Obernier and Australian Postal Corporation
[2007] AATA 2083
•21 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2083
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/911 & N2006/870
GENERAL ADMINISTRATIVE DIVISION ) Re MOIRA OBERNIER Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
Dr Alexander, MemberDate21 December 2007
PlaceSydney
Decision The decisions under review are affirmed.
...................[Sgd]......................
Ms N Bell
Senior Member
COMPENSATION – Permanent Impairment – Back Condition – Knee Condition – New injury or Aggravation of Pre-Existing Condition Arising from the Fall – Have the Injuries Resolved – Lower Back Symptoms are a Temporary Exacerbation of the Underlying Condition – Problems Currently Suffered were not Caused by or Contributed to by the Fall – The Decision Under review is Affirmed.
Safety Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
1. On 29 April 2003, Mrs Obernier, an employee of Australia Post, fell down two steps while delivering mail. On 7 May 2003 she submitted a compensation claim for injury to the left shoulder, left knee and shin and lower back. Australia Post accepted liability under Section 14(1) of the Safety Rehabilitation and Compensation Act 1988 (the Act) for low back strain, left shoulder rotator cuff strain and left knee injury.
2. On 22 April 2005, Mrs Obernier submitted a claim for permanent impairment to her lower back and knees under sections 24 and 27 of the Act. Australia Post denied liability for permanent impairment. This was affirmed on 11 July 2005 after reconsideration.
3. Australia Post also determined that there was no present liability for the accepted back condition, a decision affirmed on the 28 June 2006. These two decisions are under review.
Issues
4. Two main issues arise out of these applications. The first is what injuries Mrs Obernier suffered when she fell. This involves a consideration of what injuries or conditions she suffered from immediately before her fall and whether the fall gave rise to new injuries or aggravated any pre-existing conditions affecting her back and her knees. The second issue is whether any injuries she suffered resulted in a permanent impairment of her back or her knees, that is, whether Mrs Obernier continues to suffer from any injuries that followed her fall or whether the effects of her fall have resolved.
What injuries did Mrs Obernier suffer following her fall?
Back
5. In her oral evidence Mrs Obernier said that when she fell she landed on her knee caps and twisted on one arm. She claimed that immediately after the fall her left shin hurt where she had cut it and that she ached all over. Subsequently she claimed her back was very sore, it was hard to sit and the pain was located in the central lumbosacral region.
6. In the following weeks Dr Woolnough provided three medical certificates. The first, dated 2 May 2003, stated that the diagnosis was “(L) shoulder rotator cuff strain, bilateral retro-patellar irritation, low back strain”. The clinical record on that day noted good range of movement of the lumbar spine, small bilateral knee effusions, the left greater than the right but good range of movement of both knees.
7. The second, dated 7 May 2003, stated that the diagnosis was “(L) shoulder strain, AC joint & rotator cuff, (L) knee retro-patellar contusion, low back strain”. The clinical record noted a good range of movement with some low back discomfort and the right knee was now OK but the left knee still had a small effusion with tenderness over the patella.
8. The third, dated 14 May 2003, stated that the diagnosis was “(L) rotator cuff strain, (L) knee-possible minor meniscus tear, minor low back strain”. The clinical record noted some stiffness in the lumbosacral spine and a minor effusion in the left knee with persisting tenderness. Mrs Obernier also complained that the left knee was occasionally “clicky”. There was no mention of the right knee.
9. An X-ray of the left knee was done and this was reported as showing no abnormalities. At this time no X-rays or scans of the lumbosacral spine were done and treatment consisted of anti-inflammatory medication and a physiotherapy program.
10. Mrs Obernier returned to work on restricted duties about one week after the fall and resumed her pre-injury duties by the beginning of July 2003.
11. In deciding this issue we were confronted with a number of difficulties.
12. First, the overall evidence clearly points to a conclusion that Mrs Obernier suffers from a longstanding degenerative condition of the lumbosacral spine and that she has had intermittent episodes where her symptoms increase followed by periods of recovery with minimal or no symptoms. It also appears that the underlying condition has progressed over time and that the symptoms have become more persistent and at times more severe. Second, Mrs Obernier’s evidence was often uncertain and at times inconsistent with the documentary evidence. Third, the abundant medical evidence, involving several medical practitioners, was often conflicting and at times unhelpful.
13. We accept that following the fall, Mrs Obernier had increased symptoms, mainly pain, in her lower back.
14. Notwithstanding the assertions by Mrs Obernier that she had not suffered significant lower back symptoms prior to her fall there is clear evidence that on at least two occasions she had symptoms severe enough to convince her General Practitioner to undertake radiological investigations. We noted that a CT scan and plain X-ray of the lumbosacral spine in 2002 showed degenerative changes.
15. Mrs Obernier ultimately conceded that in 2002 she suffered some back pain after stacking some crates but indicated that this pain had been different in nature and location and that it had resolved spontaneously with analgesics and rest. Her memory of this occurrence was vague but she did remember having an X-ray.
16. The clinical record of Dr Matthews, her General Practitioner, dated 15 August 2002, noted Mrs Obernier was suffering significant lumbosacral pain and that he ordered X-rays and a CT scan. A subsequent entry in the record noted that the CT scan was consistent with L5/S1 disc problems.
17. Although her recollection was uncertain, Mrs Obernier conceded that she had also had an X-ray of her back in 1997. Dr Matthews’ clinical record noted that on 17January 1996, Mrs Obernier had complained of lumbar pain for two months, noting that it was worse in the morning and associated with stiffness. An X-ray was done at that time and was reported as showing no abnormalities apart from some marginal osteophyte formation in the mid lumbar spine.
18. In a comprehensive report, dated 24 January 2006, Dr McGill, Consultant Rheumatologist, reviewed a number of the X-rays provided to him by Mrs Obernier.
19. These included plain X-rays of the lumbosacral spine, dated 17 January 1996, that demonstrated “marginal osteophyte formation arising from the vertebral bodies at multiple levels but no disc space narrowing”. He concluded that the changes were consistent with “relatively mild widespread degenerative spinal disease”.
20. The plain X-rays and a CT scan of the lumbosacral spine, dated 19 August 2002, demonstrated osteophytes arising from the vertebral bodies and minimal narrowing of the L5/S1 disc and the CT scan showed disc bulging at L4/5 and L5/S1.
21. Notwithstanding Mrs Obernier’s evidence it would appear that she had degenerative changes in her spine and lower back symptoms for up to seven years prior to her fall in 2003.
22. In her evidence Mrs Obernier claimed that following her fall in 2003 the pain in her lower back had remained the same. She also claimed that she developed pain and numbness in her right leg and foot but was unable to remember when this had happened. In October 2003 Mrs Obernier’s lower back symptoms became more severe.
23. We note that, on 15 October 2003, Dr Woolnough recorded in his clinical notes that Mrs Obernier had suffered a sudden onset of lower back pain while at work but that this had settled with Celebrex and that there had been no sciatica or paraesthesia. Physical examination revealed muscular tightness and decreased flexion.
24. In a letter to Australia Post, dated 24 October 2003, requesting approval for further physiotherapy following a recurrence of her lower back symptoms, Mrs Obernier wrote “ since my fall on the 29th April and recovery, I still had discomfort in my lower back now and then. I self managed it by taking Celebrex and Panadeine. But this time I could not control it”
25. Mrs Obernier was placed on restricted duties and referred to Dr Carr, Rheumatologist, for assessment. In a report, dated 7 November 2003, Dr Carr noted that Mrs Obernier gave no background history of any back pain or sciatica and that following her recovery from her fall her back would sometime get “tight” at work but that she did not have any stiffness or pain.
26. He reported Mrs Obernier as saying that early in October 2003 she had noticed increased stiffness and tightness in the lower back and had treated herself with Celebrex and Nurofen tablets. One morning later in October she had difficulty getting out of bed and was unable to “do up her shoelaces” because her back was “stiff and tight and sore”. Her symptoms, however, had subsequently improved with massage and exercises.
27. On examination, Dr Carr noted normal and unrestricted range of movement of the lumbosacral spine. He concluded that Mrs Obernier had suffered a “soft tissue strain injury of her lower back in her fall of 29.4.2003.” Dr Carr opined that as Mrs Obernier had no pre-existing back complaint and has had problems since the fall in April 2003, it is likely that her symptoms in her back are entirely attributable to the fall.
28. We note that Dr Carr, in reaching his opinion, had assumed that Mrs Obernier had not had any symptoms related to her back prior to 2003 and that she had not had any X-rays of her back. His opinion, with regard to the relationship between the fall and Mrs Obernier’s symptoms, must be given little weight.
29. In April 2004, just after Mrs Obernier had been on four weeks of recreation leave, she was referred by her General Practitioner to Dr Rosenberg, Orthopaedic Surgeon.
30. In a brief letter, dated April 8 2004, Dr Rosenberg noted that in 2003 Mrs Obernier had fallen at work injuring her knees and left shoulder, that the symptoms had settled and that she had returned to work. He further noted that subsequently in October 2003 she developed pain and her “back cramped up” and that since that time she had ongoing problems particularly with pain associated with periods of sitting. He noted that Mrs Obernier had denied any leg pain.
31. Physical examination revealed some stiffness with limited forward flexion, tenderness from L4 to S1, unimpeded straight leg raising and normal neurological examination. Dr Rosenberg noted that a CT scan showed a small bulge of the L4/5 disc. He diagnosed disc injury and suggested an MRI scan. The report of the MRI scan dated 22 April 2004 noted disc desiccation throughout the lumbosacral region and a focal left postero-lateral disc protrusion at the L3/4 level with posterior displacement of the L4 nerve root.
32. On 19 May 2004a left L4 nerve root block was performed at the L4/5 level notwithstanding that the MRI scan indicated pathology at the L3/4 level. In her oral evidence Mrs Obernier said that the nerve block did not give her any relief as ”they hit the wrong nerve.”
33. In a letter, dated 13 August 2004, Dr Rosenberg noted that at that time Mrs Obernier was continuing to suffer pain but that there was “not a surgical lesion present.” He also noted that she would be unlikely to cope with her former work duties. During most of this period Mrs Obernier remained at work on restricted duties.
34. In June 2006 Mrs Obernier was again referred to Dr Rosenberg by her GP for review of her continuing lumbar pain and left sciatica. The report of an X-ray of the lumbar spine, dated 19 June 2006, noted multilevel narrowing of the disc spaces with end plate sclerosis and spondylosis with minimal anterolisthesis of L4/5 on extension that increases on flexion. The report of an MRI scan, dated 20 June 2006, noted mild degenerative changes at the L2/3 and L3/4 intervertebral joints level and at L4/5 and L5/S1 facet joints. There was also a tiny annular tear and mild left postero lateral disc protrusion at L4/5. We note that there was no longer a disc protrusion at L3/4 as described in the earlier MRI scan.
35. Dr Rosenberg recommended that an operation would be appropriate. On 30 June 2006 an L4/5 discectomy, neurolysis and Wallis Fusion were performed. In a letter, dated 27 September 2006, Dr Rosenberg noted that Mrs Obernier was doing well, that her preoperative leg pain had gone and her back had improved by 50%.
36. In September 2004 Mrs Obernier was referred to Dr Chase, Occupational Physician, for further assessment. In a report, dated 22 September 2004, Dr Chase concluded that Mrs Obernier suffered from low back pain probably due to intervertebral disc degenerative changes and that she was fit work with the only restriction being a 16kg lifting limit. Mrs Obernier had told him that she had occasional back pain but had no difficulties performing her pre-injury duties. Dr Chase’s oral evidence did not assist the Tribunal any further on the issue of the lower back.
37. In a report, dated 16 February 2005, Dr Endrey-Walder, Surgeon, opined that Mrs Obernier had suffered a compacting injury to her lower back at the time of her fall. In his oral evidence he confirmed this opinion that the injury was to the spine at the L4/5 level. He was unable to point to any evidence to support this opinion. When asked about the difference between the MRI scans. He told the Tribunal that in 2004 there was a protrusion at L3/4 and in 2006 a protrusion at L4/5 and opined that this represented an error in reporting. He was uncertain as to whether he had in fact reviewed the scans himself.
38. Our impression of Dr Endrey-Walder’s evidence was that his knowledge in relation to degenerative spinal disease was limited and in response to a question from the Tribunal he conceded that he had no special skills or experience in managing patients with this condition.
39. In a brief report, dated 17 February 2005, Dr Millar, sport medicine practitioner, diagnosed “sacro-iliac joint subluxation“ as the cause of Mrs Obernier’s pain and commented that her disc disease was coincidental. Dr Millar’s reported history and examination was quite superficial and he provided no explanation for his conclusions. We place little weight on this report.
40. In a report dated 23 June 2005, Dr Maxwell, Orthopaedic Surgeon, concluded that Mrs Obernier suffered from mild facet joint irritation and that lesions seen on the MRI and CT scan done in 2004 were probably of no significance.
41. In a report dated 15 February 2007 Dr Maxwell opined that Mrs Obernier suffered from degenerative changes in her lumbar spine and that the severity of her symptoms was likely to be influenced by the fact that she was overweight and had poor tone in her trunk muscles. He noted that at some stage she had developed a small disc protrusion at L3/4 and that although the timing of the onset of the protrusion is open to debate, it was unlikely that it had occurred at the time of the fall and, even if it had, the 2006 MRI scan showed the L3/4 protrusion had reabsorbed.
42. Dr Maxwell noted that Mrs Obernier had an operation and that the apparent reason for the operation was that “there was some translocation of the L4 vertebra on the L5 vertebra during flexion and extension”. He commented that in his opinion the instability at the L4/5 level would have been due to general joint laxity and degenerative changes rather than any specific injury to the L4/5 disc.
43. He concluded that Mrs Obernier’s injury in April 2003 did not contribute “to any condition from which she now alleges she is suffering”.
44. In his oral evidence Dr Maxwell, when asked to comment about the protrusions noted on the two MRI scans, said that the protrusion in 2004 was in fact at the L3/4 level and had reabsorbed by the time the 2006 MRI was done. He went on to say that in his opinion the scans did not at any stage demonstrate significant protrusion but only degenerative bulge and that 90% of protrusions reabsorb spontaneously.
45. On the question of anterolisthesis at L4/5, Dr Maxwell commented that mild anterolisthesis is a common anatomical variation, that changes with flexion and extension are of no particular significance and that in Mrs Obernier’s case the finding on X-ray was not the result of an injury.
46. In cross examination Dr Maxwell changed his opinion and conceded that, contrary to his written opinion in 2007, he now thought it “was probably reasonable that some of the effect of that injury are probably persisting” and attributed 50% of her symptoms and signs to the fall.
47. His evidence on this point was confused with no clear explanation and we noted that this change of opinion was not consistent with the substance of his overall evidence.
48. Dr McGill noted that the MRI scan done on 22 April 2004 showed “desiccation of all of the discs throughout the lumbosacral region” and that there was evidence of “focal left posterolateral disc protrusion at the L3/4 level causing minor posterior displacement of the left L4 nerve root”.
49. Dr McGill concluded that Mrs Obernier suffered from constitutional degenerative change in the lumbar spine including disc degeneration. He noted that at the time of the consultation Mrs Obernier did not have any symptoms or signs of nerve root irritation or dysfunction but that she does experience intermittent but frequent low back discomfort. He also commented that the imaging studies demonstrated relatively mild degenerative changes with small bulges and protrusions.
50. Dr McGill concluded that the fall in 2003 resulted in increased symptoms secondary to the degenerative changes in Mrs Obernier’s spine and that effect of the fall was likely to have ceased in three months but did concede that the increased symptoms could have persisted for up to six months.
51. Dr McGill re-examined Mrs Obernier in February 2007 and he affirmed his previous opinion that Mrs Obernier suffered from degenerative changes in the lumbar spine that included osteoarthritis and disc degeneration.
52. He noted that the 2006 MRI scan demonstrated widespread mild degenerative change with mild disc protrusion at L4/5 but that there was no evidence of neural compression at any level. With reference to Mrs Obernier’s operation Dr McGill commented that “low back surgery in the absence of nerve compression is an unreliable form of therapy”
53. In his oral evidence Dr McGill confirmed his opinion that Mrs Obernier had widespread degenerative changes in her lumbar spine and that he would expect her to have fluctuating and eventually persisting symptoms because of these degenerative changes. He also commented that, in his opinion, the discomfort Mrs Obernier had felt after her fall was not solely due to the fall but a reflection of the degenerative change in her back. He indicated that in the setting of degenerative change of the lower spine people usually suffer fluctuating symptoms and that it is not uncommon to experience spontaneous increase in symptoms.
54. Dr McGill accepted that Mrs Obernier had back pain and increased symptoms after the fall but did not accept that she suffered any structural change likely to influence any future symptoms and said that the structural changes in her imaging studies were consistent with the natural history of degenerative spinal disease.
55. Dr McGill also confirmed that in his review of the various scans he considered that the abnormalities had been reported correctly and commented that it was not uncommon for disc protrusions to disappear and that this was consistent with the natural history of degenerative disc disease. With regard to the L4/5 slippage Dr McGill commented that in his experience minor slippage is common in association with facet joint degeneration and that the pattern of pain is due to the osteoarthritis and disc degeneration and is the same with or without slippage.
56. In a report dated 9 May 2007 Dr Bentivoglio, Orthopaedic Surgeon, stated that in his opinion Mrs Obernier, when she fell in April 2003, sustained disc damage at the L4/5 level of her lumbar spine and subsequently developed an instability syndrome as a result of that injury.
57. Dr Bentivoglio provided no explanation for his conclusion. He did not take any history of lower back symptoms prior to the fall and did not consider Mrs Obernier’s underlying degenerative spine condition.
58. In his oral evidence Dr Bentivoglio confirmed his opinion that Mrs Obernier damaged her L4/5 disc at the time of fall. When asked to consider that the MRI scan in 2006 showed a protrusion at L3/4 he opined that this was an error and that the protrusion was in fact a L4/5. He was uncertain as to whether he had in fact reviewed the scan in sufficient detail to support his opinion. We noted that there was no reference to an error in his written report.
59. Dr Bentivoglio then went on to say that he was confident that the report was in error on the grounds that it was “inconceivable” that one could have a protrusion at L3/4 in 2004 and then in 2006 have a protrusion at L4/5 and not in 2004. This is not consistent with the evidence of Drs McGill and Maxwell.
60. In October 2003 Mrs Obernier suffered a recurrence of lower back symptoms. The question is whether this represented a new episode of symptoms as part of her underlying degenerative back condition or whether it was a direct consequence of her fall in April 2003.
61. On balance, we find that this recurrence represented a flare up of her underlying degenerative condition consistent with the natural history of her degenerative spine disease.
62. It follows that we find that the lower back symptoms that Mrs Obernier suffered immediately after her fall represented a temporary exacerbation of her underlying condition.
63. In deciding so we have preferred the opinion of Dr McGill because his reports were the most comprehensive in terms of history and physical examination and his explanations and analysis were clear and the most consistent with the overall evidence.
64. Dr Maxwell’s opinion was generally in accord with that of Dr McGill apart from the 50% attribution of impairment to the fall. We find that this attribution was inconsistent with the substance of his overall evidence and we place little weight on that conclusion.
65. In the course of his oral evidence it became evident to the Tribunal that Dr Endrey-Walder’s expertise with regard to degenerative spine disease was limited and therefore we placed little weight on his opinion.
66. Dr Bentivoglio’s evidence was problematic. His opinion was based on certain assumptions, namely that Mrs Obernier had no problems with her lower back prior to her fall and that the reported protrusion at L3/4 in the 2004 MRI had been incorrectly reported and that she had in fact injured her L4/5 disc at the time of the fall.
67. We found Dr Bentivoglio’s explanation for the differences in the MRI scan changes unconvincing and preferred the opinions of Drs McGill and Maxwell on this point.
68. Furthermore, he did not attempt at any stage in his assessment of Mrs Obernier’s problems, to address the potential impact of the degenerative spine changes on her symptoms.
69. After having considered all the evidence we have decided that on balance the injury that Mrs Obernier suffered to her lower back in April 2003, as a result of her fall, amounted to a temporary aggravation of her underlying degenerative spinal condition and the fall did not expose or accelerate her underlying condition.
Knees
70. In relation to Mrs Obernier’s knees, we were confronted with conflicting medical evidence and evidence from Mrs Obernier that was not consistent with the documentary evidence.
71. It is clear, despite Mrs Obernier’s claim that prior to 2003 she had not suffered from any problems with her knees, that her knee problems were sufficiently severe to justify X-ray investigation.
72. Although the medical evidence on this point is best described as divided, on balance there is sufficient evidence to support a conclusion that Mrs Obernier currently did have some problems with her knees although the exact nature and severity of her problems was not entirely clear.
73. The question of whether the knee problems for which Mrs Obernier claimed were due to her fall is vexed, particularly as there were several factors that may have contributed to Mrs Obernier’s knee problems including her past knee injuries and her weight.
74. In her oral evidence, Mrs Obernier stated that following her fall she developed pain, swelling and stiffness in both her knees and that she required taping beneath the kneecaps for about two weeks. She claimed that she had not had any knee problems prior to 2003 but that since the fall she has not been free of symptoms in either knee and that she required Nurofen tablets for her knees about every three weeks. She also claimed that as a result of her knee problems she had difficulty walking up and down steps and often required the aid of a walking stick.
75. Dr Matthews’ clinical records indicate that in May to June 1989 Mrs Obernier was having problems with her right knee sufficient to warrant an X-ray and that in September to October 2001 she had problems with her left knee that also required an X-ray. On both occasions the diagnosis was not clear.
76. Following her fall Mrs Obernier was treated initially by Dr Woolnough and his findings and opinions have already been described above.
77. When Mrs Obernier next saw her General Practitioner, Dr Matthews, on the 10 June 2003, he noted that there was left knee stiffness and in a subsequent entry on 30 June 2003 he noted the knees were “OK”.
78. Dr Carr in his report of 7 November 2003 indicated that Mrs Obernier had told him that by the end of July 2003 she had no real problems with her knees apart from minimal stiffness. On examination he noted a scar over the right patella, the result of a childhood fall, bilateral full range of movement and no effusion. He did note some patello-femoral crepitus in both knees.
79. In Dr Chase’s assessment of September 2004 there was no mention of any knee problems. Workcover certificates (31 August 2004 and 14 January 2005) signed by Dr Matthews refer only to lumbosacral symptoms with no mention of the knees. In a comprehensive physiotherapy assessment, dated 24 January 2005, he makes no mention of any knee problems. In a comprehensive psychological evaluation of Mrs Obernier on 22 March 2003, looking at the need for pain management counselling, there was no mention of any problems with her knees.
80. In Dr Endrey-Walder’s report of 16 February 2005, he noted that Mrs Obernier reported that her knees “get stiff when I do stairs, both of them, more down (stairs) than up”. On examination he noted that there was full flexion and extension of both knee joints with some ‘very mild patello-femoral grating”. He concluded that Mrs Obernier had mild knee symptoms “on account of a degree of likely chondromalacia-patellae” but that this did not impact on her functional capacity except when negotiating stairs. He assigned 10% whole person impairment under Table 9.5 of the Comcare Guide for each lower extremity.
81. Dr Endrey-Walder said his assessment was merely based on Mrs Obernier’s claim of stiffness when walking up and down stairs. There was no objective assessment of her impairment and there was no mention of difficulty with grades as required by Table 9.5.
82. In his second report of October 2006, Dr Endrey-Walder noted that Mrs Obernier complained that her left patella aches and that it seems to depend on grades and stairs and whereas her right knee used to have regular pain but “it’s now not as much”. Otherwise his opinion was unchanged and again his assessment of impairment appeared to be based on Mrs Obernier’s claims alone.
83. In his oral evidence, Dr Endrey-Walder confirmed that his assessment of functional impairment was based solely on Mrs Obernier’s reported symptoms. In cross examination when asked what diagnostic test should be done to diagnose suspected chondromalacia-patella, Dr Endrey-Walder, replied that often but not always compression of the patella against the lower end of the femur will cause pain and that side to side movement of the patella may also cause pain. We note that in his written reports Dr Endrey-Walder did not mention that he had performed this form of examination on either knee.
84. In his report of 23 June 2006, Dr Maxwell noted Mrs Obernier’s complaint that both knees hurt a little bit when she climbs stairs. On examination he noted full range of pain free movement of the right knee with no tenderness on palpation of the retropatellar articular cartilage. He also noted full range of movement of the left knee with no crepitus on extension.
85. In a subsequent report of 15 February 2007, on examination of both knees, Dr Maxwell noted normal range of movement, no effusions, stable ligaments and no crepitus when the knees were extended from a flexed position. Dr Maxwell made no diagnosis and found no permanent impairment.
86. In his report dated 24 January 2006, Dr McGill stated that Mrs Obernier complained of experiencing “little electric shocks on the anterior aspects of both knees when walking down stairs and sometimes on uneven ground” and that her knees “slip when walking downstairs” but that most of the time she had no knee symptoms.
87. We note that in this report Dr McGill refers to documents provided to him at the time of the consultation that included X-ray reports of the right knee (dated 17 October 1985 and 26 May 1989) that showed no abnormality. He also referred to a letter by Kendel Davies–Gomez, physiotherapist, dated 22 September 2002, that recorded Mrs Obernier suffering a sudden onset of left knee pain and inflammation.
88. On examination Dr McGill found that Mrs Obernier’s knees were symmetrical and looked normal. There were no effusions and both knees were stable. There was no crepitus and firm downward pressure on the patello-femoral joints was reported not to cause pain. The range of movement in each knee was from 0 to 120 degrees, limited by her size, not by knee restriction. Dr McGill noted that Mrs Obernier reported symptoms of mild patello-femoral dysfunction of both knees but made no diagnosis.
89. In his subsequent report of 5 February 2007, Dr McGill again noted that both knees were normal on examination. In his oral evidence Dr McGill, in response to a question from the Tribunal commented that chondromalacia patellae refers to a cartilage abnormality at the back of the patella and that patello-femoral joint related symptoms can occur in a variety of situations including spontaneously in young women, in response to obesity, maltracking of the patellae and injury to the patello-femoral joint.
90. He also explained that the natural history of a bone bruise or contusion is to recover and that the development of chondromalacia-patellae is not inevitable unless the injury was sufficiently severe to have caused permanent cartilage injury.
91. In his report of May 2007, Dr Bentivoglio noted that Mrs Obernier had similar symptoms in each knee with the right worse than the left. He described a number of symptoms including anterior knee pain, knee swelling and crepitations and that these symptoms were particularly noticeable with walking down grades and steps. On examination he noted almost full range of movement in both knees, retropatellar crepitations and pain on compression of the patellae against the femoral condyles. He diagnosed post traumatic chondromalacia-patellae of both knees as a result of the fall in April 2003.
92. Dr Bentivoglio assigned 10% whole person impairment under Table 9.2 for each lower extremity but in response to a letter from Mrs Obernier’s solicitor changed the assessment to 10% for each lower extremity under Table 9.5. This assessment also appeared to be based only on Mrs Obernier reported problems and not on any objective evaluation of her alleged difficulties with grades and steps.
93. In his oral evidence, Dr Bentivoglio confirmed that in his opinion Mrs Obernier developed retropatellar problems as a result of her fall in 2003 and that chondromalacia-patella led to difficulties with grades and steps because the damaged area on the retropatellar region rubs against the end of the femur when the knee is bent while weight bearing.
94. Again the medical opinion was divided with Dr Bentivoglio being the most positive in assigning the 2003 fall as the cause of the problems. However, he did not obtain a history of past knee injuries therefore did not assess the relative significance of the fall in 2003.
95. The documentary evidence shows that Mrs Obernier had intermittent knee problems for many years including those that she suffered as the result of the fall. The evidence suggests that following the fall the right knee injury recovered within a week, that the left knee injury recovered within a few weeks and that Mrs Obernier had little if any problems with her knees until 2005 when she submitted her claim for permanent impairment.
96. We are mindful of and give weight to Mrs Obernier’s history of knee problems from as early as 1985, the evidence of the effect of obesity on such problems, the evidence of Dr McGill that a contusion or bone bruise is unlikely to cause chrondomalacia-patellae unless the injury was sufficiently severe to cause permanent cartilage injury and Mrs Obernier’s relatively swift recovery after her fall. On balance, we do not consider that the problems she now suffers with her knees were caused or contributed to by her fall. Again, she may have had some exacerbation of an underlying condition but we do not find that it persists.
does mrs Obernier have a permanent impairment of her back or knees?
97. It follows from our conclusion as to the nature of her injuries from her fall in 2003 – a temporary exacerbation of her degenerative back condition and a similar temporary exacerbation of her problems with her knees – that Mrs Obernier does not have a work related permanent impairment of her back or her knees.
98. We also note, for completeness, that Mrs Obernier claimed in her oral evidence that her difficulties with stairs were such that she needed to use a walking stick. We noted that none of the medical practitioners reported that Mrs Obernier had claimed this level of impairment. The medical practitioners who assigned 10% permanent impairment did so on the basis of Mrs Obernier’s reported difficulties and made no attempt to make any objective assessment of her claimed difficulties with walking on grades and steps. We also note the video evidence of Mrs Obernier walking some distance to a football match with no apparent difficulty and without a walking stick. While we appreciate that the severity of any condition may fluctuate, the ease with which Mrs Obernier appeared to walk this distance does not assist her claim that she has not been free of symptoms since her fall.
Decision
99. The decisions under review are affirmed.
I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: ..............[Sanjiv Shah].......................
AssociateDates of Hearing 17, 18 & 19 September 2007
Date of Decision 21 December 2007Counsel for the Applicant Mr David Richards
Solicitor for the Applicant Slater and GordonCounsel for the Respondent Ms Rhonda Henderson
Solicitor for the Respondent Graham Jones
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