Joy McCarron and Comcare - [2014] AATA 360

[2014] AATA 360

Division

General Administrative Division

File Number

2013/2323

Re

Joy McCarron

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President S D Hotop

Date

6 June 2014

Place

Perth

The decision under review is set aside and, in substitution therefor, it is decided that the respondent has at all material times continued to be liable, and is presently liable, to pay compensation to the applicant, in accordance with s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), in respect of the compensable injury suffered by her on 19 February 2010, namely, “sprain of unspecified site of knee & leg (left) (soft tissue injuries)”.

Application may be made to the Tribunal in relation to the costs of these proceedings within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), that the costs of these proceedings incurred by the applicant be paid by the respondent in accordance with Section 6.10 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction (September 2013).

...........................[sgd]..................................
S D Hotop

Deputy President

CATCHWORDS
COMPENSATION – Commonwealth employees – applicant suffered knee injury in workplace in February 2010 – applicant claimed compensation – respondent accepted liability to pay compensation for knee injury – respondent ceased payment of compensation for knee injury in February 2013 – respondent continues to be liable to pay compensation for medical treatment for knee injury – respondent continues to be liable to pay compensation for incapacity for work resulting from knee injury – decision under review set aside

LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(9), s 5A, s 5B, s 14, s 16 and s 19
REASONS FOR DECISION
Deputy President S D Hotop
6 June 2014
Introduction

Joy McCarron (“the applicant”) was employed by Health Services Australia Pty Ltd, trading as Medibank Health Solutions, as an Administrator/Customer Service Officer from 12 January 2010 to 1 October 2010.
On 19 February 2010 the applicant suffered a workplace injury to her left leg and, following a claim by the applicant for compensation, Comcare (“the respondent”), on 9 July 2010, accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) to pay compensation to the applicant in respect of “sprain of unspecified site of knee & leg (left) (soft tissue injuries)” sustained on 19 February 2010.
On 15 September 2010 the respondent accepted liability under s 14 of the SRC Act to pay compensation to the applicant in respect of “Achilles Tendonitis, from 17 March 2010, as a secondary condition related to [her] compensation claim”.
On 22 February 2013 the respondent made a determination under the SRC Act that the applicant was not presently suffering from the effects of her compensable injury sustained on 19 February 2010, namely, “sprain of unspecified site of knee (left)” and that she had “no present entitlement to compensation in respect of medical expenses under section 16 of the SRC Act, and/or … no present entitlement to compensation for incapacity payments under section 19 of the SRC Act, in relation to [her] left knee injury”.
Following a request by the applicant to the respondent for a reconsideration of its determination of 22 February 2013, the respondent, on 9 May 2013, made a “reviewable decision” under s 62 of the SRC Act affirming that determination.
On 20 May 2013 the applicant lodged with the Tribunal an application for review of the abovementioned reviewable decision dated 9 May 2013.
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T166, pp 1–370) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), and:
·    Supplementary Documents (ST1–ST134, pp 1–344) tendered by the respondent (Exhibit R1);
·    Exhibits A1 and A2 tendered by the applicant;
·    Exhibits R2 and R3 tendered by the respondent; and
·    the oral evidence of the applicant, and Mr Barrie Slinger and Mr Sani Erak (who were called by the applicant), and Dr Philip Hardcastle (who was called by the respondent).
The Factual Background
The following factual background is not in dispute and is found by the Tribunal on the basis of the T Documents.
The applicant completed a “Claim for Workers’ Compensation” form, dated 4 April 2010, in which she indicated that (inter alia):
·she was claiming compensation for her “left knee & ankle”;
·the injury occurred on 19 February 2010 at 4.03 pm;
·the injury occurred when she was “going to sit on chair” and “chair went one way [she] went other & landed on floor hitting heel on floor & leg bounced”;
·she experienced “pain to left heel & knee (extra pain than normal with knee)”;
·she first sought medical treatment for the injury from Dr Bovell on 22 February 2010. (T9, pp 12–21)
The applicant’s left knee was x-rayed on 22 February 2010 and a report, dated 23 February 2010, was provided to Dr Bovell which stated as follows:
“ X-RAY LEFT KNEE:
Clinical History:
Left TKR [total knee replacement] 5 months ago. Has fallen on to it with swelling and pain. ?fracture.
Findings:
Comparison has been made with previous x-ray of 24.9.09.
The TKR prosthesis is enlocated. No fractures or abnormalities are seen in relation to this. Appearances are unchanged when compared to the post operative x-ray from September. Note is made of a moderately large knee joint effusion but no definite haemarthrosis is present.” (T4)
On 17 March 2010 a Workers’ Compensation FIRST Medical Certificate was issued by Dr Baggaley in respect of an injury to the “left knee and foot” suffered by the applicant on 19 February 2010 in which the following medical assessment is stated:
“ ongoing significant pain in left heel and posterior foot; also some ongoing knee pain although has settled somewhat since date of injury; has seen orthopaedic surgeon regarding knee and x-rays were okay”.
Dr Baggaley certified that the applicant was “fit to return to pre-disability duties” but required further treatment, and he referred her for x-ray and ultrasound of the left foot. (T6)
A report of an ultrasound of the applicant’s left foot and an x-ray of her left foot and ankle, dated 30 March 2010, which is addressed to Dr Baggaley, concludes as follows:
“ Comment:
1. There is evidence of plantar fasciitis with an associated plantar calcaneal spur.
2.Enthesopathic changes are noted at the region of the Achilles tendon insertion with mild tendonopathy of the Achilles tendon but no focal tears.(T7)
On 8 April 2010 Dr Bovell issued a “Final” Medical Certificate for Workers Compensation in respect of the injury suffered by the applicant on 19 February 2010 in which he indicated that (inter alia) he found that:
·she was suffering from “soreness in (L) knee & heel”;
·she was “fit to continue pre-injury duties”.
Dr Bovell, however, did not refer (in the relevant section of the certificate) to any required treatment for the injury. (T8)
In response to a request by the respondent, Dr Bovell provided a report, dated 21 June 2010, to the respondent in respect of the applicant’s claim for compensation for an injury to her left knee and ankle. Dr Bovell’s report states as follows:
“ …
1)
I first saw Mrs McCarron on 22/2/10. Her presenting complaint was a swollen and tender left knee. She stated that she had injured her knee on Friday 19/2/10 at work. Her version of events is that a chair fell from beneath her causing her to land awkwardly. She states that several other employees were present at the time. She stated that she immediately had pain in the left knee following the accident. When I examined her I found that she was able to weight bear and had a good range of movement in the knee. She also had a large amount of swelling and significant antero-medial pain. At that stage I ordered an x-ray, recommended rest, and organised to review her a few days later.
The x-ray subsequently showed a moderately large effusion around the knee joint, and no other abnormalities. I then referred her to an orthopaedic surgeon regarding the effusion, because she had had a knee operation in that knee 5 months prior. She saw Mr Anderson [sic], who I never received any return correspondence from. Mrs McCarron informed me that Mr Anderson [sic] reviewed her knee, he was happy that there was no serious damage to the knee.
She saw a different GP at this practice (Dr Baggaley) on 17/3/10 regarding heel and foot pain which she states had been ongoing since that fall at work described above. Dr Baggaley noted that the knee pain was improving, and he filled out a workers’ comp form and organised an ultrasound of the ankle to assess for any acute injuries.
I reviewed her with the results of the ultrasound on 8/4/10, and explained that it showed a heel spur and mild Achilles tendonitis –both overuse injuries probably not related to the accident at work. I then filled a final worker’s comp certificate regarding the ankle and knee pain.
The next few times that I saw Mrs McCarron the main issues have been extreme stress that she is facing at work. My documentation does mention the ongoing knee pain, but the major issue at all the subsequent consults were work related stress from 22/4/10 till present. I do remember Mrs McCarron mentioning the knee and ankle pain at each consult, however my documentation doesn’t always mention it, and that is because the main focus of the visits has been on psychological distress and counselling issues.
2) and 3)
please find attached all of the clinical notes and reports available to me at this time.
4)
After the initial injury I referred her to see Mr Anderson [sic], who is an orthopaedic surgeon.
…
5) and 6)
I think that she sustained some soft tissue injuries from the accident at work. The ongoing nature of the pain is difficult to characterise and may be contributed to by her previous knee surgery. Nevertheless Joy states that she had minimal knee pain prior to the accident at work and has had significant ongoing pains since.
7)
Mrs McCarron had a left total knee replacement for osteoarthritis roughly 5 months prior to her accident at work. Around one month prior to the injury she saw an orthopaedic specialist Dr Erak regarding warmth and pain in the knee, which turned out to be nothing of concern. Mrs McCarron states that the pain was settling down to almost nothing prior to the accident at work in question.
Mrs McCarron also has a past history of depression, hypertension and osteoarthritis.
8)
The acute soft tissue injury for which I saw Mrs McCarron initially was almost certainly due to the injury which she sustained at work. The nature of her ongoing pains may either be due to ongoing soft tissue inflammation from the injury, or post operative pain and swelling. An orthopaedic surgeon’s opinion may be useful here, but it is my understanding that it is normal for a knee to have a small amount of pain and swelling for up to a year following a total knee replacement.
9) and 10)
The injury happened at work, so in my opinion there is a relationship between the knee injury and her workplace.
11)
It should be noted that Mrs McCarron has perceived herself to be under significant work stress. She feels that she has been bullied and accused of being a liar. I have had several long counselling sessions with her regarding work related stress and exacerbation of her underlying depression. I wonder if this has hampered her recovery process as it is well known that emotional distress can complicate organic pain.
…” (T16)
[The Tribunal notes that, by letter dated 25 February 2010, Dr Bovell referred the applicant to Mr Sani Erak, Orthopaedic Surgeon (ST10 – see paragraph 28 below).]
On 9 July 2010 the respondent accepted liability under s 14 of the SRC Act to pay compensation to the applicant in respect of “sprain of unspecified site of knee & leg (left) (soft tissue injuries)” sustained on 19 February 2010. (T25)
On 21 July 2010 Dr Julie Gallagher issued a Medical Review Certificate in which she indicated that the applicant was currently “fit to return to work” but recommended podiatry treatment for the applicant’s plantar fasciitis and Achilles tendonitis in order to resolve “foot pain developed since incident”, and physiotherapy treatment if subsequently required. (T29)
On 29 July 2010 Mr Sani Erak, Orthopaedic Surgeon, provided a report to Dr Bovell which states as follows:
“ I saw Mrs McCarron again today eleven months or so after her left knee replacement. She was doing well up until a workplace related fall in February where she came off her chair. Since then she has had ongoing anterior knee pain. It is present with activity but can disturb her at night. She is able to walk a kilometre albeit with pain. She takes Panadeine Extra and the occasional Oxycontin for the pain.
Examination shows a good range of movement from 0 – 110 degrees. She is tender over the antero-lateral aspect of her knee. There is some patello-femoral crepitus. Her range of movement in her hip is okay.
We will organise some up to date x-rays of her knee, a bone scan to check that there is no occult fracture or loosening of the components, which I think is very unlikely and some bloods to exclude infection. I suspect that a lot of her pain is probably emanating from the patello-femoral joint.
I will catch up with her again after the scans.” (T36)
Mr Erak also issued a Medical Review Certificate on 29 July 2010 in which he indicated that the applicant was currently “fit to return to work” on “full time” hours but recommended investigations (including x-ray and bone scan) regarding her increased pain around her left knee replacement. (T39, pp 111–112)
In response to a request by the respondent, Dr Julie Gallagher provide a report, dated 11 August 2010, to the respondent regarding her earlier recommendation of podiatry treatment for the applicant’s left foot (see paragraph 16 above). Dr Gallagher’s report states as follows:
“ Thank you for your letter regarding Joy McCarron. I recently met with Joy for the first time on the 21^st July 2010. I have attached a copy of our consultation for your convenience.
Joy reported she fell off a chair on the 19^th February whilst at work and since this time has had ongoing foot and knee pain. Previous investigations with Dr Bovell revealed plantar fasciitis and mild Achilles tendinitis. She was tender at the distal Achilles insertion when I saw her.
She denied any previous symptoms of plantar fasciitis or foot pain. As you are aware plantar fasciitis is likely to be an ongoing condition although may have been exacerbated by the incident and Mrs McCarron had not reported any previous symptoms, likewise with the Achilles tendinitis.
I have only met with Mrs McCarron once so it is very difficult to comment retrospectively any further and I know you have reports from Dr Bovell. I felt it was appropriate at the time to refer her to a Podiatrist. I would expect her condition to improve over the forthcoming months.
…” (T46, p 123)
The consultation note attached by Dr Gallagher to her report states as follows:
“ Pain; foot/feet:
Work incident 19^th feb. fell off a chair onto the left foot. previous left TKR. ongoing foot pain. u/s and x-ray: plantar fasciitis calcaneal spur and mild achille [sic] tendinitis, has gone through comcare and requesting report to be filled in as previous GP left.
O/E: tender distal achilles, assoc callous formation.
Plan; refer to pod. form completed”. (T46, p 124)
In response to a request by the respondent, Mr Sani Erak, Orthopaedic Surgeon, provided a report, dated 14 August 2010 (set out in paragraph 30 below), in which he stated (inter alia) that the applicant “appears to have left insertional Achilles tendonitis” and expressed the opinion that “the left Achilles tendonitis is related to the work injury” of 19 February 2010 (T47).
On the basis of Mr Erak’s report of 14 August 2010, the respondent, on 15 September 2010, accepted liability under s 14 of the SRC Act to pay compensation to the applicant for “Achilles Tendonitis, from 17 March 2010, as a secondary condition related to [her] compensation claim” (T57).
The Applicant’s Evidence
The applicant confirmed that she had signed a statement of evidence, dated 27 January 2014, for the purpose of this proceeding and that its contents are true. The applicant’s statement is as follows:
“ 1.    I am the Applicant in this matter.
2.    I was born on … February 1955. I am presently 58 years of age.
3.I had a left knee replacement on 23 September 2009 under the care of Mr Sani Erak. I returned to work with the Respondent [sic] on 11 January 2010.
4.I saw Mr Erak later in January 2010 who told me it was normal for my knee to be swollen, warm and painful approximately 4 months following surgery. I was performing all of my work duties and was able to walk from the Perth railway station to Pier Street in low heels without difficulty.
5.On 19 February 2010, as I attempted to sit down on a chair, it moved out from beneath me and I fell to the ground landing on my left heel and left buttock.
6.I immediately felt pain in my left knee and left heel.
7.The pain I had experienced as a result of my left knee replacement had settled down immediately prior to my accident of 19 February 2010.
8.My symptoms increased significantly following my accident on 19 February 2010.
9.On 22 February 2010 I attended upon my GP Dr Bovell who referred me to an orthopaedic surgeon.
10.On 30 March 2010 I underwent an ultrasound and x-ray of my left ankle.
11.I made a claim for compensation on 4 April 2010.
12.Medibank [sic] accepted liability on 9 July 2010.
13.On 27 July 2010 and 9 September 2010 I attended upon Mr Erak. He told me I had inflammation around the knee joint prosthesis and active inflammation around my left Achilles tendon. I told him I experienced ongoing pain in both these areas. I also told him my knee was slightly improving prior to my fall at work.
14.On 15 September 2010 liability was extended for specific medical treatment in the form of an initial consultation with a sports medicine practitioner.
15.On 15 September 2010, a determination was issued accepting liability for my left Achilles Tendonitis as a secondary condition related to my compensation claim.
16.On 1 October 2010 my employment with Medibank was terminated. I was a casual employee. At the end of my time at Medibank I was resting my leg on a cushion on top of a box.
17.On 4 November 2010 I attended upon Mr Erak and reported pain in both my left knee and left ankle. I had been receiving treatment for my left Achilles but I hadn’t noticed a dramatic improvement. My heel was more painful than my knee at the time. Mr Erak decided to delay further treatment of my knee until my left Achilles symptoms had settled down. He did not feel I had the capacity for full time work.
18.In November 2010 I obtained work with Australian Submarine Corporation as a planning support coordinator by applying online. My duties included:
a.    Coordinating completion of work packs for submarines as required for their maintenance, ensuring that all information is attached as per the recommendation.
b.    Maintaining closure of work packs using their ‘control’ system.
c     Archiving ‘closed’ maintenance as per relevant guidelines.
19.On 17 January 2011 I attended upon Mr Erak who referred me to Mr Ammon for consideration of surgery and also arranged for further x-rays of my knee to investigate my ongoing knee pain.
20.On 27 January 2011 liability was accepted for medical treatment in relation to my left knee and left ankle injuries in the form of GP appointments, attendances upon Dr Ammon regarding my ankle and relevant imaging.
21.On 25 February 2011 I attended upon Mr Erak and he told me that my left knee pain was probably due to inflammation around the patella following the aggravation on 19 February 2010, which was aggravated by my fall and he suggested a resurfacing of the patella but this would not guarantee an improvement.
22.In February 2011 my contract with Australian Submarine Corporation expired.
23.On 5 April 2011 I attended upon Mr Ammon who told me I was a candidate for surgery to my left Achilles. Approval for the surgery has never been received.
24.On 26 June 2011, after applying for several other jobs, I obtained work with a property management company as an office administrator. Some jobs I applied for were not suitable because of the stairs.
25.The new job was with Canute (WA) Limited, working in a small property management office within a family business. My duties included:
a.    Day to day filing, banking, data entry, meeting tenants, taking rents.
b.    House inspections of vacant and occupied properties. This meant some walking but very few stairs.
26.I used to wear insoles on advice from my podiatrist. I also used a TENS machine. Sometimes fellow employees at Canute helped me with some of my duties.
27.On 10 October 2011 I attended upon Mr Erak and reported ongoing pain in my left knee and left ankle but also right knee pain which started approximately 3 months earlier. He thought I may be headed for a right knee replacement.
28.On 15 November 2011 I was examined by Mr Gope and I told him about my ongoing problems with my right knee, left knee and ankle. He was very frail. I did not tell him I was ‘able to walk for about an hour’.
29.On 17 January 2012 liability was declined for my right knee condition. This decision was based on the report of Mr Gope following Mr Erak’s request for funding for treatment. I did not submit a claim form for compensation in relation to my right knee.
30.On 7 February 2012 liability was accepted for medical treatment in relation to my left knee and left ankle for GP appointments, relevant pharmaceuticals, physiotherapy and hydrotherapy.
31.On 14 February 2012 I wrote to Comcare to advise that I disagreed with the decision not to accept liability for my right knee condition.
32.On 4 April 2012 Comcare affirmed their decision not to accept liability for my right knee condition.
33.In May 2012 I ceased working for Canute (WA) Limited. A new computer programme meant that I was no longer required.
34.In May 2012 I commenced working for The Carers in an administrative role after applying online. My duties included:
a.    Answering all incoming calls from government departments, carers, clients and family members.
b.    Collating fortnightly payments to carers.
c.    Ensuring all filing was up to date.
d.    Reconciling government payments for services rendered.
35.On 2 October 2012 I received notice of Comcare’s intention to cease compensation for my left knee.
36.On 8 October 2012 I attended upon Mr Erak and reported ongoing right knee, left knee and left ankle symptoms, with the most significant symptoms being in the left knee. He recommended further left knee surgery to assist with my ongoing symptoms. He disagreed with Mr Gope that my left knee had resolved to its pre injury condition.
37.On 28 October 2012 I wrote to Comcare to respond to their letter in relation to ceasing my entitlements.
38.On or about 10 October 2012 I ceased working for The Carers, after an argument about having to go for an x-ray of my left knee.
39.On 19 November 2012 I attended upon Mr Erak who gave me an injection in my hip. I also reported ongoing knee pain which was not resolving.
40.On 14 January 2013 I attended upon Mr Erak. He gave me an unfitness certificate which I served on the Respondent on 15 January 2013 (see ‘Annexure A’). I have not received any weekly compensation since.
41.On 22 February 2013 Medibank [sic] issued a determination that I did not continue to suffer from the effects of my injury.
42.On 25 February 2013 I attended upon Mr Erak for my knee, hip, buttock and lower back symptoms. He recommended a further steroid injection.
43.On 15 March 2013 I requested a reconsideration of the decision to cease my entitlements.
44.On 6 May 2013 I attended upon Mr Erak for my left knee, hip and lower back symptoms. My pain was radiating down my entire left leg.
45.On 9 May 2013, Medibank [sic] affirmed their decision of 22 February 2013.
46.I filed an Application for Review of Decision on 15 May 2013.
47.After the accident the pain went all the way down to my ankle. It was a different pain that was not restricted to the area of the scar.
48.My current symptoms and restrictions include:
a.    Left knee pain. This is the most significant cause of my pain.
b.    Left leg pain down to the ankle when walking and standing.
c.    Left ankle pain around my Achilles tendon. I am a candidate for surgery but it had been put on hold by Mr Erak until my left knee settled down. It prevents me from walking more than 100m.
d.    Right knee pain.
e.    Hip pain on the left side when sitting and driving.
f.     Back pain.
g.    Inability to sit for more than 15 minutes and there is pain in my left hip and also in my left leg from my left knee down to my ankle.
h.    Cannot repetitively bend or my left knee hurts.
i.     Inability to walk more than 5 minutes or my left knee and left heel hurt.
j.     Interrupted sleep because of discomfort in the whole of my left leg.
k.    All domestic tasks [sic].
l.     Inability to carry heavy shopping for fear of back and leg pain.
49.Dr Hardcastle saw me on 3 September 2013 after I had undergone a series of injections including at the top of my left leg which gave me some temporary improvement but my symptoms have resumed since then.
50.I am taking the following medication for my symptoms:
a.    Endep
b.    Panadeine Forte
c.    Up until November 2013 I was taking Oxycontin, Valium and Targin which I stopped because I didn’t feel they were working.
51.I have paid for the following expenses myself:
a.Mr Holthouse’s fees (Neurosurgeon)
b.Physiotherapy
c.Pharmaceutical expenses
d.GP attendances
e.Imaging costs
f.Hydrotherapy
g.Podiatry including insoles
h.TENS machine (x2)
52.I have made the above statement to the best of my information and belief.” (part of Exhibit A1)

In her oral evidence-in-chief the applicant said that the symptoms referred to in para 8 of her statement involved pain in her left heel, in her left knee, and “all the way down the leg”. She added that that pain has been present since the incident on 19 February 2010 “24 hours a day, seven days a week”.
The applicant was referred to para 40 of her statement. She said that, when she saw Mr Erak on 14 January 2013, her left leg/knee “was burning, it was hot”, and she confirmed that her left knee has not recovered since that date.
In cross-examination the applicant confirmed that she has been “open and honest” with her doctors about her symptoms “every time” and she also confirmed that she has continued to experience the symptoms and restrictions referred to in para 48 of her statement to the present time.
The Evidence of the Medical Witnesses
Mr Sani Erak
Mr Erak, Orthopaedic Surgeon, said that his first consultation with the applicant was in August 2009 and that his most recent consultation with her was on 13 February 2014. Mr Erak has provided numerous reports, and issued various workers’ compensation medical certificates, regarding the applicant’s (inter alia) left knee condition in the period from 7 August 2009 to 7 February 2014. He confirmed that he adhered to the contents of those reports and certificates.
Mr Erak’s first report concerning the applicant, dated 7 August 2009, is addressed to Mr Benjamin Hewitt, Orthopaedic Surgeon, and states as follows:
“Thanks for referring Mrs McCarron, who is a 54 year old unemployed administrative worker. She has had pain in her left knee predominantly since May of last year, where [sic] she had an injury at work. She tells me she had a torn meniscus and underwent arthroscopy. The pain failed to settle afterwards, and she tells me she has had six to seven cortisone injections afterwards, most of which have helped for a short while, but subsequently her pain has returned. At present, she takes Celebrex, in addition to OsteoEze. She has tried some physiotherapy and has a knee brace.
She tells me that previously she has been quite active, and in her youth has played quite a bit of sports. She has had intermittent clicking from her knees over the years, particularly since 2003, but was ballroom dancing up until early this year.
Her past history is significant for depression, non insulin dependent diabetes (on oral hyperglycaemics) and hypertension.
Examination shows she has a high BMI, and weights [sic] approximately 120 kg. Her range of movement is from 0 – 130 degrees. She is tender predominantly over the medial compartment of her knee, but also over the patello-femoral compartment. Her pulses are intact and her hip movements are pain free.
She has seen Dr Gerald Lim for an opinion regarding her knee, who has organised a repeat MRI scan, which shows significant advanced degenerative change in her medial compartment and patello-femoral arthritis.
Mrs McCarron is quite adamant that this pain is making her miserable and I can’t really see any alternative short of knee replacement for her knee. The only other possibility would be of SynVisc injections, but I have informed her that these expensive [sic] and do have a slight risk of infection and unpredictable result. She would like to have the knee replacement done in the public sector and I have placed her on my list to have this done at Shenton Park Hospital.
In the meanwhile, I will write to the rheumatologist there regarding the SynVisc injections, and see if she might be suitable for these.
…” (Exhibit R1, ST3)
Following total left knee replacement surgery performed by Mr Erak on 23 September 2009 (Exhibit R1, ST8), Mr Erak reported to Dr Edward Bouverie (general practitioner) on 25 January 2010 as follows:
“ I saw Mrs McCarron, four months after her left knee replacement. She has had some ongoing pain, which has really been in the last three weeks. She feels that there is a warm patch over the front of the knee. The pain radiates from her groin all the way down to her foot. She has had two falls, one around Christmas time when she fell into some water, but also more recently on 3/1/2010 when she fell onto her knee.
She is now requiring Endone.
I note the ultrasound, which shows no fluid in the knee, and perhaps some pre-patellar bursitis.
Examination shows a range of movement from 0 – 120 degrees, and her knee is stable. Her straight leg raise is intact.
I spoke to Mrs McCarron and advised her that there are really no clinical signs of infection at present, but we will do a CRP to exclude any infection. Her excellent range of movement really argues against this. It is normal for a knee to be swollen, warm and painful at this stage, and I have explained to her that this will take a year and possibly two years before the knee completely settles down after joint replacement surgery. She will also have a check x-ray done, which I will review.” (T3)
A referral letter from Dr Bovell to Mr Erak, dated 25 February 2010, states as follows:
“ Thank you for seeing Mrs Joy McCarron, age 55 yrs, regarding her left knee. You performed a left TKR 5 months ago for her which was going brilliantly.
Unfortunately she fell off a chair at work this week and has developed a large effusion around the joint. Xray doesn’t reveal any fractures or prosthesis problems however I would appreciate it if you would have a look. She is able to walk at the moment, however she has bad pain and swelling antero-inferiorly.
…” (Exhibit R1, ST10)
Mr Erak reported to Dr Bovell on 5 March 2010 as follows:
“ I saw Joy again. We recently saw her because of concerns of infection, but her inflammatory markers were normal, excluding any infection.
Unfortunately, she had a fall a couple of weeks ago, and has had increasing pain and crepitus around the patello-femoral joint.
Examination shows an intact straight leg raise, and her collateral ligaments are stable. Her range of movement is actually quite good, with a range of movement from 0 – 110 degrees.
I note with thanks the x-rays of her knee, which look fine.
I have reassured Joy that mechanically there is nothing bad happening with her knee and there is no evidence of infection. I think the crepitus that she feels is emanating from some scar tissue around the patello-femoral joint, but will settle down with time.
I note she also had an injury to her ankle, and certainly this can worsen her gait, and exacerbate any patello-femoral mal-tracking.
All else being equal, I plan to see Joy again at the year mark after her surgery with repeat x-rays.” (Exhibit R1, ST11)
In his oral evidence Mr Erak said that the reference to the applicant’s “ankle” in the penultimate paragraph of that report should instead be a reference to her “Achilles tendon”.
Mr Erak provided a further report to Dr Bovell on 29 July 2010 (set out in paragraph 17 above).
In response to a request by the respondent, Mr Erak provided the following report, dated 14 August 2010, to the respondent:
“ In response to your letter dated 22 July 2010, I supply the following report.
1.From what specific condition(s) does the employee currently suffer?
Mrs McCarron underwent a left total knee replacement at Royal Perth Rehabilitation Hospital on 23/9/2009 for arthritis.
2.The history of the employee’s relevant condition(s) as reported to you.
Her GP re-referred her to me on 25/2/2010 regarding her knee. Mrs McCarron told me that her knee had been functioning well and improving post the surgery, but she had a fall off a chair at work. This led to pain around the knee joint and also pain in her left hindfoot. I saw her on 5/3/2010, and thought that her knee did not show signs of structural damage, and her x-rays looked fine. I thought the pain was emanating from the patello-femoral joint. A working diagnosis was of inflammation in the knee, particularly around the patello-femoral joint. I also noted that she had an injury to her hindfoot as well, and noted that this can worsen her gait and exacerbate patello-femoral mal-tracking problems.
I thought things would improve with Mrs McCarron, and had organised to see her again at the year mark post-surgery.
I saw her again on 29/7/2010 and noted again that she had ongoing anterior knee pain present with activity, but disturbing her at night. She was taking Panadeine Extra and occasional Oxycontin for the pain. We organised blood tests to exclude an infection, x-rays of her knee and a bone scan.
Her blood tests did not show any evidence of infection. Her x-rays looked satisfactory with no evidence of fracture or loosening of the components. A bone scan was performed, which showed uptake or activity in the left patella, mild synovial inflammation around the left knee, and active inflammation at the insertion of the left Achilles tendon.
As such, the conditions that Mrs McCarron currently suffers from is that she is status post left total knee replacement, with anterior knee pain emanating from what I believe is inflammation around the patello-femoral joint. She also appears to have left insertional Achilles tendonitis.
3.On the balance of probabilities as distinct from possibilities, is the condition(s) currently suffered by the employee related to:
(a) The work-related incident of 19 February 2010
(b) A pre-existing, congenital, constitutional or underlying condition
(c) The natural progression of an underlying condition
(d) Some other aspect of her employment, if so what and explain how it contributes to the condition
(e) Factors unrelated to work. If so, please discuss
(f) Underlying degeneration as part of the natural aging process
(g) Other health issues
The workplace related injury of 19/2/2010 seems to have set off pain or exacerbated pain around the left knee and the left Achilles tendon. The natural progression of pain post a knee replacement is that it is quite common to have pain, which can often persist for up to one to two years post knee replacement, but in most cases settles down. The workplace related injury seems to have set off increasing pain in her knee.
I can’t find any reference in my notes regarding her complaining of heel pain prior to the fall. As a result, I would say that the left Achilles tendonitis is related to her work injury.
4.If you consider the employee’s Commonwealth employment continues to contribute to her condition(s), please explain the basis for your conclusion.
I would not consider that her current employment continues to contribute to her condition. I understand that she has a sedentary occupation.
5.Does the employee currently have:
(a) An incapacity to engage in any work
(b) An incapacity to engage in work at the same level at which she was engaged by the Commonwealth in that work or any other work immediately before the injury happened.
In my certificate dated 29/7/2010, I had certified Mrs McCarron fit to return to work on full time hours.
6.If the employee has a capacity to engage in some work, please identify the type of duties she could undertake or specify the duties that should be avoided, in particular:
(a) The type of work the employee should be able to perform
(b) The number of hours per week the employee should be able to perform, and
(c) Details of any work restrictions.
Covered above.
7.What treatment do you recommend, if any, to therapeutically benefit the compensable condition(s)? Please include in your response the type, frequency and duration of treatment.
At present, I think Mrs McCarron would benefit from further time to allow her left knee pain to settle. She will require analgesia. I have recommended physiotherapy aimed at strengthening her quadriceps, and physiotherapy aimed at her Achilles tendonitis. She may require orthotics for her Achilles tendonitis. I have also suggested referral to a sports physician.
8.What further investigations do you have planned, if any?
I have not organised any further investigations.
9.What is the prognosis for this condition(s)?
Prognosis for Achilles tendonitis is that in most cases it should resolve eventually, but again it may take one to two years.
Prognosis for her anterior knee pain of [sic] the total knee replacement is a little uncertain. I am hopeful that it should settle down over the course of a year or so.
…” (T47)
From 4 November 2010, Mr Erak issued workers’ compensation progress medical certificates in which he certified the applicant as “fit for restricted return to work” (T67, p 159; ST19; T108), and in the period from 14 January 2013 to 7 February 2014 Mr Erak has issued workers’ compensation progress medical certificates in which he certified that the applicant was “totally unfit for work” (ST28, ST31; ST39; ST123), by reason of “ongoing pain” resulting from, inter alia, her compensable left knee injury.
In cross-examination Mr Erak gave evidence to the following effect:
·the applicant has always presented to him with left anterior knee pain since the fall on 19 February 2010 and that pain has persisted, and she subsequently experienced lower back pain which radiates down her leg;
·the applicant’s Achilles tendonitis “does not seem to have been a predominant pain of late” but, in the meantime, she has developed secondary hip pain which has persisted, and she has also had the ongoing knee pain;
·the applicant had symptoms in her left patellofemoral joint prior to her knee replacement in September 2009;
·the applicant reported to him that, in the period of three weeks immediately prior to his report of 25 January 2010, she experienced increased pain in the left knee, and that pain was located in the same area of the knee as the knee pain from which she has continued to suffer;
·he first saw the applicant after her workplace fall of 19 February 2010 on 5 March 2010 and, on that occasion, he did not identify any particular problem with her knee arising from that fall, nor did an x-ray of her left knee, performed on 22 February 2010 (Exhibit R1, ST44), reveal any such problem arising from that fall;
·he was not aware that, in the period from mid March 2010 to May 2010, the applicant had reported to her general practitioner that her left knee symptoms were settling/improving;
·it is impossible to tell whether the applicant’s ongoing left knee pain is resulting from her knee replacement in September 2009 or from the fall which she had at work on 19 February 2010;
·it is possible that some of the applicant’s left anterior knee pain is being caused by degenerative change in the patella.
Mr Barrie Slinger
Mr Slinger, Orthopaedic Surgeon, confirmed that he had examined the applicant and subsequently prepared a report, dated 28 October 2013, regarding that examination. He also confirmed that he adhered to the contents of that report.
Mr Slinger’s report of 28 October 2013, which is addressed to the applicant’s solicitors, states as follows:
“ Thank you for referring this lady whom I reviewed on the 2^nd September and again on the 8^th October 2013, at which time I was in receipt of your letter requesting an assessment and report in respect to injuries sustained in an incident of the 19^th February 2010.
At the time of review I was in receipt of copies of reports, which I have read, from colleagues including, Mr Sani Erak, Dr Rod Moore, Mr Dib Gope, Mr Benn Jeffcote and Mr Glenn Pesich (physiotherapist).
BACKGROUND:
Ms McCarron was born and educated in New South Wales up to year 10 standard, leaving school at the age of 15 years, she then worked as a shop assistant in a television shop for four months, and subsequently in various employments until the age of 18 years, when she worked in a clerical position with a customs agent, continuing this for five years.
Thereafter, she was employed in various positions until, prior to the birth of her first child in 1977, since which time she has been undertaking office work with different employers for the last 36 years, with the exception of that between 1989 to 1994, she undertook that temporary employment which was available, until her fourth pregnancy and in the interim raised three children, as well as assisting her husband with the office administration in his granolithic concrete business.
In 1996 she and her family moved to live in Perth, where, in 2001 she undertook full-time employment as a travel co-ordinator for the Navy at Garden Island for 18 months, since which time, she has variously worked with the Attorney General/Public Trustee/State Review Board/Prisoners’ Review Board and similar Government positions. Ms McCarron was employed with Medibank Health Solutions at the time of the accident.
The work with Medibank Health Solutions involved working in the front reception, taking phone calls for the company, which was mainly involved with medical examinations for immigration, pre-employment and other similar functions, working hours from 7.45 am until 5.00 pm. This position was office based and did require her to move around the office to undertake filing duties.
This employment commenced on the 10^th [sic] January 2010 and she was dismissed on the 10^th [sic] October 2010, because of what Ms McCarron described as ‘issues of harassment’.
Dr Chris Papalini issued [sic] certified her unfit for work for three months, due to what Ms McCarron described as severe pain, which prevented her from working full-time in any position. At this time Comcare were responsible for paying her wages, however, Ms McCarron had no alternative but to seek work to help supplement her family income.
Ms McCarron kindly provided me with a resume of her employments, both pre and post accident, positions which included walking long distances from the Peth train station, climbing flights of stairs, simply to maintain her employment and I identified with her that from November 2010 to February 2011, she worked as a planning support co-ordinator, and was then unfit for work for seven weeks, before commencing, in June 2011 to May 2012, office duties in a property management office, and finally from June 2012 to October 2012, in office administration and office co-coordinator, which involved climbing a flight of stairs to commence her day, and at the end of her shift descending those stairs.
Concern was raised by her manager about her ability to climb those stairs, but Ms McCarron was adamant that she was able to complete that activity.
Since that time Ms McCarron has been away from formal employment and I enclose a copy of that resume and confirm that the reason she has been unable to return to work is because of pain experienced in the back, the lower limbs the knee and the foot, constant and severe in nature, she cannot stand for more than five minutes, having to move and change position, whilst sitting is not a particular problem, but standing from sitting is associated with discomfort and it is some time before she is able to walk in a normal fashion.
There are positions held by Ms McCarron during that period that have not been listed, as they were short term only, and she was advised by personnel employment agencies to mention only long term employment. During this period of time there were times when she was away from work because of the lack of availability of work, or if she was unfit to undertake any employment.
PAST:
I confirmed this lady required a total joint replacement at the left knee on the 23^rd September 2009, prior to the work accident of February 2010. The report from Mr Erak of the 25^th January 2010 confirms ongoing pain about the knee, radiating from the groin to the foot, which she relates to prolonged standing. The two falls document [sic] by Mr Erak, one around Christmas, when she was said to have fallen into some water, and again on the 3^rd January, when she fell onto the knee, are not events that Ms McCarron can recall.
In addition, in the past, she has had arthroscopic surgery to the left knee in 2009, reconstruction of the right shoulder in 2008, as well as tonsillectomy, appendectomy, abdominal hysterectomy, laparoscopic cholycystectomy and removal of a sebaceous cyst on the abdominal wall.
In the past she has been involved in a motor vehicle accident in 2009, being of a minor nature and there were no injuries as such, or residual symptoms.
HISTORY OF INJURY:
The injury occurred on the 19^th February 2010, at work, when the office chair with wheels, on which she was about to sit, moved backwards and she fell, landing on her buttocks and striking her left heel.
Following the incident she was aware of pain about the left knee, which was particularly severe the following day, and she attended for medical advice with Dr Bovell on the 22^nd February, who confirmed prominent swelling about the knee. Radiology was undertaken, and she subsequently complained of pain about the heel and foot, which had commenced at the time of the fall, and investigation was undertaken with an ultrasound of the ankle, confirming a heel spur and a mild Achilles tendonitis.
Thereafter, she attended Dr Bovel for intercurrent symptoms which were said to be related to psychological stress, for which she is requiring counselling, although in Ms McCarron’s opinion her symptoms were those relating to the knee and not to so-called psychological stress.
PROGRESS:
Thereafter, Ms McCarron was referred to her treating orthopaedic surgeon, who had performed the joint replacement, Mr Sani Erak, who reviewed her in July 2010, when a bone scan was undertaken, and it was considered that the origin of her symptoms was probably the patellofemoral joint.
Ms McCarron has continued under the care of Mr Erak, investigations have failed to show any evidence of bony injury, fracture or infections, and she was referred for physiotherapy with Mr Pesich, commencing on the 1^st December 2010. Ms McCarron was also referred to colleague, Dr Rod Moore, for treatment of iontophoresis of the left heel, in October 2010, that treatment, however, did not produce any improvement in those symptoms.
Further review was undertaken with orthopaedic colleague, Mr Peter Ammon, in April 2011, and Mr Ammon’s recommendations were to perform excision of exostosis and probable decompression of the Achilles tendon. In view of the fact that this required a prolonged period of immobilisation, up to six weeks in plaster, Ms McCarron declined because of her concern as to the time required away from work for convalescence and her loss of wages.
In mid 2011, symptoms commenced about the right knee, confirming the report of October 2011 from Mr Erak, that the right knee had been completely asymptomatic, but in the last three months had become sore, and his opinion was that this might represent and [sic] overload phenomenon, as the result of excessive strain applied to that limb, because of symptoms in the left knee.
At that time Ms McCarron required Oxycontin, and radiology confirmed prominent degenerative change, with what was described as ‘bone on bone’, in the medial tibiofemoral joint compartment, confirmed on MRI scan.
Medication at this time was confined to Panadeine Extra and Nurofen, because of side-effects relating to Tramadol, Mobic and Tramal, although she is able to tolerate Digesic.
Mr Erak aspirated the knee and injected a steroid, which was associated with temporary improvement, and surgery in the nature of total joint replacement was planned for November 2011, cancelled/deferred because of concerns about the insurance company accepting liability.
Further review was undertaken by Mr Jeffcote in August 2012, confirming that in his opinion Ms McCarron had impingement of the patella on the polythene insert, an ultrasound guided injection was undertaken to the trochanteric bursa and Ms McCarron indicated that the proposed surgery was not undertaken as she was not able to fund the cost of that surgery.
In addition, Ms McCarron was reviewed in October, at Fremantle Hospital, by the pain management programme, but I have no reports as to those deliberations and outcome. Ms McCarron indicated that she was informed to cease all opiates and use only Panadol Osteo and Panamax, however, this was associated with gastric upset, although she did follow their advice, but found the pain was unbearable and she commenced Oxynorm 10 mgs.
Further progress was characterised by further investigations with MRI of the lumbar spine, which was said to show facet arthropathy and a left synovial cyst at L4/5. Mr Erak considered her symptoms related to a tight illiotibial band, with pressure over the greater trochanter and the lateral epicondyle at the knee, but there is also a contribution of her symptoms from the unresurfaced patella.
Mr Erak proceeded to injection to the trochanteric bursa, which was associated with some temporary improvement, and a nerve root sleeve block was associated with increased pain on the lateral aspect of the limb. The recommendation at that time was to continue with physiotherapy, with some needling and ultrasound to the trochanteric bursa, however, that was not undertaken as Comcare declined payment.
In addition, an injection to rupture the left L4/5 facet cyst, which was not associated with any improvement, and finally, piriformis injections to the left piriformis muscle were undertaken, a total of five in all, which produced immediate, but temporary symptomatic improvement, and then a further CT guided procedure in July 2013, with injections to the left piriformis and hamstring origin.
I understand Mr Erak referred Ms McCarron to orthopaedic colleague, Mr Ed Baddour, at Royal Perth Rehabilitation Hospital, and she is awaiting an appointment on the 28^th October. Most recently Ms McCarron has been reviewed by neurosurgical colleague, Mr David Holthouse, who proceeded, on the 30^th August, with an epidural injection, since which time she has shown marked improvement in symptomatology in relation to symptoms in the left lower limb, however, those symptoms have now increased.
During this period of treatment, over three years, she has been attending at various times for physiotherapy and hydrotherapy, however, Comcare ceased payment in September 2012 and her attendances have been paid for by herself, continuing with hydrotherapy, attending in an exercise class, five times a week.
Prior to that procedure Ms McCarron’s medication included Targin 10 mgs bd, Oxynorm 10 mgs, Brufen and Panadeine Forte. Ms McCarron provided several incidences of her daily medication, which appears to be Oxynorm 10 mgs four to six hourly, commencing at 7.30 am, then at 9.30 am, Panadeine Forte two tablets, together with anti-inflammatory medication, with Oxynorm, Endone and Magnesium at night, and Valium as required.
Following the recent epidural injection mentioned in the preceding, symptoms have markedly improved and she has reduced her medication to Panadeine Forte two tablets twice a day, and Oxynorm two tablets per day, however, since that injection symptoms have now increased and she has resumed medication with Nurofen Zavance.
PRESENT:
Pain persists about the left knee, and since the injury she has had a band of pain, measuring some 15 cms x 7.5 cms across the front of the knee, constant in nature, aggravated by walking, which is limited to 20-30 minutes, standing is limited to five minutes, and she cannot crouch or kneel.
Giving way has occurred on many occasions, and she has had a persistent swelling or lump about the anteromedial aspect of the proximal tibia since the accident. Locking does not occur, clicking on occasions, and she avoids bending or lifting whenever possible, whilst sitting on a chair, as at dinner, is a further aggravation.
At the right knee pain occurs about the anterior aspect, on occasions this is associated with giving way, there is no swelling, walking and standing are particular aggravations, and at times she feels as if something is out or [sic] place, and whilst symptoms are of some concern and discomfort, they are not as severe as the left.
At the left ankle, this has markedly improved, with pain about the posterior aspect of the ankle, with some pigmentation as a result of the iontophoresis, and she still cannot wear shoes with any form of heel since the fall.
In relations [sic] to symptoms in the low back and left hip, Ms McCarron stated that these symptoms commenced in or about November 2011, with difficulty standing, restricting her walking and standing, as at the kitchen sink or bench, having to slouch, she avoids any lifting, bending is difficult, she cannot cut her toenails, and I confirmed with her that pain is situated in the low back, as well as the left buttock and lateral aspect of the hip.
Sleep is regularly interrupted, several times during the night, because of pain in the back, the hip and the knee, on many nights having difficulty moving because of such pain and restriction on sleep has been more severe in the last 18 months.
ACTIVITIES:
At home she lives with her husband who works on a fly-in/fly-out basis, with a swing of 28 days on and 6 days off.
In addition, Ms McCarron has three adult children at home, who do not provide her with any help about the house and, therefore, she has to undertake all her domestic activities with laundry, vacuuming, sweeping and mopping, albeit with discomfort, and pacing those activities.
Previously, she was active in the garden, to which she has not returned, she used to be active with badminton and ballroom dancing, to which activities, again, she has not returned.
SOCIAL:
I confirmed she does not smoke and has a mild alcohol intake.
PAST MEDICAL HISTORY:
In the past she has had a number of surgical procedures, including cholycystectomy, hysterectomy, appendectomy, excision of sebaceous cyst, reconstruction and repair of the right shoulder and a nasal procedure.
EXAMINATION:
To examination she was a pleasant lady who provided a clear history. Ms McCarron was 167 cms tall, weighed 116 kgs and she walked with a normal gait.
In the lumbar spine there was slight tenderness in the lower lumbar segments of the posterior mid line, with movements, forward bending fingers reaching to the lower third of the tibia, the remainder of movements were essentially full, lacking a few degrees because of discomfort in lateral flexion. This range of movement was said to be markedly improved following the recent epidural injection.
At the left knee the surgical scar was noted, with no adverse feature, tenderness was absent, there was no obvious effusion, but the thighs were large and precluded any assessment as to wasting. Movement was 0° to 125°, comparable on both knees, resisted quadriceps contraction was unremarkable and there was no instability.
At the right knee there was no tenderness, no effusion and a range of movement which was from 0° to 125°, resisted quadriceps contraction was unremarkable and there was no instability.
At the left ankle there was some minor pigmentation at the site of iontophoresis, no obvious tenderness and a range of movement which was entirely full and painless at the ankle and hind foot.
RADIOLOGY:
Ultrasound Left Knee (January 2010): Showed some subcutaneous oedema in the prepatellar region and moderate patellar tendonopathy.
Left Knee (January 2010): Confirmed the total knee replacement in satisfactory alignment, and moderate left joint effusion.
Left Knee (February 2010): Showed no change on previous.
Ultrasound Left Foot (March 2010): Confirms thickening of the distal Achilles tendon, with calcific foci.
Left Foot and Ankle (March 2010): Confirmed degenerative changes in the talonavicular joint, together with a plantar calcaneal spur.
Left Knee (August 2010): Showed no change on previous.
Bone Scan (August 2010): Confirms no obvious fracture at the left knee, mild synovial inflammation and post operative changes, whilst uptake in the right knee is degenerative in origin.
MRI Left Achilles Tendon (December 2010): Confirms insertional tendonopathy of the distal Achilles tendon with two small tears.
Left Knee (January 2011): Showed no change on previous.
CT Scan Left Knee (January 2011): Confirms the tibial base plate of the prosthesis approximately 10° externally rotated in relation to the femoral component.
Right Knee (September 2011): Confirms moderate to severe osteoarthritis in the medial joint compartment, lesser changes in the other joint compartments.
MRI Right Knee (October 2011): Confirms high grade degenerative change in the medial tibiofemoral joint compartment, tear of the medial meniscus and mild change in the lateral tibiofemoral joint compartment. There was moderate degenerative change in the patellofemoral joint compartment.
GTB Injection (September 2012):
Pelvis and Left Hip (September 2012: Confirms no degenerative change at the hip, with change at the greater trochanter, consistent with gluteal tendon pathology.
Left Knee (September 2012): Showed no change on previous.
Bone Scan (October 2012): Confirms degenerative changes throughout all compartments at the right knee.
MRI Lumbosacral Spine (October 2012): Confirms a minor anterolisthesis of L4 on L5 with a normal disc, advanced facet joint arthropathy and a left synovial cyst, with subarticular recess narrowing, with possible impingement of the L5 nerve root.
CT Guided Left L4/5 Facet Joint Injection (December 2012):
CT Guided Left L5 Nerve Root Sleeve Injection (February 2013):
Ultrasound Guided Injection Left Greater Trochanteric Bursa (February 2013):
CT Guided Injection/Rupture Left L4/5 Facet Cyst (April 2013:
CT Guided Injection Left Piriformis Muscle (May 2013:
Ultrasound Left Hamstring (June 2013): Confirms mild gluteus medius insertional tendonopathy.
CT Guided Injection Left Piriformis and Hamstring Origin (July 2013):
TO ANSWER YOUR QUESTIONS:
1.What history was related to you by our client in relation to:
1.1her symptoms currently?
1.2her activities of daily living, and whether they are presently curtailed in any respect on account of his [sic] injury?
1.3her current treatment regime?
The history related by your client, in relation to her current symptoms are described, as are her activities of daily living and her current treatment regime.
2.What clinical findings did you note upon examination?
The findings to examination are described.
3.Were there any unusual features in the clinical findings from your examination either:
3.1In the findings themselves?
3.2Comparing your findings with the history related by our client?
There are no unusual features to clinical findings, either in the examination findings or comparing the findings with the history related by your client.
4.What is your diagnosis to account for our client’s symptoms?
The diagnosis is that of soft tissue injury to the left knee, which would appear to relate to the patellofemoral joint. Symptoms in the lumbar spine did not commence until about November 2011, and I cannot relate these symptoms to the work injury of February 2010.
The symptoms at the right knee commenced mid 2011, and again, I cannot relate these symptoms to the work injury as such, although it is possible that because of the pain at the left knee, this may have required her to take extra or excessive weight through the right lower limb, provoking or aggravating the underlying degenerative change at the right knee.
Whilst symptoms at the left ankle do relate to a soft tissue injury, occasioned in the work accident of 2010, where there was a pre-existing calcaneal spur and Achilles tendonopathy [sic].
5.What further investigations do you recommend (if any)?
I do not recommend any further investigations. I have not received the letters or reports from Dr Holthouse and I am uncertain as to what is proposed, in relation to the lumbar spine.
6.What is the prognosis?
The prognosis is that her present condition is likely to continue, as are the restrictions upon her activities and her present incapacity.
7.To what do you attribute our client’s current reported symptoms?
7.1Do you believe our client’s injuries are attributable to her injury of 19 February 2010? Do you consider that the work performed has contributed to a significant degree?
7.2Is it probable that the effects of our client’s injury continue to this day?
7.3Is it likely that any of our client’s current reported symptoms relate to a symptomatic pre-existing condition?
7.4Are there any other health issues or lifestyle factors that would explain our client’s reported symptoms?
I have no reason to doubt your client’s condition at the left knee and left ankle is attributable to the incident of 19^th February 2010.
It is probable that the effects of your client’s injury continue to this day.
It was my understanding that your client did not have any significant symptomatology at the left knee, where she had had a total joint replacement previously.
I am not aware of any other health issues or lifestyle factors to explain your client’s reported symptoms.
8.Do you consider our client is currently unfit for her pre-accident duties?
Your client is unfit for her pre-accident duties.
9.Do you consider our client is currently fit for modified or restricted duties? If yes, please provide examples of alternative roles and the number of hours she could likely perform in these roles. Do you believe our client requires vocational rehabilitation?
Your client is fit for modified restricted duties, which would be part-time, in a position which would allow her to sit or stand at discretion, which would be something in the order of four hours a day, four to five days a week, and I would not have thought that your client requires vocational rehabilitation.
10.At this stage are you able to indicate if it is likely there will be any future limitations on our client’s capacity for work and what these limitations will be?
I believe your client’s restricted capacity for employment is likely to be permanent.
11.At this stage are you able to indicate our client’s need for future medical treatment and if so the nature and purpose of such treatment? Please outline the cost of any such treatment.
I believe your client’s treatment, as far as her knee and ankle are concerned, should be to continue with a regular stretching and strengthening programme, either with home exercises or in a gymnasium with a heated pool facility, sensibly avoiding provocation, in avoiding those activities which she knows by her own experience are likely to aggravate or initiate symptoms.
In the future, she may well require consideration as to total replacement at the right knee, that however, I believe is unrelated to the work accident, nor are the symptoms or future treatment to the lumbar spine related to the work accident.
The only additional consideration would be to possible resurfacing of the patella, although I understand her treating orthopaedic surgeon has not proposed that surgery, at least for the present, she may also need to consider excision of the calcaneal exostosis and the surgery which was proposed by Mr Eamonn [sic]. The cost of that treatment would be in the order of $7,500 for the resurfacing of the patella and $5,000 for the surgery to the left heel and foot.
…” (Exhibit R1, ST113)

In his oral evidence Mr Slinger confirmed that, as regards his answers to questions 8 and 9 in his report relating to the applicant’s capacity/incapacity for work, his opinion that the applicant is currently unfit to undertake her pre-injury duties, and that she is currently fit to undertake only “modified restricted duties” on a part-time basis, is based on the effect of her left knee injury of 19 February 2010.
In cross-examination Mr Slinger gave evidence to the following effect:
·an MRI of the applicant’s left knee on 12 April 2009 (Exhibit R1, ST42) indicated degenerative changes in the patellofemoral joint;
·the applicant’s history of ongoing left knee pain after her fall on 19 February 2010 and the various radiological reports suggest that the fall initiated or aggravated symptoms at the patellofemoral joint where there was existing degeneration;
·it was his understanding, from the history given to him by the applicant, that she did not have any significant symptomatology at the left knee immediately prior to her fall on 19 February 2012;
·he did not regard that history as inconsistent with Mr Erak’s reference, in the first paragraph of his report of 25 January 2010 (see paragraph 27 above), to the applicant’s having had “some ongoing pain” in the previous three weeks;
·his opinion regarding the applicant’s fitness for modified restricted duties, as stated in answer to question 9 in his report, was based on her left knee condition alone, without regard to her lower back and right knee conditions.
Dr Philip Hardcastle
Dr Hardcastle, Consultant Orthopaedic Surgeon, confirmed that, at the request of the respondent’s solicitors, he had assessed the applicant on 3 September 2013 and had subsequently provided those solicitors with a report, dated 3 September 2013. He confirmed that he had also provided short supplementary reports to the respondent’s solicitors.
Dr Hardcastle’s report of 3 September 2013 states as follows:
“ Thank you for your letter of 28 August 2013 requesting an independent assessment of Ms Joy McCarron who was reviewed on 3 September 2013.
I acknowledge your medical documents numbered one through to seventy eight.
BACKGROUND
Ms McCarron was born in Wollongong NSW and left school in Year 10. She initially worked in her cousin’s TV repair shop and then went to a warehouse doing packing before starting doing office duties which has been her predominant occupation since. She did work in this capacity for five years as a customs agent and then had maternal commitments. She came to WA but did not work for several years, before starting in 2001 at Garden Island where she did eighteen months office duties full time. She then predominantly did temporary work including contracts up until she got a position with Medibank Health Solutions and had been working there for approximately one month on a full time basis doing office front reception duties when she had her injury in 2010.
There was no lost time off work initially and she was subsequently made redundant in October 2010 from this position. She started doing temporary work again with office duties which continued until about eighteen months ago when she found, because of increasing pain, she was more restricted and she has not worked in the past eighteen months due predominantly to her low back pain and left knee pain.
She is computer literate and touch types.
PAST HISTORY
She reports having hypertension and diabetes for which she takes medication and she has had a hysterectomy, appendectomy and she underwent a right shoulder reconstruction procedure by Mr Hales in about 2008.
She reports that she started to get increased knee pain after a fall in 2003 when she was going up some stairs and since then she has had pain negotiating stairs having to use the handrail for support. She subsequently, underwent an arthroscopy because of symptoms in 2000 [sic] for her left knee and evidently some lump was removed. She had started doing some ballroom dancing and had to stop this at this particular time.
She subsequently underwent a total knee replacement on the left in September 2009 by Mr Sani Erak. She reported a reasonable result afterwards. She got her first job for some time after the procedure. She did say though she was getting pain going up and down stairs, and walking more than three or four blocks. She was taking Panadeine Forte, two to four tablets a day, and sleeping medication with Stilnox three times a week at that stage. There is a report from Mr Sani Erak enclosed (21/01/2010) [sic] where he referred to her having had two falls since her TKR, one she fell into some water and another in early January when she fell onto her knee. He reports that she was taking Endone at that time and the pain in this period was radiating from her groin and down into her foot, with these symptoms coming on about three weeks before this review of January, and possibly related more to the falls that she had had.
There is no history of previous motor vehicle accidents.
PERSONAL DETAILS
She is married with four children age twenty one to thirty six and two grandchildren.
She is a non-smoker and drinks alcohol socially. She likes fishing but is unable to do this since her shoulder operation. She also had to stop badminton after a shoulder operation and ballroom dancing prior to her more recent fall due to her knee symptoms on the left.
Currently, she likes reading, watching TV and computer or iPad games.
DETAILS OF INJURY
She reports on 19 February 2010, she had returned back to her high backed chair and went to sit down on the chair which had wheels on it and on a plastic mat, when suddenly it went backwards and she landed on her buttocks. She got up with some help from one of the male staff members and continued to work.
She reports having pain in her left knee and left ankle and that her gait velocity reduced after this and she subsequently saw Dr Bovell on 21 February 2010, who arranged for a knee x-ray which was reported as having a knee joint effusion but no definitive haemarthrosis and no fractures. Mr Sani Erak who then reviewed her on the 5 March 2010 refers to increased pain in the knee, particularly around the patellofemoral joint, and he makes reference to some left ankle symptoms following the fall. Ankle x-rays and left foot ultrasound were undertaken on the 30 March 2010 which showed some plantar fasciitis (a traumatic condition) associated with a plantar calacaneal spur and some enthesopthaic changes in the region of the Achilles tendon insertion with mild tendonopathy of the Achilles tendon (age related changes).
In his report of 21 June 2010, Dr Paris Bovell refers to significant stress factors at work and I understand she was having some counselling issues. I refer you to the report for more details with respect to some of the issues relating to the stress, which is out of the area of expertise of this report. They do appear though to have had an effect on her depression which can have an impact on subjective pain and functional capacity and activity. As Dr Bovell has outlined, emotional distress can complicate organic pain.
PROGRESS
She evidently started having physiotherapy she reports around December 2010, including hydrotherapy three times a week and continued this for about ten months. Just prior to this, she had been seen by Dr Rod Moore whose letter of 12/10/2010 refers to having five sessions of steroid iontophoresis. The first physiotherapy session was on the 01/12/2010 and there are enclosed reports from The Sports Physiotherapist at Safety Bay in relation to this with the therapy for her knee and ankle, with good improvement in the knee symptoms from her repots.
She also trialled a TENS machine which she uses on her left knee still and she was unable to get to a gym because of family and work issues, but she still did a further hydrotherapy program in May 2011 through until April 2012, doing forty five minutes of walking and another sixty minutes of exercise.
Shen then restarted the hydrotherapy classes in October 2012 and has continued on these, doing them five times a week now, as at this stage she stopped working.
Eighteen months ago she reports development of low back pain. There is no injury or falls, but just gradual onset, with the pain radiating to her left ankle but no associated numbness. Evidently, at one of her workplaces she did some temporary work and they had a flight of stairs which she had to go up and down once a day (twenty stairs) and this was between June and October 2011. She has been off work since then.
She has been referred to Dr David Holthouse who reviewed her after referral from Mr Erak. I am unable to find any specific reports from Dr David Holthouse. Although I cannot find any specific letters from him, he did perform an epidural injection on the 30 August 2013 at the L4/5 disc space and the radiology report also mentions contrast at its tip and further needle projected just inferior to one of the L5 transverse processes. She reports beneficial effect from this at the time of this review.
She also said that she had had a number of injections but could not specifically recall details. I have subsequently found, through Western Radiology, a number of reports of x-rays of injections performed which I will list under Investigations.
She said that she had had variable response from these with four to five days good relief – up to two weeks.
Recently, her medication has changed and she is currently using Targin SR 20 mg twice a day and having Oxynorm – 10 mg generally at lunchtime. She had had previously a trial of Lyrica at night but this was stopped about eighteen months ago. She has been using Endep at night with Magnesium and an anti inflammatory tablet – possibly Brufen – with Codeine, two of these three times a day.
STATUS AT PRESENT
She complains of mild low back pain since the epidural. It was moderate to severe before, radiating to the ankle on the left, with the pain constant in both the back and leg.
There is associated morning stiffness in both her back and leg and she wakes up to six times at night, though it has been better following the epidural.
Aggravating factors of her low back pain include walking up stairs, carrying shopping and she did try on-line shopping but she still had to carry the bags in from the door and she found this was problematic. Standing still, sneezing and walking are the other aggravating factors.
Her left knee symptoms seemed to have improved since the injections. She still has some swelling on the side of the knee which has been present since the fall. Walking is an aggravating factor but this has been restricted by low back and left leg pain and she can manage about one flight of stairs. She occasionally has to use a stick and she wakes with pain in the knee but not since the recent injection.
Her right knee has been giving her problems over the last two and a half years which his generally moderate to severe, and a constant pain aggravated by walking. There was no effect from the epidural in relation to these symptoms.
Bowel and bladder function are reported as normal.
CURRENT ACTIVITIES
She drives an automatic car and around the house she is limited, but does do cooking, floors, mops and vacuums once a month, makes the bed with difficulty and does the washing. Her husband is currently working four weeks on and one week off, though he is just about to finish this, as I understand the contract is finished where he is working. She does not do any gardening but does go shopping as mentioned. Socially, she is fairly limited and has three of her adult children at home. Her grandchildren are in Sydney and she last went there in September 2012 for a birthday. She spends most of her time at home and is getting a little depressed.
On her self assessed Oswestry questionnaire she reported the following:
·Pain is mild at the time of assessment (5/10 on the Visual Analogue Scale).
·Painkillers give moderate relief from pain.
·Can look after herself normally but it is very painful.
·Pain prevents her standing more than ten minutes.
·Pain prevents her sitting more than one hour.
·Pain prevents her walking more than 100m.
·Can lift only very light weights.
·Because of pain has less than six hours sleep.
·Sex life nearly absent because of pain.
·Pain has restricted her social life and she does not go out as often.
·Pain prevents her travelling except to receive treatment.
CLINICAL ASSESSMENT
She was a very pleasant woman who walked with a slow gait and a slight left legged limp. She was 163 cm in height, weighing 110 kg which does put her in the very obese range on the BMI calculator.
Upper Limbs
These had a normal appearance with no laxities, swellings, callosities or tremor and a full range of upper limb movement.
Back/Spine
She had a slight list to the right with tenderness at L5-S1. On forward flexion the fingertips came to 6 cm below the knee. Extension was 20°, lateral flexion the fingertips came to the low thigh region and rotation was 40° to both sides in the sitting position.
Simulated rotation and head compression tests were both negative.
Lower Limbs
She had some valgus alignment at the knees and slight external rotation of the right leg compared to the left with a long vertical scar over the left knee.
Straight leg raising was 90° on both sides with reflexes symmetrical and intact and slump test was negative with motor and sensory examination normal.
She could walk on her toes, heels and squat with the knees flexing to 45°.
The left leg was about 1 cm longer than the right to measurement.
Quadriceps circumference reduced by 1 cm on the left and calf circumference on the left was increased by 1 cm.
Left knee examination demonstrated no effusion with some swelling over the medial side in the soft tissues and there was generalised tenderness around the knee with the range of movement measured from 0 – 130° being the same on the right. There was no instability.
Right knee examination demonstrated no effusion, with tenderness over the patellofemoral joint and lateral aspect of the knee as well as some medial joint tenderness.
Ankle examination on both sides demonstrated a full range of movement comparing left and right, and examination of the tendo-achilles was normal on the left as was pressure over the calcaneal spur non tender.
She did have a negative Trendelenburg test on both sides.
INVESTIGATIONS
1.Injections
a)   Ultrasound Guided Left GTP Injection (03/09/2012 and 15/01/2013).
b)   Ultrasound Injection Left Greater Trochanteric Bursa (28/02/2013).
c)   CT guided Injection Left L4/5 Facet Cyst (09/04/2013).
d)   CT Injection Left Piriformis Muscle (07/05/2013).
e)   CT Injection Left Piriformis and Hamstring Origins (02/07/2013).
2.Diagnostic Radiology
a)   Plain X-rays Left Knee (21/01/2010, 10/08/2010 and 17/01/2011) – The initial x-rays [sic] shows a joint effusion but no other abnormality in relation to the total knee replacement and no complications seen subsequent to this on the latter two x-rays with evidence of degenerative patellofemoral changes.
b)   Technetium Bone Scan (10/08/2010) – No evidence of focal fracture in the knee joint with some mild synovial inflammation around the knee with some non specific changes around the ankle.
c)   MRI Left Achilles Tendon (24/12/2010) – This reports insertional tendonopathy of the distal Achilles tendon and there are two small tears.
d)   CT Left Knee (21/01/2011) – Dr Bill Breidahl has referred to no CT evidence of a joint effusion and no specific complications in relation to the implant components. He reports that the tibial base plate is approximately 10° externally rotated in relation to the femoral component.
e)   Plain X-rays Right Knee (01/09/2011) – This shows quite severe degenerative disease involving the medial joint compartment with some less marked patellofemoral and lateral joint compartment disease.
f)   MRI Right Knee (24/10/2011) – This was not available for review but has reported high grade degenerative changes within the medial compartment as seen on the plain x-rays and avulsion of the medial meniscus with an intact lateral meniscus and mild degenerative changes involving the lateral joint space and more significant degeneration of the patellofemoral joint.
g)   X-rays Pelvis and Left Hip (04/09/2012) – This has been reported as normal with some possible underlying gluteal tendon pathology.
h)   Technetium Bone Scan (16/10/2012) – There is no complications [sic] in relation to the left knee joint reported with some arthropathy features noted adjacent to the articular surface of the left patella. They have reported on degenerative change in all compartments of the right knee, most advanced in the medial compartment consistent with x-rays and an active synovial inflammation and mild supra patella bursitis.
i)    MRI Lumbar Spine (29/10/2012) – This shows minor degenerative spondylolisthesis at L4/5 with a synovial cyst on the left in the facet joint and they have referred to some impingement of the left L5 nerve root though there is no specific displacement.
j)    Ultrasound Both Hip [sic] (16/01/2013) – This reports gluteal tendonopathy and gluteus minimus linear calcification in enthesopathy. There is mild trochanteric bursitis on the left and probably more focal tenderness in the right bursa.
k)   Ultrasound Left Hamstrings (24/05/2013) – This reports the hamstrings intact with left gluteus medius insertional tendonopathy but no associated bursitis.
l)    Abdominal Ultrasound (06/05/2013) – This reports fatty infiltration of the liver (fatty liver) and no specific pathology identified.
OPINION
Ms McCarron presents with a number of different problematic regions with chronic low back pain related to a degenerative spondylolisthesis at L4/5, progression of degenerative arthritis involving the right knee and most likely patellofemoral problems in relation to her left knee, having previously had a knee replacement on the left.
She has had a lot of different varieties of treatment and is currently having continuing regular medication both anti inflammatory, analgesic and night medication and undertaking regular hydrotherapy which is appropriate, given her very low level of activity that she reports.
From my assessment, the low back pain and right knee issues are probably more problematic then [sic] the left knee replacement, appreciating that she is still having problems in relation to this, though there was evidence before the fall of 19/02/2010 that she was having some persistent symptoms in relation to the left knee following the knee replacement, though significantly better than she was prior to the operation.
There are a number of surgical options available which would include knee replacement surgery on the right and possibly patellofemoral replacement on the left. However, she has had a very good response to a lumbar epidural injection which has improved the symptoms around the left knee and taking into account the pathology in the lumbar region with the degenerative spondylolisthesis, it would not be unreasonable to treat the lower back condition more specifically at this stage, and treat the low back and right knee conditions.
It would be appropriate though if surgical treatment was to be considered, in particular for her right knee and possibly for the lumbar spine dependent on her outcome with Dr Holthouse’s treatment regime, that she does try and lose at least another 15 kg – 20 kg. Her BMI index is very high and with her other medical issues risk of complications from further surgical treatment are relatively high. There may even be a medical indication to a laparoscopic banding technique to help in the management of her chronic low back and lower limb problems, as certainly her obesity is a complicating factor in her ongoing chronic low back and lower limb problems.
In reply to your specific questions:
33.Please examine the applicant, review the enclosed material and provide your answers to the following questions:
33.1has the applicant suffered from a left knee condition, and if so;
33.1.1what is the precise diagnosis of that condition?
The diagnosis of the left knee current symptoms in my opinion relates to patellofemoral pain and some synovitis which is supported by the bone scan findings. Clinical findings are non specific but taking into account the radiology does not demonstrate any specific problems with the femoro-tibial prosthesis, that the likely cause of the symptoms in the left knee relates to some local pathology involving the patellofemoral joint and there possibly is a component of left knee pain related to the left leg pain from her low back region.
33.1.2 when did it first arise?
The patellofemoral degeneration was present at the time of the knee replacement surgery. There is evidence that she was having symptoms in the knee prior to the fall and also there had been a history of two other falls since the surgery with the one in early January 2011 [sic] aggravating the knee for which she was taking Endone and Mr Sani Erak has referred in his letter of 25/01/2010 to possibly some pre-patella bursitis.
33.1.3 what caused, or contributed to the development of that condition?
There certainly is evidence of a pre-existing patellofemoral problem in relation to the left knee and the fall of 19/02/2010 does appear to have also been a contributing factor to the development and propagation of these symptoms.
33.2.4 does the applicant continue to suffer from that condition?
The evidence does support that there is still pain coming from the patellofemoral joint on the left but it also could well be coming or contributed to by the more recent development of pain in the left leg coming from the lower back region most likely at L4/5.
33.2if you consider that the applicant has suffered from a left knee condition, was that condition contributed to, to a significant degree by her employment with Medibank? By ‘significant degree’ we mean ‘a degree that is substantially more than material’.
This is a very difficult question to answer reviewing the overall situation, as there was a significant problem before with the knee replacement surgery having recently been undertaken, and there is evidence that she has gradually made a good recovery. There is likely to have been a short term significant aggravation given that the immediate x-rays directly after the fall did show a significant knee effusion. In my opinion though, the effects of the aggravation now are more mild.
33.3if yes to 33.2 above, does the applicant continued [sic] to suffer from the effects of the employment related condition?
The employment related condition in my opinion is only a mild component of her left knee symptoms. She does have, in my opinion, more significant problems related to the pre-existing degenerative spondylolisthesis in the lumbar spine and development and progression of degenerative osteoarthritis of the right knee for which there is no evidence that the fall has had a material effect on, appreciating that she has been limping, but this would not specifically cause any significant aggravation to the low back problem.
33.4if you consider that she no longer suffers from the employment related condition, when do you consider she ceased to suffer from the effect of it?
The evidence referring to all the enclosed reports does support that the left knee condition has resolved to its pre-injury condition and any specific ongoing effects from the fall in relation to the left knee are at most, mild.
I support the opinion of Dr D Gope in relation to his opinion in his report of 15/11/2011 and comparing the symptoms directly prior to the work related fall in relation to the letter from Mr Sani Erak and the subsequent progress and reports, taking into account the plain x-rays and bone scan findings in particular.
The left ankle which also was injured is no longer causing any specific problems from my clinical assessment and the radiology only demonstrated some minor tears and some age related changes.
Appreciating the period after the knee replacement, the clinical findings are that her knee range of movement has returned to normal without specific evidence of an effusion in the joint which was present directly after the fall, which all support that there has been at least a significant recovery from the effects of the fall.
…” (Exhibit R1, ST110)

In a supplementary report to the respondent’s solicitors, dated 4 December 2013 (Exhibit R1, ST115), Dr Hardcastle stated as follows:
“ Thank you for letter of 20 November 2013 and providing a copy of Mr Barrie Slinger’s report of 28 October 2013.
I have been through the clinical file again and would apologise for two errors in my report of 3 September 2013. There is a typographical error on page three paragraph one ‘some plantar fasciitis (a traumatic condition)’. This should be atraumatic implying that it is a condition that is not specifically associated with a single incident trauma. Under 33.2 in relation to your questions on page nine, I have referred to ‘immediate x-ray directly after the fall did show a significant knee effusion’. There is an x-ray dated 21 January 2010 which I reviewed showing the joint effusion but the next x-ray was not taken until 10 August 2010 and it does seem apparent that I have interpreted the initial x-ray of 21 January 2010 as being the x-ray taken after the fall where as in fact the investigations performed initially after the fall were in fact the SKG films of the left ankle, foot and left foot ultrasound dated 30 March 2010. This does not alter my overall opinion with respect to the left knee.
It is apparent reviewing the general practitioner file you have enclosed that the left knee symptoms reported after the fall gradually improved, with all the entries between 17 March 2010 and 22 April 2010 all making reference to improvement at each visit. It was at this latter review of 22 April 2010 that the reference to the harassment, which on review appears quite significant, with it starting to become a very important factor with respect to her workplace.
These changes would be the only aspects of my report that I would alter at this stage.
…”
Dr Hardcastle had earlier provided a letter, dated 25 September 2013, in which he amended the date of Dr Gope’s report (referred to in answer to question 33.4 in his report of 3 September 2013) to “28 November 2011” (Exhibit R1, ST112). [The Tribunal notes that Mr Gope’s report is set out in paragraph 44 below.]
In his examination-in-chief Dr Hardcastle was referred to the general practitioners’ clinical notes relating to consultations with the applicant on 15 and 21 January 2010, 22 and 25 February 2010, 17 March 2010, 22 April 2010 and 5 May 2010 (T17, pp 46–49). Dr Hardcastle said that those notes indicate that the general practitioner was not initially concerned about the applicant’s left knee as no x-ray was arranged at that time, and that the pain symptoms were probably located in the patellofemoral joint following the total knee replacement in September 2009, such post-operative pain not being uncommon (about 15%–20% of cases). As regards the clinical notes for consultations after the fall of 19 February 2010, Dr Hardcastle said that these indicated that there had been “an increase in pain directly after the fall” with subsequent gradual improvement, which was “consistent with a mild injury”.
Dr Hardcastle opined that the applicant’s fall on 19 February 2010 resulted in a “transient increase in symptoms” and did not cause any material injury to the knee joint. He added that, as at 3 September 2103 when he examined the applicant, there were no continuing effects of the fall on 19 February 2010 and that her ongoing symptoms were related to degeneration in the patellofemoral joint.
In response to questions by the Tribunal regarding the opinions expressed in his answers to questions 33.1.3–33.4 in his report of 3 September 2013, Dr Hardcastle acknowledged that the applicant may continue to experience pain symptoms in the left knee patellofemoral joint as a result of her workplace fall on 19 February 2010, but he added that, in his opinion, the cause of her ongoing left knee pain is “multifactorial”, of which the fall on 19 February 2010 would constitute a relatively small contributing factor. He further added that the ongoing effects of that fall would relate only to the applicant’s left knee pain symptoms and not her “functionality”.
Additional Medical evidence Included in the T Documents
Included in the T Documents are two reports of Mr Dibyendu Gope, Consultant Orthopaedic Surgeon, relating to the applicant which are addressed to the respondent.
Mr Gope’s first report, dated 28 November 2011, which relates to his assessment of the applicant on 15 November 2011, concludes as follows:
“ …
SUMMARY AND ASSESSMENT:
In summary, this 56 year old lady fell off a chair onto the ground, hitting her left heel against the ground, five months following a left total knee replacement. Apparently her post-operative symptoms of pain in the knee joint were settling satisfactorily when reviewed by her general practitioner on 21 January 2010 (previous to the subject fall). She still complained of a lot of pain especially at night which was interfering with her sleep. There was slight swelling anterior to the patella.
Following the fall she had aggravation of her knee pain as well as the left heel pain which has not settled as yet. Her main problem is left anterior knee pain which may require a resurfacing of the patella, and left heel pain for which she has been advised to undergo excision of calcaneal exostosis.
Subsequently Ms McCarron gradually developed increasing pain in the right knee joint which radiologically shows degenerative change in the medial tibiofemoral and anterior patellofemoral joints which she feels was due to overuse of the right knee in order to protect the left knee while it was recovering from the total knee replacement.
To address your specific questions:
Diagnosis and prognosis
…
2.From what specific condition does Mrs McCarron currently suffer? Please provide a short description of the condition, including its known origins and progression. Please include clinical signs and symptoms to support your conclusion. If Mrs McCarron’s condition has already been resolved, please also provide, where possible, details of the condition.
Ms McCarron suffers from the following conditions:
i.Post-operative left total knee replacement resulting from a work injury to the left knee in 2009, culminating in a left total knee replacement. This was further aggravated by a fall at work on 19 February 2010.
ii.Achilles tendinitis and calcaneal exostosis.
iii.Osteoarthritis right knee. There is radiological evidence of moderately advanced medial tibiofemoral and patellofemoral joint degenerative change. These changes again pre-existed the present incident but Ms McCarron feels that because of putting extra stress on the right knee while protecting her left knee which was recovering from surgery these symptoms were made evident.
…
It is my opinion that the aggravation of the left knee condition has resolved to the pre-injury condition.
The condition in the left heel radiologically existed prior to this injury and was symptomatically silent but was rendered a chronic, painful condition. This has also settled down to a reasonable level but considering the natural history of this condition Ms McCarron is likely to develop and aggravate this condition by walking long distances or wearing misfitting shoes putting pressure on the back of the left heel.
The right knee condition has undergone advanced degenerative change which will progress further, taking its natural course of deterioration. The condition will require invasive treatment, namely right total knee replacement to treat the increasing pain in the right knee. Apparently, of all the conditions, this is the most distressing.
3.What is the prognosis for Mrs McCarron’s current condition?
The prognosis with regard to the left total knee replacement appears to be favourable in the long run as far as the prognosis of the total knee replacement is concerned. She does have an excellent range of flexion of 130° and full extension. The residual pain is likely to diminish within a period of 18 months to two years from the time of the operation.
The prognosis with regard to the back of the heel and in the right knee is that they may remain symptomatic unless the causative factors are dealt with, in other words, the calcaneal exostosis is excised.
Reasonable conservative management was undertaken both for the left heel and the right knee condition and as far as the right knee is concerned there is an indication for her undergoing a right total knee replacement for relief of pain.
4.Are there any aspects of the clinical examination which tend to suggest Mrs McCarron is:
a)   voluntarily exaggerating her symptoms
I did not identify any significant exaggeration of symptoms.
b)   consciously guarding restriction of movement.
Her range of movement was quite satisfactory and no attempt to guard the movements was noted.
c)   displaying symptoms and examination findings inconsistent with the claimed condition
Symptoms and examination findings were consistent with the claimed conditions.
d)   Demonstrating a range of movement during your passive observation which were [sic]not replicated during clinical examination.
There is no discrepancy between passive observation and the movement obtained during clinical examination.
Employment relationship
1.Is the condition suffered by Mrs McCarron related to:
a)    her employment as a General Clerk
Her employment as a General Clerk does not contribute to her condition.
b) factors unrelated to work
No.
c)    a pre-existing, congenital, constitutional or underlying condition
The conditions suffered by Ms McCarron are probably related to pre-existing, age-related degenerative conditions of both knees.
c)    the natural progression of an underlying condition
The natural progression of the underlying condition was accelerated as a result of the work injury.
e) underlying degeneration as part of the natural ageing process, or
This is probable.
f)   other health issues.
She is obese, having a body mass index of 42.2 kg/m².
2.If Mrs McCarron’s initial condition has been superseded by a different condition, please provide your opinion on what factors have contributed to the different condition.
It is my opinion that the trauma has played a role in the development of the symptoms.
It is also probable that the right knee condition was aggravated by putting extra weight on the right knee in order to protect the left knee while it was recovering from total knee replacement. The subject injury may have a minor role to play as this did not start straight away after the injury and it happened in the last six months.
The left heel problem apparently started when she stuck [sic] her left heel against the floor when she fell from the chair.
3.If you consider Mrs McCarron’s Commonwealth employment continues to contribute to her condition, please explain the basis for your conclusion; please provide your opinion regarding the specific factors for the non resolution of her left knee and Achilles injury.
The commonwealth employment may not be considered as a factor as she has changed her job and the previous job was clerical/sedentary duties mainly. The fall from the chair was accidental. Her present job is that of an office administrator of a property management firm. This is a full-time job, working hours being 9.00 am to 5.00 pm, five days a week, and apparently the working conditions are pleasant.
4.Prior to Mrs McCarron’s fall at work in February 2010, Mrs McCarron was complaining of ongoing left knee pain due to her left knee replacement in September 2009. Do you consider that Mrs McCarron sustained a new injury on 19 February 2010 or was it an aggravation of her pre-existing knee injury?
I have noted from Dr Bovell’s office report that Ms McCarron did complain of residual post-operative pain in her left knee a few weeks prior to the subject incident. It is my opinion that her symptoms from left total knee replacement did not completely settle down even though she was very much improved and the symptoms were aggravated by the fall.
…” (original emphasis) (T119)
Mr Gope provided to the respondent a supplementary report, dated 13 August 2012, which relevantly states as follows:
“ …
In response to your additional questions, I offer the following responses:
1.Comcare need to clarify whether Mrs McCarron’s left knee and Achilles condition would be as it is today had it not been for the workplace injury on 19 February 2010. Please answer the following questions in thorough detail, if there are any other factors you wish to discuss regarding Mrs McCarron’s left Knee and Achilles injury, please discuss.
It is my opinion that Ms McCarron’s left knee and Achilles tendon conditions would not be as it is today had it not been for the workplace injury on 19 February 2010.
Ms McCarron underwent a left total knee replacement about five months prior to the subject injury of 19 February 2010. Apparently she was recovering fairly satisfactorily until this fall aggravated her left knee problem. Radiologically there was no structural damage to the knee prosthesis but the soft tissue injury causing the aggravation would have necessitated some treatment in the form of physiotherapy following the injury. It was also felt that her main pain was in the patellofemoral joint and the synovitis would be due to patellar maltracking, which was expected to improve with the improvement of the strength of the quadriceps muscles.
Regarding Mrs McCarron’s left knee injury:
a)   Is all medical treatment attributable to original left knee condition and surgery?
Part of the medical treatment (in the form of physiotherapy and analgesic medication) would be attributable to the aggravation of the knee pain because of the injury and partly because of the patellofemoral malalignment which was there post-operatively.
b)     If injury effects have resolved, but some treatment still required what would be required for post operative effects?
It is my opinion that the effect of injury to the left knee has resolved and the future treatment which would be required would be due to treatment of the patellofemoral joint pain (for which a patellar resurfacing procedure was suggested if the condition persisted).
c)   If current treatment relates to left knee work injury when should the need for this treatment abate?
It is my opinion that no further specific treatment for the left knee is required as a result of the injury. However it would be helpful if she continues to do the quadriceps exercises to improve the muscle tone and retain the mobility of the knee joint.
d)     Post operatively how long does treatment usually last?
The post-operative rehabilitation treatment following a total knee replacement should take from three to six months.
…” (T144)
The Relevant Legislation
The SRC Act relevantly provides as follows:
“ 4       Interpretation
(1)     In this Act, unless the contrary intention appears:
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
…
(9)   A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…
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.
…
5BDefinition of disease
(1)     In this Act:
disease means:
(a)     an ailment suffered by an employee; or
(b)     an aggravation of such ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
…
(2)     In this Act:
significant degree means a degree that is substantially more than material.
…
14Compensation for injuries
(1)   Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
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Section 16 of the SRC Act provides for the payment of compensation in respect of the cost of reasonable medical treatment obtained in relation to an “injury” (as defined in s 5A(1)), and s 19 of the SRC Act provides for the payment of compensation for “incapacity for work” (as defined in s 4(9)) resulting from an “injury” (as defined).
The Issue
As previously mentioned, the respondent, on 9 July 2010, accepted liability under s 14 of the SRC Act to pay compensation to the applicant in respect of “sprain of unspecified site of knee & leg (left) (soft tissue injuries)”, sustained on 19 February 2010 (“the compensable injury”). On 22 February 2013, however, the respondent determined that the applicant was not presently suffering from the effects of the compensable injury – in particular, the injury to her left knee – and that, accordingly, it was not presently liable to pay compensation to her:
·pursuant to s 16 of the SRC Act in respect of the cost of reasonable medical treatment obtained in relation to the compensable injury; or
·pursuant to s 19 of the SRC Act for “incapacity for work” resulting from the compensable injury.
That determination was affirmed by a reviewable decision made by the respondent on 9 May 2013.
Accordingly the issue for the Tribunal’s determination is whether the applicant has continued to suffer, and is presently suffering, from the effects of the compensable injury – in particular, the injury to her left knee – such that the respondent has continued to be liable, and is presently liable, to pay compensation to her, in accordance with s 16 and/or s 19 of the SRC Act, in respect of the compensable injury.
Consideration
The compensable injury
In the Tribunal’s opinion the description of the compensable injury suffered by the applicant on 19 February 2010, as determined by the respondent on 9 July 2010, namely, “sprain of unspecified site of knee & leg (left) (soft tissue injuries)”, is unsatisfactory. Having regard to the contemporaneous medical evidence - in particular, Dr Bovell’s clinical note of 22 February 2010 and his report of 21 June 2010 (T16, pp 37-38, 48), and Mr Erak’s report of 5 March 2010 (Exhibit R1, ST 11 - the Tribunal is satisfied that, on 19 February 2010, by reason of her workplace fall on that date, the applicant suffered a soft tissue injury to the patellofemoral joint in her left knee. The Tribunal notes, furthermore, that, in a separate determination by the respondent, dated 15 September 2010, Achilles tendonitis was also accepted as a “secondary” compensable injury, with effect from 17 March 2010.
Neither of the parties, however, has disputed the correctness or appropriateness of the description of the compensable injury, as determined by the respondent on 9 July 2010, and, accordingly, the Tribunal makes no finding in relation to that matter.
Does the respondent continue to be liable to pay compensation to the applicant for the cost of reasonable medical treatment, in accordance with s 16 of the SRC Act, in respect of the compensable injury?
The Tribunal notes the applicant’s evidence that, immediately after the relevant workplace incident in which she had a fall on 19 February 2010, she experienced an increase of pain in her left knee and that she has thereafter continued to experience ongoing pain symptoms in her left knee and presently experiences pain symptoms in her left knee. That evidence is consistent with Dr Bovell’s consultation note of 22 February 2010, in which he referred to the applicant’s experiencing significant pain, tenderness and swelling in the left knee immediately after the fall (T17, p 48), and his report of 21 June 2010 (T16) and with subsequent medical evidence that, notwithstanding that she reported to Dr Bovell in the period March–May 2010 that her left knee pain was improving (see his consultation notes of 17 March, 22 April and 5 May 2010 – T17, pp 46–47), she has continued to experience ongoing left knee pain since that fall (see, in particular, Mr Erak’s various subsequent reports and workers’ compensation progress medical certificates in the period from 5 March 2010 to 7 February 2014 included in the T Documents and Exhibit R1, some of which were referred to in paragraphs 28–31 above). The Tribunal accepts the applicant’s evidence.

The question whether the applicant’s ongoing left knee pain symptoms are resulting from the compensable injury is, however, a medical question and falls to be determined by the Tribunal on the basis of the medical evidence before it.
In the Tribunal’s assessment, having regard to the whole of the recent medical evidence before it, that evidence, on balance, supports the proposition that the compensable injury has, since its occurrence, continued to be, and is presently, an operative cause of the applicant’s ongoing left knee pain symptoms. Mr Slinger has unequivocally expressed an opinion to that effect. Mr Erak has continued to issue workers’ compensation progress medical certificates in respect of the compensable injury (the most recent of which, in evidence, being issued on 7 February 2014 for the period from 7 February to 7 May 2014 (Exhibit R1, ST123)) regarding ongoing left knee pain experienced by the applicant, although, in his oral evidence, he appeared to be of the opinion that the cause of the applicant’s ongoing left knee pain is multifactorial, including, not only the compensable injury, but also the total knee replacement of 23 September 2009 and degenerative change in the patella. Likewise, Dr Hardcastle, in his oral evidence, opined that the cause of the applicant’s ongoing left knee pain is multifactorial, including degeneration in the patellofemoral joint, and a relatively small contribution from the compensable injury. Dr Hardcastle, furthermore, acknowledged that, in his answers to questions 33.1.3–33.4 in his report of 3 September 2013, he indicated that he accepted that the compensable injury may be continuing to contribute to the applicant’s ongoing left knee symptoms, albeit only to a “mild” degree. Mr Gope’s report of 28 November 2011 (T119) was based on his assessment of the applicant on 15 November 2011 (some 15 months before the respondent’s relevant determination of 22 February 2013) and, accordingly, is of limited assistance to the Tribunal for present purposes. The Tribunal notes, however, that, in that report, Mr Gope accepted that, although the aggravation of the applicant’s left knee condition caused by the fall on 19 February 2010 had itself resolved, the applicant continued to experience pain in the left knee resulting from that fall.
Having regard to the medical evidence before it, the Tribunal is satisfied, and finds, that the compensable injury has, from its occurrence on 19 February 2010, continued to be, and is presently, an operative cause of the applicant’s ongoing left knee symptoms and that, accordingly, the applicant’s ongoing left knee symptoms have continued to result, and are presently resulting, from the compensable injury.
The Tribunal concludes, therefore, that the respondent has continued to be liable, and is presently liable, to pay compensation to the applicant for the cost of reasonable medical treatment, in accordance with s 16 of the SRC Act, in respect of the compensable injury.
Does the respondent continue to be liable to pay compensation to the applicant for incapacity for work, in accordance with s 19 of the SRC Act, in respect of the compensable injury?
The Tribunal notes that, although the respondent’s determination that the applicant had “no present entitlement to compensation for incapacity payments under section 19 of the SRC Act” was made on 22 February 2013, the applicant’s evidence was that she had “not received any weekly compensation since” 15 January 2013 (see para 40 of her statement of evidence set out in paragraph 21 above).
In the period from January 2013 to date Mr Erak has issued the following workers’ compensation progress medical certificates which are in evidence:
·on 14 January 2013 Mr Erak certified the applicant as “totally unfit for work” from 14 January 2013 to 14 April 2013 by reason of “ongoing pain knee & hip” caused by “fall at work” on 19 February 2010 (Exhibit R1, ST28);
·on 25 February 2013 Mr Erak certified the applicant as “totally unfit for work” from 25 February 2013 to 30 June 2013 by reason of “ongoing pain” (Exhibit R1, ST31);
·on 13 June 2013 Mr Erak certified the applicant as “totally unfit for work” from 13 June 2013 to 13 September 2013 by reason of “ongoing pain” (Exhibit R1, ST39);
·on 7 February 2014 Mr Erak certified the applicant as “totally unfit for work” from 7 February 2014 to 7 May 2014 “(ongoing)” by reason of “pain → back → hip →knee” (Exhibit R1, ST123).
The Tribunal notes that, in the abovementioned period, Dr Gallagher (general practitioner) issued a workers’ compensation progress medical certificate on 28 October 2013 whereby she certified the applicant as “totally unfit for work for 3 months” and referred to her being due for an “epidural with David Holthouse” (a neurosurgeon) (Exhibit R1, ST127).
Mr Slinger, in his report of 28 December 2013, specifically addressed the matter of the applicant’s work capacity and he expressed the opinion that she was “unfit for her pre-accident duties” but “fit for modified restricted duties which would be part-time …” (Exhibit R1, ST113 – set out in paragraph 34 above). In his oral evidence Mr Slinger confirmed that his opinion related to the effect of the compensable injury alone.
Dr Hardcastle, in his report of 3 September 2013, did not address the matter of the applicant’s work capacity. In his oral evidence, however, Dr Hardcastle opined that, although the applicant’s workplace fall on 19 February 2010 may have ongoing effects on her by way of left knee pain symptoms, it does not have any effect on her “functionality”.
In the Tribunal’s opinion, the abovementioned medical certificates issued by Mr Erak and Dr Gallagher, whereby the applicant was certified as “totally unfit for work”, are not confined to the effect of pain resulting from the compensable injury on the applicant’s capacity for work but, more broadly, relate to the effect of ongoing pain resulting from, not only the compensable injury, but also her lower back and hip conditions, on her capacity for work. Accordingly, in the Tribunal’s opinion, those medical certificates do not constitute evidence that the applicant was, and is, totally incapacitated for work as a result of the compensable injury alone.
The Tribunal, however, attaches great weight to the report of Mr Slinger and to his abovementioned opinion to the effect that the applicant is partially incapacitated for work as a result of the compensable injury alone.
In the Tribunal’s opinion, Dr Hardcastle’s evidence does not clearly address the matter of the applicant’s capacity for work and the effect, if any, of the compensable injury on her capacity for work. As previously noted, his report of 3 September 2013 does not address that matter, and his oral evidence merely refers, without elaboration, to her “functionality” not being affected by the compensable injury. Accordingly, the Tribunal attaches substantially less weight to Dr Hardcastle’s evidence than it attaches to Mr Slinger’s evidence regarding this matter.
The Tribunal accepts Mr Slinger’s evidence and, on the basis of that evidence, it finds that, for the period from January 2013 to date, and as at the present date, the applicant has been, and is, incapacitated for work, within the meaning of s 4(9)(b) of the SRC Act, as a result of the compensable injury.
The Tribunal concludes, therefore, that the respondent has continued to be liable, and is presently liable, to pay compensation to the applicant for incapacity for work, in accordance with s 19 of the SRC Act, in respect of the compensable injury.
Decision
For the above reasons the decision under review is set aside and, in substitution therefor, it is decided that the respondent has at all material times continued to be liable, and is presently liable, to pay compensation to the applicant, in accordance with s 16 and s 19 of the SRC Act, in respect of the compensable injury.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
................[sgd D Brodie].................................................
Administrative Assistant
Dated 6 June 2014

Dates of hearing 7, 8, 9, 10 April 2014

Counsel for the Applicant Mr D Bruns

Solicitors for the Applicant CLP Legal

Counsel for the Respondent Ms G Walker

Solicitors for the Respondent Australian Government Solicitor

Division	General Administrative Division
File Number	2013/2323
Re	Joy McCarron
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President S D Hotop
Date	6 June 2014
Place	Perth

Dates of hearing	7, 8, 9, 10 April 2014
Counsel for the Applicant	Mr D Bruns
Solicitors for the Applicant	CLP Legal
Counsel for the Respondent	Ms G Walker
Solicitors for the Respondent	Australian Government Solicitor