Primmer and Comcare
[2007] AATA 2021
•6 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2021
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1105
GENERAL ADMINISTRATIVE DIVISION ) No N2007/0260 Re PAUL PRIMMER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member M D Allen Date6 December 2007
PlaceSydney
Decision The decisions under review are affirmed.
................[sgd].........................
M D Allen Senior Member
CATCHWORDS
WORKERS COMPENSATION – review of decision that applicant not entitled to compensation in respect of injury to right knee – review of decision that applicant no longer entitled to compensation in respect of second injury to right knee – liability of initial injury accepted but benefits ceased – initial injury resolved – after second injury applicant suffering excruciating pain and experiencing transient loss of function – no objective signs to support level of incapacity – applicant suffered aggravation of pre-existing constitutionally caused osteoarthritis in second incident – decisions under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 sections 16, 19 and 37
REASONS FOR DECISION
6 December 2007 Senior Member M D Allen 1. This matter concerned two applications for review by the Applicant an employee of Centrelink namely:
(i) N2006/1105 seeking review of a reviewable decision that as at 28 February 2006 the Applicant was not entitled to compensation pursuant to sections 16, 19 and 37 of the Safety, Rehabilitation and Compensation Act 1988 for an injury sustained on 27 June 2005.
(ii) N2007/260 seeking review of a reviewable decision that the Applicant was not entitled to compensation pursuant to sections 16, 19 and 37 of the SRC Act in respect of an injury namely “strained right knee” that occurred on 1 July 1991.
2. There is no dispute that the Applicant injured his right knee during the course of his employment on 1 June 1991. Liability was accepted but no benefits had been paid consequent upon that injury since August 1991.
3. In evidence the Applicant stated that after a while the symptoms from this injury “cleared up”. He was able to play squash and for a short time trained at karate until he found he did not like that activity. He was able to walk to work and to bushwalk.
4. This account of his knee recovering is consistent with the report of the Orthopaedic Surgeon, he consulted at the time, Dr Ostinga. In a report to the Respondent dated 1 November 1991 Dr Ostinga stated:
“If his knee is still causing trouble in three months time, I have undertaken to review his case with a view to arthoscopy…”
The Applicant did not return to Dr Ostinga and there are no records relating to any complaints by the Applicant regarding his right knee until 2005.
5. On 22 June 2005 the Applicant forwarded an email to an acquaintance a Kate Douchkov, who was employed in Humane Resources. In that email he said:
“ Several years ago, early to mid nineties if my memory serves me correctly, I hurt my right knee at work (shifting a file bay). Comcare accepted the claim at the time, however, the bloody surgeon just waved me away, saying that he didn’t want to do anything with it, and that it should get better by itself, but later on, there could be an issue with it. I think the Dr was Ostinger, although I’m not positive, it would be on my personnel file. Anyway, it is now later on, and my knee is giving me a hell of a time.”
6. In passing it must be stated that the Applicant’s version of Dr Ostinger’s attitude is in direct contrast to that medical practitioner’s report to the Respondent, part of which has been quoted at para 4 above.
7. A Performance Assessment Review of the Applicant was conducted on 23 June 2005. In a report of that review the reviewer Ms O’Keefe noted:
“Paul advised that he has previously had a work related injury to his knee which has lately become painful, he has been experiencing sharp stabbing pain and his knee occasionally gives way. I advised Paul to complete an incident report in Infolink and I would follow up other requirements and available assistance with HR.”
8. In evidence the Applicant was asked about the email of 22 June 2005 and stated that at that time his knee had been “playing up”. There was no specific injury but he got a dull ache and some discomfort. He was not taking any medication but on occasions did wear a knee guard. He was considering seeing a medical practitioner hence his enquiry regarding compensation.
9. On 27 June 2005 the Applicant was required to attend a First Aid course. During the course of instruction he was required to kneel in order to perform CPR on a mannequin. He immediately felt a sharp pain behind his right knee and was unable to rise without assistance. During the rest of the course he was sore and unable to kneel. It was not until three days after the initial injury that he was able to attend his own general practitioner. That medical practitioner, Dr Blackford, referred him for x-ray, physiotherapy and an MRI scan.
10. An MRI scan of the Applicant’s right knee was performed on 5 August 2005. The report of that scan reads:
“Comment
1. Signal changes in the posterior horn of the medial meniscus appear to be contained within the meniscal substance suggesting degeneration but there is a small focal posteromedial synovial cyst.
2. Degenerative changes in the posterior horn of the lateral meniscus. Early chondromalacia of the weight bearing surface of the lateral femoral condyle.
3. Cystic changes in the region of the tibial eminence just anterior to the attachment of the anterior cruciate ligament.”
11. Subsequently the Applicant was referred to Orthopaedic Surgeon, Dr Verheul. Dr Verheul diagnosed patello-femoral osteoarthritis/chondromalacia and carried out three injections of Synovisc. The Applicant stated that these injections were very painful and to his mind did not assist him.
12. That the Applicant suffered extreme discomfort as a result of the Synovisc injections is confirmed by Dr Verheul’s report to the Applicant’s general practitioner dated 14 December 2005. In addition to the Synovisc injections the Applicant has had physiotherapy and hydrotherapy. His evidence is, that since the Synovisc injections in December 2005, his knee has been aching constantly. Dr Verheul was reluctant to perform any other treatment, but did refer the Applicant to a specialist in pain management, Dr Russo.
13. Apart from Dr Verheul, the Applicant has been referred by his general practitioner to Rheumatologist, Dr Schwarzer and Orthopaedic Surgeon, Dr Caldwell.
14. At the request of his employer Centrelink the Applicant attended Dr Nigel Menogue who describes himself as an “orthopaedic physician”. I note that Dr Menogue does not disclose his qualifications on his letterhead and does not appear to be a member of any of the professional colleges. Dr Minogue assessed the Applicant’s prognosis as:
“The claimant has a fair prognosis. It is unfortunate that he has not responded to physiotherapy and the passage of time should really have resulted in an amelioration of his right knee symptoms. This statement is particularly so where there was not a specific injury in the form of twisting injury but moreover the nature of the event was more an impact and not one of any great velocity.”
15. Following the examination by and report of Dr Menogue, the Applicant continued at work working full hours, but with restrictions. Those restrictions are still applicable to the Applicant.
16. A matter, which the Applicant could not explain, is that whereas Orthopaedic Surgeon, Dr Caldwell, has recommended an arthroscopy and this has been supported by Rheumatologist, Dr Schwarzer, he has taken no steps to place himself on a waiting list for such surgery at a public hospital despite stating he is in continuous pain.
17. Although not everyone present at the First Aid course on 27 June 2005 witnessed the Applicant’s injury occurr, I am satisfied on the balance of the witness statements and the Applicant’s own evidence, that an injury did occur as described by him.
18. As stated above the Applicant was initially referred by his GP to Dr Verheul who injected his knee with Synovisc on three occasions. In his initial report to the Applicant’s GP Dr Verheul took a history that following the 1991 injury the Applicant had “some minor to moderate intermittent trouble since that time”.
19. For the purposes of a report to the Respondent dated 27 June 2006, Dr Verheul was asked to comment on the history that the Applicant made a statement on 22 June 2005, that his knee was giving him “a hell of a time”. Dr Verheul in a report dated 27 June 2006 stated inter alia:
“In your records you indicate that you have recorded a statement from Mr Primmer on the 22nd June 2006 that his knee is giving him ‘a hell of a time’. However in Mr Primmer’s notes he does not recall any such statement. He reports that his knee would occasionally ache in cold weather. There is obviously a significant difference in the severity of the symptoms as stated by yourself and Mr Primmer. Obviously if he had been suffering from severe stabbing type pains then the CPR activities which he was performing on the 27th June 2005 would merely have been an aggravation of a significant and pre-existing condition.”
And at page two of his report Dr Verheul opined:
“Obviously the situation of precipitating factors and aggravating factors comes down to what Mr Primmer’s knee was truly like prior to the 27th June 2005, whether it was in fact giving him significant trouble, or whether it was of a mild intermittent nature.”
20. On 21 September 2006 the Applicant was examined by Orthopaedic Surgeon, Dr John Harrison. In his report of that day Dr Harrison noted in his history, that the Applicant ceased karate because of ongoing discomfort in his knee. This is contrary to the evidence the Applicant gave to the Tribunal.
21. In Dr Harrison’s opinion the Applicant on 27 June 2005 may have sustained a minor episode of lateral subluxation of the patella and aggravated and further injured a joint and joint surfaces between the kneecap and lateral femoral condoyle sufficient to account for symptoms of acute pain and transient loss of function that have gone on to trouble the Applicant since. Dr Harrison added however “It is surprising if that was the case, that some diminution in the severity of the pain has not followed”.
22. Cross-examined the Applicant agreed that he told Clinical Psychologist, Ms Kafer, PhD, on 30 January 2006 that on a scale of 0 to 10 the intensity of his pain was on a range of 4 to 15. Further questioned he said that his pain varied from bad to worse.
23. In a later report dated 13 September 2007 Dr Harrison accepts that the Applicant was having discomfort in his knee at the time of his email of 22 June 2005. He does not however state what effect this knowledge had upon his opinion, although he later refers to the report of Dr McGill and states that he adheres to his earlier opinion.
24. I found Dr Harrison to be particularly vague in cross-examination, and his answers to some questions were odds to the opinions expressed in his reports. All in all where they conflict, I prefer the opinion of Dr McGill to that of Dr Harrison.
25. Both, Dr Schwarzer and Dr Caldwell, saw the Applicant at the referral of his general Practitioner and for the purposes of treatment. For this reason I am inclined to place more weight upon their opinions.
26. Dr Caldwell, in his report dated 16 October 2006 to Dr Blackford, took a history that the Applicant had no real problems until “June this year” (sic). In the opinion of Dr Caldwell, the Applicant’s MRI scan showed a degenerative tear in the posterial horn of his medial meniscus. This opinion can be compared to that of Dr Harrison who opined that the MRI scan did not show a pattern to conform a torn medial meniscus. I note that Dr Schwarzer also regarded the MRI scan as showing a degenerative tear (described by him as “signal changes”).
27. Dr Schwarzer, in his report to the Applicant’s general practitioner, agreed with Dr Caldwell that the Applicant did not suffer a complex regional pain syndrome (pace Dr Russo) but that an arthroscopic medial menisectomy was recommended. Dr Harrison also thought that a menisectomy was “not unreasonable”.
28. Drs Schwarzer and Caldwell obtained similar histories from the Applicant as to the effects of his 1991 injury. Dr Caldwell noted that “after some treatment the knee settled” adding “He claims to have no real problems until June this year…”. Dr Schwarzer’s history reads “He saw Dr Kim Ostinger and he thought he had a patellar problem which was treated entirely conservatively. He said he continued to experience some pain, but was able to go back to his usual activities. He did not experience significant problems until 27/6/06”.
29. Dr McGill, Rheumatologist, examined the Applicant at the request of the Respondent on 20 April 2007. In the opinion of Dr McGill the Applicant’s Body Mass Index indicates that he is obese. The 1991 episode followed its expected pathway in that the pain settled down in the weeks or a few months following the injury. As to the incident on 27 June 2005 the Applicant in kneeling had applied pressure to a mildly osteoarthritis right patello-femoral joint and that arthritis occurred because of constitutional factors including the Applicant’s weight.
30. Dr McGill went onto comment:
“The psychological reasons why he describes his symptoms in such a dramatic manner, is best commented upon by those with expertise with psychological matters. It is relevant to note however that, despite his report of ‘excruciating pain’, he has no muscle wasting, no other evidence of right lower limb disuse, and symmetrical callus formation under his feet. I thus think it is very likely that he describes his discomfort in a manner suggesting much greater pain than he actually experiences. If his pain were as bad as he describes, regardless of whether the cause were physical, psychological or a combination of the two, one would expect to see evidence of restricted use of the right lower limb including muscle wasting. No such evidence was present.”
And opined that any effect of the incident on 27 June 2005 was likely to have resolved some three months after the incident.
31. Cross-examined Dr McGill expanded upon his opinion by stating that the kneeling action and what occurred could not have changed the underlying structure of the Applicant’s knee. He stated that the process of kneeling down and getting up again does not damage the knee and to accept the Applicant’s version of events, the kneeling action would have to lead to structural changes in the knee which is not possible.
32. Dr Maxwell examined the Applicant on behalf of the Respondent on 30 November 2006. He opined that the MRI scan did not show a meniscal tear, contrary to the opinions of Drs Schwarzer, Caldwell and Harrison. He stated that on the basis of his clinical examination the Applicant was not suffering from chondromalacia patellae and that there was no organic reason for his ongoing discomfort.
33. At the outset I can state that I accept the Applicant’s evidence of a frank injury that occurred on 27 June 2005.
34. As to the diagnosis of the injury suffered on 27 June 2005, it is not necessary to be definitive. As stated above, Drs Schwarzer, Caldwell and Harrison opined that he is suffering from a torn meniscus, whereas Drs Verheul, Maxwell and McGill disagree.
35. Dr Verheul in his report of 18 April 2006 states that the Applicant made a full recovery from the 1991 injury. Dr McGill is of a similar opinion and these opinions are strengthened by the clinical records of the Applicant’s General Practitioner, Dr Blackford, who in the period 4 December 2003 when the Applicant first came under his care until the 30 June 2007, has no record of any consultation for knee pain. Likewise the report of Dr Ostinger contains an undertaking to review the Applicant if the knee were still causing trouble in three months time. No further consultation was sought from Dr Ostinger.
36. The Applicant himself, in the email of 22 June 2005, referred to his knee “giving me a hell of a time”. The Performance Assessment Review of 23 June 2005 also refers to the Applicant complaining of a sharp stabbing pain and his knee occasionally giving way.
37. Dr McGill accepted that an injury occurred on 27 June 2006 but that it was a temporary aggravation of a constitutionally caused osteoarthritis. Dr Verheul in his report of 18 April 2006 refers to osteoarthritis, and in his report of 27 June 2006 refers to an aggravation of a significant and pre-existing condition.
38. I find that the opinions of Dr Verheul on 27 June 2006 and Dr McGill are the more logical and conform to the known facts. Drs Verheul, Caldwell, Schwarzer and McGill all now opine, that any injury suffered by the Applicant in 1991 resolved. Whether or not the Applicant has a torn meniscus, the evidence of Dr McGill makes it clear, that the simple act of kneeling could not have caused structural damage to the knee.
39. I am satisfied on the material before me that the Applicant’s 1991 injury resolved. Therefore the reviewable decision in matter No N2007/260 is affirmed. I am also satisfied that the Applicant suffered an aggravation of a pre-existing constitutionally caused osteoarthritis of the knee in the incident on 27 June 2006.
40. That aggravation should have ceased within three months of the incident, but the Applicant claims to still suffer excruciating pain as a result (up to 15 on a scale of 0 to 10). There are, however, no objective signs to support this level of incapacity.
41. I am not satisfied that the work injury on 27 June 2005 is causative of the level of pain the Applicant now says he experiences. I am satisfied that the injury of 22 June 2005 was a temporary exacerbation and its effects have resolved. The reviewable decision in matter No N2006/1105 is therefore affirmed.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.
Signed: ..........[sgd]...........
Mwela Kapapa, AssociateDate/s of Hearing: 12 – 13 November 2007
Date of Decision: 6 December 2007
Counsel for the Applicant Mr G Wilson
Solicitor for the Applicant: Slater & Gordon Lawyers
Counsel for the Respondent Mr B KellySolicitor for the Respondent: Sparke Helmore Lawyers
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