McDermott and Australian Postal Corporation
[2003] AATA 848
•29 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 848
ADMINISTRATIVE APPEALS TRIBUNAL )N2001/900; N2002/571; N2002/959
GENERAL ADMINISTRATIVE DIVISION Re COLIN McDERMOTT Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal P. J. Lindsay, Senior Member
Dr M.E.C. Thorpe, MemberDate29 August 2003
PlaceSydney
Decision The Tribunal affirms the decisions under review. .............................
P.J.Lindsay, Senior Member
CATCHWORDS
WORKERS COMPENSATION – injuries to knees – liability accepted for injuries to knees post traumatic stress – aggravation of pre-existing osteoarthritis – whether liability for injuries to knees and post traumatic stress should cease – whether osteoarthritis asymptomatic prior to knee injuries – whether effects of aggravation continue - decisions under review affirmed
Safety, Rehabilitation and Compensation Act 1988 ss. 4, 14, 24, 27
Comcare Guide to the Assessment of the Degree of Permanent Impairment, Australian Government Publishing Service, Canberra, 1989.
Martin v Australian Postal Corporation (1999) 29 AAR 199
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19
Comcare v Amorebieta (1996) 66 FCR 83
REASONS FOR DECISION
29 August 2003 P. J. Lindsay, Senior Member,
Dr M.E.C. Thorpe, Member1. Colin McDermott (the applicant) has made three applications to the Tribunal in respect of decisions by the Australian Postal Corporation (the respondent):
· Proceeding N2001/900 concerns a determination made by a delegate of the respondent on 11 May 2001 denying liability for compensation for permanent impairment in respect of bilateral knee conditions. The determination was affirmed by the respondent on 18 June 2001.
· Proceeding N2002/571 concerns a determination made on 22 January 2002 that the respondent was from that date no longer liable to pay compensation. By its decision on 17 April 2002 the respondent affirmed the determination that from 22 January 2002 the respondent was no longer liable for compensation for the applicant's condition being multiple soft tissue abrasions to both knees, right ankle, left shoulder and right wrist sustained in an accident on 6 July 1994.
· Proceeding N2002/959 concerns review of a decision made by a delegate of the respondent on 6 May 2002. This was a further decision by the respondent to deny all liability with respect to the applicant’s injury of 6 July 1994 including any consequential injuries or medical conditions. It was made in response to the applicant’s assertion that as a result of the accident on 6 July 1994, the applicant developed stress, anxiety and a depressive condition.
2. At the hearing, Mr Perry of counsel appeared for the applicant and Mr Skinner of counsel appeared for the respondent. The applicant gave evidence. The Tribunal had before it three sets of documents produced pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T Documents), one relating to proceeding N2001/900 (T), a second relating to proceeding N2002/517 (Ta), and a third relating to proceeding N2002/959 (Tb), as well as the exhibits tendered during the hearing.
Background
3. Mr McDermott was born on 26 January 1963 and commenced work with the respondent in 1990 as a Postal Delivery Officer. Since 1992 he has had a number of work related injuries to his knees. This matter relates to an accident that happened on 6 July 1994 (T10). Mr McDermott claimed compensation on 14 July 1994 (T14). On 15 July 1994, the respondent accepted liability for soft tissue abrasions to both knees, right ankle, left shin, left shoulder, and bruised kidneys (T17). Weekly compensation payments commenced. He resumed work on 4 October 1994 on selected duties (T46-157) and resumed full duties on 22 March 1995 (T46-157). He was paid compensation for subsequent periods when he was unfit to perform his normal work. In August 1996 he experienced problems with his knees. He did not work from September 1998 and had surgery on his right knee in August 1999.
4. On 23 June 1997 Mr McDermott made a further claim for compensation for post traumatic stress / depression caused by the accident on 6 July 1994 (T51). Mr McDermott noted on the claim that he first had time off work for this condition from 23 June 1997 (T51-165). The respondent sought opinions from Dr Lewin, Dr Walden and Dr Lee, consultant psychiatrists. The respondent accepted liability for post traumatic stress. Eventually the respondent decided to terminate liability for compensation in respect of any ongoing post traumatic stress (T108). This decision was not challenged by Mr McDermott at the time and the respondent ultimately determined that on and from 18 July 2000 he was no longer entitled to compensation in respect of his post traumatic stress condition (T112). It was clarified at the hearing that in respect of post traumatic stress, the respondent’s decision to cease liability took effect from 18 July 2000, but in respect of all other injuries sustained in the accident on 6 July 1994 liability ceased from 22 January 2002.
5. From July 2000 the respondent made a number of determinations denying liability for total incapacity in respect of certain closed periods. After receiving a report dated 19 October 2000 from Dr M Tarrant, orthopaedic surgeon, the respondent decided to deny liability for total incapacity from 18 September 2000 (T125). Mr McDermott continued to furnish medical certificates citing either or both osteoarthritis of the knees and post traumatic stress for incapacity but the respondent denied those claims.
6. Mr McDermott made a claim for compensation for permanent impairment of both knees as a result of the injury on 6 July 1994. The respondent determined that the impairments were less than ten per cent (T148) and by reconsideration dated 18 June 2001 (T150) affirmed the determination relying upon the opinions of Dr Tarrant and Dr Macauley, a consultant physician.
7. Mr McDermott made further claims for compensation during October and November 2001. The respondent denied liability for the periods of incapacity claimed on 17 December 2001 (Ta18). On 18 December 2001 the respondent requested further evidence from the applicant as to why compensation payments should be continued (Ta19). The applicant supplied this information on 14 January 2002 (Ta22). After considering this evidence, the respondent decided on 22 January 2002 to cease all further compensation relating to injuries arising out of the accident on 6 July 1994 (Ta24). The applicant sought reconsideration of this determination on 1 February 2002 (Ta25). The respondent affirmed the decision on 17 April 2002 (Ta28) and this led to the application of 24 April 2002 to the Tribunal (N2002/571). Later, on 29 April 2002, the applicant sought reconsideration of his stress claim. The respondent affirmed their denial of this claim on 6 May 2002 stating that the determination of 22 January 2002 ceased all liability under the claim (Ta30). Rehabilitation programs for the applicant ceased on 13 March 2002 (Ta31).
Issues
8. In opening Mr Perry referred to the accident on 6 July 1994 having caused problems for the applicant thereafter in relation to his knees and consequent impact on his capacity for work. Mr Perry also referred to the claim in respect of the psychiatric consequences that resulted from the accident. The issues before the Tribunal therefore are as follows:
(a) whether the respondent is liable to pay compensation under ss. 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (the Act) for any permanent impairment to Mr McDermott’s left and/or his right knee resulting from the injury he sustained in the accident on 6 July 1994.
(b) whether the respondent is liable under the Act to pay compensation, including compensation under ss. 24 and 27 of the Act, to Mr McDermott from 18 July 2000 in respect of post traumatic stress that he suffered as a result of the accident on 6 July 1994.
(c) whether the respondent is liable under the Act to pay compensation to Mr McDermott from 22 January 2002 in respect of the injuries, excluding post traumatic stress, that he sustained in the accident on 6 July 1994.
Evidence
9. Mr McDermott left school in 1979 at the end of Year 9. He initially worked in the private sector but after his position was made redundant joined Australia Post in 1990. He worked as a postal delivery officer at various delivery centres throughout the Newcastle region. He used a motor bike while on his delivery run. On 4 September 1992, while delivering mail in wet conditions Mr McDermott’s motorbike slid out from underneath him. He said he came off the bike and hit a fence. He felt minor pain in his arm and legs. He consulted Dr Chung on 5 September 1992 and was certified unfit for work for two days. He lodged a claim for compensation on 10 September 1992 and was paid compensation for his time off work. He subsequently returned to normal duties and did not have any ongoing problems with his right or left knee. In answer to Mr Perry, the applicant said he could not remember ever having a problem with his knees prior to this fall. However, in cross-examination Mr McDermott agreed that he saw his G.P. Dr Chung in April 1992 in relation to an injury to his left knee sustained in a hockey match. Dr Chung referred him to Dr B Jones, orthopaedic surgeon. Dr Jones provided a report to Dr Chung on 8 April 1992 (Exhibit R1) that recorded a history of Mr McDermott’s knees having given him a bit of minor trouble with sport over the years. Mr McDermott’s evidence was that in 1992, he was leading a very active sporting life, playing A grade touch football 3 or 4 times a week. He also played hockey and coached a netball team. In about 1993 he started to coach an under 9 rugby league team.
10. There was another work accident on 22 June 1993 when Mr McDermott fell off his motor bike as he tried to avoid a dog. He stopped suddenly and was sent over the top of the handlebars. He landed on his hands and knees with a fair amount of force. It took the skin off his hands and knees. His knees swelled up. He consulted Dr Chung and was certified unfit for work for two days and then fit to perform selected duties for two weeks. After this period he returned to normal duties. Dr Chung arranged X-rays. A report by Hunter Valley X-Ray of 23 June 1993 stated (T6):
There is no evidence of bony injury. Moderately advanced changes of osteo-arthritis are present in the knees, mainly involving the medial compartments and maximal on the left side. There is suggestion of right sided joint effusion.
He made a claim for compensation on 30 June 1993 and was paid compensation for his time off work. On 12 July 1993 Dr Swanson wrote to the respondent noting that Mr McDermott had had pain in the right knee since the accident on 23 June 1993 and he diagnosed a strain injury (T5).
11. Mr McDermott said he injured his legs in an accident on 1 February 1994 when his motor bike slipped on a wet clay path. He was not sure which side of his bike he came down on. There was discomfort in his legs and a few grazes. His leg may have been twisted. He had one or two days off work but is not sure if he saw a doctor. He then returned to his normal duties.
12. The incident that is the focus of Mr McDermott’s claim occurred on 6 July 1994 while he was performing his delivery run. A car pulled out of a driveway in front of him, causing him to brake heavily, with little time to stop. His motor bike hit the ground on his right-hand side with great force and then the bike and Mr McDermott flipped into the car. He ended up with his left shoulder in the car’s rear wheel arch. He had contusions on his right arm, at the elbow and shoulder, and on both legs. Both his knees were sore as well as his right ankle. He also had severe pain in his abdomen. Mr McDermott was picked up from the accident site by one of his managers who took him to a medical centre in close proximity to his workplace. Dr Swanson, G.P, there attended to him. He was later admitted to hospital for treatment of his abdominal pain and his passing blood. He was not admitted in relation to his knees. Dr D Jackson, general surgeon, informed the respondent on 15 July 1994 (T16) that Mr McDermott was discharged from the Mater Hospital on 10 July 1994. Dr Jackson’s diagnosis was contusion of left kidney and contusions and abrasions. He wrote ”On examination there is still tenderness in the left loin. His left shoulder and right knee are now back to normal. There is a healing abrasion on his right forearm. He will have a repeat intravenous pyelogram and I shall see him again next week.”
13. In cross-examination Mr McDermott said that he felt the respondent should have sent him straight to the hospital rather than taking him to a medical centre, but he denied this failure was the reason for his claim.
14. On 7 July 1994 Dr Swanson wrote to Australia Post (T13) stating that Mr McDermott’s injuries were consistent with the accident on 6 July 1994. Dr Swanson listed the injuries: bruised left kidney; abrasion and skin loss to the right forearm, left shoulder, left back and right knee; and musculo-ligamentous injuries to lower back, right knee, left knee and left ankle. The report dated 7 July 1994 by Hunter Valley X-ray (T12) concerned the applicant’s right knee and right ankle. In relation to the knee it stated “There is a small joint effusion. There are degenerative changes resulting in joint narrowing mainly medially and spurring of the tibial margins and spines. No fracture or dislocation is seen. Joint effusion presumably post traumatic. Features of degenerative disease. No recent fracture.” As for the right ankle, the report stated “There is small joint effusion and mild soft tissue swelling. There is no fracture.”
15. Mr McDermott had intense pain all over and was bedridden for about three months following the accident. He used crutches and a walking stick. He lost about 18 kilograms due to his kidney problems. During this period he underwent various investigations, such as x-rays and ultrasounds, and was given physiotherapy.
16. Mr McDermott had time off work between 6 July 1994 and 4 October 1994 and received compensation. On returning to work he was put onto clerical duties, initially for six hours a day. He said that his knees were sore and he was hobbling around. Dr Swanson referred the applicant to the specialist, Dr Jones. In his report of 10 October 1994 (T25) Dr Jones stated that the applicant complained of pain in both knees, the right being slightly worse, grating and locking while squatting or rising. Dr Jones noted that the available investigations suggested moderately severe osteoarthritis in both knees particularly involving the patello-femoral joints. Dr Jones agreed with Dr Swanson that he did not think there had been any specific or discrete injury to the knees, or any localised pathology. In his opinion:
In the long run, if there are degenerative changes present, after injury they can sometimes be very resistant to settling but my experience has been that surgery really doesn’t have a significant role to play apart from perhaps providing a more definitive diagnosis in the event of failure of satisfactory resolution of symptoms.
Mr McDermott’s evidence was that he has had problems with his knees every day since this accident.
17. In the months immediately following the accident on 6 July 1994 Mr McDermott began to experience psychological problems and his evidence was that he was not functioning on certain fronts. After his return to work, Dr Swanson referred him to Mr Raymond Dorling, a clinical psychologist. Mr Dorling’s report dated 28 October 1994 (T28) noted that the applicant was concerned about the prospect of returning to his motor bike delivery run. The history included a reference to a general hesitancy on Mr McDermott’s part when he first started riding the motor bike for work. His sister’s boyfriend had crippled a side of his body in a motorbike accident. On returning to work, the applicant said he felt quite uncomfortable when walking near the motorbikes and was fearful when he saw his damaged helmet placed on the top of his locker. He was having flashbacks about the accident, which he said in evidence he still experienced though not as frequently. Mr Dorling stated that he thought the applicant had suffered a post-trauma reaction to the accident. To overcome the applicant’s apprehension about riding motorbikes, Mr Dorling arranged for him to participate in a desensitization program including relaxation techniques.
18. At the applicant’s request he was referred to Dr M Tarrant, orthopaedic surgeon, for a second opinion. Dr Swanson examined the applicant by on 12 January 1995. In his report of 25 January 1995 (T32) Dr Tarrant noted that Mr McDermott suffered a haematoma of the left kidney as a result of the accident on 6 July 1994. The applicant complained about problems with his knees while crouching, squatting and kneeling, and a clicking sensation. He was concerned that his symptoms had continued for six months since the accident, without improvement. Dr Tarrant found Mr McDermott to have bilateral femoral crepitation, more so on the left and squatting caused a lot of pain. Dr Tarrant noted the opinion of Dr Jones that the accident did not cause a specific injury to the knees. Unlike Dr Jones, however, in Dr Tarrant’s opinion an arthroscopy would possibly help therapeutically as well as demonstrating the contribution of the applicant’s long standing degenerative osteoarthritis to his current symptoms. Dr Tarrant noted that the applicant “ … states that he was not aware of problems [with his knees] prior to this and was playing sport …”. Dr Tarrant carried out the bilateral arthroscopy on 31 January 1995 and he noted quite marked grade 4 arthritis in the medial compartment of both knees.
19. Following the arthroscopy, Mr McDermott was off work until around 9 March 1995. He then used to ride a bicycle for three to four hours on his delivery run. Eventually he returned to his full delivery duties on his motorbike. Mr Dorling reported on 10 March 1995 that the applicant’s “life situation appears to be good” (T38). Mr McDermott’s evidence was that around this time he began to notice that he was having difficulty supporting himself on the motorbike. Stopping the bike or riding with his legs bent for a period of time caused him pain in his knees which did not go away. In a report dated 12 April 1995 to solicitors then acting for the applicant, Dr Tarrant noted that he had not been given a history of pain and swelling of the knees following an accident in mid 1993. He went on to state:
Assuming that he has had asymptomatic, long standing arthritis then the motor vehicle accident can aggravate these. Often this aggravation would last five to seven years and the general opinion is that as time goes on more and more relates to arthritis and less and less relates to the ill effects of any accident.
20. Dr C Hollo, an occupational physician, informed the respondent on 12 April 1995 that the applicant’s knee injury had virtually resolved (T40). Dr Hollo reviewed the applicant again on 25 May 1995 and noted that the applicant was not having difficulties, including psychological problems, with riding the motorbike at work. Dr Hollo reported (T42):
On questioning him about the condition of his knees, he stated that he was having ongoing mild discomfort with the lateral aspects of both knees. … On examination of both knees, there was crepitus and mild tenderness along the lateral tibial plateau bilaterally.
…
I do not consider that there is any ongoing disability in performing his work as a postal delivery officer or for that matter any other activity of daily living … I would consider that his participation in (touch football and competition hockey) has contributed to development of degenerative changes in his knees. I understand that X-rays performed prior to the accident of 1994 have reported evidence of degeneration in the knees. In comparison, Mr McDermott has been employed by Australia Post for 4 years, a much shorter time than playing football. Apart from the accident sustained last year, I cannot attribute any other factor in Mr McDermott’s employment that would lead to premature degenerative changes in his knees.
21. Mr McDermott continued to have pain in his kidney throughout much of 1996. His evidence was that his psychological problems gradually became worse. On 27 July 1997 he lodged a claim for compensation in respect of post traumatic stress and depression (T51). On 10 September 1997 he provided Australia Post with statement (T53) in which he said:
Some months after the accident I became very withdrawn & reclusive. It seemed to have a great impact on my life.
Whilst riding the motorbike I feel nervous & anxious to the point where I am mentally and physically exhausted. Loss of appetite & enthusiasm for life. Loss of concentration. I shut myself away from my family & friends, this has a very great effect on them as I am not participating in my regular family commitments. …
I have not been able to compete in any sport and this depresses me greatly as I was a keen sport competitor.
On 24 July 1997 he had his initial consultation with Dr G Vickery, psychiatrist. Around this time Mr McDermott said in evidence that he would come home and lock himself away from everybody, including his de facto partner and her children. His knees were also causing constant pain. He said he was scared of everything, scared of the accident happening again and he was scared of being around people. He said he had countless consultations with Dr Vickery.
22. The respondent arranged Dr Lewin, consultant psychiatrist, to examine Mr McDermott on 25 November 1997. The history obtained was of the multiple injuries received in the accident of 6 July 1994 and, in the months that followed, Mr McDermott’s being fearful of the long term repercussions from the injuries, particularly the haematoma at the site of the injury to his kidney. Dr Lewin reported on 1 December 1997 (T54) that the applicant expressed considerable dissatisfaction with the way in which the respondent handled the aftermath of the accident. There were enduring symptoms associated with riding the motorbike but the acute stage of post traumatic reaction had passed. Mr McDermott was unable to specify any particular situation that led to a decompensation three or four months prior to the examination, although he described feeling generally fed up with his continuing symptoms of anxiety. For a short period he was preoccupied with suicidal thoughts. His relationship of six years with Leanne was deteriorating due to his irritability and withdrawal. Dr Lewin noted that the applicant was nervous about driving and was very apprehensive about riding his motorbike at work. At this juncture, Mr McDermott was seeing Dr Vickery every fortnight and was taking an antidepressant. Dr Lewin’s diagnosis was as follows:
I diagnosed an acute stress reaction most notably with symptoms of anxiety and depression in the months following the episode. He has a number of enduring focal anxiety symptoms. These are understood as conditioned anxiety symptoms relating to riding the motor bike. Mr McDermott has not developed a more generalised Anxiety Disorder.
…
At this stage there appears to be a causal relationship between his current exacerbation and the incident in July 1994. The link is through enduring anxiety symptoms and the development of a range of reactive depressive symptoms which have been evident in recent months. This sequence of events is not uncommon in the circumstances.
23. In preparation for District Court proceedings under the Motor Accidents Act, Mr McDermott’s solicitors at the time obtained a report from Dr Vickery dated 29 September 1997 (Exhibit A4). Dr Vickery stated that on 24 July 1997 the applicant initially presented with a history of several years of mood swings which he related to the accident on 6 July 1994. Mr McDermott said he had picked up a lot of viral and other illnesses during intense treatment after that accident and they caused significant weight loss, depression and increased irritability. On interview Dr Vickery found Mr McDermott to be significantly depressed and agitated. Dr Vickery considered that the applicant’s physical deterioration from malnutrition and recurring viral infections as playing a major part in his recent physical and emotional deterioration. The applicant reported anxiety about riding the motorbike at work and was looking for a transfer at Australia Post. Dr Vickery prescribed anti-depressants and thought the applicant would improve if given the transfer and if he could lift his physical condition and thus his self-esteem. The respondent continued to receive accounts from Dr Vickery and eventually sought a report from him. Dr Vickery advised on 23 November 1998 (T59) that he was treating the applicant for a chronic pain disorder, depression and anxieties over his work environment resulting from the accident in July 1994. Dr Vickery noted that there had been a significant improvement until a recent relapse but he was hopeful that ongoing treatment could cease in about six months time.
24. On 3 March 1998 Mr McDermott commenced proceedings against the driver of the vehicle from the 1994 incident. He obtained a number of medical reports in support of his claim, including reports from Dr Vickery and Dr Swanson. On the advice of the solicitor he withdrew this claim. He could not recall why.
25. In late 1997 and during 1998 Mr McDermott was doing his delivery run on foot. He noticed a worsening of his knee condition, but his evidence was that he had never been free of symptoms since the accident in any event. He said that it was in his general ability to get around that he noticed the deterioration. Dr Tarrant reviewed him on 17 September 1998 and 19 October 1998, and reported to the respondent on 30 November 1998 (T60-193) that his recent increasing pain was associated with bilateral osteoarthritis. Dr Tarrant stated:
His current condition of primary [osteoarthritis] has been aggravated, precipitated, perpetuated and certainly contributed to his fall off the motorcycle although in the absence of an osteochondral fracture or an intra-articular fracture and where he has a family history and effectively bilateral symmetrical disease then one would think this his arthritis is long standing even if it was asymptomatic.
That diagnosis was based on the history that Dr Tarrant had been given, that the applicant had been asymptomatic prior to the accident in July 1994. Dr Tarrant noted Dr Jones’ opinion that the applicant had pre-existing osteoarthritis, which Dr Tarrant doubted in an asymptomatic man of 31 at the time of the accident. Dr Tarrant then observed “If the patient has no record of consultation, investigation, treatment or what have you and then have a well defined accident such as this then one would have to attribute his current symptoms to this accident as per the circumstance of 1994.” Dr Tarrant proposed rehabilitation for a condition that he thought would not go away.
26. The respondent arranged for Mr McDermott to be assessed by Dr Lee, consultant psychiatrist. Dr Lee was asked to advise whether the applicant’s post-traumatic stress was a hindrance to his rehabilitation and whether the condition was work related. On 16 March 1999 Dr Lee interviewed the applicant and he provided a report dated 22 March 1999 (T62-202). Dr Lee noted that Mr McDermott had not worked since September 1998. His symptoms included constant pain, suicidal thoughts and resentment towards Australia Post whom he believed to be unsupportive. Dr Lee considered the applicant to be a man whose self-esteem had been almost entirely due to his active sporting life. There were risk factors for insecurity, Dr Lee noting that the applicant’s parents were elderly and his mother died three years earlier from complications after knee surgery. Dr Lee thought the applicant’s mood was anger and was obsessed about injustice. The applicant was an anxious, dependent man who perceived that he was being excessively pressured by his employer. Dr Lee’s diagnosis was as follows:
I would see him as having a decompensated personality problem which has resulted in chronic pain syndrome. I believe that resentment and insecurity contribute to his perception of pain. He maintains his self-esteem by blaming Australia Post for his problems. …
Ongoing difficulties coping with his arthritis appear to be his major problem.
Dr Lee stated that the applicant would have developed his condition due to his pre-existing arthritis and vulnerable personality structure.
27. Mr McDermott had further surgical treatment to his knees by Dr Tarrant including an osteochondrial graft procedure (OATS procedure) to his right knee on 27 July 1999. A rehabilitation program that had been developed by CRS Australia was deferred for a few months while Mr McDermott recuperated. He had injury adjustment counselling from a social worker and physiotherapy. In addition to this assistance, the respondent arranged for the applicant to be assessed by Dr Casey, a consultant orthopaedic surgeon, and by Dr Lee.
28. On examination on 25 November 1999 Dr Casey found significant wasting of the right quadriceps but no fluid in either knee and the ligaments were intact. Dr Casey noted that Dr Jackson’s observations on 15 July 1994 that Mr McDermott’s left shoulder and right knee were then back to normal.In his report of 26 November 1999 (T81) Dr Casey referred to x-rays of the right knee taken on 7 July 1994 that showed degenerative changes involving early thinning of the medial joint space with osteophytes, particularly intercondylar and medial and some on the patella. He concluded that there were significant osteoarthritis changes in both knees before the accident on 6 July 1994. Dr Casey diagnosed patellar tendonitis and bilateral patello-femoral crepitus, more marked on the right. In Dr Casey’s opinion, the applicant’s bilateral osteoarthritis was quite severe and, due to his young age, the prognosis was guarded. There would be a progression of the condition, which would be slowed if the applicant were not to place undue stress on his knees. Dr Casey did not think it advisable for the applicant to return to duties involving motorbike deliveries.
29. Dr Lee provided a further report on 29 November 1999 (T82) stating that he found Mr McDermott presented as a depressed man who did not exaggerate his symptoms. Dr Lee diagnosed a current major depression. Dr Lee reported that the applicant seemed to have lost confidence in his physical abilities. In light of the opinions of Dr Casey and Dr Lee, the respondent continued compensation subject to future reviews.
30. On receiving advice from Dr Tarrant that Mr McDermott was unfit to return to work until March 2000, the respondent requested a report. In a comprehensive report of 7 April 2000 (T98) Dr Tarrant noted that the x-rays taken on the day after the accident and the follow up x-rays taken in September 1994 showed diffuse, bilateral arthritis which would not be expected in such a young man. Dr Tarrant was also surprised to find evidence of post traumatic arthritis following a compression type injury showing up a day after the accident. Dr Tarrant thought that the applicant should be encouraged to return to work. He acknowledged, however, that his psychological condition may be impeding his return to duties. In Dr Tarrant’s opinion:
The diagnosis is that of bilateral knee arthritis.
There may still be a connection between the condition and the injury of 6/7/1994 in that he may have post traumatic patello-femoral pain.
… as time goes on more and more relates to age, constitution, genetics and what ever cause and less and less to the ill effects of the work injury.
…
Although he has had an unfortunate accident one would not expect catastrophic long term outcome from this. I would state that it is ‘merely possible that a connection exists’.
…
If he had patello-femoral pain relating to the 1994 accident then this may last for 1 or 2 years and likewise aggravation of arthritis may last the same period and it is unusual to have such prolonged symptoms quite apart from his arthritis which will be ongoing.
31. Mr McDermott’s relationship with his de facto partner Leanne ended in December 1999. In April 2000 CRS Australia noted (T99) that he suffered a major psychological set-back when he was informed that Dr Tarrant considered him ready to return to work. Dr Vickery subsequently advised that Mr McDermott was unfit to return to work and diagnosed acute adjustment disorder following the break-up with his partner. Dr Vickery advised that adjustment disorders usually resolve within two to three months. Dr Vickery thought that prior to the break-up, the applicant had made significant progress and was psychologically ready to return to duties.
32. To assess whether Mr McDermott was still suffering from post traumatic stress resulting from the accident in July 1994, he was referred to Dr M Walden, consultant psychiatrist. In a report dated 17 May 2000 (T104) Dr Walden noted that during their interview, the applicant frequently mentioned how dependent he had been on his former de facto partner. He said he felt depressed, had no motivation to do things and did not bother to look after himself. He described intermittent suicidal ideation. As to returning to work, he said he did not know how he would manage with his knees and he had no confidence. Dr Walden thought he has had a chronically poor adjustment to his osteoarthritis and his personality was such that he taken a passive role in the management of his osteoarthritis. Dr Walden considered that Mr McDermott did not have symptoms of post traumatic stress from the July 1994 accident. In Dr Walden’s opinion he suffered from a major depressive illness in response to the break-up with his de facto partner and it did not have any association to the accident in July 1994. But she did add that Mr McDermott had coped very poorly psychologically with the restriction in his physical activities and had a low grade depression and stated as follows:
However, it [the major depression] appears to be superimposed on a chronic low-grade depression and poor adjustment to physical restriction and I do consider that there is a connection between this and the incident of 6 July 1994. Mr McDermott had a pre-existing vulnerable personality style in which he relied excessively on exercise and the admiration of others to maintain his self-esteem. When this was curtailed, he coped poorly and developed a low-grade chronic depression. I do not consider however that this has been so severe as to create a disability resulting in permanent incapacity for work.
33. On the basis of Dr Tarrant’s opinion that the applicant was fit for work and Dr Walden’s opinion “ … that the depression condition is no longer work related” (T110), the respondent denied liability for total incapacity from 28 June 2000 (T110). Mr McDermott returned to work on 17 July 2000 doing clerical duties. He was given clerical duties involving filing and some computer work and was working approximately four hours a day, three days a week. On 18 July 2000 the respondent informed Mr McDermott that it had ceased liability for compensation for the post traumatic stress component of his claim (T112). He did not last at work very long and he ceased on about 18 September 2000 because he was not coping emotionally.
34. CRS Australia reported on 1 September 2000 that Mr McDermott had missed a few days work on sick leave. Also he reported symptoms of anxiety in relation to the return to work and anger towards his employer in relation to the injury (T115). Subsequently, his low emotional state prompted the Crisis Team to monitor him regularly. He continued his consultations with Dr Vickery. Further claims for total incapacity were denied. Dr Tarrant reviewed the applicant on 19 October 2000 and noted excellent range of movement in both knees and no swelling. On 24 November 2000 (T126), Dr Tarrant provided the applicant’s solicitors with a report that stated:
Clinical findings were consistent and I felt that he had primary osteoarthritis which had been aggravated by his fall off the motorcycle.. Certainly his employment and accident had contributed to his current condition.
…
In respect to Comcare tables 9.2 and 9.5 he has 10% whole person permanent impairment in respect to his right knee and 10% whole person impairment in respect to his left knee as a consequence of the motor vehicle accident.
35. Subsequently Dr Tarrant provided a medical certificate covering incapacity for work from 30 November 2000 to 7 January 2001 due to a knee injury. The respondent asked Dr Tarrant to clarify since his report of 19 October 2000 stated that “all in all things look fine” in relation to the applicant’s right knee. Dr Tarrant replied on 10 December 2000 (T136) that he issued the medical certificate because the applicant was currently unable to work due to psychiatric reasons relating to his depression which Dr Tarrant thought were work related. The respondent denied liability for the period from 30 November 2000 to 7 January 2001 as Dr Walden’s opinion that the post traumatic stress was not work related was preferred to that of Dr Tarrant, an orthopaedic surgeon. CRS Australia continued with plans to get the applicant back to work, but in their report of February 2001 (T142) it was noted that Mr McDermott was in a low mood and had threatened to cause damage to Australia Post and to inflict self-harm. Dr Tarrant reviewed the applicant on 1 March 2001. He thought he was fit to return to work on suitable duties not requiring prolonged standing. The applicant’s GP Dr Mujic certified him unfit to 8 April 2001 due to his depression.
36. Dr Macauley, a consultant physician in musculoskeletal medicine and rheumatology, examined the applicant on 28 March 2001 and provided the respondent with a report of the same date (T146). Dr Macauley reported that the applicant complained of pain in both knees, the right being worse, and consequently being slow on stairs. There was also occasional pain in the right ankle and some difficulty walking down slopes. On examination Dr Macauley found left knee and right knee flexion were both to 120 degrees, with some wasting of the right upper thigh. From review of the x-rays Dr Macauley confirmed that the applicant had well developed medial compartment osteoarthritis of his right knee at the time of the accident in July 1994. Clinically there was evidence of bilateral osteoarthritis of both knees. Despite Mr McDermott’s claim that he was asymptomatic prior to the accident and was playing high level sport, Dr Macauley considered that this condition was then present and well advanced. In his opinion the applicant suffered a temporary aggravation of pre-existing osteoarthritis of the right knee. The applicant did not suffer any permanent impairment except in relation to his knees. Dr Macauley assessed the degree of whole person permanent impairment of each knee according to Comcare’s Guide to the Assessment of the Degree of Permanent Impairment (the Comcare Guide). He referred to Table 9.2 “Lower Extremity” and found the whole person impairment to be 10 per cent. As for apportionment, Dr Macauley considered that in respect of the right knee, 90 per cent related to pre-existing degenerative arthritis, and he attributed 10 per cent to the accident because there was evidence that he injured his right knee. In respect of the left knee, Dr Macauley thought 100 per cent related to pre-existing degenerative arthritis as there was no mention made of pain in the left knee until, some weeks after the accident. In a subsequent report of 12 December 2001 (Ta17) Dr Macauley stated that Mr McDermott’s 10 per cent impairment of the right knee was wholly related to his pre-existing degenerative arthritis because the accident in July 1994 was only a temporary aggravation of pre-existing osteoarthritis of the right knee. The Tribunal notes that Dr Macauley did not give any reason for the variation in this report. There was no change to his assessment of impairment of the left knee.
37. CRS Australia reported on 31 May 2001 (T151) that Mr McDermott had been recently treated by Professor Kumar of the Newcastle Mental Health Team. By this point Mr McDermott had not worked since 15 September 2000. It was noted that Professor Kumar thought the applicant would benefit from a return to work. Dr Tarrant stated in a report dated 31 May 2001(T152) that notwithstanding orthopaedic disability, the applicant was fit for light duties. Rehabilitation ended in June 2001 when Mr McDermott said he was unwilling to participate in a return to work program.
38. Dr Tarrant reviewed Mr McDermott on 23 August 2001 and noted (Ta6) that he was contemplating a return to suitable duties. On examination of both knees, Dr Tarrant diagnosed bilateral arthritis, more so on the left which he said was confirmed by x-rays taken on 22 August 2001.
39. A new rehabilitation program commenced from 21 August 2001 and was prepared by IRS Total Injury Management. Mr McDermott returned to work on 27 August 2001 performing administrative tasks including filing, data entry and photocopying. He was opposed to any upgrade in duties because he felt he did not have any control over his life. By October 2001 his hours had increased to five hours a day, three days a week but the applicant was soon struggling. Medical certificates citing post traumatic stress and the knee condition were provided by Dr Bergin, GP, for various periods when the applicant felt unable to cope. A report by IRS dated 13 November 2001 (Ta15) reported that the applicant had become acutely suicidal.
40. At the respondent’s request, Dr Casey examined the applicant again on 27 November 2001 and provided a report dated 28 November 2001 (Ta16). Dr Casey reported current symptoms of pain peripatellar in both knees caused by activity and swelling of the left knee being worse. Steps and inclines caused pain, and coming down was worse for the right knee. On examination Dr Casey found significant quadriceps and patellar tendonitis of the knees, more so on the right, and moderate fluid in the left knee. There was bilateral patello-femoral crepitus with palpable osteophytes, more pronounced on the left knee, particularly around the medial patella and medial femoral condyle. Dr Casey did not relate any of the arthritis or tendonitis in either knee to the accident in July 1994 or Mr McDermott’s employment with Australia Post. Further, the accident did not contribute to the development of arthritis. Taking into account Dr Jackson’s report dated 15 July 1994 that the left shoulder and right knee were back to normal and the x-rays taken shortly after the accident, Dr Casey concluded that the accident resulted in a minor injury to the right knee that settled down within a few days. Dr Casey recommended that the applicant continue with physiotherapy and strengthening of his thigh muscles, particularly on the right. Dr Casey suggested that the reported bleeding from the bowel be investigated to determine whether there was any interrelation with Mr McDermott’s arthritis. Dr Casey thought that Mr McDermott’s significant knee joint space narrowing and large osteophytes at his age suggested a likely total knee replacement about 10 to 15 years in the future. As for permanent impairment Dr Casey found there was a loss of less than half-normal range of movement of both knees. He assessed a ten per cent whole person impairment for each knee under table 9.2 in the Guide. The impairment of function of the lower limbs was assessed under table 9.5 at ten per cent for each knee.
41. On 17 December 2001 the respondent denied liability for multiple soft tissue abrasions to both knees and time off work for the periods 5 October 2001 to 8 October 2001 and 22 October 2001 to 23 November 2001 (Ta18). Dr Bergin’s medical certificates referred to the applicant’s bilateral osteoarthritis and post traumatic stress disorder as the reasons for his incapacity. Additional information from Dr Bergin noted that Mr McDermott was unfit for work due to chronic depression and anxiety but provided no details about the deterioration in his knee condition.
42. By determination dated 18 December 2001 (Ta19) the respondent notified Mr McDermott that it was ceasing further payments of compensation. The determination was made after consideration of the reports of Dr Casey and Dr Macauley, each of whom held the opinion that Mr McDermott currently suffered from bilateral osteoarthritis that was not related to the accident on 6 July 1994 or employment with Australia Post.
43. Dr Best, orthopaedic surgeon, examined Mr McDermott on 23 November 2001 and wrote a report dated 18 December 2001 for the applicant’s solicitors (Ta20). On examination Dr Best found a restriction of dorsiflexion of the right wrist by about 15 degrees and tenderness at the radial side of the right wrist. Dr Best found medial joint line tenderness and mild varus present in both knees. In his opinion Mr McDermott has a continuing and permanent disability in both knees due to osteoarthritis. Dr Best found the osteoarthritis would have been present before the accident in July 1994 but it would have been aggravated by the accident on a continuing and permanent basis. He considered fifty per cent of the present disability, which he assessed at 10 per cent under table 9.5 of the Guide, to be attributable to the accident. Additionally, Dr Best found a continuing and permanent disability of the right wrist due to osteoarthritis, which he said resulted from the accident. Dr Best assessed a whole person impairment of 10 per cent under table 9.4. In Dr Best’s view, the applicant was fit only for light work. A further report was obtained from Dr Best dated 20 June 2002 (Exhibit A3). He stated as follows:
I suggest that in fact the motorcycle accident of the 6 July 1994 did in fact bring forward the development of symptoms in both knees which would have occurred at some later date. However, the subsequent immobilization caused by the kidney injury also resulted in further aggravation of his underlying arthritis. I suggest that this whole episode of motor accident trauma followed by immobilization for a period of weeks was in fact detrimental to the progress of the arthritis and caused increased deterioration of the arthritis. Consequently I reconfirm my assessment that the episode of injury plus the subsequent immobilization is responsible for 50% of his present continuing disability.
44. Mr McDermott is working as a night sorter on four hour shifts. Prior to that he was performing clerical duties, which he said was an easier task since it requires less standing. He wears a knee guard to support his right knee. He takes Avansa for his depression.
applicable legislation
The following definitions in s.4 of the Act are relevant:
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment; …
Section 16 provides that the respondent is liable to pay for the cost of reasonable medical treatment for the injury. Section 19 deals with compensation for incapacity for work resulting from compensable injury.
45. The following provisions are relevant where there is a claim for permanent impairment:
Section 24 Compensation for injuries resulting in permanent
impairment(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
…
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
…
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
…
Section 27
Compensation for non-economic loss(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
…
Section 28 Approved Guide
(1) Comcare may, from time to time, prepare a written document, to be called the "Guide to the Assessment of the Degree of Permanent Impairment", setting out:
(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b) criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c) methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.
…
findings and consideration
46. Mr Perry submitted that an evidentiary onus lay on the respondent to prove that any aggravation of Mr McDermott’s osteoarthritis caused by the accident on 6 July 1994 has ceased. He acknowledged that the applicant’s case was not that the injury on 6 July 1994 resulted in osteoarthritis, merely that it aggravated the condition. In support of his submission that the accident has aggravated Mr McDermott’s osteoarthritis in both knees, Mr Perry referred to Martin v Australian Postal Corporation (1999) 29 AAR 199. He submitted that the accident has made a material, ongoing contribution to Mr McDermott’s symptomatology in both knees. He referred to Dr Tarrant’s report of 30 November 1998 where he stated that “at this stage the aggravation is permanent in that it has gone on for about four or five years, shows no sign of abating …”.. In further support of this submission, he referred to Dr Jones’ report of 10 October 1994 and the comment that “in the long run, if there are degenerative changes present, after injury they can sometimes be very resistant to settling … “. Mr Perry submitted that the opinions of Dr Casey and Dr Macauley, both of whom decided that the effect of the accident in July 1994 was temporary, should not be accepted because they considered the accident to have caused only a minor knee injury. Dr Best, on the other hand, should be preferred since he attributed significance to the applicant’s incapacitation and immobilization as a result of the other injuries, mainly the kidney condition, to determining whether there had been an aggravation of his osteoarthritis. Mr Perry urged the Tribunal to accept Dr Best’s assessment of permanent impairment, being 10 per cent in respect of each knee but reduced by 50 per cent in each knee in recognition of the accident’s contribution.
47. In relation to the applicant’s psychiatric condition, Mr Perry pointed out that the separation from his de facto partner happened in November 1999. Mr McDermott, however, had been consulting Dr Vickery from July 1997 and had made a claim for compensation at that time. Mr Perry relied on Dr Lee’s opinion that the accident in July 1994 triggered the applicant’s underlying psychiatric condition being a decompensated personality. The accident, Mr Perry contended, contributed in a material degree to the aggravation of that underlying condition. Alternatively, Mr Perry submitted that if it were not possible to isolate the psychiatric effects of the injury, then the pain and distress should be considered in the context of assessing the whole person impairment of Mr McDermott’s knees.
48. Mr Skinner sought to distinguish Martin’s case because Mr McDermott, unlike the applicant there, had not been asymptomatic before the accident in July 1994. In his submission the opinion of Dr Tarrant supported a finding that the accident could have caused patello-femoral pain that lasted for one or two years and could also have aggravated osteoarthritis for a similar period. Mr Skinner submitted that Mr McDermott injured only his right knee in the accident, not the left knee. He contended that Mr McDermott’s permanent impairment of the right knee was due to his osteoarthritis alone with no contribution from the accident. Relying on the reports of the psychologist Mr Dorling, it was submitted for the respondent that the applicant’s post accident trauma was successfully treated. The breakdown in the relationship with Mr McDermott’s de facto partner in late 1999 caused the onset of his major depression, and for that submission Mr Skinner referred to Dr Walden’s opinion. Thus there was no liability for compensation in respect of post traumatic stress from 18 July 2000 when the respondent made its determination to cease liability.
49. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.
50. Many of the authorities have examined the concept of an aggravation of an ailment. In a recent case, Gyles J in Australian Postal Corporation v Bessey (2001) 32 AAR 508 stated the law as follows:
[6] It has been well settled by a series of decisions starting from Jordan CJ's judgment in Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157, including Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19; Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533 and Casarotto v Australian Postal Commission (1989) 86 ALR 399, that if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.
The Tribunal is mindful that Burchett J in Martin’s case considered that the principles established in Hankinson had equal application to claims under the Act.
51. The Tribunal finds that Mr McDermott had moderately advanced changes of osteoarthritis in the knees, mainly involving the medial compartments and maximal on the left, before the accident on 6 July 1994. This finding is based on the opinions of Dr Jones and Dr Tarrant as well as the X-ray report dated 23 June 1993 (T6). Both knees had been symptomatic before the accident. This is evident from the clinical notes of Dr Chung and the incident reports in the T documents. For example, Mr McDermott consulted Dr Chung in April 1992 regarding a swollen left knee that he injured during a hockey match. An opinion was sought from the specialist Dr Jones on 8 April 1992, who noted that “His knees have given him a bit of trouble with sport over the years but nothing to [sic] major.” On 23 June 1993 Dr Chung recorded that Mr McDermott hurt his right knee while riding his motor bike on deliveries and the knee was making a clicking sound. His right knee was still causing pain that was noted by Dr Chung on 12 July 1993 (T5). He injured his left knee in an accident at work on 1 February 1994.
52. The major injury sustained in the accident on 6 July 1994 was bruising to the left kidney. According to Dr Swanson’s note of 7 July 1994, Mr McDermott also suffered abrasions and loss of skin to his right knee and right forearm, and musculo-ligamentous injuries to both knees and left ankle. The Tribunal finds, therefore, that the applicant suffered an injury to both knees in the accident. However, the Tribunal notes the evidence of Dr Jones that Mr McDermott did not suffer a specific or discrete injury to the knees in the accident. To the same effect is Dr Jackson’s report dated 15 July 1994. Consequently the Tribunal is satisfied that Mr McDermott did not suffer a major injury to either knee but the abrasions and musculo-ligamentous strain affected his underlying osteoarthritis. The osteoarthritis is an “ailment” as defined. It is also a “disease” under the Act if the accident contributed in a material degree to an aggravation of the osteoarthritis. On the basis of the opinion of Dr Tarrant, the Tribunal finds that the July 1994 accident caused an aggravation of the applicant’s osteoarthritis and caused patello-femoral pain.
53. In the months immediately following the accident, Mr McDermott complained about knee pain, the right knee being worse, but he was able to return to work on selected duties on 4 October 1994 (T46-157). He saw Dr Jones on 10 October 1994 who did not consider an arthroscopy would assist in regaining full range of movement. Dr Tarrant, after performing arthroscopies in January 1995, found grade 4 chondral damage in the medial compartment in both knees and altered sensation in the prepatella area of the right knee and a low grade effusion in the left knee. We find that Mr McDermott had recovered from the surgery by 22 March 1995 to such an extent as to allow him to resume full duties (T46).
54. On 12 April 1995 Dr Hollo felt the knee injury had virtually resolved with Mr McDermott being able to use the motor bike for deliveries. Mr McDermott’s evidence, however, was that he still had pain in his knees in the period following his return to work. When he saw Dr Swanson on 6 September 1996, he was concerned about his kidney and persisting pain in his wrist, both of which he injured in the July 1994 accident. But there was no reference to the knees (T48). He did not consult Dr Tarrant again until 28 August 1998. Dr Tarrant then recorded the applicant’s increasing pain in the knees which he attributed to bilateral osteoarthritis of the knees mostly affecting the medial compartment. In the interim, Mr McDermott had commenced consultations with Dr Vickery from around July 1997 in relation to “chronic pain disorder, depression and anxiety over the work environment” (T59-189).
55. In determining whether, and if so when, the aggravation of the osteoarthritis caused by the abrasions and musculo-ligamentous strain ceased to have effect, the opinion of Dr Tarrant, as the treating specialist, should be given due consideration. We consider it relevant in determining the weight to be given to Dr Tarrant’s evidence, that his report of 24 November 2000 commented upon the fact that Mr McDermott had injured his knees in a previous work accident in 1993. He further noted that he had not been apprised of the detail regarding treatment or investigations consequent to that injury. Besides this, the history obtained by Dr Tarrant did not refer to the sports injuries to the knees or Mr McDermott’s consultations with Dr Chung or Dr Jones. Therefore his opinion concerning the contribution of the July 1994 accident to the aggravation of the osteoarthritis must be assessed keeping in mind that gap in the history.
56. Moreover the Tribunal observes that there has been some variation in Dr Tarrant’s opinions concerning the duration of the effects of the July 1994 accident on the pre-existing osteoarthritis of the knees. His report of 30 November 1998 stated that the aggravation was permanent, it having persisted then for over four years. In the same report he noted that as time goes on more and more of the symptomatology relates to the underlying condition. The report of 7 April 2000 stated that it was “merely possible that a connection exists” between his current symptoms. He did not know whether the effects of the accident were continuing. The question of the accident’s contribution to aggravating his osteoarthritis is ”almost unanswerable”. He thought that any patello-femoral pain and aggravation of osteoarthritis may last for two years from the accident but it was unusual for symptoms from an aggravation to be prolonged. In November 2000 (T126) Dr Tarrant stated that the applicant’s employment and the accident in July 1994 had contributed to his current condition. Still, by November 2000 Dr Tarrant considered that, apart from a psychiatric condition, the applicant was fit for full time selected duties.
57. There is some common ground with Dr Casey, who first examined the applicant when he was recovering from the OATS procedure. Dr Casey diagnosed bilateral degenerative osteoarthritis, patellar tendonitis and patello-femoral crepitus and bilateral osteophytes. There was little significance given to the contribution of the accident to these conditions. In his later report of November 2001, Dr Casey specifically rejected any relation between the accident and the osteoarthritis or patellar tendonitis. He regarded the accident as causing only minor injuries to the knees. He found incapacity merely in relation to postal delivery work. Relatively soon after the accident, in May 1995 Dr Hollo was of the view that Mr McDermott was not suffering any ongoing disability in performing his postal delivery work. In concluding that the accident resulted in only a temporary aggravation, Dr Macauley appears to emphasise the advanced state of the applicant’s osteoarthritis at the time of the accident. As for his incapacity for work, Dr Macauley suggested that Mr McDermott be given sedentary duties. Dr Best thought the accident brought forward the onset of symptoms of osteoarthritis. Significantly, he considered Mr McDermott’s immobilization while under going treatment for his bruised kidney was detrimental to his osteoarthritis and caused further deterioration. He was alone in making this finding, which supported his conclusion that the accident resulted in a permanent impairment of both knees. He assessed the whole person impairment at 10 per cent under table 9.5 of the Guide, 50 per cent attributable to the July 1994 accident.
58. The Tribunal is satisfied on the evidence before it, that in the period from 22 March 1995, when the applicant resumed full duties, until August 1998 when he was referred back to Dr Tarrant, Mr McDermott’s knees were not sufficiently painful to warrant medical attention. His evidence was that it was in his general ability to get around that he noticed the deterioration in his knees. During this period he consulted his G.P, but not regarding his knees. There is no evidence to suggest that the osteochondral graft performed by Dr Tarrant on the right knee in August 1999 was required by reason of the July 1994 injury. We have found that the accident did not result in a major injury to the applicant’s knees. Still, the Tribunal is mindful of Dr Jones’ statement that injury can make degenerative changes resistant to settling. However, the preponderant expert evidence, particularly that of Dr Casey, Dr Macauley and Dr Hollo, and Dr Tarrant to a lesser extent, supports a finding on the balance of probabilities that the effects of the accident on the applicant’s osteoarthritis were not permanent. Now Mr Skinner noted that the respondent was simply asking for the Tribunal to affirm the reviewable decision made on 17 April 2002. That decision affirmed a determination ceasing liability from 22 January 2002 for compensation in respect of the injuries suffered in the accident. In coming to the correct or preferable decision, the Tribunal finds that the sequelae of the injury on Mr McDermott’s pre-existing osteoarthritis no longer affected him or his capacity for work at least from 22 January 2002, if not from an earlier date. Additionally, the patello-femoral pain suffered in the accident had ceased by that date and was no longer affecting his capacity for work. Any continuing symptoms were not causally related to the accident.
59. There was no additional evidence or argument presented to the Tribunal in support of a claim in respect of compensation for injuries to other joints apart from the knees. In relation to the applicant’s right wrist, moreover, the Tribunal notes the evidence of Dr Hollo that the complaints of pain recorded in May 1995 related to a recent injury and not the accident of July 1994. The Tribunal accepts that evidence. The reviewable decision of 17 April 2002 should thus be affirmed.
60. So far as the claim for compensation for permanent impairment resulting from the accident is concerned, there is again a divergence of expert opinion. It was not disputed that Mr McDermott has a permanent impairment affecting his knees. There is ample evidence to support such a finding. The respondent contended, however, that Mr McDermott did not injure his left knee in the accident in July 1994. This submission is rejected because the Tribunal has found that he did injure his left knee in the accident. The more difficult question is whether the accident resulted in a permanent impairment of each knee.
61. In determining the claim for compensation in respect of permanent impairment to the knees, the Tribunal is mindful of the following dictum of Jenkinson J in Comcare v Amorebieta (1996) 66 FCR 83 (at 96) referring to s.24(5) of the Act:
The measure of that compensation is the degree of permanent impairment which has resulted from that aggravation of the disease, and in contemplation of law the degree of impairment to which the aggravation brings the respondent’s spine is caused by – ‘results from’ – that aggravation, whatever the lesser degree of impairment was which preceded that aggravation, and whatever the extent to which events and degenerative processes preceding that aggravation contributed to cause that degree of impairment.
62. Also relevant are the Guide’s Principles of Assessment dealing with permanent impairment and non-economic loss, which state the following about aggravation:
An assessment should not be made unless the effects of an aggravation are considered permanent. If the employee’s impairment is entirely attributable to a pre-existing or underlying condition, or to the natural progression of such a condition the assessment for permanent impairment should be nil. Where it is possible to isolate the compensable effects of an injury upon a pre existing or underlying condition the assessment of the degree of permanent impairment should reflect only the impairment due to the compensable effects.
63. The Tribunal has found that the effects of the injury to the knees sustained in the accident on 6 July 1994 were not permanent. We accept the evidence of Dr Casey and Dr Macauley in relation to permanent impairment. On balance we are satisfied that the temporary effects of the accident on the applicant’s underlying bilateral osteoarthritis of the knees did not bring about a degree of impairment to Mr McDermott’s knees. The reviewable decision dated 11 May 2001 is therefore affirmed.
64. We are mindful that the respondent arranged for Mr Dorling, the psychologist, to assist Mr McDermott in overcoming his fear and aversion to motor bike delivery work. Mr Dorling was aware that Mr McDermott had been involved in a number of motor bike delivery accidents that had led to his developing the apprehension. Progress under Mr Dorling’s treatment was such that by May 1995, Dr Hollo considered Mr McDermott was not having any difficulties, including psychological problems, with his motor bike delivery work.
65. By December 1997, however, Dr Lewin reported that he had enduring symptoms of post traumatic reaction due to the accident in July 1994. Dr Lewin diagnosed an acute stress reaction and anxiety symptoms in relation to riding the motor bike. Dr Vickery, the applicant’s treating psychiatrist, did not address the cause of the onset, in mid 1997, of Mr McDermott’s symptoms of mood swings and social withdrawal that the applicant attributed to the accident three years earlier. Dr Vickery’s report of 29 September 1997 (Exhibit A4) referred to the applicant’s frustration and irritability at being unable to participate in sports and he also noted his annoyance due to recurrent illnesses from viral infections. The implication was that the symptoms were due to the accident in July 1994 but Dr Vickery did not make a diagnosis nor did he expressly attribute the symptoms to the accident. His reference, within quotation marks, to Mr McDermott’s statement that he had been off work due to ‘post traumatic depression’ suggests that Dr Vickery did not necessarily agree with such a diagnosis. At any rate we found greater assistance in the report of Dr Lee who, in March 1999, diagnosed a decompensated personality problem that had resulted in chronic pain syndrome. Dr Lee considered the applicant’s symptoms were not due to the effects of the accident but to ongoing problems with coping with his inability to exercise and play sport. These restrictions were caused by his arthritis acting on a vulnerable personality. Subsequently, Dr Vickery considered that Mr McDermott had been making “excellent progress” (T96-289) before the breakdown of his de facto relationship. Dr Lee diagnosed a major depression at this point in November 1999, when his relationship was ending. Dr Walden arrived at a similar conclusion to Dr Lee, but also finding that a chronic low grade depression and poor adjustment to physical restriction was connected to the accident that happened in July 1994. In Dr Walden’s opinion, Mr McDermott’s pre-existing vulnerable personality based his self esteem exclusively on proficiency at physical exercise and the admiration of others.
66. In deciding to cease liability in respect of post traumatic stress from 18 July 2000, the respondent gave weight to Dr Walden’s statement that his major depression was due to his separation and not his accident. The decision glossed over Dr Walden’s further observation that the applicant had coped “very poorly psychologically” with the restriction on his physical activities and suffered a low grade chronic dysthmia consistent with his underlying personality difficulties. Nevertheless, by May 2002 when Dr Walden prepared her second report and addressed the Comcare Guide relating to permanent impairment, she found a fifteen per cent impairment due to dysthmic disorder. There was no reference to post traumatic stress. In finding there was a permanent impairment of this degree, Dr Walden further noted that the low grade depression or dysthmia developed because of the restrictions on Mr McDermott’s physical activities and the consequent effect this had on his self esteem. She thought the question whether the depression resulted from the accident depended on whether the accident was still causing orthopaedic problems. It follows from the finding that the accident did not permanently aggravate Mr McDermott’s osteoarthritis, in the sense that the accident did not worsen the underlying condition but had merely a temporary effect, that the psychiatric condition of dysthmic disorder is not the result of the accident. We also find that any incapacity for work by reason of depression or other psychiatric problems in the period following the respondent’s decision to cease liability for post-traumatic stress, was not due to the accident of July 1994. The reviewable decision of 17 April 2002 should therefore be affirmed.
67. In the event, the applicant has not succeeded with his applications. No costs may be awarded under s.67 of the Act.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member, and Dr M.E.C. Thorpe, Member:
Signed: .......................................................................................
Associate
Date of Hearing 26 & 27 August 2002
Date of Decision 29 August 2003
Applicant’s counsel Mr PerryRespondent’s counsel MrSkinner
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