Johnson and Commonwealth Bank of Australia (Compensation)

[2023] AATA 3250

Johnson and Commonwealth Bank of Australia (Compensation) [2023] AATA 3250 (13 October 2023)

Division:GENERAL DIVISION

File Number:          2022/1935

Re:Ms Rachel Johnson

APPLICANT

AndCommonwealth Bank of Australia

RESPONDENT

DECISION

Tribunal:Ms A E Burke AO, Member

Date:13 October 2023

Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that from the 29 October 2021 Ms Johnson continued to be entitled to reasonable medical expenses in respect of her previously accepted right knee injuries pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988.

.........................[sgd]............................

Ms A E Burke AO, Member

Catchwords

WORKER’S COMPENSATION – bank employee – denial of ongoing liability – injury to right knee – whether Applicant continues to suffer from work-related injury – significant contribution by employment – decision set aside

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Australian Postal Corporation v Burch (1998) 85 FCR 264
Canute v Comcare (2006) 226 CLR 535

Woodhouse v Comcare (2021) 285 FCR 14

Secondary Materials

Eric J. Strauss and David K. Galos, ‘The evaluation and management of cartilage lesions affecting the patellofemoral joint’ (2013) 6(2) Current Reviews in Musculoskeletal Medicine 141

REASONS FOR DECISION

Ms A E Burke AO, Member

13 October 2023

1. The Applicant, Ms Johnson, applied for a review of a decision of the Commonwealth Bank of Australia (CBA) dated 17 February 2022 which affirmed a primary determination of 24 November 2021. CBA determined that from 29 October 2021 they no longer had present liability to pay weekly compensation benefits and medical expenses with respect to Ms Johnson’s previously accepted right knee, left heel and left knee injuries pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988

   
   

   (‘the SRC Act’).

2. On 9 March 2022, Ms Johnson sought review of that decision by the General Division of the Administrative Appeals Tribunal (the Tribunal) as she claimed the decision was wrong in fact and law.

   BACKGROUND

3. Ms Johnson commenced working at Bankwest (a division of CBA) in Perth on 17 October 2011, she transferred to Melbourne in July 2015 on secondment as a Broker Support Manager. Ms Johnson accepted a voluntary redundancy and ceased working at CBA on 16 August 2019. Ms Johnson then took a short period off full-time work, resuming full time employment with a new company on 5 February 2020. Ms Johnson has remained in full time work in the finance sector since and from 16 March 2023 to the present Ms Johnson has been in the role of Brokerversity Operations Manager at Loanmarket.

4. Prior to joining Bankwest Ms Johnson had completed year 12 in South Australia, commenced her tertiary studies at the University of South Australia eventually finalising her studies at Curtin University in Western Australia with a Bachelor of Commerce, International Business.

5. The history of Ms Johnson’s injuries, numerous Comcare claims, and significant treatment is outlined below.

6. The hearing was heard in person on 1-4 August 2023. At the hearing, Ms Johnson was represented by Ms Cassie Serpell of counsel, instructed by Angela Sdrinis Legal. Commonwealth Bank of Australia (CBA) was represented by Mr Joe Ferwerda of counsel, instructed by Minter Ellison.

   ISSUES

7. The Tribunal needs to consider the following relevant issues:

   ·Whether Ms Johnson continues to suffer from work-related injuries pursuant to section 16 of the SRC Act in respect of the right knee, left foot and left knee injuries

   ·If the answer is yes to the above, whether Ms Johnson is entitled to medical expenses in respect of any of those injuries.

   LEGISLATION

8. As a licensee, CBA’s liability for compensation for work-related conditions arises under section 14 of the SRC Act, should an employee suffer an injury which results in death, incapacity for work, or impairment.  Relevantly, section 14(1) of the SRC Act provides that, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

9. Section 4 of the SRC Act defines an ailment to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).” Relevantly, the interpretative provision at section 4(1) provides that the words injury and disease have the meanings detailed in sections 5A and 5B respectively of the SRC Act, as follows:  

   5A Definition of injury

   (1)       In this Act:

   injury means:

   (a)       a disease suffered by an employee; or

   (b)       an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;

   but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

   ...

   5B Definition of disease

   (1)       In this Act:   

   disease means:

   (a)       an ailment suffered by an employee; or

   (b)       an aggravation of such an ailment;

   that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

   (2)       In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

   (a)       the duration of the employment;

   (b)       the nature of, and particular tasks involved in, the employment;

   (c)       any predisposition of the employee to the ailment or aggravation;

   (d)       any activities of the employee not related to the employment;

   (e)       any other matters affecting the employee’s health.

   This subsection does not limit the matters that may be taken into account.

   (3)       In this Act:

   significant degree means a degree that is substantially more than material.

   …

   THE TRIBUNAL’S CONSIDERATIONS AND FINDINGS

   Evidence before the Tribunal

   Ms Johnson’s Injury

10. Ms Johnson advised that whilst walking home from the gym, in 2015, her knee gave way. As she was in significant pain particularly when weight bearing Ms Johnson consulted Mr Hayden Morris, Orthopaedic Surgeon. On 9 November 2015 Mr Morris recorded in a letter to Ms Johnson’s general practitioner, Imaging: MRI scan reveals a full thickness chondral defect of the trochlea and chondral degeneration of the medial femoral condyle. On 17 November 2015 Mr Morris performed an arthroscopy and microfracture procedure on Ms Johnson.

11. An incident report of 3 February 2017 notes that on 20 June 2016 Ms Johnson fell at work, describing the incident:

    “Stepped out of the lift and slipped as shoes were wet from rain outside. Landed on left knee spilling a coffee over the ground and landing in it. Slight strain to preinjured right knee surgery 06/11/2015” and “have since seen my knee specialist 04/08/2016 and had an MRI due to ongoing pain. Specialist has advised there is new damage under knee cap and another arthroscopy is required. Advised try and leave as long as possible and seek physiotherapy treatment until such time as need to have surgery. Sought physio through Dec/Jan and can no longer put off requiring surgery”.

12. On 5 December 2018 Ms Johnson whilst travelling home, to continue working, from an appointment with her podiatrist reported limping and feeling a tearing pain in her left knee which resulted in her left knee overextending. On 12 December 2018 Mr Chris Bentley, physiotherapist, recorded an assessment of Ms Johnson’s new injury: Rachel injured her L knee on Wednesday evening (5/12/18) - hyper extension injury-while walking. At this time she was adjusting to new orthotics for the management of her heel condition.

    History of Claims

13. On 24 April 2017 Ms Johnson submitted a claim for slight strain to pre-injured right knee surgery 06/11/15. On 16 May 2017 CBA accepted liability for right lateral patellar facet chondral loss.

14. On 27 November 2017 Ms Johnson submitted a claim for her left heel pain as a result of overcompensation during rehabilitation of her primary injury or an aggravation of it due to the pain commencing in March 2017.  On 30 November 2017 CBA accepted liability for left calcaneal stress fracture with associated plantar fasciitis.

15. On 24 October 2018 Ms Johnson submitted a claim for Osteoarthritis as a secondary injury to her initial claim: Right Knee - Lateral Patellar Facet Chondral Loss. Secondary claim - Left Foot - Calcaneal Stress Fracture with Associated Plantar Fasciitis. On 14 December 2018 CBA accepted liability for Progressive Osteoarthritis in the patellofemoral joint to the right knee.

16. On 17 December 2018 Ms Johnson submitted a claim for Left knee injury + right foot pain as secondary injuries to my initial claim Right Knee - Lateral Patellar Facet Chondral Loss + Left Foot - Calcaneal Stress Fracture with associated Plantar Fasciitis + Right Knee – Osteoarthritis.  On 21 June 2019 CBA rejected liability, on reconsideration CBA revoked the original determination and accepted liability on 15 August 2019, finding:

    I accept that your left knee injury occurred on a compensable journey pursuant to s6(1)(g). Your injury is deemed to have arisen out of or in the course of your employment.

    An MRI of your left knee performed on 8 January 2019 revealed the existence of a small effusion but without meniscal or chondral abnormality. Based on this evidence l accept that you sustained a soft tissue injury to your left knee on 5 December 2018 and that your employer is liable pursuant to s 14 for this soft tissue injury.

17. On 24 November 2021 CBA determined it had no present liability to pay weekly compensation benefits and medical expenses with respect to the above injuries pursuant to sections 16 and 19 of the SRC Act, on the basis that:

    1.The fall in June 2016 could not be considered as a substantial contributing factor in regard to her ongoing bilateral knee osteoarthritis.

    2.The injury to her left heel would have occurred despite the fall in June 2016 and it is more probable that non-work-related factors contributed to any calcaneal stress fracture or plantar fasciitis.

    3.The hyperextension injury to the left knee cannot be considered substantially related to work activity and these symptoms would have developed regardless of her employment.

    4.It is not considered that the hyperextension injuries of 2018 or 2019 remain significant contributing factors in regard to the left knee condition.

    Treatment

18. A summary of the treatment Ms Johnson has received in respect of her claimed injuries:

Date	Treatment	Summary
22 October 2015	MRI right knee	An inner margin radial tear of the body of the medial meniscus and associated chondromalacia of the medial femoral condyle; and patellar maltracking and mild distal quadriceps tendinosis associated with chondromalacia of the patellofemoral joint.
17 November 2015	Right knee arthroscopy and microfracture procedure
10 August 2016	MRI right knee	Chronic patellar maltracking with chondromalacia of the patellofemoral compartment. Full thickness region of chondral loss extending from the median patellar ridge into the lateral patellar facet measuring 7 x 11mm (M) x SI) with prominent subjacent bone marrow oedema. Partial thickness chondral fissuring of the lateral femoral trochlear.
From August 2016 until the present	Regular Physiotherapy
7 July 2017	Right knee arthroscopic debridement	There were grade 3 chondral changes of the patella. Debridement was performed using the shaver. There were grade 3 chondral changes of the trochlea which remained stable.
October 2017 – Ongoing	Podiatrist – orthotics
17 October 2017	Ultrasound left heel/ plantar fascia	Each plantar fascia measuring 5mm thickness, no tear is seen. A tiny spur is noted. No evidence of fibromatosis.
5 November 2017	MRI left heel	The plantar fascia is thickened and heterogeneous in signal at its calcaneal attachment. Mild to moderate marrow oedema noted within the calcaneum at the attachment. There is also oedema in the adjacent soft tissues. The conclusion is plantar fasciitis with associated minimal marrow oedema within the calcameum. Thin calibre anterior talofibular ligament.
November 2017 – December 2019	Camboot usage
January 2018	Shockwave therapy treatment for her left heel	Trial of shockwave therapy which provided no benefit to the foot
9 March 2018	MRI left ankle (T46)	Minor increased signal intensity and size of the proximal 1.2cm of the plantar fascia consistent with right plantar fasciitis associated with marrow oedema in the anteroinferior calcaneus without fracture. There is only minor reduction in the amount of marrow oedema in comparison to previous examination
March 2018 – June 2018	Cortisone injections left heel	Immediate total relief of pain at the time of first injection in March; upon second injection in June, did not experience any immediate local anaesthetic relief nor any ongoing relief
July 2018	Synvisc injection right knee
5 July 2018	MRI left ankle	Plantar fasciitis without a tear, with muscle sprains involving the flexor hellucis brevis and abductor digitj minimi
13 July 2018	MRI right knee (T55)	Findings are consistent with patellar maltracking, fat pad impingement and patellofemoral chondropathy. Small effusion. Normal menisci, cruciate and colateral ligaments
23 September 2018	MRI right knee (T59)	Patellofemoral and medial femoral condyle chondral degenerative changes; tendinosis or partial tear of the proximal medial collateral ligament with joint effusion and loose bodies as well as likely patella maltracking and fat pad impingement
October 2018	Dry needling left heel
11 January 2019	X-ray right foot	No fracture, joint or soft tissue injury or abnormality was detected.
16 January 2019	Platelet-Rich Plasma (PRP) injection
31 January 2019	Right knee arthroscopic debridement	Routine anterolateral and anteromedial portals. Suprapatellar Pouch: There was a moderate synovitis. Chondral loose debris was washed out. Patellofemoral Mechanism: There were stable chondral defects of patella and trochlea. There was normal patellofemoral tracking. Medial Compartment: There was Grade III chondropathology of the medial femoral condyle. Chondral loose bodies were washed out. Chondral debridement was performed using the shaver. There was a normal medial meniscus. Intercondylar Notch: There was a normal ACL. There was a normal PCL. The ligamentum mucosa was intact. There was a normal lateral fat pad and normal medial fat pad. Lateral Compartment: There was a full thickness chondral defect of the anterior weight bearing surface of the lateral femoral condyle. Unstable chondral tissue was debrided from the edges of the lesion using the shaver. There was a normal lateral meniscus
2019	Dietician assistance
2019	Weight loss assistance
8 January 2019	MRI left knee	Small joint effusion and minor trochlear dysplasia with hypoplastic medial trochlea and minor chondromalacia patellae in the inferior patellar facet. Mild to moderate prepatellar bursitis
15 January 2019	Right plantar fascia soft tissue ultrasound	Moderate plantar fasciitis on the left measuring 4.9mm in thickness with hypoechoic change whilst the right plantar fascia is normal with each Achilles tendon also being normal
20 January 2020	MRI left knee	Patella mal-tracking, with fat pad impingement and mild to moderate lateral patellofemoral chondral degeneration. Small knee effusion and Baker’s cyst.
10 August 2021	Ultrasound left heel	Plantar fasciitis without a tear
18 August 2021	MRI left knee	Minimal joint fluid with minor medial compartment degenerate change and 0.3cm near full-thickness chondral defect in the mid/posterior lateral femoral condyle and mild to moderate patellofemoral joint degenerate change; patellar alta with oedema in Hoffa’s fat pad adjacent to the inferior pole of the patella laterally consistent with fat pad impingement or patellar tracking abnormality
18 August 2021	MRI right knee	Small to moderate joint effusion; mild medial and mid posterior lateral compartment degenerate change with moderate patellofemoral joint degenerate change

Medical

1. Dr Amy Ting, Consultant Radiologist, 22 October 2015 reported on an MRI:

   Clinical:

   Acute trauma 6 weeks ago. Inability to extend knee suggesting acute meniscal tear. Past history of right medical meniscus tear 2011.

   Conclusion:

   1.    Inner margin radial tear of the body of the medial meniscus and associated chondromalacia of the medical femoral condyle.

   2.    Patellar maltracking and mild distal quadriceps tendinosis are associated with chondromalacia of the patellofemoral joint as described.

2. Mr Morris, Orthopaedic Surgeon, 6 November 2015 opined in an operation report after an arthroscopic debridement and microfracture:

   Portals

   Routine anterolateral and anteromedial portals.

   Suprapatellar Pouch

   There was a moderate synovitis. Chondral loose debris was washed out.

   Patellofemoral Mechanism

   There were stable chondral defects of patella and trochlea. There was normal patellofemoral tracking.

   Medial Compartment

   There was Grade III chondropathology of the medial femoral condyle. Chondral loose bodies were washed out. Chondral debridement was performed using the shaver. There was a normal medial meniscus.

   Intercondylar Notch

   There was a normal ACL. There was a normal PCL. The ligamentum mucosa was intact. There was a normal lateral fat pad and normal medial fat pad.

   Lateral Compartment

   There was a full thickness chondral defect of the anterior weight bearing surface of the lateral femoral condyle. Unstable chondral tissue was debrided from the edges of the lesion using the shaver. There was a normal lateral meniscus

3. Dr Manoj Kumar, Consultant Psychiatrist, in a letter of 16 March 2016 to Ms Johnson’s general practitioner in Perth diagnosed: Major depression (recurrent), GAD, obsessive and cluster B traits.

4. Dr Ting, reported 10 August 2016 on an MRI:

   Clinical:

   Slipped and fall on 13/06/2016 landing on right knee. Developed knee pain and giving way.

   Conclusion:

   Chronic patellar maltracking with chondromalacia of the patellofemoral compartments as described.

5. An unattributed published note from Ms Johnson’s general practitioner’s records dated 8 November 2016:

   MRI showed right knee cap not tracking right, wear and tear of knee cap and thighbone, probably needs key hole clean out. But the changes in MRI not due to the fall, more from day to day wear and tear.

6. Mr Morris, Orthopaedic Surgeon, 7 July 2017 opined in an Operation Report after a right knee arthroscopic debridement:

   Portals

   Routine anterolateral and anteromedial portals.

   Suprapatellar Pouch

   The volume of the suprapatellar pouch was normal. There were no abnormal plicae. There was no abnormal synovitis.

   Patellofemoral Mechanism

   There were grade 3 chondral changes of the patella. Debridement was performed using the shaver. There were grade 3 chondral changes of the trochlea which remained stable.

   Medial Compartment

   There was a normal medial meniscus and chondral surfaces of the medial femoral condyle and medial tibial plateau.

   Intercondylar Notch

   There was a normal ACL. There was a normal PCL. The ligamentum mucosa was intact. There was a normal lateral fat pad and normal medial fat pad.

   Lateral Compartment

   There was normal lateral meniscus. The chondral surfaces of the lateral femoral condyle and lateral tibial plateau were normal.

1. Dr Jennifer Flynn, Consultant Orthopaedic Surgeon, opined in a medicolegal report of 12 May 2017:

   Investigations

   MRI - Right Knee (21 October 2015): MRI of the right knee was reviewed and demonstrated a chondral defect of the medial femoral condyle, a chondral defect of the trochlear groove approximately 1 cm in width and significant joint fluid. There were also changes of the patellar cartilage of the lateral facet.

   MRI - Right Knee (9 August 2016): MRI was reviewed and found to show evidence of healing of the previously identified trochlear groove chondral defect. There was an abnormality of the patellar cartilage of the lateral facet which appears to have progressed when compared with the previously viewed images and suggests significant chondral damage or chondral flap in this area.

   2. Your findings on clinical examination

   The lower limbs were examined and found to have normal alignment and no muscle wasting. She was able to perform a squat achieving a position of flexion of the knee of 90°, though this was painful and she did not continue. She was unable to hop on her right leg. She had a range of motion of the right knee of 5 to 120° but normal ligamentous examination. No effusion was palpable and her medial joint line was tender. She had generalised ligamentous laxity meeting the Wynne Davies criteria for generalised ligamentous laxity.

   3. Your diagnosis of injury

   Ms Johnson has lateral patellar facet chondral loss. She has previously had trochlear chondral loss which was treated with microfracture. On the basis of sequential MRIs, her previous treatment by Hayden Morris in November 2015 has given an excellent result in terms of regeneration of cartilage.

   6. If it is your opinion that the employee’s diagnosis constitutes a disease/ailment, or the aggravation of a disease/ailment, please advise whether in your opinion the employee’s employment with the Bank contributed to a significant degree to the disease/ailment or to its aggravation. Please provide reasons for your opinion and also describe the nature and extent of any employment contribution to the disease/ailment or its aggravation.

   Ms Johnson certainly has underlying patellofemoral degenerative changes as evidenced by her previous surgery and MRI imaging. However, the recent changes to the lateral facet of the patellar chondral surface are more likely to be considered an injury rather than due to the underlying disease or ailment. It may be that the underlying patellofemoral changes have meant she is more susceptible to a chondral injury from such a fall. However I believe that her employment with Bankwest has contributed to a significant degree to her current condition. In the absence of this fall, I do not believe that this injury to the chondral surface would have occurred.

   It is my opinion that Ms Johnson’s employment has permanently aggravated the condition.

2. Dr Flynn, opined in a further medicolegal report of 24 November 2017, MRI Scan - Left Foot and Ankle (6 November 2017):

   The plantar fascia is thickened and heterogeneous in signal at its calcaneal attachments. Mild to moderate marrow oedema noted within the calcaneum at the attachment. There was also oedema in the adjacent soft tissue. No focal tear or fluid collections, no evidence of local fibroma. Plantar fascia with associated minimal marrow oedema within the calcaneum. Dr K Boddupalli.

   Addendum: 9 November 2017

   I have reviewed MRI of the left ankle; this showed subtle increased signal intensity and size of the proximal 1.5 cm of the plantar fascia consistent with plantar fasciitis, in addition there is diffuse marrow oedema at the anteroinferior calcaneus over 2 cm with subtle linear signal abnormality extending to the inferior cortical margin. These appearances are more in keeping with stress fracture than with stress reaction. Associate Professor Richard O’Sullivan.

   2. Your findings on clinical examination

   Lower Limbs:

   The right knee was examined and demonstrated normal alignment. She had a range of motion of zero to approximately 90° of flexion.

   The left ankle was examined and demonstrated normal alignment as well as normal alignment of the foot. She had a normal range of motion of the ankle, subtalar joint and mid-foot and the only relevant clinical finding was point tenderness on the inferior aspect of the heel in the region of the insertion of the plantar fascia and calcaneal bone.

   3. Your diagnosis of injury

   My diagnosis of the right knee condition remains unchanged, that is, femoral condylar and trochlear chondral lesions.

   With regard to the left foot Ms Johnson has a calcaneal stress fracture and associated plantar fasciitis.

   5. How would you categorise any injury sustained by the employee?

   I would characterise Ms Johnson’s condition as a pathological change that is bone marrow oedema and stress fracture likely in response to an abnormal gait in the setting of chronic right knee pain. I consider that the effects to the left calcaneum were gradual culminating approximately eight weeks after surgery, which fits with the pathophysiology.

   The identifiable pathological change is bone marrow oedema and the stimuli for the onset of this is abnormal gait.

   The condition is not a disease or ailment and I consider that Ms Johnson’s right knee condition and therefore her employment with Bankwest has contributed to the development of the condition.

3. Mr Morris, Orthopaedic Surgeon, opined in a medical report of 3 December 2021:

   Rachel Johnson is a patient of mine since November 2015. She underwent arthroscopic surgery at that time and was diagnosed with early onset degenerative change at the patellofemoral joint. Rachel had been making very good progress following surgery and indeed was re-attending the gym. Rachel tells me she then fell at work injuring her right knee and has never really recovered fully since. She’s required two other arthroscopic debridements and is now struggling with increasing osteoarthritic changes. No doubt Rachel's knee is affecting her ability to enjoy life and work. I do feel her fall possibly exacerbated her pre existing condition and also exacerbated her onset of formal osteoarthritis.

4. Mr Ash Moaveni, Consultant Orthopaedic Surgeon, opined in a medicolegal report of 27 July 2022:

   The relationship between our client's injuries and employment, if any:

   Ms Johnson had a pre-existing injury to her right knee that occurred in August 2015. She underwent an arthroscopic procedure as a result of this injury but recovered very well from this. She was able to attend her gym again following this procedure, doing her usual exercises.

   In my opinion, Ms Johnson’s injuries have been significantly aggravated by her employment. Ms Johnson sustained a significant injury to her right knee that occurred on 20 June 2016. This occurred when she slipped whilst at work when exiting from an elevator. She landed forwards as a result of the incident, landing on both her left and right knee. In my opinion, this mechanism of injury would have significantly aggravated the chondromalacia of the patellofemoral compartment.

   Ms Johnson also noted that she suffered a second injury to her left knee on 05 December 2018. This occurred whilst she was travelling home after receiving podiatric treatment for her left foot. She sustained a hyperextension injury to her left knee as a result of this incident. This would have significantly aggravated Ms Johnson’s patellofemoral chondromalacia.

   Finally, Ms Johnson developed plantar fasciitis in her left heel as a result of the altered gait from her initial right knee injury.

   In my opinion, Ms Johnson’s injuries are consistent with the stated cause.

5. Mr Michael Dooley, Orthopaedic Surgeon, opined in a medicolegal report of 2 May 2023:

   Do you consider on the balance of probabilities her employment with the CBA was a significant contributor to each of the body parts described in question 1? If so, why and if not, why not?

   I do not believe that Ms Johnson's employment has been a significant contributing factor to these conditions. As discussed in the body of the report, I believe that Ms Johnson has an underlying predisposition to patellofemoral maltracking, patellofemoral chondromalacia and patellofemoral degeneration in time. Her morbid obesity does mean that she has a predisposition to degenerative osteoarthritis of her knee joints. I accept that Ms Johnson's fall in June 2016 caused the underlying condition of her right knee to have heightened effect. I do not believe that it resulted in structural pathophysiological change, such that the natural evolution of the underlying condition has been altered in the long-term. I accept that altered gait for a period of time could have precipitated symptoms in relation to left plantar fasciitis. One would have expected symptoms in relation to this condition to substantially settle over a period of six months or so. In my view, Ms Johnson's past history of depression/anxiety and sustaining injury in potentially compensable circumstances, has influenced her perception of pain, her ongoing symptoms and her decision to accept repeat arthroscopy as a form of treatment for her problems.

6. Mr Dooley, opined in a supplementary medicolegal report of 29 May 2023:

   My overall assessment of the situation is that Ms Johnson has a normal variant of underlying maltracking of the patella and in association with this some degeneration of the patellofemoral joint. In this condition and especially when there is some generalised ligamentous laxity, episodes of subluxation/dislocation of the patella can occur. I believe that this explains Ms Johnson's episode in relation to her right knee in August 2015 and in relation to her left knee in late 2018. She describes falling onto her knees in June 2016. It is possible that this fall resulted in some damage to the superficial articular surfaces of the patellofemoral joints. Subsequently, Ms Johnson underwent an extraordinary amount of investigation and an extraordinary amount of treatment. I accept that she was in pain. All physical injuries, especially when they occur in compensable circumstances, are associated with a psychological reaction that will vary in its degree.  It would be my view that consequent upon the episode of June 2016, Ms Johnson has had a psychological reaction to her situation that has influenced her ongoing symptoms. It would be my view that accepting the injury that Ms Johnson may have sustained to her right knee, that the constancy and intensity of her ongoing pain and her described disability in relation to this, were greater than one would expect to see. I believe that the reason for her disproportionate pain was her psychological reaction to her situation. In time the physical and the psychological become intertwined. It is not a simple matter of separating one from the other. Ms Johnson is overweight and has been significantly overweight in the past. It is well accepted that being overweight does play a part in the aetiology of degenerative osteoarthritis of the knee joint, especially when a patient may already have an underlying constitutional tendency to this. It is evident that Ms Johnson has early but definite osteoarthritis of the medial compartment of her knee. In my view, this condition cannot be attributed to the episode of June 2016 or to work in general. My overall view would be that the episode of June 2016 has contributed, in part, to patellofemoral pain and possibly to patellofemoral degeneration. This, however, is only one part of Ms Johnson's overall presentation in relation to her right knee. Ms Johnson has undergone at least 11 MRI scans on her knees over a period of around five years. She has had multiple injections of various agents.  If one carefully examined all the well carried out studies in relation to injections of the knee for osteoarthritis and if one excludes studies that have been funded by pharmacological companies etc, there is no objective evidence that these sorts of injections provide any lasting improvement in symptoms.  From an orthopaedic point of view, it is important that Ms Johnson remains generally active and undertakes low impact exercise.  It is important that she continues to engage in a weight management and weight loss programme. I believe that she will benefit from supportive treatment from her local doctor. She has undergone three arthroscopies on her right knee joint. I cannot see how further arthroscopy would help her.  Ms Johnson said that the option of knee replacement has been discussed in her management, but that she has been told that she is too young to have this surgery. I would agree that knee replacement should not be considered in Ms Johnson's current management.

   Ms Johnson presented as a sensible and genuine historian. In many ways, her right knee condition and its relationship to work are complicated. I accept that there will be a range of views, but my view is that the compensable injury System has lost its way. Not every injury/condition can be black/white. Once there is grey, things become even more complicated. Often the assessment and medical management of a condition sustained in compensable circumstances is markedly different from the same condition occurring in everyday life. Understandably, patients get lost and become confused in the System. Matters that should be able to be sorted out in a timely fashion are not. Understandably, patients become emotionally strained by a System where they feel they are nothing more than a name or number in a slot.

   CONTENTIONS

   Ms Johnson

7. Counsel contended that Ms Johnson’s claimed physical injuries arose in the course of her employment with CBA and that her employment with CBA has significantly contributed toher physical injuries. Counsel submitted that Ms Johnson continues to suffer from her compensable injuries and requires ongoing treatment.

8. Counsel therefore contended that Ms Johnson remained at all times entitled to compensation for the compensable injures to her left knee, left foot, left heel and right knee pursuant to section 16 of the SRC Act.

9. Counsel contended that Ms Johnson is a hardworking, driven, motivated worker who has been diligent not only in her work but also in her rehabilitation. Counsel submitted the Tribunal should find Ms Johnson to be a credible witness as her answers given to the Tribunal were at all times transparent, frank and reliable. Counsel contended this was supported by all of the medical experts who had examined Ms Johnson describing her as sensible, reliable and a genuine historian.

10. Therefore, Counsel contended that the medical evidence would be key to the Tribunal arriving at the correct and preferable decision.

11. Counsel submitted that the Tribunal should prefer and rely upon the medical evidence of Mr Moaveni, Dr Flynn and Mr Morris who had all concluded Ms Johnson sustained a new injury from her fall on 20 June 2016. Counsel submitted that Mr Moaveni, Dr Flynn and Mr Morris all consider that Ms Johnson’s employment with CBA had contributed to the development of the conditions in her left knee, left foot, left heel and right knee, which resulted in significant pathology causing Ms Johnson significant pain which required ongoing treatment.

12. Counsel submitted Mr Moaveni was a sensible, impressive witness who provided a detailed analysis of Ms Johnson’s injury; comparing Ms Johnson’s scans over time arriving at a considered determination based on a thorough analysis. Counsel submitted Mr Moaveni was someone the Tribunal should not dismiss.

13. Counsel submitted Mr Moaveni found Ms Johnson to be an impressive individual who despite her significant injury, associated pain and mental health history, was not only continuing to work full time but was continuing to seek and achieve advancement in her career.

14. Counsel submitted Mr Moaveni’s evidence:

    ·     supported a finding that Ms Johnson sustained a new injury from her fall on 20 June 2016; and

    ·     would not preclude Ms Johnson as a candidate for surgery because of her mental health history.

15. Counsel submitted that of all the medical experts providing evidence before the Tribunal, Mr Morris was best placed to provide a credible and reliable assessment of Ms Johnson’s injury. Counsel submitted as Mr Morris is Ms Johnson’s treating orthopaedic surgeon, and not a medicolegal expert, Mr Morris gave evidence from a neutral position. Mr Morris expressed that it made no difference to him if Ms Johnson’s injury was work-related or not, she was still his patient to treat and as a young person in pain he was interested in providing her with treatment options to assist with her condition. Counsel submitted Mr Morris knew Ms Johnson very well, had seen her around 20 times and considered Ms Johnson did not present as someone to be concerned about given her past psychological history when presenting treatment options.

16. Counsel also emphasised that of all the experts called, Mr Morris was the only practitioner who specialised in knee surgery.

17. Counsel submitted Mr Morris’ evidence was:

    ·That sometimes you simply do not get the outcomes you hope for, and this can be unrelated to a patient’s psychological state or weight

    ·That psychologically speaking, he considered Ms Johnson was doing remarkably well as she was suffering from severe pain as a result of the significant injury to her right knee

    ·There was significant pathology in all three compartments of Ms Johnson’s right knee which was distinguishable from her left knee which did not show such a significant injury from the fall

    ·That in the absence of any other treatment he considered trialling injections for Ms Johnson as a viable treatment option to which she had previously demonstrated some good results

    ·That obese people do not always get osteoarthritis

    ·Ms Johnson was doing very well after her 2015 right knee arthroscopy and microfracture procedure before her fall in 2016

    ·Ms Johnson’s arthritis had come from the fall, as it was more pronounced on the left than the right

    ·Considered Ms Johnson had permanently aggravated her right knee from the fall and suggested treatment for her was to lose weight, undertake a regular exercise program supervised by a physiotherapist, to take anti-inflammatory medication as well as injections which he described as safe

    ·That an MRI presentation of maltracking of the patella was commonly reported by radiologists and generally irrelevant to the patient’s problem; expressed the view that radiologists always say that; those radiologists were not doctors and cannot diagnose conditions; that he ignores reporting of maltracking of the patella

    ·He did not believe he was the source of the published note in Ms Johnson’s general practitioners medical record of 8 November 2016; that it was not his usual practice to call a patient’s GP; he would not have said Ms Johnson’s right knee condition was not an injury but from day to day wear and tear

    ·That Ms Johnson does not just have degeneration of the patellofemoral joint but also medial and lateral osteoarthritis of the right knee but not seen on the left knee, and that therefore this would discount wear and tear and rejected outright having damage on one part of the knee would make other parts worse

    ·That Ms Johnson has chronic pain and significant pathology in her knee because of the fall

    ·Prior to the fall she had pre-existing patella disease but now she also has medial/lateral compartment disease, which is much worse, and if just suffering from patella disease he would not consider her a candidate for a total knee replacement

18. Counsel submitted that based on Mr Morris’ testimony the Tribunal should find that Ms Johnson should continue to receive reasonable medical treatment as outlined under section 16 of the SRC Act.

19. Counsel submitted evidence indicated that Mr Morris was not the author of the unattributed note from Ms Johnson’s general practitioner’s records dated 8 November 2016. Counsel contended Mr Morris’s evidence had been Ms Johnson’s injury was from the fall which had exacerbated her symptoms and exasperated her osteoarthritis. Counsel submitted Mr Morris’ evidence was particularly telling that Ms Johnson’s pain was not coming from both knees and the imaging supported this as the pathology was worse on the right than the left.

1. Counsel contended the Tribunal should put no weight on the note dated 8 November 2016 contained in Ms Johnson’s medical records.

2. Counsel submitted Dr Flynn was a very reputable orthopaedic surgeon who had given her opinion without fear and favour despite being a consultant for the Respondent. Counsel submitted Dr Flynn demonstrated great professionalism to her task and despite not being provided with any of Ms Johnson’s scans, she sought Ms Johnson’s approval to access the scans online to arrive at a conclusive diagnosis. Counsel submitted that Dr Flynn had expertly taken the Tribunal through the 2015 and 2016 MRI’s demonstrating the impact of Ms Johnson’s fall.

3. Counsel submitted Dr Flynn was the only medical expert who had provided other sources of material to support her conclusion; Dr Flynn provided an article by Eric J. Strauss and David K. Galos, ‘The evaluation and management of cartilage lesions affecting the patellofemoral joint’ (2013) 6(2) Current Reviews in Musculoskeletal Medicine 141:

   Chondral lesions of the patellofemoral joint may arise following traumatic or instability events or as secondary injuries developing in the setting of abnormal joint loading.

   Counsel submitted this article confirmed that a chondral lesion of the patellofemoral joint may arise following trauma and could not be simply attributed to obesity.

4. Counsel submitted the article, at 144, also confirmed that the treatment Mr Morris had provided Ms Johnson was the most appropriate given her age:

   Microfracture has the best results in young patients (<40 years old) with small lesions of the femoral condyles.

5. Counsel submitted Dr Flynn’s evidence could be summarised as:

   ·That she considered when she reviewed Ms Johnson in 2017 that Ms Johnson’s fall at work in 2016 produced a new injury, permanently aggravated Ms Johnson’s right knee.

   ·That comparing scans from before and after fall; she noted a good outcome from the 2015 procedure and that the fall had caused significant issues to Ms Johnson’s knee pathology.

   ·She noted that lateral damage was now very evident and was a result of the combined injury of 2016 rather than any gradual onset of pain or degeneration.

   ·Identified the new damage as bone moderate marrow oedema which fits with the history and the increased fluid in Ms Johnson’s bones, as evidenced on the MRI scans.

   ·That damage to the knee from Ms Johnson’s fall would have been significant and not superficial as described by Mr Dooley.

   ·That the knee is an articular surface, which is a few millimetres thick, given there was already damage to Ms Johnson’s right knee, damage to the articular cartilage that what was remaining would be friable and easily damaged.

   ·She was ‘disappointed’ by the reports of Dr Philip Haynes and Mr Dooley who had not considered the MRI scans as she had done.

   ·Critical of Mr Dooley for his conclusion on the significance of Ms Johnson’s psychological issue having impact on her treatment outcome; particularly as Mr Dooley came to this conclusion before even seeing Ms Johnson; which was more confusing as he had described Ms Johnson as a ‘sensible and genuine historian’ and that Mr Dooley usually comes to such conclusions in his report.

   ·She found Ms Johnson did not present in a manner that evidenced any functional overlay, malingering or over exaggerating and noted Mr Dooley agreed with her observations.

   ·She emphasised the importance of looking at a person on their merits and that as doctors they were trained to look for such traits as functional overlay etc, but Ms Johnson was not such a person.

   ·Considered Mr Morris’ treatment of Ms Johnson was reasonable given her age and severe pathology; also maintained Ms Johnson was too young for a total knee replacement and it was reasonable to try other things to relieve her pain.

   ·As a result of Ms Johnson’s right knee injury, her weight issues were exacerbated by a lack of exercise tolerance.

6. Counsel contended that Dr Haynes was a most unimpressive witness, that his reports were riddled with significant errors, both factual and typographical. Counsel submitted Dr Haynes simply failed to include any reference to the left knee injury and repeatedly referred to Ms Johnson’s right foot and left ankle, not her left heel injury. A mistake Dr Haynes acknowledged during his evidence at the hearing.

7. Counsel submitted Dr Haynes offered nothing to the conclusion of Ms Johnson’s injury or causation. Counsel submitted the Tribunal should have little confidence in his opinion.

8. Counsel contended Mr Dooley provided open and frank evidence and is an experienced and respected orthopaedic surgeon. Counsel submitted Mr Dooley willingly accepted his opinions are that of an outlier, and he proudly described himself as a grumpy conservative orthopaedic surgeon. Counsel submitted that it was important to note that Mr Dooley had not clinically examined Ms Johnson or seen her scans when he wrote his initial report of

   
   

   2 May 2023.

9. Counsel submitted Mr Dooley had observed in his report that Ms Johnson presented as a genuine and sensible historian and provided no observation in his evidence as to why

   
   

   Ms Johnson remained in pain and suffered from a disability.

10. Counsel submitted Mr Dooley had not seen Ms Johnson’s MRI scans, instead relying on the radiologist’s conclusion, and based on this, concluded that Ms Johnson had an undocumented psychological reaction to her injury. Counsel submitted Mr Dooley had failed to present any evidence to support his conclusion.

11. Counsel submitted Mr Dooley considered Ms Johnson’s response to her pain was disproportionate but that no other medical expert had supported this conclusion. Counsel submitted Mr Dooley had formed a definite view of Ms Johnson, he did not accept the fall was causative of her injury and posited a view her issues were psychological, but this was not based on fact.

12. Counsel submitted the clear and detailed evidence of Mr Moaveni and Dr Flynn was far more persuasive.

13. Counsel submitted all the medical witnesses recognised the importance of considering psychological factors of a patient when making a diagnosis and considering treatment options. Counsel submitted all the medical witnesses took Ms Johnson’s psychological factors into account and none considered psychological factors were influencing

    
    

    Ms Johnson’s experience of pain or her response to treatment.

14. Counsel submitted that the Tribunal has evidence from three reputable and respected orthopaedic surgeons who all found Ms Johnson’s injury was caused by her fall at work and expected this injury to continue to cause her disability.

15. Counsel submitted Mr Moaveni, Dr Flynn and Mr Morris agreed that Ms Johnson had been injured from the fall in 2016 and damage from the fall continues to be a significant contributing factor to her injury. Therefore, Counsel submitted Ms Johnson’s injury arose out of and was caused by her employment with CBA. Counsel submitted Ms Johnson’s fall at work in 2016 was a new injury which has advanced the degeneration in Ms Johnson’s patellofemoral joint.

16. Counsel submitted Ms Johnson continues to require medical treatment for her left knee/left foot/left heel and right knee, all from a work-related injury with the right knee directly from work and her other injuries being secondary to her first injury. Counsel contended

    
    

    Ms Johnson’s right knee pain has caused her to walk with an altered gait for a period of time which has created the symptoms in her left knee/left foot/heel.

17. Counsel submitted that all medical experts accepted that Ms Johnson would require a total knee replacement at some point in the future and that for Ms Johnson to be able to manage in the interim, she requires continuous weight loss treatment, an exercise program to strengthen her body and other appropriate treatments as assessed by her treating doctor.

18. Counsel submitted

    Mr Dooley has come to a totally different conclusion as compared to the other medical experts, determining Ms Johnson’s knee condition is impacted by her psychological reaction to her situation. Counsel contended this was at odds with

    
    

    Mr Dooley’s own report as he had observed: [he did] not believe that Ms Johnson would have come to further surgery on her right knee if she did not have the work related-fall.

19. Counsel submitted it was significant that the reports of Mr Morris and Dr Flynn marry up very well as both had independently taken time to review the radiological finds and consider the real issues impacting Ms Johnson.

20. Counsel submitted the evidence before the Tribunal overwhelmingly supports the conclusion that as at 24 November 2021 Ms Johnson’s 20 June 2016 injury continued to contribute to a significant degree to each of the injuries for which CBA had previously accepted liability.

21. Counsel submitted that it is clear from the evidence that Ms Johnson needs all the help she can get in dealing with her work-related injury and subsequent pain before she has a total knee replacement in the future. Counsel submitted that treatment may include treatment that is short lasting such as cortisone or other types of injections to provide intermittent pain relief. Counsel submitted this was an entirely appropriate form of treatment.

22. Counsel submitted all medical witnesses agreed it was entirely appropriate for Ms Johnson to take analgesics on a daily basis to help her get through her day and deal with her pain. Counsel submitted all medical experts had agreed there was no permanent fix to
    Ms Johnson’s pain at this point in time. Counsel described Ms Johnson’s task ahead as a marathon to deal with the pain before she can have a more permanent resolution to her workplace injury.

23. Counsel contended it was therefore fair in all the circumstances to enliven Ms Johnson’s claim so she can get access to all the assistance she requires now and into the future.

    CBA

24. Counsel contended that the causal nexus between Ms Johnson’s claimed physical injuries of right and left knee conditions as of October 2021 was broken, relying on the report of
    Mr Dooley dated 2 May 2023:

    I do not believe that Ms Johnson's employment has been a significant contributing factor to these conditions. As discussed in the body of the report, I believe that Ms Johnson has an underlying predisposition to patellofemoral maItracking, patellofemoral chondromalacia and patellofemoral degeneration in time. Her morbid obesity does mean that she has a predisposition to degenerative osteoarthritis of her knee joints. I accept that Ms Johnson's fall in June 2016 caused the underlying condition of her right knee to have heightened effect. I do not believe that it resulted in structural pathophysiological change, such that the natural evolution of the underlying condition has been altered in the long-term. I accept that altered gait for a period of time could have precipitated symptoms in relation to left plantar fasciitis. One would have expected symptoms in relation to this condition to substantially settle over a period of six months or so. In my view, Ms Johnson's past history of depression/anxiety and sustaining injury in potentially compensable circumstances, has influenced her perception of pain, her ongoing symptoms and her decision to accept repeat arthroscopy as a form of treatment for her problems.

25. Counsel submitted the law in this area is governed by Woodhouse v Comcare (2021) 285 FCR 14 (‘Woodhouse’), such that the key question is whether the causal nexus between the employee’s employment and suffering of the disease [or injury] continues unbroken, at [85]:

    Logically, the causes of a disease or ailment tend to cease once the condition is suffered and the employee ceases employment or the causative factors are remedied. However, having been caused by the contribution of the employee’s employment, the condition itself often continues and compensation is payable to the extent to which it results in death, incapacity or impairment. It does not follow that, in order for Comcare to remain liable, the employee’s employment needs to remain a constant and continuing contributor to the ongoing injury. That would rarely, if ever, be the case. However, what is required is that the contribution requirement remain in place in the sense that the disease or ailment continues to have the characteristic of having been contributed to in a material degree by the relevant employment. To say that the employment factors continue to contribute in a material way to the employee’s condition is an inarticulate way to express this. It is preferable to say that the causal nexus between the employee’s employment and suffering of the disease continues unbroken. In this way, the operative effect of the expression “was contributed to” in the definition is not spent once it has connected the employee’s employment with the contraction or aggravation of the ailment. In order for a disease to remain one in respect of which Comcare will be liable, it must retain the continuing characteristic that it was contributed to in the necessary degree by the employment. If at any later point in time the ailment suffered by an employee ceases to have that character, it will also cease to be a “disease”, and will therefore cease to be an “injury” in respect of which compensation is payable pursuant to s 14 of the SRC Act. For the duration of each of the periods in respect of which the question of compensation is being determined, it must be possible to say that the contribution requirement was satisfied in respect of the ailment.

26. Counsel submitted there was no issues regarding Ms Johnson’s credit, she had been a reliable witness, has shown consistent motivation to work and has achieved success in her career pre and post her fall at work in 2016.

27. However, Counsel submitted Ms Johnson’s perception of her injury and fall are completely different to her work ethic and motivation.

28. Counsel submitted that the fall in compensable circumstance required the Tribunal to be satisfied that Ms Johnson’s right knee condition was contributed to by the employee’s employment at CBA to a significant degree, where the SRC Act defines significant degree means a degree that is substantially more than material. Counsel contended section 5B(1)(b) of the SRC Act required that if the Tribunal did find the fall continues to contribute to Ms Johnson’s right knee condition, which the Respondent disputes, but not to the requisite degree of more than material contributions, then Ms Johnson’s claim must fail.

29. Counsel contended there were several major contributing factors to Ms Johnson’s ongoing right knee condition.

    (a)The first factor was pathology; Counsel submitted the pathology of Ms Johnson’s right knee pre-existing the fall and the medical evidence supports the proposition that pre-existing and degenerative pathology continues to affect the knee. Counsel submitted Ms Johnson’s right knee condition was impacted by chronic patellofemoral maItracking; degeneration chondral damage; and ligamentous laxity (knee giving way). Counsel submitted this was supported by Ms Johnson’s own up-front evidence that she had experienced knee pain from her late teens; Counsel contended this was degeneration in progress by definition.

    (b)The second major contributing factor to Ms Johnson’s right knee was her history of being overweight or obese. Counsel submitted that the medical evidence supports the proposition that the weight of a person is relevant in assessing knee conditions and this was also noted in the medical article Dr Flynn provided. Counsel submitted the weight of an individual is relevant to complaints of knee pain. Counsel submitted Ms Johnson has a significant history of being overweight and this predated her knee issues and that even when Ms Johnson was leading a very active lifestyle, given she was at 90kg, she was overweight.

    (c)

    The third factor was Ms Johnson’s psychological state. Counsel submitted that the medical evidence recorded Ms Johnson was suffering from depression.

    
    

    Ms Johnson’s ongoing issues are evident in the abject failure of any treatment administered to her left heel or right knee to give her any relief. Counsel submitted CBA disputes that the fall contributed to the injury and does not meet the requisite significant degree, relying on Woodhouse.

30. Counsel contended the issue before the Tribunal was in essence an orthopaedic one, however they submitted a psychological aspect looms large as a contributing factor. Counsel submitted it is not essential for the Tribunal to find a psychological injury, but reinforced that there was a significant psychological component contributing to Ms Johnson’s knee condition.

31. Counsel submitted the Tribunal should affirm the determination based on Mr Dooley’s evidence and submitted that Mr Dooley was a particularly impressive witness and should be preferred by the Tribunal as he:

    ·Is an expert in the field and has a long history of treatment of patients and performing surgery.

    ·Undertook a thorough analysis of Ms Johnson’s case.

    ·Acknowledges his approach is conservative.

    ·Looked at the whole person when undertaking a review, including psychological aspect and that approach is particularly relevant here. Dr Flynn rather derogatively stated that Mr Dooley often refers to a psychological aspect however Mr Dooley’s insight are especially relevant and have been borne out by the evidence.

    ·Provided viva voce evidence which was in keeping with his report, which was provided in a non-partisan way.

    ·Was provided with relevant information about Ms Johnson’s history of anxiety and depression when undertaking his review.

32. Counsel submitted there was commonality of opinion amongst all the orthopaedic surgeons regarding the relevance of underlying factors when considering Ms Johnson’s injury including the impact of a person’s weight on the knee.

33. Counsel conceded it had to be acknowledged that Mr Dooley was the outlier regarding the psychological aspects of Ms Johnson’s injury. Counsel submitted it was concerning that other expert witnesses had not noted or enquired about Ms Johnsons psychological state. Counsel submitted it may not be surprising that Mr Moaveni and Dr Flynn formed the impression Ms Johnson was not suffering from psychological aspects given her motivation to continue working after her knee injury. However, Counsel submitted neither Dr Flynn or Mr Moaveni questioned the background of Ms Johnson being prescribed Lexapro; Dr Flynn and Mr Moaveni simply left it alone and took no history of her depression and anxiety.

34. Counsel submitted it was a shortcoming in the Applicant’s case that this psychological aspect had effectively been ignored. Counsel submitted it was concerning as Ms Johnson’s depression and anxiety predates her fall in 2016 and according to her records from the Perth clinic was present from the time Ms Johnson was in year 11. Counsel submitted there was significant evidence that Ms Johnson commenced psychiatric treatment in 2014, had been diagnosed with a psychological condition; and her psychiatrist in Perth recommended she be referred to a competent psychologist as she was relocating to Melbourne permanently. Counsel submitted it beggared belief that the other medical experts had not assumed a psychological factor was present or at play in the impact of her fall; notwithstanding Ms Johnson continued to work and achieve in her career.

35. Counsel submitted

    the Tribunal should be concerned by Ms Johnson’s evidence about being scheduled to be weaned off Lexapro at the time of the fall. Counsel submitted

    
    

    Ms Johnson’s evidence was this had been proposed by her general practitioner Dr Civitico, but there was simply no evidence to support this, indeed the clinical records show

    
    

    Ms Johnson did not see Dr Civitico until 2017 and there is no mention of any doctor weaning her off Lexapro.

36. Counsel submitted

    the Tribunal should be concerned by Mr Morris’ letter to CBA of

    
    

    3 December 2021, in which he opined: I do feel her fall possibly exacerbated her pre existing condition and also exacerbated her onset of formal osteoarthritis. Counsel submitted this indicated Mr Morris’ opinion was qualified that his view was there may be a possible nexus but he was not firm. Counsel contended this was consistent with the evidence as it was not possible to establish a nexus to the fall; that it was indeed possible a significant blow caused Ms Johnson damage, but this must be reconciled with the fact Mr Morris did not record worsening pathology in Ms Johnson’s right knee until 2019.

1. Counsel contended it was not until later in Mr Morris’ viva voce evidence that he firmed up his opinion that there was a nexus between Ms Johnson’s fall in 2015 and the pathology in her right knee.

2. Counsel submitted

   the published note from Ms Johnson’s medical records dated

   
   

   8 November 2016 on any view of its face value was potentially fatal to Ms Johnson’s claim. Counsel contended under the Hanford rule this would mean Ms Johnson’s claim should not have enlivened section 14 of the SRC Act in the first place. In regard to the note Counsel observed:

   ·That surely everyone in the hearing knew of the note prior to the hearing but the Applicant had failed in any way to address or explain the note or its origin

   ·Mr Morris could not locate documents from 2016, he had no idea about the note, and could not recall discussing the second MRI's with Ms Johnson’s general practitioner

   ·How did the note come about? Was it someone expressing an opinion, if so who would that be? Is it reasonable to think someone would make a note making findings? And make probability of keyhole surgery - is it reasonable a general practitioner would write up a note expressing own opinion and make statement about probability of key hole surgery?

   ·Would the radiologist report about comparison and comment about keyhole surgery?

   ·The hearing was not able to shine a light on the specifics of the note, and as such it remains a ‘black hole’.

   ·It could well be an innocuous note of no critical importance, or it could be of vital importance to the Tribunal’s finding.

   ·We can only speculate as to its origin or importance and is never going to get answered in these proceedings and that lack of clarity does not assist the Tribunal in its inquisitorial role in its making of a decision.

3. Counsel submitted whilst not before the Tribunal it should look at Ms Johnson’s current claims under section 16 of the SRC Act. Counsel submitted the Tribunal’s views on such claims would be beneficial to the parties and may mitigate against parties returning to the Tribunal to argue a disputed reasonable expenses claim.

4. Counsel submitted a sizable portion of the expenses claim was $8,000 for travelling between home and work, including parking. Counsel submitted such expenses are not payable under section 16 of the SRC Act. Counsel submitted other expenses included monthly general practitioner visits including weight control, pain management and weight loss. Counsel submitted weight reduction treatment again may not be considered as a reasonable expense as Ms Johnson’s weight issues pre-date her fall. Counsel submitted the probability of Ms Johnson requiring a total knee replacement in 15 years or more may not be considered reasonable medical treatment under section 16 of the SRC Act for this injury.

   CONSIDERATION

5. The Tribunal finds on the evidence that Ms Johnson’s fall at work on 20 June 2016 resulted in an injury to her right knee. That subsequent to the fall, Ms Johnson developed left heel and left knee pain associated with her original injury. The Tribunal considers Ms Johnson’s injury has been significantly contributed to by her employment with CBA, and has been aggravated, accelerated and exacerbated by her employment with CBA.

6. The Tribunal notes that CBA determined on 16 May 2017 that Ms Johnson had suffered from an injury:

   I am satisfied that you are suffering from right lateral patellar facet chondral loss and that this constitutes an injury/medical condition as was intended at section 5A of the Act.

7. The distinction between sections 5A(1)(a) and 5A(1)(b) of the SRC Act is an important one, given that the classification of a condition as either a disease or an injury (other than a disease) sets out the applicable test for determining the contribution of work to an injury.

8. Specifically, for there to be an injury (other than a disease) (often referred to as an ‘injury simpliciter’), the injury must arise out of, or in the course of, employment (section 5A(1)(b)).

9. An injury simpliciter (within the meaning of section 5A(1)(b)) can be contrasted with a “disease” which, according to section 5B(1), must be contributed to, to a significant degree, by the employee’s employment. Thus, a “disease” requires a stronger causal connection between the employment and the ailment (Australian Postal Corporation v Burch (1998) 85 FCR 264 at 268) than that required for an injury simpliciter.

10. The Tribunal notes (like numerous Tribunal Members before) the following observations of the High Court in Canute v Comcare (2006) 226 CLR 535 at 540 about the concept of an “injury”:

    …First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment; it is liable to pay compensation in respect of ‘the injury’. Secondly, the term ‘injury’ is not used in the Act in the sense of ‘workplace accident’. The definition of ‘injury’ is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body. Thirdly, the term ‘injury’ is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to ‘disease’ or ‘physical or mental’ injuries and, at least to that extent, it assumes that an employee may sustain more than one ‘injury’. The use in s 24(1) of the indefinite’ article in the expression ‘an injury' reinforces that conclusion.

11. The Tribunal was not persuaded that the determination in Woodhouse required the Tribunal to now determine Ms Johnson’s ongoing liability in accordance with section 5B(1) of the SRC Act. The Tribunal agrees that Woodhouse requires the Tribunal to find Ms Johnson’s injury must retain the continuing characteristic that it was contributed to in the necessary degree by the employment. The Tribunal did not consider that this necessitated in determining Ms Johnson’s injury was contributed to a significant degree by her employment; meaning a degree that is substantially more than material.

12. The Tribunal concurs with the determination in Woodhouse that Logically, the causes of a disease or ailment tend to cease once the condition is suffered and the employee ceases employment or the causative factors are remedied. The Tribunal found based on the evidence before it that Ms Johnson’s injury has not resolved simply because she has taken a voluntary redundancy from the CBA nor have her causative factors been remedied. The Tribunal found based on the evidence that Ms Johnson, from 29 October 2021 to the present, continues to suffer from work-related right knee, left heel and left knee injuries.

13. The Tribunal concurred with Counsel for both Ms Johnson and CBA that the issue before the Tribunal was very narrow in many respects, that being orthopaedic and fundamentally the prime issue for the Tribunal to determine was whether Ms Johnson’s fall at work in 2016 still contributed to her compensable injuries.

14. The Tribunal found Ms Johnson to be a credible and reliable witness not given to exaggeration or embellishment. The Tribunal considered that Ms Johnson was very forthcoming about her long-term history of pain in her knee and mental health issues pre-dating her fall in 2016.

15. The Tribunal placed no weight on Ms Johnson’s statement and evidence to the Tribunal about being weaned off Lexapro in 2016. In essence this information was irrelevant to the Tribunal and was not a factor in the Tribunal’s determination.

16. The Tribunal considers Ms Johnson was being asked to recall issues that happened some seven years ago and a lot has happened in her life since then. The Tribunal also notes a statement in Dr Kumar’s letter of 16 March 2016 that; [Dr Kumar] asked her to wean off the Edronax as well. The Tribunal observes, when giving evidence Ms Johnson may have confused Dr Kumar’s weaning her off Edronax (an antidepressant) with thinking this had been a discussion with Dr Civitico about being weaned off Lexapro. The Tribunal finds this lapse of Ms Johnson’s memory has no impact on its determination whether Ms Johnson’s fall at work in 2016 contributed to her compensable injuries.

17. In arriving at its determination that Ms Johnson’s fall at work in 2016 still contributed to her compensable injuries the Tribunal relied on and preferred the evidence of the majority of medical experts - Mr Moaveni, Dr Flynn and Mr Morris.

18. The Tribunal relied on Mr Moaveni’s observations and conclusion drawn from looking at Ms Johnson’s scan in 2015 and 2016; and the medical images taken by Mr Morris during her two arthroscopic procedures to determine there was and continued to be a contribution between Ms Johnson’s fall at work in 2016 and the current pathology in her right knee and her associated left heel and left knee injuries. The Tribunal drew on Mr Moaveni’s testimony:

    Ortho surgeons recognise that if you’re overweight you’re more likely to end up with knee arthritis – that as a statement is true, there are different types of knee arthritis and in my opinion, not every type of knee arthritis relate to being overweight – describing some anatomy – the knee joint is a combination of 3 different bones – the femur, which is the thigh bone; the tibia which is the leg and the patella which is the knee cap. Most of the weight that goes through the knee when we are walking and standing goes through the joint between the femur (thigh) and tibia (leg) …. If you are overweight and you end up with knee arthritis, it is that joint that is commonly impacted, particularly the medial side (or the inside) of the knee. This was not consistent with the type of cartilage damage she presented with (behind the knee cap) not a joint that is as weight bearing. In summary, I don’t think that the assertion that her weight has contributed to her arthritis - I disagree with that… And the second question is ‘how much is overweight?’…. I give the opinion that 90-92kg is not considered morbidly obese to contribute to arthritis. I would have to calculate her BMI – combination of her weight and her height.   

    Mr M: I took screenshot of the scans Mr Morris took before the Arthroscopy… Arthroscopy is performing key hole surgery on the knee whilst putting a camera inside the joint and having a look at the joint surfaces and generally most surgeons will take pictures at that time. Mr Morris has done a fantastic job as he has taken the sequential pictures in a very systematic manner over the three arthroscopies that he performed as notes in 2015, 2017 and 2019. I’ve put them side by side so we can compare them. Firstly, the 2015 photos on the hard left side and if you go to column on right and top picture – that view is showing the under surface of the kneecap, and the surface of the patella. That view is showing the articular cartilage that lines the kneecap which allows movement. You will see a very small area where the cartilage doesn’t quite look normal….What you’d expect to see is for the whole of the surface to be completely white. So any of that discolouration would represent abnormality of the lining of the joint. In particular, the under surface of the kneecap – so this was the extent of Ms Johnson’s injury on 6 November 2015 when she had her first knee arthroscopy.

    If you look at the picture on that same group of pictures from 2015 and look at the left column – in the bottom picture – you can see three small drill holes made into bone…There’s three little circles in bone. That’s a different area of the knee – we’re now looking at the femur (thigh) where the area is called the trochlea, where the kneecap sits. That is where Mr Morris has completed his microfracture – which means where he has drilled holes into the bone with the idea of encouraging the cartilage to grow back.

    If you look at the middle series of photos from the knee arthroscopy performed in July 2017 – in the left hand column, top picture, that is a similar area to the first picture that I was describing and you can see Ms Johnson has got far more extensive damage to the under surface of the kneecap.

    What I would expect to see in an early thirties person at this stage is completely smooth surface – white surface that is completely smooth to allow movement to occur without pain. In that top row, left side picture, looking at the under surface of the kneecap and the patella, you can see there is roughing, abrasions of the area – this area of damage is far more extensive than what was present back in 2015. One of the comments I read in Dr Flynn’s medical report gave the opinion that there was more extensive damage to the under surface of the patella as a result of her fall – this picture would also be consistent with that.

    The second comment I would made about those group of photos from 2017 – looking at the left hand row, bottom picture – that picture is taken of the area where Mr Morris had made his microfracture before – and there is now no longer exposed bone present (which is more darker brown, yellow in colour) – but you can see there is whiteness on the bone suggesting there was some healing with the microfracture procedure, which is again one of the things I note that Dr Flynn also noted in her report. Obviously she didn’t have the advantage of looking at these arthroscopic pictures, so what I am concluding is that there was healing of the damage that was there back in 2015 and there was new injury when the arthroscopy was performed in 2017 which would be consistent with the mechanism that Ms Johnson described to Mr Morris, Dr Flynn and also to myself – which was a direct fall onto her knees, worse on the right compared to the left.

    Unfortunately they show her progression of her arthritis. For example, in that 2019 series of photos, looking at the picture in the middle column, you can see there is yellow tinge to the picture and floating bits of white material which are bits of cartilage that have been degraded - being visible arthritis is forming.

    That represents the area of damage to cartilage – it’s on the part of the femur that the kneecap sits on. That is the area where Mr Morris had performed his microfracture. The second image on the right is the 2016 MRI scans, approximately six weeks after the fall – marked with a ‘1’ and small green line, which represents the new damage/injury to the under surface of the kneecap which wasn’t present on that first MRI scan in 2015.

    The benefit I have is that I can correlate the MRI images with the arthroscopic images to understand injury

    When Ms Johnson had her MRI in in 2016 there was a significant amount of fluid in the knee joint and that would go with the idea there is a new injury to the knee. So generally there is very little fluid in the knee joint. If there’s been an injury to the knee joint then the lining of the knee (synovium) can produce fluid as a reaction to an injury that’s occurred – which is synovial fluid. On the MRIS scan there was signs of a new injury occurring as a result of that synovial fluid. There was also some synovial fluid back in 2015 when she had her first injury, but that would have been drained or washed following the arthroscopy she had back in 2015.

    I respectfully disagree with Mr Dooley – as I tried to point out upon reviewing the MRI scan and the arthroscopic pictures, I do believe Ms Johnson sustained a new injury to her knee when she had her fall on 20 June 2016. That injury being specifically to the under surface of the kneecap, more on the lateral (outside). There was clear evidence of that for me – both on the MRI scan and on the arthroscopic pictures. If she hadn’t had that fall, I don’t think she would be having this progression of her cartilage damage as we’re seeing now in the 2019 MRI scan. So I don’t agree with Mr Dooley’s first statement about the right knee. Similarly, with the left knee, Ms Johnson was very clear in terms of her description of her injury to myself and Dr Flynn that when she fell she did injure both her knees. And as Mr Dooley points out, that awkward walking can be a reason why a person may develop plantar faciitis.

19. The Tribunal relied on Dr Flynn’s observations and conclusion drawn from looking at
    Ms Johnson’s scan in 2015 and 2016 at determining there was and continued to be a contribution between Ms Johnson’s fall at work in 2016 and the current pathology in her right knee and her associated left heel and left knee injuries. The Tribunal relied upon
    Dr Flynn’s observation particularly as she had reviewed Ms Johnson close to the fall, had in the first instance been utilised by CBA to arrive at a determination that liability be accepted for Ms Johnson’s claim and the confluence of opinion she and Mr Moaveni arrived at independently. The Tribunal drew on Dr Flynn’s testimony:

    When I met Rachel, there was certainly no suggestion of functional overlay or emotional stress that was influencing symptoms or making them more severe. She presented in a very genuine and straightforward manner – no suggestion of chronic pain or exaggerated emotional response.

    It is difficult with someone who has pre-existing anxiety or depression that all future physical symptoms are discounted and I don’t understand that view as an orthopaedic surgeon. We assess each patient, their presentation and radiology on its merits. There are certainly patients who have functional overlay without any underlying pathology and I did not think Ms Johnson was one of those people when I met her.

    Based on all the treatments Ms Johnson has had and the fact that she is too young to have a knee replacement and has used various injections, which I accept is a controversial treatment of knee arthritis – however whilst not a magic cure, they are aiming to provide some symptomatic and short-term relief.

    Obtained Ms Johnson’s consent to view these images – they were not provided to me in the report – however due to the importance of looking at the imaging I obtained her consent. On the right, you can see 21 October 2015, the radiologist has marked the telefemoral cartilage, the trochlea cartilage – and you can see a gap, you can see white, which is the trochlea defect in the centre and relatively normal cartilage either side and we can see on the new image on 21 October 2015 where the radiologist has marked a small defect of the lateral patella facet and also a green ‘1’ that is different to the one I’ve just shown you. That shows the non-work related injury before the fall at work in June 2016 showing the trochlea defect and the lateral patella facet damage. On 9 August 2016 – just a few weeks after the fall – what’s striking to note – is the white fluid defect that we previously saw in the trochlea groove has since healed – that was the area of microfracture – with fibroid cartilage, which most orthopaedic surgeons will be happy with. Then we come to see the lateral patella facet damage is now more extensive on these views – the radiologist has now marked with a ‘1’ in the centre, slightly larger than it was before. You can also see in another view, the damage is again more extensive and the radiologist has marked it with a ‘1’. Ms Johnson also gives a history of an acute injury, not a gradual onset of pain, but a slip and a fall onto the knee – so looking again at the actual views of 9 August 2016, what’s relevant is there is now this bone marrow oedema – so directly under the ‘1’, you will see the bone is a slightly lighter grey than the surrounding bone which indicates bone marrow oedema and that would fit with the history provided of an acute slip or fall. Bone marrow oedema is an area of increased fluid in the bone – it can indicate a chronic degenerative process such as arthritis but it can also indicate an acute injury, which is most likely given the history she has presented with and the fact this MRI was taken a few weeks after the fall and onset of pain.

    Taking into account her clinical examination and history it indicated likely an acute injury and it fit together and made sense that there had been an acute work-related injury when she slipped getting out of the elevator.

    Damage to the articular cartilage – particularly when there was already a small amount of damage there, then that cartilage that is remaining would be friable and more easily damaged. So it would be fibrillated and would easily scuff off and easy to extend the damage given there is already a small area of damage there that we saw in the initial MRI of 2015.

    I think he was referring that these sorts of changes are likely to be more degenerative and not caused by trauma. I included the article I had that says these patellofemoral changes can be traumatic and you can’t just put it down to degenerative changes in someone who is obese. We need to take into account all of the history and the fact that in a small area of cartilage damage, a fall onto the knee can cause extension of that injury and have ongoing impact, in a permanent way.

    Knee continued to be problematic – has not made full recovery from that time

    Injured left knee normal – not injured from fall – not problematic – fall was not making a significant contribution to left knee – would agree

    Aging means the passing of years. Ms Johnson has early onset arthritis – she doesn’t have age-related degenerative change of the knee.

    If looking at the initial MRI, there is some chondral defect – I don’t think we’d call that arthritis. I haven’t seen the subsequent MRIs of 2016, but I still wouldn’t call that degenerative arthritis of the knee. But I understand from the records that have been subsequently provided that she now has arthritis. But she had chondral injuries at 2015 and 2016 and subsequently has developed early onset arthritis.

    Weight is making a contribution – weight is quite significant

    Add in fall and obesity and add in fall than you get what we see

1. The Tribunal relied on Mr Morris’ observations as Ms Johnson’s treater from 2015, prior to the fall, to the present. The Tribunal found Mr Morris to be a credible witness who was not seeking to advocate on behalf of his patient. Mr Morris’ frank observation that he was not interested in how Ms Johnson’s injury arose but in resolving his patient’s pain accounted for the qualification of his opinion of the causation of her injury and nexus to employment. The Tribunal drew on Mr Morris’ testimony:

   This is the crux of the matter – my view is that given Rachel’s pre-existing pathology – I listen to my patients – she was doing fairly well – she tells me ‘then I fell, and I’m not doing very well’ – the fall has certainly exacerbated her symptoms. The fall did not cause the pathology but it can certainly worsen the progress. I feel her developing osteoarthritis is somehow related to that fall because her other knee has the patellofemoral pathology as well, but this knee is much worse. Somehow that fall has caused developing osteoarthritis of the right knee.

2. The Tribunal determined there was and continued to be a contribution between
   Ms Johnson’s fall at work in 2016 and the current pathology in her right knee and associated left heel and left knee pain relying on Mr Morris’ testimony:

   The pathology of her right knee is advancing osteoarthritis of all three compartments of her knee. Where the reports differ is whether the right knee pathology is related to a fall she had back in 2016. It’s never easy as none of us were there at the time to see exactly what happened but the report is that Rachel had a coffee in her hand, slipped and fell landing on both knees. The question is ‘can you injure your knees to a point where there will be significant damage by that sort of fall?’ My opinion is, that you can. Certainly after injury, you can have a normal looking chondral surface with an underlying bone bruise that will be seen on an immediate MRI scan. Chondral damage can develop later – that’s a well-known phenomenon – for example, ACL injury with the typical pattern of bone bruising; chondral surfaces look fine and 3-4 years later, the chondral surface is breaking down. With a significant blow as you fall, you could suffer chondral damage to the knee that is not immediately apparent but can become apparent at a later date. That’s not to stay it’s definitely happened, just that it is possible.

   She has progressive osteo degeneration and this is an osteoarthritic process – it’s a complex area as there are metabolic, biologic and mechanical aspects of developing osteoarthritis. There is a question of a person that is overweight puts more stress on their knee – so the osteoarthritic process can be enhanced by that. There are many osteoarthritic people with no arthritis in their knee. So obese people don’t necessarily all get osteoarthritis but once you do have an element of damage in your knee, obesity is a factor that we look at.

   Patellofemoral degenerative change was noted at the previous arthroscope in 2015 – that appeared to be a little worse, but I believe that was present prior to the fall. Not to say that the fall made it worse – you can certainly have exacerbation of pre-existing disease. We did an arthroscope in 2017 and didn’t really see the developing chondral pathology of the other parts of the knee at that time but it was certainly present in 2019 when there was a further arthroscope as things were worsening. At the time of the 2017 arthroscope there was already existent patellofemoral disease and no other chondral injury. In 2019, there was developing osteoarthritis.

   Mr M: Patella femoral degenerative change appeared a little worse… exacerbation of pre-existing disease - that was all I really saw… we did arthroscope in 2017… certainly present in 2019. At the time of the ’17 arthroscope there was already existing patella femoral disease no other chondral injury …. 2019 there was developing arthritis….Mr Dooley

3. The Tribunal found Mr Dooley to be a credible and thoughtful expert witness and agreed with many of his conclusions and noted he also expressed in his evidence to the Tribunal that Ms Johnson’s fall may have contributed to her compensable injury.

   Mr F: Prime issue in this matter is whether the fall continues… to still contribute to right knee condition to a significant degree - in respect of 2015 MRI scans and Aug 2016 two months after the fall… have you looked at those scans

   Mr D: Yes

   Mr F: Did you form any conclusions about comparing those scans?

   Mr D:

   Scan October 2015 – can see the full thickness defect – in the trochlea of the femur  

   You can see a defect  and irregularity involving the chondral area of the patella, more on the lateral side - I couldn’t see obvious torn meniscus.

   I can see hyperintensity around the fatpad…. I don’t know what that means…. Radiologist are keen on saying that’s indicative of maltracking

   I could see the chondral defects in the patella and femur – and as an orthopaedic surgeon you want to rule out crucial ligament damage and meniscal damage and there was no evidence of that in respect of 2015.

   Cartilage image damage

   Again in 2016 you can see the same hyperintensity of the fatpad.. I’m not sure I can see full thickness chondral loss involving the patella. I can see irregularity there but I can’t interpret that and compare it to 2015.

   Mr F: On viewing those two scans and comparing them, could you comment on the suggestion that there was new damage in that second MRI taken subsequent to the fall

   Mr D: I would say that shows some chondral defect in those various places – I can’t absolutely say it is from trauma, but I accept that is a possibility. The radiologist view is their opinion it’s not a diagnosis….then you try and correlate that with what you see in the radiology report and noted at operation and marry all those things together.

   Mr F: Do you have any comments regarding damage to the knee after the fall after reading reporting letters from Mr Morris?

   Mr D: Looking at the report of the MRI of October 2015, noted tear of the meniscus and also a significant chondral defect of the median femoral chondral  – yet at operation none of those two things found; MRI of August 2016 and surgery of December 2017, the operative notes record grade 3 chondral changes in the patella which was the same as recorded in 2015  – if damage had occurred in fall – look for that specifically in operation and make commentary on it – that commentary is not there – trochlea which had microfracture treatment that remain stable.

   ……

   That is a possibility – don’t have means to assess that was a fall – had 8 MRI scans of the right knee and 3 surgeries – along with markedly different reporting of radiology views from the medical practitioners looking at the scans and the operative notes - all you can say is there are chondral defects in the patella – some precede fall of 2016 – possible to have changes in patellofemoral region– grey area and can’t be definite

   Has reasons to have knee pain – feeling in 2016 until 2018 significant level of pain wide range of treatment – don’t make best treating doctors – reasons to treatment

   2016 fall caused knee pain – then she had a psychological reaction and undergone two further arthroscopic procedures. Separate to that, she has developed immediate compartmental arthritis– I don’t think the fall is a major part of things now but I think it is part of a process that has occurred along way and would have happened regardless of the fall.

4. The Tribunal was not persuaded by Mr Dooley’s opinion that Ms Johnson’s fall in June 2016 caused the underlying condition of her right knee to have heightened effect. I do not believe that it resulted in structural pathophysiological change, such that the natural evolution of the underlying condition has been altered in the long-term. The Tribunal did not find the evidence indicated that Ms Johnson’s psychological state led her to exaggerate her condition. Indeed, all medical experts agree Ms Johnson’s underlying pathology of her knee would cause her pain, including Mr Dooley.

5. The Tribunal considered the majority of evidence indicated that Mr Dooley was the outlier in his opinion that falls, as experienced by Ms Johnson, do not lead to structural change. The Tribunal considered the evidence of the other experts and the article supplied by
   Dr Flynn all indicated that traumatic events (falls) may lead to structural change in the knee such as chondral lesions of the patellofemoral joint – the damage Ms Johnson had sustained.

6. The Tribunal accepted the opinion of the majority of medical experts, including Mr Dooley that Ms Johnson’s fall has led to patellofemoral pain which has resulted in an antalgic gait which has subsequently resulted in her experiencing left heel and left knee pain. The Tribunal considering all the evidence found Ms Johnson’s fall has led to degeneration of the patellofemoral joint, medial and lateral osteoarthritis of her right knee. The Tribunal considered that the evidence indicates Ms Johnson was not experiencing such symptoms or presentation in her left knee and concluded the fall at work in 2016 either caused or aggravated her knee condition.

7. The Tribunal considered Mr Dooley’s evidence was equivocal about the impact of
   Ms Johnson’s fall and has opined it may have had some impact on her right knee. The Tribunal found Mr Dooley’s emphasis on Ms Johnson’s underlying psychological issues and therefore her inability to respond to treatment was not borne out on the evidence before the Tribunal. The Tribunal was not persuaded by Mr Dooley that Ms Johnson’s injury was no longer related to her employment. The Tribunal noted Mr Dooley’s evidence:

   Dr D: I say experience gives you, is the importance to look at the patient presenting with injury and illness and not just the injury itself… there is evidence coming now patients with mental conditions are more likely to consent to procedures... I have observed that – half is assessing person’s ability to deal with surgery

   Would not have advised surgical intervention based on psychological state – less likely to do well along way, perception of pains, severity of pain, agreement to undertake surgery is altered in some way

   Won’t lead to any improvements – is patients’ perception

   He steers clear of surgery – most orthopaedic try to avoid surgery – main stay – conservative – weight loss/exercise – not always good outcome – no objective evidence that injections have lasting outcomes - treatment to provide time to do something – re-coat surface they say no

8. The Tribunal considered that Mr Moaveni, Dr Flynn and Mr Morris had all taken into account Ms Johnson’s psychological state; all clearly articulated they looked at the whole individual and not just their pathology when arriving at a diagnosis and possible treatment opinions. All had indicated they found Ms Johnson to be a genuine historian, not prone to exaggerating her pain and certainly not malingering. The Tribunal noted Mr Morris’ evidence:

   Rachel’s personality will have effect on her response. She has a significant pathology in her knee and is doing well given what her knee could be causing. Rachels’s psychology is good for what she has in her knee – if she had catastrosphisation, then you could say psychology has a lot to do with this. The fact is that Rachel has a significantly pathological knee – pain and difficulty with living.

9. The Tribunal placed no weight on the report of Dr Kumar from 2016 as it had no bearing on the orthopaedic determination of Ms Johnson’s condition. The Tribunal had before it no evidence of Ms Johnson’s current psychological diagnosis, outside of the evidence she continues to be prescribed Lexapro and therefore it would be logical to conclude she continues to suffer from depression. The Tribunal relied on Dr Flynn’s assessment that psychological issues were not determinative of Ms Johnson’s knee pain:

   When I met Rachel, there was no suggestion of functional overlay, emotional stress. She presented in a genuine and straightforward manner – there was no suggestion of chronic pain or exaggerated responses.

   Difficult when someone has pre-existing anxiety that all future physical symptoms are discounted. I don’t understand that view as an orthopaedic surgeon – we assess each patient, their presentation and their radiology on its merits. There are patients with functional overlay without any underlying pathology and I didn’t think Ms Johnson was one of those people.

   Things I would be looking for are someone who is ruminating, generating a long list of symptoms that don’t fit with a specific diagnosis or pathology, someone who is tender everywhere and sensitive. It’s when those psychological complaints translate into physical complaints that doesn’t fit with the pathology, that’s when warning bells would alarm.

   Things looking forward ruminating, tender everywhere – social translation in – when warning bells would alarm

   It doesn’t appear whoever made that note had orthopaedic knowledge – comes back to the issue of when do you call it chondral damage, arthritis or an injury. If you look at the scan a few weeks after the fall of 2016, it shows new changes, bone oedema and she gave a consistent history of returning to the gym and doing well functionally, which doesn’t fit with more from day to day wear and tear.

   Orthopaedic knowledge – as possible explanations in August 2016 MRI – read MRI report – look at scan few weeks after fall – new changes bone oedema – does not fit

10. The Tribunal did find on the evidence that Ms Johnson’s weight was an obvious contributor to her knee pain but did not consider the fall had impacted Ms Johnson’s weight management issues. The Tribunal found the evidence indicated part of Ms Johnson’s ongoing treatment for her knee condition was weight management but did not consider the fall was a factor in her need for weight management support. The Tribunal considered irrespective of the fall, the evidence clearly indicated Ms Johnson had weight management issues and this had not been contributed by her employment at CBA.

11. The Tribunal did consider that Ms Johnson had undergone a large number of procedures but accepted they were a part of her treaters’ desire to provide her with symptomatic relief even if it was only short-term.

12. The Tribunal found the evidence did not indicate that Ms Johnson had injured her left knee in the fall of 2016.

13. The Tribunal found Ms Johnson, as a result of her fall and resultant right knee condition, had developed an antalgic gait which has subsequently resulted in her experiencing left heel and left knee pain. The Tribunal had no persuasive evidence before it that this pain continues to cause her significant problems and therefore determines the condition of left heel and left knee pain were no longer contributed to by her employment at the CBA.

14. The Tribunal was not concerned by the file note from Ms Johnson’s general practitioners, as Counsel for CBA correctly pointed out this was a black hole and the Tribunal was determined not to be sucked into its vortex. The Tribunal relied upon Mr Morris’ handwritten note at the time, which seemed a more accurate description of everyone’s initial impression of Ms Johnson’s injury:

    Mr Morris’ note on GP’s file:

    My note to myself August 2016 – wait 2 to 3 months try physiotherapy – and then review. In August 2016, we weren’t talking about an arthroscope.

15. The Tribunal concurred with the parties that Ms Johnson had no ongoing claim to compensation under section 19 of the SRC Act, as she has not been incapacitated for work as a result of her injuries and has suffered no loss of income. Indeed, it was agreed by all, to Ms Johnson’s credit, that she has at all times continued to work, advanced in her career and is currently in receipt of higher weekly earnings than at the time of the fall. As such the Tribunal determined CBA was not liable to pay Ms Johnson compensation for injuries resulting in incapacity in accordance with section 19 of the SRC Act.

16. The Tribunal was of the view that CBA was more concerned with Ms Johnson’s claims for parking and weight loss treatment and whether they constitute reasonable medical expenses, not if her injury continued to be work-related. The Tribunal expressed its view that perhaps there were better ways to skin a cat than incurring the significant expenses of a four-day hearing at the AAT. The actual issue of reasonable medical expenses was not before the Tribunal and evidence was not led by the Applicant so the Tribunal will not be making determinations on this factor.

17. The Tribunal, having considered all the evidence before it, determines that Ms Johnson’s right knee condition continues to be contributed to by her work, but did not find her left heel and left knee injuries continued to be contributed to a significant degree by her employment with CBA.

    DECISION

18. Under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution decides that from the 29 October 2021 Ms Johnson continued to be entitled to reasonable medical expenses in respect of her previously accepted right knee injuries pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988.

I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of
Ms A E Burke AO, Member

.....................[sgd]....................................
Associate

Dated:   13 October 2023

Date of hearing:	1-4 August 2023
Counsel for the Applicant:	Ms Cassie Serpell
Solicitors for the Respondent:	Angela Sdrinis Legal
Counsel for the Respondent:	Mr Joe Ferwerda
Solicitors for the Respondent:	Minter Ellison