Russell and Telstra Corporation Ltd
[2004] AATA 49
•22 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 49
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/13
GENERAL ADMINISTRATIVE DIVISION ) Re GERARD RUSSELL Applicant
And
TELSTRA CORPORATION LTD
Respondent
DECISION
Tribunal Murray Allen, Member Date22 January 2004
PlacePerth
Decision The reviewable decision made on 19 December 2001 is affirmed.
..........…..(sgd M Allen)....................
Member
CATCHWORDS
COMPENSATION – applicant injured previously asymptomatic knee in 1994 – knee subject to abnormal tracking of the patella and chondromalacia – condition due to degenerative change rather than effects of the 1994 injury – effects of 1994 injury had ceased - decision affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19
REASONS FOR DECISION
22 January 2004 Murray Allen, Member 1. This is an application by Mr Gerard Russell (the applicant) for review of a reviewable decision made on 19 December 2001, which affirmed on reconsideration a determination made on 15 October 2001 by a delegate of the respondent that on and from that date the respondent “is no longer liable to pay compensation in respect of any incapacity or medical expenses” in respect of an injury suffered by the applicant on 24 January 1994, and described in the determination as “inflammation right knee”.. The applicant had also made an application to the Tribunal for review of a decision made on 23 January 2002 in relation to an injury that was said to have occurred on 4 December 2001 involving the right knee (Tribunal proceedings W2002/40) but at the hearing that latter application was withdrawn.
2. The applicant was represented at the hearing by Mr Prast and the respondent was represented by Mr Lenczner of Counsel. The Tribunal received into evidence the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1 – T182), as well as documents tendered by the applicant (A1) and the respondent (R1 – R6). After the completion of the hearing the respondent filed with the Tribunal a bundle of documents consisting of 24 determinations made by delegates of the respondent concerning the applicant dated between 8 February 1994 and 23 January 2002. In these Reasons for Decision I will refer to that bundle as R7.
3. Oral evidence was given at the hearing by the applicant, Dr John Crawford (who is the applicant’s general practitioner), Dr Richard Beaver (who is a specialist orthopaedic surgeon and who was called by the applicant), and Dr David Wright (a specialist orthopaedic surgeon who was called as a witness by the respondent).
Background
4. At the time of the hearing the applicant was almost 50 years of age. In 1994 he had been employed by the respondent for approximately 8 years as a Communications Officer. Typically, his duties involved the location and repair of faults in the telecommunications cables maintained by the respondent. Prior to working for the respondent he had been employed for approximately 10 years by a telecommunications company in the United Kingdom.
5. It was not in dispute that on 24 January 1994 the applicant suffered an injury in the course of his employment. He had dug a trench to locate a faulty cable and had spent a considerable time (variously described as being between 3 hours and 5 hours) kneeling in order to repair the cable. That night his right knee became swollen and painful and on 25 January 1994 the applicant saw his general practitioner, who certified him unfit for work for 5 days, and made a provisional diagnosis of “patella inflammation – sub patella bursitis”. The applicant made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act) in regard to the incident on 27 January 1994. By 31 January 1994 the applicant was able to return to work on light duties, and with physiotherapy. He was to avoid working on his knees.
6. In April and June 1994 the applicant underwent arthroscopy of the knee, on the latter occasion an extensive lateral release being performed in an effort to control abnormal cracking of the patella. In March 1995 the applicant underwent surgery to the right knee involving an open lateral release of his patella, following which he was able to return to his field work with the respondent but avoiding repetitive bending and heavy lifting and kneeling. He eventually obtained a position with the respondent working in an office (rather than doing field work) and has been so engaged for some years.
7. The applicant continued to experience intermittent pain and disability in the right knee over the succeeding years, and in June 2000 underwent further arthroscopy and chondroplasty.
8. In September 2001 the insurer wrote to the applicant advising that in a report obtained in May 2001 from Dr Beaver (T167), Dr Beaver had stated that the applicant’s medical condition is a result of a degenerative process within the patellofemoral joint and the incident of January 1994 was merely an episode in this degenerative process. The letter invited the applicant to comment on the intention to cease his entitlement as to compensation..
9. The applicant made representations to the effect that he had not wholly recovered from his compensable condition, but on 15 October 2001 a delegate of the respondent made the determination referred to above to cease liability on and from 15 October 2001. (T179 Folio 244). The reason given for the determination was the opinion expressed by Dr Beaver.
10. The issue to be determined in these proceedings is whether the effects of the work related injury in 1994 persist beyond 15 October 2001.
The Evidence
Mr Russell
11. The applicant gave evidence that prior to the incident in January 1994 he had never experienced pain in, or other problems with, his right knee. The work that he had done on 24 January 1994 was a typical task for a “fault man”, which is a very physical job. He had spent about 4 hours kneeling in the trench, which was about 600 millimetres deep. He had eventually been able to return to work on light duties, and had subsequently obtained a promotion into an office job. He had never been able to go back to his full pre-accident duties because he couldn’t climb ladders, climb onto roofs, get in and out of vehicles, or kneel for long periods on the job.
12. He still has problems with his knee; sometimes it slips and gives way and he has physiotherapy on it every week. Sometimes he puts an ice compression pack on. He cannot walk long distances and finds pushing a trolley around a supermarket difficult. He has to be very wary of walking on inclines or abnormal surfaces. He has to keep his leg as straight as possible because if he bends it he can feel a pressure on the knee which is painful. Since 1994 his knee has never been without pain.
13. The applicant said that he had played sport when young and in 1994 he had been the manager of a junior football club. At that time he had occasionally kicked a football with his children. He had once been a keen gardener but he had to stop gardening after the 1994 incident. Before 1994 gardening had never presented any problems for his knees.
14. In cross examination the applicant agreed that there may have been a short period after the 1994 incident when he had been able to return to normal duties, but there had been episodes where the knee problems had flared up again and he had to stop normal duties. He gave evidence of an episode in about May 2000 when he had jumped out of bed to confront an intruder and his knee had given way. That had worsened his condition.
15. The applicant agreed that he had always been overweight and he found it difficult to do exercise because of the problem with his knee. At one stage the insurer had paid for a gym programme but had subsequently refused to do so.
Dr John Crawford
16. Dr Crawford is a general practitioner who has known the applicant as a patient since 1991 and first saw the applicant regarding his knee in March 1994. Prior to 1994 he had no prior knowledge of any pain the applicant suffered in his knee, but since March 1994 he has seen the applicant at least 60 times. The applicant’s knee condition has fluctuated over that time and has probably deteriorated. He sees the applicant about monthly and, although he doesn’t always examine the applicant, on occasions he has observed swelling and tenderness in the right knee cap. At times the knee appears to be relatively pain free and at other times there is considerable pain. The applicant’s pain had fluctuated least when he was undertaking physiotherapy regularly.
17. Dr Crawford said that the applicant is motivated to work and he has only ever sought certificates of unfitness for work when he has been in considerable pain.
Dr Beaver
18. Dr Beaver is a specialist orthopaedic surgeon who has treated the applicant since 1994. The T documents and other exhibits include 18 reports from Dr Beaver.
19. Dr Beaver’s first report of 3 May 1994 (T20) referred to the history that he had taken from the applicant to the effect that the pain and swelling went out of the knee over three or four days, and that he had been off work for 5 days then returned to normal duties, subject to physiotherapy. Dr Beaver noted:
“quite significant retro-patellar tenderness and crepitus with a painful grinding test. The remainder of the knee was normal to examination and I felt that his symptoms were only due to his patellofemoral joint, where he undoubtedly has advanced degeneration of the articular cartilage of the patella.”
20. In June 1994 Dr Beaver performed an arthroscopy on the applicant’s right knee, the only abnormality observed being mild synovitis and lateral patella subluxation, associated with Grade I chondromalacia of the patella. An extensive lateral release was performed to control the abnormal tracking of the patella.
21. In a report dated 9 March 1995 (T51) Dr Beaver noted that the symptoms in the applicant’s knee were becoming worse, with increasing pain and giving way of the knee. The patellofemoral subluxation had not responded to the arthroscopic lateral release and Dr Beaver considered that the applicant required an open lateral release. Dr Beaver performed that procedure on 30 March 1995. In December 1995 Dr Beaver reported (T70) that the applicant’s knee had given way only about half a dozen times since the realignment procedure. Dr Beaver also noted that although the applicant’s knee cartilage was not painful at that time it might require arthroscopic chondroplasty in future, if it did become painful. In April 1996 Dr Beaver recorded (T76) that episodes of the knee giving way were occurring only infrequently and the applicant’s only complaint was the pain in his knee, particularly when walking up or down on sloping ground and occasional joint swelling. Dr Beaver observed tenderness of the patella and that pushing the patella laterally produced quite severe pain – which he considered consistent with the earlier findings that there was chondromalacia of the patella, which he thought was the most likely cause of the problem at that time.
22. The next report from Dr Beaver was in May 2000 (T140). In that report Dr Beaver records that the applicant had:
“very gradually over the last year or two ... started to develop right anterior knee pain again but this was not severe until two weeks ago when he leapt out of bed to confront an intruder in his house and his knee gave way. The right knee has been painful ever since.”
In a subsequent report dated 6 June 2000 (T143) Dr Beaver referred to a CT scan of the applicant’s knee joints which demonstrated that there was no residual subluxation in either knee and that the articular cartilage of the right knee, which was known to be degenerate, had degenerated further over the last six years. The patellofemoral tracking appeared to be normal. In a further report dated 20 June 2000 (T146) Dr Beaver reported that the applicant’s knee was extremely painful and that he intended to perform an arthroscopy and chondroplasty of the right knee. In a report of 7 July 2000 (T149) Dr Beaver reported that the arthroscopy had shown that the patella articular surface was not as bad as he thought it would be, being only Grade 2 degeneration, and that the patella tended to track reasonably well and the remainder of the knee was normal. Dr Beaver noted a marked build up of scar tissue around the side of the patella that was almost keloid in nature. This was divided and the applicant subsequently thought that the pain in his knee had vastly improved.
23. On 8 May 2001 Dr Beaver reported (T167) that the applicant continued to experience knee pain, although his symptoms had abated since the lateral release on 30 June 2000. He said that the applicant had a full range of motion in his knee and was able to squat fully, although carefully. He had patellofemoral crepitus and pain on lateral patellar compression and tenderness under the lateral facet of the patella. Dr Beaver expressed the opinion that:
“although [the applicant] did have a genuine knee injury back in 1994 I believe that the present problems with his knee are related predominantly to the sequelae of a degenerative process within his patellofemoral joint and due to anatomical mal-alignment of the patella which has now been corrected.”
He thought that the applicant had chondromalacia patellae or patellofemoral osteoarthritis, a condition that is largely a degenerative process within the patellofemoral joint. He expressed the opinion that the applicant’s condition:
“is a result of the degenerative process within the patellofemoral joint and the incident of 24 January 1994 was merely an episode in this degenerative process”.
He expected the condition to episodically flare up for the foreseeable future and that it may progress to osteoarthritis of the whole knee.
24. In a report dated 12 April 2002 Dr Beaver referred to the decision made by the respondent’s insurer to cease liability based on his report of 8 May 2001. He stated that:
“it is undoubted that [the applicant] has a degenerative process within the patellofemoral joint. This has a definite relationship to his work injury of 24 January 1994 in that prior to the injury his knee was asymptomatic and subsequently became symptomatic. Whereas it is undeniable that the degenerative process is present and is the predominant factor in his present disability, the question whether this is compensable is largely a legal decision ... I think it would be reasonable to say that there is a definite association between the worsening or onset of this man’s pain and the work related injury although the underlying pathology is a degenerative process.”
In a report of 7 May 2002 (R2) Dr Beaver noted that an MRI scan had shown some mild degenerative change in the cartilage and some scarring from the lateral release. The patella was tracking normally in the trochlea, there was no meniscal tear and there was no cruciate abnormality.
25. In his oral evidence Dr Beaver said that he was sure that Mr Russell had pre-existing wear and degeneration of the surfaces of his patella in 1994 but this would not necessarily have caused him any pain. It is common for people with degenerative processes in the knee cap to have no pain or very little pain for long periods of time, even if the degenerative processes are visible on x-ray or other imaging techniques. That lack of pain can continue until something renders the joint painful. The episode in January 1994 could have triggered off a cascade of inflammatory processes which caused pain and swelling. The presence of pain and swelling means inflammation was present, and that inflammation can be caused by a mechanical event, such as a blow to the knee or a prolonged period of kneeling. The episode would have rendered the degenerative process symptomatic, but it did not cause the degenerative process. Once that degenerative process becomes symptomatic it can remain symptomatic and lead to the kind of difficulties that the applicant has experienced.
26. In relation to the statements made in his report of 8 May 2001 and which are quoted at paragraph 23 above, Dr Beaver said that he meant and intended to say that the effect of the injury sustained in 1994 had ceased by May 2001, and that the only thing causing the problem at that time was the degeneration. Dr Beaver agreed that the applicant had had a genuine knee injury in 1994 and he was then asked whether, when he wrote the May 2001 report, that he could say that the effects of the 1994 injury had ceased. His answer was:
“I am not sure I can say that. All I can say is that there is a degenerative process within that knee and that degenerative process had remained active. There was a genuine knee injury which triggered it ... being symptomatic ... the problems have continued. The problems are due to a degenerative process. Once activated they often don’t settle down, ever.”
He agreed that it was possible to have that degenerative process and be completely symptom free.
27. In cross examination, Dr Beaver would not agree that the January 1994 injury had been a minor irritation. He said that the fact that the pain and swelling had gone away suggested only that the inflammatory process fluctuates and that pain and swelling can go away completely and come back. He agreed that the fact that the applicant had been able to return to normal duties after 5 days suggested that there had been a recovery. He agreed that the concept of pain coming and going and fluctuating is typical of a degenerative disease of the type suffered by the applicant. He said the applicant had a condition known as chondromalacia which is a degenerative process involving the cartilage.
28. Dr Beaver said that the movement of the patella out of the groove in the femur bone within which it should sit (or subluxation of the patella) was the predominant cause of the degenerative process that was present in the patella. The surgery that he performed was designed to allow the patella to “track” in the groove on the femur.
29. In relation to his observation in July 1994 that the applicant had Grade I chondromalacia (or a softening of the cartilage rather than splitting or more serious damage), Dr Beaver said that it was not known for sure how long the abnormal tracking process of the patella had been going on. Simple softening of the cartilage suggested that it had only been for months or years, not for decades. He said that it was the continual maltracking of the patella that had been causing the inflammatory episodes, although the absence of inflammation does not mean that the maltracking is not still occurring. Why an inflammatory process fluctuates is not fully understood. A bout of inflammation might be caused by some inappropriate movement that causes the patella to rub against the joint, or some other momentary shift in the knee cap.
30. He said that he did not have any doubt that the kneeling episode was simply an incident in the degenerative process of the applicant’s knee. Sometimes there is an incident which brings the condition on, but on other occasions the inflammation comes on spontaneously without a known cause. Dr Beaver said that all that could be said about the kneeling incident was that it may have been a trigger. From that time the knee became symptomatic and the kneeling incident may have triggered that. The predominant cause of the applicant’s present problem was the lateral subluxation of the patella.
31. Dr Beaver said that when he saw the applicant again in May 2000 after a gap of about four years he considered that the chondromalacia had worsened because there was increased crunching in the knee cap, which indicates that the surface of the cartilage is more worn and rough. The CT scan of June 2000 had confirmed that deterioration, although when he conducted an arthroscopy in July 2000 the surfaces did not appear as bad as he thought they might be. Nevertheless, the applicant’s condition was now classified as Grade 2 chondromalacia, which is splitting and thinning of the cartilage.
32. Dr Beaver said that the cause of the applicant’s problem is a degenerative process in the knee. The incident at work in January 1994 was simply an incident in the degenerative process. It just happened to be when the pain commenced. He said that he agreed with a statement made by Dr Wright in a report of June 2002 that the applicant’s symptoms at that time were the result of the degeneration, which had been present prior to the January 1994 incident.
33. In re-examination, Dr Beaver said that the maltracking of the applicant’s patella had possibly been with him all his life and that the maltracking patella was the cause of his pain in 1994. Although it is not understood why inflammatory processes are triggered, he accepted that there was an association in time between the triggering of the pain and the January 1994 incident and that, based on the applicant’s claim that he had no pain before that incident, he could only conclude that some sort of trigger was set off by the work episode. However, although the onset of pain is correlated with the work incident, the cause of his pain is a long standing and pre-existing maltracking of the patella and subsequent degeneration of the articular cartilage. The inflammation may have started and appeared at the time of the work incident, but the incident was not the cause of the degeneration.
34. Dr Beaver said that it was not possible to tell, in July 1994, how long the Grade 1 chondromalacia had been present. Laboratory evidence suggests that softening can start within weeks of an injury. It was possible that the chondromalacia had only been present for some months, even though the subluxation and abnormal mechanics of the knee were long standing. All he could say was that the presence of the chondromalacia was consistent with something having happened several months before, although the rate of progress of chondromalacia through its four stages is quite arbitrary.
35. In answer to questions from me, Dr Beaver said that he was confident that, in 1994, the maltracking and displacement of the applicant’s knee cap was long standing because to do it suddenly there needs to be a major injury or traumatic episode and a well defined episode of giving way. However, Grade 1 chondromalacia in the cartilage can happen rapidly after an injury or it can happen slowly over years. The mere presence of softening does not tell you how long it has been there. It was possible that the chondromalacia had only been present since the time of the January 1994 incident.
36. Dr Beaver said that on the balance of probabilities he thought that it was likely that the applicant would have gone on to develop symptomatic knee pain and inflammatory processes in the course of time even if the January 1994 incident had not occurred, but it was possible that symptoms would never have developed. Although there was an association in time between the January 1994 incident and the onset of pain, such that there is a possibility that the kneeling episode triggered that onset, it is speculation to say whether the consequences of that event are now finished and that all the problems at the present time are totally explicable by the degenerative condition that would be like this today in any event.
37. Dr Beaver was referred to a written report by another orthopaedic surgeon, Dr Venerys dated 21 January 1999 (T105) in which Dr Venerys expressed the opinion that the underlying disorder of chondromalacia and lateral subluxation of the patella were brought to light by the 1994 episode and that the work-related contribution could be defined as that of a permanent nature. Dr Beaver said that he would not agree that the work-related contribution could be said to be permanent. Rather, his opinion is that the work-related contribution was to the onset of symptoms, not to it being of a permanent nature. If Dr Venerys was expressing the opinion that the effects of the work-related event were still present in 1999, then he would not agree with that. Rather, he would say that the work-related contribution was to act as a trigger for the development of symptoms but that the cause of the ongoing symptoms was the degenerative process in the cartilage, largely due to maltracking of the knee cap. Although there was a correlation in time between the onset of the symptoms and the January 1994 incident, that incident was merely an episode in the process of the degeneration and did not cause the degenerative process. Why it triggered off symptoms is a matter for speculation. In all probability it is the degenerative process that is causing the pain that the applicant now experiences and has experienced in recent years.
Dr David Wright
38. Dr Wright is a specialist orthopaedic surgeon and has been a Fellow of the Royal College of Surgeons since 1975 and of the Royal Australasian College of Surgeons since 1981. He saw the applicant in March 2000 at the request of the respondent and provided a report dated 3 April 2000 (T129). In that report Dr Wright expressed the view that it was likely that the applicant did have chondromalacia before January 1994 but that the symptoms were brought on by several hours of kneeling. Accordingly:
“his current symptoms have been brought on by the injury or incident at work on 24 January 1994 but it is likely there is an underlying problem which was aggravated by the incident ... . Whilst I believe that [the applicant] probably had patella chondromalacia prior to the work injury ... it is not possible to say that this chondromalacia would ever become symptomatic if it were not for the injury sustained on that day. I agree with other consultants who have expressed the opinion that the effects of the kneeling episode are unlikely to resolve.”
39. Dr Wright saw the applicant again in May 2002 at the request of the respondent and provided a report dated 20 June 2002 (R5). In that report, Dr Wright said that:
“undoubtedly there was some pre-existing degeneration of the patellofemoral joint and the work incident merely acted as a trigger to render the degenerative change symptomatic. ... Whilst it could be argued that he would not have developed knee pain without the work injury or incident which occurred on 24 January 1994, his current symptoms are entirely the result of patellofemoral degeneration which was present prior to the work injury. ...[the applicant’s] knee condition is permanent. It is probable that his symptoms will deteriorate with time as the arthritic process becomes more severe.”
40. In his oral evidence Dr Wright said that he accepted Dr Beaver’s view that there had been a history of maltracking of the patella prior to the incident of January 1994 although, by the time he had seen the applicant, Dr Beaver had performed the surgery to correct that and so he personally did not note the maltracking. He agreed with Dr Beaver’s view that the maltracking would have been the major cause of the subsequent degeneration of the applicant’s cartilage, although there are other causes of degeneration. He also agreed with Dr Beaver’s view that the applicant’s current problems are due to the degeneration.
41. Dr Wright considered that the underlying degenerative condition had been in place for some period of time before January 1994 because it would require traumatic blows such as a heavy fall or an impact injury to the patella to produce traumatic chondromalacia. He believes that chondromalacia develops over a period of time, years rather than days or weeks or months, where the cause is repetitive injuries to the patellofemoral joint from subluxations. Although something significant did happen in January 1994 which caused the onset of pain, there was no severe trauma to the joint and he believes the effects of that injury or trauma or malposition were of a temporary nature. He could not see that the incident of January 1994 played any part in the applicant’s condition over the last few years because he believes that the effects of degeneration - due to the original underlying cause and the further damage that has occurred with time - has produced more severe degeneration than was previously apparent. There has been a progression because more than 6 years have passed since the original incident.
42. Dr Wright was referred to the differences between the views he expressed in his report of 3 April 2000 and that of 20 June 2002, specifically that in the earlier report he said that the effects of the kneeling episode would be unlikely to resolve whereas in the latter report he said that the current symptoms were entirely a result of the degeneration. Dr Wright explained the change of view by saying that he had thought more about it and had come to the opinion that the incident of January 1994 was a fairly trivial trauma and he thought that he had not taken into account in his earlier report that the applicant had improved rapidly after that episode and that the symptoms had subsequently re-occurred.
43. In cross-examination Dr Wright expanded on the reasons for that change of opinion. He said that the fact that the applicant’s symptoms improved after a short period of time made him consider that he had not experienced a very severe injury. What was a relatively minor injury was most unlikely to produce long term problems in the context of a person who had an abnormal knee to start with. Dr Wright said that he had changed his view after reading the material provided to him, examining the applicant and talking to him, and thinking about the overall situation. He had considered whether a relatively minor incident 6 or 8 years before experienced by a man that had a patella that had been maltracking for most of his life would have caused all that person’s current symptoms – and he came to the conclusion that it would not. He accepted that an inflammatory process was set up at the time of the January 1994 episode but he did not accept the proposition that once an inflammatory process is set up it is unlikely to ever go away totally, albeit with degrees of fluctuation.
44. Dr Wright accepted that the chondromalacia that is present has caused some pain since 1994 but that there are probably other factors involved as well, such as arthritis of the knee joint itself, because once there is arthritis in the patellofemoral joint arthritis of the knee joint often develops as well.
45. Dr Wright was asked whether he accepted that it was possible that an entirely asymptomatic knee could be made symptomatic by an injury and thereafter remain symptomatic. He said that anything is possible and a severe injury causing severe damage will lead to long term problems, but he thought it was unlikely that a relatively minor injury would lead to long term damage. A reasonably sized person, kneeling for an extended period of time, would not classify as a severe injury.
46. Dr Wright said that he believed that it was very, very probable that the applicant had chondromalacia prior to January 1994 because of the fact that his patella had been maltracking all his life, but he accepted that it was certainly possible that the chondromalacia had been asymptomatic prior to that time.
47. Dr Wright said that if the applicant had only been able to go back to light duties for a period of time, or indeed if he had never been able to go back to his full pre-January 1994 duties, that would not alter his bottom-line opinion, but it would support the proposition that the applicant has had some ongoing pain ever since. Although he could not say it with certainty, he strongly believed that the grade 1 chondromalacia was present prior to January 1994. It is unlikely that one incident would produce a chondromalacia.
48. Dr Wright said that it was possible that the January 1994 incident aggravated the chondromalacia that was present although he thought it more likely that that condition would be aggravated by lots of minor subluxations over a period of time and that the January 1994 incident would have been just one of a number of things. He could not really say how likely it was that the kneeling episode had aggravated the chondromalacia. He agreed that chondromalacia can progress at any rate and there is no way of predicting the rate of progression. He accepted as a possibility that there could have been an acceleration of the symptoms of the underlying condition, but that was not necessarily due to the actual incident in January 1994 because some of the treatments that the applicant may have undertaken, including some physiotherapy exercises, may have tended to aggravate the symptoms. Overall, he considered that the effect of the January 1994 incident was temporary but it was impossible to say how long that temporary nature would last.
49. Dr Wright said that he could not rule out the January 1994 incident having some effect on the progression of the maltracking of the patella or the chondromalacia but it was his belief that the applicant probably would have reached his current condition even without that incident, but he could not say with certainty that he would have.
50. Dr Wright said that the fact the applicant had a maltracking patella increased the probability of the manifestation of chondromalacia or osteoarthritis at an earlier stage than might otherwise be the case. He thought that the incident of 1994 contributed to a worsening of the applicant’s symptoms but did not contribute to the worsening of the underlying condition which was causing his current pain. He believed that the 1994 incident resulted in a temporary aggravation of his problem. He thought that temporary in this context meant approximately 6 – 12 months.
Other Evidence
51. In January 1999 the applicant was seen by Dr J Venerys, an Orthopaedic Surgeon, and in a report dated 21 January 1999 Dr Venerys reported that the applicant had:
“chondromalacia of the right patella which was brought to light by the kneeling episode during the course of his work on 21 January 1994. The chondromalacia may have occurred as the result of lateral subluxation of the patella which remained asymptomatic until the episode on 21 January 1994. … His symptoms arose as the direct result of employment as stated and his employment certainly actively contributed to his disorder. The five hours of kneeling would be significant factor to contribute to his condition. I believe there was an underlying disorder of chondromalacia of the right patellar and lateral subluxation of the patella and these were brought to light by the episode during employment. The work related contribution can be defined as that of a permanent nature.”
The respondent subsequently asked Dr Venerys to consider whether the effects of the aggravation had ceased and whether the natural progression of the chondromalacia had now taken over. In a report dated 27 July 1999 (T117) Dr Venerys expressed the opinion that:
“it appears he exerted considerable compression to the right knee patella at that time and progressed to a traumatic chondromalacia of the patella … if he exerts any type of compression strain to his right knee he develops a recurrence of symptoms … it certainly does appear, therefore, that the aggravation to the right patella is persisting … it certainly does appear that the effects of the kneeling episode has not as yet resolved and it is unlikely to do so … I believe that the chondromalacia will persist, will continue to increase and will be aggravated and symptoms will occur with significant compression injuries to the right knee.”
Dr Venerys has since retired and did not give oral evidence.
Submissions
52. It was contended for the applicant that he suffered an injury within the meaning of the Act in January 1994, namely the subluxation of the patella due to the prolonged episode of kneeling. The incapacity that was caused by that injury, and for which the respondent accepted liability for a number of years, continues. There is a definite association between the worsening or onset of the pain in 1994 and a cascading effect of inflammation and swelling that started at that time and has continued. In the alternative, if the chondromalacia condition was not present in January 1994 then the onset of that condition was caused by the kneeling episode and that condition has undoubtedly continued and become more severe and the incapacity due to it continues to this day. Further in the alternative, if the chondromalacia was present in January 1994 then there was an aggravation of that condition due to the kneeling incident and in that sense there has been an aggravation of a disease.
53. For the respondent it was contended that there had been an injury, namely the subluxation of the patella in January 1994, but that the incapacity arising from that injury had ceased well before October 2001 when the cessation of liability determination was made. The applicant’s incapacity at and after that time was due to the underlying degenerative condition of chondromalacia that was already present in January 1994. The events of January 1994 brought that condition to light but it was caused by the maltracking of the patella that had been present for many years. The fact that the pain and swelling resulting from the January 1994 incident had subsided after 3 or 4 days and the applicant was able to quickly return to work indicated that that was a relatively minor incident, the effects of which would have passed by no later than 6 or 12 months after that time.
Consideration
54. Section 14 of the Act provides that the respondent will be liable to pay compensation to the applicant “in accordance with this Act in respect of an injury suffered by [the applicant] if the injury results in death, incapacity for work, or impairment.” Section 4(1) of the Act contains definitions of the following relevant terms “unless the contrary intention appears”:
"‘injury’ means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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 injuries (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 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 an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;
‘ailment’ means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
55. The original determinations made following the January 1994 incident referred to the applicant’s claim in respect of “injury to right knee” and accepted liability for compensation in respect of “patella inflammation – right knee (sub-patella bursitis)”.. That formulation of words, which continued to be used by the respondent until a determination made on 22 April 1997, was based upon the provisional diagnosis made by the applicant’s general practitioner in the first medical certificated dated 25 January 1994 (T3). The determinations made by the respondent between 22 April 1997 up until October 2001 referred to the applicant’s claim as being in respect of “right knee patella inflammation” or “inflammation right knee”.
56. As a matter of fact, the respondent has accepted liability under the Act for the applicant’s knee condition as it emerged during 1994 and subsequently under s 16 of the Act in respect of medical expenses and under s 19 of the Act for weekly earnings to the extent that that was applicable (because the applicant was able to continue working for the vast majority of the time).
57. In written submissions filed after the close of the hearing the respondent submitted that no liability had been accepted for “in the general sense the injury to the right knee and that liability had only been accepted for sub-patella bursitis”. The respondent contended that the applicant’s incapacity at and after October 2001 was due to a chondromalacia patella condition and not the condition for which liability had been accepted i.e. sub-patella bursitis. In the event I do not believe that much turns on this point because, in my opinion, the respondent continued to accept liability for the applicant’s knee condition as disclosed by the many medical reports obtained by the respondent over the years, notwithstanding that the description of the condition for which liability was accepted as set out in the determinations did not change. It is too late, in my opinion, for the respondent to question the extent of the liability accepted over many years.
58. The decision under review purported to cease liability for compensation or medical expenses and the applicant seeks only to have that decision set aside. The applicant is not seeking findings in relation to specific entitlements under sections of the Act such as s 16 or 19.
59. It is not in dispute between the parties, and there is ample medical evidence to the effect, that the applicant did suffer an injury in January 1994, namely the subluxation of the patella as a result of the kneeling episode. Equally, it is not in dispute that the applicant was incapacitated for a time as a result of that injury. The issue to be determined in these proceedings is whether the incapacity that did result from the January 1994 episode continued to October 2001 and thereafter.
60. The injury that was suffered by the applicant was the subluxation of the patella due to the prolonged kneeling. That is so even though the patella was maltracking in its groove and was therefore susceptible to displacement. That condition had been present in the applicant’s knee for many years according to the evidence of Drs Beaver and Wright, and I so find. What is less clear is whether or not the condition of chondromalacia, being the degenerative change of the cartilage due to the movement of the patella, was present prior to January 1994 or whether its onset was caused by that episode.
61. Dr Beaver said that he was sure that in 1994 the applicant had pre-existing wear and degeneration of the articular surfaces of his patella. The grade 1 chondromalacia, or softening of the cartilage, that Dr Beaver observed in the arthroscopy undertaken in June 1994 suggested to him that the chondromalacia had been present only for months or years rather than for decades. He subsequently agreed that in the middle of 1994 the chondromalacia might only have been present for months even though the subluxation and abnormal mechanics of the knee were longstanding. He later said that grade 1 chondromalacia can happen rapidly after an injury or it can happen slowly over years: “the mere presence of softening does not tell you how long it has been there”.. He also said that it was a matter for speculation and opinion about when the cartilage started to soften. He agreed that chondromalacia could develop within weeks of an injury but the injury must be a serious one involving a real knocking of the patella.
62. Dr Wright’s evidence was that a severe injury causing severe damage would lead to long term problems but he though it unlikely that a relatively minor injury, such as kneeling for an extended period of time, would cause that. He said that he believed that it was “very, very probable” that the applicant had chondromalacia prior to January 1994, based on the fact that his patella had been maltracking all his life.
63. In the light of that evidence, and bearing in mind the applicant’s early return to work - which indicates that he had not suffered a major trauma - I find as a fact on the balance of probabilities that the applicant did suffer from low-grade chondromalacia in January 1994, although I also accept his evidence that he had not perceived any symptoms of that condition up to that time.
64. I am also satisfied that the pre-existing maltracking of the patella and the associated low level chondromalacia were aggravated by the kneeling episode. The question that must be determined is whether the incapacity that resulted from the aggravation ceased prior to October 2001.
65. The applicant said in his evidence that the swelling had gone down and he was able to go back to work on light duties and eventually found work in an office environment. He gave no specific evidence as to just how long he had been off work or how long the light duties lasted. He was referred to Dr Beaver’s report of 3 May 1994 (T20) which referred to him being “off work for 5 days only and subsequently returned to his normal duties.” The applicant said “I don’t recall immediately after that, but I know it – I had to go – well I know I was working light duties … I may have gone [back to normal duties] but it had obviously flared again and we had to stop the normal duties.”
66. The first certificate provided by the applicant’s general practitioner dated 25 January 1994 (T3) certified the applicant as unfit for an estimated 2 days and contained the doctor’s notation that the applicant “should be fit 27 January 1994”.. A certificate dated 27 January 1994 (T4) certified the applicant as unfit for a further estimated 5 days. A certificate dated 31 January 1994 (T8) certified the applicant as partially unfit for 1 week with a notation that he should continue physiotherapy and have light duties. A further certificate dated 7 February 1994 (T9) referred to light duties and a certificate dated 14 February 1994 (T10) (and a number that issued subsequently) described the applicant as being fit but requiring treatment, namely that he should continue the physiotherapy and avoid working on his knees. The certificate of 25 January 1994 refers to inflammation but not to swelling and none of the subsequent certificates refer to either inflammation or swelling. Dr Crawford was unable to give any direct evidence about the state of the applicant’s knee in January and February 1994 because he first saw the applicant after the January incident in March 1994.
67. In a report dated 16 December 1996, an Occupational Physician, Dr Steve Clarke, recorded that he had seen the applicant and:
“he was on office duties until 1995 (after his arthroscopy) and thereafter, after his open procedure he was in the office until approximately June of 1995. In the last year he has returned to field work … [and] whilst he has returned to his normal type work, there are some restrictions on him now since his knee injury e.g. he specifically avoids manholes, climbing duties, the use of ladders and also avoid roof space work.”
68. Dr Beaver’s report of 3 May 1994 referred to the pain and swelling going out of the knee over 3 to 4 days with physiotherapy and that the applicant was off work for 5 days only and subsequently returned to his normal duties. On the basis of that history and the earlier certificates of the general practitioner I conclude that the pain and swelling experienced by the applicant did cease after about 3 or 4 days and that he was able to return to work on or about 1 February 1994. I find that he was on light duties for about 2 weeks and thereafter was able to undertake his normal work (but avoiding working on his knees or squatting). I find that he was able to work in that way until he underwent the first lateral release in 24 June 1994, after which he was unfit for work until about 21 August 1994, and thereafter worked on office work until about the middle of June 1995 when he returned to field work.
69. It is apparent from the medical certificates that between 1994 and 1996 the applicant continued to need medical assistance culminating in the open lateral release of the patella performed by Dr Beaver in March 1995. Following that procedure his condition improved significantly, and in January 1999 he told Dr Venerys that the knee gave way sometimes, there was intermittent aching and occasional swelling. The applicant told Dr Wright on 28 March 2000 that he continued to suffer from right knee pain and the symptoms were aggravated by squatting, kneeling, descending and ascending steps and stairs and that his knee could ache whilst in bed.
70. Dr Crawford said in evidence that the treatment of the applicant was undertaken by Dr Beaver. Significantly, in my opinion, the applicant did not see Dr Beaver between April 1996 and May 2000, when Dr Crawford again referred him to Dr Beaver, which suggests that for most of that time the applicant did not experience major problems with the knees. This is confirmed by Dr Beaver’s record (in T140) that the applicant had a very successful response to the surgery in 1996 and that:
“very gradually over the last year or two he has started to develop right anterior knee pain again but this was not severe until two weeks ago when he leapt out of bed to confront an intruder in his house and his knee gave way.”
71. The evidence of Doctors Beaver and Wright was that conditions of the kind experienced by the applicant can be expected to fluctuate, with intermittent inflammation, swelling and pain. Sometimes this can be brought on by some kind of sudden movement, or even climatic conditions, but the process is not fully understood. It is apparent that at least in May 2000 (the intruder incident) and December 2001 (an incident at work that was the subject of application W2002/40 in the Tribunal that was subsequently withdrawn) the applicant has experienced exacerbation of his condition that has brought on pain and swelling. That is consistent with the evidence of Doctors Beaver and Wright.
72. The opinion expressed by Dr Beaver in his report of 8 May 2001 that, although the applicant did have a genuine knee injury in 1994, his present problems are related predominantly to the sequelae of the degenerative process and due to the anatomical mal-alignment of the patella did not really change in his oral evidence. Although he did say that he was not sure that he could say that at the time of the 2001 report that all of the effects of the 1994 injury had ceased, he confirmed his view that there was a degenerative process within the knee that had been triggered by a genuine knee injury, and that the degenerative process had remained active. He remained of the view that the kneeling episode was simply an incident in the degenerative process of the applicant’s knee. Although the onset of pain is correlated in time with the work incident, the cause of the pain has been the long standing and pre-existing maltracking of his patella and subsequent degeneration of the cartilage. Although the inflammation may have started and appeared at the time of the work incident, it was not the cause of the degeneration.
73. As noted above, Dr Beaver did not agree with Mr Venerys’ opinion that the work related contribution to the applicant’s condition was of a permanent nature, or that the effects of the work related event were still present in 1999.
74. Dr Wright was challenged as to why he had changed his opinion concerning the effects of the 1994 episode. I accept his explanation that he reconsidered the position in the light of the fact that the episode in 1994 was relatively minor, not involving a significant trauma to the applicant’s knee, and that the pain and swelling had gone within a few days and the applicant was able to return to work, even though that may have been on lighter duties than normal. Although Dr Wright was not prepared to rule out that the 1994 incident might have had some effect on the progression of the chondromalacia, he believed that the condition would have reached the current condition even without that incident, and he remained firmly of the view that the intermittent pain and other inconvenience experienced in 2001 and thereafter, was not the result of the 1994 incident. He was firm in the view that the 1994 incident would have resulted in a temporary aggravation of the applicant’s condition at that time, meaning that the effects would have been operative for a 6-12 month period.
75. In light of that evidence I consider, and I so find, that the effects of the kneeling episode in January 1994 did result in an incapacity to the applicant for a period of time and that the incident did bring to light the underlying condition that the applicant suffered from, that had been asymptomatic up until that time. Nevertheless, I also find that the effects of that incident had ceased to operate by sometime prior to October 2001. It is unnecessary for me to determine precisely when those effects ceased to operate, but I am inclined to think that they had ceased by mid-1996 when the applicant entered a period of not needing to see Dr Beaver that lasted for several years. I am certainly satisfied that by the time of Dr Beaver’s report in May 2001 the effects of the 1994 incident had passed.
76. It follows that by the time of the determination made in October 2001 the effects of the 1994 incident had ceased. In those circumstances my decision is that the reviewable decision made on 19 December 2001, which affirmed the determination made on 15 October 2001, should be affirmed.
I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Murray Allen, Member
Signed: ...................(sgd V Wong)..................................
AssociateDates of Hearing 16 and 17 April 2003
Date of Decision 22 January 2004
Counsel for the Applicant Mr C Prast
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Sparke Helmore
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