Mathieson and Military Rehabilitation and Compensation Commission
[2005] AATA 923
•22 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 923
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/562
GENERAL ADMINISTRATIVE DIVISION ) Re SCOTT MATHIESON Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date22 September 2005
PlaceMelbourne
Decision The decision under review is affirmed. ..............................................
Senior Member
COMPENSATION – rehearing of an application upon remittal from Federal Court – knee injuries and surgery in 1967 and 1972 – subsequent presence of pain – sudden increase in symptoms in 1994 – arthroscope then revealed presence of osteoarthritis – whether any pathophysiological or qualitative change – decision to deny impairment lump sum under s 24 of the Safety, Rehabilitation and Compensation Act 1988 affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Comcare Australia v Mathieson [2004] FCA 212
Brennan v Comcare (1994) 19 AAR 542
Comcare v Levett (1995) 60 FCR 14
Department of Defence v West (1998) 27 AAR 550
Comcare v Maida (2002) 36 AAR 69
Re Erdstein and Comcare [2004] AATA 798REASONS FOR DECISION
22 September 2005 Mr John Handley, Senior Member 1. The parties in this review were the same parties in application V2000/1272 save that the respondent is now known as the Military Rehabilitation and Compensation Commission (“MRCC”).
2. I delivered written reasons for decision in the previous application on 26 September 2002. The respondent lodged an appeal with the Federal Court (V740/2002) against the decision. On 12 March 2004, Weinberg J allowed the appeal. His Honour decided that the matter be remitted to the Tribunal for rehearing but rejected a submission made that it be heard by a differently constituted Tribunal ([2004] FCA 212).
3. The background to the application and the issues arising in the previous review are best summarised by reciting the following paragraphs from the reasons for decision in the previous review.
2. The respondent decided that the applicant suffered knee injuries in 1963 when he was a member of the Royal Australian Navy. Having read a report of the applicant’s treating orthopaedic specialist, the respondent determined that the knee injuries became permanent in 1963. It followed, according to the determination, that the provisions of the Commonwealth Employees Compensation Act 1930 (“the 1930 Act”) applied. Additionally, the respondent - having decided that it was “probable that your incapacity for work will be total and permanent”- pointed to s12 of the 1930 Act which prohibited lump sum compensation for permanent impairment in the event of total and permanent incapacity.
4. Mr Trigar submitted that the applicant was seeking compensation pursuant to s24 of the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”) for knee injuries. He said that the applicant was presently receiving weekly compensation for total incapacity by reason of osteoarthritis of the patello femoral joints of both knees, as a result of the dislocation of both patella whilst he was a member of Royal Australian Navy between 1963 and 1975. Within those years, the applicant was engaged as a leading hand cook.
5. Mr Trigar said that the applicant first suffered a dislocation of his left patella whilst a member of the crew of HMAS Cerberus in 1963 and subsequently to the right knee. Surgery was undertaken by Mr Schumak upon the right knee on 7 June 1967 and on the left knee by Mr Faithful on 16 June 1972. In 1975, the applicant was discharged from the Navy and thereafter has been engaged in a number of different employments until approximately 1994. Thereafter, he was unemployed for some years, was employed in prospecting in about 1997 and was engaged in some casual work in 1998. Thereafter, it was said that Mr Mathieson has been totally and permanently incapacitated.
6. Mr Trigar submitted that the injuries to the applicant’s knees did occur before 1988. The impairment to both knees however became permanent after 1 December 1988, thereby giving rise to a lump sum entitlement for permanent impairment pursuant to s.24 of the 1988 Act. In the alternative, it was put that the applicant would demonstrate that he had suffered a significant deterioration of a qualitative and quantitative degree greater than 10% subsequent to 1 December 1988.
7. In so far as the alternate basis for the claim is concerned, the applicant relied on a full Federal Court decision of Department of Defence (as Delegate of Comcare) v West (1998) 156 ALR 651.
8. Mr Wallace on behalf of the respondent, submitted that the applicant suffered impairments to his left and right knees respectively in 1963 and 1965, which he continues to suffer. By reason of the conceded total incapacity for employment and the injuries having occurred during the currency of the 1930 Act, the applicant is disentitled to lump sum compensation for permanent impairment.
4. Ultimately I concluded as follows:
83. Subsequent to 1 December 1988, I am satisfied and find as a fact that the applicant’s condition has deteriorated. I am satisfied and find as a fact that quantitatively and qualitatively the extent of the worsening has amounted to a new impairment, which is compensable under s.24 of the Act. The extent of the compensation is the difference between the extent of impairment at 1 December 1988 and the finding of impairment at the time of this review which, for reasons which will follow, I am satisfied is 30% pursuant to Table 9.5.
84. I have reached that conclusion having regard to the report and evidence of Mr Coates who found that at the time of his assessment in March 1999 the applicant had an impairment of 30% under Table 9.5. Mr Conroy also was of the opinion that the applicant had an impairment between 20 and 30% under Table 9.5. Mr Shanon found that there had been no worsening of the applicant’s condition since 1988, a conclusion I regard as being harsh and unsupported by the evidence. Mr Jones acknowledged that the disease process suffered by the applicant would predictably cause a worsening of the applicants condition however he dismissed the applicant’s incapacity from the early 1990’s as being related to the deterioration but rather more related to the applicant’s motivation. I would also dismiss those conclusions and find that comments as to the applicant’s motivation are inconsistent with the applicant obviously being able to work from 1963 until the early 1990’s in the presence of significant and deteriorating bilateral knee injuries.
5. The formal decision was in the following terms:
1.The applicant suffered a permanent whole person impairment by reason of bilateral knee injuries at 1 December 1988 at 10%.
2.The permanent whole person impairment at the time of this review was 30%.
3.The applicant is entitled to compensation pursuant to s.24 of the Safety, Rehabilitation & Compensation Act 1988 (“the Act”).
4.The applicant is remitted to the respondent to assess compensation pursuant to s.27 of the Act.
5.The respondent shall pay the applicants costs.
6. The decision of Weinberg J, on appeal, is found at Comcare Australia v Mathieson [2004] FCA 212. His Honour concluded in the following terms:
50 It is hardly satisfactory that there should be so much uncertainty regarding the construction of s 124(3) of the 1988 Act so long after its commencement. The applicant would undoubtedly succeed in this appeal if the approach taken by the Full Court in Blackman, and endorsed by Heerey J in West, were to be followed. However, in a number of cases, to which I have previously referred, serious reservations have been expressed as to the correctness of that approach.
51 The most recent discussion by an appellate court of this issue appears in the judgment of Merkel J, with which O’Connor J agreed, in West. It was that approach that commended itself to Mansfield J in Maida. It is that approach that I propose to follow.
52 Mr Hanks formally submitted that Blackman had been correctly decided, and that I should follow the reasoning in that case, rather than the view of the majority in West. I reject that submission. His alternative submission was that the Tribunal had erred in law by failing to apply correctly the "quantitative and qualitative" test enunciated in West. He further submitted that an essential element of that test was the requirement that there be an identifiable change in the underlying pathophysiological condition before there can be a new physical impairment.
53 In my opinion, Mr Hanks’ alternative submission should be accepted. I should say that I have some reservations about the use of the expression "pathophysiological condition". That expression is nowhere to be found in the 1988 Act, or in any relevant extrinsic material. Nonetheless, Merkel J, who used it repeatedly in his judgment in West, must have chosen to use it after careful consideration.
54 The term "pathophysiological" is defined in the Oxford English Dictionary as "pertaining to pathophysiology". That term, in turn, is defined as "the physiological processes associated with disease or injury; the study of such processes". It appears to be a word that is understood in scientific circles, and seems to capture the essence of what Merkel J had in mind when he referred to a "qualitative" change in the nature of a permanent impairment.
55 I appreciate that the test adopted in West can give rise to difficulties in borderline cases. Reasonable minds, including the reasonable minds of experts, can differ as to whether the level of deterioration in a person’s condition amounts to a new condition. Sometimes, there will be a clear, and readily ascertainable change in the pathophysiology of the condition. For example, a person who is HIV positive, and then develops AIDS, will almost certainly be regarded as having a new condition. Arthritic degeneration poses greater difficulties. At what stage does a change in the level of physical impairment, based upon a steady degeneration of that condition, amount to a new and different "permanent impairment"?
56 The Tribunal plainly intended to apply the test approved by the majority in West. It used the formula developed by the majority in that case, save for the reference to a pathophysiological condition. In my view, the Tribunal’s failure to use that expression is of little consequence provided that its reasons demonstrate that it appreciated that it was required to have regard not just to the extent of the impairment, but also to the quality of that impairment. Under the 1988 Act, the concept of "degree of permanent impairment" differs from that of "permanent impairment". I agree with what Mansfield J said about this in Maida.
57 I also note, as Mansfield J did, that in Brennan, Gummow J pointed out that the use of the Guide, as a step in determining the existence of a permanent impairment, is erroneous. The Guide is directed to the measure of the degree of permanent impairment, rather than to its existence. As Mansfield J also observed, the use of the Guide indicates a focus upon the worsening of the degree of impairment as evidenced by its consequences rather than upon the emergence of a new permanent impairment itself.
58 Mr Hanks acknowledged, in oral submissions, that there was evidence before the Tribunal that might, conceivably, have formed the basis for a finding that there had been a qualitative change in the nature of the respondent’s permanent impairment after the commencing date. Mr Gorton referred, for example, to a note prepared by Mr Michael Anderson, an orthopaedic surgeon, in 1994, which spoke of "things having changed in the last two months". There was also evidence before the Tribunal regarding the nature of osteoarthritis, and the capacity of that condition to progress rapidly. There was medical evidence which spoke of "exponential" deterioration, as well as evidence regarding the move from cartilage to bone. In addition, there was evidence that the respondent had been capable of full-time employment in 1988, but was totally incapacitated, by reason of the impairment, by 1998. Finally, there was evidence regarding the respondent’s need to have supports for his knees in order to move around, and his need for ever-increasing quantities of pain killing medication, after he ceased working in about 1999.
59 All of these factors, taken together, might have led the Tribunal to conclude, as a matter of fact, that the respondent suffered from a new and different permanent impairment after the commencing date. The problem is that the Tribunal did not make any finding in these or any similar terms. It simply used the formula propounded by Merkel J in West without explaining the basis upon which it arrived at the conclusion that there had been a "qualitative" as well as "quantitative" change in his condition.
60 In my opinion, the Tribunal failed to comply with the requirements of ss 43(2) and 43(2B) of the AAT Act. It did not include in its reasons "findings on material questions of fact". Nor did it include "a reference to the evidence or other material on which those findings were based".
7. The application upon remittal was heard on 3 and 4 March 2005. Mr Trigar of Counsel appeared on behalf of the applicant and Mr Lenczner of Counsel appeared on behalf of the respondent. Evidence was heard from Doctors Conroy, Shannon, Jones and Miller. All four doctors provided reports which will be referred to in these reasons.
8. A significant emphasis was placed in this review upon the process of degenerative change in the applicant’s knees by an obvious (and not disputed) arthritic process. Attention was therefore given to the consequences of the introduction of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), the provisions of s 124 (3) of that Act, the relevance of the date 1 December 1988 and treatment the applicant undertook in 1994.
9. On 3 November 1994, Mr Anderson reported (refer paragraphs 43 and 44 of the previous decision) that Mr Mathieson had functioned well until a couple of months ago when he developed progressive soreness and swelling and severe pain two weeks ago when walking up a step. In a further report of 1 December 1994, Mr Anderson reported:
I scoped Scott’s knee last week and fortunately with the joint debridement he seems very happy with the present state with no pain. Nevertheless he has severe wear changes. At the patellofemoral articulation this has been denuded down to the bare bone in places and there were similar fairly severe changes in the medial compartment. The lateral joint was quite well preserved. He may be looking at more major surgery at some stage.
david conroy
10. Mr Conroy has been an orthopaedic surgeon for 35 years and specialises in trauma management. He provided reports dated 25 November 1999 and 26 October 2004 following consultations with Mr Mathieson.
11. Mr Conroy gave evidence in the previous proceedings and again in these proceedings. He said on the history he obtained, Mr Mathieson had little by way of trouble prior to attending Mr Anderson in 1994. He noted that the report of the arthroscope indicated gross arthritic deterioration which, combined with an increase of symptoms, indicated to him that Mr Mathieson had suffered from a previously long standing, relatively asymptomatic osteoarthritic deterioration which had suddenly exacerbated. He understood that Mr Mathieson had been relatively free of symptoms prior to the consultation in 1994. When asked to describe the nature of the quality of the change in the function of his limbs, Mr Conroy said:
My interpretation of this man’s story and the arthroscopic appearance is that he probably had long standing osteoarthritic deterioration within that joint over years despite his lack of symptoms and that the inevitable deterioration led to the onset of symptoms when some relatively minor event happened some months before the arthroscopy that he probably doesn’t even recall (Transcript, page 12).
12. Mr Conroy said that at 1994 the change in Mr Mathieson’s knees was of an inevitable and irreversible aggravation and the deterioration within his knees became symptomatic. In his experience, once symptoms commence to the degree experienced by Mr Mathieson, they become worse. He said:
The natural history of osteoarthritis is that it is often – it is slow, over years and then as the years go by the rate of deterioration progresses and becomes more rapid in an exponential sort of way.. . . It is a rapid accelerating deterioration. (Transcript, page 13)
13. Mr Conroy was of the opinion that the process of deterioration as described occurred to Mr Mathieson in the present case. He confirmed the assessments of impairment given by him in evidence in the previous proceedings; namely, a 10 per cent impairment at 1998 and a 30 per cent impairment at examination in 1999. It was his opinion, having reviewed Mr Mathieson in 2004, that there was no reason to alter those assessments.
14. In cross-examination Mr Conroy said that severe degenerative changes might not necessarily cause a person to make complaints of pain, whereas minor changes might cause complaint. He said there was no correlation between the extent of degeneration and symptoms. He agreed that in order to comprehend the extent of any degenerative process within Mr Mathieson’s knees prior to 1 December 1998 and subsequently, an examination and comparison of symptoms before and after 1 December 1988 would be required. He acknowledged that symptoms following recurring dislocation in Mr Mathieson’s knees prior to 1 December 1988 would assist in comprehending the extent of symptoms, as would the frequency of complaints of tenderness and an inability to squat. Mr Conroy acknowledged that the extent of Mr Mathieson’s symptoms prior to 1 December 1988 may have been greater than he had previously understood. He acknowledged that he had previously obtained a history of Mr Mathieson suffering increasing problems in his knees whilst a truck driver at Mt Newman (between 1979 and 1991). However, it would appear that Mr Mathieson’s mobility improved following arthroscopy in 1994, because he obtained a history of Mr Mathieson being able to undertake self-employment as a gold prospector. That is to say, Mr Mathieson was able to resume a lifestyle involving mobility of a degree greater than existed in November 1994. Mr Conroy said that the presenting episode in 1994 must have been severe but even if it were found to be just another episode, he said the arthroscopy did create temporary improvement for some years. Whilst being unsure of precisely what occurred at arthroscopy, it was his opinion that Mr Mathieson enjoyed temporary relief from the presenting episode. However, it did not change the deterioration that is inevitable as night follows day but it makes the rate of deterioration temporarily a little less rapid (Transcript, page 21).
15. Discussion then followed as to whether Mr Mathieson’s symptoms might be described as severe, moderate or mild and whether degenerative changes occurred slowly or were rapid. Mr Conroy was of the opinion that Mr Mathieson’s deterioration – observed clinically – was of moderate osteoarthritis. However, in order to determine the extent of deterioration, Mr Conroy said he would need to compare arthroscopes taken over time. Because no such material exists, his opinion as to moderate arthritic deterioration was based on his clinical observations of Mr Mathieson, but with the caveat that he expressed earlier as to the capacity of persons to endure pain. He said that he would have anticipated Mr Mathieson to have severe, perhaps gross osteoarthritic deterioration at direct vision, at direct inspection. ... He assumed there had been gross changes in Mr Mathieson’s knees over the years and had he observed the results of arthroscope in the 1980’s, he may have seen gross degenerative changes, but not manifesting symptomatically to the same extent as they have subsequently. It therefore followed upon the history he obtained from Mr Mathieson, that his symptoms and level of complaint had become worse over the last 10 to 15 years. He maintained his opinion expressed in the previous proceedings that the changes had been exponential based on the history he obtained from Mr Mathieson. He said Mr Mathieson’s symptoms had become worse at a more rapid rate more recently, which was consistent with the natural history of osteoarthritic deterioration.
16. In re-examination Mr Conroy said that by reason of Mr Mathieson apparently functioning well until a few months prior to presentation to Mr Anderson in 1994, that his symptoms commenced from then and subsequently his osteoarthritic condition had deteriorated considerably (Transcript, page 28). Additionally Mr Conroy thought that Mr Mathieson had deteriorated – upon clinical examination – between first consultation with him in 1999 and at subsequent consultation in 2004.
scott mathieson
17. Mr Mathieson was recalled principally to answer some questions from Mr Lenczner concerning the nature of his gold prospecting. The purpose of the questioning arose from assumptions Mr Conroy had made concerning the extent of Mr Mathieson’s mobility subsequent to the arthroscopy in 1994 and his ability to walk on uneven and undulating ground whilst prospecting. Mr Mathieson said that he did prospect for gold in outback Western Australia and camped at, or near, places where prospecting was undertaken. He said the ground was even and was predominantly red dirt and scrub. On balance, nothing, I think, turns on this evidence.
russell miller
18. Mr Miller is an orthopaedic surgeon who examined Mr Mathieson at the request of his solicitors and provided a report of 13 November 2004. Mr Miller has a special interest in knee surgery and completed a Master of Science thesis upon the biomechanics of the patellofemoral joint.
19. In his report Mr Miller expressed the opinion that Mr Mathieson had an underlying patella/femoral malalignment which was developmental in nature with resulting episodes of patella instability in both knees. He concluded that Mr Mathieson suffered from patellofemoral realignment together with subsequent osteoarthritis involving the patellofemoral joints and more recently, the medial tibio/femoral joint. It was his opinion that there was an established pattern of deterioration which appears to have had its onset in approximately 1994.
20. In evidence, Mr Miller said that Mr Mathieson developed arthritis initially in the patellofemoral joints around the period in 1994. When asked to explain the mechanism of this phenomena he said the lining of the joint is wearing away and it wears away to a point where there is gross wearing away or even down to bone so there is bone on bone and then the symptoms usually escalate about that time (Transcript, page 44). He said that from 1994, until examination in 2004, Mr Mathieson’s condition had become progressive and the subsequent changes were described by him as being severe. He regarded Mr Mathieson’s condition – in terms of pathophysiology – as having changed.
21. In cross-examination, Mr Miller said that prior to 1988 there would have been chondral changes but not osteoarthritis. In his opinion Mr Mathieson initially suffered from patellofemoral instability (described as the knee caps slipping out) and later suffered from osteoarthritis. At that time he said the patellofemoral instability no longer existed. He said Mr Mathieson had suffered from two separate and distinct conditions with an intervening transition (Transcript, page 46).
22. Mr Miller said that he was aware that Mr Mathieson had surgery in 1964 and 1972 in a procedure known as Hauser, a procedure which is no longer undertaken but was well recognised as precipitating an increased rate of arthritis. The consequential arthritis, he said, was the realignment of the patella to the patellofemoral joint altering the load bearing upon the patella causing it to wear.
23. When it was suggested to him that the notes of Mr Anderson, the surgeon in 1994, referred to bone on bone – this being an apparent reference to a problem of longstanding – Mr Miller said that he thought that such a problem would have existed for probably more than one year, but said that it was unlikely that the problem would have existed for about six years (that is prior to 1988). He said that he was reassured about this opinion because upon the history he obtained, the description of clinical symptoms given to him by Mr Mathieson suggested that whilst he was not free of restriction and pain, he had been satisfactorily coping. Indeed he said that upon the history that he obtained, the restrictions and pain recalled by Mr Mathieson commenced from about 1994 (Transcript, page 50). Nonetheless, Mr Miller did agree that if there was a history of Mr Mathieson having problems with his knees at an earlier point of time, consideration would need to be given to whether the osteoarthritis occurred at a time earlier than 1994. He said this would also depend upon the level of symptoms. He said that the complaints of pain following both episodes of surgery would not necessarily be indicative of the presence then of osteoarthritis, but would be more likely to indicate the initial symptoms following surgery. Additionally he said that persons who have surgery to their patellofemoral joint rarely have a total recovery and do complain of persisting symptoms. He said that if there had been osteoarthritis at some time following the surgery, but prior to 1988, the clinical symptoms would have to be in the range of severe pain, significant restriction of activity, pain at rest and at night, swelling and crepitus. Additionally he said that even with that clinical picture there would need to be an assessment of Mr Mathieson’s clinical status to be sure that osteoarthritis was responsible for those symptoms and not some other process.
24. In response to persisting questioning by Mr Lenczner, Mr Miller agreed that the transition away from patella fermoral instability to the condition of osteoarthritis commenced at the time that Mr Mathieson’s symptoms deteriorated. It was his opinion that that period commenced shortly prior to attending Mr Anderson in 1994. Indeed it was his opinion that in the weeks immediately before November 1994, Mr Mathieson’s osteoarthritis became clinically manifest; although he did acknowledge that the arthritic deterioration in Mr Mathieson’s knees would have taken many years to develop (Transcript, page 53 and 54). He said a process had probably existed in Mr Mathieson’s knees of cartilage degeneration or deterioration resulting in bone upon bone, precipitating acceleration in the process of deterioration. He agreed that the process of denuding to bare bone would have taken a period of between months or years but said there was no typical pattern of degeneration. He cited an example of a patient who recently demonstrated severe arthritis with bone on bone but who had not demonstrated (radiologically) evidence of arthritis 12 months previously.
25. Mr Lenczner then put passages of Mr Mathieson’s evidence to Mr Miller for comment where Mr Mathieson described difficulty in completing his work as a gyprock fixer, and difficulty climbing ladders. Mr Miller said that those symptoms could be indicative of an underlying disease process but would not establish it. He said that those types of complaints could equally be consistent with musculoskeletal complaints. Mr Miller said that it was uncertain whether the applicant had suffered from recurring dislocations of his knees subsequent to surgery and agreed with a suggestion put to him that a chondral flap with cartilage hanging off could be an explanation of Mr Mathieson’s pain and an indication of a degenerative process. He said that pieces of cartilage within the knee joint would take months or years to accumulate and said that phenomena was a common pattern but not a usual pattern. The distinction, he said, was that a usual pattern is something which usually occurs (which he dismissed in the case of osteoarthritis because he said there were circumstances where the disease process occurs frequently or a disease of long standing with fluctuating symptoms). Alternatively, he said, that a common pattern occurs where a condition is seen frequently. It was at this point of the cross-examination that Mr Miller agreed with Mr Lenczner that a degenerative arthritic process frequently occurs over a period of decades (Transcript, page 63). However, whilst it was the opinion of Mr Miller that upon the history he obtained, Mr Mathieson’s disease process did not occur over a period of decades, if it was found that in the 1970’s and 1980’s Mr Mathieson did have tenderness and soreness in his knees, such features could be consistent with but not indicative of an osteoarthritic disease process then being present (Transcript, page 64). He said that in the absence of an arthroscopy a treating doctor would form an opinion based on the symptoms and complaints then being made. Additionally he said that the possibility could not be excluded of the applicant having pain throughout the 1970’s and 1980’s by soft tissue damage (associated with scarring following the surgery).
26. In concluding cross-examination, Mr Miller agreed that Mr Mathieson’s evidence of having to rely on the strength of his arms to pull himself into a Haulpak truck (rather than use his legs to climb a ladder) together with his description of dislocations, soreness, tenderness, persisting difficulty and an inability to squat, did suggest the presence of arthritis.
27. In re-examination, Mr Miller said that Mr Mathieson did suffer from a degenerative arthritic process in his knees which became significantly worse from 1994 upon the history that he had obtained. He regarded the level of degeneration to be greater than moderate and described it as being moderate/severe.
michael shannon
28. Mr Shannon has been in practice as an orthopaedic surgeon for 30 years and in addition to his Membership of the Australian College of Surgeons, he is also the current President of the Australian Knee Society. He said that he has a special interest in the practice of knee surgery. He prepared two reports of 22 March 2001 and again of 9 August of 2004.
29. Mr Shannon said that he was aware of a report prepared by Mr Miller and said that he was “surprised” at the opinions expressed. Mr Shannon said that the report of the arthroscope of 1994 demonstrated Grade 4 osteoarthritis which he regarded as being “the maximum grade” in the patellofemoral joint. He also noted that changes were present in the medial compartment. It was his opinion that the changes in Mr Mathieson’s knees did not develop in the early 1990’s but had been “progressive changes occurring over many years. And in my view the changes were initiated by the original dislocations back in the 1960’s”. He said that had he observed arthroscopies from the 1970’s and 1980’s, he would have no doubt that degenerative changes would then have been present. He acknowledged that the applicant may have had some pain and symptoms from soft tissue injuries associated with scarring or tendon damage, but his opinion remained unchanged. He acknowledged that Mr Mathieson had undertaken a Hauser procedure to stabilise his patella but that procedure was well known as accelerating the progress of osteoarthritis in a patellofemoral joint as it involves an increase to the load bearing across the patellofemoral joint. It therefore followed that the degenerative changes were consistent with the presence of osteoarthritis for many years and not with soft tissue injuries.
30. Mr Lenczner provided Mr Shannon with a history – evident from Mr Mathieson’s evidence in the previous proceedings and from the contents of medical reports – of difficulty upon walking after the previous surgery, difficulty climbing ladders, his legs giving way, complaint of tenderness of pain and dislocation, consumption of painkilling medication, inability to squat, gradual increase in pain and having to use his arms to enter a HaulPak truck at Mt Newman. Mr Shannon said that history was consistent with a person suffering the gradual progression of osteoarthritis in his knees. He doubted that Mr Mathieson was suffering from true dislocations of his knees – as he complained – as opposed to a chondral flap mimicking a feeling of insecurity in the knees and therefore being understood to be dislocation. A chondral flap, he said, was a consequence of the destruction of articular cartilage where eventually a person would suffer “bone on bone”.
31. In cross-examination, Mr Shannon said that in his experience the rate of degenerative osteoarthritis did vary between persons. When he learnt of the example given by Mr Miller of a person demonstrating osteoarthritic changes 12 months after an arthroscope failed to detect any changes, he said that such an occurrence would be “fairly unusual” unless there had been major trauma. He said that despite the suggestion put to him, that the notes of Mr Mathieson’s treating general practitioner failed to disclose any complaints of knee pain from the early 1990’s, he was not prepared to assume that there had been an absence of a degenerative disease process in the applicant’s knees. Additionally, he said that it would be “highly unlikely that his knees suddenly became asymptomatic in 1990” (Transcript, page 90). Further, he dismissed the suggestion put to him that the clinical features of Mr Mathieson suggested sudden change because the presence of “bone on bone” as demonstrated at arthroscopy “means that it has been there for years and the history that he had is typical of an episode of aggravation of osteoarthritis which we commonly see in these Courts” (Transcript, page 90). It therefore followed that there could not have been a “sudden progression” of the degenerative changes in 1994 at or about the time of the arthroscopy or in the period leading up to that time. Mr Shannon said that such a scenario was “unlikely” and he thought that it was “totally illogical to suggest that”. He said that Mr Mathieson had reached the stage by 1994 where he was no longer able to cope and he attended for treatment. In 1994, he said that Mr Mathieson experienced an episode of aggravation of an arthritic process which had been progressing over a period of 20 years. He acknowledged that Mr Mathieson has suffered significant deterioration in his knees since 1988 but he said that was a consequence of the natural progression of the underlying disease process. The changes in 1994 were not “sudden” but were a manifestation then of the underlying disease process which caused the need to attend a medical practitioner and upon arthroscopy the presence of osteoarthritis was demonstrated. He said that the pre-existing symptoms had become worse and the function of the legs had changed, but the “quality of his condition” had not changed because he continued to suffer from osteoarthritis. He said that the condition had become more symptomatic but it was not a different condition. He said the increased symptoms were the inevitable manifestation of the progress of osteoarthritis (page 98). As he was pressed on this point, Mr Shannon said “I don’t know how many times I have to say it. It is not a change in the pathology. The pathology is exactly the same. He had osteoarthritis, it has been getting progressively worse over the years; inevitably it was going to become significantly symptomatic or more symptomatic than it had been and that is what happened”.
clive jones
32. Mr Jones has been an orthopaedic surgeon for 30 years and is a Member of the Hip and Knee Arthroplasty Society. He examined Mr Mathieson on two occasions and provided reports of 23 September 2001 and 12 August 2004. It was his opinion that Mr Mathieson suffered from a degenerative osteoarthritic process which had been present for many years and had existed well prior to 1 December 1998. Mr Jones said that he was aware of opinions expressed by Mr Miller but with which he did not agree. He said there had not been any change in the pathophysiological condition after 1 December 1988 but rather, Mr Mathieson had suffered from a slowly progressing degenerative patellofemoral joint osteoarthritis for many years and “nothing has changed” (Transcript, page 111).
33. Mr Jones said that he was aware that Mr Mathieson had undergone a Hauser procedure. He said that whilst the procedure was well known as precipitating osteoarthritis, it was unlikely that a person would subsequently develop dislocations. He said it was more likely that Mr Mathieson had had “catching or locking episodes in the patellofemoral joint” which were mistaken as being dislocations of his kneecaps.
34. In cross-examination, Mr Jones said that an osteoarthritic process involving the wearing away of cartilage in the kneecap exposing bone, is a process of between 10 and 20 years in duration. It followed that he disagreed with the opinions expressed by Mr Miller that the osteoarthritic changes would have set in within months or years immediately prior to 1994. He agreed that the rate of progression of osteoarthritis is variable but when commenting on the example given by Mr Miller of a person demonstrating osteoarthritis 12 months after an arthroscope did not evince any such disease process, he said that in the absence of significant trauma to the front of the knee or a patella fracture “it just doesn’t happen”. He said that trauma will cause rapid onset of degenerative arthritis, particularly in the patellofemoral joint, but the type of trauma would be that expected by a person injured in “car crashes or come off motor bikes at high speed. This sort of trauma. Not somebody who just has a tumble and bumps their knee” (Transcript, page 115).
35. Mr Jones acknowledged that Mr Mathieson had the increased presence of symptoms at or about 1994, but said the underlying disease process did not then change. He said there was no evidence of any change in the underlying pathology and therefore dismissed the increased presence of symptoms as indicating any change in the pathology. When pressed on this issue, Mr Jones said that there was “possibly” a change in the underlying pathology but he rejected the suggestions put to him that there had been a decline in the quality of the function of Mr Mathieson’s limbs (Transcript, page 120).
conclusions and reasons for decision
36. The hearing of this application was considerably assisted by the analysis provided by Weinberg J in the hearing of the appeal against this application at first instance. By reason of His Honour’s conclusions, the hearing which has given rise to this decision, involved a focus upon medical evidence which was of a quality and type, not available, or heard, at the first hearing. By reason of the evidence heard in these proceedings, the considerable assistance of Counsel, and a review of relevant authorities, I can no longer maintain the decision previously made. For reasons which follow I am satisfied that the reviewable decision made on 28 September 2000, should be affirmed. That is to say, Mr Mathieson is not entitled to compensation for permanent impairment with respect to osteoarthritis of the patellofemoral joints of both knees.
37. The claim by Mr Mathieson was to recover compensation for an impairment of his knees arising out of injury which occurred before 1988 but which became permanent subsequently. In the alternative it was put that there had been a qualitative and quantitative deterioration in his knees subsequent to 1988 of a degree greater than 10 per cent thereby giving rise to an entitlement under the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act).
38. Entitlement to lump sum compensation for impairment under the 1988 Act – in circumstances where injury occurred prior to the commencement of the 1988 Act (1 December 1988) is to be found at s 124 (3) of the 1988 Act. Weinberg J expressed his disappointment that there remained continuing uncertainty as to the construction of s 124 (3). He referred to the Federal Court decisions of Brennan v Comcare (1994) 19 AAR 542, Comcare v Levett (1995) 60 FCR 14, Department of Defence v West (1998) 27 AAR 550 (West) and Comcare v Maida (2002) 36 AAR 69, all of which discussed the operation of s 124 (3). His Honour noted that the concept “quantitative and qualitative” change emerged from the decision in West as did regard for a “pathophysiological condition”. That concept was discussed by Senior Member Dwyer and Member Maynard in Re Erdstein and Comcare [2004] AATA 798 (Erdstein).
39. Merkel J did not explain or define what he intended by use of the expression “pathophysiological”. Weinberg J, assisted by reference to the Oxford English Dictionary which gave the meaning of “pertaining to pathophysiology” which in turn was defined as “the physiological processes associated with disease or injury; the study of such processes”. Weinberg J decided that it appeared to him that “pathophysiological” captured “the essence of what Merkel J had in mind when he referred to a “qualitative” change in the nature of a permanent impairment”.
40. During the second hearing of this application, Counsel for Mr Mathieson referred to a publication by Carol Mattson Porth, “Pathophysiology; Concepts of Altered Health States” 3rd Edn, 1990. The preface in that publication is in the following terms:
“The meaning of pathophysiology, or physiology of altered health, reflects not so much the pathologic processes that take place but the physiologic changes and responses that produce signs and symptoms. These changes determine to a large extent whether a disease will be disabling and thus of concern to most health care professionals.”
41. In Erdstein the Tribunal referred to “Black’s Medical Dictionary” (40th Edn) in its interpretation of the concept of “pathophysiological change” and decided at paragraph 40:
“ “We consider that the term "patho-physiological condition" as used by Merkel J in West, at 571, was intended to refer to a change to the normal function of the body (physiology) due to the pathological (disease) process. With respect, we consider that the term "a change in the underlying pathological condition" conveys the same meaning.” ”
At this stage I should pause to note that Member Maynard, who was one of the two Members who comprised the Tribunal in Erdstein, is a medical practitioner.
42. The analysis of the discussions above of the concept of pathophysiology reveals attention being given to whether there has been any change, alteration, or difference to the body (physiology) by a disease (pathological) process. Weinberg J used the example of the pathophysiology of a person with HIV developing AIDS as a clear example of a change in the underlying pathophysiology with the emergence of a new condition. Mansfield J in Maida (paragraph 29) gives the example of a person with a pre-existing back injury suffering, by reason of the pathophysiological process, impairment of the legs. Clearly the injury to the legs constitute a change in the underlying pathophysiological condition of the back, because the leg injuries are a new and different injury. In Erdstein, the applicant had for many years, suffered from solar keratoses. The Tribunal rejected the submission put by Counsel for the respondent that there had not been any change in the underlying pathophysiological condition. It was found as fact that the applicant suffered from squamous cell carcinomas and basal cell carcinomas, which were different pathological conditions from solar keratoses.
43. Accordingly, can it be said in the present application, that there has been a pathophysiological or qualitative change in the applicant’s knees after 1 December 1988?
44. All of the doctors agreed that the applicant did suffer from a degenerative osteoarthritis process in his knees. Additionally, there was no dispute that in late 1994, Mr Mathieson approached an orthopaedic surgeon in Western Australia by reason of increased complaints of pain in his knees. An arthroscope was ultimately undertaken and the degenerative effects of osteoarthritis were then observed.
45. In his evidence, Mr Miller said that it was his opinion that the arthritis in Mr Mathieson’s knees developed “initially in the patellofemoral joint . . . around the period 1994” (Transcript, page 44). Thereafter he said there were “progressive” changes in Mr Mathieson’s knees with subsequent deterioration. It was his opinion that there were in fact pathophysiological changes (Transcript, page 44). Mr Miller agreed that the Hauser procedure was well known as precipitating patellofemoral arthritis. Whilst acknowledging the opinion of Dr Anderson, the surgeon in Western Australia in 1994, describing Mr Mathieson’s condition as “bone on bone”, Mr Miller said that it would be his opinion that the arthritic process causing the knee to deteriorate to that level, would have taken “probably more than one year”. He thought it was unlikely that it would take more than six years, by reason of the absence of complaints and the clinical description of Mr Mathieson’s symptoms.
46. Having heard the evidence of Mr Shannon, Mr Conroy and Mr Jones, and by reason also of the apparent absence of a comprehensive history taken by Mr Miller, I am satisfied that the opinions expressed by him were unsound and are not to be preferred. His opinions are against the weight of the evidence and are inconsistent with the symptoms described by Mr Mathieson as existing for many years. Additionally, I am unable to find on the probabilities that most of the pre-existing symptoms are explained by soft tissue injury consequent upon surgery. This was an opinion expressed by Mr Miller and dismissed by the other witnesses. Soft tissue pain would be likely following surgery, but would soon settle and not exist for more than 20 years.
47. I should add at this point, that I reject some of the evidence of Mr Conroy in re-examination. On the evidence learnt in the proceedings and from the documents read, the symptoms did not obviously date from 1994 (refer para 15 earlier).
48. As a fact, I am satisfied that Mr Mathieson suffered knee injuries during the course of his employment with the Navy. He had surgery to the right knee in June 1967 and to the left knee in June 1972. Thereafter, either by a combination of the Hauser procedure used to stabilise his patella, or by reason of the surgery itself, or a combination thereof, Mr Mathieson developed an inevitable and probably irreversible degenerative disease process affecting the patellofemoral joints of both knees, subsequently being diagnosed as osteoarthritis. Thereafter, Mr Mathieson made many complaints of pain, instability, discomfort and restriction affecting both knees. In 1994 he suffered a manifestation of increased symptoms in his knees and attended Mr Anderson. On the evidence of Doctors Shannon, Conroy and Jones, the increase in symptoms was the manifestation of the underlying osteoarthritic disease process which had been present for many years.
49. Whilst all of the doctors referred to variations between patients with respect to the rate of arthritic degeneration and the ability of persons to either endure symptoms or readily complain, Mr Miller gave an example of a person who was found to have osteoarthritis present when twelve months previously an arthroscope failed to detect the presence of a disease process. The other three doctors said that in their experience, such a phenomenon was unlikely in the absence of severe trauma to the patella.
50. In the present case there was no evidence of Mr Mathieson suffering any trauma to his knees after 1 December 1988 – or indeed at or about 1994 – which would give rise to the commencement and ultimate symptomatic manifestation of osteoarthritis at presentation to Mr Anderson in 1994.
51. I am satisfied, and find as a fact, that the degenerative osteoarthritic process affecting Mr Mathieson’s knees had been present for many years and long before 1988.
52. There is no dispute between the parties that there was a significant increase in symptoms at 1994. Upon the evidence of Doctors Shannon, Conroy and Jones, I am satisfied, and find as a fact, that those increased symptoms were the manifestation of the underlying disease process. I am not satisfied that pathophysiologically there was any change in the underlying condition or any new condition that emerged.
53. In Maida, Mansfield J adopted submissions put to him – which I also adopt for the purposes of this decision – that:
“ “20.1The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment.
20.2If there is no change in the underlying patho-physiological condition causing an impairment, any worsening of that impairment will not constitute a new or distinct impairment.
20.3A significant worsening of an impairment may constitute a new or distinct impairment, but only if there has been a change in the underlying patho-physiological condition, so that there has been a qualitative change to the impairment – that is, the development of a new impairment.” ”
54. Mr Maida suffered from schizophrenia which had been diagnosed prior to 1 December 1988. His Honour observed that the evidence before the Tribunal disclosed only an increase in the level of symptoms which was consistent with the evidence of Mr Maida himself that the condition created a greater impact upon him than it did at 1988. However there was an inability to point to any evidence to explain whether, or how, there had been any pathophysiological change in the condition. Mansfield J referred to the report of a psychiatrist who noted “. . .from the qualitative point of view his symptoms have fluctuated and from the quantitative point of view they’ve certainly become more severe”. His Honour decided that that opinion did not indicate
“ “A change in the underlying pathological condition of the respondent so as to support a finding of a qualitative change in his condition in the way explained by Merkel J in West . . . the condition of schizophrenia suffered by the respondent in April 1988 is the same condition as that from which he has continued to suffer, and that it presented a permanent impairment prior to December 1988.” ”
55. In my decision of 26 September 2002 (paragraph 83), I decided that quantitatively and qualitatively the worsening suffered by Mr Mathieson constituted a new impairment. Having regard to the above reasons, that finding was incorrect. The impairment pre-existing 1988 did not worsen, but rather, there was a symptomatic manifestation of the osteoarthritic disease process at a level that was greater and more severe or intense than existed prior to 1988.
56. Having regard to the evidence heard in these proceedings, the analysis of the relevant law as decided by the authorities referred to above, and by reference to the assistance given by Counsel, I am satisfied that Mr Mathieson did suffer a progression of a disease of osteoarthritis without any change in the underlying pathophysiological condition. Accordingly there has not been the development of a new impairment.
57. In all of these circumstances, the reviewable decision is affirmed.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 3 and 4 March 2005
Date of Decision 22 September 2005
Counsel for the Applicant Mr P Triggar
Solicitor for the Applicant KCI Lawyers
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Phillips Fox
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