Slip and Comcare (Compensation)
[2019] AATA 5192
•4 December 2019
Slip and Comcare (Compensation) [2019] AATA 5192 (4 December 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5634
Re:Richard Slip
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Dr I Alexander, Senior Member
Date: 4 December 2019
Place:Sydney
The decision under review is affirmed.
.........................[sgd]...............................................
Dr I Alexander, Senior Member
CATCHWORDS
COMPENSATION – workers compensation – medial collateral ligament strain left knee – tear of left knee ligament – tear of medial cartilage or meniscus of knee (right) – osteoarthritis localised multiple sites (right) – chronic limp – whether employment contributed to claimed secondary ailments in a material degree – decision under review affirmed
LEGISLATION
Compensation (Australian Government Employees) Act 1971 ss 5, 27, 29
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14, 16, 124
CASES
Lees v Comcare [1999] FCA 753
Prain v Comcare [2017] FCAFC 143
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
SECONDARY MATERIALS
Harrington IJ and Harris WR, Can ‘favouring’ one leg damage the other?, Journal of Bone and Joint Surgery, 1994
Harrington IJ, Symptoms in the Opposite or Uninjured Leg, Discussion Paper prepared for the Workplace Safety and Insurance Appeals Tribunal (Canada), 2005
Melhorn JM, Talmage JB, Brooks CN and Brigham CR, Section 1: Evaluating Causation for the Opposite Upper Limb, AMA Guides to the Evaluation of Disease and Injury Causation, 2014Talmage JB, Brooks CN and Brigham CR, Section 2: Evaluating Causation for the Opposite Upper Limb, AMA Guides to the Evaluation of Disease and Injury Causation, 2014
REASONS FOR DECISION
Dr I Alexander, Senior Member
4 December 2019
INTRODUCTION
On 7 January 1974, Mr Slip injured his left knee in the course of his employment as a meat inspector.
On 11 June 1974, pursuant to subsection 27(1) of the Compensation (Australian Government Employees) Act 1971 (Cth) (“the 1971 Act”), liability was accepted in respect of a condition labelled as “left medial collateral ligament strain left knee”.[1] On 18 June 1976 liability was extended to “include torn left knee ligament”.[2]
[1] Letter: Comcare to Mr Slip, 13 September 2018, Section 37 Documents at p 404.
[2] Ibid.
On 18 September 1978, in a supplementary determination under the 1971 Act, Mr Slip was awarded a lump sum payment for 10% loss of efficient use of the left leg at or above the knee.
On 16 March 1979, in a review of own motion, Mr Slip was awarded a lump sum payment for 25% loss of efficient use of the left leg at or above the knee.
In a determination dated 17 November 2003, Comcare refused to extend liability to conditions involving the right hip, right knee and lower back.
In a reconsideration determination under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) dated 25 May 2004, review officer Mr I McGarrigle decided that “Comcare is liable for the acceleration of the development of osteoarthritic changes in the lower back, right hip and right knee as sequelae of the injuries sustained on 07/01/1974”.
The review officer based his decision on the “weight of the medical evidence, including the opinion of the claimant’s treating orthopaedic surgeon since mid 1977”, which indicated that “it is reasonable, indeed probable” that Mr Slip’s “left knee condition has materially contributed to the development of osteoarthritic changes in his lower back, right hip and right knee”. [Emphasis added.]
In a determination dated 17 August 2012, pursuant to s 14 of the SRC Act, Comcare accepted liability for a “secondary condition of tear of medial cartilage or meniscus of right knee”.
In a letter to Mr Slip dated 12 December 2014, a delegate confirmed that in 2004 Comcare extended liability to include Mr Slip’s “lower back, right hip and right knee as secondary conditions”.
The delegate also confirmed that the cessation of Mr Slip’s weekly compensation payments when he turned 65 did not affect his eligibility to claim other benefits under the SRC Act such as reimbursement of medical costs for his compensable condition.
In a letter dated 13 April 2018, a Comcare delegate confirmed a telephone conversation with Mr Slip, during which he was informed that on review of medical reports, including a recent report by Dr Diebold, compensation may not be payable in respect of his claim for medical treatment under s 16 of the SRC Act in respect of the secondary conditions of “osteoarthritis localised multiple sites (right)” and “tear of medial cartilage or meniscus of knee (right)”.
In an initial determination dated 30 May 2018, a Comcare delegate decided that on consideration of additional medical evidence, Mr Slip’s secondary conditions were “unrelated’” to his “accepted primary condition” and therefore he was presently not entitled to compensation for medical expenses under section 16 of the SRC Act in respect of those claimed secondary conditions.
In a reviewable decision dated 13 September 2018, the decision of 30 May 2018 was affirmed.
In these proceedings, Mr Slip seeks review of the decision dated 13 September 2018. He attended the hearing for this matter in person and was self-represented.
ISSUES
Mr Slip contends that his current medical conditions of osteoarthritis of both knees, right hip and lower back are causally related to the injury to his left knee he suffered at work in 1974.
Mr Slip contends that these alleged secondary conditions were caused by the “abnormal wear and tear” on the right sided joints and lower back. This “abnormal wear and tear” has purportedly stemmed from the “chronic limp” he has suffered as a result of the injury to his left knee. In his oral evidence at the hearing, Mr Slip stressed that he had suffered pain in his right hip and knee prior to 1987 when he was retired on the grounds of invalidity.
The Respondent does not dispute that the osteoarthritis of the left knee is causally related to work related injury to the left knee.
However, the Respondent submits that Mr Slip’s work injury did not contribute in a material degree to the secondary conditions and that Comcare is not liable, at present, to pay compensation under s 16 of the SRC Act.
The Respondent contends that liability under s 14 of the SRC Act “should never been accepted for the conditions and was accepted in error”.[3]
[3] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at para 44.
In the alternative, the Respondent contends that “any previous employment-related contribution has long since ceased”.[4]
[4] Ibid.
The decision to accept liability to pay compensation for “osteoarthritic changes in his lower back, right hip and right knee” was made under s 14 of the SRC Act.
Section 14 of the SRC Act creates a liability in Comcare in respect of injuries suffered by employees which result in “death, incapacity for work or impairment”. However, the liability created by s 14 “is qualified... That is, it is a liability limited in its extent by other provision of Part II of the Act”.[5]
[5] Lees v Comcare [1999] FCA 753 at [27].
A determination under s 14 is subject to the provisions of Part II of the SRC Act including s 16(1) which provides that:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Relevantly, the AAT has the power “to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act ….where the determination of the first instance decision-maker… made under the auspices of s 14 of the SRC Act remain in operation…”[6]
[6] Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 at [57] (Conti J).
Therefore, in circumstances when undertaking a review as to whether any compensation should be payable under s 16 of the SRC Act, the Tribunal is empowered to “undercut the necessary findings of fact made in the initial or original decision”[7] under s 14 of the SRC Act to accept liability for compensation. The power is not limited by the fact that the s 14 decision remains in force “to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT”.[8]
[7]Ibid at [59] (Conti J).
[8] Ibid.
It follows that the definitive issue in this matter is whether, as at 30 May 2018, Comcare was liable to pay compensation under s 16 of the SRC Act.
In order to address this issue, it is relevant to consider whether the available evidence can support a conclusion that Mr Slip’s left knee contributed to his claimed secondary medical conditions.
Section 14 of the SRC Act provides that Comcare is liable to pay compensation in respect of an “injury suffered by an employee if the injury results in death, incapacity for work, or impairment”.
In s 5A(1) of the SRC Act “injury” is defined, inter alia, as:
(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… [Emphasis added.]
The decision dated 25 May 2004, accepting liability for “the development of osteoarthritic changes in the lower back, right hip and right knee as sequelae of injuries sustained on 7 January 1974”, was made under an earlier version of the SRC Act in which “disease” is defined, inter alia, as:
(a) any ailment suffered by an employee; or
(b) an 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 licensee… [Emphasis added.]
It is agreed that for present purposes each of the claimed secondary conditions under consideration is an “ailment” within the meaning of the SRC Act.
Subsection 16(1) of the SRC Act provides that:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury…
The SRC Act superseded the 1971 Act in December 1988.
Subsection 124(1A) of the SRC Act provides, inter alia, that:
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
Mr Slip claims that he suffered significant symptoms in respect of the secondary medical conditions prior to December 1988. Therefore, it is also necessary to consider the provisions of the 1971 Act, which provides a different statutory test for the liability to pay compensation.
Subsection 27(1) of the 1971 Act provides for liability to pay compensation for “personal injury arising out of or in the course of employment”.
Section 5 of 1971 Act defines “injury” as “any physical or mental injury” but subject to s 29 “does not include a disease or the aggravation, acceleration or recurrence of a disease”. [Emphasis added.]
Section 5 of the 1971 Act defines “disease” as “any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development”.
Subsection 29(1) of the 1971 Act provides that:
(a) when an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b) any employment of the employee was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,
the succeeding provisions of this section have in effect commenced.
The specific circumstances in which there is a liability to pay compensation for a “disease” is set out in s 29(2) of the 1971 Act.
Therefore, the issues for the Tribunal are:
i)Did Mr Slip suffer a “disease” within the meaning of the 1971 Act, prior to December 1988?
ii)Did Mr Slip’s employment contribute to his claimed secondary ailments “in a material degree”? And if so,
iii)Did Mr Slip’s employment continue to contribute to his claimed secondary ailments “in a material degree”, as at 30 May 2018?[9]
MEDICAL EVIDENCE
[9] Prain v Comcare [2017] FCAFC 143.
Dr Grimsdell – orthopaedic surgeon
In a letter to Claims Manager dated 15 March 1976, Dr Grimsdell stated, inter alia, as follows:
[Mr Slip] was complaining of aching on the inner side of his left knee, associated with a feeling of instability at the knee, and a tendency for the joint to give way on occasions. These symptoms are aggravated by long periods of standing, and also after driving long distances…
There is a history that he sustained a severe injury to his left knee at work…
…he slipped off the step and sustained a very severe valgus strain to the left knee joint…
It would appear that he ruptured the medial ligament of his knee, and he was transferred to Sydney and was treated by Dr. G. Mahony... a formal repair of the medial ligament of his knee was carried out. His knee was subsequently immobilised in plaster of paris cylinder for about 3 months, and he then spent a further period of 2 months attending for intensive physiotherapy to strengthen his quadriceps muscles and mobilise the knee joint…
He then returned to work and has recently commenced work as a Meat Inspector in Forbes…
Examination on 8/3/76 reveals a 16 cm scar… soundly healed and not adherent to deeper structures. There is no quadriceps wasting. Extension is full… Flexion at the joint is also full…. complete stability at the knee joint is apparent, implying that an almost perfect repair of the medical ligament has been effected. There is no clinical evidence of cruciate ligament damage, but it is not known whether medial meniscectomy was carried out…
In a letter to the Claims Manager dated 30 March 1976, Dr Grimsdell stated, inter alia, as follows:
X-rays dated 18/3/76 do not reveal the presence of any significant bone or joint abnormality at either knee.
…
Mr Slip is concerned that he has a permanent persisting disability and that his left knee will never be as good as his right knee. Secondly he states that he feels it would impair his wage earning capacity as his age advances, and thirdly the question of premature retiral from work could conceivably arise at some indefinite date in the future.
…He is contacting his union representative, who will advise him through their lawyers…
…The question of his current disabilities does not, in my opinion, at this stage represent a major problem… [Emphasis added.]
In a letter to the Claims Manager dated 11 May 1976, Dr Grimsdell stated, inter alia, as follows:
I have received a letter from Dr Mahony, informing me that medial meniscectomy was not indicated at the time of the repair of his medial ligament, and I confirm that examination on 5/5/76 does not indicate that he has a lesion now affecting his medial meniscus.
He tells me that he has experienced 3 incidents when his knee has given way, but this did not occur when he was at work, and he has been able to continue his usual employment without difficulty.
He told me… that his knee was giving minimal symptoms but he is anxious to obtain an opinion regarding the percentage disability resulting from the injury… from my own observation of his joint and his minimal disability now, I doubt if the percentage disability would amount to more than 10% at the most. Mr Slip accepts this percentage disability now, but he is fearful that as he grows older, the percentage may increase, and it is this point that he wishes to establish with his employers…
It should be noted that aching and other symptoms at the knee are aggravated by certain activities and in particular, dancing and horse riding.
I confirm that he is fit to continue at work… [Emphasis added.]
Dr Mutton - treating orthopaedic surgeon
In a letter to Dr Stanley dated 29 November 1977, Dr Mutton stated, inter alia, as follows
…in January, 1973[10] while employed… fell sideways … injuring the inside of his left knee…. taken to Sydney… Dr Graham Mahony repaired ruptured ligaments…
Apparently since then he has had several episode of something jumping out of knee with giving way. He also occasionally suffers from pain in the knee which last from one to seven days for no apparent reason.
…x-ray… of his left knee showed in my opinion some slight decrease in the medial joint compartment with some developing ossification in the medial ligament…
…arthrogram on his left knee on 24/11/77... tear involving the posterior two-thirds of the medial meniscus… tear of almost the entire length of the lateral meniscus…
…for him to have an asymptomatic knee he requires a bilateral meniscectomy.
It is difficult to state when his menisci were injured as apparently Graham Mahony did not see fit to remove the meniscus at operation in 1973. However, it is possible that the menisci were torn in this initial injury, or they tore at a later date due to the slight instability in the knee as a result of that initial injury.
[10] I note the date of injury 7 January 1974.
In a letter dated 13 December 1977, Dr Mutton stated that he had performed a medial arthrotomy of the left knee and found tears of the medial and lateral meniscus as well as a ruptured anterior cruciate ligament.
In a letter dated 8 February 1978, Dr Mutton noted that it was nine weeks since he had performed a bilateral meniscectomy and that Mr Slip’s knee was “quite stable”. He stated that Mr Slip had a “good result of his meniscectomy” and could return to work on 13 February 1978.
Further, Dr Mutton also stated that:
As a result of the bilateral meniscectomy in spite of the fact that there was no articular cartilage damage noted at arthrotomy he will develop some osteoarthritis in his knee over the years to come. I would therefore assess the permanent disability in his left knee as 15%. This however, is likely to increase with time.
In a letter dated 1 May 1978, Dr Mutton noted that since returning to work Mr Slip had been having trouble with his left knee “in the form of pain and swelling”.
Dr Mutton stated that treatment with anti-inflammatory agents and some physiotherapy had seemed “to have done the trick as when I saw him today he was again quite happy with his knee”.
Dr Mutton also noted that Mr Slip was having some “medially and lateral collateral instability… but as he has not suffered any symptoms of giving way more recently nothing needs to done about this at the present time”.
In an undated report,[11] Dr Mutton stated that Mr Slip “is now suffering from laxity of the ligaments to his left knee as a result of the incident on January 7/1/74” but indicated that it was unlikely that he will become totally incapacitated for employment as a result of the disability arising from the incident on January 1974.
[11] Report of Dr Geoffrey Mutton, undated, Section 37 Documents at pp 38 - 39.
In a letter dated 4 August 1987, more than 9 years since the last consultation with Mr Slip in May 1978, Dr Mutton stated, inter alia, as follows:
…Mr Slip has continued to have problems with his left knee, and at the present time is complaining of pain in his left knee particularly on standing for prolonged periods of time with pain on ascending or descending stairs, of inability to squat and for a tendency for the left knee to give way…
…x-rays… carried out on 27.3.87 show some ossification in the femoral attachment of the medial ligament that was present on his x-rays back in March 1976 with some irregularity of the intercondylar region… some evidence of irregularity of the femoral condyle and some early joint line lipping with spurring from the retropatellar articular surface.
On examining Mr Slip’s left knee there was no effusion in the joint and his quadricep muscles were well hypertrophied. There was a full range of motion. There was Grade I laxity of his medial collateral ligament and Grade II laxity of the anterior cruciate ligament. There was no sign of any antero-lateral rotation instability… marked retropatellar crepitus and tenderness...
Mr Slip has three problems with his left knee:
1. He is suffering from early patellofemoral osteoarthritis in the knee.
2. …mild instability in the knee…
3. …early osteoarthritis in his knee…
Unfortunately at this stage nothing can be done to improve the state of Mr Slip’s left knee. He needs to restrict his activities to keep his symptoms under control, and if he feels that his left knee is symptomatic enough as a result of his activities in the abattoir then he should find some sedentary work. Any acute flare-ups of pain in Mr Slip’s left knee can probably be treated with some non-steroidal anti-inflammatory agents, but I have advised him against pushbike riding that cannot in any way help him with his knee problem…
Unfortunately the osteoarthritis that Mr Slip now has in his left knee will be progressive with increasing pain and stiffness in the knee joint… It is possible that Mr Slips’ working life may be restricted by the osteoarthritic problem in his left knee… [Emphasis added.]
In a letter dated 18 January 2000, Dr Mutton stated, inter alia, as follows:
…Mr Slip is complaining of pain in his left knee that causes him to limp and an ache in his left knee at rest. Mr Slip’s left knee was initially unstable but he no longer complains of any instability symptoms.
I examined Mr Slip’s left knee and noted a full range of motion in the joint without any joint effusion. There was some slight laxity in the medial collateral and the anterior cruciate ligaments… There was some patello-femoral crepitus and tenderness with bilateral joint line tenderness.[12]
Mr Slip has early degenerative changes in his left knee joint. I am sure it is these degenerative changes that are producing his symptoms.
Unfortunately, there isn’t anything that I can do to help...
The degenerative change of Mr Slip’s left knee will be slowly progressive… I gave Mr Slip some samples of Celebrex that may control the pain…
[12] I note that this knee examination is very similar to Dr Mutton’s examination in 1987.
I note that at this point Dr Mutton had not recorded any complaints by Mr Slip regarding the right knee, right hip or lower back symptoms.
In May 2000, Mr Slip’s then GP asked Dr Mutton to review him because of “pain in his right groin and right knee”.
In his letter to the GP dated 31 May 2000, Dr Mutton stated that Mr Slip “feels that when his left knee is painful and forces him to limp, he develops pain in his right groin and knee”.
Dr Mutton noted that x-rays performed in 1999 had revealed a “loose body” in the right knee, some “early degenerative changes” in the right hip and “degenerative changes” in thoracolumbar junction.
Dr Mutton described Mr Slip’s problems as:
1. …osteoarthritis of his left knee joint.
2. …early osteoarthritis of his right hip joint.
3. …degenerative changes at his thoracolumbar junction.
4. … loose body in the posterior intercondylar region of his right knee.
Dr Mutton noted that Mr Slip found that if he takes Celebrex when his right hip is painful, his pain eases over a week or so. He concluded that Mr Slip:
does not require specific attention to his right hip, he does not need to have the loose bone fragment removed from his right knee and all he can do is carry on as best as he can, taking anti-inflammatory medication when necessary bring his symptoms under control.
In response to Mr Slip’s claim that he “feels that the pain he suffers from in his right hip and right knee is secondary to the limp that has developed as a result of the osteoarthritis in his left knee” Dr Mutton noted that “this could be the case”.
I note that Dr Mutton did not report on any physical examination and did not make any comment about the nature or severity of Mr Slip’s limp or any significant alteration in his gait.
In a letter to Comcare dated 20 January 2004, Dr Mutton noted that had seen Mr Slip for a second opinion in regard to his disabilities and stated, inter alia, as follows:
Currently his left knee still aches, he has difficulty walking any distance and when his left knee is painful, he feels that this causes him to limp and throws his body out of place with the result that he develops pain in his low back, right hip and right knee.
X-rays have shown that Mr Slip has degenerative changes in his lumbar spine and some early wear in his right hip joint. There is a loose body in his right knee.
It is not possible to state that the pathology in Mr Slip’s left knee has resulted in the pathology in his back, right hip and right knee but his work activities and his limp from his left knee could have contributed to these changes.
Mr Slip has not worked now for 15 years and it seems unlikely that work could be found for him at Lighetning [sic] Ridge. He should however be fit to carry out sedentary clerical work. [Emphasis added.]
In a letter to Comcare dated 22 April 2004 and received by Comcare on 7 May 2004, Dr Mutton stated that he had recently spoken to Mr Slip because of Mr Slip’s concern with the “pathology that he has in his low back, right hip and right knee” and he is “concerned that the chronic limp, as a result of the pathology in his left knee, has brought about the degenerative condition in his low back, right hip and right knee”.
Dr Mutton stated that:
It would be reasonable to assume that his chronic limp from his left knee has been responsible for the degenerative changes that have developed in his low back, right hip and right knee. [Emphasis added.]
In a supplementary letter also dated 22 April 2004 but received by Comcare on 19 May 2004, Dr Mutton changed his opinion to:
on the balance of probabilities his chronic limp from his left knee has been responsible for the degenerative changes that have been developed in his low back, right hip and right knee. [Emphasis added.]
Letters from Mr Slip
In a letter to Comcare review officer Mr McGarrigle dated 19 March 2004, Mr Slip wrote, inter alia, as follows:
Re our phone conversation yesterday. I would like an extension of time possibly 3 months for appeal against the ComCare’s [sic] decision in my case. I will write to Dr Mutton and ask if he could use the words probable instead of could… As I believe my condition is a direct result of my long term condition (injury)… [Emphasis added.]
In a letter to Dr Mutton dated 22 March 2004[13], Mr Slip wrote, inter alia, as follows:
[13] Transcription of letter: Mr Slip to Dr Mutton, 22 March 2019, Summonsed Documents at pp. 283 – 285.
Dear Geoff
….
I would to thank you for doing the last medical report for me when you explained that you don’t normally do compensation legal reports.
….
My problem at the moment is that I realise that there is no “let’s say photographic evidence” that my problems with my right side knee, hips and lower back are caused by my long term injury in the left side knee.
But the fact is that after favouring one side in my physical activities for 30 years I believe the excess stress & load is the Major factor causing my extra problems [sic], you have stated that “it “could have contributed to these changes”.
The compensation review apparently want to have a “probable “or “actual cause” of problem rather than “possible” or “could have” cause a problem in order to accept a claim.
But apparently I limp & wobble a bit…
This action over a prolonged period has undoubtedly placed greater than NORMAL wear and tear and load on the good side of my bodie [sic]. And I believe it is the main and only cause for these problems caused by ABNORMAL WEAR and tear and load over a very long period.
I realize fully that I am only the patient in this situation and have no qualifications to judge the condition.
If it is possible would you be able rephrase your letter to probable cause of the origins of the condition with Mr Slips right knee, R hip and lower back due to abnormal wear and tear brought about by the L/knee injury over 30 years or something similar.
In a letter to Dr Mutton dated 11 May 2004[14], Mr Slip wrote, inter alia, as follows;
Dear Geoff
Thanks again for your help in my case. I have been informed that you said – it would be reasonable assume that his chronic limp from L/knee has been responsible for the degenerative changes that have developed in the lower back, right hip and right knee.
I am informed that if you could change the wording to ON THE BALANCE OF PROBABILITIES his cronic [sic] limp…
That my case would have a lot better chance of being accepted this wording seems basically the same but legally it must have more power.
…
Thanks again Geoff if you are able to do this and if not you may let me know. Any expenses I will only be happy to pay.
Dr Lopes[15]
[14] Transcription of Letter: Mr Slip to Dr Mutton, 11 May 2019, Summonsed Documents at p. 289.
[15] Dr Lopes appears to have no specialist qualifications and his area of expertise is unknown.
In September and November 1987 Mr Slip was seen by Dr Lopes to assess his fitness for continued employment.
In a brief letter dated 22 September 1987, Dr Lopes stated that Mr Slip told him the history of his left knee and that “laterly [sic] his right knee joint and right hip joint have become painful, due to the fact that he is attempting to protect his left knee”.
On examination of Mr Slip’s left knee Dr Lopes found it to be “swollen and painful” and stated that the pain was “preventing him fully controlling his knee joint, making it an unstable joint under weight bearing”.[16]
[16] This examination appears to be inconsistent with the recorded examination by Dr Mutton on 4 August 1987.
Dr Lopes added that he had seen the x-ray of the knee joint which showed “major changes have taken place” and has “obviously deteriorated markedly since the original injury in 1973”.
Dr Lopes concluded that because of the continuing deterioration in his left knee, it was not possible for Mr Slip to return to his current work “bearing in mind that now his right leg is becoming involved in his disability” and the only course of action “would be retirement on invalidity grounds”. [Emphasis added.]
In a supplementary letter dated 26 November 1987, Dr Lopes referred to Dr Mutton’s letter of 4 August 1987 and stated that although Mr Slip’s claimed right sided symptoms were not mentioned in that letter, Mr Slip had assured him that he had told Dr Mutton about his right leg.
Dr Lopes noted that Mr Slip feels that “taking a sedentary occupation with fixed hours, as required by the Department, he would not be able to carry out, because now both legs are involved”. [Emphasis added.]
In noting that that Dr Mutton had written that Mr Slip now has osteoarthritis in his left knee joint which “will deteriorate” Dr Lopes stated that “I am sure it would not help his right leg… I still think that retirement would be the most likely solution and for Mr Slip to arrange his own life to fit in with his condition”. [Emphasis added.]
Dr Giblin - orthopaedic surgeon
In an extremely brief letter to the Claims Manager dated 15 August 1988, Dr Giblin, orthopaedic surgeon, noted that Mr Slip was referred in respect of his “multiple joint problems” as result of past injuries to “his left knee and left shoulder”.
In the context of assessing causation, this letter can only be described as incomplete and unprofessional. Therefore it is of no value for present purposes.
Dr Aalder’s – rural physician (GP)
In a letter to Comcare dated 21 January 2001, Dr Aalders stated that Mr Slip had asked him to provide a medical report in relation to an injury at wok but “he does not recall the exact date of the injury but that it was around 1975”.
Mr Slip told Dr Aalders that “from that time he has had ongoing pain and discomfort in his left knee that makes him limp and take more weight on his right leg” and “that over the last few years he has been getting right hip pain and knee pain that he feels is a result from favouring his right leg when walking”. [Emphasis added.]
Dr Aalders noted that he arranged x-rays of the right knee on 10 November 2000 showed, inter alia, a “bony exostosis (spur) projecting from the medial femoral condyle of the left femur that is consistent with an old tear of the medial collateral ligament”. He concluded that these changes represent “premature osteoarthritic degeneration”[17] and was sufficient to explain the degree of pain and disability that Mr Slip experienced with his left knee. He stated that it “support his history of needing to take more of his weight on his right leg when walking, standing or climbing”.
[17] Clearly Dr Aalders was in fact describing an x-ray of the left knee.
Dr Aalders was shown earlier x-rays of his right hip and right knee from 1999/2000 and noted the same changes as described by Dr Mutton above.[18] Taking into account the natural history of osteoarthritic changes, he then concluded that:
“it is a reasonable hypothesis that the osteoarthritic changes in his right hip have arisen as a result of preferring his right hip and taking the greater part of his body weight on his right side. This is because the hip and knee joints are the main weight bearing joints of the body and the joints most commonly affected by osteoarthritic degeneration”. [Emphasis added.]
[18] See above at para 59.
Dr Lake – GP
In a letter to Comcare dated 15 November 2001, Dr Lake stated, inter alia, as follows:
Mr Slip visited me for the first time today requesting… a report of his medical condition…
He states that he is on a disability pension due to pain in his left knee which forces him to limp, causing pain in his right groin (hip joint pain) and knee.
He presents today… in no distress. He is limping very slightly to favour his left knee. He is able to stand on either leg with ease. He can touch his toes with a slight (<10 degree) bend in his knees. [Emphasis added.]
His range of motion in trunkal rotation is normal.
While his radiological and objective findings are mild to moderate, pain is a subjective symptom. I have no reason to doubt that Mr Slip’s report of inability to carry out his former occupation or meat inspector…
He seems of normal intelligence and I believe that he is able to perform sedentary- type occupations…
Dr Morris – surgeon
In a report dated 14 October 2003, Dr Morris recorded a relatively brief patient history which was consistent with the history recorded in the documents above. He also noted that Mr Slip said that he currently has “problems with pain in the right hip and right knee as well as low backache” for which he takes Celebrex and added that his symptoms “tend to come and go together particularly in cold weather”.
With respect to physical examination, Dr Morris stated, inter alia, as follows:
This man’s lumbar spine is indicated as aching rather variably from about L1 to the sacrum but mostly at the L5 level especially in cold weather.
He is able to demonstrate a very full and apparently free range of lumbar spinal movement with indication of L5 pain at extremes.
On examination of his hips there is some early restriction of internal and external rotation of the right hip suggestive of early arthritic change…
The right knee is clinically reasonably normal; there may be some minor early crepitus suggesting of the beginnings of degenerative change but the significant findings are in the left knee where he has undoubted marked crepitus...
Dr Morris expressed the opinion that:
…the problems with the right hip and right knee are mild early degenerative change, and although one could no doubt argue that this in some way is related to the problems with his left knee, I find the arguments unconvincing, and I believe that he simply happens to have degenerative disease in these joints as a result of constitutional factors.
In regard to his lumbar spine the xray shows only some minor osteophytes with well preserved disc spaces and the problems in his back similarly as being due to mild degenerative change and I cannot postulate any likely link to the injury to his left knee.
Dr Morris also expressed the opinion that Mr Slip was “unfit for duties that involve prolonged standing or walking” but that he “was and is fit or a wide range of semi-sedentary office duties”. He did not agree that he had been “totally incapacitated for all employment since 1988” but accepted he “may have been incapacitated for work as a meat inspector”. [Emphasis added.]
Dr Wood – orthopaedic surgeon
In a letter dated 6 July 2012, Dr Wood noted that Mr Slip was a 62 year-old man who presented with right knee pain. He noted the past history of injury to the left knee and stated that “There has been no specific injury to the right knee” but “both knees have been worse over the last couple of months”. Otherwise Mr Slip was “fit and well, on analgesia”.
On examination of the right knee, Dr Wood noted “relatively normal alignment with an effusion… patellofemoral crepitus” and “clinically intact” cruciate ligaments and commented that “surprisingly, whilst he has some arthritis, the knees themselves do not seem too severe”.
An MRI scan performed on the knees confirmed “significant arthritis as well as a meniscal tear”.
In a supplementary letter dated 13 August 2012, Dr Wood confirmed that that Mr Slip suffered an “extensive medial meniscal tear” with “medial compartment chondral damage” and recommended an arthroscopy.
With respect to employment, Dr Wood stated that:
The right knee condition suffered by Mr Slip is not related to his employment as a general clerk.
It is related to wear and tear and having to take more weight through the right leg because of the left knee injury.
…
I suspect the condition suffered by Mr Slip is probably related to the mainly natural ageing process which has been accelerated by increased pressure through the right knee because of the left knee injury”.
In an Operation Report dated 29 August 2012, Dr Wood noted that a “partial medical meniscectomy was performed”.
Dr Diebold
In a report dated 27 February 2018, Dr Diebold noted a history consistent with the various documents, as summarised above, and stated, inter alia, as follows:
On 31 May 2000 Dr Mutton noted a history of pain in the right groin and right knee and diagnosed osteoarthritis in both areas. It was accepted that these symptoms in the right knee and right groin were due to over use secondary to the favouring the injured left knee. Mr Slip tells me he has suffered from pain in the lower back, as well as the right hip, since the early 2000’s.
…
Mr Slip has symptoms in the left knee, right knee as well as both hips and his lower back. In all these areas he has intermittent symptoms that are worse with walking, standing and activity.
…
PHYSICAL EXAMINATION
…
Mr Slip carries his back stiffly with walking. He has an antalgic gait favouring both legs, left more than right. He ambulates around the office and gets up and down from a sitting position with obvious discomfort in both lower limbs.
…
X-ray Lumbar spine, both hips and both knees – 27 February 2018
Final Report
Both hips – There is mild degenerative change involving both hips, slightly worse on the right…
Both knees – there is moderate to severe tricompartmental osteoarthritis on the left and moderate tricompartmental osteoarthritis on the right.
Lumbar spine – there is moderately pronounced scoliosis cove to the right… moderate degenerative changes present…
Dr Diebold also provided answers to specific questions in his medical report, stated, inter alia, as follows:
Please provide a description of the condition and the diagnostic criteria used in reaching this diagnosis.
…
The pains in his right knee, buttocks and lower back are not related to his work injury. The area previously described as “hip pain” is located in the buttocks, and is referred from the lower back. He does not have significant hip arthritis.
Please provide details of any relevant history, pre-existing or underlying conditions suffered by Mr Slip.
…Mr Slip’s right knee symptoms are also unrelated to his left knee injury. His combination of osteoarthritis and secondary degenerative meniscal tear are also an underlying condition and would have occurred without his work-related left knee injury.
In your opinion are Mr Slip’s current medical conditions an aggravation, acceleration or recurrence of a pre-existing or underlying condition or part of the natural aging process?
…
In my opinion, his left knee arthritis is secondary to the anterior cruciate ligament rupture which occurred at the time of his work-related injury.
The arthritis and degenerative meniscal tear of his right knee are an unrelated underlying condition. The osteoarthritis of his lumbar spine is also an underlying, unrelated condition. These are degenerative conditions and hence these symptoms have gradually worsened with time. The current symptoms in the back, buttocks (which he describes as hips) and in the right knee would have occurred if the workplace incident had not occurred.
What is the prognosis for Mr Slip’s claimed condition?
…
The prognosis for the osteoarthritis of the left and right knees is poor. Radiologically his arthritis is severe in both knees… His symptoms are gradually deteriorating and will continue to do so. He will inevitably come to total knee replacement in both knees… There is no hip pathology. The lower back degenerative changes tend to only progress very gradually.
…
In your opinion, what are the specific incidents both employment and non-employment related that have caused or aggravated Mr Slip’s conditions?
…
It was found in approximately 2003 that symptoms in Mr Slip’s right knee and right hip were secondary to his left knee pathology, due to over use of these areas to compensate for the left knee. Please see Appendix A[19] which outlines why I disagree with this opinion and I believe this is not the case. The information and references provided are the only objective information on this subject in the literature of which I am aware. On the evidence of these articles, I do not think conditions in the right knee can be attributable to the left knee.
Similarly, there is no reasonable rationale by which degenerative disease in the back can be attributed to the left knee pathology. The conditions in his lower back and right knee are osteoarthritis that are underlying in nature. The meniscal tear in the right knee is a common degenerative pathology that is associated pathology that is associated with osteoarthritis.
[19] An updated version of Appendix A was submitted into evidence at the hearing and included details of 3 references which are addressed below at paras 105 – 107.
In a supplementary report responding to specific questions which had been raised by Mr Slip in a written statement dated 13 May 2019, Dr Diebold stated, inter alia, as follows:
I would initially state that the history of an onset of back problems from 2000’s was one given to me by Mr Slip himself.
I fully understand that at the time of our interview it may not have come to mind that he suffered back pain in 1974, which is evidenced by the fact he had physiotherapy for lumbar spasm at that time. I note that his initial injury occurred on the 7th January 1974. For the injury on the 7 January 1974 to be responsible for long term symptoms in his back, would necessitate a major injury that would involve a significant fracture of the lumbar spine. Such an injury would be of sufficient severity as to cause hospitalisation and inability to walk for a significant period, which is not consistent with the history presented. A lesser soft tissue injury of the lumbar spine would not conceivably cause long term degeneration, or other source of pain, that could give long term lower back symptoms.
…
The record of x-rays of the right knee in 1976 and the mention of right knee pain in 1987 does not change my opinion in relation to the cause of the applicant’s right knee condition. His diagnosis is osteoarthritis of the right knee.
…
I have read the report from Mr Slip dated 11 November 2018. This does not change my opinion in relation to the cause of the right hip, right knee and lower back conditions. The date of onset of symptoms in these areas does not change the fact that the evidence is firmly against the proposition that “favouring one leg causes damage to the other leg”. Dr Muton proffered a different opinion previously, but this opinion is not based on evidence.
…
I have not noted any further information in the T documents or summonsed material that causes me to change my opinion.
…
I do not find that the applicant’s current right hip, right knee and lower back conditions were causally related to the fall he suffered on 7 January 1974.
….
I refer to the following 2 papers on the subject.[20]
[20] See paras 105 and 106 below.
Relevant extracts from Dr Diebold’s examination-in-chief at the hearing are as follows:
Would you be able to explain to the Tribunal the nature of an antalgic gait? – An ’antalgic gait’ is painful and with an antalgic gait, what people generally do is – they call it hurrying off, the painful leg. So, they tend to have a shortened stance phase and they shorten the period of time in which they're putting the weight through the painful limb. So that was – it was clear from looking – from seeing Mr Slip walk that he was having – having pain in both legs if he tried to weight bear, and he was tending to take his weight, or hurry off his left leg more so than the right.
In your view, having examined the applicant, did he have severe Trendelenburg lurch? - No, he didn’t have a – not a Trendelenburg lurch, no.
Could you explain what a Trendelenburg lurch is? - A Trendelenburg lurch comes from hip pathology or pelvic pathology, and it occurs when the person moves their whole – because they can't – it's a bit difficult to explain. They have to lurch their whole centre of gravity away from the – away from the source – from the side, to lift the opposite leg, which means they tend to sway and lean very heavily towards the side of the leg they're putting weight on so they can lift the opposite leg.
In your view did the applicant – Mr Slip have that kind of partial or complete paralysis or a significant limb length discrepancy? ‑‑‑ No. Neither of those.
In his approach to cross examination, Mr Slip challenged Dr Dieblold’s assessment and opinions by presenting a retrospective history with an emphasis on significant lower back symptoms, dating back to 1974 to 1976. He also referred to a severe longstanding gait disturbance, which he described as a “Trendelenburg lurch”.
His questions were directed at trying to establish that his own circumstances were consistent with some of the circumstances described in Dr Harrington’s paper which “could increase stress on the normal leg”.
Dr Diebold responded as follows:
… in the summaries by both Dr Harrington and in the AMA causation guides, they – there’s two issues. One is whether there’s any evidence of a limp from one leg leading to arthritis or – in the other leg – and that certainly isn’t present and the second thing is, whether even in theory, an increase in weight – secondly, whether an increase in favouring one leg will increase the stress in the other leg at all and in theory, that is possible, but I think what Dr Harrington finds is that it would take an enormous amount of stress over a very lengthy period of time and the third thing is whether that is – actually enough to cause something like arthritis, I guess no one can say with 100 per cent certainty.
But it seems there’s some findings of these people who have looked at it in detail and the AMA guides is compiled by a large group of very senior, experienced surgeons in this area and they’ve looked through it and tried to balance the weight of the evidence and they find that although it’s theoretically possible, it’s only just so. It’s exceptionally unlikely. That basically summarises their thoughts. So, look, is it possible? It is possible and it’s almost impossible to completely disprove, but on the evidence we have, it just seems it’s just extremely unlikely.
Mr Slip also challenged the findings of the x-rays of both hips, as arranged by Dr Diebold, which he had reported as showing “only minimal early arthritis with a normal 5 millimeter joint space”. Dr Diebold confirmed that this was his own reading of the x-rays and referred to the final radiologist report which stated “there is mild degenerative change in both hips, slightly worse on the right”.
Dr Croker – rheumatologist
In a letter to Dr Kelly dated 9 May 2019, Dr Croker stated, inter alia, as follows:
Thank [sic] for referring Mr Richard Slip aged 69 years who was seen on 09/05/19.
In 1974 he suffered an injury to the left knee… he had surgery on the knee and was in plaster for three months. He returned to work five months after the accident but the knee did not improve. In 1977 he had another operation on the left knee…
After the onset of his left knee problems he developed pain involving his low back, hips and right knee He was put off work in 1987 and has not worked since then… He recently saw an orthopaedic surgeon who felt his other pains were not related to the left knee and I understand this has threatened compensation for medical expenses…
In summary he has severe osteoarthritis involving the left knee and moderately severe osteoarthritis involving the right knee...
I suspect the pain involving his low back and hips is mechanical/degenerative in origin. It is certainly possible that the chronic arthritis involving the left knee has caused abnormal mechanical strains which have contributed to his symptoms. [Emphasis added.]
In a brief note dated 14 June 2019, Dr Croker noted that Mr Slip had been in contact again concerning the Administrative Appeals Tribunal and stated as follows:
I will clarify the remarks in the second summary paragraph of my letter. On the balance of probabilities, I feel that the severe osteoarthritis of the left knee has caused abnormal mechanical strains which have contributed to the problems involving his lower back and hips. [Emphasis added.]
Relevant publications
Can ‘favouring’ one leg damage the other?[21]
Lay people, and many doctors as well, believe that pain or disability in one leg can stress the other one and produce symptoms in it. In a recent four- year period, 13 such appeals were heard by the Worker’s Compensation Appeals Tribunal of Ontario and 11 of them were allowed. In each case, the panel concluded that compensatable injury to one leg caused the patient to ‘favour’ it and that this in turn unduly stressed the other normal leg causing or accelerating arthritis in one of its joints (usually the knee). ‘Favouring’ was thought to have resulted from limping, the need to use crutches or, in one case, from a leg-length discrepancy of 1.25 cm.
We believe that there is no scientific basis for such reasoning. The mechanics of limping are poorly documented in the orthopaedic literature and we have found few references to the effect of a limp on the other leg. To clarify the position for lay adjudicators and the physicians who advise them we reviewed the mechanics of the two basic limps; paralytic and antalgic….
It may seem logical that manoeuvres designed to lessen the load on one leg increase that on the other, but there is no evidence to support this. Gait studies on patients who had a paralytic and short-leg limp from old poliomyelitis confirmed that the force transmitted in the affected leg was reduced, but that in the opposite leg it was the same as in normal individuals (Harrington 1976, 1972). The findings were similar in patients with an antalgic gait resulting from arthritis (Harrington 1983, 1992).
Paul (1969, 1970) showed that the magnitude of hip force in normal individuals varies with body-weight, stride length and walking speed and Harrington (1983) reported similar findings in patients with a limp. A person with a weak or painful leg is likely to walk less briskly than he would if had normal limbs and the forces in the unaffected limb are therefore likely to be less than those that occur in a normal person…
In the days of poliomyelitis, when limping was common, symptoms in the normal leg were seldom attributed to the limp. Amputees rarely develop arthritis in the joints of the surviving limb, despite the fact that no artificial leg can restore a normal gait.
…
In summary, there are no hard data to support the belief that ‘favouring’ one leg adversely effects the other. Such data that we have, taken with the theoretical considerations, suggest that this sequence is unlikely.
[21] Harrington IJ and Harris WR, “Can ‘favouring’ one leg damage the other?” (1994) 76-B (No 4) Journal of Bone and Joint Surgery at pp. 519-520.
Symptoms in the Opposite or Uninjured Leg[22]
In this comprehensive discussion, Dr I. J. Harrington, orthopaedic surgeon, provided a detailed description of types of limps (antalgic, paralytic, limb discrepancy) and a biomechanical analysis of pathological gait, including the “Trendelenburg lurch”. Relevant extracts from the paper are as follows:
The evidence available indicates that an injury in one extremity rarely causes a major problem in the opposite or uninjured extremity except when damage to the leg results in a major displacement of the centre of gravity of the body while walking, significant shortening of the injured limb and the abnormal gait pattern has been present for an extended period of time.
There is no clear evidence to suggest that an injury to one lower extremity would have any significant impact on the opposite uninjured limb unless the injury resulted in major muscle or nerve damage causing partial or complete paralysis of the damaged leg, and/or shortening of the injured lower extremity resulting in a limb length discrepancy of more than four or five centimetres so that the individual’s gait pattern has been altered to the extent that clinically there is an obvious lurching type gait (a significant limp). In order for this type of gait to have impact on the opposite or uninjured leg, it is likely that the abnormal gait would need to be present over an extended period of time -years. [Emphasis added.]
[22] Harrington IJ, “Symptoms in the Opposite or Uninjured Leg” (2005), Discussion Paper prepared for the Workplace Safety and Insurance Appeals Tribunal (Canada).
Extracts from AMA Guides to the Evaluation of Disease and Injury Causation (92nd Edition) 2014[23] as follows:
[23] Melhorn JM, Talmage JB, Brooks CN and Brigham CR, “Section 1: Evaluating Causation for the Opposite Upper Limb” in AMA Guides to the Evaluation of Disease and Injury Causation (92nd ed, 2014) at pp. 757-768.
Evaluating Causation of Favoring for the Opposite Limb[24]
[24] Ibid at p. 757.
The assumption that injury to 1 limb (upper or lower) can result in an overuse condition in the opposite limb is widespread but unproved. Laypeople and some physicians believe that pain or impairment in 1 limb can stress the other and produce symptoms in the uninjured. This belief has led to the concept termed favoring. The impact of these speculative concepts is pervasive in spite of quality scientific investigations suggesting otherwise. It is important that popular conceptions (beliefs) of causation be kept in line with the best available scientific evidence.
…
Evaluation Causation for the Opposite Upper Limb[25]
[25] Ibis at p. 758.
Worker’s compensation and personal injury claims often become embroiled in debates over the cause of the clinical presentation.
…
When the primary claim involves an extremity, afflicted individuals sometimes report subsequent symptoms in the contralateral, previously normal limb, and often attribute this onset to overuse while favoring the initially involved extremity. This overuse hypothesis apparently seems plausible (perhaps even intuitively obvious) to some.
However, health care professionals and scientists cannot credibly rely on superficial considerations of plausibility or intuition. A solid base in science is required instead… there are no credible studies that support such a causative relationship…
…
Evaluating Causation for the Opposite Lower Limb[26]
Causation analysis should always be based on current scientific evidence and the facts a specific case. However, certain beliefs have evolved that lack scientific basis. One unsupportable myth is that favouring 1 lower extremity will often result in injury or illness of the opposite limb.
…
Temporal sequence does not prove causation. In causation analysis one must also consider temporal proximity… whether there was an injury or exposure likely to cause the condition in question, and if there is another more probable cause for it.
…
When evaluating causation the physician must identify possible causes (occupational and nonoccupational) and the correct diagnosis or diagnoses (the effect[s]) and then assess the likelihood of a causal relationship between them.
…
In assessing causation it is imperative to base conclusions on scientific evidence and facts of the case at hand rather than relying solely on patient history or false logic such as post hoc ergo propter hoc reasoning. Hence valid causation analysis requires both familiarity with the current medical literature and careful review of pertinent claim and health care records.
[26] Talmage JB, Brooks CN and Brigham CR, “Section 2: Evaluating Causation for the Opposite Upper Limb” in AMA Guides to the Evaluation of Disease and Injury Causation (92nd ed, 2014) at pp. 769-772.
Mr Slip’s evidence
On 16 August 2018, in support of his application for reconsideration of the decision dated 30 May 2018, Mr Slip submitted 45 pages of documents.
Most of the documents were already in the s 37 documents or submitted into evidence at the hearing and have already been considered above.
Included in the documents was an introductory statement which raised some questions that were addressed by Dr Diebold in his supplementary report.
Also, included in the documents was a brief statement objecting to the written opinion of Dr Morris and an eight page statement challenging numerous aspects of Dr Diebold’s written opinion. In particular, Mr Slip provided his own lengthy analysis of the Canadian discussion paper[27] and submitted that on his understanding of the evidence, including his own self-reported history, the issues raised in the paper actually supported his claim and that “Dr Diebold is absolutely wrong re his conclusions”.
[27] As discussed above at para 106.
In a written statement dated 11 November 2018, Mr Slip did not raise any new issues which would assist the Tribunal in reaching a decision.
However, Mr Slip does emphasize, in his view, the importance of the opinions of Dr Mutton, Dr Lopes and Mr McGarrigle.
During cross-examination, Mr Slip agreed that he relies on the opinion expressed by Dr Mutton that “on the balance of probabilities his chronic limp from the left knee have been responsible for the degenerative changes” on the right side.
Mr Slip agreed that Dr Mutton had written previous letters but he “shied off writing compensation letters” and “said numerous times, “I am not a compensation doctor, I’m an orthopaedic surgeon, I fix people… I’m not much into compensation””.
Mr Slip also agreed that, after having had a discussion with review officer Mr I McGarrigle, he had written to Dr Mutton asking him to change the words in his opinion to include “on the balance of probabilities”. He stated that this was because he had understood that this to be the test Comcare had to apply.
Mr Slip told the Tribunal that he saw Dr Croker once only. However, after he had received a copy of the letter that had been written to his GP, Mr Slip had written to Dr Croker to see if he would appear at the Tribunal. When questioned by Counsel, Mr Slip conceded that in the letter he had specifically asked Dr Croker if he could provide another letter and use the phrase “on the balance of probabilities”. Mr Slip said that “he needed some support”.
Mr Slip told the Tribunal that in 1975-1977 when he had right side and back problems he was told “they’re only sympathetic support pains and once you balance up your left leg is fixed, they will all disappear”.
CONSIDERATION
The issues in this matter are quite complex in that the Tribunal is being asked to consider whether current generalised osteoarthritis is causally related to a compensable injury of the left knee suffered at work more than 45 years ago.
Mr Slip contends that his current osteoarthritis of both knees, right hip and lumbosacral spine is causally related to the injury of his left knee, that is, a tear of the left medial collateral ligament which he suffered at work in 1974. This was an injury that, at that time, was apparently successfully treated with surgical repair and postoperative rehabilitation.
There is no dispute that Mr Slip currently suffers moderate to severe osteoarthritis in both knees, mild degenerative change in both hips[28] and degenerative changes in the lumbosacral spine.
[28] On 31 May 2000 Dr Mutton noted that x-ray of the right hip showed “loss of joint space… early degenerative change” and on 27 February 2018 Dr Diebold noted “X-rays of both hips demonstrate only minimal early arthritic change with a normal 4mm joint”.
There is no dispute that following the 1974 injury there has been progressive degenerative and arthritic change in the left knee and that the moderate to severe osteoarthritis of the left knee, that which Mr Slip currently suffers, was contributed to in a material degree by his previous employment.
There is no dispute that Mr Slip currently also suffers moderate osteoarthritis of the right knee and degenerative changes in the thoracolumbar spine.
Current x-ray evidence is reported as showing that Mr Slip has mild degenerative changes in both hips. The clinical relevance or the functional impact of these findings is unclear, as there is insufficient medical evidence before the Tribunal.
The Respondent contends that the osteoarthritis in the right knee, right hip and lumbosacral spine is not causally related to Mr Slip’s previous employment.
In support of his contention, Mr Slip has created a retrospective narrative to support his belief that favouring his left leg, because of the injury to his left knee, over time has caused “excess stress and load” to the right side of his body which has caused abnormal “wear and tear” on his “right knee, right hip and lower back”. He believes that this “abnormal wear and tear” over many years, has caused osteoarthritis in his right knee, right hip and lower back.
The difficulty for Mr Slip is that the medical evidence on which he relies is, in my view, incomplete and unconvincing. On my reading of the available evidence, the opinions of the various medical practitioners that support Mr Slip’s belief rely largely on Mr Slip’s self-report of symptoms and impairment as well as intermittent radiological studies.
The various letters and reports provide only minimal clinical evaluation with no meaningful assessment of functional impairment and no recorded observation of Mr Slip’s claimed “chronic limp” and abnormal gait”.
In November 2001, Dr Lake noted that “he is limping very slightly to favour his left knee” but “was able to stand on either leg with ease”.
In February 2018, Dr Diebold observed an “antalgic gait favouring both legs, left more than right”. This observation is clearly consistent with the severity of the osteoarthritis in both knees at that time.
Furthermore, apart from Dr Diebold, no other practitioner has, in my view, provided convincing reasons or referred to any scientific or other evidence to support their opinions.
Mr Slip’s belief, with respect to his claimed secondary conditions, appears to have been enabled and enhanced by two significant decisions which, in hindsight, I believe were questionable.
The first decision was the recommendation in 1987 that, at the age of 37, he was unfit for continued employment and should be retired on the grounds of invalidity.
In August 1987, about nine years since his last previous consultation, Mr Slip was reviewed by Dr Mutton.
In his letter dated 4 August 1987, Dr Mutton noted:
… that he needs to restrict his activities to keep his symptoms under control, and if he feels that his left is symptomatic enough as a result of his activities in the abbatoir [sic] then he should find some sedentary work…
It is possible that Mr Slips’ working life may be restricted by the osteoarthritic problem in his left knee. [Emphasis added.]
Dr Mutton did not state that that Mr Slip was unfit for any employment and did not record any complaints from Mr Slip about his right knee, right hip or lower back.
In November 1987, Dr Lopes recommended that Mr Slip was unfit for continued employment and should be retired on grounds of invalidity.
On reading Dr Lopes’ two letters, as noted above, it appears his recommendation was significantly influenced by Mr Slip’s self-report that recently his “right knee joint and right hip joint have become painful, due to the fact that he is attempting to protect his left knee”.
In my view, Dr Lopes recommendation was not based on a reliable clinical assessment or supported by any other evidence and appears to have been based on Mr Slip’s own stated opinion.
At this point it is appropriate to address the issue with respect to the provisions of the 1971 Act.
I note that Dr Steffen, in a medical certificate dated 14 December 1988, stated that Mr Slip was suffering from “(L) knee & (L) shoulder pain which he stated was the consequence of recurrence of injuries at work”. There is no mention of the right knee, right hip or lower back.
Apart from Mr Slip’s self-report to Dr Lopes of recent pain in the right knee and right hip, his references to back pain in 1975-1976 and his assertions in his evidence at the hearing, there is no other convincing evidence that would support a conclusion that prior to December 1988 Mr Slip suffered a “disease” within the meaning of the 1971 Act.
Therefore, I am satisfied that the correct statutory test, for present purposes, is provided by the SRC Act.
The second decision which appears to have further enhanced Mr Slip’s belief, with respect to his claimed secondary conditions, is the decision by review officer Mr I McGarrigle in May 2004 that “Comcare is liable for the acceleration of the development of osteoarthritic changes in the lower back, right hip and right knee as sequelae of the injuries sustained on 07/01/1974”.
In the reasons for the decision, Mr McGarrigle stated that:
It is considered that the weight of medical evidence, including the opinion of the claimant’s treating orthopaedic surgeon since mid 1977, indicates that it is reasonable, indeed probable, that the claimant’s compensable left knee condition has materially contributed to the development of osteoarthritic changes in his lower back, right hip and right knee. [Emphasis added.]
It is relevant to note that, between 1978 and January 2000, that is, more than 21 years, the medical evidence before the Tribunal indicates that Dr Mutton saw Mr Slip on only one occasion in 1987.
For reasons that follow, on my reading of the evidence before the Tribunal, the decision made by Mr McGarrigle was questionable.
I note that this decision is not before the Tribunal for review. However, Mr Slip continues to rely on the medical opinions that supported that decision, in particular the opinions of Dr Mutton and Dr Aalders.
Therefore, for present purposes, it is necessary to reconsider these opinions.
In January 2000, Dr Mutton was asked to review Mr Slip in regard to “pain he is suffering from his left knee joint”. In his letter to Mr Slip’s GP, Dr Mutton noted that Mr Slip was complaining of “pain in the left knee that causes him to limp” but does not mention any complaint of symptoms in the right knee, right hip or lower back.
In May 2000, Dr Mutton was asked to review Mr Slip with regard to pain in his “right groin and right knee”.
In his letter to Mr Slip’s GP, Dr Mutton noted that Mr Slip “feels that when his left knee is painful and forces him to limp, he develops pain in his right groin and knee”.
Dr Mutton does not record any examination of the joints or any observation of Mr Slip’s gait. However, he does conclude on review of recent x-rays that he has “early osteoarthritis of his right hip joint… degenerative changes at his thoracolumbar junction” and “a loose body in the posterior inter condylar region of his right knee”.
Further, Dr Mutton does not comment on the relevance of Mr Slip’s symptoms to these x-ray changes but noted that the hip pain “eases” following treatment with oral Celebrex.
Dr Mutton also stated that Mr Slip “feels that the pain that he suffers from his right hip and right knee is secondary to the limp that he has developed as a result of the osteoarthritis in his left knee” and added “This could be the case”. [Emphasis added.]
On my reading of Dr Mutton’s letter when he stated, “This could be the case”, he was referring to Mr Slip’s complaint of intermittent pain and not the x-ray findings.
In January 2001, Dr Aalders noted that Mr Slip said that “over the last few years he has been getting right hip and knee pain that he feels is a result from favouring his right leg when walking”. Dr Aalders did not record any physical examination or observation of Mr Slip’s gait.
Dr Aalders concluded that it was:
… a reasonable hypothesis that the osteoarthritic changes in the right hip have arisen as result of preferring his right hip and taking the greater part of his body weight on the right side”. [Emphasis added.]
Dr Aalders based his hypothesis on the “natural history of arthritic change” and the assumed fact that “hip and knee joints are the main weight bearing joints of the body and the joints most commonly affected by osteoarthritic degeneration”.
Dr Aalders expertise in the subject of musculoskeletal injury is unclear and he provides no evidence to support his hypothesis. Furthermore, his observation that hip and knee joints are commonly affected by osteoarthritic change does not, in my view, assist his hypothesis. It is generally recognised that, apart from the sequelae of traumatic injury, constitutional age related degenerative change is probably is the most common causal factor in the development of osteoarthritis in lower limb joints and the lumbosacral spine.
I find that Dr Aalders opinion is unconvincing and, for present purposes, of little assistance.
In October 2003 Dr Morris expressed the opinion that Mr Slip’s problems with his right hip and right knee are due to “mild early degenerative change… as a result of constitutional factors”. He rejected the suggestion that the problems are related to his left knee. With regard to the “mild early degenerative change” seen on the lumbar spine x-ray, Dr Morris stated that he could not “postulate any link” to the left knee.
Dr Morris also challenged the belief that Mr Slip was totally incapacitated for employment.
In November 2003 Comcare preferred the opinion of Dr Morris, and determined that there was no liability to pay compensation in respect of the right knee, right hip and lower back
In January 2004 Mr Slip was seen by Dr Mutton for a second opinion. In his letter to Comcare dated 20 January 2004, Dr Mutton noted that Mr Slip:
…has difficulty walking any distance and when his left knee is painful he feels that this causes him to limp and throws his body out of place with the result that he develops pain in his low back, right hip and right knee.
Dr Mutton recorded no physical examination and no observation of Mr Slip’s gait.
Dr Mutton stated that “It is not possible to state that the pathology in Mr Slip’s left knee has resulted in the pathology in his back, hip and right knee but his work activities and his limp could have contributed to these changes”. Dr Mutton also stated that Mr Slip should be fit to carry out sedentary clerical work.
Dr Mutton’s opinion appears uncertain and it is not clear what he actually means.
In a letter to review officer Mr McGarrigle dated 19 March 2004, Mr Slip referred to a conversation held on the previous day, and stated he will write to Dr Mutton and ask if he could alter his opinion to use the word “probable”. Mr Slip expressed some doubt about Dr Mutton’s response, because “he only agreed to see me under protest as he does not normally do compo legal work so I will try”.
In a letter to Comcare dated 22 April 2004, received by Comcare on 7 May 2004, Dr Mutton wrote to Comcare and stated that he had recently spoken to Mr Slip because of his concerns that his “chronic limp” had brought about “the degenerative condition his low back, right hip and right knee”.
Dr Mutton then stated that “it would be reasonable to assume that his chronic limp from his left knee has been responsible for the degenerative changes that have developed in his low back, right hip and right knee”.
At this point, I note that Mr Slip’s concerns appeared to have moved from pain symptoms to the degenerative changes seen on x-ray.
In a letter dated 11 May 2004, Mr Slip wrote to Dr Mutton and informed him that if he could change the wording to “on the balance of probabilities his cronic [sic] limp from left knee has been responsible for the degenerative changes in the lower Back, Right hip & Right knee” the case would have a better chance of being accepted because the wording “seems basically the same but legally it must have more power”.
In a letter to Mr McGarrigle dated 22 April 2004 but received on the 19 May 2004, Dr Mutton again changed his opinion to “on the balance of probabilities his chronic limp from his left knee has been responsible for the degenerative changes that have developed in his low back, right hip and right knee”.
The above correspondence involving Mr Slip, Dr Mutton and Mr McGarrigle, in my view, raises concerns about the role of a Review Officer in influencing the opinion of a medical practitioner.
However, for present purposes, the more pressing concern is the effect of the interventions by Mr Slip on the reliability of Dr Mutton’s opinion.
I accept that it is reasonable for a patient to express their own beliefs and opinions about their symptoms and medical conditions. It is also reasonable for a treating doctor, when advocating for a patient, to refer to the patient’s beliefs and opinions.
However, I do not accept that it is appropriate for a medical practitioner to provide a professional opinion directed by a patient, particularly in order for the relevant patient to obtain a specific financial or other benefit. The privileged position a medical practitioner has, when providing an opinion, is based on an assumption that they provide an honest opinion based on their professional expertise as well as their own experience, knowledge and assessment of the relevant issues.
The difficultly in this matter is that the intervention by Mr Slip has been exposed and has succeeded in Dr Mutton changing his expressed opinion. As Mr Slip has noted in his correspondence, in the context of the assessment of causation, the change from “possible” to “probable” does have an enhanced legal effect. In my view, this means that Dr Mutton’s actual opinion is unclear, and is, therefore, diminished and may not be reliable.
Furthermore, it is clear from Mr Slip’s own evidence that Dr Mutton was reluctant to provide a “compensation opinion”. This reluctance also is also reflected in Dr Mutton’s correspondence. In his initial report dated 20 January 2004, Dr Mutton appears to rely solely on Mr Slip’s self-report of symptoms. There is no record of any physical examination, observation of gait or assessment of functional impairment. In his subsequent correspondence, Dr Mutton simply states an opinion but provides no reasons and makes no to reference to any scientific other evidence to support his opinion.
Notwithstanding the fact that Mr Slip was successful in his application for compensation in 2004, his apparent belief that a simple statement with legally relevant words is all that is necessary to succeed in such an application is, in my view, naïve.
The question of causation in compensation matters usually requires a comprehensive analysis of the relevant circumstances including a reliable history, physical examination and assessment of functional impairment. It also requires expertise in the particular disease or injury being assessed, familiarity with relevant scientific evidence and reasons to support the expressed opinion.
Therefore, opinions relying largely on patient history alone and expressed with no convincing reasons would generally be considered to be less persuasive and may be seen as unreliable.
Mr Slip also relies on the opinion of Dr Croker, and has again successfully intervened in getting him to change his written opinion from “certainly possible” to “on the balance of probabilities”.
Strangely, Dr Croker recognises that Mr Slip has “moderately severe osteoarthritis” in his right knee but restricts his opinion, with respect to contribution, to “pain involving his low back and hips”.
For the reasons above I find that the opinions expressed by Dr Mutton and Dr Croker cannot be considered to be reliable and therefore carry little weight.
Notwithstanding the various objections expressed by Mr Slip, I found the evidence of Dr Diebold to be the most persuasive. In his reports and oral evidence, Dr Diebold has provided a comprehensive assessment of the relevant issues. His reasons have been supported by his expertise and experience as an orthopaedic surgeon, as well as a consideration of the relevant scientific literature.
CONCLUSION
On consideration of the evidence before the Tribunal, it is possible to conclude that, from time to time, the sequelae of Mr Slip’s compensable injury made some contribution to his right sided symptoms. Whether, over time, there was some contribution to the evolution of the degenerative and arthritic changes seen on the various reported x-rays is uncertain.
However, on my reading of the available evidence, I am not satisfied that there is reliable medical evidence to support a conclusion that Mr Slip’s compensable injury contributed in a material degree to his current ailments, which have be described as “osteoarthritis localised multiple sites (right) and tear of medial cartilage or meniscus of knee (right)”.
Therefore, I have decided that Mr Slip’s current ailments, “Osteoarthritis localised multiple sites (right)” and “tear of medial cartilage or meniscus of knee (right); have not been contributed to in a material degree by his prior employment.
In reaching my decision, I have preferred the evidence of Dr Diebold as supported by the provided scientific literature, and have placed little weight on the opinions of Drs Mutton, Croker and Aalders.
Therefore, I am satisfied that, as at 30 May 2018, Comcare is not liable to pay compensation pursuant to s 16 of the SRC Act in respect of the cost of medical treatment for “osteoarthritis localised multiple sites (right)” and “tear of medial cartilage or meniscus of knee (right)”.
DECISION
The Tribunal finds that, as at 30 May 2018, Comcare is not liable to pay compensation pursuant to s 16 of the SRC Act, in respect of the cost of medical treatment for “osteoarthritis localised multiple site (right)” and “tear of medial cartilage or meniscus of knee (right)”.
The decision under review is affirmed.
I certify that the preceding 194 (one hundred and ninety-four) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member
..........................[sgd]..............................................
Associate
Dated: 4 December 2019
Date(s) of hearing: 10 October 2019 Applicant: In person Counsel for the Respondent: Ms S Patterson Solicitors for the Respondent: Moray & Agnew Lawyers
Key Legal Topics
Areas of Law
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Employment Law
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Negligence & Tort
Legal Concepts
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Causation
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Duty of Care
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Negligence
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Remedies
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Statutory Construction
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