoroughly investigated and found to be unsubstantiated.
29.The applicant transferred out of my team in about December 2004.” (Attachments omitted) (Exhibit R9)
Philip Wan
31. Mr Wan’s witness statement, dated 21 September 2007, is as follows:
“1. My name is Philip Wan. I have been employed as a GST field operative with the Australian Taxation Office (ATO) for the past 5 years.
2.On 28 April 2005 I was employed in the Cash One team headed by Ms Jiun Soong, the team leader. …
3.Around that time I was sitting at a desk next to the applicant.
4.I have read the accident/incident report form dated 28 April 2005 contained in the T-documents in which the applicant indicates that she hurt her back bending over to pick up a suitcase trolley. I did not see the incident and I cannot recall the exact details of what occurred but the description contained in the report form accords with my general recollection.
5.On the morning of 28 April 2005 I recall the applicant came into work and stood in front of her desk. The applicant stood up and put her hand on her back and said words to the effect ‘I’ve hurt my back’.
6.I walked around to her desk and helped get her files out of her suitcase trolley and put them on her desk.
7.My recollection is that the applicant started work and continued working until around lunchtime.
8.I helped the applicant because she would sometimes ask for my assistance and because I knew she had a medical problem. In addition, I was the designated OH&S officer for the section and I felt obliged to help people when I could.
9.Prior to this incident I had noticed that the applicant sometimes had difficulty performing some activities because she appeared to be slow in her movements. I assumed she had difficulty because she was weak or felt some pain when lifting or carrying things. The applicant had previously told me that she suffered from back pain from time to time, especially when she was working in Iain Dunn’s team.
10.Following the incident on 28 April 2005 I recall the applicant was provided with a car parking space under the building and also a ‘tea lady style’ trolley so that she could transfer files from her desk down into the basement to the car park and then into her car without having to bend down completely.
11.I last worked with the applicant in December 2005 at the main ATO office in Northbridge before I was transferred to Parmelia House on St George’s Terrace.” (Exhibit R4)
Analysis and Findings
The applicant’s claim in respect of a mental condition (Application No W 200600156)
32. The relevant issues which arise for determination in relation to this matter are as follows:
· whether the applicant was suffering from a mental ailment in the period 1 – 5 November 2004; and, if so
· whether that mental ailment was contributed to in a material degree by the applicant’s employment by the ATO; and, if so
· whether that mental ailment was suffered by the applicant as a result of failure by her “to obtain a … benefit in connection with … her employment” (within the meaning of the definition of “injury” in s 4(1) of the SRC Act); and, if not
· whether that mental ailment resulted in “incapacity for work” (as defined in s 4(9) of the SRC Act) in the period 1 – 5 November 2004.
Was the applicant suffering from a mental ailment in the period 1 – 5 November 2004?
33. The medical evidence before the Tribunal in respect of the appropriate diagnosis of the applicant’s mental state in the period 1 – 5 November 2004 is not entirely consistent. Whereas Dr Nugawela’s evidence was that the applicant was suffering from anxiety and depression in that period, Dr Charkey-Papp’s evidence was that the applicant was not suffering from a clinical psychiatric disorder in that period but that she was instead then experiencing symptoms which were predominantly, if not wholly, attributable to an “acute decompensation within her obsessive/compulsive personality disorder”.
34. Dr Nugawela, who (as previously noted) has been the applicant’s treating general practitioner for approximately 30 years, saw the applicant on 29 October, 2 and 5 November 2004 and he made a clinical diagnosis of anxiety and depression on 2 November 2004 and he prescribed an anti-depressant medication and certified her as unfit for work for the period 1 – 5 November 2004. Dr Charkey-Papp, on the other hand, saw the applicant only on 6 December 2006 for the purpose of preparing a medico-legal report. Notwithstanding Dr Charkey-Papp’s expertise as a Consultant Psychiatrist and the thoroughness of her report of 27 February 2007 (Exhibit R3 – see paragraph 28 above), the Tribunal regards it as appropriate in the present case to attach greater weight to the evidence of Dr Nugawela having regard, in particular, to his long history of treating the applicant and to the fact that his diagnosis of anxiety and depression was made contemporaneously and on an appropriate clinical basis. The Tribunal notes, in this connection, that, in its opinion, Dr Nugawela gave his evidence in an objective and disinterested manner and the Tribunal was impressed by the quality of his evidence.
35. The Tribunal is satisfied, on the basis of Dr Nugawela’s evidence, that the applicant was, in the period 1 – 5 November 2004, experiencing symptoms of anxiety and depression. The Tribunal notes that, by reference to Diagnostic and Statistical Manual of Mental Disorders (4th ed, Text Revision) (DSM-IV-TR), an appropriate psychiatric diagnosis of the applicant’s mental state in that period, as assessed by Dr Nugawela, may be that she was suffering from an adjustment disorder with mixed anxiety and depressed mood. The Tribunal is, however, prepared to accept Dr Nugawela’s clinical diagnosis of the applicant’s mental state in that period, namely, anxiety and depression. Accordingly, the Tribunal finds that the applicant was suffering from a mental ailment, namely, anxiety and depression, in the period 1 – 5 November 2004.
Was the mental ailment, from which the applicant was suffering in the period 1 – 5 November 2004, contributed to in a material degree by her employment by the ATO?
36. There is no conflict in the medical evidence before the Tribunal in respect of the causation of the applicant’s relevant non-physical condition (however it be diagnosed or described). Dr Nugawela and Dr Charkey-Papp have both opined that the relevant condition, from which the applicant suffered in the period 1 – 5 November 2004, was causally related to, or materially contributed to by, her employment by the ATO. The Tribunal accepts the applicant’s evidence that she suffered anxiety and stress in the abovementioned period as a result of ATO team meetings in October 2004 at which she was informed of proposed changes in her existing working-from-home employment arrangement.
37. On the basis of the abovementioned evidence the Tribunal is satisfied, and finds, that the applicant’s mental ailment of anxiety and depression, from which she was suffering in the period 1 – 5 November 2004, was contributed to in a material degree by her employment by the ATO. Accordingly, the Tribunal finds that that mental ailment constituted a “disease” as defined in s 4(1) of the SRC Act.
Was the applicant’s mental ailment (being a “disease”) in the period 1 – 5 November 2004 suffered by her as a result of failure by her “to obtain a … benefit in connection with … her employment”, within the meaning of the definition of “injury” in s 4(1) of the SRC Act?
38. The respondent submitted that, if the applicant suffered from a mental ailment, being a “disease”, in the period 1 – 5 November 2004, that mental ailment was suffered by her as a result of failure by her to obtain a benefit in connection with her employment, namely, the benefit of being permitted to work from home 3 days per week which she had previously enjoyed but which had been taken from her.
39. The Tribunal does not accept the respondent’s submission. Although the Tribunal accepts that the employment arrangement whereby the applicant was permitted to work from home 3 days per week constituted a “benefit” (within the meaning of the definition of “injury” in s 4(1) of the SRC Act), it does not accept that the mental ailment (being a “disease”) which the applicant suffered in the period 1 – 5 November 2004 following the abovementioned ATO team meetings in October 2004 was suffered by her as a result of her “failure … to obtain” (within the meaning of that statutory definition) that benefit. According to the evidence before the Tribunal (including the witness statement of Iain Dunn, the applicant’s ATO Team Leader at the relevant time, set out in paragraph 30 above), the applicant was granted formal approval to work from home in July 2003 and, pursuant to that approval, she enjoyed the benefit of working from home 3 days per week from October 2003 and was continuing to enjoy that benefit as at October 2004 when the relevant team meetings, at which she was informed by Mr Dunn that she would henceforth be required to work at least 3 days per week in the ATO premises, occurred. In those circumstances, the Tribunal is not satisfied that the relevant benefit of ATO approval to work from home 3 days per week, which the applicant had enjoyed since at least October 2003, had been taken away from her by the time of the abovementioned team meetings in October 2004 (as submitted by the respondent). On the contrary, the Tribunal is satisfied, on the basis of the evidence before it, that the applicant was continuing to enjoy that existing benefit at the time of those team meetings in October 2004 and that it was during those team meetings that she was informed that that benefit would not continue and that she would henceforth not be permitted to work from home for more than 2 days per week. In the Tribunal’s opinion those circumstances involve the loss of, or the failure to retain, an existing benefit, not the failure to “obtain” a benefit, within the meaning of the statutory definition of “injury”: see Comcare v Ross [1996] FCA 1669 at paras 29 – 30.
40. Accordingly, the Tribunal is not satisfied that the mental ailment (being a “disease”), from which the applicant was suffering in the period 1 – 5 November 2004, was suffered by her as a result of failure by her “to obtain a … benefit in connection with … her employment”, within the meaning of the definition of “injury” in s 4(1) of the SRC Act. It follows that that mental ailment (being a “disease”) constitutes an “injury” (as defined in s 4(1) of the SRC Act) for the purposes of the SRC Act, and the Tribunal so finds.
Did the applicant’s mental ailment (being an “injury”) result in incapacity for work in the period 1 – 5 November 2004?
41. On 2 November 2004 Dr Nugawela certified the applicant as unfit for work for the period 1 – 5 November 2004 by reason of “acute stress” (see T6, T47 and T 60). The respondent submitted, however, that there was objective evidence before the Tribunal relating to activities performed by the applicant during that period which demonstrated that she was not incapacitated for work, namely:
· she worked for approximately 3 hours in the ATO office in the morning of 1 November 2004 before going home;
· she drove herself home from the office on that day;
· she consulted Dr Nugawela on 2 November 2004;
· she walked her dog on the night of 2 November 2004;
· she sent an email to the ATO on the morning of 4 November 2004;
· she consulted an employee assistance organisation on 4 November 2004;
· she consulted Dr Nugawela on 5 November 2004;
· on 5 November 2004 she prepared a document of 3½ typewritten pages containing detailed notes of the team meeting which was held on 27 October 2004.
42. The Tribunal finds, on the basis of Dr Nugawela’s medical certificate and evidence, that the applicant was incapacitated for work as a result of her mental ailment (being an “injury”) for the whole of the period during which she was absent from her ATO employment in the period 1 – 5 November 2004. In the Tribunal’s opinion, the fact that the applicant was able to perform the activities listed in the preceding paragraph during that period is not necessarily inconsistent with the proposition that she was incapacitated for her ATO employment in that period.
Conclusion
43. The Tribunal concludes, therefore, that the respondent is liable under s 14(1) of the SRC Act to pay compensation in accordance with s 19 of that Act to the applicant for incapacity for work in the period 1 – 5 November 2004 resulting from an injury, namely, anxiety and depression.
The applicant’s claim in respect of her knees (Application No W 200600157)
44. By a determination dated 27 September 2005 (T40) the respondent accepted liability under the SRC Act to pay compensation to the applicant in respect of an injury described as follows:
“internal derangement of knee (bilateral), sustained on the 28th April 2005”.
45. It is common ground that the applicant continues to suffer from an ailment in her knees. As regards the appropriate diagnosis of that ailment, the evidence of the expert medical witnesses was as follows:
· Mr Robinson made the following diagnosis in his reports of 27 November 2006 and 6 February 2008 (Exhibits A2 and A3, respectively):
“bilateral retropatellar chondrol damage and patellar subluxation/maltracking”’
· Mr Alexeeff made the following diagnosis in his report of 14 August 2007 (Exhibit R6):
“bilateral patello-femoral arthropathy”.
The Tribunal notes that Mr Bath, in his report of 3 March 2006 (T65), stated that the applicant has “significant degenerative changes at the patellofemoral joints of both knees” and he noted that there was “some alteration of patellar tracking” as a result of the degenerative condition. Dr Watson, in his report of 23 November 2005 (T49), also noted that, on examination, the applicant’s patellae “tracked laterally”. Mr Alexeeff, however, in his report of 14 August 2007, commented that “patella tracking seemed satisfactory”.
46. Having regard to the whole of the material evidence, the Tribunal is satisfied, and finds, that the appropriate diagnosis of the applicant’s knee ailment is degenerative bilateral patello-femoral arthropathy with associated patellar subluxation.
47. For the purpose of determining whether the respondent continues to be liable to pay compensation pursuant to the SRC Act to the applicant in respect of her knees, it is appropriate for the Tribunal to consider the evidence, and make findings, in respect of each knee separately.
48. In respect of each of the applicant’s knees, the matters for the Tribunal’s determination are:
· whether the applicant’s knee ailment is an “injury” (as defined in s 4(1) of the SRC Act); and, if so
· whether compensation continues to be payable to the applicant in accordance with the SRC Act in respect of such injury on and from 16 January 2006 (being the date of cessation of compensation payments as specified in the determination of the respondent dated 17 January 2006 (T56) which was affirmed in the reviewable decision of the respondent dated 27 April 2006 (T68)).
The applicant’s knee ailment will constitute an “injury” for the purposes of the SRC Act if it is (relevantly) a “disease”, as defined in s 4(1) of the SRC Act – that is, an ailment, or the aggravation of a pre-existing ailment, that was “contributed to in a material degree” by her employment by the ATO.
The applicant’s right knee
49. Mr Robinson, the applicant’s treating orthopaedic surgeon, opined, in his report of 19 September 2005 and in his oral evidence (see paragraphs 13 and 15 above) that the applicant’s ongoing right knee pain symptoms are attributable to the lifting incident on 28 April 2005 in the course of her employment with the ATO. In the Tribunal’s opinion, however, the validity of Mr Robinson’s opinion is somewhat diminished by reason of his “assumption” that the applicant had “squatted” and “twisted” when lifting the bag in the incident of 28 April 2005 – an assumption which does not accord with the applicant’s own demonstration to the Tribunal of her bodily movements in that incident (see paragraph 8 above) and which the Tribunal considers to be false. Mr Robinson, in his most recent report of 6 February 2008 (Exhibit A3), opined that the applicant:
· is “fit to carry out her job as an office worker at home and in the Tax Office”;
· will require knee surgery in the form of a “tibial tubercle osteotomy on both knees in the foreseeable future in order to realign the patellae” but that such treatment is not presently required “as she is able to cope with her work duties”.
50. Mr Alexeeff opined, in his report of 14 August 2007 (see paragraph 17 above), that, in the lifting incident of 28 April 2005, the applicant “likely aggravated pre-existing degenerative arthropathy of the patellofemoral joint”. The Tribunal notes that Mr Alexeeff also opined that, on the balance of probabilities, the applicant’s employment with the ATO “has made no material contribution to her clinical state in respect of her knees”. Although those opinions might appear to be inconsistent, the Tribunal understands the latter opinion to relate to the commencement of the applicant’s degenerative knee arthropathy, whereas the former opinion relates to the aggravation of that pre-existing degenerative arthropathy. Mr Alexeeff further opined that:
· the applicant’s “fitness for pre-injury occupational duties is unencumbered”;
· there is “no specific future treatment that the applicant should undergo”.
As regards future medical treatment, however, Mr Alexeeff canvassed various possible options in his report (see paragraph 17 above).
51. Mr Bath, in his report of 3 March 2006 (see paragraph 29 above), expressed a similar opinion to that of Mr Robinson and Mr Alexeeff, namely, that the applicant had significant pre-existing degenerative patellofemoral pathology at the time of the lifting incident of 28 April 2005 but that that incident caused that pre-existing condition to become symptomatic from that date.
52. On the basis of the applicant’s evidence regarding the lifting incident of 28 April 2005 and the abovementioned medical evidence, the Tribunal finds that the applicant had a pre-existing degenerative right knee condition which was aggravated, and caused to become symptomatic, by the lifting incident of 28 April 2005 and that that symptomatology thereafter continued and is presently continuing. The Tribunal finds, therefore, that the applicant’s right knee condition is an “injury” (being a “disease” as defined in s 4(1) of the SRC Act) for the purposes of the SRC Act. The Tribunal also finds that the applicant’s right knee injury has resulted in ongoing “impairment” (as defined in s 4(1) of the SRC Act).
53. The Tribunal concludes, therefore, that, on and from 16 January 2006 to the present date, and as at the present date, the respondent continues to be liable under s 14(1) of the SRC Act to pay compensation in accordance with that Act to the applicant in respect of her right knee injury.
The applicant’s left knee
54. Mr Robinson, in his comprehensive report of 19 September 2005 (T39), distinguished between the cause of the applicant’s right knee pain symptomatology and the cause of her left knee pain symptomatology. Whereas he attributed the applicant’s right knee symptomatology to the lifting incident of 28 April 2005, he attributed her left knee symptomatology to her subsequently (in July 2005) performing exercises in a pool in the course of a hydrotherapy programme. A similar opinion was expressed by Mr Bath in his report of 3 March 2006 (T65) in the course of which he noted that the applicant had been engaged in pool activities over the last four years for the purpose of strengthening her muscles and decreasing the muscle weakness resulting from her condition of Cushing’s disease.
55. The Tribunal notes, further, that radiographic investigations initially arranged by Dr Nugawela (CT arthrogram dated 24 May 2005) and Mr Robinson (MRI dated 22 June 2005) after the lifting incident of 28 April 2005 related to the applicant’s right knee and did not include her left knee, and that the first such investigation which included the applicant’s left knee was a CT scan, dated 5 July 2005, of both knees arranged by Mr Robinson for an assessment of patellar maltracking.
56. Having regard to the whole of the evidence, the Tribunal is not satisfied that the applicant’s left knee condition was contributed to in a material degree by the applicant’s employment by the ATO or is otherwise causally related to that employment. The Tribunal finds, therefore, that the applicant’s left knee condition is not an “injury” (as defined in s 4(1) of the SRC Act) for the purposes of the SRC Act.
57. The Tribunal concludes, therefore, that the respondent is not liable under s 14(1) of the SRC Act to pay compensation to the applicant in respect of her left knee condition.
The applicant’s claim in respect of a vaginal prolapse condition (Application No W 200600158)
58. It is common ground that the applicant suffered a vaginal prolapse in or about July/August 2005. The matter for the Tribunal’s determination is whether that vaginal prolapse condition was contributed to in a material degree by the lifting incident of 28 April 2005 or otherwise by the applicant’s employment by the ATO.
59. The medical evidence before the Tribunal, on balance, supports the proposition that the applicant’s vaginal prolapse condition was contributed to in a material degree by lifting activities, including the lifting incident of 28 April 2005, performed by her in the course of her employment by the ATO. That proposition was supported by the evidence of Professor Michael, Dr Watson and Dr Nugawela. The only medical evidence which was inconsistent with that proposition was the evidence of Dr Chapple who expressed the opinion that the cause of applicant’s developing a vaginal prolapse was multifactorial, including pelvic floor muscle weakness and reduced connective tissue strength resulting from her Cushing’s disease condition and connective tissue damage resulting from her having previously undergone two vaginal births and a hysterectomy, but not including the lifting activities undertaken by her in the course of her ATO employment.
60. The Tribunal notes that Dr Chapple, unlike the other abovementioned medical witnesses, did not have the benefit of seeing and examining the applicant, and that his reports and evidence were based entirely on documentation provided to him by the respondent, and, in the Tribunal’s opinion, that circumstance detracts from the weight which the Tribunal would otherwise have attached to his evidence.
61. The Tribunal generally prefers the evidence of Professor Michael, Dr Watson and Dr Nugawela and, on the basis of that evidence, the Tribunal is satisfied, and finds, that the lifting activities routinely performed by the applicant in the course of her ATO employment, including the lifting incident of 28 April 2005, contributed in a material degree to her developing a vaginal prolapse condition in or about July/August 2005. In making that finding, the Tribunal has had regard to the fact that the applicant’s Cushing’s disease condition, together with her previous hysterectomy and menopausal state, substantially increased her susceptibility to developing a vaginal prolapse as a result of the lifting activities which she performed in the course of her ATO employment (see the reports of Dr Watson and Dr Chapple set out in, respectively, paragraphs 24 and 26 above).
62. Accordingly, the Tribunal finds that the applicant’s vaginal prolapse condition, sustained in or about July/August 2005, is an “injury” (being a “disease” as defined in s 4(1) of the SRC Act) for the purposes of the SRC Act. The Tribunal also finds that that injury resulted in “impairment” (as defined in s 4(1) of the SRC Act).
63. The Tribunal concludes, therefore, that the respondent is liable under s 14(1) of the SRC Act to pay compensation in accordance with that Act to the applicant in respect of her vaginal prolapse condition sustained in or about July/August 2005.
Decision
64. For the above reasons the Tribunal:
Application No W 200600156
· sets aside the reviewable decision of the respondent dated 24 August 2005 and, in substitution therefor, decides that the respondent is liable under s 14(1) of the SRC Act to pay compensation in accordance with s 19 of that Act to the applicant for incapacity for work in the period 1 – 5 November 2004 resulting from an injury, namely, anxiety and depression;
Application No W 200600157
· sets aside the reviewable decision of the respondent dated 27 April 2006 and, in substitution therefor, decides that:
-on and from 16 January 2006 to the present date, and as at the present date, the respondent continues to be liable under s 14(1) of the SRC Act to pay compensation in accordance with that Act to the applicant in respect of her right knee injury, namely, aggravation of degenerative patello-femoral arthropy with associated patellar subluxation;
-the respondent is not liable under s 14(1) of the SRC Act to pay compensation to the applicant in respect of her left knee condition;
Application No W 200600158
· sets aside the reviewable decision of the respondent dated 27 April 2006 and, in substitution therefor, decides that the respondent is liable under s 14(1) of the SRC Act to pay compensation in accordance with that Act to the applicant in respect of an injury, namely, a vaginal prolapse sustained by her in or about July/August 2005.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr P A Staer, Member
Signed: :...............[sgd E Jordan]........................
Associate
Dates of Hearing 4 – 8 August 2008
Date of Decision 12 November 2008
Counsel for the Applicant Mr T Offer
Solicitor for the Applicant Trewin Norman & Co
Counsel for the Respondent Mr B Morgan
Solicitor for the Respondent DLA Phillips Fox
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