Mudunkothge and Australian Postal Corporation
[2005] AATA 148
•17 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 148
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/466
GENERAL ADMINISTRATIVE DIVISION ) Re RATNAPRIYA MUDUNKOTHGE Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Dr M Thorpe, Member Date17 February 2005
PlaceSydney
Decision The Tribunal affirms the reviewable decision of 19 November 2002 that determined there was no liability to pay Mr Mudunkothge compensation for permanent impairment resulting from the injury suffered on 11 September 2001. ..............................................
Member
CATCHWORDS
Workers Compensation – right knee injury sustained in course of employment - whether entitled to compensation for permanent impairment of the right knee – decision affirmed
Safety Rehabilitation and Compensation Act 1988 ss. 4, 24, 27
REASONS FOR DECISION
17 February 2005 Dr M Thorpe, Member 1. This is an application by Ratnapriya Mudunkothge for review of a decision made on 19 November 2002 by Australia Post refusing to pay compensation to him under ss. 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for permanent impairment arising from the right knee injury suffered on 11 September 2001.
2. At the hearing, Mr A Gidaro of counsel appeared for the applicant. Mr B Skinner of counsel appeared for Australia Post. The applicant gave oral evidence, as did a number of medical experts. The tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T documents) and the exhibits tendered during the hearing, including a video provided by the respondent.
3. The applicant’s submission is that Mr Mudunkothge suffers a 20% permanent impairment to the right knee. The respondent’s submission is that Mr Mudunkothge does not continue to suffer a right knee condition arising from the injury sustained on 11 September 2001, that the applicant is not restricted from duties arising from the right knee condition, that the applicant’s right knee has stabilised and there is no permanent impairment from the knee injury under the relevant guidelines and therefore not entitled to any payment pursuant to ss. 24 and 27 of the Act.
4. The tribunal’s task is to determine if there is any ongoing impairment to the right knee, and if so, the percentage impairment under the Comcare Guide to the assessment of the degree of permanent impairment.
APPLICABLE LEGISLATION
5. The following definitions in the Act are relevant:
Interpretation
4. (1) In this Act, unless the contrary intention appears:
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;
permanent means likely to continue indefinitely
6. Section 24 of the Act relevantly states:
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.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(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.
EVIDENCE
7. The applicant is 41 years old. He obtained employment initially with Australia Post in October 1999 filling in for absent postal delivery officers. He was made a permanent employee on 7 August 2000.
8. There is a report on file of an incident at work on 10 January 2001 when he sustained muscular pain on the left upper back, when he was lifting 2nd class mail, for which he had a period of 7 days off work, and any compensation was ceased after 25 January 2001. There was also a report of being bitten by a dog on the left leg below the knee on 1 August 2001. The applicant also made a claim for a neck injury resulting from an incident on 28 November 2002, for which Australia Post denied any compensation payment.
9. It was not in dispute that the applicant on 11 September 2001, while engaged in his employment as a postal delivery officer, was involved in a motor vehicle accident, which resulted in an injury to his right leg and knee.
10. He gave evidence that he was involved in a motor vehicle accident just after 9.00 am on 11 September 2001. The accident involved a collision between his motor cycle and a car. At the time of impact he was travelling at 50 kilometres an hour. The police report noted that at the time of impact he was travelling at 50 kilometres per hour. It was his right knee that made contact with the car and the motor cycle finished up on his right leg. He sustained a wound that took about three weeks to heal and was dressed by his local doctor, Dr Blair. He also received physiotherapy and returned to work on 22 October 2001 on restricted duties. There is very limited information available about his injury, medical certificates referring to “abrasions and injury right knee”.
11. His evidence was that prior to the motor vehicle accident he did not have any problem with the right knee or leg and that he enjoyed good health, playing sport including cricket, riding push bikes and gym activities. He had a permanent run delivering mail which required him to both walk 5 kilometres and ride a motor cycle.
12. Following the accident, Mr Mudunkothge experiences pain in the right knee and as demonstrated for the Tribunal from the lower margin of the knee cap that travels 10-15 cm down the front of his right tibia. He claims this pain is brought on by activity. He described the pain as 6 out of 10 going up stairs and 7 out of 10 going down stairs. Riding a push bike causes pain in the right knee and going up ramps is not pleasant because of the pain in his right knee. He said he has not attempted to walk any substantial distance and that he had not walked further than 500 metres to the local park. He does not jog. Climbing a step ladder causes knee pain and apprehension that his right leg is giving way. He is unable to play cricket as before, but it was difficult to be certain about his account of the way in which his ability to play is affected. At work he rides a motorcycle and uses his left leg and not his right leg to kick start the engine.
MEDICAL EVIDENCE
13. Dr Greg McGroder, Consultant Occupational Health Physician, on 21 September 2001 reported a significant wound which had not healed and was requiring daily dressings, and a painful knee. At that time no orthopaedic appointment had been obtained. Dr Rami Sorial, Orthopaedic Surgeon, reported on 17 October 2001 a soft tissue injury to the anteromedial aspect of his right leg with a contusion of the distal extensor mechanism. Dr McGroder on 3 December 2001 reported ongoing right knee pain mainly due to contusion over the tibial tuberosity and inferior pole of the patella. He considered the prognosis was for full recovery and despite some minor ongoing symptoms, considered he was fit for his preinjury duties as a mail officer. Dr Sorial, in a report dated 14 December 2001, anticipated continued improvement with the ongoing physiotherapy and rehabilitation program.
14. Dr Robyn Horsley, Occupational Physician, examined the applicant on 1 March 2002 and reported some scarring over the knee and an area of dysaesthesiae and anaesthesiae over the inferomedial aspect of the joint. There was tenderness on palpation of the tibial tuberosity and mild deformity over the tibial tuberosity. There was tenderness on palpation over the patella tendon. He was unable to kneel, producing discomfort over the anterior aspect of the patella and squatting was limited. She opined for an MRI to further elucidate the pathology.
15. An MRI scan of the right knee was conducted on 14 May 2002. The impression was of an “[e]ssentially normal study. The cause of anterior knee pain has not been identified. No chondarl [sic] defect, ligamentous tear or meniscal injury identified.”
16. Earlier Dr B Zicat, Hip and Knee Surgeon, on 8 April 2002 diagnosed a soft tissue injury to the right knee that resulted in an open soft tissue wound. The patient had been left with ongoing pain from the soft tissue portion of injury. Dr Zicat referred to activities that Mr Mudunkothge could and could not do, but provided no record of any physical examination. This was subsequently corrected in his report of 26 August 2004, when he reported the examination was unchanged with tenderness to palpation over a prominent tibial tubercle. There was a full range of movement but there was anterior knee pain with forced flexion. In his report of 2002 Dr Zicat reported Mr Mudunkothge could walk 100 metres. When he saw him again in 2004 he was able to extend the distance to 1000 metres. He simply diagnosed a soft tissue injury to the medial aspect of the tibia that resulted in an open soft tissue wound. With regard to the normal MRI Dr Zicat said that if the radiographs showed some bone injury he would have made that diagnosis, but as there was no bone injury noted on his radiographs, he remained with the diagnosis of a soft tissue injury and that was continuing to cause Mr Mudunkothge pain.
17. Dr David Maxwell, Orthopaedic and Spinal Surgeon, on 26 June 2002 reported Mr Mudunkothge complained of tenderness on palpation of the tibial tubercle which was swollen. He diagnosed mild prepatellar bursitis and noted that the applicant was able to do his normal postal run which involved walking 5.2 kilometres. In a further report dated 20 July 2004 Dr Maxwell noted the applicant was unable to kneel on his right knee. He was able to walk without any problems. He was able to walk both up and down slopes and climb stairs. He had difficulty running for up to 1 kilometre because it causes discomfort in his right knee. He has no problem with his work. He plays cricket but bowls very slowly. Prior to his accident he said he was a medium pacer.
18. Dr Maxwell also reported the applicant has had no time off work recently and has had no medical treatment for the right knee over the last 2 years.
19. Dr Horsley on 30 July 2004 reported he had a walking tolerance of 1-2 kilometres and that repetitive stair and hill climbing exacerbates his knee discomfort. He finds squatting difficult. She considered he had evidence of patella tendonitis. When asked by Mr Gidaro would you expect any abnormalities to be disclosed by radiological investigations or by MRI scan, Dr Horsley replied “certainly if there is ongoing chronic tendinitis, you can pick up thickening in the tendon on ultrasound or on MRI. But often it is a clinical diagnosis” (transcript page 75).
20. A video of the applicant from the period 2 November 2004 to 13 November 2004 comprising 16 minutes and 45 seconds was played at the hearing. In particular the video on the 13 November showed Mr Mudunkothge in the garden squatting on 26 occasions and the applicant agreed with Mr Skinner that he did not really have any problems carrying out the squatting, but he said “I don’t squat a long time.” The applicant further said “I can squat, for, like five minutes, but it is painful.”
CONSIDERATION AND FINDINGS
21. Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment (the Guide) issued by Comcare pursuant to s.28 of the Act relevantly provides:
Limb Function – Lower Limb
(Percentage Whole Person Impairment)
% DESCRIPTION OF LEVEL OF IMPAIRMENT
10 Can rise to standing position and walk BUT has difficulty with grades and steps
20 Can rise to standing position and walk but has difficulty with grades, steps and distances
…
22. There is no real debate that Mr Mudunkothge can rise to the standing position and walk as evidenced in the tribunal and witnessed on the video. The debate is whether he has difficulty with grades and steps which would qualify him for 10% and whether he also has difficulty with distances which would qualify him for 20%.
There are at least three different diagnoses available to the Tribunal:
Dr Horsley: Patellar tendonitis
Dr Zicat: Soft tissue injury causing pain
Dr Maxwell: Mild prepatellar bursitis
None of these diagnoses are substantial and taken alone or together cannot explain the apparent restriction.
23. Physical examination of the knee is fairly unrewarding with some reported areas of tenderness and prominence of the tibial tuberosity. Both the plain X-ray of the knee and the MRI of the knee are reported as showing no abnormality. I am therefore left with a knee that has a prominent tibial tubercle and some reported areas of tenderness with three possible clinical explanations.
24. The first consequence is that Table 9.2 which can also be used for assessment of knee impairment and is more objective, is of no benefit as it depends on the range of movement, which is normal and therefore cannot assist the applicant. Table 9.5 is more subjective and is largely influenced by the applicant’s history. In this case I also have the benefit of a video. The video showed that Mr Mudunkothge was able to move very freely around a very well maintained garden. In particular it showed him to be able to fully squat frequently without any apparent discomfort. It did not show him walking up or down steps and gave no indication as to the distance he was capable of walking. I specifically asked the question of Dr Zicat, if Orthopaedic specialists had ways of testing the ability on steps and the distances capable of walking in the same way as heart specialists can assess the heart’s capacity by special testing, and the answer was no, but rather one relied on what one was told by the patient.
25. Dr Horsley gave 20% impairment, a walking tolerance of 1-2 kilometres and repetitive stair and hill climbing exacerbates his knee discomfort. He finds squatting difficult and he is unable to kneel unless the surface is soft. Dr Zicat gave 20% impairment and that the applicant be best advised to avoid any activity, including work, that puts undue stress on his knee, such as prolonged periods of walking or stair climbing. Dr Maxwell gave 0% impairment and that he can rise to a standing position and walk and has no difficulty with grades or steps.
26. There is no doubt Mr Mudunkothge suffered an injury to his right knee in a motor vehicle accident on 11 September 2001. This resulted in a substantial skin abrasion which has subsequently healed and also a loss of sensation over the distribution of the saphenous nerve. There is prominence of the tibial tubercle and some knee tenderness to palpation. This tenderness differs from doctor to doctor. The examination of the knee is normal with a full range of movement. Dr Zicat reported anterior knee pain with forced flexion. The plain X-ray and MRI of the knee are normal. Basically there is no demonstrable pathology.
27. I am having difficulty with the history in the absence of any significant physical findings and normal radiology. In addition Mr Mudunkothge is working full time, admittedly riding a bike and he has not sought medical treatment for the past two years. Therefore one has to rely in the history available from the applicant and the histories obtained by the various medical attendants. This difficulty could be alleviated if the doctors actually measured or objectively assessed the ability on stairs and inclines and walking distances rather than relying on an account from the applicant. In particular the history of his walking to the park and his ability to play cricket is not convincing.
28. In the absence of any demonstrable pathology one is left with pain as the reason for difficulty in performing activities. In the absence of objective testing, the video is very useful in that it showed Mr Mudunkothge moving freely around his garden with frequent squatting with no apparent inconvenience or discomfort. He had told all the doctors that he had difficulty squatting, and this was not evident on the video. His explanation that prolonged squatting of 5 minutes caused pain or discomfort, can only be taken at face value.
29. Dr Horsley and Dr Zicat were reserved in their opinions about grades and steps. Mr Gidaro has in his submissions given a number of authorities concerning the operative word difficulty. Both Dr Horsley and Dr Zicat have avoided the use of the word difficult, Dr Horsley preferring the term “exacerbate” and Dr Zicat “advised to avoid”. That is climbing steps and going up grades may exacerbate the knee condition, or he is advised to avoid these activities. Dr Maxwell said he has no difficulty with grades or steps. If there was any demonstrable pathology one may be persuaded but in the absence of any material other than the applicants own description of pain on these activities and on the video he had no apparent disruption of movement and was able to perform the gardening activities without apparent restriction of movement, I am not persuaded that he has difficulty climbing stairs or with grades. The applicant therefore does not satisfy 10% impairment under table 9.5.
30. The question of distances therefore becomes irrelevant for 20% impairment. The evidence is that he can walk 1000 metres, 2000 metres and that he has no difficulty walking. His evidence was that he has difficulty walking 500 metres.
31. Mr Mudunkothge does not qualify for any permanent impairment to his right knee as he does not reach the threshold of 10%. Accordingly, the reviewable decision of 19 November 2002 that determined there was no liability to pay Mr Mudunkothge compensation for permanent impairment resulting from the injury suffered on 11 September 2001 must be affirmed. There is no entitlement to costs.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Thorpe, Member
Signed: Andrew Garcia .....................................................................................
Associate
Hearing 16 & 17 December 2004
Decision 17 February 2005
Applicant’s counsel A GidaroRespondent’s counsel B Skinner
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