Leon Richardson and Australian Postal Corporation
[2014] AATA 440
•3 July 2014
[2014] AATA 440
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4340
Re
Leon Richardson
APPLICANT
And
Australian Postal Corporation
RESPONDENT
Decision
Tribunal Mr R G Kenny, Senior Member
Date 3 July 2014 Place Brisbane The Tribunal affirms the decision under review.
.........................Sgd..........................................
Mr R G Kenny, Senior Member
CATCHWORDS
WORKERS' COMPENSATION - Australia Post employee - Liability accepted in 2004 under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for “soft tissue injury left knee” – New claim in 2012 for “two tears in cartilage of left knee” – Reviewable decision that liability denied under s 14 of the Act for “two tears in cartilage of left knee” - Decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14
REASONS FOR DECISION
Mr R G Kenny, Senior Member
3 July 2014
BACKGROUND
Leon Richardson (“the applicant”) has been employed by the Australian Postal Corporation (“the respondent”) since 1989. On 26 July 2004, the respondent accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)
(“the Act”) for the applicant’s work-related “soft tissue injury left knee”. He received compensation payments for a period when he was incapacitated for work. He also underwent medical and surgical treatment at the respondent’s expense. In a further claim under the Act on 3 April 2012, the applicant alleged that he experienced pain in his left knee on 19 March 2012 while clearing mail at the respondent’s Underwood Mail Centre. His claim for “two tears in cartilage left knee” was rejected by the respondent on
4 May 2012 and that determination was affirmed in a reviewable decision on
1 August 2012.
Legislation and ISSUE
The issue, agreed by the parties, is whether the respondent is liable under s 14 of the Act, for the left knee condition claimed by the applicant. That provision reads:
14 Compensation 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.
EVIDENCE
The applicant
The applicant completed a statement on 14 February 2013. Therein, he referred to his 2004 left knee injury and to a surgical procedure to the knee in October 2004 by orthopaedic surgeon Dr Peter McMeniman. With physiotherapy, he was able to return to work by the end of 2004. Thereafter, his knee was sore occasionally and would “catch” on occasions but would settle down after a couple of days. On 19 March 2012, he again injured his left knee. This occurred when he was on the night shift clearing some letters in the mail sorting area with his right hand while holding a letter tray in his left hand. He turned and caught his feet in the base of a chair causing him to twist his left knee. He called out on feeling immediate pain in the left knee. A colleague, John Stratton, approached him and asked him if he was alright. He was able to work for the remainder of his shift and also returned to work the next night, 20 March 2012, but had difficulty from left knee pain which worsened as his shift continued. On 21 March 2012, he realised that his left knee would prevent him from working that night and, at about
5:00pm, he contacted his supervisor, Steve Knox, by telephone and advised him that “[he] could not go into work because of [his] left knee”. Mr Knox inquired if he had seen a doctor and the applicant advised him that it was too late by then to do so.
At 9:00am on 22 March 2012, the applicant attended the medical practice where his general practitioner (“GP”) was based. He saw another GP, Dr Ibrahim Eweida, who referred him for an MRI and to orthopaedic surgeon, Dr Peter Steadman. On
14 May 2012, Dr Steadman operated on the applicant’s left knee. As a result of his injury, the applicant was off work from 21 March 2012 until 31 July 2012 and on light duties of four hour shifts thereafter. At the time of preparing his statement he was off duty due to bowel cancer but has been back in full time work with the respondent since November 2013.
In his evidence, the applicant agreed that, when he injured his knee in 2004, he reported it immediately to the respondent, that compensation was paid and that the costs of his treatment were covered by the respondent. He said that, prior to that injury, he had experienced no problems with his left knee.
In the 2012 incident, the applicant said that there were several chairs, taller than usual chairs, in the clearing area. Each chair was fitted with wheels and had a heavy base.
He had to reach over a chair to access the letters. In doing so, his foot caught in the base of the chair. The applicant said that wheels on the chair were “jammed” and that this did not allow the chair to move freely on the floor.
The applicant agreed that, in his statement, he made no reference to advising Mr Knox that his 2012 injury occurred at work. However, he said that he believed that had so advised Mr Knox in the phone call on 21 March 2012 but agreed that it was possible that he did not do so. He said that he wasn’t sure at that time what had happened to his knee and he said that he thought it may have been “osteoarthritis playing up”. He had not experienced osteoarthritis in the knee before but had been diagnosed with that condition in his feet and thought that it may have progressed to his knee. Prior to the day of the injury, he had been off work for several days because of the arthritis in his feet. Later in his evidence, the applicant said that, when he spoke to Mr Knox, the applicant did not know that his knee condition was work related.
The applicant was referred to Dr Eweida’s clinical notes for 22 March 2012 where it is noted that he had a history of meniscal tear and of the knee “locking and giving way”. The applicant denied that he had advised Dr Eweida that his knee had given way on him. The applicant also denied that he had failed to mention at that consultation that he was at work at the time of his injury on 19 March 2012. He was unable to explain why, if
Dr Eweida had been told it was a work-related injury, a medical certificate issued by him for 21 to 25 March 2012 was an ordinary certificate and not one which was in the context of a compensation claim. He was also unable to explain why, in the case of a work-related injury, Dr Eweida found it necessary to check with his health fund before he referred him for an MRI, about payment of that procedure. The applicant denied that his first advice to a medical practitioner or the respondent that the injury occurred at work was on 26 March 2012. The applicant agreed that, when Dr Eweida was completing a Worker’s Compensation Medical Certificate on 26 March 2012, he told him that the cause of the injury was a “twisting injury at work while carrying something heavy”.[1]
[1] For reference to the Certificate, see para 15 (below).
On 26 March 2012, the applicant spoke by phone to Ms Celest Gillespie, from the respondent’s Parcels, Postal Services Business Unit, and reported that he had injured his left knee at work. He advised Ms Gillespie how it happened but, in his evidence, he again said that this was not the first reference by him to a work-related injury.[2]
[2] For reference to Ms Gillespie’s evidence, see para 12 (below).
On 4 April 2012, a Detailed Incident Investigation Report was completed by an officer of the respondent who spoke to the applicant by phone, as the applicant was still off work at that time.[3] The applicant agreed that he had advised the reporter that he thought that, in the incident, he had irritated his arthritis but, in his evidence, again stated that he had not previously suffered from arthritis in his knee.
John Stratton
[3] For reference to the Report, see para 23 (below).
Mr Stratton gave evidence and completed a statement on 20 February 2013. In his evidence, Mr Stratton said that he was not approached to make his statement until shortly before it was made in February 2013. He wrote that he had been a mail officer with the respondent at Underwood Mail Centre for 15 years. He recalled the incident where the applicant hurt his left knee. He approached at the time to see if he was okay and the applicant said something to him about hurting his knee. In evidence, he said that he had not been contacted by the respondent in any investigation of the circumstances of the incident. Mr Stratton agreed that the chairs in the area of the accident were heavy and had wheels but he was unable to say whether any of the wheels were jammed. He said that, if a wheel was jammed, he would report it to the respondent.
Celest Gillespie
Ms Gillespie from the respondent’s Parcels, Postal Services Business Unit spoke to the applicant and completed a file note on 26 March 2012. She noted that the applicant said that he had injured his left knee at work when he was clearing mail, that he thought that he “had just irritated [his] arthritis”, that he went home where he took some of his arthritis medication and that he attended work the following day where his knee was very sore and that he was “limping around most of the night”. Ms Gillespie noted that the applicant had been off work from 2 March 2012 until 16 March 2012 for acute arthritis.
Medical evidence
Dr Eweida’s clinical notes and medical certificates
Dr Eweida’s clinical notes dated 22 March 2012 were in evidence. The entry for
2 March 2012 identified “musculoskeletal pain – arthritis”. On 22 March 2012, the entry reads:
back pain getting slightly better - --but started knee pain later
…
? meniscal tear
hx of same
locking and giving way sometimes
…
Medical Certificate issued: 22 March 2012- from 21 March 2012 to 25 March 2012
knee pain
tender on the inner aspect ? meniscal tear
MRI ordered will check with his health carer fund first
On 26 March 2012, Dr Eweida’s clinical note described the MRI he had ordered as revealing a double meniscal tear and referred to a further medical certificate on
26 March 2012 and a referral to orthopaedic surgeon, Dr Peter Steadman.
Dr Eweida’s medical certificates, dated 22 and 26 March 2012, were in evidence. The first is in the form of a letter advising that the applicant was unfit for work until
25 March 2012. The second certificate was a formal Worker’s Compensation Medical Certificate. It sets out a work relationship to the injury in terms: “twisting injury at work while carrying something heavy”.
Dr John Fraser, orthopaedic surgeon
Dr Fraser completed reports on 19 March 2013 and 11 October 2013. He also gave evidence. In his first report, he diagnosed the applicant as having osteoarthritis of the left knee which he considered to be a disease. His opinion was that it began in or before 2004, that it was a pre-existing condition as at 2012, that the applicant’s work with the respondent did not contribute significantly to it, that the incident on 19 March 2012 may have caused a transient and fleeting exacerbation to it but that any subsequent symptoms were related to the pre-existing degenerative and constitutional condition.
Dr Fraser’s second report was prepared after he read the report of Dr Morgan[4]. He wrote that his opinion remained the same though he added that the temporary exacerbation of the knee condition may have lasted for a period up to two weeks during which treatment would have been simple analgesics and possibly anti-inflammatory medication. He noted that the applicant had undergone a surgical procedure but considered that this was related to the pre-existing condition.
[4] See para 20 (below).
In his evidence, Dr Fraser was referred to a report, dated 22 May 2012, by
Dr Peter Steadman who undertook the applicant’s knee surgery in May 2012.
Dr Steadman wrote:
There was no significant osteoarthritis of the patellofemoral lateral compartments, with some Grade 2 to 3 degenerative changes of the medial compartment and some associated degenerative tearing of the posterior horn of the medial meniscus, which was debrided.
Dr Fraser said that this was a reference to fraying of the edges of the meniscus which were trimmed during the procedure. He confirmed that this was a degenerative condition. He conceded that, while there was a remote possibility that the fraying may have been worsened by the incident on 19 March 2012, his opinion was that this did not occur.
He accepted that osteoarthritis may be present and be asymptomatic, that mild osteoarthritis can cause pain and that asymptomatic osteoarthritis can become symptomatic at any time regardless of whether or not there was trauma to the relevant joint. Dr Fraser distinguished exacerbation from aggravation stating that the former was transient with no additional pathology and that the latter involved a permanent worsening with further pathology added. He confirmed that, as the incident was referred to him by the applicant, he suffered an exacerbation rather than an aggravation.
Dr David Morgan, orthopaedic surgeon
Dr Morgan completed a report after seeing the applicant on 26 August 2013. He also gave evidence. He noted that, at work on 19 March 2012, the applicant had caught his left foot on the base of a chair while he was standing and twisting his torso to the right. He noted the MRI report dated 22 March 2012 and wrote that it demonstrated thinning of the chondral surfaces on the medial femoral condyle and the medial tibial plateau and a tear involving the medial meniscus. He also referred to the reports of Dr McMeniman who operated on the applicant’s knee in 2004 and noted that severe degenerative disease in the medial compartment was present at that time.
Dr Morgan considered that Dr McMeniman’s report suggested quite severe disease which pre-dated the incident in 2004 in which he probably further deranged already anomalous tissue involving his medial femoral condyle. He wrote that the incident on
19 March 2012 involved flexion, rotation and some load which may well have deranged what was already a previously degenerate medial meniscus. He identified factors which contributed to his knee condition as including his pre-existing degenerative disease, the 2004 and the 2012 incidents, and a combination of social, recreational and domestic activities as well as his obesity.
In his evidence, he said that the 2012 incident had materially contributed to the condition. He also referred to the three forces of flexion, rotation and load which he considered to be involved. He said that the first of those was because he understood that the applicant was rising from a sitting position when the incident occurred. However, his opinion was that rotation and load, in themselves, would have been sufficient to cause the injury sustained.
Other evidence
Detailed Incident Investigation Report
This report was in evidence. It was completed by phone on 4 April 2012. The report reads:
Leon stated that he was clearing in Manual Sort Letters. He was carrying a Letter Tray in his left arm and clearing with his right hand. He was on his first clear and he cleared about 10/20 of the frames when he stepped into a frame to clear and when he turned his left foot got tangled with the chair and he felt pain in his left knee.
…
It is normal practice to not move the chairs out of the way when doing the earlier clears which this clear was one of the earlier clears.
…
He stated that he did not think much of it at the time as he thought it was his arthritis playing up.
…
Leon did not fall when this occurred and he did not report it and there were no witnesses to the incident. It was not reported as work related till the 26th of March 2012. I have attached a copy of the email when Leon reported the incident.
That document also includes a typed form bearing the typed “signature” of Steve Knox. The form includes the following entry:
Provide details of action taken to prevent a reoccurrence:
Remove the chairs from frames to make way for a clear run at clearing the letters.
In that form, there is also an account by the applicant of what happened. It includes the following:
I went to step around the chair to reach the pigeon hole for the removal of the letters.
…
I did not go to the first aid room as I thought my arthritis was playing up.
Root Cause Analysis – Gathering Facts
This form was in evidence. It was completed on 28 March 2012 by Dave Southall. Therein, the applicant is identified as the “affected person”. It refers to the need for chairs to be removed from the area when the final clearing is conducted and it also includes, in relation to the incident with the applicant, the comment: “No reported witnesses”.
Incident Form
This form, dated 28 March 2012, was in evidence. It includes the note: “Unable to investigate as Leon is not at work & no reported witness”.
Claim for Rehabilitation and Compensation
This form, dated 3 April 2012, was in evidence. Therein, the applicant described his claimed condition as “two tears in cartilage of left knee”. Part 6 of that document posed the question: “Were there any witnesses to the incident?” The response is: “No”.
The form was signed by the applicant.
Incident report
In evidence was an incident report recorded by Mr Knox as he was advised by the applicant. It is dated 27 March 2012. Therein, the applicant is recorded as feeling instant pain to his left knee where he has “arthritis in this area”. Reference is also made to the chairs near the clearing frames. They are described as “big and cumbersome” which “get in the way when clearing”.
CONTENTIONS
Mr Matt Black
For the applicant, Mr Black submitted that the applicant’s claim was answered by the two diagnoses of derangement of the medial meniscus of the left knee and aggravation of
pre-existing osteoarthritis of the left knee. He submitted that the medical evidence was supportive of a causal relationship between the incident, as described by the applicant, and the knee conditions.
Mr Black submitted that the applicant’s evidence should be accepted in relation to the way in which the incident occurred on 19 March 2012 at his work. That included his reference to the difficulty related to the jammed wheels on the chair which he contacted when twisting his knee. He also submitted that it should be accepted that the applicant advised Mr Knox on 21 March 2012, and Dr Eweida when he saw him on
22 March 2012, that the injury had occurred at his work. He submitted that the absence of reference in the clinical notes was not the fault of the applicant but, rather, bad record keeping by Dr Eweida. Mr Black submitted that the applicant had been consistent in his various descriptions of the event and was supported in that by Mr Stratton.
Mr Black’s submission was that the decision under review ought be set aside and the respondent be found to be liable under s 14 of the Act for the two conditions in the left knee which he identified.
Mr Charles Clark
For the respondent, Mr Clark submitted that the applicant’s account of the incident relating to his knee should not be accepted. He submitted that the applicant did not advise Mr Knox, Dr Eweida or anyone else that the incident occurred at his work until seven days later on 26 March 2012. He submitted that the applicant had previous experience in making compensation claims and wellthe procedures involved including the need to advise the respondent in a timely manner. He also noted the various references to there being no witnesses to the incident despite the calling of Mr Stratton to give his evidence. Mr Clark submitted that the applicant’s suggestion that Dr Eweida failed to record the incident happening at work and also that he wrongly recorded the detail about his knee “giving way” should not be accepted. He also submitted that inconsistencies in the applicant’s evidence included the differing accounts he gave on his
Worker’s Compensation Medical Certificate to that which he related subsequently and also his varied references to pre-existing osteoarthritis. Mr Clark submitted that, whether or not there is medical evidence in support of the applicant’s claim was not relevant because both Dr Fraser and Dr Morgan relied on the history of the incident told to them by the applicant. He submitted that the decision under review ought be affirmed.
CONSIDERATION
In this matter, there is clear evidence that the applicant experienced the onset of pain in his left knee at some time prior to 22 March 2012 when he saw Dr Eweida. It was severe enough to require surgery by Dr Steadman. Various diagnoses for his knee condition have been offered and it may well be that the diagnoses contended by Mr Black are appropriate. However, I accept the submissions of Mr Clark in relation to the evidence of the applicant and I am satisfied that his knee condition, however diagnosed, is not related to his work with the respondent in an incident as alleged on 19 March 2012.
I am satisfied that the applicant did not advise the respondent that his knee injury occurred at work until 26 March 2012. In his statement, he made no mention of having advised Mr Knox of the work relationship. He said that he did so. Yet, he also said that it was possible that he did not do so. He also said that, at that time, he “did not know that it was work related.” Mr Knox’s Incident Report[5] is dated 27 March 2012. Dr Eweida did not record a reference to work in his clinical note on 22 March 2012. On that day, he completed a general medical certificate. He was clearly aware of the significance of the work factor by the time of his second medical certificate, on 26 March 2012, as this was a formal one for compensation purposes. His absence of knowledge of a work relationship is also supported by his need to contact the applicant’s health provider in relation to the costs associated with the MRI procedure.
[5] See para 29 (above).
I am satisfied that neither Mr Knox nor Dr Eweida was advised, before 26 March 2012, that the applicant’s knee injury occurred at work. It follows that I am satisfied that there was no omission by Dr Eweida about work in his clinical note of 22 March 2012. Further, I do not accept the applicant’s contention that he had not advised Dr Eweida that one of the symptoms displayed by his left knee prior to March 2012 was that it would “give way” on him. Other documentation confirms that the first reference to a relationship between the applicant’s work and his injury was on 26 March 2012. This includes the file note of Ms Gillespie and the document entitled Detailed Incident Investigation Report in which it is written that the incident was not reported as work related until 26 March 2012.
The delay in advising the respondent is of significance because it points to his not, in his own mind, relating the injury with a work-place incident. That is reinforced by the applicant’s attendance at work on 20 March 2012 where he claimed to be in severe pain and to have difficulty working. Despite the apparent severity of those symptoms at work on 20 March 2012, he did not raise his condition with anyone or seek any degree of first aid. From his previous experience in claiming compensation, I am satisfied that, if his knee was in the state he alleged, he would be aware of the need to inform the respondent of his injury and to do so in a timely way.
Mr Stratton’s evidence was that he witnessed the incident. He was not contacted by the applicant until after the reviewable decision was made. He was not a witness who was unknown to the applicant when the incident occurred. On their evidence, he approached the applicant and asked after him. The existence of such a witness is completely inconsistent with the various declarations made by the applicant that there were no witnesses to the incident. These appear in the Root Cause Analysis – Gathering Facts completed on 28 March 2012 by Dave Southall who wrote that there were no reported witnesses. In that case, the applicant was the reporting person. The Incident Form, dated 27 March 2012, also advised no reported witnesses. In his Claim for Rehabilitation and Compensation, the applicant specifically declared that there were no witnesses to the incident. In his evidence, Mr Stratton said that he was not approached to make his statement until shortly before it was made in February 2013. That was almost 12 months after the incident he claimed to have witnessed and many months after the initial determination and the reviewable decision. If there were a witness, it would be a surprising thing if this was not revealed to the decision makers on those occasions. I do not accept the evidence of the applicant or of Mr Stratton in relation to the latter’s witnessing of the incident alleged by the applicant.
Concerns for occupational safety were revealed in some of the documents in evidence. This was in relation to the chairs. The Root Cause Analysis – Gathering Facts refers to the need for them to be removed from the area when the final clearing is conducted.
No reference was made in that report to the problem caused by jammed wheels and there is no material which would suggest this was raised by the applicant before the hearing. Mr, Stratton had little or no awareness of this phenomenon but said that if he knew of it, he would report it to the respondent.
Inconsistencies were apparent in the applicant’s evidence about his knee condition prior to 19 March 2012. Although he denied ever having osteoarthritis in his left knee, he is reported as saying on several occasions that he thought it might be his arthritis which was impacted when he hurt his knee. He stated that his knee only ever “cracked” from time to time yet he also referred to it giving way to Dr Eweida. His statements in relation to negotiating the chair are to the effect that he was endeavouring to go around it to reach the letters. As I understood his evidence, he referred to reaching over the chair at the time. However, of greater significance to the applicant’s credibility, is the very different account he gave to Dr Eweida and which was recorded in his second medical certificate. This was completed within a week of the alleged incident and the cause is recorded by
Dr Eweida as: “twisting injury at work while carrying something heavy”. The reference to carrying something heavy was, at no stage, any part of the applicant’s case.
Because of the many inconsistencies in the applicant’s evidence, I am satisfied that a causal relationship, as required for the purposes of s 14 of the Act, between the applicant’s claimed knee condition and his employment, is not made out.
DECISION
The decision under review is affirmed.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of
Mr R G Kenny, Senior Member........................Sgd...........................................
Associate
Dated 3 July 2014
Date of hearing 6 June 2014 Counsel for the Applicant Mr Matt Black Solicitors for the Applicant Maurice Blackburn Lawyers Counsel for the Respondent Mr Charles Clark Solicitors for the Respondent DLA Piper
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