Klemm v Workcover Queensland (formerly Workers Compensation )
[2018] QMC 18
•16 October 2018
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Klemm v Workcover Queensland (formerly Workers Compensation ) [2018] QMC 18
PARTIES:
John Klemm
(Appellant)
v
Workcover Queensland (formerly Workers Compensation )
(Defendant)
FILE NO/S:
MAG-00249085/17(1)
DIVISION:
Industrial Magistrates Court
PROCEEDING:
Appeal against decision of Workcover
ORIGINATING COURT:
Industrial Magistrates Court at Brisbane
DELIVERED ON:
16 October 2018
DELIVERED AT:
Brisbane Magistrates Court
HEARING DATE:
19 July 2018
MAGISTRATE:
Thacker AC
ORDERs:
1. The decision of the respondent is set aside.
2. The application of the appellant for compensation is granted.
3. Costs in favour of the appellant.
CATCHWORDS:
INDUSTRIAL LAW – WORKERS COMPENSATION – 1973 accident relevance by contributing factor to current condition of knee
Workers Compensation and Rehabilitation Act 2003, s 603
Workers’ Compensation Act 1916, s3
Pleming v Workers’ Compensation Board of Queensland (1996) 152 QGIG 493
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Butler v Coal Cliff Collieries Ltd (1922) 39 Weekly Notes (NSW) 124
COUNSEL / SOLICITORS:
Barrister O’Neil instructed by Sciacca Lawyers for appellant
Barrister Schneidewin McGuiness & Wilson Lawyers for respondent
The background facts
The applicant, John Klemm, is 68 years of age. He retired from the workforce in 2002. This appeal relates to his employment with the Department of Primary Industries (DPI) from 1972 – the same employment he had when he retired. Whilst employed on 17 October 1973 he was travelling home from work and was involved in a single vehicle car accident, colliding with a pole. The right side of his two-door convertible sports car effectively wrapped around the pole. He sustained significant injuries including compound fractures of the tibia to both of his legs. He made an application for compensation from the Workers’ Compensation Board which was accepted.
He returned to work the following year though his right leg was still in plaster. This was a relatively sedentary job as a technologist. He did not play much sport over the following years, or gain weight that could be considered contributory to later knee problems.
He experienced on going pain in his legs. He simply lived with that condition until approximately the mid-1990s when he consulted his general practitioner about the pain. X-rays were obtained and he was informed he would need knee replacements but was told he was too young to have this operation. He carried on as before. The applicant did some exercises to address the pain and conceded in his testimony to the court that his knees remained relatively stable.
Then, in early 2017 he noticed an increase in knee pain, especially to his left knee. Whilst on an overseas trip with his son in June 2017 he had trouble walking any distance. On return from that trip he consulted his general practitioner who referred him to Dr Peter Hewitt, a specialist orthopaedic surgeon.
Dr Hewitt’s advice was that he was suffering osteoarthritis and that he should have a left knee replacement. The applicant sought to re-open his 1973 workers compensation claim to fund the costs of that surgery. The respondent re-opened the claim. However, by an email dated 15 November 2017 (the respondent’s decision) with some clumsy words [1] did not approve the surgery.
[1]Exhibit 1, document no. 3
The respondent does not accept that the 1973 injuries continue to be relevant and acceptable for compensation. The respondent’s case is that the appellant recovered from the injuries consequent upon the 1973 car accident and his current knee issues are simply a degenerative condition that is age-related and not causally connected to the car accident as too much time has intervened.
The respondent relies for this position on the advice of Dr Sanjay Joshi, orthopaedic surgeon. His opinion is that the original injury is “stable and stationary” as well as that the osteoarthritis is due to “aging and wear and tear over the last 44 years” being factors.
By Notice of Appeal dated 12 December 2017 the appellant appeals the respondent’s decision “to reject funding for his surgery costs and hospitalisation under an accepted claim” and “requires the question of whether he is entitled to receive payment of surgery costs to be heard and determined by an Industrial Magistrate.”
The law
Section 603 Workers Compensation and Rehabilitation Act 2003 allows this appeal despite a former Act – the Workers’ Compensation Act 1916 (as amended) (WCA) was in force when the injury was sustained and is therefore applicable for this appeal.
Pursuant to section 3 WCA “injury” is defined as follows:
(without in any wise limiting the operation and scope of section 9 of this Act) personal injury arising out of or in the course of employment, and includes –
(a) …
(b) The aggravation or acceleration of any disease where the employment was a contributing factor to such aggravation or acceleration…
This means the injury only has to be a contributing factor to the injury (unlike the current test for a physical injury that the employment must be a significant contributing factor. As was pointed out by de Jersey P. in Pleming v Workers’ Compensation Board of Queensland:
Prior to 1 December 1994 it was enough that the employment be “a contributing factor”, so that “it matter(ed) not whether the contribution was of any particular size or degree…[2]
[2] (1996) 152 QGIG 493 referring to the case Treloar v The Australian Telecommunications Commission (1990) FCR 316, 323)
Consequently, the court is required to decide if the 1973 car accident has contributed to any degree at all to the appellant’s requirement for a left knee replacement because if there is any causal link to his original injury then the left knee replacement is compensable.
The appellant bears the onus of proving justification for setting aside the respondent’s decision to reject compensation and the standard is the civil standard, on the balance of probabilities.
Case law supports the principle that where there is an injury followed by recovery but with some subsequent consequence associated with the initial injury (eg. an infection, or, in this case a degenerative change), the onus is on the applicant to establish some continuous physical condition connecting the original injury with the cause of the subsequent incapacity: Butler v Coal Cliff Collieries Ltd (1922) 39 Weekly Notes (NSW) 124.
The law related to expert testimony
The duties and responsibilities of expert witnesses in civil cases have been set out in case law.[3] These (relevantly) include:
[3] See eg., Makita (Australia) Pty. Ltd. v Sprowles (2001) 52 NSWLR 705 at 739 [para 79] where Heydon J quotes from National Justice Compania Naviera SA v Prudential Assurances Co Ltd [ 1993] 2 Lloyd’s Rep 68 at 882.
1. That the court will be provided with the facts or assumptions upon which the opinion is based and material facts that could detract from the concluded opinion should not be omitted.
2. If an expert’s opinion is not properly researched because insufficient data is available, this must be stated and if there are any qualifications to the truth of the report these must also be stated.
3. If the expert for any reason has a change of view this must be communicated as soon as possible.
4. Where an expert’s evidence refers to extraneous materials these must be provided too.
5. The expert must furnish the court not only an opinion but an opinion with criteria enabling evaluation of the validity of the expert’s conclusions.[4]
The evidence
[4] See eg. Heydon J. in the Makita case, at para 59.
The witnesses called in support of the appellant’s case were: the appellant, John Klemm; Dr Peter Hewitt, Orthopaedic Surgeon; and Dr Gary Nielsen, Orthopaedic Surgeon.
John Klemm
The appellant’s evidence to the court was significant as he provided the background facts related above and produced a photograph of himself as a child – showing very straight legs.[5] He is 6 feet tall. He confirmed his job had been basically an office job. He gave evidence of minimal recreational and sporting activities including that he was not involved in any high impact activities or sports. He confirmed his visit to his general practitioner in mid-1990s when the pain from his knees was getting worse.
[5] Appellants List of Relevant documents at item 12.
Under cross-examination he could not recall telling Dr Joshi that he was unfit in the mid-1990s[6] and he only had a vague recollection of being informed that the arthritis in his left knee was worse than in the right knee.[7] The appellant’s evidence was not weakened by these matters. Indeed, the respondent has not made submissions that the court could not accept the appellant as a witness of truth. Rather, the respondent relies almost exclusively on the expert opinion of Dr Sanjay Joshi in preference to the expert opinions of Dr Hewitt and Dr Nielsen. I accept the appellant’s testimony as truthful and reliable.
Dr Hewitt
[6] T 1-16,lines 24 - 30
[7] T 1-17, lines 30 - 36
Dr Hewitt is the appellant’s treating orthopaedic surgeon and he provided facts consistent with the evidence of the appellant. He provided the request for surgery approval to the respondent[8] and gave his opinion with reasons directly connecting the appellant’s need for knee replacement to the 1973 car accident injuries and nothing else. As the respondent sought more information from him he provided it in more and more detail supporting his unchanged view.[9]
[8] Exhibit 5
[9] Exhibits 7and 7A
In his testimony to the court Dr Hewitt described his qualifications including his 1988 fellowship with the Australian Orthopaedic Association. He started performing knee surgery in 1989. He has been in private practice continuously since approximately 1992 with special interest in performing knee and hip surgery for severe arthritis.
Dr Hewitt also provided detailed explanation for coming to his opinions.[10]He gave detailed explanation for the revelation of osteoarthritis later in life with no significance with respect to pain up to that time. Most importantly, he accounted for the differences between a patient’s point of view and the clinical position in this regard and supported his opinion using the 2016 article by Weinberg et al.[11]
[10] T1-21 to 23 and 36
[11] Exhibit 9
He explained his use of a computerised system using a software program to interpret the x-ray of the appellant’s left leg and found varus deformity of the tibia below the left knee, performing the measurement again in preparation for his testimony to the court and it measured just under ten degrees - a little more than the original measurement of eight degrees.
Dr Hewitt explained his rejection of Dr Joshi’s conclusion the osteoarthritis was simply age based by reference to his practical experience with knees and hips[12] He went so far as to say that as long as there is a tibial fracture, there is a greater risk of arthritis in that knee irrespective of the angle which was not undermined by any cross-examination.[13]
[12] See in particular T1-42 to 44
[13] T 1-63 to 46
Importantly, Dr Hewitt’s opinion also rested on his research and he dismissed Dr Joshi’s methodology and use of a 1989 article as 30 years (too) old.
I accept the basis of Dr Hewitt’s diagnosis and opinion as none of his testimony was undermined by cross-examination. In particular, I accept his diagnosis on following matters:
1. High energy injury so that the forces are likely to have dissipated across the knee;
2. Malunion of left tibial fracture 8 degrees varus -> increased medial compartment wear; and
3. Mild laxity of the posterior cruciate ligament and medial cruciate ligament – suggesting injured at the time of the accident;
4. Instability associated with accelerated wear.
Dr Nielsen
Dr Nielsen provided a medical report dated 12 March 2018[14] which included a copy of his curriculum vitae. It details he has held executive positions at various institutions focussing on orthopaedics over many years and since 2015 he has been Queensland State Chairman of the Australian Orthopaedic Association. I accept he is very highly qualified in his field.
[14] Exhibit 8
His report provides the facts consistent with the evidence of the appellant. He records the detail of his clinical examination of both the appellant and x-rays of the appellant’s left leg to arrive at his opinion that there is varus deformity of the tibia below the left knee.
Dr Nielsen also opines that in his experience, most patients present with osteoarthritis of their knees in the appellant’s age group because they have a pre-existing contributory cause like the appellant’s. He explained how the pre-existing varus deformity he saw, together with the car accident, related to subsequent bio-mechanical stresses that affect the medial aspect of the knee. He also noted the associated trauma to the appellant’s lower left leg in the accident would have made a significant contribution.
Under cross-examination, Dr Nielsen was firm about why he used his measure of degree of varus. He explained how the injury would develop into a related osteoarthritis as a time based condition and why the appellant was not merely in a small group of people who would develop osteoarthritis related to their age.[15] His evidence was not at odds with Dr Hewitt on any point.
Dr Sanjay Joshi
[15] T 1-25 to 28
The respondent relied on the evidence of Dr Sanjay Joshi, Orthopaedic Surgeon and his medical report dated 15 August 2017.[16] He did not provide a curriculum vitae with the report. He gave testimony about his qualifications as an orthopaedic surgeon over about 30 years or more in various countries and for the past ten years in Australia. He has done a lot of “trauma surgeries” but without mentioning any specifics except for shoulders.[17] This leaves me with the impression he has been more generalised in his surgery than focussed on legs and knees as a specialty.
[16] Exhibit 13
[17] T 2-5, lines 31 - 42
There are crucial pieces of evidence from Dr Joshi that cause concern:
1. Dr Joshi limits the significance of the appellant complaining of leg pain to his general practitioner in the mid- 1990s without further investigation. It also appears that Dr Joshi either completely discounts or does not know the medical advice to the appellant had been that he needed a knee replacement but that he was (at age 45 years) considered too young. Dr Joshi is firm in his view the appellant has developed normal constitutional osteoarthritis at what he termed “a normal age” with no evidence he had developed osteoarthritis at an early age. The most concerning concession made by Dr Joshi was that he agreed with cross-examining counsel that at age 45 years complaint of pain in the knees would not be caused by constitutional arthritis in the absence of some genetic predisposition.[18] There is no evidence of the appellant suffering such a pre-disposition.
[18] T2-30, lines 8-22 and T 2-39, lines 4-12
2. Dr Joshi rejected Dr Hewitt’s opinion that there would have been a transfer of forces into the knee due to the force of the car accident impact. Dr Joshi rejects this because he believes the majority of the force would have dissipated in actually fracturing the tibia.[19] This was not put to Dr Hewitt in cross-examination and so it is unfair to consider the opinion of Dr Joshi in that vacuum. Dr Joshi’s opinion would need to be further investigated or tested. This is especially so given the high degree of force one would think would be required to break both healthy tibias in a 23 year old appellant. That factor would make it implausible that there would not be significant forces also transferred into the knee joints as is the opinion of both Dr Hewitt and Dr Nielsen.
[19] T 2 - 9
3. While Dr Joshi places great weight on the appellant being asymptomatic of arthritis pain for a long period of time both before and after the mid-1990s this is not consistent with the appellant’s evidence that he had pain but lived with it and accepted the advice he was too young for knee replacement. It is also qualified by Dr Joshi’s belief that osteoarthritis can only be diagnosed when the patient presents with symptoms.[20] Because of this conviction he initially rejected Dr Nielsen’s opinion that osteoarthritis can develop over a long period of time whilst being asymptomatic. In his evidence-in-chief he did concede that he agreed with Dr Nielsen that the process of osteoarthritis may unfold as early as 5 – 10 years after trauma occurs and be asymptomatic.[21] Of course, this concession weakens the possibility the arthritis is nothing more than age related degeneration.
[20] T 2 -21, lines 42 – 47 and T 2 – 22, lines 1-17 and T 2 – 22, lines 19-28
[21] T2 – 22, lines 19-28
4. Dr Joshi has not fully utilised or applied the most up-to-date technology to make his investigations of the appellant’s legs to same extent as the other two orthopaedic surgeons. This became plain when he tried to explain the left leg x-ray[22] as showing five degrees varus and not anything more.[23] He simply could not make a good account of his methodology. Nevertheless, under cross-examination he agreed that if a patient displays a varus deformity of greater than five degrees there is more likelihood of them developing osteoarthritis[24] and that a degree of varus of eight degrees or higher can cause accelerated osteoarthritis.[25]
[22] Exhibit 11
[23] T2 – 17, lines 32 – 46; 2 – 18; 2 – 19, lines 1 - 10
[24] T2-25, lines 18-33
[25] T2-27, lines 1-10
5. I understood Dr Joshi conceded he manages these presentations only upon complaint of pain symptoms whereas the other two doctors rely on the latest technology available to measure the degree of varus deformity caused by the malunion of the leg bone.
6. Dr Joshi gave several confusing or contradictory opinions eg. his report dated 15 August 2017 reports “x-ray of lower limbs shows healed fracture mid-shaft tibia and a good alignment and no angulation.” However, in his report dated 16 May 2018 he amended this view to state there is an angulation of “around 5 degrees of varus malunion” but with no explanation as to how he had earlier concluded there was no angulation. He did concede he had not taken measurements before preparing his first report.[26]
[26] T2-33, lines 15-45 and T2-35, lines 40-45
7. Of more concern was Dr Joshi’s concession under cross-examination that the effect of a malalignment of the tibia places more force on the medial compartment (or inner) part of the knee and that over an extended period of time it could eventually mean a patient experiences symptoms and moreover that ongoing pain over the years, waxing and waning, was consistent with injury from the car accident..[27]
[27] T2-28 to 29
8. Dr Joshi gave opinion on some erroneous aspects to his report. In particular, he rejected that the appellant had sustained some form of ligament damage or injury in the car accident such that he suffered ligamentous laxity. He did so believing the appellant had participated in surfing with no trouble but there is no evidence of the appellant ever surfing.[28]
[28] T2 – 17, lines 10 - 25
9. When Dr Joshi was cross-examined on the article titled Association between tibial malunion deformity parameters and degenerative hip and knee disease by Weinberg, Park and Liu (Exhibit 9) he erroneously asserted it was a very old article. However, it is a 2016 article and refers to other articles written 2014 and 2015.[29] Strangely, he preferred the 1989 article titled Long-term follow-up after fractures of the tibial and fibular shafts by Merchant (Exhibit 16). However, later conceded that this article’s focus was not relevant to the appellant’s circumstances.[30]
[29] T T2-22, lines 34-45
[30] T2-47to 49
10. In his oral testimony to the court, Dr Joshi conceded his clinical notes[31] and his first report do not mention what (if any) clinical testing he undertook. Dr Joshi could not clarify whether he did not do tests or whether he merely failed to document tests done. Furthermore, he did not apparently use x-rays from Queensland X-ray (and as a result he could not have used the software available from Queensland X-ray to undertake the measurement of the degree of varus). He said he used a hand held ruler and manually ruled lines on an image (without explaining which image or its degree of magnification, if any etc.). He said he used the methodology in the 1989 Merchant article as one of the methods to measure the angle and did not say what other methodology he used. This reduces the reliance that can be placed on his conclusions based on such testing. This concern is compounded by his change of opinion about the degree of varus as between his two reports and his prevarication in his testimony to the court when he asserted he does not believe it is in fact five degrees.[32] Ultimately, Dr Joshi accounted for the differences between his measurement and the other doctors’ measurements by agreeing individual variation is possible.
11. Under cross-examination Dr Joshi conceded that if the court accepts the appellant’s evidence about having a history of knee pain and that he sought and obtained advice from his general practitioner in the mid-1990s about it, then it was possible the tibia fracture from the car accident has made some contribution to the development of his osteoarthritis in the right knee.[33]
12. Dr Joshi holds the opinion that diagnosis of arthritis cannot be made until a patient complains of pain. The other doctors hold that symptoms of arthritis disease can be asymptomatic for years and can wax and wane with respect to pain as evidenced by the complaint by the appellant during the mid-1990s. Dr Nielsen explained this by reference to the different perspective about the issue from a clinical point of view and the patient’s point of view.
[31] Exhibit 17
[32] T2-37 to 45
[33] T2-38
For these reasons I reject Dr Joshi is a reliable witness and where his opinion differs with the other two orthopaedic surgeons I prefer their evidence. In particular, I consider the following in favour of Drs Hewitt and Nielsen:
1. They were very thorough in their application of current technology to investigate the appellant’s knee complaint and conclude there is a malunion of the appellant’s left tibia fractured in the car accident and that the varus is in the vicinity of at least five degrees and probably 10 degrees.
2. When each of Drs Hewitt and Nielsen were cross-examined about their investigations and methodology to support their findings they were expansive, gave their evidence without needing to account for error because no error was identified and each was able to provide considerable detail for their reasons, including long experience in the specific field of knees and legs, and current positions at the top of their field of expertise.
I am persuaded to accept their evidence as reliable and convincing.
Onus of proof on the appellant
The onus being on the applicant to establish some continuous physical condition connecting the original injury with the cause of the subsequent incapacity, I look at the appellant and his lifestyle since the accident and the opinions of the doctors about their knowledge of how requirement for knee replacement comes about generally and also specifically for the appellant’s left knee. I have made a comparison of the expertise qualifications and opinions provided by the appellant’s two doctors and the respondent’s doctor.
I am satisfied the evidence supports the appellant is a man who has lived with the consequences of his car accident throughout his life, managing pain as it waxed and waned, and living with it until the mid-1990s when he complained to his medical general practitioner and was given advice there was nothing to be done as he was too young to have a knee replacement. He went on with his life until more recently the pain increased and he was troubled by decreased mobility. Nothing else has occurred between the car accident and his complaints to account for the knee pain. The latest technology shows the malunion still present in his leg. The malunion puts different pressures on his knee causing osteoarthritis to degenerate the knee.
Both Dr Hewitt and Dr Nielsen have given support to their belief that most people in the community do not get osteoarthritis unless they have a constitutional weakness in that regard and there is no evidence the appellant is in that category of people.
There is no dispute that the 1973 car accident caused very significant injuries to the appellant that took a long time for him to recover from. There is no evidence that he was ever declared by medicos to be fully recovered.
All the doctors agree there is no constitutional genetic condition causing the degenerative changes bringing on the appellant’s osteoarthritis. The orthopaedic surgeons Hewitt and Nielsen are firm in their belief and Dr Joshi too ultimately conceded that degenerative disease in the knee can be asymptomatic over a period of time.
The best respondent counsel submits about the medical evidence provided by the doctors is that it demonstrates a conundrum in drawing any conclusion with any degree of reliability because of the time since the car accident occurred. A retrospective analysis four decades on however has been achieved by the appellant’s doctors utilising the combination of their very extensive experience directly in the field of knees and legs, reference to recent relevant research provided by exhibit 9, and the software technology provided with the x-rays of the appellant’s leg. These factors convince me that it is entirely plausible to look at a patient with a close degree of specificity as to the condition of their injury and know what is very likely to occur despite the patient might not become significantly symptomatic for some long time after the accident.
All of the doctors accepted that a percentage of people over 65 years of age will develop osteoarthritis and that most of the people in this group will not develop the condition. Dr Nielsen in particular was convincing when he explained that the bulk of the people with the condition will have some pre-existing reason for developing the osteoarthritis (excluding those with a congenital issue).
Conclusion
I am satisfied that the evidence of Drs Hewitt and Nielsen (and also to a degree Dr Joshi) shows that it is possible to account for on-going injury (as revealed in the x-ray) even when the patient cannot do anything about rectifying his problem and simply lives with it and that the appellant has done so. In the appellant’s case his injury was sufficient to cause a need for knee replacement as early as age 45 years if such an operation had been available at that time. By contrast, the respondent’s case appears to me to rest on an assumption the appellant recovered from the injuries he sustained in the car accident mainly due to the effluxion of time.
I am satisfied by the evidence of doctors Nielsen and Hewitt that the appellant has never fully recovered from the car accident injuries where the employment was a contributing factor to such aggravation or acceleration.
Consequently, applying the tests, I am satisfied there is sufficient evidence to find that probably –
1. the 1973 motor car accident caused very significant injuries to the appellant’s legs, in particular to the tibia bone of the left leg and the muscles joining that bone to the left knee; and
2. there is no other cause for his current knee problem recognising that some people in his age group develop osteoarthritis but that even then the bulk of those people will still have some pre-existing reason for developing the condition; and
3. the appellant did not make a full recovery evidenced by the fact that as early as age 45 years old a knee replacement was justified but not available to him only due to the limits of medical technology and that he tried to improve his position by changing his exercise regime and then finding decreased mobility more recently without any other factors like sport or other activity accounting for any change to his daily regime; and
4. the absence of readily detectable symptoms from a patient’s point of view and / or the appellant’s stoicism in the face of pain waxing and waning over the years has been explained.
I am satisfied there probably is a causal link from the 1973 car accident injuries to the osteoarthritis the appellant now suffers in his left knee.
The left knee replacement is therefore compensable.
I ORDER –
1. The decision of the respondent is set aside
2. The application of the appellant for compensation is granted.
3. Costs in favour of the appellant as agreed between the parties and failing agreement return to the court on three days’ notice.
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