Taylor and Comcare
[2003] AATA 771
•8 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 771
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2002/2
GENERAL ADMINISTRATIVE DIVISION ) Re GARY TAYLOR Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr I R Way, Member Date8 August 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgd) I R Way
Member
CATCHWORDS
WORKERS’ COMPENSATION – liability – right knee - whether the applicant’s employment contributed in a material degree to his knee condition
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
Suters v Australian Postal Corporation (1992) 28 ALD 320
REASONS FOR DECISION
8 August 2003 Mr I R Way, Member 1. This is an application by Gary Raymond Taylor for review of a decision of an Internal Review Officer, Comcare, dated 26 October 2001, which affirmed a decision dated 7 September 2001 that Mr Taylor is not entitled to compensation, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), in respect of degenerative change, medial meniscal tearing of his right knee.
2. The Tribunal had before it the document lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and other documentary evidence as follows:
§ Exhibit R1 Report of Dr Clarnette dated 19 June 2003
§ Exhibit R2 Report of Dr Clarnette dated 9 July 2003
§Exhibit R3 Report of Dr Morgan dated 29 April 2003 together with a letter from the Attorney-General’s Department to Dr Morgan dated 17 April 2003
3. The applicant was self represented and gave oral evidence by video link. Ms E Ford represented the respondent.
Background Facts
4. There is no dispute between the parties about the background facts in this matter and in view of this and on the material before it, the Tribunal makes the following findings:
(a)the applicant was born on 13 April 1947;
(b)the applicant completed an apprenticeship as a plumber in West Australia in the 1960s;
(c)the applicant was employed by the Commonwealth Government in the Northern Territory from mid 1975 to mid 1978;
(d)the applicant was subsequently employed from 1978 to 1993 by the Northern Territory Government;
(e)the applicant ceased Government employment in 1993 and then worked as a private plumbing contractor principally engaged on Government contracts; and
(f)the applicant injured his left knee in a motorbike accident on 19 July 1976 in the course of his employment with the Commonwealth Government.
5. Commonwealth liability for compensation in respect of the left knee injury was accepted in 1977 and ongoing liability for left knee injury was accepted on 27 November 2000.
6. The applicant’s left knee was completely replaced in November 2000.
7. The applicant, on 2 July 2001, lodged a compensation claim for degenerative change, medial meniscal tearing right knee.
Issues and Legislative Framework
8. The issues in this matter are whether the applicant suffers from a right knee condition as claimed and if so whether this condition was contributed to in a material degree as a result of his employment by the Commonwealth.
9. Section 4(1) of the Act relevantly defines injury and disease as follows:
“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 injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.”
10. Section 14(1) of the Act relevantly provides as follows:
“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
Applicant’s Evidence and Submissions
11. The applicant told the Tribunal that he had worked as a plumber for all of his working life and that, because of his knee conditions, he had ceased full-time employment in this capacity about two years ago. He said he had done one small job in April/May 2002 but had done no work since then.
12. It was the applicant’s evidence that pain started in his right knee in about 1999, however it now seemed to be getting a “little bit better” due to the fact that he was no longer working.
13. It was the applicant’s contention that his right knee condition had been aggravated by his favouring his injured left knee and putting more weight on his right knee over a long period of time. The applicant submitted that friends his age had no knee problems and could pursue an active lifestyle whereas he had two bad knees because of the motorbike accident in 1976..
Medical Evidence
14. Dr R Clarnette, the applicant’s treating orthopaedic surgeon, performed an arthroscopy on the applicant’s right knee on 16 October 2000, which showed progressive degenerative change and medial meniscal tearing (T9). At that stage Dr Clarnette stated that the applicant’s right knee had been worrying him over the past twelve months with a gradual onset of central and medial sided knee pain and associated swelling. Furthermore, Dr Clarnette stated:
“He has noted these symptoms have come on gradually and are aggravated by his work.” (T21)
15. In respect to the applicant’s left knee injury Dr Clarnette, on 1 November 2000, reported (T21):
“His left knee has been a problem since a quite significant motorbike accident in 1976. It was a hyperextension type injury and took him many months to get over the original accident and the knee has never been the same since. In 1982 he had an open medial menisectomy performed as he had ongoing symptoms at that time. He had an arthroscopy performed on that knee in 1985 and had some tidying up of further meniscal and chondral damage. At the present time the main complaints of his left knee are of medial sided pain and aching which is activity related, associated swelling and clicking and on occasional feeling of giving way. These symptoms are fairly static.
…
My impression was that the left side of the knee was severely arthritic with an associated posterior cruciate inefficiency. I advised him that the only surgical option was a total knee replacement.
…
I have recommended a total knee replacement for him. This involves a week in hospital and several months of rehabilitation.”
and, as indicated in the findings above, the applicant’s left knee was replaced later in November 2000.
16. In his later reports in 2003 (Exhibit R1 and Exhibit R2) Dr Clarnette opines:
“…I believe that the degenerative process and symptoms of this (right knee condition) have been aggravated by his employment.
The left knee injury was relatively severe and longstanding and he has probably had more load on the right knee over the years and this may have also aggravated the problem with his right knee.”
17. Furthermore, when asked to clarify what he meant by “employment” Dr Clarnette stated:
“The question you raise in your request is in relation to the right knee and the progressive degeneration or arthritic changes in the right knee. I have stated that the symptoms in the right knee have been aggravated by his employment. From my discussions with Mr Taylor, I was under the impression that the symptoms had come on gradually and that they were aggravated by his work as a plumber.
The onset of symptoms in the right knee were, as I understood it, in approximately 1999.
I believe most of the aggravation to the right knee condition would have occurred in his employment as a plumber and, therefore, were due to employment post 1993.”
18. Dr A F Morgan, Orthopaedic Surgeon, reviewed documents relating to this case and prepared a report based on this review (Exhibit R3). Dr Morgan makes it clear that he did not have an opportunity to examine the applicant nor had he reviewed any radiographs. The Tribunal notes the applicant’s comment that he would have been willing and able to attend at Dr Morgan’s rooms had he been asked to do so.
19. Dr Morgan expressed the view that it is possible for there to be a degenerative tear of the medial meniscus without a patient being aware at that particular time. And in this event stated:
“In that latter event (the degenerative tear) the tearing is related to the intrinsic degenerative process within the meniscus itself. This is usually associated with degenerative changes within that compartment of the joint. Age is often a precipitating factor. Mr Taylor was born in April of 1947. He provided a history of twelve months symptomatology referable to the right knee in his consultation with Dr Clarnette in September of 1999. He would have been 52 years of age at the time. It is possible that some naturally occurring degenerative disease existed within the joint at that stage.”
Whilst it is theoretically possible that he may have been applying some additional load to his right lower limb whilst protecting his diseased left knee joint that additional load would not have been great. Instead, it is more likely that the degenerative tear is a result of some underlying constitutional degenerative process, aggravated by his advancing age, his body weight and the work practices required of him as a plumber. Social and recreational factors should also be taken into account.”
The Tribunal notes that Dr Clarnette agrees with this opinion of Dr Morgan.
20. Dr J Pevie, the applicant’s treating GP since 1983, reported on 25 November 2001 as follows (T17):
“A careful search of my case notes reveal that at no time has he ever specifically complained of his right knee. He can not offer any history of trauma. However, it is more likely that his good knee since the 1976 accident was ‘the better knee’ and may well have been ignored because of the painful left one. Dr Clarnette performed an arthroscopic right medial menisectomy on 20 October 2000 but was unable to state exactly when the damage took place, but I am of the opinion that the 1976 accident was the most likely traumatic event for the torn meniscus (which would not heal by itself). Furthermore I consider that the osteoarthritic wear and tear on the right knee would, at least in part, have been exacerbated by 25 years of limping on the left side.”
Respondent’s Submissions
21. It was submitted that the respondent is not liable to pay compensation to the applicant there being no evidence to support a contention that features of the applicant’s employment with the Commonwealth did in fact and in truth contribute to the applicant’s right knee condition. This condition, it was submitted, had been caused by age-related degeneration, aggravated by his recent employment as a plumber.
22. In so submitting the Tribunal was referred to Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 in respect of the use of the word “material” for the purposes of the Compensation (Commonwealth Government Employees) Act 1971.
Consideration
23. The medical evidence before the Tribunal clearly shows that the applicant suffers from degenerative change, medial meniscal tearing, right knee, and the Tribunal so finds.
24. The question then is whether the applicant’s right knee condition is an injury within the meaning of that term as defined in section 4(1) of the Act and as set out above.
25. There has been no contention by the applicant that he suffered a trauma to his right knee in the course of his employment with the Commonwealth, or at any other time. This matter is being contested on the grounds that his accepted work related left knee disability has aggravated his right knee condition and therefore his right knee condition has been contributed to in a material degree by his employment with the Commonwealth.
26. In considering this matter what the Full Court of the Federal Court said in Treloar (supra) is relevant, namely:
“The use of the word ‘material’ in conjunction with the words ‘contributing factor’ in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.” (at 323)
27. In Suters v Australian Postal Corporation (1992) 28 ALD 320, His Honour Justice Ryan commented:
“Although it is true that Treloar’s case was expressly limited to a consideration of the 1971 Act, in which the word ‘material’ did not appear, the case none the less contains a valuable exposition of the meaning of that word to which courts and tribunals are entitled to have regard when considering legislation containing it.” (at 331)
28. In this case the Tribunal prefers the opinions of the two orthopaedic specialists (firstly the applicant’s treating specialist Dr Clarnette, and secondly Dr Morgan) to that of the applicant’s GP in respect of the question of the cause of the applicant’s torn meniscus and the progressive degenerative arthritic changes in his right knee.
29. Both orthopaedic surgeons agree and the Tribunal accepts that the tear in the applicant’s right miniscus is a degenerative tear. Furthermore, there is agreement between the orthopaedic specialists, and the Tribunal accepts, that the degenerative changes within the applicant’s right knee result from an underlying constitutional degenerative process (aggravated by his age, his body weight and his work practices).
30. Dr Clarnette opined in his report of 19 June 2003 that the left knee injury may “have also aggravated the problem with his right knee” (Exhibit R1). However, in a subsequent report (Exhibit R2) Dr Clarnette expressed the opinion that “most of the aggravation to the right knee condition would have occurred in his employment as a plumber and, therefore, were due to employment post 1993”. In expressing this opinion Dr Clarnette notes that the applicant told him that the onset of symptoms in his right knee was in 1999, that the symptoms came on gradually and were aggravated by his work as a plumber. Dr Morgan, while accepting that there may be some additional load on the applicant’s right knee as a result of his protecting his diseased left knee, expressed the opinion that any such additional load would not have been great and that, as stated above, the applicant’s knee condition was more likely as a result of degenerative process, aggravated by age, body weight and work practices.
31. The Tribunal is mindful that both orthopaedic surgeons have agreed that the applicant’s left knee condition may have aggravated the problems with his right knee. However, following the approach taken in Treloar, any causal connection between the left knee disease and the right knee condition must be established on the probabilities and not left in the area of possibility or conjecture.
32. In this case, on balance, the Tribunal is satisfied, after consideration of all of the material before it, that the applicant’s right knee condition was not contributed to in a material degree by his employment with the Commonwealth.
33. In arriving at this conclusion the Tribunal has taken into account the fact that Dr Morgan, in forming his opinion, had not had the opportunity to examine the applicant. The Tribunal has also accepted and taken into account Dr Morgan’s view that at the time the applicant first complained of symptoms in his right knee, he was of an age when it was possible that some naturally occurring degenerative disease existed within the joint, at that stage. As such, the Tribunal has not accepted the applicant’s submission that because his friends of his same age as himself have no knee problems his knee problems must, in some way, be causally related to his motorbike accident in 1976.
34. It follows from the reasons given above that the Tribunal finds that the applicant’s right knee condition is not an injury as defined by section 4(1) of the Act.
35. The Tribunal therefore affirms the decision under review.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: Sarah Oliver
AssociateDate of Hearing 29 July 2003
Date of Decision 8 August 2003The Applicant appeared in person by video link
Counsel for the Respondent Ms E Ford
Solicitor for the Respondent Australian Government Solicitor
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