Joseph Khoury and Comcare

[2015] AATA 326

[2015] AATA 326  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/0976; 2013/0977
Re	Joseph Khoury
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance Dr M Couch, Member
Date	14 May 2015
Place	Sydney

2013/0976

The decision of Comcare, dated 29 August 2011, which denied liability to compensate Mr Khoury for major depressive disorder, is affirmed.

2013/0977

The decision of Comcare, dated 29 August 2011, which denied liability to compensate Mr Khoury for medical expenses and incapacity to work from 30 June 2011 in respect of soft tissue injury left knee, is affirmed.

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

Deputy President J W Constance

Catchwords

COMPENSATION – liability for medical expenses and incapacity – whether applicant continued to suffer effects of accepted condition – injury to left knee – ongoing symptoms result of earlier non-work related injury – decision affirmed

COMPENSATION – injury – major depressive disorder – claimed psychiatric condition secondary to accepted knee injury – decision affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14, 16, 19

REASONS FOR DECISION

INTRODUCTION14 MAY 2015

1. In February 1990, Mr Khoury commenced employment with the Department of Veterans’ Affairs as a Clerk at Concord Hospital in Sydney.

2. In August of that year, Mr Khoury injured his left knee when he stumbled whilst walking on his way home from work.  Comcare accepted liability to compensate him in respect of this injury under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

3. Comcare continued to compensate Mr Khoury for medical expenses and loss of income until 29 August 2011, when it was decided that he no longer suffered from the effects of the injury.  On the same date, Comcare also denied liability to compensate Mr Khoury in respect of a psychological condition which he claimed was secondary to the injury to his knee.

4. Mr Khoury has applied to the Tribunal to review both decisions.  The decision in relation to the psychological condition is the subject of application number 2013/0976; the decision regarding ongoing liability to compensate Mr Khoury in respect of the left knee injury is Application number 2013/0977.

5. For the reasons which follow, both reviewable decisions will be affirmed.

   LEGISLATION

6. Subsection 14(1) of the Act provides:

   Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

7. In subsection 5A(1) injury is defined to mean, in part,

   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 …

   THE ISSUES

   Application 2013/0977

8. In respect of the question of ongoing incapacity, we have to decide whether Mr Khoury suffered the effects of the injury to his knee (which occurred on 16 August 1990) at any time after 29 August 2011.

   Application 2013/0977

9. The application for review concerning liability to pay compensation for a claimed psychological condition raises the issue of whether that claimed condition was a result of the injury to Mr Khoury’s left knee on 16 August 1990.

   MR KHOURY'S EVIDENCE

10. On 16 August 1990, Mr Khoury was walking along a railway platform on his way home from work. As he did so he tripped as his left knee gave way.  As he had difficulty walking after this incident a lady assisted him onto the train and helped him to walk home.

11. Mr Khoury recalls consulting his general practitioner, Dr Girgis, following this injury. He also recalls attending a physiotherapist at Concord Hospital. He later consulted Dr Hume on referral by Dr Girgis.

12. Dr Hume performed an arthroscopy of the knee. Following this he told Mr Khoury that his ligaments were torn that he may need a reconstruction. Further, Dr Hume advised Mr Khoury to attempt to build up the muscles around his knee as an alternative to an operation. In accordance with the advice of Dr Hume, Mr Khoury undertook a series of exercises prescribed by a physiotherapist at Concord Hospital. This treatment did not provide any relief and he suffered constant pain and weakness in his knee.

13. When Mr Khoury was shown a claim for compensation form dated 4 September 1990 he recalled that he completed this form with assistance from a lady in an office at work. Mr Khoury was able to identify the signature on the claim form as his own.[1]

    [1] Transcript 20/10/14, p-24.

14. In the form, Mr Khoury described the circumstances of his injury as follows:

    I was on my way home from Tech when I tripped and lost balance on step. Aggravating old knee injury.

    In answer to the question “have you ever had a similar injury or condition?” Mr Khoury noted “old sporting injury 1/7/90 playing football”.

15. Mr Khoury has no recollection of having suffered an injury whilst playing football on 1 July 1990.  He does recall that he was playing football at about that time.[2]

    [2] Transcript 20/10/14 p-58.

16. Following the injury in August 1990, Mr Khoury returned to work on crutches. He continued to use crutches for a couple of weeks.

17. In 1992, Mr Khoury injured his right knee while walking along an uneven path after watching a football match. Since the injury to his left knee, he had been unable to play any sport. He described injuring his right knee as follows:

    I was walking home on the footpath and it was on uneven ground, and because I was, what’s the word, looking after my left knee, because my left knee had given out, I tried to regain my balance and my right knee went out. That’s how it happened.[3]

    [3] Transcript 22/10/14 p-26.

18. Mr Khoury denied having told anyone, including doctors, that he injured his right knee whilst playing football.

19. Subsequently Mr Khoury had the anterior cruciate ligaments in both knees repaired. At times he was off work and using crutches. He underwent extensive physiotherapy treatment. Following these operations and treatment, Mr Khoury’s left knee was significantly worse than his right knee.

20. In summary, Mr Khoury continues to suffer the following symptoms to his left knee:

    ·the knee stiffens, especially during the change from summer to winter;

    ·the knee swells and “crunches”;

    ·he cannot kneel;

    ·he cannot fully extend or bend the knee

    ·he suffers severe pain in the knee at times and on occasions he takes medication for pain;

    ·he has difficulty walking up and down stairs;

    ·he cannot squat;

    ·he has difficulty standing for long periods.

21. By reason of the pain he was suffering in his knees, Mr Khoury had difficulty performing his tasks at work. As a result, he was transferred to different duties in the hospital, at first in the laundry and then in the kitchen. He continued to suffer pain in his knees and was redeployed to cleaning duties. Again he was unable to undertake these duties without suffering severe pain in his knees.

22. Mr Khoury married in 2000.

23. In November 2001, it was determined that the hospital could no longer provide Mr Khoury with suitable duties and he ceased to attend work. He was told by staff in the Human Resources Department to go home and he would be contacted when suitable duties were found for him.  Mr Khoury was not notified of any further work being available. His employment was terminated in January 2004.

24. In 2004, Mr Khoury consulted a psychologist, Dr Mangioni.  At about that time he was divorced and was gaining weight; he was diagnosed as suffering depression.  He subsequently sought treatment for obesity.

    MEDICAL RECORDS

    Clinical notes from Concord Hospital 17 July 1990[4]

    [4] Exhibit A1.

25. These notes appear to have been made by a physiotherapist and state, in part:

    Sb [Seen by] orthopaedic surgeon in Parramatta, Dr Harris.

    Injury date 1/7/90- during football game. Planted foot and fell backward. Felt “grating” of joint after game. Sb [Seen by] Dr at medical Centre → x-rays → undisplaced fracture of left medial tibia. Instructed to use crutches for two weeks NWB [non-weight-bearing], then progress to PWB [partial weight-bearing] → FWB [full weight bearing].

    Outpatient notes of Dr Hume, Orthopaedic Surgeon, Concord Hospital, 31 October 1990[5]

    [5] Exhibit R19.

26. Dr Hume’s notes include the following:

    5/12 [Five months] ago cracked left knee playing football. Went to Merrylands Medical Centre. Then went to LMO [local medical officer]. Crutches for a time then gave up crutches. Then stumbled and injured left knee again. Left knee swells at times. Left knee swells and sometimes gives way

    OE [On Examination] left knee, fluid++, pain on flexion 0 to 120°, slight medial ligament and AC [anterior cruciate] laxity.

    X-rays suggest fractured tibial plateau and fractured tibial spine.

    Opinion: This man needs arthroscopy left knee.

    Concord Hospital admission notes 4 December 1990[6]

    [6] Exhibit R18.

27. These notes state, in part:

    Cracked L [left] knee while playing football 5/12 [five months] ago. Pain has persisted associated with intermittent swelling. Has also noticed L [left] knee giving way sometimes. Appears to have ACL injury on examination.

    Notes by Dr Myers, Orthopaedic Registrar Concord Hospital 11 December 1990[7]

    [7] Exhibit R10.

28. Dr Myers recorded:

    Football injury July 1990 twisting injury L [left knee] during tackle. Leg externally rotated then hit by opponent →valgus/hyperextension injury to knee.

    Unable to play on → haemarthrosis.

    Subsequent problems – instability+ limp – locking – cracking – swelling and pain – episodic.

    Operation notes from Concord Hospital 11 December 1990[8]

    [8] Exhibit R11.

29. These notes state that the surgeons were Dr Myers and Dr Hume.

30. The procedure was described as:

    Arthroscopy left knee. Partial medial meniscectomy + trimming ACL stump ……Valgus knee ...

    A diagram included in the notes showed a complete mid-substance tear of the ACL, and that its stump was trimmed.

    Clinical notes Concord Hospital 13 April 1993[9]

    [9] Exhibit R23.

31. These notes read in part:

    Return to work today after 2/12 [two months] off with ACL reconstruction of left knee Dr Craig Waller 27/1/93 at Scottish Hospital

    States injury to left knee in early August 1990 on way home from Tech. College (Traineeship – Clerical work).

    Tripped on station – left knee gave way.  Unable to walk home -> Med. Centre at Merrylands   A.  Strained muscle then -> Dr Hume. Arthroscopy.

    Also fell & cracked left knee playing football 5/12 [five months] prior to this – see Dr Hume’s notes

    [Emphasis in the original]

    EVIDENCE AND REPORTS OF MEDICAL PRACTITIONERS

    Dr Thomson, Orthopaedic Surgeon

32. Dr Thomson is an orthopaedic surgeon with 20 years of experience in knee surgery. Between 70 and 90 per cent of his work involved arthroscopic surgery, including repair of the anterior cruciate ligament. He has undertaken lecturing roles in sports medicine and presented a training course in knee surgery and arthroscopic surgery over a period of approximately seven years.

33. Dr Thomson assessed Mr Khoury in January 2010 and in September 2013. Both assessments were at the request of the Solicitors for Comcare. Dr Thomson provided reports dated 19 January 2010[10] and 24 October 2013[11].

    [10] Exhibit R7

    [11] Exhibit R8.

34. In his report of 19 January 2010, Dr Thomson stated, in part:

    …… the injury [which occurred on 16 August 1990] as described by Mr Khoury would seem unlikely to produce a situation of a tear of the anterior cruciate ligament of the left knee.

    It is likely that this type of injury resulted in contusion of the knee joint and some ligamentous sprain.

    Nevertheless there was diagnosed subsequently by Dr Hume, when he carried out an arthroscopy of the left knee, that Mr Khoury had a torn anterior cruciate ligament. It could be stated that this was due to a pre-existing injury.

    Subsequent treatment by Dr Waller confirmed a tear of the anterior cruciate ligament and Dr Waller proceeded to carry out a reconstruction of the anterior cruciate ligament.

    There is noted in the report of the accident/injury that Mr Khoury had a previous injury to his left knee before the 16 August 1990. This may have been at school playing rugby league and it would be more likely that such an injury as tearing of the anterior cruciate ligament would have occurred while playing football.

    I believe that there is significant evidence that the fall on 16 August 1990 was not the cause of Mr Khoury’s anterior cruciate ligament tear. He does not give symptoms that would suggest that at that time he tore his anterior cruciate ligament. He was able to get on a train. He was able to walk home with some assistance and he did not describe excessive rapid swelling. He only described a lot of pain, which suggests that the injury either caused bruising and contusion or ligament strain, which is commonly more painful than a tear of the anterior cruciate ligament.

    A tear of the anterior cruciate ligament can often not be excessively painful and it can take some time to swell over an hour or two, which may well have allowed Mr Khoury to reach his home, although it seems that he was experiencing quite excessive pain during the train ride and getting to his home.

35. Dr Thomson maintained this view in his report of 24 October 2013.  In that report he said:

    ... I believe that Mr Khoury has suffered an injury to his left knee, which pre-dated the fall on 16 August 1990 and that the fall may have been due to an episode of instability of his left knee at that time and that the cause of his left knee problems was the original injury to the left knee before 16 August 1990 and was likely to be due to gradual deterioration of his left knee over time with resultant left knee instability due to damage to the anterior cruciate ligament of the left knee.[12]

    [12] At p.12.

36. When he gave evidence, Dr Thomson said that if a person suffered a fracture of the medial tibial plateau, a doctor would not be able to carry out the required tests to determine whether there had been a tear of the anterior cruciate ligament.  The pain which the patient would suffer would prevent the necessary tests being performed. Further, in 1990 there were very few trained physiotherapists who would have recognised the science of a definite tear of the anterior cruciate ligament. It would be very easy to fail to determine a complete tear of the anterior cruciate ligament until an arthroscopic inspection of the knee was carried out.[13]

    [13] Transcript  22/10/14 p-252

37. On 31 October 1990, Dr Hume noted that an x-ray of Mr Khoury’s left knee supported an unconfirmed fracture of the tibial spine.[14] In the opinion of Dr Thomson, if there had been an avulsion of the tibial spine, this would be consistent with a sudden load on the anterior cruciate ligament at the time of the injury and consistent with a hyper-extension injury. In his opinion, such an injury would unlikely have been caused by a stumble on stairs.[15] 

    [14] Exhibit R19.

    [15] Transcript 22/10/14 p-261

38. In relation to the clinical note of Dr Myers, dated 11 December 1990, to which I have already referred, and which described the earlier football injury, Dr Thomson said:

    Valgus meaning that the knee is pushed outward and hyperextension injury is a classic injury for tearing the anterior cruciate ligament because the ligament impinges on the femur the upper group of the femoral condyles and can tear by being hyperextended. “Unable to play on”, and that’s the usual story if there is a complete tear, “and haemarthrosis”, that’s stating that there is blood within the knee joint.

    Report of Dr Matalani, Consultant Occupational Physician 14 November 2012[16]

    [16] Exhibit A4.

39. Dr Matalani assessed Mr Khoury on 14 November at the request of his Solicitors.

40. Dr Matalani was of the opinion that Mr Khoury’s employment was a substantial contributing factor to the development of his conditions, including the condition of his knees. He referred only to a reported injury of 16 August 1990 as the “work related injury” and stated that “there is no evidence from the available documentation and history of any pre-existing impairment.”

    CONSIDERATION

41. As the circumstances in which Mr Khoury injured his left knee happened 25 years ago, it is understandable that his recollection of these events has been clouded by the passage of time. In any event, we are satisfied that Mr Khoury is a poor historian.  Counsel for Mr Khoury argued that this is a factor which we should take into account when assessing his evidence.

42. We have also based our finding in this regard on the oral evidence Mr Khoury.  On many occasions he said that he could not remember events around the time he injured his knee and could not remember details of the treatment he had received for the injury.

43. In these circumstances, we have given considerable weight to the various medical records, particularly those made in relation to treatment provided to Mr Khoury from July 1990 onwards, and to the opinion of Dr Thomson.

44. On the basis of the clinical notes of 17 July 1990, we are satisfied that Mr Khoury suffered a significant injury to his left leg while playing football on 1 July 1990. Notes made by Dr Hume on 31 October 1990 do refer to a further injury when Mr Khoury stumbled, but also refer to an earlier injury to the knee while playing football.  Concord Hospital admission notes in December 1990 refer to a football injury.

45. The notes of Dr Myers (11 December 1990) refer to a valgus/hyperextension injury to the knee.  Dr Myers was one of the doctors who operated on Mr Khoury’s knee on that day.

46. Dr Thomson has very significant experience in surgery to the knee and in particular in repairing injuries to the anterior cruciate ligament.  He explained clearly the reasons for the opinions he expressed.  We accept his evidence.  It is consistent with the notes made on 11 December 1990.

47. Based on the evidence of Dr Thomson and the clinical notes to which we have referred, we are satisfied on the balance of probabilities that Mr Khoury suffered a complete tear of his left anterior cruciate ligament while playing football on 1 July 1990.

48. On the basis of Mr Khoury’s evidence, we are satisfied that he aggravated this injury on his way home from work on 16 August 1990.  However, on the basis of the evidence of Dr Thomson we are satisfied that, apart from some pain and swelling, the long term problems Mr Khoury experienced with his left knee were a result of the injury he suffered on 1 July 1990. 

49. For the reasons we have stated, we are satisfied that by 29 August 2011, being the date on which Comcare ceased paying compensation to Mr Khoury, he had ceased to suffer from the effects of the injury of 16 August 1990.

50. The decision under review in application 2013/0977 will be affirmed.

51. In view of the findings we have made it follows that the decision to reject Mr Khoury’s claim for compensation in respect of the claimed injury of major depressive disorder must also be affirmed.

52. In the Applicant’s Statement of Facts and Contentions, dated 17 April 2014, it was put on behalf of Mr Khoury that “the Applicant’s knee/s injury arose out of and in the course of his employment with the Respondent and the Applicant’s primary injuries caused secondary further injury/condition ……”[17]

    [17] Following paragraph 33.

53. In his opening, Counsel for Mr Khoury addressed us as follows:

    …… his employment was terminated in 2004. It is the case here today that the loss of his job, which we say of course was premised on his physical restrictions. That’s the reason why he was no longer employed, because of his physical restrictions. Principally the problem with the left knee was the cause of him being no longer able to work. The fact of his work being terminated threw him into a dark depression, and in 2004 he commenced seeing a clinical psychologist, Dr Mangioni, who treated him and diagnosed him as suffering from adjustment disorder with depression, which is a known, of course, DSM-V condition.

    ……

    Dr Mangioni is of the opinion that his psychological state, that being the diagnosis of adjustment disorder with depression, was secondary to his knee injury and is as much a concern as his physical problems.[18]

    [18] Transcript20/10/14 p-9.

1. As we have decided that the injury to Mr Khoury’s left knee that gave rise to the ongoing impairment, occurred on 1 July 1990 and not 16 August 1990, Comcare is not liable to compensate him in respect of the psychological injury. In such circumstances, it cannot be said that a psychological condition secondary to Mr Khoury’s left knee condition arose out of his employment with the Commonwealth.

2. In reaching this decision we have not dealt with the considerable amount of evidence which was given in relation to Mr Khoury’s present earning capacity.  As we have found that he ceased to suffer the effects of the compensable injury by 29 August 2011, we do not need to consider this evidence.

   CONCLUSION

3. In application number 2013/0976, the decision of Comcare made 29 August 2011,which denied liability to compensate Mr Khoury for major depressive disorder, will be affirmed.

4. In application number 2013/0977, the decision of Comcare made 29 August 2011, and which denied liability to compensate Mr Khoury for medical expenses and incapacity to work from 30 June 2011 in respect of soft tissue injury left knee, will be affirmed.

I certify that the preceding 57 (fifty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance and Dr M Couch, Member.

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

Associate

Dated 14 May 2015

Date(s) of hearing	20-24 October 2014; 16 March 2015
Date final submissions received	16 March 2015
Counsel for the Applicant	B Loukas
Solicitors for the Applicant	City Lawyers and Consultants
Counsel for the Respondent	M Gollan
Solicitors for the Respondent	Lehmann Snell Lawyers