O'Keefe and Telstra Corporation Limited
[2004] AATA 400
•21 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 400
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1107
GENERAL ADMINISTRATIVE DIVISION )
Re DALE O’KEEFE Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Ms MJ Carstairs, Member Date21 April 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ............….(Sgd)......................
MJ Carstairs
Member
CATCHWORDS
COMPENSATION – left knee injury – claim for permanent impairment – whether the 1971 Act or 1988 Act applies – whether any impairment or loss of efficient use of the knee
Safety, Rehabilitation and Compensation Act 1988 ss 4, 24
Compensation (Commonwealth Government Employees) Act 1971 ss 39(11)REASONS FOR DECISION
21 April 2004 Ms M Carstairs, Member 1. This is an application by Dale O’Keefe (the applicant) for review of a reviewable decision made by a senior claims officer on 27 November 2002. The officer affirmed a determination dated 24 October 2002, rejecting the applicant’s claim for permanent impairment of his left knee.
2. At the hearing the applicant represented himself. Telstra Corporation (the respondent) was represented by Mr C Clarke of counsel instructed by Sparke Helmore, solicitors.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act1975 numbered T1-T31 as well as exhibits A1-A8 for the applicant and R1-R5 for the respondent. After the hearing Mr O’Keefe requested that the material in exhibit R5 not be disclosed except to the parties to the hearing.
BACKGROUND
4. The applicant is aged fifty-six. He worked for the respondent from 18 August 1980 until 8 April 1988 as a technician. He sustained two injuries to his knee for which he has received compensation. The first occurred in August 1980 when he fell and injured his left knee on a cement ledge (the first injury). An accident report form dated 10 April 1984 (T17) states that the applicant was descending stairs when he slipped on polished tiles and fell, landing on his knees (the second injury). The applicant left employment with the respondent in 1988 and subsequently worked in his own business installing televisions and antennas. He ceased this employment in 1997.
5. On 9 September 2002 the applicant claimed for permanent impairment. The respondent rejected the claim. The applicant sought review with this Tribunal on 19 December 2002.
EVIDENCE
6. Mr O’Keefe told the Tribunal that he sustained the first injury when he was jumping to the ledge in an area behind the exchange where he worked and lost control on loose blue metal that shifted under his feet. He said he now could not recall the second injury.
7. Mr O’Keefe said that his left knee continued to trouble him, but he said he had adapted his method of walking and supporting himself on stairs and slopes. He said that he is concerned that he will not be able to continue this technique as he grows older. He pointed out that he was told by his general practitioner about two years ago that he needed to lose weight to take pressure off his knee. He said he has lost some 18 kilograms in weight. Mr O’Keefe provided the Tribunal with photographs of his ankles, knees, feet and the soles of his shoes (exhibit A8).
8. Mr O’Keefe disputed medical reports, including that of Dr T Blue, orthopaedic surgeon, which state that he walks with a normal gait. The report of Dr B Martin, orthopaedic surgeon, recorded Mr O’Keefe as saying that his knee was not troubling him after Dr Martin tested him on stairs. Mr O’Keefe said that he meant to qualify his statement in response to Dr Martin by mentioning that he experiences a sensation in his knee after exercise that tends to mask pain.
9. Mr O’Keefe said that the tear in the medial meniscus (which is cartilage in the knee joint) now appearing in magnetic resonance imaging (MRI) of the left knee was likely to be present from the first injury. He said that if medical practitioners had known about the tear, the treatment he received might have been different.
10. Mr O’Keefe said that his knee collapses when he climbs stairs, though he does not fall. He said he can no longer play golf and has taken up lawn bowls. He acknowledged in cross-examination that he had operated his own business installing televisions between 1988 (when he left the respondent) and 1997 and that this business involved climbing ladders and navigating inclines on roofs. He agreed also that there were only two references in the notes of his general practitioner to attendances by him for his left knee. He referred the Tribunal to diaries that he had completed in 2002/2003 outlining his pain (exhibit A4) when he was attending a physiotherapist in Western Australia.
11. In a medical report dated 15 April 1981, Dr I Dickinson, orthopaedic surgeon, commented that the problems that the applicant was having with his knee were consistent with a direct blow to the knee such as the applicant had suffered three months previously at work. The applicant’s general practitioner, Dr Scott, in a report dated 28 April 1981 stated that the applicant’s symptoms had settled in February 1981. Dr Gallagher, orthopaedic surgeon, in a report dated 19 June 1981 (T14), stated that the effects of the injury were temporary and could be expected to cease in a further three months.
12. In a medical report dated 27 November 1984 (T22), Dr T Keays, orthopaedic surgeon, stated that Mr O’Keefe had few symptoms of note when he saw him in June 1984 and he required a program of exercises only.
13. In a report dated 20 August 2002 (T25), Dr J Pentis, orthopaedic surgeon, noted that Mr O’Keefe was reasonably fit, and had told him while he could no longer play golf he was walking for exercise. Dr Pentis considered that the applicant had chondromalacia of the patella, which would restrict his ability to undertake more strenuous activities. He considered that the applicant had a 10% whole person impairment under Table 9.2 and Table 9.5 with a decreased ability to squat and 50% decreased range of movement (he referred to the hip, in error, it seems) and was experiencing difficulty with grades and steps. Dr Pentis considered that the applicant’s left knee condition had become permanent after 1 December 1988.
14. In a report dated 21 October 2002 (T26), Dr Blue concluded that the applicant’s knee was completely normal in functioning and appeared normal in x-rays. He considered that the applicant had made a full recovery from the injury sustained in 1980 and therefore rated him as having NIL impairment under the Tables. Dr Blue said that the assessment by Dr Pentis was incorrect as the applicant had a full range of movement of his left knee and his hip. Dr Blue confirmed his opinion in a further report dated 25 March 2004 (exhibit R1). Dr Blue stated that he took account of the applicant’s complaint of grating and aching in the left knee after light exertion. Dr Blue said the left knee was completely normal on clinical examination and he considered the MRI reflected a completely normal function of the knee even taking into account the incomplete under-surface tear of the left medial meniscus. Dr Blue concluded that the effects of any compensable condition had ceased, and in the further report also dated 25 March 2004 he said that there was no permanent impairment of the left knee.
15. A report on a MRI of both knees, completed by Dr J Sykes on 1 September 2003 (exhibit A7) stated that the medial meniscus of the left knee showed changes consistent with an oblique tear to the undersurface. He noted that the ligaments were intact and there were early degenerative changes.
16. In a report dated 8 October 2003 (exhibit A2) Dr J Curtis, orthopaedic surgeon, stated that the applicant described pain when playing lawn bowls which persists the following day; symptoms of aching when sitting for prolonged periods; locking, but no instability of the left knee. Dr Curtis said there was some tenderness without deformity in the knee, and while he noted a possible tear in the area of the medial meniscus, he considered that the applicant rated NIL under Tables 9.2 and 9.5 of the Guide. In a further report dated 9 February 2004 (exhibit A3), Dr Curtis amended this to state that the applicant had a 5% permanent impairment of the left leg.
17. In two reports dated 30 April 2003 (exhibit R3 and R4), Dr B Martin, stated that Mr O’Keefe’s gait was normal, that he could execute a full squat, was able to ascend and descend a flight of stairs without difficulty and without the help of a railing. He recorded that the applicant told him that his left knee was not troubling him after doing this exercise. Dr Martin further stated that there was full range of movement in the knee and ligaments were intact. Dr Martin concluded that he could diagnose no medical condition of the left knee. He said that the history of the original injury suggested that it was a contusion without sequelae, and any injury had resolved.
18. In oral evidence Dr Martin said that the MRI was more consistent with age-related symptoms than with trauma and noted that the applicant had no meniscal symptoms despite the evidence of an incomplete tear in the MRI. Dr Martin said that twisting injuries damage the meniscus, not direct injuries such as the contusion that Mr O’Keefe sustained in the first injury.
19. In a report dated 13 March 2004 (exhibit A6) Dr G Doig stated that the applicant told him that he has ongoing niggling pain and aching after exercise and that he has difficulty when playing lawn bowls. Dr Doig said that there was no effusion, (that is, passage of fluid into tissue or body cavity); and there was full range of movement though some pain on full flexion of the knee. He said that an argument could be made both on clinical and MRI grounds that the initial injury was a tear of the medial meniscus and not patellofemoral damage. Dr Doig stated that if a partial meniscectomy had been performed in 1980 there would be a whole person assessment of 1% under the American Medical Association Tables.
CONSIDERATION OF THE ISSUES
20. Under s4 of the Safety Rehabilitation and Compensation Act (the 1988 Act), the words permanent and impairment are defined as follows:
4(1) In this Act, unless the contrary intention appears:
permanent means likely to continue indefinitely.
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.
21. The Principles of Assessment at page 3 of the Guide, under the heading Impairment and Non-Economic Loss, state:
Impairment is measured against its effect on personal efficiency in the ‘activities of daily living’ in comparison with a normal healthy person.
22. Section 24 of the 1988 Act sets out that in deciding whether an impairment is permanent, account must be taken, amongst other things, of the duration of the impairment; any likelihood of improvement; and whether reasonable rehabilitative treatment has been undertaken.
23. The legislation at the time of the applicant’s injury was the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act). Section 39(11) of the 1971 Act provided that compensation was payable for injury resulting in partial loss of efficient use of a part of the body, including at or above the knee and below the knee: s39(4).
24. Mr O’Keefe submitted that the 1971 Act applied to him as it was in force at the time of the injury. He made submissions generally that were critical of the findings and conclusions made by various medical practitioners. He pointed to the evidence from Dr Gallagher’s report in 1981 that as a result of his contusion injury, he should not undertake the activities that were involved in his work, including jumping, running and climbing ladders. He submitted however that Dr Gallagher was incorrect to conclude that the effects would be temporary, as the evidence of the recent MRI was that he had sustained a tear to the medial meniscus. Mr O’Keefe submitted that Dr Doig’s report now lends support to the proposition that the original injury was a tear to the medial meniscus and should be preferred to the evidence of Dr Martin on this point. He submitted that the medical evidence showed that he was treated conservatively and he said that this meant favouring the preservation of established customs. He said that had this not been the case, after his first injury he would not have had to adopt a technique of walking and climbing stairs that now denies him compensation for permanent impairment. He said that if he uses his legs equally, his level of pain increases. Mr O’Keefe submitted that if Dr Curtis knew more about the background to his claim he would have given an assessment greater than 5%.
25. Mr Clarke submitted that the issues were whether there was any causal link between the condition of the knee now and the injury in 1980, the level of impairment if any, and whether any impairment became permanent before the 1988 Act came into effect. He submitted that there was some evidence, including the report of Dr Dickinson, that the condition of the knee had become permanent prior to 1988. However Mr Clarke submitted that, taken overall, the medical evidence was consistently showed that the applicant had recovered from the first injury. He said that the applicant’s knee did not rate 10% under the 1988 Act (which is necessary before any payment for permanent impairment could be made), and he said that no payment for the knee could be made under the 1971 Act.
26. Mr Clarke submitted that Dr Doig’s report was based on speculation and that the evidence of Dr Martin that the initiating injury did not involve a tear of the medial meniscus should be preferred. Mr Clarke submitted that on the evidence of Drs Curtis, Martin and Blue there was no diagnosable underlying condition and no impairment. He submitted that Dr Pentis did not undertake objective testing on stairs and relied on the account of symptoms given to him by the applicant. All other orthopaedic surgeons, he said, could find nothing demonstrably wrong with the applicant’s knee. He submitted that though the applicant asserted that he has adopted a technique to overcome his disability in the knee, this does not provide a measure of impairment. He said that Mr O’Keefe’s left knee was correctly rated at NIL. Mr Clarke said that Dr Curtis was incorrect to assign a 5% rating to the knee condition and his report did not set out the basis on which he made that assessment.
27. The Tribunal took into account the oral and written evidence, the photographic evidence and the submissions at the hearing, as well as additional material forwarded by Mr O’Keefe after the hearing.
28. On the question of whether the 1971 Act or the 1988 Act applies, the Tribunal took into account the evidence of Dr Pentis that the condition of the knee became permanent after 1988, as well as the evidence of Dr Blue and Dr Martin that there is no significant impairment of the knee. The Tribunal preferred the evidence of Dr Blue and Dr Martin to that of Dr Pentis as their evidence was consistent with the medical reports soon after the first injury that state that the injury was temporary and the knee would recover in time. The Tribunal finds on the basis of the report of Dr Keays that Mr O’Keefe’s left knee injury had resolved by 1984. The Tribunal accepts the evidence of Dr Blue and Dr Martin that although Mr O’Keefe injured his knee in the past, it has recovered to the extent that the function of the knee is essentially normal now.
29. The Tribunal accepts Mr O’Keefe’s evidence that he is able to manage his knee because of the adaptations he has made with his gait and when using stairs. However the Tribunal accepts the evidence of Dr Blue, Dr Curtis and Dr Martin that there are few clinical signs that there is anything wrong with his knee. In regard to the possible tear of the medial meniscus, the Tribunal accepts the evidence of Dr Martin that this is not related to the first injury. Both Dr Martin (in his first report) and Dr Blue took into account the tear to the medial meniscus when assigning an impairment rating of NIL for the left knee. The Tribunal preferred the evidence of Dr Blue, Dr Curtis, and Dr Martin that Mr O’Keefe is not restricted in his range of movement in the knee and can manage grades, steps and inclines. Dr Pentis did not carry out comprehensive tests that other orthopaedic surgeons who have reported on Mr O’Keefe’s knee have carried out.
30. The Tribunal does not accept the respondent’s submission that the knee could not be rated under the 1971 Act if the knee condition was permanent prior to 1988. Section 39(11) would allow for an assessment of partial loss of efficient use. However, Mr O’Keefe has not established that he has an injury resulting in partial loss … of the efficient use of a part of the body. In reaching that conclusion the Tribunal prefers the evidence of Dr Blue, Dr Martin, and in Dr Curtis’ first report, that there is no rateable impairment and that the knee is clinically normal, with full range of movement. The Tribunal does not accept the evidence of Dr Curtis’ second report attributing 5% impairment to the knee as Dr Curtis provides no basis for the assessment and it is not consistent with the comprehensive findings of his first report.
31. Mr O’Keefe does not have impairment as that term is defined in the 1988 Act, even if he could establish that his injury became permanent after 1988. That term in the 1988 Act entails the loss, the loss of the use, or the damage or malfunction of a part of the body. Having accepted the medical evidence that the knee functions normally, the Tribunal finds that the applicant does not have impairment as defined in the 1988 Act. Mr O’Keefe therefore is not eligible for a payment in respect of the knee either under the 1971 Act or the 1988 Act.
DECISION
32. For these reasons the Tribunal affirms the decision under review.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M Carstairs, Member
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 5 April 2004
Date of Decision 21 April 2004The Applicant appeared in person
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Sparke Helmore
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