PATRICIA KIRTON and AUSTRALIAN POSTAL CORPORATION
[2012] AATA 732
•24 October 2012
[2012] AATA 732
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2010/2399
2010/2400
Re
PATRICIA KIRTON
APPLICANT
And
AUSTRALIAN POSTAL CORPORATION
RESPONDENT
DECISION
Tribunal Dr P McDermott, RFD, Senior Member
Date 24 October 2012 Place Brisbane The Tribunal affirms the decisions under review.
.........................[Sgd]...............................................
Dr P McDermott, RFD, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth corporation employee – Injury to ankle – Aggravation of injury – Ongoing pain and discomfort – Claim for treatment of injury – Medical opinion as to cause of pain and discomfort – Pain and discomfort not caused by injury or aggravation of injury – Decisions under review affirmed
PRACTICE AND PROCEDURE – Medical report not filed – Summonsed material – No objection to admission of report at hearing – Tribunal sought to allow Applicant to call report author as witness – Applicant did not seek to call witness for cross-examination – Submission that cannot call own witness for cross-examination – General Practice Direction – No ownership of a witness – Submission to exclude report rejected
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 64, 66
CASES
Jones v Dunkel (1959) 101 CLR 298
Muin v Refugee Review Tribunal (2002) 190 ALR 601
Packer v Cameron (1989) 54 SASR 246
Re Almond and Secretary, Department of Social Security (1990) 20 ALD 746
Re Moline and Comcare [2003] AATA 827
SECONDARY MATERIALS
Heydon, J. D., Cross on Evidence (8th Australian Edition, 2010)
General Practice Direction
REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
24 October 2012
INTRODUCTION
Mrs Patricia Kirton (“the applicant”) is an employee of the Australia Postal Corporation (“the respondent”). She has suffered injuries to her left ankle at work in both 2003 and 2006. She claims to continue to experience pain, swelling, instability and other symptoms in the lateral aspect of her left ankle as a consequence of those injuries. She claims compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).
CLAIMS
The applicant has made two claims for rehabilitation and compensation.
On 1 April 2003, the applicant lodged a claim for rehabilitation and compensation for “left foot & ankle & Achilles & inflammation, tendonitis, bursitis tinosinositis, painful right rib area”.[1] This claim was made in respect of an incident which occurred on 24 February 2003 after she had walked through the mail exchange where she worked to laminate some documents in the administration area. There was some water on the floor which had leaked from an air conditioner. She slipped and hurt her “foot (L) & R rib area”. On 14 April 2003, a determination was made which accepted liability for the injury, which was then described as a “bruised left foot, right lower rib, lower sacral spine”; the date of injury was accepted as being 24 February 2003.[2]
[1] Exhibit A, T-document 16, pp. 33-35, especially at p. 33.
[2] Exhibit A, T-document 24, p. 45.
On 27 March 2006, the applicant made another claim for rehabilitation and compensation for “aggravation to previously accepted injury to left foot, ankle”.[3] The applicant stated that this injury occurred during her lunch break on 15 March 2006 when she was walking on an uneven footpath on Young St, Southport. On 27 April 2006, a determination was made which accepted liability for a “temporary exacerbation of ligamentous strain left ankle”; the date of injury was accepted as being 15 March 2006.[4]
[3] Exhibit A, T-document 104, pp. 168-170, especially at p. 168.
[4] Exhibit A, T-document 107, p. 174.
On 1 June 2006, the applicant was referred to CRS Australia in relation to her left ankle sprain. The applicant was then attending physiotherapy twice a week. By February 2007, the applicant had completed a gym program and remained on normal hours.
DETERMINATION
On 12 January 2010, a determination was made that the respondent had no present liability to pay compensation under ss 16 and 19 of the Act for the applicant's “bruised left foot, right lower rib, lower sacral spine” (claimed to be attributable to an incident on 24 February 2003) and “temporary exacerbation of ligamentous strain left ankle” (claimed to be attributable to an incident on 15 March 2006).[5]
[5] Exhibit A, T-document 146, pp. 235-236.
REVIEWABLE DECISIONS
On 19 April 2010, a reviewable decision affirmed the determination dated 12 January 2010 relating to the “bruised left foot, right lower rib, lower sacral spine”.[6] On that date another reviewable decision affirmed the determination relating to the “temporary exacerbation of ligamentous strain left ankle” condition.[7] The applicant has sought review of both of these reviewable decisions in respect of her left ankle. No claim was made in respect of the “right lower rib, lower sacral spine” of the applicant.
[6] Exhibit A, T-document 149, pp. 240-246.
[7] Exhibit A, T-document 150, pp. 247-250.
This Tribunal can review those reviewable decisions under s 64 of the Act.
ISSUES
The first issue for determination is whether the injuries sustained by the applicant in 2003 and 2006 led to her suffering the pain in her left ankle. The respondent does not accept the claims of the applicant. The second issue before the tribunal is whether the left ankle condition of the applicant is an “injury” or a “disease” within the meaning of the Act.
EVIDENCE OF APPLICANT
The applicant verified the correctness of her statement that was admitted in the proceedings. She is a supervisor of the counter staff at the mail centre where she works. Her duties include administrative work, stock control, customer interface and generating new business. She stated that she is second in charge of the office and that the respondent has accommodated her with restricted duties for nearly nine years. She stated that she does most of her work while seated but that she does all the duties expected of her and that she does “a full seven hours 21”.[8]
[8] Transcript, 9 November 2011, P-5, L1.
The applicant stated that a rehabilitation person had requested that she do more work at the counter. She stated that Dr Bartlett, her general practitioner, had agreed to her spending 20 minutes at the counter and 10 minutes off the counter, as in sitting. She has requested supporting shoes to be able to perform her duties. She wears supporting braces for her ankle. She stated that she uses a lightweight brace when not doing a lot of standing. The sitting and standing in her work has rotated. Her managers mainly use her for administrative work but there have been instances where she has been required to be on the counter because of staff shortages. She states that she has suffered severely from doing this and that most of the time she takes painkillers to get her through the night and to get her up the next morning. The applicant stated that the pain is around the ankle bone of the left outer side of her ankle and runs down the foot towards her little toe. She confirmed that the pain has always been at that site since her injury in February 2003. She stated that she does not experience any pain in the talonavicular joint but also said that she was aware of the location of that joint.
The applicant confirmed that she had read and considered the reports of Dr Kuhnemann and Dr Saxby in relation to her application. She stated that she was aware that she last saw Dr Saxby, who considers that her current symptoms are related to changes in the talonavicular joint, on 19 October 2009. She was asked by her counsel whether Dr Saxby had ever asked her whether she experienced pain in that area: she answered “no”.[9] She stated that when she saw Dr Saxby previously in 2003, she was not examined by him personally but by his colleague. The applicant also stated that she estimated Dr Saxby had seen her for “possibly five minutes” when she saw him in 2009.[10] She stated that Dr Saxby had her walk across the room, twisted her foot and ankle, and remarked: “it is what it is”.[11] She did not know what time she actually went in to see Dr Saxby.
[9] Transcript, 9 November 2011, P-8, L27.
[10] Transcript, 9 November 2011, P-11, L14.
[11] Transcript, 9 November 2011, P-11, L34.
The applicant confirmed that she is prepared to act on the advice of Dr Bartlett and Dr Kuhnemann, which includes that she attend physiotherapy; wear special shoes; use a massaging exercise machine; enroll in a swimming program; take analgesics; and wear ankle supports. She started with a physiotherapy program at the Pindara Private Hospital and performs the recommended physiotherapy at home on a daily basis. She has worn support shoes but says it was tiring to wear them for a whole day. She considers that the ankle supports provide relief and work most effectively. She showed the Tribunal the various ankle supports and support shoes that she wears. The applicant stated that she started to use the ankle supports in 2010 when the respondent requested that she spend more time on the counter. The applicant advised that she takes analgesics and anti‑inflammatory medication daily. She stated that she takes a sleeping tablet at night when her pain is really severe.
In cross-examination the applicant stated that she had noticed that she had left the 2009 appointment with Dr Saxby at 9.04 am; she noticed this time on a wall clock. She conceded that she might have gone into the appointment at 8.45am. She was asked who had told her that she should increase her counter duties: she answered that she had received letters but did not know who had made the decision. The applicant agreed that her managers had accepted the restriction of 20 minute periods at the counter which was contained in the medical report from Dr Bartlett, although she stated that she was required to be at the counter for longer periods. She also stated that there are days, quite regularly, where she does not have to do more than 20 minutes every hour at the counter.
The applicant was questioned about a fall that she had in 2005 when she did not injure her ankle but injured her wrist. She was questioned about a comment in a report of Dr Goode, dated 22 May 2006,[12] which reads:
Mrs Kirton thinks the recent aggravation in March 2006 has again settled, and her left ankle is where it was prior to the event in March 2006.
The applicant did not recall making such a statement to Dr Goode. She remarked: “I don’t recall saying to him that it had settled down, but it may have been what he understood me to say”.[13]
[12] Exhibit A, T-document 114, at p. 186.
[13] Transcript, 9 November 2011, P-35, L37.
The applicant was asked whether Dr Kuhnemann had written to Dr Trantons in which Dr Kuhnemann stated that he thought the applicant had sprained her ankle as a result of the second fall in 2006: the applicant agreed. The applicant was also asked whether Dr Kuhnemann had stated that he had arranged for the applicant to have a short course of physiotherapy: she responded “correct”.[14] The applicant was asked whether the rehabilitation program was closed in February 2007: she agreed. The applicant clarified that she did not undertake another rehabilitation program after that.
[14] Transcript, 9 November 2011, P-37, L3.
The applicant confirmed that she had seen Dr Kuhnemann in May 2006 but did not see him again until March 2010. She was asked whether she did not go back to see Dr Kuhnemann until the respondent had ceased liability. She stated that she was sent back to see Dr Kuhnemann after she had seen Dr Saxby, although she was “not 100 per cent”.[15] It was put to her that she saw Dr Saxby in September 2009 and that it was in January 2010 that the respondent wrote to the applicant to inform her of Dr Saxby’s report and that they were thinking of ceasing liability: the applicant responded “I guess”.[16]
[15] Transcript, 9 November 2011, P-28, L38.
[16] Transcript, 9 November 2011, P-38, L40.
The applicant also confirmed that she had seen Dr Hatcher, an orthopedic surgeon. She stated that she saw Dr Hatcher on the suggestion of a physiotherapist after Dr Kuhnemann had advised her that she had to learn to live with the pain. She remarked that she had never seen a report from Dr Hatcher, who had advised her that he did not want to perform surgery. The applicant was asked whether she was aware that Dr Hatcher had sent two reports to Dr Bartlett: she answered “no”.[17] The applicant was informed that in one report to Dr Bartlett, dated 16 February 2010, Dr Hatcher advised:[18]
Unfortunately, I cannot find any objective reason why Patricia would be complaining of such severe pain. The ATFL tear in itself would not at this stage be expected to be painful. She has had extensive investigations including recent MRI scan, plain x-rays, stress views and ultrasound scan which did not show a convincing reason for her lateral ankle pain.
I have advised her that physiotherapy is the way to go to strengthen her ankle and provide her with more coordination and proprioception.
[17] Transcript, 9 November 2011, P-39, L14.
[18] Exhibit J.
The applicant was asked whether Dr Bartlett had ever talked to her about that report: she replied “no”.[19] She was also asked whether Dr Hatcher had suggested physiotherapy: she replied “no”.[20] She was also asked whether the report was a complete surprise to her: she replied “yes”.[21]
[19] Transcript, 9 November 2011, P-39, L26.
[20] Transcript, 9 November 2011, P-39, L28.
[21] Transcript, 9 November 2011, P-39, L30.
When the applicant was asked to indicate where on the left ankle she has pain, she indicated an area which is in the mid-foot area.
The applicant confirmed that she attended the Hinterland Medical Centre, although she did not recall seeing a Dr Lyons. She was asked about a clinical note, dated 27 March 2006, which states:[22]
Still left ankle pain, sitting at work but pain in the afternoon severe. Also pain in the navicular area also.
The applicant stated that she had “no idea” why there would be that note and that “I can categorically tell you I have never had pain in that area”. She stated that “I didn’t even know where it was”.[23]
[22] Transcript, 9 November 2011, P-44, L25-26.
[23] Transcript, 9 November 2011, P-44, L30-32.
The applicant was asked when she stopped playing golf: she replied “I have no idea”.[24] She was referred to the report that Dr Kuhnemann wrote in April 2005[25] for Dr Bartlett in which Dr Kuhnemann stated that he had advised the applicant to “wear an ankle support when she does any activities like playing golf or bushwalking”.
[24] Transcript, 9 November 2011, P-44, L34.
[25] Exhibit C, Item 5.
There was no re-examination of the applicant by her counsel.
MEDICAL EVIDENCE
Dr Bartlett
The applicant called Dr Allan Bartlett who has been her treating general practitioner for about 40 years. Dr Bartlett stated that he first saw the applicant in relation to her ankle injury on 20 March 2003 and has seen her periodically and regularly since then. He confirmed that he prepared a medico-legal report dated 16 August 2011.
Dr Bartlett gave evidence that he believed that the six categories of treatment that have been recommended by him, and which are mentioned in the report, have been helpful. He also said that anything that was helpful, even though it may be minor, would be worth attempting. The six categories of recommended treatment were a physiotherapy program, supportive shoes, a vibrating massage machine, swimming, analgesics, anti‑inflammatories, sleeping medications and ankle supports.
Dr Bartlett stated that he would continue to recommend physiotherapy when necessary, such as when there was a “flare-up”,[26] as he believed that she would benefit from physiotherapy. He also stated that the applicant seemed to benefit from wearing barefoot shoes, which provided support and seemed to ease the pain. He added that the support shoes would benefit her in her work. Dr Bartlett stated that there were some “dystrophic changes starting in the foot which is from lack of normal use and vibrating machines … may be a help”.[27] He remarked that swimming exercises would help with weight management. Dr Bartlett discussed the medication that was prescribed for pain relief, anti-inflammatories and sleeping. He remarked that these medications would be on an “as necessary” basis. Dr Bartlett considered that the applicant should continue to wear ankle support for work purposes on an “as necessary” basis.[28]
[26] Transcript, 23 May 2012, P-7, L31.
[27] Transcript, 23 May 2012, P-8, L31.
[28] Transcript, 23 May 2012, P-9, L12-13.
Under cross-examination, Dr Bartlett confirmed that his clinical notes, which were summonsed, were the only notes that he kept of his consultations with the applicant. He stated that he did not recall referring the applicant to Dr Hatcher. Dr Bartlett confirmed that he considered that treatment through the use of vibrating machines and support shoes might be beneficial. He stated that he was aware that her duties included attendance at the counter but that he was unaware of what she does on a day-to-day basis.
Upon re-examination by the applicant, Dr Bartlett stated that he stood by his opinions that she requires those treatments which he has previously recommended. Before this witness was excused, I asked him to explain why, in his report of 16 August 2011,[29] he remarked: “My medical opinion is that the prognosis is guarded”. He answered that he used that expression to state that “it’s unknown what the outcome would be. It may lead to surgery, it may lead to deterioration”.[30]
[29] Exhibit H.
[30] Transcript, 23 May 2012, P-14, L45-46.
Dr Kuhnemann
Dr Brett Kuhnemann, orthopedic surgeon, was called by the applicant. He confirmed that he wrote a medico-legal report dated 29 November 2010.[31] He confirmed that he first saw the applicant in October 2004 and that he has been her treating orthopaedic surgeon since.
[31] Exhibit C, Item 1.
Dr Kuhnemann confirmed that on 8 December 2004 he performed an arthroscopy on the left ankle of the applicant.[32] On examination, there was evidence of osteoarthritis on the distal tibia and a partial tear of the anterior talofibular ligament which was causing impingement or catching on the outer aspect of the ankle. The impinging part, which was less than a third of the supporting structure, was removed. Dr Kuhnemann confirmed that in terms of strength of the lateral ligament complex, most of the strength should be retained. However, he confirmed that in that part of the ankle the applicant does not have the same supporting structure of a person who does not have the injury. Dr Kuhnemann also confirmed that she may have ongoing deteriorating pain from the arthritis in her ankle; he referred to the damage to the articular service which was noted. Dr Kuhnemann also remarked that she may have ongoing discomfort from stress on the remaining ligament.
[32] Dr Kuhnemann’s report, dated 29 November 2010, states that the arthroscopy occurred on 8 February 2004. Exhibit A, T-document 87, p. 142, a report by Dr Kuhnemann dated 9 December 2004, reveals that he performed the arthroscopy on 8 December 2004.
Dr Kuhnemann, in giving his evidence-in-chief, stood by his report of 29 November 2010 in which he stated his opinion was that “Mrs Kirton’s current symptoms are related to the incidents of 24 February 2003 and 15 March 2006”.[33] He was asked to give his reasons for that opinion. Dr Kuhnemann stated:[34]
Her initial injury was a sprain to her ankle and the arthroscopic findings were consistent with that. When I saw her in May 2006, she had a similar injury, where she stated she that stood on the footpath outside work and, again, sustained a twisting injury to her ankle, aggravating the – what I thought was the pre‑existing condition.
[33] Exhibit C, Item 1, Question 3.
[34] Transcript, 23 May 2012, P-18, L32-36.
Dr Kuhnemann was asked to comment upon the fact that the tear to the anterior talofibular ligament was not repaired until December 2004, which was about 22 months after the injury occurred on 24 February 2003. He was asked what effect “the absence of treatment had, or may have had, on her long-term prognosis?”[35] Dr Kuhnemann did not feel that it would have a significant impact on her long-term prognosis; he remarked that the applicant already had established some arthritic change. Dr Kuhnemann remarked: “The problem in her ankle was one of impingement which was persisting and most likely had not changed since the original injury …”.[36] Dr Kuhnemann stated that the ongoing problem is one of ongoing pain and a feeling of insecurity. He remarked: “Insecurity can be due to not only a weakness in the supporting structures, but also pain inhibition can cause a feeling of insecurity and giving way”.[37] Dr Kuhnemann opined that he did not feel that the delay has changed the final outcome; what has changed the final outcome has been no further treatment since the second injury. He remarked that when he saw her he requested that she seek an opinion from another foot and ankle surgeon to consider any further surgical intervention, which would be reconstruction to stabilise her ankle. He said that “she only sought opinions from medico-legal reports, but not for ongoing management”.[38] Dr Kuhnemann agreed that he could not be certain about any of these matters.
[35] Transcript, 23 May 2012, P-18, L40-41.
[36] Transcript, 23 May 2012, P-18, L43-45.
[37] Transcript, 23 May 2012, P-18, L46 – P-19, L2.
[38] Transcript, 23 May 2012, P-19, L11-12.
Dr Kuhnemann was referred to a report of Dr David Morgan, dated 9 June 2005, in which Dr Morgan expressed the opinions: “The effect of her compensable conditions will be of a permanent nature. There were no pre-existent conditions”[39] and “[t]he maladies referable to her left ankle and right wrist will remain at their current level indefinitely”.[40]
[39] Exhibit A, T-document 94, p. 153, Question 4.3(b).
[40] Exhibit A, T-document 94, p. 154, Question 4.7(a).
Dr Kuhnemann was asked whether he agreed with that assessment by Dr Morgan. Dr Kuhnemann remarked:[41]
I would say that she will have a permanent impairment, but it is possible that the degree of the impairment will change with time, and the reason I say this is because she did have injury to the articular surface of her joint at the time of the initial arthroscopy in 2004, and generally arthritis will deteriorate with time.
He added:[42]
… she would not stay at the current level forever, but there would be slow deterioration.
[41] Transcript, 23 May 2012, P-20, L19-23.
[42] Transcript, 23 May 2012, P-20, L23-24.
Dr Kuhnemann was referred to the MRI report of 27 November 2009[43] where “there’s a reference to changes in the talonavicular joint”.[44] The applicant put to Dr Kuhnemann that this was not where the applicant sustained her injury: he replied “no”.[45] He confirmed that the anterior talofibular ligament and the talonavicular joint are not adjacent. Dr Kuhnemann was asked where is the site and source of the pain of the applicant? Dr Kuhnemann remarked:[46]
The pain is on the outside of the lateral aspect of her ankle. The talonavicular joint is more dorsal and medial, and I felt that the MRI findings at that time weren’t related to her symptoms.
[43] Exhibit A, T-document 140, p. 227.
[44] Transcript, 23 May 2012, P-20, L36.
[45] Transcript, 23 May 2012, P-20, L40.
[46] Transcript, 23 May 2012, P-20, L46 – P-21, L2.
Dr Kuhnemann was asked whether the applicant had ever made any complaint of pain in the talonavicular joint: he replied “no”.[47] He was asked whether the apparent changes in the talonavicular joint were related to her work injuries of 2003 and 2006: he replied “no”.[48] Dr Kuhnemann was advised that the applicant had sustained no fresh injury to her left ankle since 2006 and asked what might be the cause of the finding of the MRI of 27 November 2009. He replied that:[49]
It may be related to some localised osteoarthritis, mid-foot arthritis, which may be totally unrelated to her current condition, or to the ankle injury.
[47] Transcript, 23 May 2012, P-21, L5.
[48] Transcript, 23 May 2012, P-21, L10.
[49] Transcript, 23 May 2012, P-21, L14-16.
Dr Kuhnemann was referred to his latest report, dated 29 November 2010,[50] in which he stated that he agreed with the treatment advised by Dr Bartlett. Dr Kuhnemann was asked whether he recommended ongoing physiotherapy for the applicant’s condition. He stated that after the arthroscopy, the applicant would require physiotherapy to strengthen her extrinsic muscles to support the ankle. He remarked that it is a matter of just strengthening the remaining muscles to secure the ankle; otherwise you need an external support which is an ankle brace. Dr Kuhnemann remarked that:[51]
Physiotherapy each week or seven times a week for the rest of your life is not required. It’s a matter of having the instructions, and then continuing the exercise program.
[50] Exhibit C, Item 1.
[51] Transcript, 23 May 2012, P-21, L37-38.
Dr Kuhnemann was asked to assume that the applicant works an eight hour shift for five days a week and that on each shift she is on her feet for 40 minutes of every hour. He was asked whether, in those circumstances, he was prepared to recommend that she undergo continuing physiotherapy. He remarked that he did not feel that physiotherapy is going to resolve her discomfort. He stated:[52]
She has two issues: one is pain, which may be related to deteriorating osteoarthritis; the second is a feeling of insecurity, for which she wears a brace. So, she either wears a brace or she has a strengthening program, and the strengthening program really is something that she has to do after she has instruction by a physiotherapist, but frequent physiotherapy treatments won’t change the outcome.
[52] Transcript, 23 May 2012, P-22, L38-43.
Dr Kuhnemann was again asked whether physiotherapy would provide some benefit to the applicant in her attempts to remain at work and continue with her duties. He replied:[53]
It may help in the short term. But the problem is that the source of her ongoing discomfort I don’t feel has been fully resolved. She had her injury in 2006, which is six years ago, and apart from an MRI in 2009 there has really been no other investigations or intervention to source the cause of her pain at the present time.
[53] Transcript, 23 May 2012, P-22, L46 – P-23, L3.
Dr Kuhnemann was again referred to his report of 29 November 2010[54] in which he stated that he agreed with the medical treatment advised by Dr Bartlett. He was asked whether that was still his evidence: he replied that his opinion was given “two years ago”.[55]
[54] Exhibit C, Item 1.
[55] Transcript, 23 May 2012, P-723, L10.
Dr Kuhnemann was referred to the statement of the applicant in which she stated that her treatment included “analgesics and other necessary medications including Panadine Forte, sleeping medication including Temaze, Mersyndol, Magnesium, anti‑inflammatories and gels”. Dr Kuhnemann was asked whether he would normally use anti-inflammatories, analgesics and simple paracetamol or Panadine Forte. He said that he would not normally recommend gels as they do not provide a significant benefit to the patient. Dr Kuhnemann also remarked that some patients often have discomfort at night-time and some of these patients get benefit from having an analgesic and a mild sleeping tablet at night. He confirmed that he would recommend anti-inflammatories and analgesics on an “as needs” basis.[56]
[56] Transcript, 23 May 2012, P-23, L14-32.
Dr Kuhnemann was asked whether he would recommend that the applicant should wear ankle supports: he replied that she would need them as long as she has a feeling of insecurity in her ankle; so that may be forever. Dr Kuhnemann stated that he has recommended to the applicant that she be seen by a foot and ankle surgeon for reassessment. He remarked that:[57]
The only other consideration is … if you were to remove the brace, would be to consider a stabilization procedure, if she really did have insecurity in the ankle and not purely pain related.
[57] Transcript, 23 May 2012, P-23, L39-41.
Dr Kuhnemann was asked that, given the work that the applicant has done, whether she would benefit from the wearing of ankle supports: he replied “yes”.[58] He was asked how long the applicant is likely to require the assistance of ankle supports for her injury and to be able to continue her work: he replied “Well, if she has no other investigations or intervention then most likely indefinitely”.[59]
[58] Transcript, 23 May 2012, P-23, L45.
[59] Transcript, 23 May 2012, P-24, L1-2.
Dr Kuhnemann was referred to the report of Dr Saxby, dated 1 February 2011,[60] in which Dr Saxby (at para 3.2) expressed the opinion that the applicant should not be experiencing the level or intensity of pain that she has. Dr Kuhnemann was asked to explain why the applicant is “still experiencing pain as a result of this injury some eight years down the track”. Dr Kuhnemann remarked:[61]
My only explanation is that she may have some deteriorating osteoarthritis in her ankle. So at the time of the initial arthroscopy she had evidence of osteoarthritis on the distal tibia. Now, eight years since that was performed, it is possible it has deteriorated. The only way to conform that would or may even to repeat an MRI or possibly re-arthroscope the ankle [sic]. But certainly, deteriorating osteoarthritis can cause increasing pain with time.
[60] Exhibit G.
[61] Transcript, 23 May 2012, P-24, L16-21.
Dr Kuhnemann was asked whether the pain was a possibility rather than a probability: he replied “pain is a possibility”.[62]
[62] Transcript, 23 May 2012, P-24, L24-25.
Under cross-examination, Dr Kuhnemann confirmed that on two occasions he had made suggestions to the applicant that she should see a foot surgeon. He agreed that he would defer to their expertise in terms of issues of ongoing treatment of ankle problems. Dr Kuhnemann remarked that since he saw the applicant in 2004 his practice has changed and he does not, as a routine, see foot and ankle patients. He explained that this is why he would not be performing any ongoing management of the applicant’s problem.
Dr Kuhnemann was asked whether he was familiar with Dr Hatcher, orthopaedic surgeon: he replied “no”.[63] He did not recall seeing any reports from him in relation to the applicant. Dr Kuhnemann was advised that in February 2010, which was in the intervening period between 2006 and 2010 when Dr Kuhnemann did not see the applicant, Dr Hatcher provided two reports to Dr Bartlett. Dr Kuhnemann was referred to a passage in the report dated 16 February 2011,[64] in which Dr Hatcher remarked:
Unfortunately, I cannot find any objective reason why Patricia would be complaining of such severe pain. The ATFL tear in itself would not at this stage be expected to be painful.
Dr Kuhnemann was asked whether he agreed with Dr Hatcher that the ATFL tear would not be expected to be painful: he replied: “[t]hat’s possible”.[65] Dr Kuhnemann also stated that he agreed with the conclusion of Dr Hatcher, who also wrote in this report:
She has had extensive investigations including a recent MRI scan, plain x-rays, stress views and ultrasound scan which do not show a convincing reason for her lateral ankle pain.
Dr Kuhnemann remarked that the original MRI demonstrated the tear in the anterior talofibular ligament but it did not identify the damage to the articular surface of the tibia which was found by the arthroscopy.
[63] Transcript, 23 May 2012, P-25, L22.
[64] Exhibit J.
[65] Transcript, 23 May 2012, P-25, L43.
Dr Kuhnemann confirmed that in 2004 he had seen the applicant and performed an arthroscopy, at which time he made an assessment that she would be capable of returning to work following the procedure.
Dr Kuhnemann was referred to his report of 30 May 2006,[66] in which he concluded:
Her MRI demonstrates no evidence of an anterior talofibular ligament which was damaged with her original ankle sprain and the impinging fibres resected. She still has an intact calcaneofibular and posterior talofibular ligaments and I am sure she has simply sustained a sprain of her ankle.
I have arranged for her to have a short course of physiotherapy. She requires no other active intervention.
[66] Exhibit C, Item 2.
Dr Kuhnemann was asked whether his view is that if there are ongoing problems then it relates to the injury which happened in 2003. Dr Kuhnemann replied that any ongoing problem relates to both injuries. He remarked:[67]
She had an injury in 2003 and then with the issue in 2006 there was a suggestion of a sprain in the remaining components of the lateral ligament.
He added:[68]
There was no rupture but she did have … an increased signal in the ligaments … which should settle with appropriate physiotherapy and time.
[67] Transcript, 23 May 2012, P-27, L4-6.
[68] Transcript, 23 May 2012, P-27, L8-10.
Dr Kuhnemann also remarked:[69]
What seems to be forgotten all the time is that she still has an ongoing problem, or may have an ongoing problem, with osteoarthritis in her ankle. … So every time you sprain your ankle you reinjure the osteoarthritis area within the ankle.
It was put to Dr Kuhnemann that this was an assumption because an arthroscopy has not been done: he replied “exactly”. It was also put to Dr Kuhnemann that it is not clear from the MRI whether there has been progressive deterioration: he also replied “exactly”.[70]
[69] Transcript, 23 May 2012, P-27, L27-32.
[70] Transcript, 23 May 2012, P-27, L35.
Dr Kuhnemann also confirmed that on 4 April 2005 he wrote a report to Dr Bartlett in which he stated that he asked the applicant to wear an ankle support when she did activities such as playing golf or bushwalking.[71] He stated that he would normally ask patients what their activities are and that is also what he would have done at the time he saw the applicant.
[71] Exhibit C, Item 5.
Upon re-examination by the applicant, Dr Kuhnemann was asked whether the possible osteoarthritic changes are probably caused or exacerbated by the injuries of 2003 and 2006: he replied “that’s correct”.[72]
[72] Transcript, 23 May 2012, P-28, L14.
I asked Dr Kuhnemann whether there is any significance about the fact that in the papers there is a reference to a “click” of the ankle. Dr Kuhnemann replied that the click may not be significant at all. He stated that a painful click may indicate that something is catching or impinging but a painless click may be insignificant.
Dr Saxby
The respondent called Dr T Saxby, orthopaedic surgeon. Dr Saxby was asked about the comments in his reports in which it is stated “Specialising in Disorders of the Foot and Ankle”.[73] Dr Saxby remarked that after his general training he went overseas for some fellowships in foot and ankle surgery. He stated that for the last 20 years his practice has been restricted to foot and ankle surgery. In a week he would see about 40 or 50 new patients and probably the same number of old patients. He would complete about six to eight medico-legal assessments in a week. Dr Saxby confirmed that he wrote three reports upon the applicant dated 10 June 2003[74], 27 October 2009[75] and 1 February 2011[76]. Dr Saxby was asked to consult his clinical notes to see how long his consultation was with the applicant on 27 October 2009. He was advised that the applicant had stated that she may have gone in to see him before 9.00am but that it was about 9:04am on that day when she phoned her daughter. He stated that he does not keep time records of consultations but he could not possibly have seen her and taken a history in four minutes.
[73] For example see Exhibit G.
[74] Exhibit A, T-document 39, p. 69.
[75] Exhibit A, T-document 138, pp. 223-225.
[76] Exhibit G.
Under cross-examination, Dr Saxby was asked whether he makes his notes when the patient is seeing him. He replied that he always makes his notes when the patient is sitting with him. He stated that he will also dictate a letter after he has seen the patient. Dr Saxby confirmed that he saw the applicant on two occasions, once in June 2003 and once on 19 October 2009. He confirmed that he did not see the applicant after the MRI report dated 27 November 2009[77] was provided to him.
[77] Exhibit A, T-document 140, p. 227.
Dr Saxby was questioned about whether the applicant had made any complaint of pain in the vicinity of the talonavicular joint when she saw him on 19 October 2009. He replied that the talonavicular joint is very close to the ankle joint, so many people will call it ankle pain and it can be misconstrued. He also stated that the applicant was complaining of ongoing pain and not a new pain. Dr Saxby was questioned about the talonavicular joint not being adjacent to the area in which the applicant sustained her injuries. He replied that the applicant sprained her lateral ankle and this is more dorsal and medial but the ankle joint and the talonavicular joint are in close proximity. Dr Saxby was questioned about the applicant not making a specific complaint of pain in the talonavicular joint when she saw him on 19 October 2009: he replied that she said that she had ongoing pain in the ankle. Dr Saxby was asked to accept that any changes near the talonavicular joint are not the source of the pain and instability of the applicant’s ankle. He replied that ankle pain and talonavicular pain can be confused by patients and doctors. He stated that he would not categorically say that “it” (i.e. the talonavicular joint) is not the cause of pain in the ankle region.[78]
[78] Transcript, 23 May 2012, P-33, L25-27.
Dr Saxby was questioned about the fact that in his report of 1 February 2011[79] he stated that he essentially agreed with the history and clinical findings of Dr Kuhnemann. He stated that he did agree with the findings and the history. Dr Saxby was asked whether he was aware of the arthroscopy procedure that was performed by Dr Kuhnemann on 8 December 2004. He stated that he had a note from Dr Kuhnemann about the arthroscopy (being a letter dated 9 December 2004 addressed to Dr Pascoe from Dr Kuhnemann) and photocopies of the photographs taken at the time. Dr Saxby confirmed that he was aware that the applicant had an arthroscopy and a debridement. He was asked whether that procedure led to the applicant having a permanent disability in her case. He replied that the applicant had an ankle sprain and had an arthroscopy for that. He stated that ankle sprains or torn ankle ligaments are very common and the vast majority of people don’t have long term problems resulting from them. Dr Saxby reiterated that he did not believe that “spraining her ankle per se gives her problems long term”.[80]
[79] Exhibit G.
[80] Transcript, 23 May 2012, P-38, L1-2.
Dr Saxby was questioned about the fact that a third of the ligament was removed. He remarked:[81]
… the fact that she still has some ligament attached is a good thing. People who have a bad sprain completely rupture or tear their ligament, so that having a partial tear of a ligament is a relatively minor injury, and even people with complete tears of their ligaments do very well. So the ligament thing is – I don’t think is an issue at all. I don’t think that means that she is going to have long‑term problems.
[81] Transcript, 23 May 2012, P-38, L7-12.
Dr Saxby was asked about a comment that he made in his report of 1 February 2011: “… it is common to have a minor degree of long term discomfort following ankle sprains …”.[82] He was asked whether he accepted that some degree of ongoing pain and instability was not unusual. Dr Saxby replied that discomfort is different from pain. He remarked:[83]
Discomfort is an irritation or minor problem. Pain is, as you know, a more increased level. So it’s common to have discomfort, but it’s not common to have pain …
He also added that some form of instability is another symptom which “can occur in maybe 5 per cent of ankle sprain” cases.[84]
[82] Exhibit G, [3.2].
[83] Transcript, 23 May 2012, P-38, L28-30.
[84] Transcript, 23 May 2012, P-38, L30-31.
Dr Saxby again confirmed that he could not account for the severity of the symptoms complained of. He was asked whether the fact that the applicant needs to stand for two thirds of an eight hour shift each day, Monday to Friday, could only increase any ongoing pain or other symptoms in the left ankle. Dr Saxby stated that he did not think that standing per se stressed your ligaments that much, although she may well have discomfort from standing.
Dr Saxby was asked about whether a person who performs counter work is going to experience more difficulties than someone with a desk job and is sitting down. He remarked:[85]
Ankle sprains are extremely common in the community and most people go back – well, professional sportsmen go back to sports, you know. People go back to heavy manual work without complaining of – too much of all those symptoms. So I don’t know if standing per se would stress that sprained ankle unduly.
[85] Transcript, 23 May 2012, P-39, L3-7.
Dr Saxby was questioned about his comment in his report dated 1 February 2011: “This type of injury should not give rise to disabling pain in the long term”.[86] He remarked that “it is most unusual that anyone with a sprained ankle would have … debilitating pain with very little to find clinically in every normal investigation”.[87] Dr Saxby was asked about his opinion that the applicant’s problems are related to the talonavicular joint. He replied that the only abnormality on the scans is the navicular problem which would “explain the pain, but it doesn’t really fit with the history of injury”.[88] Dr Saxby confirmed that if the problem of the applicant was loss of stability, then support with shoes and ankle supports would be beneficial.
[86] Exhibit G, [3.1].
[87] Transcript, 23 May 2012, P-39, L27-28.
[88] Transcript, 23 May 2012, P-40, L4-5.
Dr Saxby was asked whether he believed that the applicant was a malingerer. He stated that he was not making that assumption. He remarked:[89]
She had normal motion of her ankle, which, on examination – there’s nothing in the examination to suggest that she was trying to deceive me. But she had a very normal examination, and a normal investigation. Therefore, I couldn’t explain why she should have so much pain. And that’s what I’m trying to convey there.
[89] Transcript, 23 May 2012, P-41, L4-8.
Dr Saxby was asked whether he was prepared to accept that her ongoing symptoms are a result of the 2003 and 2006 injuries. He replied that she may well have discomfort but he did not accept that the severity should be such that she should be disabled by pain. He conceded that analgesics could help with her discomfort and ankle braces might assist her to perform her duties.
Dr Saxby was questioned about his first consultation, which was held in June 2003. It was suggested that any physical examination was carried out by a student or visiting doctor who was with him at the time. Dr Saxby replied that she would have been seen by his fellow, who would be an orthopaedic surgeon, usually from overseas. It was suggested that he would have been better placed to offer an opinion on a person’s condition if he had examined the patient himself. Dr Saxby replied that what occurs is that the fellow examines the patient and then he will examine the patient to confirm his findings.
Dr Saxby was again questioned about his second consultation, which was held on 19 October 2009. He was asked if he could recall whether the consultation was for five minutes or less. Dr Saxby reiterated that he could not imagine that he could do a medico-legal assessment in five minutes or less. He could not recall how long the appointment was.
Dr Saxby confirmed that he had a copy of the latest MRI report, dated 27 November 2009.[90] He was advised that in that report is a comment:
The findings are consistent with an old injury to the calcaneofibular ligament and a complete tear of the anterior talofibular ligament.
Dr Saxby was asked that if the applicant suffers from a complete tear of the anterior talofibular ligament, would that alter his opinion on whether the applicant is experiencing severe pain in that part of her ankle. Dr Saxby replied:[91]
No. As I have said, when you sprain an ankle, that’s what you do. You tear the ligament.
He stated that it does not alter his opinion if there has been a complete tear of the anterior talofibular ligament when she has damaged her ankle ligaments again.
[90] Exhibit A, T-document 140, p. 227.
[91] Transcript, 23 May 2012, P-43, L2-3.
Upon re-examination by the respondent, Dr Saxby was asked whether, in respect of the last question asked by the applicant, his opinion would change one way or the other if the MRIs which were done before the 2006 injury “also say that there was no identifiable anterior talofibular ligament”. Dr Saxby replied:[92]
No, it doesn’t. It’s quite likely it can be ruptured completely but that just confirms she has had an ankle sprain.
[92] Transcript, 23 May 2012, P-43, L21-22.
I asked Dr Saxby whether there is any significance in this case about the fact that in the papers there is a reference to a “clicking” of the ankle. He replied that clicking ankles is the tendon slipping around and it is a common symptom that people have which is not related to anything specifically and does not cause any problems as such. Dr Saxby remarked that the only concern is that if the peroneal tendons are dislocating, but that the applicant did not have that problem.
At the conclusion of the hearing the parties agreed to file two sets of documents: the respondent agreed to file the medical notes of Dr Saxby (which were called for by the applicant) and the applicant agreed to file the photograph taken by Dr Kuhnemann. I stated that these documents could then be admitted by consent without the necessity for a hearing. After the hearing I made a direction for the medical notes of Dr Saxby and the photograph of Dr Kuhnemann to be, respectively, filed by the respondent and applicant. I made this direction as the parties had not filed these documents. I was also mindful that the applicant had called for the notes of Dr Saxby and in my view was entitled to inspect them. The respondent has consented to the admission of the photograph as evidence. However, the applicant, who has had an opportunity to inspect these medical notes of Dr Saxby, has not consented to the admission into evidence of the medical notes. The medical notes have therefore not been admitted into evidence.
On 31 July 2012, the applicant’s counsel had filed with the Tribunal copies of a medical report, dated 16 July 2012, upon x-ray and MRI reports. At a further telephone directions hearing, I asked the applicant’s legal representative whether he sought leave for the admission into evidence of the report of 16 July 2012; the applicant did not seek leave for that report to be admitted into evidence. Whilst not bound by any concession of a party, I do not consider it appropriate or necessary to admit into evidence MRI reports upon the current condition of the applicant as there were MRI reports upon the previous condition of the applicant that were already in evidence.
RELEVANT LEGISLATION
Section 14(1) of the Act provides for compensation for injuries suffered by employees of the Commonwealth, Commonwealth authorities or licensed corporations, and provides as follows:
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.
The respondent is the holder of a licence under Part VIII of the Act, which authorises it to accept liability for and manage claims under the Act, and by virtue of s 4(10A), a reference in the Act to Comcare is, unless the contrary intention appears, a reference to a licensed corporation.
The necessary connection between a medical condition in respect of which an employee claims compensation and his or her employment is effected by the definitions of “injury” and “disease” in ss 5A and 5B of the Act. Section 5A provides as follows:
(1) In this Act:
“injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, the employee’s employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
“Disease” is defined in s 5B of the Act as follows:
(1) In this Act:
“disease” means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
“significant degree” means a degree that is substantially more than material.
The word “ailment”, in paragraph (a) of the definition of “disease”, is defined in s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. The word “aggravation” is defined to include “acceleration or recurrence”.
Section 16 of the Act provides that where an employee suffers an injury, Comcare (or the respondent in this case) is liable to pay the cost of reasonable medical treatment obtained in relation to the injury.
Section 19 provides that Comcare (or the respondent in this case) is liable to make incapacity payments where an employee is incapacitated for work as a result of an injury. It also provides for how such incapacity payments are calculated.
CONSIDERATION
The applicant contends that since 12 January 2010, when the determinations were made, she has continued to require medical treatment and to take time off work because of the injuries that she sustained in 2003 and 2006.
The applicant asserts that she continues to experience pain and discomfort in her left ankle. The question that I have to determine is whether this pain is related to the injuries that she sustained in 2003 and 2006. There is no issue that the applicant sustained those injuries. I give my reasons why I do not consider that since 2010 her condition of the left ankle is an ailment or an aggravation of an ailment that was contributed to, to a significant degree, by the employment of the applicant.
After the 2003 injury the applicant underwent an arthroscopy and a debridement by Dr Kuhnemann. After that procedure she resumed her full duties at the workplace. The applicant has had no surgical treatment after her 2006 injury. After that injury she had rehabilitation which ceased in February 2007; since then she has worked normal hours. She has not had a further rehabilitation program.
There have been a number of reasons put forward to explain the source of the pain of the applicant. But on the state of the evidence before me I am unable to make a finding that her pain and symptoms are a result of the workplace injuries. I give my reasons.
There are a number of medical reports that are in evidence in which some specialists have been unable to give an explanation as to why the applicant experiences such pain. One report is by Dr Hatcher. In his report which was dated 16 February 2010, Dr Hatcher advised:[93]
Unfortunately, I cannot find any objective reason why Patricia would be complaining of such severe pain. The ATFL tear in itself would not at this stage be expected to be painful. She has had extensive investigations including recent MRI scan, plain x-rays, stress views and ultrasound scan which did not show a convincing reason for her lateral ankle pain.
I have advised her that physiotherapy is the way to go her [sic] to strengthen her ankle and provide her with more coordination and proprioception.
[93] Exhibit J.
The applicant states that she was unaware of the existence of the reports of Dr Hatcher. Dr Bartlett states that he does not recall giving a referral to Dr Hatcher although the reports appear to have been written to Dr Bartlett on the basis that he has given a referral. That may well have been the case because the applicant stated that she saw Dr Hatcher at the suggestion of a physiotherapist. The admission of the reports is now a matter of contention. In final submissions, the applicant contends that “strident objections” were taken to the tendering of the reports of Dr Hatcher. However, the reports of Dr Hatcher were admitted into evidence without objection at the hearing on 9 November 2011.[94] I informed the applicant that having known of the reports I would nevertheless have called for the reports having regard to the inquisitorial nature of the Tribunal.[95] The reports of Dr Hatcher were commissioned by the applicant soon after the reviewable decisions were made and were the considered reports of a specialist who had investigated her condition. There was no statutory obstacle to the admission of the reports; it is well‑known that a provision such as s 66(1) of the Act does not bind the respondent.[96] The reports of Dr Hatcher were in the summonsed papers of Dr Bartlett which were available for inspection prior to the hearing. Indeed, counsel for the applicant had stated that he had inspected the summonsed papers[97] and would have seen the reports of Dr Hatcher.
[94] Transcript, 9 November 2011, P-42 – P-43.
[95] Transcript, 9 November 2011, P-48.
[96] Re Moline and Comcare [2003] AATA 827 at [5].
[97] Transcript, 9 November 2011, P-48, L22.
What was important in this case was to ensure that the applicant was not disadvantaged by the tender of the reports of Dr Hatcher which were not filed at the Tribunal’s registry. This is why the applicant was twice advised that the Tribunal would accommodate her if Dr Hatcher was required for examination.[98] Dr Hatcher could have been called by the applicant, the respondent or the Tribunal. The Tribunal would have been mindful of minimising any expense to the applicant. The applicant, who had some months to prepare for any cross-examination, did not, at any time, call or seek to examine Dr Hatcher. However, in final written submissions the applicant submitted (at para 73):
Contrary to suggestions made during the proceedings, it was not practicably open to Mrs Kirton, nor should it have been incumbent upon her to do so, to call Dr Hatcher herself. One cannot cross-examine one’s own witness.
However, if the applicant had called a medical witness there would be no impediment to the applicant cross-examining that witness. This is because the Administrative Appeals Tribunal’s General Practice Direction specifically provides that where a party calls a medical witness, “the medical witness will not become the party’s witness”.[99] As the applicant did not seek the examination of Dr Hatcher, the Tribunal did not see any reason to call Dr Hatcher who gave an opinion that was consistent with that of Dr Saxby.
[98] Transcript, 9 November 2011, P-48 – P-50.
[99] General Practice Direction, clause 3 (26 March 2007).
The applicant submitted in final submissions that it is appropriate to “draw a Jones v Dunkel[100] inference with respect to the evidence of Dr Hatcher” (at para 76). In Muin v Refugee Review Tribunal,[101] Gleeson CJ remarked, at [25]: “The process of factual inference considered in Jones v Dunkel involves an expectation that the party against whom an inference is drawn would call the absent witness”. No particular inference is articulated in the submission of the applicant but it seems to be submitted that Dr Hatcher would not assist the case of the respondent. The respondent has tendered the reports of Dr Hatcher which are in its possession[102] and which have been inspected by the applicant. This is certainly not a case where the respondent has not called one of its expert witnesses who may be less favourable to the case of the respondent.[103] There can be no suggestion that the respondent has ever engaged Dr Hatcher as an expert; it was the applicant who consulted Dr Hatcher.
[100] (1959) 101 CLR 298.
[101] (2002) 190 ALR 601.
[102] Heydon, J. D., (2010), Cross on Evidence (8th Australian Edition, 2010), LexisNexis, Chatswood, Australia at [215].
[103] Cf., Packer v Cameron (1989) 54 SASR 246 at 253 per Cox J.
I do not consider that it would be appropriate to draw a Jones v Dunkel[104] inference with respect to the evidence of Dr Hatcher as the applicant had been advised by the Tribunal that it would accommodate the applicant if Dr Hatcher was required as a witness. I again mention that no request for the attendance of Dr Hatcher was made by the applicant. I do not accept that any adverse inference should be drawn from the failure of the respondent to call Dr Hatcher who was consulted by the applicant. There is no suggestion that the applicant had ever requested that the respondent call Dr Hatcher.
[104] (1959) 101 CLR 298.
The reports of Dr Hatcher,[105] who saw the applicant on two occasions, are considered reports. While Dr Hatcher did not give oral evidence, his standing as a specialist and his comprehensive examination of the left ankle of the applicant are factors which incline me to give some weight to his reports.[106] I rely upon the opinion of Dr Hatcher who has concluded that there is no objective reason for the symptoms experienced by the applicant and that the ATFL tear would not be expected to be painful. I also mention that Dr Kuhnemann, who was called by the applicant, had been asked whether he had agreed with the conclusion of Dr Hatcher that the AFTL tear was not expected to be painful. Dr Kuhnemann replied: “That’s possible”; he did not disagree with the conclusion of Dr Hatcher.
[105] Exhibit J.
[106] Cf., Re Almond and Secretary, Department of Social Security (1990) 20 ALD 746 at 748 per D. P. Forgie.
Dr Hatcher is not the only specialist who has been unable to find a reason why the applicant complains of such pain. This is also the opinion of Dr Saxby, who reported on 1 February 2011:[107]
To restate my opinion; I believe that this lady has suffered a lateral ankle ligament injury in her two work-related injuries of 24.2.03 and 15.3.06. To put it simply, this lady has sprained her ankle on these two occasions. This type of injury should not give rise to disabling pain in the longterm.
[107] Exhibit G, [3.1].
Dr Saxby added that her “symptoms relating to this injury seem disproportionate in terms of the structural damage to her ankle”. Dr Saxby has been consistent in his opinion. Earlier, on 27 October 2009, Dr Saxby reported: “I am unable to explain why this lady should have such significant ongoing pain”.[108] As long ago as 18 March 2004, Dr Peereboom, orthopaedic surgeon, reported that “there is no structural abnormality which could cause her pain”.[109]
[108] Exhibit A, T-document 138, p. 225.
[109] Exhibit A, T-document 76, p. 126.
I rely upon these reports of Dr Hatcher and Dr Saxby and find that there is no objective or plausible reason why the applicant experiences such pain.
Dr Kuhnemann has explained that there is a difficulty of diagnosis in this case. It is now some six years after the last injury in 2006 and the applicant does not appear to have sought specialist advice for the treatment of the complaint which she states causes her such pain. Dr Kuhnemann has explained that she has only “sought opinions from medico-legal reports, but not for ongoing management”. Dr Kuhnemann agreed that in these circumstances he could not be certain about the condition of the applicant.
There is evidence that the effects of the injury in 2006 lasted for only a short time. On 18 May 2006, the applicant had informed Dr Goode that her left ankle had settled after she had stumbled on a footpath in March 2006; she also stated that her left ankle was back to where it was prior to the event in March 2006.[110] Whilst the applicant did not recall making such a statement she did not deny making the statement.
[110] Exhibit A, T-document 114, p. 186.
Dr Kuhnemann has suggested that the osteoarthritis in the ankle of the applicant may have been aggravated by the 2006 injury, sustained when she was walking on the uneven footpath. This was raised by Dr Kuhnemann as a possibility rather than a probability. It is certainly important to know whether a workplace injury had aggravated an existing condition because an aggravation of an existing ailment comes within the definition of a “disease” in s 5B of the Act (see para [75] of these reasons). Dr Kuhnemann explained why he raised this possibility: he remarked that “every time you sprain your ankle you reinjure the osteoarthritis area within the ankle”.[111] However, Dr Kuhnemann conceded under cross-examination that his statement was an assumption because no arthroscopy has been performed. He has also considered that it would not be clear from an MRI whether there has been any progressive deterioration. Dr Kuhnemann had also earlier remarked that MRIs are not “100 per cent diagnostically exclusive of instrument”.[112]
[111] Transcript, 23 May 2012, P-27, L31-32.
[112] Transcript, 23 May 2012, P-26, L18-19.
Having regard to all of the evidence before me I cannot be satisfied that the 2006 injury had aggravated an existing condition. I have taken into account the fact that Dr Kuhnemann had raised this as a possibility rather than a probability. I have also considered the fact that on 18 May 2006 the applicant had told Dr Goode that her March 2006 injury had settled.
Dr Saxby has expressed an opinion that the pain experienced by the applicant may emanate from the talonavicular joint. I give considerable weight to this opinion as it comes from a senior specialist who has exclusively practiced in the field of foot and ankle surgery for the past 20 years. In his report of 1 February 2011, Dr Saxby gave cogent reasons why he came to this opinion. He remarked:[113]
The most recent MRI scan has shown bone oedema in the navicular. … It is possible that some of this lady’s pain may be related to this new problem. However, I do not believe that this new problem is in any way related to her previous ankle ligament injury.
The opinion of Dr Saxby that the pain of the applicant has a navicular origin is supported by other evidence. Dr Hatcher reported on 16 February 2010 that x-rays show “some very early degenerative change in the talonavicular joint”.[114] The explanation of Dr Saxby provides a cogent reason why the applicant has navicular pain.
[113] Exhibit G, [3.1].
[114] Exhibit J.
I have earlier mentioned that when the applicant was cross-examined she was advised of a clinical note from the Hinterland Medical Centre, dated 27 March 2006, which records the applicant having “pain in the navicular region” as well as other left ankle pain. In my view it would not be fair to place any weight on the clinical note of the general practitioner who did not give reasons for his conclusion. The clinical note was not tendered by any party. I did not consider it appropriate to admit it into evidence.
Although the applicant denies having pain that has a navicular origin, in her letter of 7 December 2009, she has contended that “[t]he subchondral changes in the proximal navicular” are “consistent with and clearly attributable to the instability” relating to her workplace injuries. The respondent sought the advice of Dr Saxby on this contention.
On 15 December 2009, Dr Saxby reported that the applicant has “subchondral changes in the proximal navicular which may represent an osteochondral injury”. Dr Saxby remarked that these changes were evident in the MRI scan of 27 November 2009 but were not evident in the MRI scan of 17 May 2006. Dr Saxby concluded that these changes have occurred since the MRI scan of May 2006 and he opined that these changes are not related to a previous injury.[115] During his cross-examination, Dr Saxby was not questioned on this conclusion which has therefore not been challenged. This conclusion of Dr Saxby was not contradicted by any other evidence. I rely upon the report of Dr Saxby dated 15 December 2009 to find that the subchondral changes in the proximal navicular in the left ankle of the applicant are not caused by the workplace injuries of 2003 and 2006.
[115] Exhibit A, T-Document 143, p. 231.
It was contended on behalf of the applicant, in final written submissions, that Dr Saxby made a number of concessions and that he “accepted that the talonavicular joint (not the site of the 2003 and 2006 injuries) is not the source of Mrs Kirton's pain, symptoms and disabilities” (at para 62(a)). However, I am unable to accept that Dr Saxby had made any such concession. Dr Saxby did not resile from his opinion that the applicant may have navicular pain despite repeated cross-examination on this issue. Counsel for the applicant put to Dr Saxby that the applicant:[116]
[116] Transcript, 23 May 2012, P-33, L6-7.
… did not make any complaint of pain in the vicinity of the talonavicular joint to you when she saw you on 19 October 2009, did she?
Dr Saxby responded:[117]
Well, she had – the talonavicular joint is very close to the ankle joint, so many people will call it ankle pain and it can be misconstrued, but she was complaining of ongoing pain and not a new pain.
Dr Saxby was also asked:[118]
Well, the talonavicular joint is not adjacent to the area in which Mrs Kirton sustained her injuries is it?
Dr Saxby responded:[119]
No, it’s on the – well, she sprained her lateral ankle within an injury, and this is more dorsal and medial, but the ankle joint and the talonavicular joint are in close proximity.
A fair reading of the remarks of Dr Saxby does not reveal that he made any statement that the talonavicular joint is not the source of the pain of the applicant. Instead, he commented that many people confuse pain in the talonavicular joint with ankle pain. Dr Saxby explained that this is because “the ankle joint and the talonavicular joint are in close proximity”.[120]
[117] Transcript, 23 May 2012, P-33, L7-10.
[118] Transcript, 23 May 2012, P-33, L12-13.
[119] Transcript, 23 May 2012, P-33, L13-15.
[120] Transcript, 23 May 2012, P-33, L14-15.
Dr Saxby, who is an experienced specialist in the field of foot and ankle surgery, has provided considered reports on the condition of the applicant. He stood by his reports despite extensive cross-examination. It was suggested to him that on the first consultation he had not examined the applicant at all. After hearing from him I am satisfied that he had followed the established medical practice of confirming the findings of the medical fellow under his supervision. It was suggested that on the second occasion when he examined the applicant, that the consultation was for a short time. However, under cross‑examination the applicant conceded that she had made no issue about this at the time. The applicant was also unable to say when the consultation commenced and was only able to give an estimate from a wall clock (which may or may not have been accurate) of when the consultation concluded.
The applicant, in final written submissions, was also critical of Dr Saxby for “hair‑splitting and obfuscation” in his use of the words “pain” and “discomfort” (at para 63(c)). In his report dated 1 February 2011, Dr Saxby reported that it “is common to have some degree of long term discomfort following ankle sprains”.[121] Under cross‑examination, Dr Saxby mentioned that discomfort was an “irritation or minor problem”[122]; he was not challenged on his observation that “discomfort is different from pain”.[123] It should be mentioned that Dr Saxby was not the only witness who differentiated between “pain” and “discomfort”. Dr Kuhnemann, who was called by the applicant, had also, in his evidence, used the terms “pain” and “discomfort”, such as when he remarked that the applicant may have ongoing “discomfort” from stress on the remaining ligament.[124]
[121] Exhibit G, [3.2].
[122] Transcript, 23 May 2012. P-38, L28.
[123] Transcript, 23 May 2012, P-38, L27-28.
[124] Transcript, 23 May 2012, P-18, L18-19.
I have given serious consideration to whether, as a result of the injuries of 2003 and 2006, a decision should be made that the applicant should now be given compensation in respect of medical treatment or expenses. I rely upon the opinion of Dr Saxby who reported on 27 October 2009 that the applicant does not require any ongoing treatment for her work-related injuries.
Dr Saxby reported that the main complaint of the applicant is pain, although she does have “some episodes of insecurity”.[125] In April 2005, the applicant was advised by Dr Kuhnemann to “wear an ankle support when she does any activities like playing golf or bushwalking”.[126] The applicant was unable to inform the Tribunal when she last played golf. She stated that it was not until 2010 when she had started to wear an ankle support. The report of Dr Hatcher, dated 8 February 2010, indicates that she had then taken delivery of a “lace up ASO ankle brace”.[127] This was sometime after her last injury in 2006.
[125] Exhibit G, [3.2].
[126] Exhibit C, Item 5.
[127] Exhibit J.
After consideration of the specialist evidence before me, I cannot be satisfied that the cause of her insecurity is any instability from any loss of the supporting structures. Dr Saxby reported in 2009 that her ankle is stable to ligamentous testing; he was not challenged during cross-examination upon this conclusion. Dr Saxby also agreed under cross-examination that ankle supports and braces would be beneficial, but he remarked that this would occur “if her problem was an instability”.[128] Dr Saxby certainly did not express an opinion that there was instability in the ankle. On 8 February 2010, Dr Hatcher reported that the applicant had made no complaint to Dr Saxby of functional instability. The applicant, in final written submissions (at para 78(b)), has pointed to the statement in the report of Dr Hatcher that the “functional instability may well be related to her ankle sprains”. However, that was a tentative opinion that was made in his earlier report of 8 February 2010. Later, on 16 February 2010, Dr Hatcher reported:[129]
There is no structural abnormality as evidenced by her clinical examination and stress radiology and MRI scanning, and as such I really don’t think surgical stabilisation of her ankle is indicated.
Dr Kuhnemann, who was called by the respondent, did not give any firm evidence of instability in the ankle, but he certainly agreed with the recommendation of Dr Bartlett that she wear ankle supports while she has a feeling of insecurity. However, his recommendation was made in the context that there would be a need “to consider a stabilisation procedure, if she did truly have insecurity in the ankle and not purely pain related”.[130] Dr Kuhnemann did not state that there was a need for a stabilisation procedure and he also did not express a firm opinion that there was insecurity or instability in the ankle.
[128] Transcript, 23 May 2012, P-40, L17-18.
[129] Exhibit J.
[130] Transcript, 23 May 2012, P-23, L40-41.
The applicant claims that she still needs physiotherapy and this is certainly the recommendation of her general practitioner. However, Dr Kuhnemann, who is the orthopaedic specialist called by the applicant, was repeatedly asked whether, in those circumstances, he was prepared to recommend that she undergo continuing physiotherapy. The tenor of the evidence of Dr Kuhnemann was that he considered physiotherapy was not going to resolve her discomfort. In response to a question from counsel for the applicant, Dr Kuhnemann remarked: “Frequent physiotherapy treatments won’t change the outcome”.[131] He remarked that physiotherapy may assist in the short term. However, he stated that the source of the “ongoing discomfort is not resolved”. The applicant advised the Tribunal that she continues her exercises at home. Having regard to the opinion of Dr Kuhnemann, I cannot be satisfied that it is reasonable for her to have continued physiotherapy treatment.
[131] Transcript, 23 May 2012, P-22, L42-43.
There is a claim that the respondent should pay for swimming classes. The applicant put a question to her general practitioner about whether there is a need for “an organised swimming program paid by the employer”.[132] I appreciate that Dr Bartlett, her general practitioner, remarked that such a program would be beneficial for the applicant for her weight management and that this is a routine recommendation for orthopaedic cases. However, on the state of the evidence, I cannot be satisfied that it is reasonable for her to obtain a swimming program because of her workplace injuries.
[132] Transcript, 23 May 2012, P-9, L26-27.
One matter that was raised by the applicant in her letter of 7 December 2009 to the respondent concerned the clicking of her ankle. This is why I asked both Dr Kuhnemann and Dr Saxby whether they regarded the clicking of the ankle to have significance. Both specialists did not consider that the ankle clicking was significant. Dr Kuhnemann remarked that a painless click may be insignificant. Dr Hatcher has recorded that the applicant had advised him that the click was more annoying than painful.
One of the contentions that was raised by the applicant during the hearing was that the long-term prognosis of the applicant may have been caused by delay in her treatment. The applicant herself, in giving her evidence, had not asserted that there was any such delay. However, Dr Kuhnemann was asked by counsel for the applicant about the fact that the tear to the anterior talofibular ligament was not repaired until December 2004; this was some 22 months after the injury of 24 February 2003. In particular, Dr Kuhnemann was asked what effect “the absence of treatment had, or may have had, on her long-term prognosis?”.[133] Dr Kuhnemann, who mentioned that the applicant complained of impingement and had some arthritic change, did not consider that there was a significant impact on her long-term prognosis.
[133] Transcript, 23 May 2012, P-18, L40-41.
In evidence is a report dated 30 May 2003 upon an MRI of the left ankle of the applicant.[134] Sagittal, axial and coronal T1 and T2 weighted images and axial and coronial gradient echo images were performed through the whole ankle. The summary of the report was:
Low grade left Achilles tendinitis without evidence of tear. No peroneal tendon abnormality or other abnormality seen.
In that report there is no observation of any possible tear. However, a report dated 12 March 2004[135] (upon an examination date of 8 March 2004) revealed that there were various changes to the ankle since the previous MRI. In particular, the report contained the comment:
There was no identifiable anterior talofibular ligament, which is likely to be torn.
There is no medical evidence before me to indicate that a surgical procedure was warranted after the injury of 24 February 2003: however, by March 2004 there was evidence that the applicant had developed a tear. The arthroscopy was performed in December 2004 after Dr Kuhnemann had recommended surgery in his report dated 7 October 2004.[136]
[134] Exhibit A, T-document 35, p. 63.
[135] Exhibit A, T-document 75, p. 124.
[136] Exhibit A, T-document 83, pp. 135-136.
The applicant has been critical of the conduct of the respondent. The applicant referred, in its final written submissions, to the “spurious procedural application on 20 June 2011” (at para 73). However, on that occasion the applicant was granted an adjournment which was not opposed. The application was granted so that the applicant was given the fullest opportunity to lead all relevant evidence in support of her case. The applicant was then proposing to lead evidence from Dr Bartlett about continuity of symptoms which was not disclosed in the filed report of Dr Bartlett. The applicant had contended that the “basis of its objection was that it might be caught by surprise by Dr Bartlett’s evidence because there was no up to date report from Dr Bartlett” (at para 98). The applicant also contended that “at no time prior to the hearing did Australia Post raise any objection about the absence of an up to date report from Dr Bartlett” (at para 99(g)). I adverted to the requirements of the General Practice Direction which provides that, prior to the second conference, “[a]ll expert reports and the statement of all witnesses, including the applicant, must also be exchanged and lodged at this time”.[137] In my view, the respondent was not complaining about the absence of an up-to-date report but, rather, that it had not been provided with, before the hearing, any witness statement which alleged new matters which had not been previously disclosed in the filed report of Dr Bartlett, and upon which the respondent may wish to obtain medical advice before cross-examining Dr Bartlett.
[137] General Practice Direction, clause 2 (26 March 2007).
The applicant, in its final written submissions, was also critical of the respondent on 9 November 2011 in its “refusal to consent to the interposition of Dr Bartlett and Dr Kuhnemann which caused the proceedings to run into a third day” (at para 102). On that date, the applicant had then agreed that the respondent was entitled to object to any interposition of these witnesses: counsel for the applicant remarked, “[t]he applicant is in difficulties; the estimates of time for our witnesses have been optimistic and my learned friend, as he is entitled to, has objected to interposing these witnesses”.[138] Whilst Dr Bartlett and Dr Kuhnemann were available at lunchtime on that day, there was no information before the Tribunal as to what times these witnesses would be at lunch.[139]
[138] Transcript, 9 November 2011, P-30, L12-14.
[139] Transcript, 9 November 2011, P-18, L19-21.
I find, in reliance on the opinion of Dr Saxby, that the applicant does not have any permanent or long-term injury from her workplace injuries. Dr Saxby’s reasons for coming to that opinion were not challenged during his cross-examination. His opinion should be given some weight as he is a specialist in conditions of the foot and he performed a relatively recent examination of the applicant.
I have concluded, after a review of the considerable evidence before me, that since 12 January 2010 the respondent is not liable under the Act for the left ankle condition of the applicant. I should add that the evidence before me discloses that the respondent has acted reasonably in investigating the condition of the applicant and in providing her with any necessary rehabilitation.
DECISION
I affirm the decision under review.
I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member
...................[Sgd].....................................................
Associate
Dated 24 October 2012
Dates of hearing 20 June 2011; 9 November 2011; 16 December 2011; 23 May 2012 and closing submissions 24 September 2012.
Counsel for the Applicant Mark Healy Counsel for the Respondent Ben Dube Solicitors for the Respondent Sparke Helmore
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