Koreel and Australian Postal Corporation
[2008] AATA 142
•25 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 142
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1538
GENERAL ADMINISTRATIVE DIVISION ) Re IBTISAM KOREEL Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly
Dr J Campbell, MemberDate25 February 2008
PlaceSydney
Decision The reviewable decision is affirmed. .....................[sgd].........................
Presiding Member
Senior Member, Mrs Josephine Kelly
CATCHWORDS
COMPENSATION – injury – aggravation of disease – applicant employee of Australian Postal Corporation – pain in left knee while sorting mail – claims for medical expenses incapacity and permanent impairment – liability denied - initial diagnoses - patellofemoral joint disorder – prepatellar bursitis traumatic - whether applicant had injury or disease –medical expert evidence considered – held no medical diagnosis – no evidence pain began at work - applicant did not have injury or disease – whether onset of pain at work an injury - reviewable decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 24, 27
Accident Compensation Commission v McIntosh [1991] 2 VR 253
Australian Postal Corporation v Burch (1998) 85 FCR 264
Canute v Comcare (2006) 226 CLR 535
Comcare v Etheridge (2006) 149 FCR 522
Comcare v Mooi (1996) 69 FCR 439
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Hughes v Australian Postal Corporation [2002] FCA 1645
Kennedy Cleaning Services v Petkoska (2000) 200 CLR 286
Re Gray and Commonwealth Banking Corporation (AAT 5168, 21 June 1989)
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
REASONS FOR DECISION
25 February 2008 Senior Member, Mrs Josephine Kelly
Dr J Campbell, MemberBACKGROUND
1. By the end of the hearing before us, there were two issues to decide. The first was whether Ms Koreel had suffered an injury "simpliciter" to her left knee at work on 14 March 2005, or alternatively, whether she had suffered the aggravation of a disease at that time. For the reasons that follow, we find that Ms Koreel did not suffer either.
2. When the hearing began, there were two proceedings before us. The first were proceedings N2005/1538 which was the claim for liability pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) which is summarised above. The second proceeding, N2006/380, was a claim for permanent impairment pursuant to ss 24 and 27 of the Act. That proceeding was withdrawn on 13 November 2007.
THE CASE FOR MS KOREEL
3. Mr Richards, of counsel, appeared for Ms Koreel. We understood his first argument to be that an injury does not have to be caused by work, but rather has to occur at work, and in this case the injury was the onset of pain at work on 14 March 2005. However, we also understood him to retreat from that position and put an argument that "something happened" on 14 March 2005 while Ms Koreel was at work which caused her to feel pain in her left knee. We understood that this argument accepted that a physical change was required, but that a diagnosis is unnecessary.
4. Mr Richards relied on the cases of Canute v Comcare (2006) 226 CLR 535, Kennedy Cleaning Services v Petkoska (2000) 200 CLR 286, Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 and Hughes v Australian Postal Corporation [2002] FCA 1645 to support his case. The case of Comcare v Mooi (1996) 69 FCR 439 was also referred to during discussion.
5. Mr Richards relied on the reports of Dr Rockman, the general practitioner to whom Australia Post referred employees from the facility where Ms Koreel worked, and of Dr Walker, Ms Koreel's treating orthopaedic surgeon.
6. The alternative argument which Mr Richards put, somewhat faintly, was that Ms Koreel had suffered an aggravation to patello-femoral disease which was contributed to by her employment. In support of that argument he relied on the reports of Dr Walker.
7. Mr Richards specifically abandoned reliance on the report of Dr Endrey-Walder, whose diagnosis of resolving quadriceps bursitis he described as being "out of left field". We note that neither Dr Walker nor Dr Miniter supported that diagnosis.
8. We understood Mr Richards to rely to some extent on an earlier injury on 5 January "2003" in support of this argument, although no claim form has ever been submitted in respect of it. Given that the incident report in relation to that injury is dated and stamped January 2004, we find that the date "2003" written on the document is clearly an error which frequently occurs at the beginning of a new year.
9. Mr Richards argued that we would have to reject Ms Koreel's evidence to find against her, and find that she had made up everything.
CONSIDERATION
10. In the Incident Report she filled out on 14 March 2005, Ms Koreel described the nature of the injury as "Ieft knee (pain when standing or walking)". She described how the accident happened:
As started sorting the mail pain started then went out for delivery but still feel pain when I came back from my delivery.
11. On the claim form that Ms Koreel filled out on 16 May 2005, she described the type of injury as "left knee injury painfull [sic] when get's hot in the back of the knee". The event said to have caused the injury was:
start sorting mail in V-sort frame, sharp pain started in the knee; Beat No. 4, standing and body pressing on the knee for long hour's.
12. The first medical certificate was that of Dr Rockman dated 15 March 2005, which provided a diagnosis of contusion/strain left knee. His report of the same day noted that she felt pain and discomfort while delivering post the morning before and that it occurred throughout the afternoon while she was sorting mail. His next certificate dated 17 March 2005 gave the diagnosis of Prepatellar Bursitis traumatic and the certificate of 21 March 2005 stated Prepatellar Bursitis. The report of the examination on that day found no tenderness to palpation and good movements of left knee.
13. Dr Faiz provided various certificates for "painful left knee" and on one occasion on 21 October 2005 wrote "painful swelling left knee". He provided no diagnosis.
14. Dr Walker first saw Ms Koreel on 12 August 2005. At that time she complained of left posterior knee pain which she had had since February of that year "for no apparent reasons". She gave no history of any trauma. She complained of trouble going up and down stairs. Dr Walker found no objective clinical signs. He noted that she had a hypermobile patellofemoral joint. He gave a diagnosis of probable patellofemoral joint disorder and recommended physiotherapy. He also gave Ms Koreel a form to have an MRI scan done in three months' time if the physiotherapy did not help. In his 29 March 2006 report addressed to Ms Koreel's solicitors, Dr Walker reviewed the MRI scan which he said did not demonstrate any abnormality. His opinion was that Ms Koreel had a patellofemoral joint disorder which was not related to any injury. Dr Walker's report of 29 June 2006 does not support a diagnosis of quadriceps bursitis as given by Dr Endrey-Walder.
15. Curiously, in his report to Ms Koreel's solicitors dated 4 May 2007, Dr Walker stated that he had seen Ms Koreel previously for anterior knee pain. His earlier report only referred to posterior knee pain. The solicitors had asked Dr Walker whether Ms Koreel's patellofemoral joint disorder was caused, aggravated or accelerated by the nature and conditions of her employment, and provided information about her duties including that she sorted and delivered mail on foot pushing a trolley weighing between 16 and 45 kgs, and that the delivery run included hills and stairs. Dr Walker's response was that:
This condition can be exacerbated by activities such as going up and down hills, squatting and lifting activities.
16. Given the direct question he was asked, we infer that, on the history he had been given of no trauma and that the knee pain had occurred for no apparent reason, he did not relate Ms Koreel's condition to her employment. He had specifically stated in his 29 March 2006 that the patellofemoral joint disorder was not related to any injury. Dr Walker did not give oral evidence.
17. Although Mr Richards did not rely on Dr Endrey-Walder's evidence, it is relevant to refer to it because it shows that he was not convinced of a diagnosis. In his June 2007 report he said that there was no firm established diagnosis, but referred to his March 2006 report where he had suggested that the ultrasound supported resolving quadriceps bursitis, which would account for her symptoms and the relative paucity of abnormality found in the MRI scan.
18. Dr Miniter, orthopaedic surgeon, saw Ms Koreel on 20 June 2005 and 18 June 2007. He had prepared a number of reports which were in evidence. He also gave oral evidence. In summary, his evidence was that Mrs Koreel had given no history of an injury on two occasions, there was no diagnosis that he could make, and he could give no explanation for the pain Ms Koreel said that she suffered. Pain is completely subjective. He considered that there were no signs of patello-femoral dysfunction.
19. In relation to Dr Rockman's initial diagnosis of strain and contusion, Dr Miniter said that strain would normally be associated with a defined episode of trauma isolated to a particular part of the knee, and contusion requires a blow or percussion. There was no such history in this case.
20. He did not regard resolving quadriceps bursitis as a reasonable explanation of the diffuse non-specific pain profile.
21. We prefer the evidence of Dr Miniter to that of Dr Walker. During his oral evidence, Dr Miniter explained that patellofemoral joint disorder usually presents in a patient who is in their late teens, often women, who have anterior discomfort, that is, in the front of the knee. Often there is a surreptitious onset usually not associated with a trauma. It is treated with physiotherapy. It usually would have a normal MRI scan and investigations.
22. Dr Miniter would not make that diagnosis, primarily because Ms Koreel had no physical signs of anterior knee pain when he saw her on 20 June 2005 and 18 June 2007. At the first consultation Ms Koreel had diffused discomfort and it was actually more posterior than anterior. He said "how that can be femoral joint disorder, I don’t really know".
23. Given Dr Miniter's evidence, it is interesting that Dr Walker referred to anterior pain in his report of 4 May 2007, having previously referred to his finding of posterior pain in the left knee. That casts doubts on Dr Walker's clinical examination and diagnosis. Further, it is unclear how many times Dr Walker saw Ms Koreel, however we infer from the evidence that he did not see her after 2005.
24. Even if Dr Walker's diagnosis were accepted, we do not consider that his evidence supported a finding that Mr Koreel's employment caused, aggravated, or accelerated that condition, as discussed above.
25. We find that there is no medical diagnosis in this case.
26. Further, we found Ms Koreel's evidence unreliable. When Dr Rockman first saw her on 15 March 2005 he recorded a history of onset of pain while she was delivering mail in the morning. The incident report she filled out on 14 March and the claim form filled out on 16 March 2005 stated that the onset of pain had been while sorting mail. Her reports to doctors have referred to the onset of pain but of no particular incident occurring which caused the pain.
27. During her oral evidence she said that the first time she had had the pain was while delivering mail in Sussex Street. The times she gave for that incident were a month before the incident set out in the form T7, which she said variously was Christmas 2002 and Christmas 2003. As explained earlier, the earlier incident occurred on 5 January 2004. The nature of the symptoms Ms Koreel described in that incident form was "muscular pain left upper leg with pain in back". There was no mention of the left knee. The symptoms are quite different from what we were told about. We do not consider that the incident in January 2004 has any relevance to the matter the subject of these proceedings.
28. Ms Koreel's evidence about the restrictions on her activities caused by her painful left knee was not borne out by the video evidence. She sought to explain that by saying that she has good and bad days and she does not remember how she was at the time the video was taken. We did not find that evidence convincing.
29. Given the unreliability of her evidence, including the two different descriptions of what she was doing when the onset of pain occurred, within 24 hours of onset, and her telling Dr Walker that it began in February 2005, we are not persuaded that the pain she says she suffered began while she was at work rather than at home, or that it is of the nature she described.
30. We therefore conclude that Ms Koreel did not suffer an injury as defined in s 4 of the Act, which is set out below. That is sufficient to decide this case, however, as there was extensive argument about the question of whether the onset of pain can be an injury, we set out our views on that question.
IS THE ONSET OF PAIN AT WORK AN INJURY?
31. Section 14(1) of the Act provides:
Subject to this part, Comcare is liable to pay compensation in accordance with this Act in respect of any injuries suffered by an employee if the injury results in death, incapacity for work of impairment.
32. Section 4 contains the relevant definitions:
Injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment
…
Disease means:
any ailment suffered by an employee; or
the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation
…
Ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)
…
Impairment means the loss, the loss of use, or the damage or malfunction, of any part of the body or bodily system or function or part of such system.
33. In Kennedy Cleaning Services v Petkoska (2000) 200 CLR 286, a worker collapsed at work on the occurrence of a brain lesion which caused a stroke. She had suffered for some years from rheumatic mitral valve disease. Her employment had not contributed to the contraction of the disease and did not aggravate or accelerate the underlying condition. The Court held that the manifestation of the brain lesion was a "physical injury" within the relevant statutory provision.
34. In Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310, Mr Zickar suffered from a cerebral aneurism, which was a congenital condition. The rupture of the aneurism at work caused severe brain damage. The High Court held that he had suffered an "injury", which was relevantly defined as a "personal injury arising out of or in the course of employment".
35. These cases, and other cases to similar effect discussed in Zickar, concerned the distinction between what is often referred to in the context of workers compensation law as an "injury simpliciter", and "a disease". In relation to the latter, the relevant statutory provisions require that the employment be a contributing factor, as in the Act.
36. It is helpful to quote from part of Accident Compensation Commission v McIntosh [1991] 2 VR 253, which was approved by Toohey, McHugh and Gummow JJ in Zickar at 335:
If the rupture is due to blood pressure, arteriosclerosis, arteriovenous malformation, or any other congenital or diagnostic aetiology, it is nonetheless a rupture – something quite distinct from the defect disorder or morbid condition, which enables it to occur.
37. A further authority to similar effect is Australian Postal Corporation v Burch (1998) 85 FCR 264.
38. In Kennedy Cleaning Services Gleeson CJ and Kirby J said at 300:
All of those cases [Zikar, McIntosh and Burch] require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an injury in the primary sense of that word. If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the workers’ employment.
39. Although Mr Richards did not specifically refer to this passage, it seems to us to be the crux of his argument that pain is such a physiological change or disturbance to be characterised as an injury. As is apparent from the medical reports before us, the doctors were looking for the cause of the complained of pain by carrying out various investigations and clinical examinations. In our view it would be the cause of the pain that would be the relevant physiological change. While pain may be a symptom of a physiological change or disturbance as discussed by Gleeson CJ and Kirby J, it is not of itself such a change or disturbance.
40. In our opinion, the authorities relied on by Mr Richards do not support a finding in this case that the onset of pain as complained of by Ms Koreel is an injury within paragraph (b) of the definition in s 4.
41. In coming to that conclusion, we bear in mind what was said in Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 at 179 that:
No doubt, for many medical purposes, it is useful and often necessary to distinguish between the underlying pathology of a disease and mere symptoms of the disease. … But that is not to say that symptoms of a disease are not part of a disease. It is indeed fundamental to compensation law that a symptom of an injury or disease is a part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity.
42. We also accept that it is not necessary to put a medical diagnosis or a name to the compensable injury or disease (see, for example, Gray and Commonwealth Banking Corporation (AAT No. 5168, 21 June 1989); Comcare v Etheridge (2006) 149 FCR 522 at 529).
43. Mr Richards referred to the case of Hughes v Australian Postal Corporation [2002] FCA 1645. The legal errors found in that case by Madgwick J were that the Tribunal had failed to make findings about whether there was a fall, and whether there was any resultant injury or incapacity. We did not find that case to be of assistance.
44. We were also not assisted by Mr Richards' reference to Canute v Comcare (2005) 226 CLR 535 as authority for the proposition that there does not have to be a diagnosis made. We do not consider that it is authority for that proposition. However, the following observations about the Act by Gummow ACJ, Kirby, Callinan, Heydon and Crennan JJ in Canute at 540, are helpful:
First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of "the injury". Secondly, the term "injury" is not used in the Act in the sense of "workplace accident". The definition of "injury" is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term "injury" is not used in a global sense to describe the general condition of the employee following an incident.
CONCLUSION
45. In this case we are not satisfied, on the evidence, that there has been an incident or ailment which has resulted in an effect on Ms Koreel's body; that is, we are not satisfied that there has been an ‘injury’ as defined in s 4 of the Act. If we had accepted Ms Koreel’s evidence, at highest she complains of an effect on her body, that is, pain, but no incident or ailment has been identified. Pain may be a symptom of an injury or disease and it may be compensable if it causes incapacity, but that is not the case in these proceedings, because no injury simpliciter or disease has been identified.
DECISION
46. For the above reasons the reviewable decision is affirmed.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly and Dr J Campbell, Member.Signed: Steven Mulipola
AssociateDates of hearing: 12 and 13 November 2007
Date of decision: 25 February 2008
Counsel for Applicant: Mr D Richards
Solicitor for Applicant: Slater & Gordon
Counsel for Respondent: Mr G Elliott
Solicitor for Respondent: Australian Government Solicitor
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