Moore and John Holland Pty Ltd (Compensation)

[2016] AATA 571

Moore and John Holland Pty Ltd (Compensation) [2016] AATA 571 (3 August 2016)

Division	GENERAL DIVISION
File Number(s)	2014/6624
Re	Kevin Moore
APPLICANT
And	John Holland Pty Ltd
RESPONDENT

DECISION

Tribunal	Dr Damien Cremean, Senior Member
Date	3 August 2016
Place	Melbourne

The Tribunal affirms the decision under review

[sgd]........................................................................

Dr Damien Cremean, Senior Member

COMPENSATION–injury — injury simpliciter — disease — pre-existing osteoarthritis—“aggravation”—“significant”— incapacity for work — decision affirmed

Legislation

Safety Rehabilitation and Compensation Act 1988 (Cth) sections 4, 5A, 5B, 14, 67.

Cases

Comcare v Riordan [2015] FCA 1166.
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 331 ALR 369.
Tippett v Australia Postal Corporation (1998) 27 AAR 40
Weigand v Comcare Australia [2002] FCA 1464.

REASONS FOR DECISION

Dr Damien Cremean

3 August 2016

Introduction

1. Application is made to review a decision dated 5 November 2014(“the reviewable decision”) made by the Respondent which, upon a reconsideration, affirmed a determination dated 26 August 2014 denying liability to pay compensation to the Applicant under the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) for a condition described as acute on [sic]chronic left knee pain.

2. The Applicant argues the reviewable decision is wrong in law and against the weight of the evidence.

3. The initial claim for compensation was lodged by him on 7 February 2014.

4. At the hearing conducted subsequently the Applicant gave sworn evidence.

5. Medical evidence was given by Mr Khan, Consultant Orthopaedic Surgeon Mr Doig, Orthopaedic Surgeon, Dr Kostos, Consultant Rheumatologist and Mr Haig, Consultant Orthopaedic Surgeon.

6. In what follows I provide an outline of the evidence of the Applicant and of each medical witness.

   Outline of evidence

   Applicant

7. The Applicant gave evidence that he is aged 65 and was born on 18 October 1950.

8. He is married with 3 children.

9. In his Witness Statement confirmed as true and correct with amendment  the Applicant said he hurt his left knee while working for the Respondent on two occasions --on 17 October 2013(“the October incident”) and 6 February 2014(“the February incident”).

10. On 23 March 2016 he underwent full knee replacement surgery and was in hospital for 3 weeks.

11. He had commenced working for Freight Basis in 1971 in various roles including forklift driver, labourer and storeman. He finished there in the late 1980’s.

12. Then he went to work for Visy as a forklift driver and also as a machine operator and in the despatch area.

13. He left Visy in February 2006 and commenced working with the Respondent as a ‘peggie’ in about November 2008.

14. As a peggie the Applicant’s job was to maintain the toilets, the lunchroom areas and perform other tasks.

15. After a short break he re–started with the Respondent as a machine operator working on a regional rail link project.

16. The Applicant continued working for the Respondent until August 2014.

17. The Applicant says that over the years he has had quite a lot of knee problems in both knees.  He has a long history of operations to both knees. The most serious would be his full left knee replacement in 2016.

18. It appears he first hurt his right knee in 1989 when he fell at work and struck it against a steel grate.

19. He injured his right knee again on a number of other occasions including in 1994 when he twisted it stepping in a hole while alighting from a forklift.

20. In that year also he injured his left knee while at work when slipping from the step of a forklift.

21. Then in 1999 he hurt his left knee again at work while handling sheets of cardboard on pallets.

22. He had arthroscopic surgery on that knee following this in about May 1999.

23. He had already had arthroscopic surgery on that knee in June 1995.

24. In about April and December 2003, and also in December 2004, the Applicant had further arthroscopic surgery to his right knee followed by a half-knee replacement in May 2006.

25. He then had arthroscopic surgery to that knee in October 2008.

26. In November 2008 he underwent arthroscopic surgery on his left knee again.

27. In March 2010 the Applicant believes he had arthroscopic surgery on both knees.

28. A claim for impairment benefits in respect of his right knee was resolved in about August 2011.

29. In the October incident the Applicant recalls hurting his left knee at work. He was rolling up some hose when he tripped on a tie bar and landed on his left knee and right wrist.

30. He reported this incident but did not seek first-aid. He said that this incident was something he didn’t worry too much about and that it was nothing major. He said he didn’t feel too bad at the time.

31. He did not however take any time off work after this due the good money he was earning. In his Statement he says: I didn’t want to take time off after the injury to go and see a doctor or physiotherapist. I was earning good money, and I might have lost income if I’d gone onto light duties. So I continued at work, although my knee kept playing up. He only visited a medical practitioner he said on 20 January 2014 when he went to see Dr Kumar of the Sunbury Medical Centre.

32. Then in the February incident the Applicant recalls a twinge in his left knee when he twisted it stepping out of a roller. He found it hard to describe the incident in more detail but said his knee started aching after this.

33. He reported the February incident also and had first aid. He sought medical treatment the following day although medical notes appear to indicate a visit for nausea, vomiting and diarrhoea. I do however accept he did mention to Dr McMahon that he had fallen in the previous October. He was prescribed Ibuprofen and Panadeine Forte as needed

34. The Applicant considers he really hurt his left knee in the October incident rather than in the February incident.

35. Despite the February incident the Applicant managed again to keep working with the Respondent even though his left knee was aching and giving him lots of trouble.

36. After he left the Respondent in August 2014 he obtained work in New South Wales (at Mulwala) driving a dump truck for three months. He then worked as a Santa Claus at Myers in Albury for about a month.

    Medical

37. Mr Khan, a consultant orthopaedic surgeon, gave affirmed evidence in person. He confirmed the contents of his medical report dated 23 June 2015 as true and correct.

38. In his report Mr Khan says he notes the Applicant’s left knee presently tends to give way on weight bearing and flares up with pain occurring in the joint.

39. In his view both the October incident and the February incident have led to the development or flare up of pre-existing degenerative arthritis in his left knee.

40. Since then Mr Khan says this knee has become considerably stiff with a fixed flexion deformity to 10 and inability to flex the joint beyond 100 or so. He says the Applicant also has intermittent locking with a tendency to give way. The MRI scan he says shows degenerative changes which [are] fairly advanced in the medial compartment and to some extent the patellofemoral compartment of the joint.

41. Hence Mr Khan says he considers such conditions have considerably affected Mr Moore’s capacity for work, deteriorating it further.

42. In summary Mr Khan says: I consider that Mr Moore requires further surgery and as the condition has shown aggravation of pre-existing fairly advanced degenerative changes in the medial and patellofemoral compartments and some degeneration also in the lateral compartment of the left knee, he would be a suitable candidate for total knee replacement surgery.

43. As mentioned however the Applicant has already had total knee replacement of the left knee in March this year.

44. Mr Doig, an orthopaedic surgeon, in evidence confirmed his report of 31 December 2015 as true and correct.

45. Mr Doig noted the Applicant’s long history of bilateral knee problems.

46. As to the Applicant’s left knee Mr Doig says the diagnosis is one of a significant aggravation of his pre-existing but minimally symptomatic degenerative change.

47. He says that taking into account the Applicant’s clinical history he is of the view that the Applicant suffered an injury as a result of his employment on 17/10/13 and 6/2/14.

48. Mr Doig says that although this did not cause the degenerative change it would appear from the history he [gave] that it markedly aggravated the degenerative change present in the knee.

49. As a consequence Mr Doig says the Applicant’s employment is a significant contributing factor to the aggravation of the underlying pre-existing minimally symptomatic degenerative change present in the left knee.

50. Mr Doig’s view is that the appropriate treatment for the Applicant is a total knee replacement and that this is due to a significant aggravation of his condition by his employment with John Holland. This I have noted has already occurred.

51. Dr Kostos, a consultant rheumatologist, in evidence confirmed his report dated 13 April 2016 as true and correct.

52. Referring to various other documents, Dr Kostos says that the Applicant suffered from severe osteoarthritis as far back as 1999 and that this arthritis has been developing for years.

53. Dr Kostos says that osteoarthritis of the knee is related to constitutional factors and is strongly associated with obesity.

54. He says in his view it is unfortunate that Mr Moore had multiple arthroscopies because this has accelerated his osteoarthritic changes.

55. His overall opinion is that the Applicant’s left knee osteoarthritis is constitutional of [sic] origin and significantly contributed to by his obesity and multiple arthroscopies.

56. However in evidence Dr Kostos did say that the Applicant had suffered an exacerbation of a pre-existing osteoarthritic condition in his left knee.

57. Mr Haig, a consultant orthopaedic surgeon, in evidence confirmed his report of 10 July 2015 as true and correct.

58. In that report Mr Haig notes the Applicant has a long history of left knee complaints dating back over a period of about 20 years.

59. In his view the Applicant has a disease process underway, namely osteoarthritis of the left knee and the incident on 17 October 2013 was an aggravation of that disease process. In his opinion there was a frank injury on that occasion but not one in the February incident.

60. Mr Haig says that in his opinion the essential underlying pathology is pre-existing and severe osteoarthritis of the knee.

61. As regards the October incident Mr Haig says that it was significant to the extent that it aggravated his [the Applicant’s] knee.  However Mr Haig also says it was only a question of time before, with or without such an incident, his knee would have reached the same point in terms of symptoms. Indeed he says the Applicant’s knee has followed the expected pathway, not of recovery, but of continuing symptoms because he has established osteoarthritis.

62. In his view the Applicant’s obesity has very likely accelerated the osteoarthritis process.

63. Further in his view the Applicant does not continue to suffer the effects of the claimed condition in terms of incidents at work but rather of the underlying pathology.

    Contentions

64. The Applicant contends that the reviewable decision should be set aside and a decision substituted that he suffered incapacity as a result of a compensable workplace injury identified as acute on [sic] chronic left knee pain in respect of a twisted knee-left knee.

65. The Applicant argues that the October incident together with the February incident constituted injury and resulted in incapacity for work by aggravating his left knee osteoarthritis.

66. The Applicant also seeks costs under section 67 of the Act and an order remitting the matter to the Respondent for further determination.

67. The Respondent on the other hand seeks a decision that the reviewable decision be affirmed.

68. The Respondent argues that the Applicant did not suffer a compensable injury or aggravation of one arising out of or in the course of his employment with the Respondent or a disease or aggravation of a disease contributed to, to a significant degree, by his employment.

    Consideration

69. By section 14 of the Act the Respondent is liable to pay compensation in accordance with the Act in respect of any injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

70. By section 4(9) of the Act an incapacity for work means an incapacity suffered by an employee as a result of an injury being an incapacity to engage in any work or to engage in work at the same level the employee was engaged in immediately before the injury occurred.

71. An injury is defined in section 5A(1) of the Act as (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.

72. A disease is defined in section 5B(1) of the Act as an ailment suffered by an employee or an aggravation of such an ailment that was contributed to, to a significant degree, by the employee’s employment.

73. An ailment is defined in section 4(1) as any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

74. The word aggravation is not defined in the Act but by section 4 (1) it includes acceleration or recurrence.

75. A significant degree is defined in section 5B(3) of the Act meaning a degree that is substantially more than material. Matters that may be taken into account in determining this question include those set out in section 5B(2) and the list is not exhaustive.

76. The question for me to determine is whether or not the correct or preferable decision is that the Applicant’s left knee condition is compensable under section 14.

77. I see that condition on the evidence described generally as acute or chronic left knee pain.

78. I am required to consider whether that condition should be regarded as an injury under the Act which has resulted in an incapacity for work.

79. Both parties had the opportunity to make submissions after the hearing having regard to the decision of the High Court in Military Rehabilitation andCompensation Commission v May [2016] HCA 19; (2016) 331 ALR 369 when it was handed down and each party filed submissions accordingly.

80. In those submissions the Applicant maintains the position that he has suffered an injury in the sense of a disease by way of an aggravation of an ailment and that such aggravation was significantly contributed to by his employment with the Respondent. The date of injury under section 7(4) of the Act is placed as 7 February 2014 which is the date of medical treatment and is also the date the claim was lodged.

81. This submission relies on the definition of injury under the Act as being a disease suffered by an employee under section 5A(1) (a). It is submitted on the Applicant’s behalf that the decision in May has no real impact on this matter. It is argued in the alternative however that the Applicant has suffered an injury under section 5A (1) (b).

82. The Respondent contends that the October incident did not result in any injury at all affecting the Applicant’s left knee.

83. The Respondent also argues that the February incident did not result in any injury affecting that knee either.

84. Alternatively it is submitted by the Respondent that if in the February incident the Applicant did suffer an exacerbation of symptoms then such exacerbation was merely transient and was precipitated by the Applicant doing something (placing his leg on the ground) which did not involve any trauma at all outside the ordinary stresses of living. Any such exacerbation should be viewed as the Applicant’s left knee having become worse rather than being made worse.

85. I am satisfied, however, on the balance of probabilities, that in the October incident the Applicant did suffer an injury under the Act.

86. At the same time I am also satisfied that such injury –an injury simpliciter– did not result in an incapacity for work.

87. Although the Applicant reported the October incident he did not seek first aid at the time. Nor apparently did he suffer any injury to his right wrist which he says he also landed on.

88. The Applicant said the October incident was nothing major and was something he didn’t worry too much about and that he didn’t feel too bad at the time.

89. I take his evidence on these matters to mean that at the time of the October incident he was not troubled much by the injury.

90. This is confirmed by his evidence that he kept working and did not take time off. it was only later that his knee became a bit stiff and then he applied ice in the evening. The symptoms obviously only set in after work.

91. The Applicant did not visit a doctor at the time of the October incident and only visited one in late January 2014. This seems to indicate that he was not in a lot of pain at that time.

92. The Applicant did however visit a physiotherapist (Mr Poon) who recorded that from October 2013 he was suffering pain and stiffness and also that his knee was giving way and that he was experiencing difficulties going up or down stairs.

93. Later, on a visit to the Sunbury Clinic, following the February incident, he told the doctor of the October incident and, as I have noted, was prescribed medication to be taken as needed.

94. The Applicant recalls his knee playing up after the October incident.

95. Although this reference is vague or ill defined, it does indicate that the injury to his knee in the October incident was not merely transient. However, merely from that, I am unable to make any finding about the severity of the pain from the injury. It would seem though that it was not very severe at least at that time.

96. I have drawn common sense inferences about the incident, as I was invited to do, and I have determined that an injury under the Act was suffered in the October incident. See May (at [62] ) where the plurality speak of taking into account common-sense inferences drawn from a sequence of events.

97. I consider I am able to find on the evidence that an injury was suffered in the October incident and that this is so despite the Applicant’s long history of medical treatment before that time.

98. Common sense dictates that a person who falls on their knee is likely to hurt it. A person who has had surgery on a knee is still capable of injuring that knee again quite independently of the surgery.

99. The medical evidence supports a view that in the October incident (and the February incident also) the Applicant did injure himself. Further, obesity does not prevent a person from injuring themselves independently of that condition. I accept though that obesity is or may be a significant factor in the development of osteoarthritis.

100. I note the view of Dr Kostos that multiple arthroscopies [had] accelerated..his [the Applicant’s] osteoarthritic changes. This is or may well be so but I do not need to make any finding about that in the sense that, even if they did, a person with accelerating osteoarthritic changes in their knee is still capable of injuring that knee again independently of those changes. I accept though that multiple arthroscopies have probably not helped the Applicant’s knee condition.

101. An injury is only compensable under the Act if it results in an incapacity for work as defined or in death or impairment.

102. I am not satisfied on the balance of probabilities that the Applicant’s injury did result in an incapacity for work.

103. Convincing evidence to the contrary of an incapacity is in the circumstance that the Applicant did not take any time off after the October incident. Instead, he continued working even though his knee was playing up.

104. He said this was because of the good money he was earning at the time. That may well be so but the fact is, as I find it, he was not prevented from working by reason of his injury and he kept working.

105. His injury, in other words, did not incapacitate him at all. Difficulty doing something is not the same as an incapacity to do it.

106. Had his injury incapacitated him he would have taken time off work, but he did not take any time off. He did not even go onto light duties. The fact that he wanted to keep earning good money is not in point for me. Evidently he felt well enough to be able to keep doing so.

1. Moreover the view I take of his evidence is consistent with his attitude to the injury he suffered in the October incident. He did not appear troubled much by it. He also said it was nothing major.

2. There is a vague suggestion that the Applicant may have been placed on altered as opposed to light duties. I am unable to make any findings about this because the evidence is not clear and I am not assisted by the Applicant being a poor historian of events as he was described. But if indeed the Applicant was placed on altered duties, I could not be satisfied that this was the result of his injury and not the result of a general condition in his knee.

3. Oddly though in the light of my analysis the Applicant says it is the October incident rather than the February incident which really hurt his knee.

4. In the February incident the Applicant gave evidence that he felt a twinge in his left knee as he got out of a roller. He says he is unable to describe the incident in more detail than that. He recalls it aching afterwards.

5. The medical evidence supports a finding that the Applicant suffered an injury on this occasion also.

6. Mr Khan says that both the October incident and the February incident led to the development or flare up of pre-existing degenerative arthritis in his [the Applicant’s] left knee. Mr Doig refers to marked aggravation of …degenerative change in the left knee. Dr Mc Mahon refers to acute exacerbation of left knee osteoarthritis. Dr Kostos said in his evidence that both gave rise to exacerbations of the Applicant’s pre-existing condition in the left knee.

7. In the circumstances I am satisfied I may find that the Applicant suffered a left knee injury in the February incident as well.

8. I consider such injury was not in the nature of an injury simpliciter but was in the nature of a disease as either an ailment or more likely as an aggravation of an ailment.

9. I regard an aggravation as synonymous with an exacerbation. See Weigand v Comcare Australia [2002] FCA 1464 at [21].

10. I consider the February incident exacerbated the Applicant’s left knee condition.

11. There was therefore on this occasion also an injury in the nature of a disease.

12. The exacerbation or aggravation showed up as pain in the form of a twinge leading to an aching.

13. Pain is the most common symptom of an injury and if an underlying condition (such as osteoarthritis) of an employee is aggravated, that is increased or intensified, as a result of employment then that employee will suffer an injury under the Act. See Tippett v Australia Postal Corporation (1998) 27 AAR 40 at 44.

14. But to be compensable the employment must have contributed to the employee’s injury to a significant degree meaning substantially more than material.

15. I am not satisfied that the Applicant’s employment with the Respondent contributed to his injury in the February incident to a significant degree.

16. It is clear on the basis of all the medical evidence that the Applicant had at the time a long standing pre-existing osteoarthritic condition in his knee.

17. Mr Khan supports a view that this condition flared up because of the injury. His comments apply to both the October incident and the February incident. So generally do those of Mr Doig. In Mr Doig’s view the Applicant’s employment has been a significant contributing factor to the aggravation of the underlying condition. The evidence of Mr Haig is to the same effect.

18. If the matter stood there, I am satisfied I could find the relevant employment contribution to be significant.

19. The matter however does not stand there and the evidence of Dr Kostos, a rheumatologist must also be considered and is plainly to the effect that the only significant contribution to the Applicant’s condition is his obesity and the numerous arthroscopies he has undergone which have accelerated his osteoarthritic changes.

20. I am unable to say which of the two views in favour of a significant employment contribution or against one should be preferred on medical grounds. Neither is implausible or lacks respectability.

21. I am unable to find on the balance of probabilities therefore that it was the Applicant’s employment with the Respondent and not any other factor that resulted in his injury or led or contributed to his condition.

22. Nor  should I add am I am able to be satisfied that the Applicant’s condition was made worse by the February incident or merely became worse because of it. This is a critical distinction in this area. See Comcare v Reardon [2015] FCA 1166. It is one which depends normally on the medical evidence. But considering the medical evidence in this case and the divergent views expressed therein, I am not satisfied I can reach a conclusion one way or the other. Either view I consider is plausible and open.

23. In any event the Tribunal is not satisfied that the Applicant’s injury resulted in an incapacity for work.

24. The fact is the Applicant —as after the October incident— continued working for the Respondent and was not placed on altered or reduced duties. Nor did he take time off work despite his knee giving him lots of trouble.  He seems to have continued performing his work at the same level as at pre-injury.

25. This of course is to his credit. But at the same time it shows he suffered no resultant incapacity after sustaining his injury.

    Conclusion.

26. For the reasons I have given I am satisfied the reviewable decision must be affirmed.

133.    I certify that the preceding 132 (one-hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

[sgd]................................................................

Associate

Dated 3 August 2016

Date of hearing	26 April 2016 – 28 April 2016
Applicant	In Person
Counsel for the Applicant	Ray Ternes
Solicitors for the Applicant	Maurice Blackburn
Counsel for the Respondent	Roy Seit
Solicitors for the Respondent	Sparke Helmore