Linardi and Comcare (Compensation)
[2018] AATA 4252
•14 November 2018
Linardi and Comcare (Compensation) [2018] AATA 4252 (14 November 2018)
Division:GENERAL DIVISION
File Number(s): 2016/7033
Re:Miriam Linardi
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Ms S Taglieri SC, Member & Dr R Walters, Member
Date:14 November 2018
Place:Hobart
The decision under review is set aside and a decision made in substitution as follows:
·the Applicant suffered a chondral injury to the medial femoral condyle of the left knee on 9 May 1997 for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (the Act) which resulted in an osteochondral defect to the left knee from which she continues to suffer (the compensable injury);
·the compensable injury no longer causes incapacity for work so the Applicant does not have entitlement to compensation under s 20 of the Act; and
·the compensable injury requires reasonable medical treatment and the Applicant has entitlement to payment of medical expenses pursuant to s 16 of the Act according to the findings referred to in this decision.
...............................[sgd].....................................
Ms S Taglieri SC, Member
CATCHWORDS
COMPENSATION – liability for previously accepted injury – entitlement to medical expenses and incapacity payments – nature of original compensable injury – whether effects of compensable injury are continuing – whether incapacity and treatment results from the compensable injury – chondral injury to the medial femoral condyle – decision under review set aside and substituted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 16, 20
CASES
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
Manns v Comcare [2012] AATA 462March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
REASONS FOR DECISION
Ms S Taglieri SC, Member & Dr R Walters, Member
14 November 2018
INTRODUCTION AND BACKGROUND
Over several dates in March, April, June and July, the Tribunal conducted a hearing in respect of Ms Linardi’s application for review.
The Applicant filed an application with the Tribunal on 22 December 2016 seeking a review of the Respondent’s determination of 17 November 2016 (the reviewable decision), the effect of which was that the Applicant was no longer entitled to compensation pursuant to ss 16 and 20 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
The background to the review was that in August 1997 the Applicant had claimed compensation for a left knee injury that occurred on 9 May 1997 (the left knee injury). That claim was accepted by the Respondent who made various payments of compensation under the Act for the left knee injury but also for injuries that were accepted to be consequential secondary injuries or effects resulting from the left knee injury.
It was common ground between the parties, and documents received in evidence established, that the Respondent had made payments of compensation in respect of the left knee injury, as well as injury/disease or symptoms involving the Applicant’s lumbar spine, cervical spine and psychological state.[1]
[1] Respondent’s submissions dated 4 July 2018, [10] and Applicant’s submissions filed 29 June 2018, pp 1-2.
There was contention between the parties as to whether or not the Respondent had ever accepted liability to make payments in respect of a right knee injury. No separate claim for compensation appears to have been made for a discrete right knee injury at any time. Certainly, there was no evidence before the Tribunal suggesting existence of a written claim form for right knee injury.[2]
[2] As required by s 54 of the Act.
The Applicant contended that the Respondent had accepted liability to make payments of compensation under the Act with respect to a right knee injury/disease that was secondary to the left knee injury.
The Applicant’s contentions were not reliant on a separate claim for injury/disease under the Act. Instead they are based on the contention that the right knee symptoms were and are a secondary or consequential effect(s) of the compensable left knee injury. As it was on this basis that the Applicant put her case, the Tribunal is of the view that it does have jurisdiction to determine whether the Respondent has liability to continue making payments of compensation in respect of the Applicant’s right knee.
The terms of the reviewable decision are very general and broad. Under the heading ‘Discussion’, the reviewable decision simply refers to ‘injuries accepted for in 1997 and subsequent secondary conditions.’[3] The absence of specificity engages the Tribunal to determine what the secondary conditions are and whether they remain incapacitating or require treatment. Accordingly, the Tribunal needs to dispose of the Applicant’s contention as described above.
[3] Exhibit R1, T60, p 273.
JURISDICTION OF THE TRIBUNAL AND THE NATURE OF THE ENQUIRY
The Tribunal’s function in this case is dependent on the nature of the reviewable decision. The reviewable decision determined that there was no present entitlement to payment of medical treatment or incapacity payments for the injuries/diseases for which the Respondent accepted liability and their effects.[4]
[4] Exhibit R1, T60, p 274, noting terms of last three paragraphs before ‘Notice of Rights’.
The reviewable decision and the determination by the Respondent of 30 June 2016 which preceded it can in no way be interpreted as determinations revoking earlier decisions to accept liability for injury to the left knee and consequential effects of it as identified above. Rather, the reviewable decision is that the Applicant is no longer suffering from the left knee injury and secondary conditions, symptoms or effects, so that liability to pay compensation no longer exists.
That being the case, the Tribunal must proceed upon this review on the basis that the Respondent accepted liability to pay compensation for an injury to the left knee. It must also make findings in respect of the nature of that left knee injury and its effects, including whether such effects involved injury or symptoms in the lumbar or cervical spine, psychological effects, and right knee injury or symptoms. Further, if so, whether these continue and cause incapacity for work and/or a need for medical treatment such that compensation is payable under the Act from the date the Respondent ceased paying.
The Respondent presented its case on the basis that the left knee injury for which the Applicant had received compensation for decades had not been suffered in circumstances where there was a liability under the Act. However, the Tribunal cannot in our view review the decision to accept liability for a left knee injury. It can only consider if the left knee injury on 9 May 1997 for which the Respondent accepted liability remained a cause of incapacity and need for treatment or if, as it contended, the Applicant’s incapacity and need for treatment was because of a separate injury which was suffered at her home on 8 July 1997.
As it was the Applicant’s contention that the Respondent had previously accepted that the lumbar and cervical spine injuries/diseases or symptoms, a depressive disorder and right knee symptoms all resulted from the left knee injury, the primary task of the Tribunal is to make findings of fact and law in relation to:
(a)what injury was suffered on 9 May 1997;
(b)what the effects of that injury were; and
(c)whether the injury or effects in (a) or (b) still prevailed when the Respondent determined that it was no longer required to make payments under ss 16 and 20 of the Act.
EVIDENCE BEFORE THE TRIBUNAL AND FINDINGS
Each of the parties relied on extensive documentary materials at the hearing. The Tribunal received many documents into evidence as exhibits and for ease of reference the exhibit list is annexed to this decision to identify the documents considered by the Tribunal (Annexure A).
The Applicant gave oral evidence before the Tribunal and was cross-examined at length. Making allowances for the quality of evidence that can be reasonably expected from an honest person after the passage of decades between original injury and a hearing, the Tribunal formed a view of the Applicant and her evidence as follows:
·the Applicant tried genuinely to recall matters of fact and events in the past;
·the Applicant’s demeanour when giving evidence tended at times to be argumentative. Not infrequently, she made exaggerated statements about facts or events;
·the Applicant had a tendency to make generalised statements supporting her case but which, when tested under cross-examination by reference to contemporaneous historical records, were contradictory or less supportive of her case than she originally conveyed; and
·while the Tribunal did not find that Applicant to be deliberately misleading, it found her evidence to be, at times, unreliable and lacking persuasiveness.
The findings at [15] about the nature and quality of the Applicant’s evidence has affected the reliability of the expert opinions she relied upon, insofar as those opinions depended on the history the Applicant gave the medical experts.
The Applicant gave evidence that she had suffered a left knee injury at work on 9 May 1997 when she had run to answer a phone. She stated that the injury was a serious one and required surgery in July 1997 but that the left knee never fully recovered. The Applicant had multiple treatments, further surgery and had been left with weakness, locking or giving way in the left knee over subsequent years. As a consequence, she claimed that she also had injured her lumbar and cervical spine and right knee.
In respect of her spinal symptoms, the Applicant’s evidence in summary was that she had not had any troubling back or neck pain prior to a fall during April 2009 in Perth, Western Australia, when she fell due to her left knee giving way.[5]
[5] Transcript, 26 March 2018, p 41, lines 33-43.
There was evidence that after 9 May 1997, the Applicant had consulted general practitioners and managed her left knee conservatively until sometime in July 1997 when she consulted with Mr Howard Bye, a now deceased orthopaedic surgeon. In a report dated 6 March 1998, which was in evidence before the Tribunal, Mr Bye had stated:
Mrs Linardi stated that she twisted her left knee when at work on the 9th May 1997. She stated she was running to answer the phone when she twisted her left knee and it collapsed. She had extreme pain and swelling in her left knee, particularly on the medial aspect of that joint. She was able to cope and get around reasonably well in spite of the discomfort and found that she could just cope. However several weeks later, when she was squatting down to a CD music player, she felt a tearing sensation in the medial aspect of that left knee. Since that time she had feelings of insecurity, catching and giving way, though no true locking.[6]
[6] Exhibit R1, T6, p 14.
The Applicant was cross-examined at length about the references in Mr Bye’s report to the CD incident. In particular, it was put to her that her left knee injury and symptoms were not the result of the work injury on 9 May 1997 but a separate injury which she suffered on 8 July 1997, when she had been at home and squatted/crouched down to turn on a CD player (the CD incident).
In her evidence, the Applicant acknowledged that the CD incident had occurred and that she felt a tearing sensation in her left knee at the time but would not concede that the likely date of it was 8 July 1997.[7] She also refuted the suggestion that the osteochondral injury diagnosed by Mr Bye, which involved shearing the chondral surface off the joint,[8] had occurred during the CD incident.
[7] Transcript, 27 March 2018, pp 134-137.
[8] Transcript, 24 April 2018, p 62, lines 3-10.
The Applicant called an orthopaedic surgeon, Mr Gregory Harvey, to give evidence in relation to the nature of the injury suffered on 9 May 1997 and its consequential effects. His evidence was clear and objective. Mr Harvey made appropriate concessions, even though it may not have assisted the Applicant’s case. An example of this was his opinion regarding whether the Applicant’s right knee condition and symptoms could be attributed to the left knee injury.
Mr Harvey considered that the Applicant had likely suffered a chondral injury to her left knee during the incident at work on 9 May 1997. His evidence was that the activity of running to answer the phone, stopping and twisting involved a mechanism in the knee that is commonly found to injure the subchondral plate to varying degrees. Mr Harvey’s reasoning for this view was based on the nature of the forces and energy at play in the knee joint during these actions.[9]
[9] Exhibit A3, p 3 and Transcript, 24 April 2018, p 73.
When cross-examined about his opinion, and whether the chondral injury to the left knee was related to the CD incident in July 1997, Mr Harvey stated that this was less likely to cause a chondral injury in his view. His opinion was that the action of squatting/crouching during the CD incident was more likely to cause meniscal injury to the knee, rather than damage or injury to the subchondral plate. However, Mr Harvey acknowledged the possibility that squatting during the CD incident may have completed detachment of the chondral surface which had been damaged and partially detached in the workplace incident of 9 May 1997.
Dr Michael Jackson, an anaesthetist, and Mr Matt Jensen, a physiotherapist who worked cooperatively with Dr Jackson, were called to give evidence in respect of the Applicant’s spinal conditions. In summary, both opined that the Applicant had probable pre-existing degenerative changes in her spine but that she had suffered aggravation of those changes rendering her symptomatic or more symptomatic because of the left knee injury, which caused weakness or giving way of the left knee/leg resulting in stumbles/falls.
Mr Jensen had signed a proof of evidence before the hearing and it was adduced into evidence.[10] This proof of evidence and his oral evidence related to treatment he had given to the Applicant and records he had maintained relating to this. The effect of Mr Jensen’s evidence was that he had been seeing the Applicant for treatment as far back as 2005 in respect of lower back complaints. Mr Jensen’s evidence about what signs and symptoms the Applicant had in her spine prior to a fall in Perth, Western Australia in April 2009 (the Perth fall)[11] lacked detail and probative value. This may well have been in part contributed to by the fact that he had been unable to locate all records he had maintained concerning the Applicant and those that he did locate were minimal.
[10] Exhibit A7.
[11] Which fall the Applicant attributed to the left knee injury she had suffered in the workplace on 9 May 1997.
The Tribunal probed Mr Jensen in relation to the lack of records relating to his consultations with the Applicant and his knowledge of the Applicant’s spinal signs and symptoms before the Perth fall. He was also cross-examined closely about this. The Applicant’s counsel was directed to provide further explanation from Mr Jensen about the lack of records but the responses received failed to satisfy the Tribunal that it could confidently accept the evidence contained in Mr Jensen’s proof of evidence or the evidence given orally to the Tribunal about the meaning of a report he had written dated 21 April 2009.[12] Insofar as Mr Jensen’s evidence was relied upon by the Applicant to support a contention that her lumbar spine condition after April 2009 was causally related to her left knee injury or the effects of it, it was far from convincing.
[12] Exhibit A7, Annexure ‘A’.
Dr Jackson’s evidence was also relied upon by the Applicant to support a contention that her lumbar and cervical spine complaints were the result of her left knee injury, as her left leg had given way on 3 April 2009 and caused the Perth fall. Dr Jackson’s evidence also lacked rigour and persuasiveness. His views were dependent on a history of no real spinal symptoms before the Perth fall. However, because of the content of the medical records referred to in [32] below, the Tribunal rejects such history and in turn rejects the views of Dr Jackson.
The Applicant called Dr David Weidmann, her treating psychiatrist, to give evidence at the hearing. In summary, his opinion was that the Applicant had developed a major depressive disorder as a result of her chronic experience of pain from the left knee injury caused at work on 9 May 1997.
The evidence established that during the time Dr Weidmann treated the Applicant, he had made arrangements for her to consult a clinical psychologist (Lisa Gilroy) in relation to various psychological stressors and complaints that arose throughout her life, rather than the effects of chronic pain from her workplace injuries.[13] Dr Weidmann was cross-examined about this arrangement by counsel for the Respondent and the Tribunal had the benefit of assessing whether the arrangement may have influenced the opinions he expressed.
[13] Exhibit R1, T42. See also Transcript, 24 April 2018, pp 95-96 generally, and p 117, lines 40-47.
The Tribunal takes the view that the effect of the arrangement that Dr Weidmann put in place was to artificially and improperly quarantine from consideration relevant psychological history that needed to be considered in order to accurately assess the Applicant’s presenting psychiatric symptoms at various times, diagnose them and accurately identify their cause. For these reasons, the Tribunal does not regard the opinion of Dr Weidmann to be reliable or persuasive.
Dr Peter Sharman, an occupational physician, was called by the Applicant. He addressed his report of 4 October 2016 and was cross-examined. It transpired that he too had accepted the history given by the Applicant of no significant spinal issues before the Perth fall. However, when cross-examined by reference to historical medical records that had been summonsed, Dr Sharman’s views were far less supportive of a causal relationship between the Applicant’s lumbar and spinal symptoms and left knee injury. The general effect of Dr Sharman’s evidence was to mostly concede that the contents of the medical records were consistent with an already symptomatic degenerative spine before the Perth fall.[14]
[14] Transcript, 26 April 2018, pp 139-145, see especially p 145, lines 16-20.
The Applicant also relied on the opinion of Dr Sharman to support her claim of continuing incapacity for work. However, the evidence of Dr Sharman was dependant on there being collective physical and psychological impairments that deprived the Applicant of being able to undertake sedentary work.
The Respondent called two witnesses in support of its contentions that the Applicant was no longer suffering from the effects of any compensable injury under the Act for which it had accepted liability.
Mr Ronald Haig, a consultant orthopaedic surgeon, gave oral evidence before the Tribunal and had prepared several reports upon which the Respondent relied.[15] Mr Haig had initially assessed the Applicant on 17 May 2016 and expressed the opinion that she had suffered a chondral injury to the medial femoral condyle of the left knee in the workplace incident on 9 May 1997.[16] He accepted there had been a ‘“shearing” mechanism injury type pathology to the medial femoral condyle cartilage’ but doubted there was a bone component involved.[17]
[15] Reports dated 30 May 2016 (Exhibit R1, T53), 16 February 2018 (Exhibit R5), and 26 April 2018 (Exhibit R6).
[16] Exhibit R1, T53, p 226.
[17] Exhibit R1, T53, p 225.
When referred to Mr Bye’s report (see above at [19]) by the Respondent’s solicitors, Mr Haig provided a further opinion.[18] He stated that when the Applicant felt a tearing sensation in the left knee when squatting in the CD incident, it was likely the more traumatic episode and more likely causative of the pathology found at arthroscopy by Mr Bye in July 1997.[19]
[18] Exhibit R6.
[19] Exhibit R6, p 1.
In cross-examination, Mr Haig stated that if the work incident on 9 May 1997 caused damage to the medial femoral chondral cartilage as he had previously opined, the CD incident may have been responsible for lifting damaged osteochondral flap from the bone, thereby causing the inability to walk at the time as described by the Applicant in her evidence. However, Mr Haig preferred the view that the history given to Mr Bye and findings upon arthroscopy were probably more consistent with osteochondral injury to the left knee suffered when squatting during the CD incident. This was his preferred view because he stated there was twisting force in the knee joint when performing a squat, which force was associated with chondral injury to the knee.
Mr Haig considered that the nature of the treatment provided by Mr Bye was appropriate but the consequence of the chondral injury and treatment was that it would inevitably lead to knee replacement in the future.
Despite accepting that the Applicant continued to suffer symptoms from the left knee injury, Mr Haig was of the view that she was not incapacitated for work of the nature she was accustomed to doing, which was essentially sedentary.[20] It was his view that the Applicant had made a relatively good (but not complete) recovery from the chondral injury to the left knee, having regained full range of movement and been able to undertake walks.[21] In addition, the Applicant conceded that on one occasion she felt sufficiently confident in her knee function, such that she undertook a sprint.[22] Mr Haig also considered the only treatment required for the left knee was simple analgesics and anti-inflammatories.[23]
[20] Exhibit R1, T53, p 229.
[21] Transcript, 5 June 2018, pp 409-410.
[22] Transcript, 27 March 2018, pp 156-157.
[23] Exhibit R1, T53, p 230.
Mr Haig provided an opinion on 16 February 2018[24] after considering additional materials, including a large volume of summonsed records. In this report, he addressed differences in history said to be given by the Applicant to Dr Ruttenberg and himself about the Perth fall.[25] He rejected the suggestion that the Applicant’s neck and low back complaints were attributable to the Perth fall and so the left knee injury.
[24] Exhibit R5.
[25] Exhibit R5, p 2.
Mr Haig also expressed the view that there was no good evidence of ‘other side pathology’ in the absence of a particular incident and rejected that the right knee symptoms were in some way related to the compensable left knee injury.[26]
[26] Exhibit R5, p 4.
Mr Harvey, like Mr Haig, was unwilling to accept the contention that the Applicant likely developed symptoms in her right knee because of overcompensating to protect her injured left knee. Mr Harvey referred to the absence of acceptable medical consensus and robust scientific literature in support of such a contention.[27]
[27] Transcript, 24 April 2018, p 62, lines 36-39.
The evidence of Mr Haig was, in the Tribunal’s view, objective and fair. The Tribunal accepts the majority of the views expressed by Mr Haig in relation to the nature and cause of the left knee injury, and the back, neck and right knee injuries or symptoms suffered after the Perth fall.
Where the views of Mr Haig and Mr Harvey differ in relation to what caused the osteochondral damage to the Applicant’s left knee demonstrated on arthroscopy undertaken by Mr Bye in July 1997, the Tribunal is satisfied that there was no separate injury during the CD incident in July 1997, which was causally unrelated to the compensable injury. It is properly inferred that Mr Haig had considered the CD incident history when he expressed his first opinion,[28] and at that time accepted that the workplace incident on 9 May 1997 involved shearing forces to the medial femoral condyle. This, together with Mr Haig’s evidence in cross-examination referred to at [37], has persuaded the Tribunal that without the trauma to the left knee joint during the incident at work on 9 May 1997 there was unlikely to have been an osteochondral defect, even if it did not become pathologically complete until the CD incident. The Tribunal has arrived at this view by applying the principles of common sense causation.[29]
[28] Exhibit R1, T53, p 224, read in conjunction with the Medical Documentation List at T52, pp 216-219 (briefing letter from the Respondent to Mr Haig).
[29] See, eg, Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1, 6; March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516; and Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29, 33.
The Tribunal accepts Mr Haig’s views in relation to the cause of the Applicant’s cervical spine symptoms and that they are more consistent with age-related degeneration rather than the Perth fall on 3 April 2009. As there was significant history of symptoms and treatment with regard to the lumbar spine even before the Perth fall, the Tribunal is not satisfied that the fall caused any further or new injury or symptoms in the spine, even if the fall occurred due to the left knee giving way (which is far from convincing due to variation in history about the fall).
It is also likely that the Applicant had pre-existing symptoms of back and cervical pain which interfered with her functioning. This is, in the Tribunal’s view, an inference to be reasonably drawn from the nature of the investigations and treatment in respect of the same as documented in the general practitioner medical records.[30]
[30] See, eg, Exhibit R10, Volume 1, pp 27-28, 32-35, 37-39, 109, 111-112, 213-217, 220, 224.
As previously identified at [18], the Tribunal rejects the Applicant’s evidence about the nature of pre-existing spinal symptoms being insignificant before the Perth fall. Her evidence is inconsistent with the content of the medical records maintained by her general practitioners, referral to a physiotherapist, undergoing radiological imaging and seeing specialist medical practitioners,[31] which records were created contemporaneously with the events and complaints made at relevant times.
[31] Including Dr Oberoi, a pain medicine specialist (see, eg, R10, Volume 1, pp 111-112) and Dr Zochling, a rheumatologist (R10, Volume 1, pp 217-218).
The Respondent also called Dr Gregory White, a consultant psychiatrist. The Tribunal found the evidence of Dr White to be objective and persuasive. He was an impressive witness who had very carefully considered the Applicant’s entire psychiatric and psychological history as contained in her treater’s records and other documents before the Tribunal.[32]
[32] Including excerpts of records provided by Ms Lisa Gilroy (Exhibits A19 and R10) and the report of Dr Ian Sale dated 8 January 2007 (Exhibit R1, T19).
Notwithstanding that the Applicant appears to have a relatively stoic personality, because she has managed to process and cope in her own way with various challenges she confronted in her life, the number and nature of the psychological stressors that have impacted upon her life have, in the Tribunal’s view, all played a part in her resulting psychiatric state following November 2016. The existence of multiple contributing psychological or psychiatric factors has probably cumulatively impacted on her psychiatric state over time. Logically this leads the Tribunal to conclude that the psychological effects of chronic pain from the left knee injury are only a small part of her overall psychiatric presentation.
To the extent the Applicant may have initially experienced an adjustment disorder or symptoms of depression because of chronic knee pain from the left knee injury, the Tribunal is satisfied that the effects of that had ceased by the time the Respondent made the decision which is under review. They have been overtaken by the cumulative psychological/psychiatric effects of chronic pain from physical complaints not found to be resulting from the left knee injury (neck, lumbar spine, right knee) and a multitude of personal or domestic stressors. Dr White’s opinion is preferred to that of Dr Weidmann.
In respect of personal stressors referred to in [50], the Tribunal is of the view that this included the significant psychological effects of ‘betrayal’ by Mr Quick for whom she worked as an electoral officer. It was clear from the Applicant’s evidence that she strongly perceived that Mr Quick had treated her very badly. The adverse impact of this was dramatically conveyed in her evidence, confirmed by Dr Weidmann and commented upon by Dr White.[33]
[33] See, eg, Transcript, 26 March 2018, pp 89-90, 96; Transcript, 24 April 2018, pp 91-92, 115; and Transcript, 5 June 2018, p 372.
The Tribunal finds that the Applicant probably suffers from major depressive disorder or chronic adjustment disorder, noting the evidence of both Dr Weidmann and Dr White that psychiatric labels or diagnostic terms are not a matter of strict form/interpretation.[34]
[34] See, eg, Transcript, 24 April 2018, p 100 and Transcript, 5 June 2018, p 347.
The cause of the Applicant’s psychiatric disorder is more probably due to the many non-employment related stressors referred to above rather than chronic pain from the left knee injury. Although Dr Weidmann and Dr White appeared to be in agreement that the Applicant’s psychological symptoms were productive of incapacity for work to varying extents, because it prefers the views of Dr White the Tribunal is satisfied that such incapacity is not the result of the left knee injury.
DID THE COMPENSABLE INJURY AND ITS EFFECTS CONTINUE AFTER THE REVIEWABLE DECISION?
The Tribunal is satisfied to the requisite degree[35] that the Respondent accepted liability for a left knee injury suffered on 9 May 1997, which consisted of a chondral injury to the medial femoral condyle of the left knee which resulted in an osteochondral defect also (the compensable injury).
[35] See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 which has been followed in many Tribunal cases, such as Manns v Comcare [2012] AATA 462.
The injuries/diseases or symptoms the Applicant has experienced relating to her lumbar spine, cervical spine, right knee and the psychiatric disorder or psychological symptoms from which she has suffered since the date of the reviewable decision are not a consequence or result of the compensable injury.
It follows from the conclusions above that the Tribunal needs to address whether the Applicant remained incapacitated by the compensable injury and its effects.[36] Also whether she required treatment for it after the reviewable decision.
[36] As required by s 20 of the Act.
The consensus of the orthopaedic evidence was that the Applicant will require total knee replacement at some time in the future due to the compensable injury. It appears that the precise timeframe for the surgery is uncertain and that it should be postponed as long as symptoms are tolerated. The Tribunal can only comment that when an orthopaedic surgeon such as Mr Harvey forms the view that it is reasonable to proceed with the surgery, the Respondent should reasonably pay for it. In the interim, simple analgesia and anti-inflammatories, but not physiotherapy, are required.
Although the evidence, on the balance of probabilities, demonstrated that the Applicant had undertaken little work after 2000,[37] her incapacity has more likely been related to the myriad of physical and psychological symptoms she has experienced since, rather than the effects of the compensable injury. The Tribunal is reinforced in this conclusion by the views of Mr Haig,[38] the effect of which was that the compensable injury did not preclude the Applicant from undertaking sedentary employment.
[37] See, eg, Transcript, 26 March 2018, p 46; Exhibit A6; and Exhibit R1, pp 68, 167.
[38] Transcript, 5 June 2018, pp 409-410.
The only expert evidence adduced on behalf of the Applicant about continuing incapacity for work was that of Dr Jackson and Dr Sharman. For the reasons already expressed, the Tribunal rejected the views of Dr Jackson. Insofar as the question of incapacity for work was addressed by Dr Sharman, it has failed to persuade the Tribunal that the Applicant’s compensable injury continues to cause incapacity for work. Dr Sharman globally addressed the Applicant’s likely incapacity for work, taking into account all claimed injuries and effects of the left knee injury.
Under cross-examination, Dr Sharman conceded that if he considered incapacity resulting from the left knee injury alone, the Applicant perhaps had capacity for numerous sedentary positions.[39]
[39] Transcript, 26 April 2018, pp 149-150.
Allowing for the concession by Dr Sharman and the finding of the Tribunal that the Applicant continues to suffer from the compensable injury, which only involves the left knee, it is probable that the Applicant has full-time capacity for employment in a relatively wide range of sedentary positions.
The Tribunal notes however, that if and when knee replacement surgery is undertaken to the left knee it is likely to cause a period of incapacity for work.
DECISION
It follows from the Tribunal’s conclusions at [54] to [62] that the reviewable decision should be set aside and a decision made in substitution as follows:
·the Applicant suffered a chondral injury to the medial femoral condyle of the left knee on 9 May 1997 for the purposes of the Act which resulted in an osteochondral defect to the left knee from which she continues to suffer (the compensable injury);
·the compensable injury no longer causes incapacity for work so the Applicant does not have entitlement to compensation under s 20 of the Act; and
·the compensable injury requires reasonable medical treatment and the Applicant has entitlement to payment of medical expenses pursuant to s 16 of the Act according to the findings referred to in this decision.
I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri SC, Member & Dr R Walters, Member
...............................[sgd].....................................
Associate
Dated: 14 November 2018
Date(s) of hearing: 26-27 March, 24 & 26 April, 5 June and 11 July 2018 Date final submissions received: 17 July 2018 Counsel for the Applicant: Mr R Baker Solicitors for the Applicant: Baker Wilson Davies Lawyers Counsel for the Respondent: Mr M Gollan Solicitors for the Respondent: Lehmann Snell Lawyers ANNEXURE A
Exhibit No. Exhibit Description A1 Curriculum vitae of Mr Gregory Harvey, orthopaedic surgeon A2 Letter from Baker Wilson Lawyers to Mr Gregory Harvey, requesting medical report in respect of Miriam Linardi. NB. Letter is incorrectly dated, agreed at hearing that date should be 29 March 2018 A3 Medical report of Mr Gregory Harvey, orthopaedic surgeon, dated 17 April 2018 A4 Bundle of documents received by Mr Gregory Harvey for the purposes of expressing his medical opinion in respect of Miriam Linardi A5 Briefing letter from Baker Wilson Lawyers to Dr Peter Sharman, occupational physician, dated 23 June 2016 A6 'Patient Information Questionnaire' forming part of Dr Michael Jackson's records A7 Proof of evidence, Matthew Gordon Jensen, physiotherapist, dated 1 June 2018 with attachments A, B, C & D A8 Briefing letter from Baker Wilson Davies to Matt Jensen dated 7 May 2018 A9 Binder of documents attached to briefing letter sent to Matt Jensen from Mr Baker/BWD Lawyers. Index of documents includes: (i) General Practitioner Record 22.01.2008 to 14.05.2009; (ii) Mr Howard Bye; (iii) Dr Arvind Dubey; (iv) Radiology Report; (v) Dr Michael Jackson; (vi) Body Tech Physio Records; and (vii) Comcare Payment History A10 Original letter signed by A Paisz on letterhead of Dr Adriane Hebblewhite dated 25 May 1997 A11 Medicare History Statement dated 28 April 2018, consisting of records dated between 9 May 1997 to 27 April 2018 A12 Letter dated 13 August 1997 on 'Harry Quick MP' letterhead signed by Harry Quick A13 Copy of x-ray report from Regional Imaging dated 28 May 1997 A14 Document headed 'Comcare Claim Invoice Line Item List' A15 Statement from Huonville Physiotherapy Centre, payable to Anitra Wilson dated 4 December 1997 A16 Letter from Nicholas Curry to Howard Bye on Physio Sense letterhead dated 4 September 2000 A17 Letter from Natalie Woods to Miriam Linardi on Comcare Australia letterhead dated 21 January 1999 A18 Letter from Robert Pugsley to Miriam Linardi on Comcare Australia letterhead dated 10 August 1999 A19 Two binders of summonsed material – Volumes 1 & 2 of ‘Applicant’s Selected Medical Records’ A20 Copy of original transcript/proof of evidence of Matthew Jensen, undated and unsigned A21 Sworn affidavit of Matthew Gordon Jensen dated 11 July 2018, filed pursuant to Tribunal’s direction R1 T documents R2 Letter printed on ‘Harry Quick MP’ letterhead, signed by Tracey Farrell and dated 13 August 1997 R3 Bundle of documents including: (i) bundle, first page headed ‘Claim Advice’ on Comcare Australia letterhead and dated 25 August 1990; and (ii) bundle, first page headed ‘Comcare Claim Invoice Line Item List 13 January 2017’ R4 Report of Dr Gregory White, consultant psychiatrist, dated 23 February 2018 R5 Bundle: report of Mr Ronald Haig, consultant orthopaedic surgeon, dated 16 February 2018 & briefing letter dated 22 January 2018 from Lehmann Snell Lawyers to Mr Haig R6 Report of Mr Ronald Haig, consultant orthopaedic surgeon, dated 26 April 2018 R7 Documents produced under summons by Regional Imaging, indexed and paginated copy provided by the Respondent R8 Bundle including: (i) copy of summons issued by Tribunal to Greenpoint Medical Centre; and (ii) copies of correspondence from Greenpoint Medical Centre to Tribunal/Lehmann Snell Lawyers dated 8 May 2018 & 1 June 2018 R9 Briefing letter from Lehmann Snell Lawyers to Mr Ronald Haig dated 16 April 2018 R10 Two binders of summonsed material – Volumes 1 & 2 of ‘Respondent’s Abridged Summonsed Documents’ R11 Bundle of additional documents relating to Greenpoint Medical Centre summons including: (i) email from Lehmann Snell Lawyers to Tiara Martin sent at 4:53pm, 29 May 2018; and (ii) file note from Lehmann Snell Lawyers dated 29 May 2018 after phone call with ‘Tiara the practice manager’
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