Reginald Connors and Australian Postal Corporation - [2014] AATA 27

[2014] AATA 27

Division General Administrative Division

File Numbers

2012/2552

2013/1075

Re

Reginald Connors

APPLICANT

And

Australian Postal Corporation

RESPONDENT

DECISION

Tribunal
Deputy President S D Hotop

Date 22 January 2014

Place Perth
Application 2013/1075

The decision under review is set aside and, in substitution therefor, it is decided that:

· the respondent is liable to pay compensation to the applicant, in accordance with s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), in respect of an injury, namely, “left knee strain” suffered on 9 August 2006 (“the 2006 injury”), for the period from 16 September 2006 to 16 June 2009;

· the respondent is not liable to pay compensation to the applicant, in accordance with s 19 of the SRC Act, in respect of the 2006 injury in the period from 16 September 2006 to 16 June 2009.

Application 2012/2552

The decision under review is set aside and, in substitution therefor, it is decided that:

· the respondent is liable to pay compensation to the applicant, in accordance with s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), in respect of an injury, namely, “exacerbation of osteoarthritic left knee pain” suffered on 17 June 2009 (“the 2009 injury”), for the period from 27 April 2012 to the present date and as at the present date;

· the respondent is liable to pay compensation to the applicant, in accordance with s 19 of the SRC Act, in respect of the 2009 injury for the period from 27 April 2012 to the present date and as at the present date.

Application may be made to the Tribunal in relation to the costs of these proceedings within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), that the costs of these proceedings incurred by the applicant be paid by the respondent in accordance with Section 6.10 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction (September 2013).

...(Sgd) S D Hotop...........................
S D Hotop
Deputy President

CATCHWORDS
COMPENSATION – employee of licensed corporation – applicant suffered knee strain in performance of employment duties in August 2006 (2006 injury) – respondent accepted liability to pay compensation for 2006 injury – applicant suffered exacerbation of knee pain in performance of employment duties in June 2009 (2009 injury) – respondent accepted liability to pay compensation for 2009 injury – respondent ceased payment of compensation for 2006 injury in September 2006 – respondent ceased payment of compensation for 2009 injury in April 2012 – respondent continued to be liable to pay compensation for medical treatment for 2006 injury from September 2006 to June 2009 – respondent continued to be liable to pay compensation for medical treatment and for incapacity for work in respect of 2009 injury from April 2012 to date – decisions under review set aside

LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(9), s 4(10A), s 5A, s 5B, s 14, s 16 and s 19
CASES
Re Liu and Comcare (2004) 79 ALD 119
REASONS FOR DECISION
Deputy President S D Hotop
22 January 2014
Introduction

Reginald Connors (“the applicant”) has applied to the Tribunal for review of two “reviewable decisions” made by a Reconsideration Officer of Australian Postal Corporation (“the respondent”) under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), namely:
·a reviewable decision, dated 28 May 2012, which affirmed a determination of 27 April 2012 that, as at that date, the respondent was not liable to pay compensation to the applicant in respect of an accepted injury, namely, “temporary exacerbation of osteoarthritis in left knee” (date of injury 17 June 2009), pursuant to s 16 and s 19 of the SRC Act (Application 2012/2552);
·a reviewable decision, dated 18 February 2013, which affirmed a determination of 7 January 2013 accepting liability under s 14(1) of the SRC Act to pay compensation to the applicant for an injury, namely, “left hamstring strain distally” (date of injury 9 August 2006), but determining that, from 16 September 2006, the respondent was not liable to pay compensation to the applicant in respect of that injury pursuant to s 16 and s 19 of the SRC Act (Application 2013/1075).
The Evidence
The evidence before the Tribunal comprised:
·the “T” Documents” (T1–T136, pp 1–433) in respect of Application 2012/2552, and the “T Documents” (T1–T20, pp 1–48) in respect of Application 2013/1075, lodged on behalf of the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibits A1–A6 tendered by the applicant;
·Exhibits R1 and R2 tendered by the respondent; and
·the oral evidence of the applicant, Mr Barrie Slinger, and Mr Paul Taylor.
The Factual Background
The following factual background appears from the T Documents and is not in dispute.
Application 2013/1075
The applicant completed an Incident Report (P400) form, dated 9 August 2006, in which he indicated that, while on duty at the Perth Mail Centre on that day, he twisted his left knee and suffered symptoms at the front and back of his left knee. It was also indicated in the form that it had been submitted to the applicant’s supervisor. (T10, pp 30, 31)
On 11 August 2006, Dr Alex Strahan issued a Workers’ Compensation FIRST Medical Certificate in which he:
·referred to the applicant’s description of the relevant injury as “strained left knee” and of the way in which it occurred as “while working as BCS support twisted my knee”;
·described his diagnosis of the applicant’s injury as “(L) hamstring strain – distally”;
·opined that “the above diagnosis does correlate with the injury/disease as stated”; and
·opined that the applicant was “fit for restricted return to work from 11/8/06 to 25/8/06” on specified restricted duties. (T6)
A file note by the Acting Safety Officer, Perth Mail Centre, dated 24 August 2006, states as follows:
“ Reginald Cliford [sic] Connors P400 343468 DOI: 09/08/2006
Reg was rostered on 9^th of August on nightshift commencing at 9.00 pm and ceasing duty at 4.51 am.
Reg was rostered as the support person on BCS 1&2 from 9.00 pm.
Reg stated that while working as the support person on BCS from 9.00 pm he was loading full trays that he was taking off the BCS clear down racks and placing these into a ULD for the 10.00 pm first wave despatch.
Reg further stated that while he was pushing a ULD he felt a twinge in his left knee, but continued on working.
Reg stated that he thinks that he went to the MMF’s after the despatch, but further stated that he was asked by the Process Leader to go the Rap’s.
Reg stated that it was about 11.00 pm that he reported his injury to Julie Smith (Production Manager), who directed him to fill out P400.” (T4)
On 25 August 2006 Dr Strahan issued a Workers’ Compensation PROGRESS Medical Certificate in which he noted that he applicant’s condition was “improving” and opined that the applicant was “fit to return to pre-injury duties, no further treatment required”. (T9)
On 15 September 2006 Dr Strahan issued a Workers’ Compensation FINAL Medical Certificate in which he opined that, as from 15 September 2006, the applicant had “wholly recovered from the effects of the disability” and was “fit”. (T10, p 32)
The applicant subsequently lodged with the respondent a completed Claim for Rehabilitation and Compensation form, dated 23 June 2012, whereby he claimed compensation under the SRC Act in respect of a condition diagnosed as “left hamstring strain distally” affecting his “left knee” which he sustained on 9 August 2006 at 10.00 pm and for which he first sought medical treatment on 11 August 2006. In the form the applicant stated that he sustained that condition “while despatching BCS 1 & 2” when he “twisted” his left knee and that “it has progressively got stiff and sore”. He also described his action which caused the condition as “pushing a full ULD of mail”. (T3, pp 9 – 17)
On 7 January 2013 a delegate of the respondent made a determination under the SRC Act and notified the applicant as follows:
“ I am writing to you regarding your claim for compensation in respect of ‘Left Hamstring Strain Distally’ sustained on 9 August 2006.
On the evidence available, I have accepted liability under Section 14(1) of the SRC Act 1988 for ‘Left Hamstring Strain Distally’. The date of injury has been determined as 09 August 2006.
Although the medical evidence supported liability from 11 August 2006, a medical certificate has been received from Dr Strahan dated 15 September 2006 which advises that as at the examination of 15 September 2006 your compensable condition had resolved.
Accordingly, from 16 September 2006, Australia Post is not liable to pay compensation in respect of the injury under section 16 or 19 of the Act.
…” (T16)
Following a request by the applicant for a reconsideration of the abovementioned determination, a Reconsideration Officer of the respondent made a “reviewable decision” under s 62 of the SRC Act on 18 February 2013 affirming that determination. (T18)
Application 2012/2552
The applicant completed an Incident Report (P400) form, dated 17 June 2009, in which he indicated that, while on duty at the Perth Mail Centre on that day, he suffered “left knee stiffness & pain”. It was also indicated in the form that it had been submitted to the applicant’s supervisor. (T4)
The applicant lodged with the respondent a completed Claim for Rehabilitation and Compensation form, dated 23 June 2009, whereby he claimed compensation under the SRC Act in respect of a condition described by him as “left knee stiffness & soreness” suffered on 17 June 2009 at 7.30 pm and for which he first had medical treatment on 19 June 2009. (T3)
Following a request by the respondent, Dr Patrick Garratt provided a report, dated 13 August 2009, to the respondent as follows:
“ Many thanks for your letter dated 23^rd July 2009 in respect of an injury suffered by Mr Connors whilst at work. I have discussed your requests for a report with Mr Connors and he has given me verbal consent to complete this. I also understand, under the act that information from the treating doctor can be supplied to the employer to aid in the assessment of the claim and treatment of the employee’s condition.
As you would be aware, I have reviewed Mr Connors on a number of occasions over the last few months in respect of his left knee pain. I was initially requested to review Mr Connors on the 22^nd April 2009 by Mrs Rachael Stephenson [sic]. In respect to this request, Mr Connors was reviewed on the 22nd April 2009 and the 6^th May 2009. On both occasions, clinical examination was undertaken and documentation provided to Australia Post in respect of the left knee pain. I note however the letter received from Australia Post on the 14^th May 2009 in respect of these consultations that liability was ceased from the 7^th May 2009.
Further review was however requested from Mrs Stephenson [sic] and Mr Connors was seen at the Medical Centre once again on the 19^th June 2009. Once again this was in respect to pain in the left knee following what was considered an exacerbation of an injury to his left knee on the 17^th June 2009. I therefore have been seeing Mr Connors on a number of occasions since this date in respect of the exacerbation of his left knee injury. This report is therefore based upon my notes of these consultations as well as correspondence received from other treating parties, mainly APS Physiotherapy.
In respect to your request for a comprehensive medical report, I am happy to provide the following information in response to your specific questions.
1.What was the history given at examination?
At my initial review with Mr Connors on the 22nd April 2009, he reported that he had had ongoing left knee pain ‘on and off’ for years. He reported this had recently flared up. He also reported that this was worse after prolonged periods on the forklift.
On my review on the 19^th June 2009 where I was requested to make a further assessment, Mr Connors reported to me that a pain in the left knee had been ongoing. He reported that this had been made worse by prolonged periods on the forklift. He reported that over the preceding days from approximately the 17^th June 2009, after forklift driving, the pain in his left knee was much worse.
2.In your opinion, from what specific medical condition does Mr Connors currently suffer?
Based upon the history reported to me, examination findings, correspondence from the treating physiotherapist and an x-ray undertaken on the 29^th April 2009, I believe that the most likely diagnosis is osteoarthritis of the left knee with exacerbation from duties such as forklift driving. Although there is a small risk of a meniscal injury, due to the recent improvement in his condition and recent negative examination findings, I believe this is unlikely.
3.Is the condition nominated in answer 2 the result of an aggravation of a pre-existing or underlying condition?
As stated above, I believe that Mr Connors is likely suffering from osteo-arthritis in his left knee. I believe that the pain has been aggravated by work factors such as forklift driving.
4.If your answer to question 3 is in the affirmative, is the aggravation of a permanent of [sic] temporary nature, and if temporary, when would it be reasonable to assume that the effects of that aggravation ceased, or will cease?
I believe it is likely that Mr Connors has been suffering from osteo-arthritis in his left knee for a number of months, if not years. I believe that there has been a temporary exacerbation of his condition relating to work factors such as forklift driving. I believe that with continued treatment, simple analgesia and possibly rotation or alteration of his work duties that this exacerbation will be of a temporary nature. I am hopeful that over the next month or so, that such an aggravation will cease.
Unfortunately due to the nature of the condition and Mr Connors’ work, I do however believe there is a risk of further re-aggravation should his duties not be able to be modified or rotated.
5.What is the extent or severity of any current pathology?
Based on examination findings as well as an xray, indicating ‘mild medial compartment degenerative joint space change’ I would classify the current pathology as mild to moderate. Such degenerative change is not uncommon in this age group and with alteration of duties can be managed effectively with simple analgesia.
6.What is the natural progression of Mr Connors’ current condition?
As indicated above, degenerative change in the large joints is not an uncommon finding in people of this age group. With suitable treatment and most importantly, careful management of Mr Connors’ work duties, it is a condition that can be managed comfortably with only mild or no symptoms at all.
Ultimately, it may be that Mr Connors will require an operation on his affected knee such as an arthroscopy or potentially a left total knee joint replacement. It would however be hoped that with careful management such drastic treatments would be at least ten or twenty years into the future.
7.If Mr Connors continues to suffer from a work-related condition, what rehabilitation and/or medical treatment is required and what is the expected frequency and duration of any recommended treatment?
At present, I understand that Mr Connors is undertaking physiotherapy, much of this outside of the workers compensation scheme and at his own cost. I understand that he is also undertaking his own exercise regime. With such management of physiotherapy, exercises and occasional analgesia, I suspect that Mr Connors’ pain will be largely resolved within the next month. I do not envisage that Mr Connors will require more than weekly physiotherapy over the coming month.
I believe that an important factor in Mr Connors’ improvement has been in his alteration of duties at work. I would encourage a review of Mr Connors’ duties and look at duties that do not exacerbate his left knee pain including avoidance of such prolonged use of machinery such as a forklift.
8.What is your prognosis?
Although Mr Connors is likely to have an underlying degree of degenerative change in his left knee, I am hopeful that primarily with alteration of duties, that he would be able to be meaningfully employed at Australia Post for many years. I am hopeful that with physiotherapy and his own exercise regime in the short term that Mr Connors’ symptoms will resolve fully. Once again, if Mr Connors’ duties are able to be modified, then I am hopeful that he will not suffer significant exacerbations in the future.
9.Any other observations or comments you wish to make?
As you will be aware, I have reviewed Mr Connors on a number of occasions over the last three months. I have been encouraged that on each occasion, Mr Connors has been very keen to remain at work despite symptoms being suffered. I also note that Mr Connors has been undertaking full hours and full days throughout the period under which he has had left knee pain. I also understand that despite having some restrictions set on his duties, Mr Connors has been very active in his altered work duties, continuing to work full hours, full days with simple restrictions. This is a good prognostic sign for Mr Connors’ future work capacity.
…” (T6)
On 2 September 2009 a delegate of the respondent made a determination under the SRC Act and, by letter dated 2 September 2009, notified the applicant as follows:
“I am writing to you about your claim for compensation for ‘left knee stiffness and soreness’.
On the basis of the available evidence, liability has been accepted in respect of ‘TEMPORARY EXACERBATION OF OSTEO-ARTHRITIS IN LEFT KNEE’ in accordance with Section 14(1) of the above Act and the date of injury has been determined as 17^th June 2009.
…” (T7)
On 27 April 2012, however, a delegate of the respondent made a determination under the SRC Act and, by letter dated 27 April 2012, notified the applicant as follows:
“I am writing to you about your compensation claim for ‘Temporary exacerbation of osteo-arthritis in left knee’ for which liability was found and payments of compensation have been made under the Act.
I refer to the letter dated 3 February 2012. You have requested two extensions of time and as at the last request dated 23 March 2012, you have not provided any further medical evidence therefore a determination will now be made based on the evidence on file.
Although the medical evidence supported liability from 17 June 2009, Mr Paul Taylor (Consultant Orthopaedic Surgeon) has indicated in his report dated 2 February 2012 that ‘on the balance of probabilities I do not think it likely that Mr Connors’ knee osteoarthritis is directly related to his employment as a mail officer’. Furthermore Mr Taylor states ‘I do not consider that Mr Connors’ employment contributes to the development of his arthritis significantly’.
Therefore, from 27 April 2012 to the present date and as at the present date, the injury in which liability was accepted pursuant to the Safety, Rehabilitation and Compensation Act 1988 (‘the SRC Act’) to pay compensation for, ‘Temporary exacerbation of osteo-arthritis in left knee’, date of injury 17 June 2009, has ceased to result in incapacity for work, impairment and the need for medical treatment.
Accordingly, from 27 April 2012 to the present date and as at the present date, Australia Post is not liable to pay compensation in respect of the injury under Section 16 and 19 of the SRC Act.
…” (T120)

Following a request by the applicant for a reconsideration of the determination of 27 April 2012, a Reconsideration Officer of the respondent made a “reviewable decision” under s 62 of the SRC Act on 28 May 2012 affirming that determination.
The Applicant’s Evidence
The applicant confirmed that he had signed a witness statement, dated 1 December 2013, for the purpose of this proceeding, and that its contents are true. That statement is as follows:
“…
3. I am 55 years old.
4.On 9 August 2006, whilst moving an ULD from BCS for dispatch, I twisted my left knee.
5.I felt a sharp pain instantly.
6.The pain continued to worsen and after a short period of time, I reported the pain to my supervisor and completed a P400 Form.
7.The next day I was sent to Carepoint in Malaga for review.
8.I was prescribed physiotherapy and placed on restricted duties at work.
9.Some six (6) weeks later, the pain had improved somewhat and I was put back to full duties at work.
10.Over the next few years, while the pain never fully went away, I managed to continue full duties at work with the odd day off here and there.
11.During that period, I have used Panadol and Nurofen Plus to treat that pain.
12.On 17 June 2009, I filled in another P400 & subsequently a compensation claim.
13.I attended a Facility Nominated Doctor (‘FND’) who prescribed physiotherapy, pain relief and put on [sic] work restrictions which included restricted time on the forklift (two (2) hours per shift) and increased sitting duties inside.
14.In October 2009, the FND requested a CT Scan and referred me to an orthopaedic surgeon and rheumatologist who both suggested the use of a Synvisc injection which was supplied and given to me in January 2010.
15.The injection gave me more relief and I continued on work with restrictions and regular FND review.
16.Over the next twelve (12) months or so, I continued working with restrictions and had time off when the pain seemed to worsen.
17.I also started waking up at night with constant aching in my left knee.
18.In mid 2011, I was referred for another Synvisc injection which was eventually given in January 2012.
19.Once again, the injection provided some relief from the pain but it never went away entirely.
20.All of my doctors, physiotherapists, specialists and treatments have been arranged and/or provided by doctors or therapists arranged by Australia Post.
21.As a consequence, all recommendations and/or treatments have been recorded.
22.I have not used any other doctors, specialists and/or physiotherapy providers.
23.Some days are better than others.
24.I continued to work with restrictions of hourly rotations of sitting/standing duties and no forklift duties at all.
25.During this time, I was also on regular pain relief/anti-inflammatory medication and attended regular reviews by the FND.
26.I also had periods where pain would be worse, resulting in time off work.
27.By the end of 2012, the pain had once again worsened and I had to increase my intake of pain relief and was prescribed Lyrica.
28.I have continued to work under the same restrictions whilst my claim is being reviewed.
29.Subsequently, I have had to cease taking anti-inflammatory medication on advice as it was affecting my kidney function.
30.The pain I feel in my left knee is constant, whether I am resting or at work.
31.Recently, I have had another Synvisc injection (at my own cost) which has given me some relief at present.
32.With regard to future treatment, I do recall Dr Bairstowe [sic] saying that I would need a knee replacement eventually.” (Exhibit A1)
In his examination-in-chief the applicant gave evidence as follows:
·he started work with Australia Post in August 1999 in Victoria as a contract mail officer;
·he transferred to Western Australia in May 2006 and his position was mail officer/forklift driver;
·his workplace was at the Perth Mail Centre at Perth Airport;
·as at 9 August 2006 his duties as a mail officer/forklift driver had not changed;
·when operating a forklift, he operated the accelerator with his right foot and the clutch and the clutch/brake with his left foot;
·as regards para 4 of his statement, a “ULD” is a device whereby mail and parcels are loaded, and “BCS” refers to a bar code sorting machine;
·from September 2006 (when he was returned to full duties) to June 2009 he continued to do forklift duties and the “general run of mail duties”;
·a shift was 7 hours 21 minutes long and he operated a forklift for, on average, 5-6 hours per shift;
·in June 2009 he was primarily working on the forklift and his knee was sore and stiff and the pain would not go away, so he filled out a P400 form and a compensation claim form;
·the restricted duties referred to in para 13 of his statement are still in place, except forklift duties which he ceased to do about 18 months to 2 years ago;
·he still has “stiffness and pain” in his left knee with “sharp stabbing pains on a continuous daily basis, some days worse than others”.
In cross-examination the applicant gave evidence to the following effect:
·the pain in his left knee “comes and goes” on a daily basis and there are periods each day when he does not notice any pain.
·that has been the case for a number of years;
·in the incident of 9 August 2006 he experienced “sharp stabbing pains” in his left knee when he pushed the ULD forward immediately after pulling it back;
·he then stopped pushing the ULD and “rubbed” his knee “vigorously” on the inside front area of his knee;
·the sharpness of the pain then “subsided a little bit” but there was still a “dull ache” which persisted;
·he then reported the incident to his supervisor and was asked whether he wished to fill out a P400 form, and he did so;
·he was referred to a Facility Nominated Doctor, Dr Strahan, whom he attended on several occasions;
·when he first saw Dr Strahan he described his symptoms, namely, that his left knee was stiff and sore and he had sharp pains in the inside front area of his left knee;
·Dr Strahan examined his knee and referred him for physiotherapy treatment, and he subsequently attended a physiotherapist;
·he received physiotherapy treatment to his left knee;
·Dr Strahan subsequently certified him as fit for his pre-injury duties and he returned to those duties, including driving the forklift;
·subsequently “there were times when the knee was sore” and he would then take Panadol or Nurofen for the pain;
·when his symptoms became sufficiently severe, he would attend his general practitioner for treatment;
·he typically sought medical treatment at Joondalup Drive Medical Centre and saw various doctors including Dr Garratt;
·he did not see Dr Strahan (the Facility Nominated Doctor) after his attendance on 15 September 2006;
·on 17 June 2009 he experienced pain in his left knee while working but no particular incident was responsible for the onset of those symptoms;
·he subsequently experienced “flare-ups” of knee pain from time to time but he did not lodge a P400 form with Australia Post in regard of any of those “flare-ups” because he thought that they were covered by his accepted left knee injury.
The Evidence of the Medical Witnesses
Mr Barrie Slinger
Mr Slinger, Orthopaedic Surgeon, was called as a witness by the applicant. He confirmed that he had prepared a report, dated 12 September 2012, regarding the applicant. That report, which is addressed to the applicant’s solicitors, states as follows:
“Thank you for referring Mr Connors, whom I reviewed on the 10^th September 2012, at which time I was in receipt of your letter requesting an assessment and report in respect to an injury to the left knee, which was said to have occurred at work, the date of injury being the 9^th August 2006.
At the time of review I was in receipt of copies of reports, which I have read, from colleagues including, Mr Paul Taylor, Dr Jack Edelman, Mr Brett Bairstow, Dr Patrick Garratt and a patient health summary from the Joondalup Drive Medical Centre, the entries being from Dr Peter Connolly and Dr Patrick Garratt.
BACKGROUND:
I confirmed this man completed his secondary education in Victoria to the age of 15 years and then worked as what he described as an itinerant, subsequently work which included service station manager at two separate facilities, factory employee, tyre fitter, taxi driver for ten years and then he joined Australia Post in 1999 whilst in Victoria, and in 2006 was transferred to Western Australia, where he has been living since.
HISTORY OF INJURY:
The initial injury occurred on 9^th August 2006, when he attempted to push a manual pallet lifter, on which was a large ‘ULD’ cage containing mail weighing between 400-600 kgs, and in so doing he turned and twisted to the left, experiencing a ‘clunk’ and a ‘twang’ at the left knee.
At that time he reported the incident, attended the facility nominated doctor, who happened to be Dr Patrick Garratt, his own doctor, and he was referred for physiotherapy, which he attended on a few occasions, but did not have any time away from work. At that point he did not lodge a worker’s compensation claim.
PROGRESS:
Symptoms improved, but never completely settled, and in 2007 he had increased pain, as he did in 2008, attending for medical advice, but he did not sustain any further injury at work, although he did note that using the left foot on the clutch and brake of the forklift he was driving was an aggravation.
In 2009, because of increasing symptoms, he lodged a worker’s compensation claim and was then referred to orthopaedic surgeon, Mr Brett Bairstow, a diagnosis of osteoarthritis of the left knee was made, surgery was not indicated, he continued with Panadol Osteo and consideration as to a Synvisc injection.
Further referral was made to rheumatologist colleague, Dr Jack Edelman, who injected the left knee in November 2010, which produced marked improvement, and a further injection in December 2011, which again has been associated with further improvement, even more substantial than the first injection.
PRESENT TREATMENT:
Present treatment is confined to Panadol Osteo and Indocid, and he also uses Lyrica to assist sleep, as well as occasionally for pain during the day, and continues to attend with Dr Patrick Garratt.
PRESENT:
Pain persists about the left knee as a dull ache, which is intermittent, usually about the medial aspect, on occasions, with transient stabbing discomfort. Walking, on the beach, which he did on the day of this consultation, was an aggravation, as is walking around the park, but he usually manages 30 minutes.
Standing in one position is associated with discomfort, as is standing after sitting. Swelling does occur on occasions, there is no giving way, but he has a sensation as if the knee is about to do so. Clicking occurs when bending the knee, he is able to crouch, but has difficulty on recovery, and when kneeling he does so on the right knee, with the left leg outstretched.
Driving a manual vehicle, which he does to and from work, is a further aggravation, but at weekends he uses his wife’s automatic.
Sleep has markedly improved since he changed his shifts from night to day, and he feels this year he is managing his pain better.
ACTIVITIES:
At home he lives with his second wife, in the summer he uses the family pool to swim and walk, manages all his domestic and yard activities, but employs a contractor to mow the lawn.
SOCIAL:
I confirmed he does not smoke and has a mild alcohol intake.
EMPLOYMENT:
I confirmed that he has had no time away from work, as far as his symptoms about the knee are concerned, other than an odd day or two here and there, a maximum, as far as he can recall, of one week.
At present he has moved from night to day shift, five days, 36½ hours a week.
PAST:
I confirmed in the past he has been diagnosed with haemochromatosis and undergoes management by bleeding every three months or so, and he fractured his left leg in the 1990’s, requiring plate and screw fixation.
I confirmed that he also suffers from sleep apnoea.
EXAMINATION:
To examination he was a pleasant fellow who provided a clear history, being of height 176 cms and weight 138 kgs, and he attended unaccompanied.
At the left knee there was wasting of the vastus medialis component of the quadriceps, a small effusion and tenderness, localised to the medial joint line. Movement was from 0° to 125°, (as it was at the right knee), there was no ligamentous instability, whilst resisted quadriceps contraction produced pain at the patellofemoral joint.
Crouching was accomplished, albeit with some discomfort on recovery, and kneeling was not attempted because, as he stated, he kneels on the right knee.
RADIOLOGY:
Left Knee (April 2009): Confirmed mild medial compartmental degenerative change, or osteoarthritis.
CT Arthrogram Left Knee (October 2009): Confirms high grade, possibly full thickness cartilage ulceration of the posterior and posteromedial weightbearing aspect of the medial femoral condyle and similar less marked changes over the medial tibial plateau.
Left Knee (June 2010): Showed similar changes with slight increase or progression in the medial compartment degenerative changes, compared to the earlier study.
Left Knee (January 2011): Showed no change on previous.
TO ANSWER YOUR QUESTIONS:
1History given by my client.
The history given by your client is detailed, in respect to the onset of symptoms at the left knee.
2Current symptoms and restrictions complained of by my client arising from work related condition.
The current symptoms and restrictions complained of by your client are detailed.
3Please detail your findings on clinical examination
The findings to clinical examination are described.
4What is your diagnosis?
The diagnosis is that of osteoarthritis or degenerative change at the left knee.
5What treatment do you consider may be necessary:
(a)current?
(b)in the future?
Treatment directions are to continue as he is at present, continuing with his medication, sensibly avoiding provocation, where possible to avoid crouching or squatting, standing or sitting for prolonged periods, negotiating steps, stairs or working at heights and avoiding driving a forklift.
In addition, to a regular exercise, which is doing at present, with walking, swimming and regular stretching, and possibly a further injection of Synvisc, when symptoms dictate.
6Your prognosis of my client’s condition.
The prognosis of your client’s condition is uncertain, it is most probable that your client’s condition will increase, that is the degenerative osteoarthritis will progress, however, that rate of progression is uncertain, suffice to say, that if progression is significant, with pain and stiffness being severe, then, in the long term, possibly in five to ten years, he will require total joint replacement.
7Do you consider my client will be restricted in any way in the type of work he is able to undertake:
(a)currently?
(b)in the future?
Your client is not restricted in his present capacity, in which he is avoiding driving a forklift, acting essentially as a mail officer, in which he was previously involved, in emptying trays of mail onto a conveyor belt for machines to sort the mail, and on occasions, hand sorting.
In the event that his symptoms progress rapidly or to the extent where pain and stiffness are severe, then clearly, that will affect his ability to employment, but as I have stated, there is no way of knowing that rate of progression and there is no reason to anticipate that he will be limited in his present employment in the immediate or near future.
8…
9Based on the history provided by my client, are you of the view that his injury was caused by his work accident in either 2006 or 2009? Please advise which of the events described by my client are the significant contributing factors to his current injury and reasons you hold that view.
The osteoarthritis or degenerative change was not caused by the work accident of either 2006 or 2009, but clearly, the work accident of 2006 initiated, or rendered symptomatic the symptoms about the left knee, which had previously been asymptomatic.
10If you are of the view that my client may be suffering from a pre-existing condition, are you of the view that the recurrence, aggravation or acceleration of any pre-existing disability was a contributing factor to that recurrence, aggravation or acceleration and contributed to a significant degree?
I believe your client was suffering from a pre-existing condition, pre-existing the incident of 2006, however, it was that incident which rendered that condition symptomatic and in the absence of that injury he may well have continued asymptomatic for a further indefinite period, although in the long term, it is likely that his symptoms would have become symptomatic in any event.
…” (Exhibit A2)
In his oral evidence Mr Slinger said that the symptoms typically associated with the applicant’s left knee condition are predominantly pain and stiffness.
In a supplementary report, dated 31 December 2012, provided to the applicant’s solicitors following their request, Mr Slinger stated as follows:
“…
The osteoarthritis or degenerative change was not caused by the work accident of either 2006 or 2009, but clearly, the work accident of 2006 initiated, or rendered symptomatic the symptoms about the left knee, which had previously been asymptomatic.
I believe your client was suffering from a pre-existing condition, pre-existing the incident of 2006, however, it was that incident which rendered the condition symptomatic and in the absence of that injury he may well have continued asymptomatic for a further indefinite period, although in the long term, it is likely his symptoms would have become symptomatic in any event.
The increase in your client’s symptoms in 2009 may well have been associated with the aggravation and work activity required in the left foot on the clutch and brake of the forklift.
…” (Exhibit A3)
In cross-examination Mr Slinger confirmed that the applicant had given him a history of a continuity of left knee symptoms from the incident of 9 August 2006 to the date of his examination of the applicant on 10 September 2012. He added, however, that, had there been a long discontinuation of symptoms, for 12 months or more, during that period, he would have been more inclined to opine that the initial injury was “relatively minor” and had “probably healed”.
Mr Slinger also confirmed that his understanding of the applicant’s history was that the applicant had sought medical treatment for his left knee condition in the period 2007-2008. Mr Slinger said that, had the applicant not in fact attended for medical treatment for his left knee condition during that period, that would not necessarily indicate that he was not continuing to suffer left knee pain symptoms during that period. He added that the applicant may have been “stoical” and decided not to see a doctor about his left knee during that period. He reiterated that the applicant had given him a history of continuing left knee symptoms during that period.
Mr Slinger was referred to the Workers’ Compensation FIRST Medical Certificate issued by Dr Strahan on 11 August 2006 (referred to in paragraph 5 above), in which the applicant’s relevant condition was described as “(L) hamstring strain – distally”, and he expressed the opinion that that diagnosis was “inappropriate”.

In re-examination Mr Slinger expressed the opinion that the applicant had not recovered from the incident of 9 August 2006 and added that his ongoing left knee symptoms had been aggravated by his work activities in operating the forklift in June 2009.
Mr Paul Taylor
Mr Taylor, Consultant Orthopaedic Surgeon, was called as a witness by the respondent. He confirmed that, at the request of the respondent, he had assessed the applicant on 23 January 2012 and 19 June 2013 and that, following each assessment, he provided a report to the respondent, the first dated 2 February 2012, the second dated 3 July 2013.
Mr Taylor’s report of 2 February 2012 states as follows:
“HISTORY:
Occupation/Work Duties:
Mr Connors told me he left school at the age of 15 without attaining his High School Diploma. He has not attained any further qualifications since that time.
In his youth he described himself as having been an ‘itinerate [sic] worker’. He performed a number of jobs for brief periods. He then, in his twenties, managed a service station for several years before working in a milk factory for about five years as a machine operator. He has then been variously employed as a tyre fitter, running a different service station and he spent about ten years until the late nineties working as a taxi driver in Melbourne. He joined Australia Post in 1999 initially in Victoria and then transferred to Western Australia in or around 2006.
History of Alleged Injury/Sequence of Events:
Mr Connors has worked as a mail officer spending the majority of his time since moving to Western Australia as a forklift driver. He also spent some time in manual processing type duties as a mail officer. This involves emptying trays of mail into a conveyer belt for machines to sort the mail and for those items unable to be sorted by machines, hand sorting.
Mr Connors told me that he remembered an incident in 2008 when he was pushing a large ‘ULD’ cage which can take up to 600 kg of mail using a pallet lifter when he felt a click in his left knee. He did not remember further details surrounding this event. He thinks he referred himself to the early intervention scheme and had some physiotherapy. After that time, he next complained of ongoing stiffness and soreness in June 2009 when he lodged his claim for compensation. He told me that he uses his right foot for the accelerator and his left foot for clutch/brake as well the brake and he tells me that the majority of the work is done by his left foot. He therefore wondered if the knee condition was a consequence of his work as a forklift driver.
Initial/Early Treatment Received:
He was referred to his general practitioner where he underwent some X-ray examinations combined with non-steroidal anti-inflammatory medications. He has since been referred to Mr Brett Bairstow, Orthopaedic Surgeon, and also Dr Jack Edelman, Rheumatologist, and he has had Synvisc injected into his knee on one occasion and is due to have a second injection shortly. The Synvisc injection around 12 months ago gave him significant relief but his symptoms are continuing to worsen now. He is no longer able to perform much work using forklift trucks at work and he regrets this as he thoroughly enjoyed this part of his job.
He now takes Panadol Osteo daily between 4-6 tablets per day. He also takes Lyrica one at night because he feels it helps him with his sleep. He takes 6 Indocid tablets a day on average.
Current Status:
His symptoms are variable whether he is in a good phase or a bad phase. At his best he can walk 30 minutes and at his worst around 5 minutes before he has to stop with pain. He tries to get into his swimming pool at home daily to perform exercise. He also has been using an exercise bike on occasion.
The symptoms in his knee are bad enough to wake him from his sleep however and whilst a Lyrica tablet has helped him with this, it is still problematic. Mr Connors does not feel that his knee conditions prevent him from performing his preferred activities and he is still able to continue working as an assistant for the Swan Districts Football Club during the season as a volunteer. Driving for him however is now difficult.
Past Medical History:
Mr Connors has been diagnosed with sleep apnoea as a consequence of his weight. He has been diagnosed also with haemochromatosis and undergoes management by bleeding every three months or so. He previously had a workplace claim for a back injury but denies any other significant Workers’ Compensation claims or motor vehicle accidents.
Family History:
Nil significant.
Personal History:
Mr Connors has four children who are all adults by his first marriage. He is married to a new partner who is a nurse and they live together in a rental house. They do not have children. He denies smoking and takes alcohol one night per week on average six drinks at a time.
Review of Records:
I reviewed X-rays dated 28 June 2011, 3 June 2010, 29 April 2009 all Perth Radiological Company. These series of X-ray show gradual progression of typical medial knee joint osteoarthritic change. I reviewed the images and reports of a CT arthrogram Perth Radiological Clinic 14 October 2009 which revealed arthritic cartilage loss in the medial aspect of the knee but with intact menisci.
PHYSICAL EXAMINATION:
Mr Connors was punctual and well presented for the interview. He wore an elasticated type brace around his left knee. He weighed 145 kg measuring 176 cm in height. His BMI is in excess of 40kg/m² putting him into the morbidly obese category as per the World Health Organisation Guidelines. I examined his lower limbs. On inspection he had a 20 cm linear laceration of the anterior aspect of his left shin. He told me this was a consequence of a tibial fracture being plated at the Alfred Hospital in 1990. The plate was later removed.
There was no obvious deformity in association with this fracture and the overall alignment of the limbs appeared normal clinically. On examining his left knee there was a mild effusion and there was some minimal tenderness in the medial aspect of the knee joint. There was mild pseudolaxity present and the mild varus angulation of his knee corrected by around 3° on valgus stressing. The cruciate ligaments appeared normal. The motion of the left knee was from -3° to 115°. McMurray’s test was negative. The patellofemoral grind test was negative and patellofemoral tracking was normal. The right knee was normal to examination. The hips and ankles were normal to examination. The objective neurology in his lower limbs were normal and foot pulses were easily palpable.
SUMMARY AND ASSESSMENT:
Mr Connors has osteoarthritis of his left knee particularly of his medial compartment. There is no specific workplace injury or event that I think is likely to be causally related to the development of his osteoarthritis. Forklift driving may aggravate his symptoms but has not caused the condition.
With regard to your schedule of questions:
Causation
1Please detail the history of Mr Connors’ condition as reported to you.
See above.
2From what specific condition does Mr Connors currently suffer? Please provide a short description of the condition including its known aetiology and progression.
Mr Connors suffers from knee osteoarthritis worse in his medial joint. The condition is a wearing out disease of the articular cartilage – the lining of the joint that enables painless movement and slippage of one surface over another. As the articular cartilage degenerates, the knee eventually becomes bone on bone. This produces significant symptoms of pain and difficulty with motion. As his arthritis is predominantly in one compartment of the knee alone, the foot is gradually moving medially as the height is lost preferentially in the medial aspect of his knee joint but maintained in his lateral aspect of the joint. The disease is likely to progress to the point that the whole knee is affected by arthritis and further restriction of range of motion and increased pain.
3On the balance of probabilities, as distinct from possibilities, is the condition currently suffered by Mr Connors related to:
(a)His employment as a Mail Officer, or
(b)A pre-existing, congenital, constitutional or under-lying condition, or
(c)The natural progression of an underlying condition, or
(d)Other health issues, or
(e)Some other aspect of Mr Connors’ employment (if so, please describe the factor and explain how it contributes to the condition), or
(f)Factors unrelated to work, or
(g)Underlying degeneration as part of the natural ageing process.
On the balance of probabilities I do not think it likely that Mr Connors’ knee osteoarthritis is directly related to his employment as a mail officer. I think it is more likely a consequence of the natural progression of the underlying condition of osteoarthritis. I think the factors are unrelated to work and are more likely as a consequence of underlying degeneration as part of the natural aging process.
Contributing Factors
4If you consider Mr Connors’ employment continues to contribute to his condition, please explain the basis of your conclusion, particularly having regard to the fact there was no specific precipitating incident and Mr Bairstow’s opinion that degenerative joint disease has multiple precipitants.
I do not consider that Mr Connors’ employment contributes to the development of his arthritis significantly.
5Has the condition which was contributed to by Mr Connors’ employment as a Mail Officer ceased and been superseded by another episode? If so, would you please specify the circumstances of the new episode?
No.
6Has Mr Connors’ initial compensable condition been superseded by a different condition? If so, please provide your opinion on what factors contribute to this different condition.
No.
7Are there any aspects of the clinical examination which tend to suggest that Mr Connors is:
-     Voluntarily exaggerating his symptoms?
-     Consciously guarding restriction of movement?
-     Displaying symptoms and examination findings inconsistent with the claimed condition?
-     Demonstrating a range of movement during your passive observation that was not replicated during your clinical examination?
There is no evidence of any inconsistency in the examination or interview. Mr Connors was entirely compliant and very reasonable.
Treatment
8Please advise whether Mr Connors requires any other type of treatment, (detail treatment type, frequency and commencement date).
I anticipate that Mr Connors will be offered knee replacement. Upon evaluation more accurately of the current state of the articular cartilage of his joint, it may be that he is offered unicompartmental knee replacement.
…” (T108 – Application 2012/2552)
Mr Taylor’s report of 3 July 2013 states as follows:
“…
HISTORY:
“I re-questioned Mr Connors in order to confirm the previous historical details related to the various injuries and incidents that have occurred with regard to his left knee until 23 January 2012 when he was last assessed by me. He agreed with the historical details contained in my report and I refer you to that report dated 2 February 2012.
I note that Dr Barrie Slinger’s report dated 12 September 2012 and from the further documents that you have provided me with your letter of instruction dated 17 June 2013, that the dates of the incidents concerned vary from that contained in my report. I spent sometime re-questioning Mr Connors in order to attempt to verify the dates.
I returned to my handwritten records of our consultation and confirmed that the dates in my report dated 2 February 2012 were the dates that he provided me verbally in that he recalled the incident using the ‘ULD’ cage. He told me that it occurred in 2008, but that he also told me that there was an incident involving forklift driving in 2006 which flared up his knee pain. Following my perusal of the records you have provided and Dr Slinger’s report, I think the dates I have provided in my report are in fact incorrect.
It would appear that the incident involving the ‘ULD’ cage in fact occurred on or around 9 August 2006 and there is a ‘P400’ to this effect stating, ‘was pushing the ULD he felt a twinge in his left knee, but continued on working.’ I also then noted a medical record dated 11 August 2006 that he was diagnosed with a ‘left hamstring strain – distally’ and that full recovery was expected in six weeks.
Mr Connors told me that he thinks he filled another P400 sometimes perhaps in around 2008 but without a specific incident that he can recall – he thinks his knee was just ‘more sore’ after working on forklift, and then again on 17 June 2009 there was no specific incident or re-injury of his knee, but rather after working on the forklift he felt that his knee was more painful and that he put in another P400 claim form and then went to see his GP and then initiated the Workers’ Compensation Claim.
I hope this clarifies the sequence of events as they appeared to me from my perusal of the records.
Progress Since Last Assessment:
Mr Connors told me that after my last assessment he underwent a second injection of Synvisc into his left knee by Dr Jack Edelman, Consultant Rheumatologist. He told me that the second injection into his knee gave him improved pain relief than did the first injection.
He told me that he thinks the effect of this injection has now worn off and he describes some increase in his left knee pain.
He told me that he had not been further reviewed by Dr Edelman or Dr Barstow [sic].
He told me that his general practitioner had stopped the prescription of anti-inflammatory medication following a ‘urine test’ and I wonder if there was some element of mild creatinine rise on electrolyte examination.
Mr Connors told me that he had lost some 16 kg in weight and is now attending a gym and he is seeing a dietician to manage his diet virtually permanently.
He had increased his use of Lyrica medication and now takes 75 mg ‘most days’ but uses it as an ‘as required’ medication rather than regularly. He also takes Panadol Osteo four to six tablets a day. He uses an occasional Nurofen Gel to rub around his knee and he occasionally ices his knee. He finds that the Lyrica can leave him sleepy and on occasion he has noticed himself dossing at work. He therefore carefully manages the dose of Lyrica that he uses.
Continuing Employment/Work Duties:
Mr Connors continues on full duties 73½ hours per fortnight and on an average works around eight hours overtime per month. He now is engaged on full-time day shift and essentially is in mail processing activity. He told me that he was allowed to [sic] by his medical restrictions to use forklifts for around one hour a day but currently does not.
Continuing Symptoms/Disabilities:
Mr Connors does not describe a significant change in his overall function as a result of his increase in knee pain. He is still sleeping well at night and his mobility is not significantly affected. He uses elevators to go up floors but stairs to come down.
Continuing Treatment/Investigation:
No further continuing treatment or investigations have yet been ordered.
In view of your recent letter of instruction and specific questions regarding the causal elements of his knee osteoarthritic condition, I asked further information regarding his past medical history in particular the tibial fracture that he suffered.
Mr Connors told me that in 1990, he fell down stairs and was treated at the Royal Alfred Hospital in Melbourne. He told me that he suffered a roughly mid-shaft tibia and fibular fracture. This was apparently treated with open reduction and internal fixation in the form of plate and screw fixation. He told me that it healed without problems and the plates and screw were removed around one year postoperatively. He told me that he has not had any further problems with his tibia since that time.
Personal/Social History:
There has been no change in his personal or social history.
PHYSICAL EXAMINATION:
Mr Connors today was again punctual, courteous and polite and presented as a very affable man. He today weighed 128 kg and was 177 cm tall. He was wearing an elasticated knee brace which looked well worn. He had a normal gait and there is no abnormality of foot progression angle. When standing on tiptoes he had normal varus angulation of the calcanei.
Lower Limbs:
The examination of the knee was essentially unchanged from my last report. There was no obvious deformity and the overall alignment of the limbs appeared normal clinically. I thought a mild effusion remained in the knee and there was some minimal medial tenderness. There was mild pseudolaxity present correcting by around 3°. Cruciate and collateral ligaments were normal and the knee moved from -3° to 115°. McMurray’s test was negative. Patellofemoral tests were normal. The right knee was normal to examination. Distal neurovascular status was normal.
SUMMARY AND ASSESSMENT:
Schedule of questions:
1What is your diagnosis of Mr Connors current condition/s?
Mr Connors suffers from a relatively mild degree of osteoarthritis of the left knee, particularly of the medial joint line. Mr Connors has previously suffered a tibial fracture on the left which has been successfully treated by plate and screw fixation. There is no obvious clinical deformity as a consequence of this fracture, though he is a well built gentleman and it would be easy to miss such deformity. He has not undergone at any stage to my knowledge evaluation of the weight bearing profile of the lower limbs to ensure that he does not have a residual deformity consequence [sic] upon his left tibial fracture which may have created a malalignment of the lower limb which in turn may predispose him to left knee osteoarthritis. If it is felt that this is worth further follow-up then I would advise he undergo full length left tibial x-rays AP and lateral and also an AP of both the lower limbs hip to ankle whilst standing.
2On the balance of probabilities as distinct from possibilities are the condition/s currently suffered by Mr Connors related to
(a)His employment specifically the incidents of 9 August 2006 and 17 June 2009;
(b)A pre-existing congenital constitutional or underlying condition, or
(c)The natural progression of an underlying condition?
(d)Other health issues?
Mr Connors told me that prior to the incident of 2006, he did not have any knee pain or problems that he can recall. I do not recall any medical evidence from general practitioners or other practitioners related to left knee pain around or prior to this date. A review of his Medicare history may shed further light on this topic if he has forgotten any such presentations.
The incident of 9 August 2006 appears to have been only minor – he continued working at the time that he felt the twinge in the knee and was able to continue with his work shortly thereafter. He was assessed by a general practitioner and diagnosed with a ‘hamstring injury’ [sic] and returned to work. I certainly do not think it is the case that the workplace incident of 9 August 2006 or 17 June 2009 has caused the osteoarthritic degenerative condition in Mr Connors’ left knee. I think it is more likely that degeneration has been occurring over the years in part related to his weight, in part related to his genetic predisposition and in part perhaps related to his particular weight bearing or mechanical axis of his lower limbs and possibly influenced by his tibial fracture and possible change of his weight bearing axis (it is yet uninvestigated).
Mr Connors may be correct that he has not suffered any previous symptoms from his left knee prior to the incident of 2006, but I think this incident can only be said to have made his underlying condition symptomatic and certainly not caused, worsened or hastened degeneration in his left knee and again, I do not think it has caused the degeneration of the knee itself – the timeline is simply not consistent with this.
3If you consider Mr Connors employment has significantly contributed to his condition, please explain the basis for your conclusion.
In the absence of any evidence of the contrary, Mr Connors’ employment would appear to have contributed to his symptom state (as opposed to the underlying condition itself) and he told me that he had no prior knee symptoms before the incident in 2006 and it has remained problematic since that time and continue to slowly worsen. I think it is more probable than not that Mr Connors would be in a same position today but for the workplace incident as without the workplace incident [sic]. I think his symptom state is simply mirroring the typical features of a slowly progressive degenerative condition that is becoming increasingly symptomatic and more painful over time.
4What do you consider is Mr Connors current work capacity?
Mr Connors has full-time capacity for his current work duties.
5Does Mr Connors require any further treatment?
I think Mr Connors continues requiring analgesic treatments and further follow up by his treating specialists and he may be considered for further Synvisc injection or other treatment as determined by further investigation.
6What is your prognosis?
My prognosis is for gradual worsening of his underlying degenerative joint condition which ultimately may require joint replacement procedure. The timeline for this is extremely variable and can span from months to decades. I think on balance, it is likely to be 5 to 10 years before Mr Connors may require such an intervention.
…” (Exhibit R2)

In his oral evidence Mr Taylor said that typical symptoms of the applicant’s osteoarthritic left knee condition include medial knee pain, aching, difficulty standing for long periods, difficulty walking long distances, and weight-bearing, loading pain. He added that the applicant’s description of his left knee pain symptoms as coming and going and varying in severity was “entirely consistent” with the nature of his left knee condition.
The Tribunal referred Mr Taylor to the Workers’ Compensation FIRST Medical Certificate issued by Dr Strahan on 11 August 2006 (referred to in paragraph 5 above), in which the applicant’s relevant condition was described as “(L) hamstring strain – distally”. Mr Taylor said that, without seeing Dr Strahan’s clinical record, it was difficult for him to comment on the correctness of that diagnosis but he added that it was unlikely to be correct.
Additional Medical Evidence
The Tribunal notes that the Joondalup Drive Medical Centre’s records regarding the applicant, covering the period from 10 August 2006 to 3 July 2013, are also in evidence (Exhibit R1).
The Relevant Legislation
The SRC Act, as in force at all material times, relevantly provided as follows:
“4      Interpretation
(1)           In this Act, unless the contrary intention appears:
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
…
licensed corporation means a corporation that is the holder of a licence that is in force under Part VIII.
licensee means a Commonwealth authority or a corporation that is licensed, or that is taken to be licensed, under Part VIII.
…
(9)A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or
she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…
(10A)For the purposes of the application of this Act in relation to an employee employed by a licensed corporation, or a dependant of such a person, a reference in this Act (except in section 28 or Part III, V, VI, VII or VIII) to Comcare is, unless the contrary intention appears, a reference to that corporation.
…
14     Compensation for injuries
(1)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.
…”
Before 13 April 2007 the terms “injury” and “disease” were defined in s 4(1) of the SRC Act as follows:
“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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
“disease means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
With effect from 13 April 2007, the terms “injury” and “disease” have been, and are presently, defined in (respectively) s 5A and s 5B of the SRC Act as follows:
“5A Definition of injury
(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, that 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.
…”
5B Definition of disease
(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.
…
(3) In this Act:
significant degree means a degree that is substantially more than material.”
At all material times, s 16 of the SRC has provided for the payment of compensation in respect of the cost of reasonable medical treatment obtained in relation to an “injury” (as defined), and s 19 of the SRC Act has provided for the payment of compensation for “incapacity for work”(as defined) resulting from an “injury” (as defined).
The Issue
The respondent has previously determined that it is liable, pursuant to s 14(1) of the SRC Act , to pay compensation to the applicant, in accordance with that Act, in respect of each of the following injuries:
·“Left Hamstring Strain Distally” , the date of that injury being 9 August 2006 (T16 – Application 2013/1075);
·“Temporary Exacerbation of Osteoarthritis in Left Knee”, the date of that injury being 17 June 2009 (T7 – Application 2012/2552).
Neither of those determinations has been disturbed by a subsequent “reviewable decision” of the respondent, and the respondent, in these proceedings, has not sought to challenge the correctness of either of those determinations. In oral submissions counsel for the respondent confirmed that position.
Accordingly, having regard to the two decisions under review in these proceedings (see paragraph 1 above), the only issues for the Tribunal’s determination are as follows:
·whether the respondent has continued, with effect from 16 September 2006, to be liable to pay compensation to the applicant, in accordance with s 16 and/or s19 of the SRC Act, in respect of the abovementioned compensable injury suffered by him on 9 August 2006 (Application 2013/1075);
·whether the respondent has continued, with effect from 28 April 2012, to be liable to pay compensation to the applicant, in accordance with s 16 and/or s 19 of the SRC Act, in respect of the abovementioned compensable injury suffered by him on 17 June 2009 (Application 2012/2552).
Analysis
Application 2013/1075
The compensable injury
As previously noted, the respondent has accepted liability under s 14(1) of the SRC Act to pay compensation to the applicant in respect of an injury described as “Left Hamstring Strain Distally” suffered by him on 9 August 2006, but it has determined that it is not liable to pay compensation to the applicant, pursuant to s16 or s19 of the SRC Act, in respect of that injury from 16 September 2006.
As regards the appropriate description of the compensable injury suffered by the applicant on 9 August 2006, the Tribunal did not have the benefit of hearing evidence from Dr Strahan as to the basis on which he described that injury as “(L) hamstring strain – distally” in the medical certificate issued by him on 11 August 2006. Nor were any clinical notes of Dr Strahan in evidence. Having regard to the applicant’s description of that injury and of how it occurred, as recorded by Dr Strahan in the abovementioned medical certificate – namely, “strained left knee” and “twisted my knee” – the Tribunal shares the doubts expressed by both Mr Slinger and Mr Taylor in their evidence (see paragraphs 26 and 32 above) as to the appropriateness of Dr Strahan’s description of that injury. The Tribunal notes that, in the abovementioned medical certificate, it is indicated (on anatomical representations) that the injury is located at both the front and back of the left knee but, in the Tribunal’s opinion, the area indicated at the back of the left knee is more consistent with a complaint of left knee stiffness than a hamstring strain.
In the Tribunal’s opinion the accepted compensable left knee injury suffered by the applicant on 9 August 2006 is more appropriately described as “left knee strain”.
Accordingly, the Tribunal finds that the injury suffered by the applicant on 9 August 2006, in respect of which the respondent has accepted liability under s 14(1) of the SRC Act to pay compensation to the applicant, is “left knee strain” (“the 2006 injury”).
Is the respondent liable to pay compensation to the applicant, in accordance with s 16 of the SRC Act, in respect of the 2006 injury in the period from 16 September 2006?
In Re Liu and Comcare (2004) 79 ALD 119 the Tribunal (President G Downes J, Deputy President R P Handley and Senior Member M D Allen) said (at 120):
“(1) Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) creates a general liability for the payment of compensation to injured workers covered by the Act. It does not address categories of compensation. It does not address quantification. That is left to other sections of the Act. An initial determination of entitlement to compensation under the Act will normally incorporate a finding in favour of the claimant both under s 14 and also under one of the other sections of the Act: for example, ss16, 19 or 24.
(2) A positive determination under s 14 is a determination of the existence of a compensable injury. The nature and amount of the compensation is to be determined under other provisions of the Act. Compensable injuries may not always result in the payment of compensation. They may give rise to intermittent entitlements to compensation. There may be periods when there is no present entitlement to compensation under any of the sections of the Act relating to the nature and amount of compensation. But during such periods an injury which has been determined to be a compensable injury under s 14 will not cease to be a compensable injury. It will simply be correct to say during some periods that at the present the compensable injury does not give rise to an entitlement to compensation. …”
The Tribunal accepts the applicant’s evidence to the effect that, since the incident of 9 August 2006 in which he suffered the 2006 injury, he has continued to suffer intermittent pain symptoms of variable severity in his left knee to the present time. The Tribunal notes that that evidence is consistent with the history of ongoing left knee pain symptoms which the applicant gave to Mr Slinger and to Mr Taylor.
On the basis of the applicant’s evidence, the Tribunal finds that, from 16 September 2006 to 17 June 2009 (when he suffered another compensable injury to his left knee), the applicant continued intermittently to suffer pain symptoms in his left knee resulting from the 2006 injury.
Accordingly, the Tribunal determines that the respondent is liable to pay compensation to the applicant, in accordance with s 16 of the SRC Act, in respect of the 2006 injury for the period from 16 September 2006 to 16 June 2009.
It appears from the evidence before the Tribunal, however, that little in the way of medical treatment was obtained by the applicant in relation to his left knee pain during that period. According to the clinical records produced by Joondalup Drive Medical Centre (Exhibit R1), the only relevant consultations occurred on 22 April 2009 when Dr Garratt arranged for an x-ray of the applicant’s left knee, and on 6 May 2009 when the applicant saw Dr Garratt following an x-ray on 29 April 2009. According to the applicant’s own evidence, the medication he took for his left knee pain comprised Panadol and Nurofen Plus. In those circumstances, it would appear that the quantum of compensation to which the applicant may be entitled, pursuant to s 16 of the SRC Act, in respect of the period from 16 September 2006 to 16 June 2009, would be very limited.
Is the respondent liable to pay compensation to the applicant, in accordance with s19 of the SRC Act, in respect of the 2006 injury in the period from 16 September 2006?
According to the evidence before the Tribunal, following the Workers’ Compensation FINAL Medical Certificate issued by Dr Strahan on 15 September 2006 in which he certified that the applicant was fully fit (see paragraph 8 above), the applicant returned to, and thereafter performed, his pre-injury duties from 16 September 2006 to 16 June 2009.
Accordingly, the Tribunal finds that, in the period from 16 September 2006 to 16 June 2009, the applicant was not “incapacitated for work as a result of an injury”, within the meaning of s 19 of the SRC Act.
The Tribunal determines, therefore, that the respondent is not liable to pay compensation to the applicant, in accordance with s 19 of the SRC Act, in respect of the 2006 injury in the period from 16 September 2006 to 16 June 2009.
Application 2012/2552
The compensable injury
As previously noted, the respondent has accepted liability under s 14(1) of the SRC Act to pay compensation to the applicant in respect of an injury described as “Temporary Exacerbation of Osteo-arthritis in Left Knee” suffered by him on 17 June 2009, but it has subsequently determined that it is not liable to pay compensation to the applicant, pursuant to s 16 or s 19 of the SRC Act, in respect of that injury from 27 April 2012.
As regards the appropriate description of the compensable injury suffered by the applicant on 17 June 2009, the Tribunal infers that the respondent’s description of that injury, namely, “Temporary Exacerbation of Osteo-arthritis in Left Knee”, was based on the report of Dr Garratt, dated 13 August 2009 (set out in paragraph 14 above), which was referred to in the respondent’s notification to the applicant of its determination of 2 September 2009 accepting liability to pay compensation for that injury (T7 – Application 2012/2552).
The Tribunal notes that, in his report of 13 August 2009, Dr Garratt stated (inter alia):
“… I believe that Mr Connors is likely suffering from osteo-arthritis in his left knee. I believe that the pain has been aggravated by work factors such as forklift driving.
I believe it is likely that Mr Connors has been suffering from osteo-arthritis in his left knee for a number of months, if not years. I believe that there has been a temporary exacerbation of his condition relating to work factors such as forklift driving. I believe that with continued treatment, simple analgesia and possibly rotation or alteration of his work duties that this exacerbation will be of a temporary nature. …”
In the Tribunal’s opinion Dr Garratt, in the abovementioned extract from his report, was referring to an exacerbation of knee pain resulting from the condition of osteoarthritis in the applicant’s left knee rather than an exacerbation or aggravation of the condition of degenerative osteoarthritis in the applicant’s left knee. Furthermore, in the Tribunal’s opinion, the evidence of Mr Taylor and Mr Slinger is also consistent with the proposition that the applicant’s employment activities resulted in an increase or exacerbation of his left knee symptoms on 17 June 2009, not an exacerbation or aggravation of his left knee osteoarthritis itself.
Having regard to the abovementioned medical evidence, the Tribunal is of the opinion that the accepted compensable left knee injury suffered by the applicant on 17 June 2009 is more appropriately described as “exacerbation of osteoarthritic left knee pain”.
Accordingly, the Tribunal finds that the injury suffered by the applicant on 17 June 2009, in respect of which the respondent has accepted liability under s 14(1) of the SRC Act to pay compensation to the applicant, is “exacerbation of osteoarthritic left knee pain” (“the 2009 injury”).
The relationship between the 2006 injury and the 2009 injury
The Tribunal has found (see paragraphs 44 and 45 above) that the applicant continued intermittently to suffer pain symptoms in his left knee resulting from the 2006 injury in the period from 9 August 2006 (the date of that injury) to 17 June 2009 when he suffered the 2009 injury.
The Tribunal finds, however, that, from 17 June 2009, the pain symptoms which the applicant has continued to suffer in his left knee have resulted from the 2009 injury. The Tribunal notes that the respondent has accepted that it was liable to pay compensation to the applicant for reasonable medical treatment and for incapacity for work resulting from the 2009 injury, pursuant to ss 16 and 19 of the SRC Act, from 17 June 2009 (the date of the 2009 injury) to 26 April 2012.
Is the respondent liable to pay compensation to the applicant, in accordance with s 16 of the SRC Act, in respect of the 2009 injury in the period from 27 April 2012 to date?
The Tribunal accepts the applicant’s evidence to the effect that, from the date of the 2009 injury, he has continued to suffer intermittent pain symptoms of variable severity in his left knee to the present time. The Tribunal notes that that evidence is consistent with the history of ongoing left knee pain symptoms which the applicant gave to Mr Slinger and to Mr Taylor, The Tribunal notes, furthermore, that neither Mr Slinger nor Mr Taylor doubted the veracity of that history. Indeed Mr Taylor, in his report of 3 July 2013 (see paragraph 30 above), opined that the applicant continues to require medical treatment by way of “analgesic treatments and further follow up by his treating specialists” in relation to his left knee pain.
On the basis of the applicant’s evidence and the evidence of Mr Slinger, the Tribunal finds that, from 27 April 2012 to the present date, and as at the present date, the applicant has continued to suffer, and presently suffers, pain symptoms in his left knee, on an intermittent basis, resulting from the 2009 injury.
Accordingly, the Tribunal determines that the respondent is liable to pay compensation to the applicant, in accordance with s 16 of the SRC Act, in respect of the 2009 injury for the period from 27 April 2012 to the present date and as at the present date.
Is the respondent liable to pay compensation to the applicant, in accordance with s 19 of the SRC Act, in respect of the 2009 injury in the period from 27 April 2012 to date?
It is common ground that the applicant has not been totally incapacitated for work as a result of the 2009 injury at any time, and the Tribunal so finds. The issue for the Tribunal’s determination is whether the applicant has been partially incapacitated for work, within the meaning of para (b) in s 4(9) of the SRC Act, as a result of the 2009 injury in the period from 27 April 2012 to date.
As previously noted (see paragraphs 48 and 49 above), the applicant performed his pre-injury (that is, unrestricted) work duties from 16 September 2006 to 17 June 2009 and, accordingly, he was not incapacitated for work, within the meaning of s 4(9) of the SRC Act, in that period.
In the period from 17 June 2009, however, Dr Garratt has continued periodically to issue workers’ compensation medical certificates in which he has certified the applicant as fit for work for full hours but with some restrictions in duties as a result of the 2009 injury (see T135 and Exhibit R1). The Tribunal notes that the most recent such medical certificate which is in evidence was issued by Dr Garratt on 20 June 2013 and covers the period from 20 June 2013 to 19 September 2013 (part of Exhibit R1).
The Tribunal notes that both Mr Slinger and Mr Taylor have opined that the applicant is fit to undertake his present restricted duties and neither of them has opined that he is fit to undertake his pre-injury unrestricted duties.

The Tribunal also notes that, notwithstanding its determination of 27 April 2012 that the 2009 injury has “ceased to result in incapacity for work” for the purposes of s 19 of the SRC Act and its reviewable decision of 28 May 2012 affirming that determination, the respondent, on 17 May 2012 and on 8 June 2012, made a determination under s 37(1) of the SRC Act, in respect of the 2009 injury, that the applicant undertake a rehabilitation program involving restricted duties based on Dr Garratt’s medical certificate dated 17 April 2012 (see T136, pp 424-433). Section 37(1) of the SRC Act provides:
“A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.”
On the basis of the medical evidence before it – in particular, the abovementioned workers’ compensation medical certificates issued by Dr Garratt – and the applicant’s evidence, the Tribunal is satisfied, and finds, that, from 27 April 2012 to date and as at the present date, the applicant has continued to be, and is presently, partially incapacitated for work, within the meaning of para (b) in s 4(9) of the SRC Act, as a result of the 2009 injury.
Accordingly, the Tribunal determines that the respondent is liable to pay compensation to the applicant, in accordance with s 19 of the SRC Act, in respect of the 2009 injury for the period from 27 April 2012 to the present date and as at the present date.
Decision
For the above reasons the Tribunal decides as follows:
Application 2013/1075
The decision under review is set aside and, in substitution therefor, it is decided that:
·the respondent is liable to pay compensation to the applicant, in accordance with s 16 of the SRC Act, in respect of an injury, namely, “left knee strain” suffered on 9 August 2006 (“the 2006 injury”), for the period from 16 September 2006 to 16 June 2009;
·the respondent is not liable to pay compensation to the applicant, in accordance with s 19 of the SRC Act, in respect of the 2006 injury in the period from 16 September 2006 to 16 June 2009.
Application 2012/2552
The decision under review is set aside and, in substitution therefor, it is decided that:
·the respondent is liable to pay compensation to the applicant, in accordance with s 16 of the SRC Act, in respect of an injury, namely, “exacerbation of osteoarthritic left knee pain” suffered on 17 June 2009 (“the 2009 injury”), for the period from 27 April 2012 to the present date and as at the present date;
·the respondent is liable to pay compensation to the applicant, in accordance with s 19 of the SRC Act, in respect of the 2009 injury for the period from 27 April 2012 to the present date and as at the present date.

I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
...(Sgd)..T Freeman...................
Administrative Assistant
Dated 22 January 2014

Dates of hearing 9, 10, 11 December 2013

Counsel for the Applicant

Mr R McCabe

Solicitors for the Applicant Slater & Gordon

Counsel for the Respondent Mr M Snell

Solicitors for the Respondent Litigation Section
Injury Management
Australia Post

Division	General Administrative Division
File Numbers	2012/2552 2013/1075
Re	Reginald Connors
APPLICANT
And	Australian Postal Corporation
RESPONDENT

Tribunal	Deputy President S D Hotop
Date	22 January 2014
Place	Perth

Dates of hearing	9, 10, 11 December 2013
Counsel for the Applicant	Mr R McCabe
Solicitors for the Applicant	Slater & Gordon
Counsel for the Respondent	Mr M Snell
Solicitors for the Respondent	Litigation Section Injury Management Australia Post