O'Brien and Comcare
[2002] AATA 945
•18 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 945
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/5
GENERAL ADMINISTRATIVE DIVISION )
Re SEAN PATRICK O'BRIEN
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Member
Date18 October 2002
PlaceBrisbane
Decision: The Tribunal affirms the decision under review.
(Sgd) R G Kenny
Member
CATCHWORDS
WORKER'S COMPENSATION – aggravation of injury in course of employment – whether aggravation temporary or permanent
Safety, Rehabilitation and Compensation Act 1988 section 14
REASONS FOR DECISION
18 October 2002 Mr R G Kenny, Member
Application
On 21 November 2000, Sean O'Brien (the applicant) lodged a claim for rehabilitation and compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (the Act). On 24 May 2001, a delegate of the Military Compensation and Rehabilitation Service with the Department of Veterans' Affairs as delegate for Comcare (the respondent) rejected the claim. On 12 November 2001, another delegate varied that decision by accepting liability for a "temporary aggravation of right knee chondromalacia patellae occurring on 22 October 1999" and by further determining that "liability ceased on 4 April 2001". On 28 December 2001, the applicant lodged an application for review of that decision by the Administrative Appeals Tribunal (the Tribunal).
The applicant attended the hearing and was represented by Mr C Robertson of counsel. The respondent was represented by Mr C Clark of counsel. In evidence were the T documents T1-T61 (exhibit 1) and the following:
Exhibit A1 – an inpatient record summary dated 10 December 1999; and
Exhibit A2 – a statement, dated 15 March 2002, from the applicant.
Issues and Legislation
It is not disputed that the applicant, who was born on 23 June 1969, served in the Australian Army from August 1986 until he was discharged on medical grounds on 30 March 2000. It is the applicant's contention that he sustained a chondromalacia patellae injury to his right knee during service and that such condition is a permanent injury which arose out of or in the course of that employment. The respondent, whilst conceding that the applicant has an injury to his right knee, contends that, for the purposes of the Act, it arose when he first sought treatment in October 1999 and that it was no more than a temporary aggravation which had abated by April 2001.
Also, it is not disputed that the applicant has given appropriate notice under section 53 of the Act, that a claim has been made under section 54 of the Act or that the applicant was an employee in accordance with sections 4 and 5 of the Act. The issue for the Tribunal is whether the applicant has suffered an injury which has resulted in impairment in accordance with sub-section 14(1) of the Act.
Compensation for injuries that have resulted in impairment is paid in accordance with Part II of the Act and sub-section 14(1) thereof reads:
"Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment."
Sub-section 4(1) of the Act provides the following definitions:
"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;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
aggravation includes acceleration or recurrence."
Applicant's Evidence
The applicant gave the following evidence.
Prior to enlistment in the Army in 1986, he injured his left knee and underwent a cartilage operation. He had experienced no problems with his right knee at that time. During his training at Kapooka, he had pain in his left knee for which he sought treatment at the Regimental Aid Post (RAP). He served as an infantryman in the first six years of his service. During that time he was able to maintain the basic fitness requirements which included the undertaking of route marches of up to eighty kilometres over two days whilst carrying a pack of up to thirty-five kilograms. He began to experience pain in his back and in his right knee from about 1991. He reported his back condition, but not his right knee condition, to an RAP at that time. He reported the back because it "stopped him".
He joined the catering corps in 1992 because of the difficulties that his back was presenting him in the carrying out of his infantry duties. Nevertheless, he was also required to do basic fitness assessment (BFA) which involved an annual fitness test including a distance run, and he also did physical training each day. As a cook, he was responsible for preparing meals for between twenty and two hundred people at different times and was required to lift heavy items such as bags of vegetables and cooking equipment. Cooking was sometimes done in the field and this involved the transportation and setting up of the kitchen as well as the preparing of meals. He worked in shifts that sometime spanned eighteen hours and would work five days straight or two days on duty followed by two days off duty depending on where he was serving. He recalled that he had problems in April 1999 when he was given light duties for three days but was required to return to work on Anzac day when he was responsible for preparing meals for six hundred to seven hundred people. He took medication for the pain in his back and believed that this also helped with relief for the pain in his knees.
In June 1998, he experienced a problem with his right leg in the form of "nerve lesion" which caused "foot drop" and he was referred to an orthopaedic surgeon, Dr P Sharwood. There was some concern that he might have multiple sclerosis but this was allayed after the condition settled down. Nevertheless, he was required to wear a splint for some twelve weeks.
11. He was discharged from the Army because of the effects of a back condition and it was only when he realised that he was to be discharged that he made complaint about his right knee. There was a strong culture in the Army which promoted teamwork and anyone who complained of injuries ran the risk of being labelled as a "bludger" or a "slug". It was for that reason that he did not report the right knee pain that he felt from 1991 onwards. He experienced some of this when he complained about his left knee. He was also concerned at being downgraded if he mentioned his right knee condition because he had chosen the Army as a career that he wanted to pursue for twenty years or more.
12. In cross-examination, the applicant was referred to his statement (exhibit A2) where he said that he began to have problems with his right knee in "1994/95". He conceded that this was a mistake and said that the problem had emerged in 1990 or 1991. He said that he had been asked many questions about his knee and that this may have contributed to the mistake. He said that the problem had emerged before he moved into catering in 1992. He confirmed the reference in his statement that he felt intermittent sharp pain, sharp stabbing pain, inflammation, swelling, cracking or clicking and grinding. He also confirmed that, from about 1995 onwards, he experienced the right knee "giving way or collapsing on occasions" and that, by then, he was exepriencing a dull ache in the right knee every day. He said that he believed that he had advised both Dr Thompson and Dr Morris of this when he was examined in relation to his claim. He agreed that the collapsing of his right knee was the most severe of the symptoms and that this had happened "a few times" including when he was "in the field".
13. The applicant agreed that the first complaint of the right knee condition was in October 1999 when he was again referred to Dr Sharwood and that he had complained of back pain from 1991. In relation to the Army culture of not making complaint, he said that he reported the back because it "stopped him" but that this was not the case with the right knee because, although he felt pain in that joint, it did not "stop him". He said that he would "grit his teeth" and bear the pain. When he realised that he would be discharged because of his back, he then revealed the problem with the right knee. The applicant agreed that he had been given physiotherapy treatment for his back in 1991 and said that he thought that he had told the physiotherapist about the right knee condition. He was unable to explain an absence of reference to the right knee in medical reports in the early 1990s.
14. The applicant was referred to his Medical Board Examination Record completed on 19 June 1992 (see T18) and conceded that he had made complaint about his left knee and his back problem and said that the Army already knew about those problems but that he was concerned about revealing to the Army that he also had a problem with his right knee. He also agreed that he had made complaint of pain in the "groin area" on 25 February 1994 (see T19) and said that this was a "short term" concern and one that "could be fixed". As it didn't "stop him", he felt that he was able to make complaint about it.
15. In relation to the condition of "foot drop" that he suffered in 1998, the applicant said he had been concerned at the suggestion that he might have multiple sclerosis but did not feel that he needed to make reference to his right knee condition at that time. He agreed that he had further physiotherapy in March 1999 (see T26) and said that he believed he had advised the physiotherapist of his right knee problem at that time. He also agreed that he had seen Dr Sharwood again in March 1999, that he had undergone a comprehensive examination of his lower limbs and and that he had not told Dr Sharwood about his right knee at that time. He said that, at that stage, he was not in the process of being discharged and did not want the condition to appear on his medical records.
16. In relation to the collapsing of his knee, the applicant said that he believed he had advised examining doctors of this at the time of his discharge.
17. The applicant was referred to the letter that he had included with his claim form (see T49) and agreed that the letter made no reference to his duties in the catering corps in relation to his knee or to the collapsing of his knee and that he had implicated his back condition as being causally associated with the knee condition.
Medical Evidence
Dr Ronald Thompson
18. The applicant called Dr Thompson, a medico-legal consultant surgeon, who prepared a report, dated 13 July 2001 (see T58), and who gave the following evidence.
19. Dr Thompson examined the applicant in relation to his back and his knees and, in his report, diagnosed right chondromalacia patellae and included the following references to the knees:"In respect of the left knee, he appears to have had an open left medial meniscectmy in 1985, as a result of a football injury before joining the army.
In symptom terms, he said the knee recovered some time after the performance of that operation and, shortly after joining the army, there was an onset of pain at the left knee.
He said this resolved, however, and did not appear again until the "start of the nineties" and he denied any accident/injury to the left knee at any relevant time and suggests that there has been ongoing intermittent left knee pain since the "start of the nineties".
In respect of the right knee, he effectively seems to claim similarly as for the left side i.e there was onset of right knee pain at about the same trine as that on the left or some time later without any history of injury to the right knee at any relevant time" (see T58 at 85)."Physical examination of the right knee revealed no swelling of the part and a full range of painless passive extension/flexion was evident. No medial or lateral jointline tenderness was noted, the joint appeared stable and there was some discomfort on deep pressure over the right patella, which was exacerbated on simultaneous contraction of the right quadriceps muscle" (see T58 at 86).
"x-ray of the right knee of 8th November,1999 reported no abnormality..." (see T58 at 86)
"In respect of his right knee, it is possible that the nature and conditions of his infantry activities may have induced some degree of right chondromalacia patellae which appears to continue." (see T58 at 87)
20. Dr Thompson also completed a Schedule of Questions which included the following (see T58 at 88):
"Q5 – Does a direct causal link exist (ie on the balance of probability as distinct from possibility) between the claimant's military employment and the claimed condition?
A. Yes.
Q6 – Did the claimant's military employment aggravate, accelerate or cause to recur a pre-existing or underlying condition, or contribute in a material degree to the conditions aggravation, acceleration of the condition? If so, are the effects of the aggravation etc permanent or temporary in nature?A. No
Q7 – In your opinion, what is the percentage whole person impairment (WPI) suffered by our client under Tables 9.2 and 9.5?
A. Whole person impairment under 9.2 is 10%."
21. Dr Thompson said that the patella was not load-bearing in its function, that it slides over the end of the thigh bone, that pain would be felt on bending the knee but not with standing in one position because chondromalacia patellae comprises damage to the back surface of the knee cap. He also said that route marches of eighty kilometres with the associated constant bending of the knee would affect the patella and would do so to an extent greater than for a person in the community generally. He said that the condition is either present or it is not and that, if it is present, the person is aware of it. He said that, after the symptoms appear, they would continue especially if the reason for the presentation of the symptoms were to continue. The constant bending of the knee would then "entrench" the condition.
22. In cross-examination, Dr Thompson agreed that he had imposed some qualifications in his opinion when he wrote that it was possible that the nature and conditions of his infantry activities may have induced some degree of right chondromalacia patellae which appears to continue. However, he said that he should have said that it was "more probable than not" that the infantry duties may have induced some degree of chondromalacia patellae.
23. Whilst conceding that he was not an orthopaedic specialist, Dr Thompson said that he had experience with orthopaedics and that he had compiled some "30,000 to 40,000" medico-legal reports in such matters since 1986. He said that he had physically examined the applicant and, when he was referred to standard tests such as McMurray and Lachman by Mr Clark, said that he had conducted them although he conceded that these were not noted in his report. He said that the applicant had a full range of movement in the knee.
24. Dr Thompson was referred to Table 9.2 of the Guide to the Assessment of the Degree of Permanent Impairment (the Guide) which refers to range of movement loss and conceded that the rating of 10% which he had allocated in his report was not applicable under that Table. He then said that he had made an error in completing his response to question 7 and that he meant to refer to Table 9.5 of the Guide. In that regard, he said that, in his rooms, he had observed the applicant walk up an inclined surface, which he agreed was about one to two feet in length, and observed him negotiate two steps. He said that he based the rating of 10% on those observations. He also said that he had made notes at the time of seeing the applicant but that these were now unintelligible even to him. He also said that he was unable to recall whether the applicant had advised him that his right knee had collapsed or whether it cracked and he agreed that these references were not in his report.
25. Dr Thompson said that, unless it was congenital, chondromalacia patellae was not a naturally occurring condition and that the applicant would not have developed the condition if had not been in the armed services. Also, he said that if it were congenital in the applicant, he would expect it to have appeared within about eighteen months of his service commencement.
26. In his evidence, Dr Thompson said that he was not able to recall whether he had been advised by the applicant that he was on medication at the time of the examination.
Dr John Morris
27. Dr Morris is an orthopaedic surgeon and said that he had practised in that field for twenty-seven years. He said that chondromalacia patellae is a condition which occurs naturally in about 40% of the population but that not all would experience symptoms. He said that it can also result from trauma such as where a person's knee contacts the dashboard in a motor vehicle accident and that it was common amongst members of the armed services who are involved in activities such as climbing walls and jumping from heights. He also said that it is not the type of injury that marathon runners or bicycle riders suffer from although he considered that, if a person had chondromalacia patellae, it would be aggravated by riding a bicycle. If that happened, he said that the pain would be temporary. Dr Morris said that the condition was common among teenage girls and that it was not unusual in a male of the applicant's age.
28. Dr Morris examined the applicant and completed a report dated 4 April 2001 (see T54). He conducted the McMurray test, which he said relates to detection of cartilage tears, and the Lachman test, which he said relates to detection of cruciate ligament tears, and found them both to be negative. He also consulted x-ray reports. He observed no fluid on the right knee and noted only mild patellofemoral signs. Dr Morris said that he was not aware of whether the applicant was on medication for his back when he saw him and examined his knee but said that, even if he were, it would probably still reveal pain when he put pressure on the knee.
29. He expressed the opinion in his report that employment was probably not the principal cause of the applicant's condition but that it could have aggravated the condition. In his oral evidence he said that the condition would not be caused by his employment activities but confirmed that these could have aggravated it. In his report, he expressed the opinion that employment may have contributed by a factor in the range of 0% to 9% and that running or walking would be relevant. In oral evidence, he said that he included those comments because he could not rule it out completely. He described the condition in the applicant as "mild chondromalacia patellae", that "the employment related aspects of the condition are temporary" and that the "employment effects ceased after he undertook exercise". Dr Morris also considered that there was a 0% impairment under Table 9.2 and Table 9.5 of the Guide and that the applicant "should be able to continue the duties of his pre-injury employment".
30. Dr Morris also said that the applicant's right knee condition would not be caused by the applicant's left knee condition or by his back condition.
Applicant's Submission
31. Mr Robertson submitted that the applicant enlisted in the Army with the intention of making it a career and that he suffered injury to his right knee in the form of chondromalacia patellae as a result of the duties associated with his training as an infantryman. He said that these included undertaking route marches, carrying packs of up to thirty to thirty-five kilograms as well as the obligations associated with BFA testing. Mr Robertson conceded that the applicant did not seek medical attention for his right knee while in the infantry and submitted that this was because he was concerned at being identified as a malingerer and because he feared the prospect of being medically downgraded which would have resulted in his discharge. He said that he did seek medical attention for a back problem from as early as 1991 but did not report his knee problem until 1999 when he was to be discharged because of his back condition and, at that time, he received medical treatment for the right knee condition.
32. Mr Robertson submitted that the evidence of Dr Thompson and of Dr Morris establish the diagnosis of chondromalacia patellae right knee and that the report of Dr Thompson should be adopted in preference to that of Dr Morris in relation to the permanent nature of the condition because it was completed more recently, because the evidence of Dr Thompson was more consisitent with the level of symptoms described by the applicant in his evidence and because, at the time of the examination and testing conducted by Dr Morris, the results may have been masked by the effects of medication that the applicant was taking for pain relief. He also submitted that Dr Morris said that he could not completely rule out a causal link between the the applicant's employment and the right knee condition whilst Dr Thompson's opinion was that such a relationship does exist. In that situation, Mr Robertson submitted, the terms of section 14 of the Act were met.
Respondent's Submission
33. For the respondent, it was contended by Mr Clark that the applicant's chondromalacia patellae right knee was a degenerative condition which developed naturally but which was aggravated, but only on a temporary basis, by aspects of his service. Further, it was submitted that the service-related component had abated by the time that the applicant was examined by Dr Morris and that, therefore, from 4 April 2001, the date of Dr Morris' report, there was no injury for which the respondent was liable.
34. Mr Clark submitted that the report of Dr Morris should be preferred to that of Dr Thompson and also that the applicant's evidence about the experiencing of right knee pain before 1999 should be rejected.
Consideration
35. In accordance with sub-section 14(1) and the definition of injury in sub-section 4(1) of the Act, the respondent will be liable to pay compensation to the applicant for an injury arising out of, or in the course of, the applicant's employment in the army. Also, the respondent will be liable to pay compensation to the applicant for an aggravation of an injury, where that aggravation arose out of, or in the course of, that employment even where the injury itself did not arise out of, or in the course of, that employment.
36. Dr Morris said that chondromalacia patellae is a condition which occurs naturally in some 40% of the population, that it can also result from direct trauma such as in a motor vehicle accident and that it was not unusual in a male of the applicant's age. He also said that it was common amongst those who involved themselves in activities such as climbing walls and jumping from heights. Further, he said that it was not the type of injury runners or bicycle riders suffer from and, as I understand his evidence, it was that those kinds of activities may aggravate an existing chondromalacia patellae. It was also Dr Morris' evidence that, in his experience, if there were such an aggravation, the effects would be temporary.
37. Dr Thompson, in one part of his report, said that it was possible that the applicant's infantry activities may have induced some degree of right chondromalacia patellae (see paragraph 19 above). In his oral evidence, Dr Thompson was referred to that statement and he said that he should have stated that it was a probability, rather than a possibility, that there was a causal link between the condition and the applicant's military employment. In another part of his report, he said that the relationship was one that was more probable than not (see paragraph 20 above).
38. That was not the only inconsistency in the evidence of Dr Thompson. He described the applicant as having no range of movement loss in his knee but allocated a 10% impairment under Table 9.2 of the Guide which was prepared by the respondent pursuant to sub-section 28(1) of the Act. Table 9.2 deals with loss of movement and the description given by Dr Thompson would not equate with 10% impairment. It would be more likely to equate with a 0% impairment. Table 9.2 of the Guide reads:
"TABLE 9.2
Lower Extremity
(Percentage Whole Person Impairment)
Assessment is in accordance with the range of joint movement. X-rays should not be taken solely for assessment purposes.
% DESCRIPTION OF LEVEL OF IMPAIRMENT
0 X-ray changes but no loss of function of hip, knee or ankleor
Ankylosis or lesser changes in any toes except the first hallux
5 Loss of less than half normal range of movement of ankle
10 Any ONE of the following:
loss of less than half normal range of movement of hip or knee
loss of half normal range of movement of ankle
ankylosis of first hallux
15 Loss of more than half normal range of movement of ankle
20 Any one of the following:
loss of half normal range of movement of hip or knee
ankylosis of ankle
30 Loss of more than half normal range of movement of hip or knee
40 Ankylosis of hip or knee"
39. Dr Thompson purported to justify the rating of 10% by indicating that he was mistaken about the Table and that he meant to nominate Table 9.5 of the Guide. The criterion for the 10% whole person impairment in Table 9.5 of the Guide reads:
"Can rise to standing position and walk but has difficulty with grades and steps."
40. As I understand the evidence of Dr Thompson, the only testing that he did of the applicant's capacities was in his rooms and that extended to observing the applicant negotiate a two step structure and an inclined surface of "1 to 2 feet" in length. Dr Thompson was not able to refer to his notes, which he described as being "unintelligable even to him", in order to reach his changed opinion of the relevant Table that he was referring to. Significantly, nowhere in the body of his report is there a reference to difficulties experienced by the applicant on steps or grades and, therefore, nothing to suggest that Dr Thompson gave consideration to those aspects of impairment when preparing his report. The only references in relation to the right knee are to an absence of swelling and tenderness, to a full range of painless passive extension/flexion and to some discomfort on deep pressure over the right patella. The reference by him in his report to the 10% rating under Table 9.2 followed a question where he was asked, specifically, what the whole person impairment was under both Table 9.2 and 9.5. Given that Dr Thompson said that said that he had completed some 30,000 to 40,000 reports since 1986, given the importance of identifying the correct Table in the Guide and given the absence in his report of a comment about the kinds of activities which are the focus of Table 9.5, I can not be satisfied that there was merely a mistake by Dr Thompson in the preparation of his report.
41. Dr Morris is an orthopaedic surgeon of twenty-seven years experience and I prefer his evidence to that of Dr Thompson in this matter because of his specialty and because of the inconsistencies in Dr Thompson's evidence. In Dr Morris' opinion, the applicant's condition was aggravated by rather than caused by the activities of his military employment, that it manifested itself on a temporary basis and that the symptoms had abated by the time of his examination as reflected in the 0% whole person impairment allocated by him under both Table 9.2 and Table 9.5 of the Guide. I accept the evidence of Dr Morris in relation to the applicant's knee condition.
42. The applicant lodged his claim for the condition in 2000 and there is a reference in his files to complaint in relation to the right knee in November 1999 in a Medical Examination Record (see T43). In his claim form, he referred to 22 October 1999 as the date on which he first received treatment (see T50). This lack of complaint about his right knee until then is in spite of his making complaint on many occasions about his back and peroneal nerve lesion in his right leg and having referrals to and examinations by orthopaedic specialist Dr P Sharwood in 1998 and 1999 (see T21, T23, T29, T34 and T40) in relation to those conditions. He also made complaint of a groin pain (see T19). The explanation that he was concerned about being discharged or of being labelled as a malingerer if he made complaint about his right knee may be understandable in some circumstances. However, in this case, such an explanation is inconsistent with the making of complaint about the other conditions. The applicant also gave inconsistent accounts of his understanding of the timing of the onset of symptoms in his right knee in that he nominated 1994 or 1995 in his written statement (see exhibit A2) but also said that he was experiencing symptoms whilst in the infantry. That was prior to joining the catering corps in 1992. In his claim form, he nominated the date on which the injury happened or when he first noticed it as being "? 95" (see T50 at 66). The applicant also gave inconsistent accounts of the level of symptomatology experienced by him. In particular, in his statement and in oral evidence he referred to "collapsing" as being the most severe of his symptoms and yet no reference to that appears in any of the medical reports.
43. I am satisfied that the applicant has the condition of chondromalacia patellae right knee but that this is not an injury that arose out of or in the course of his employment in the Army. I am satisfied that the applicant experienced an aggravation of that condition towards the end of his Army employment resulting in treatment on 22 October 1999. I am satisfied that the aggravation arose out of his Army employment. I am also satisfied that the aggravation was a temporary condition and that it was no longer manifest by 4 April 2001, the date of Dr Morris' report.
Decision
44. In all the applicant's circumstances and for the reasons set out above, the decision under review is affirmed.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: .....................................................................................
AssociateDate of Hearing 7 October 2002
Date of Decision 18 October 2002
Counsel for the Applicant Mr Robertson
Solicitor for the Applicant Ms Streader, D'Arcys Solicitors
Counsel for the Respondent Mr Clark
Solicitor for the Respondent Ms Houston, Blake Dawson Waldron
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