Tikoalu-Thorogood and Commonwealth Bank of Australia (Compensation)

Tikoalu-Thorogood and Commonwealth Bank of Australia (Compensation) [2015] AATA 840 (30 October 2015)

Division

GENERAL DIVISION

File Number(s)

2014/4346

Re

Justina Tikoalu-Thorogood

APPLICANT

And

Commonwealth Bank of Australia

RESPONDENT

DECISION

Tribunal
Senior Member J F Toohey
Dr Saw Hooi Toh, Member

Date 30 October 2015

Place Sydney
The Tribunal sets aside the decision under review and substitutes for it the decision that the respondent is liable to compensate Ms Tikoalu-Thorogood for aggravations of osteoarthritis sustained on 8 January 2013 and 22 October 2013.

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Senior Member J F Toohey
CATCHWORDS – compensation – knee injury – soft tissue – osteoarthritis – whether applicant suffered acute aggravation of osteoarthritis – whether acute aggravation of osteoarthritis a disease – whether employment contributed to a significant degree – whether applicant continues to suffer effects of injury – whether injury resulted in need for medical treatment – total knee replacement – decision under review set aside
Legislation
Safety Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14
REASONS FOR DECISION
Senior Member J F Toohey
Dr Saw Hooi Toh, Member
Background

Justina Tikoalu-Thorogood has been a part-time customer service representative with the Commonwealth Bank of Australia (the respondent) since May 2010. She is 48 years old. When she was 16, she underwent an above right knee amputation for osteosarcoma. She prefers to rely on a crutch for support, rather than use a prosthesis.
Ms Tikoalu-Thorogood claims compensation under the Safety Rehabilitation and Compensation Act 1988 (the Act) for injuries to her left knee as a result of a fall at work on 8 January 2013 and an incident involving the onset of painful symptoms on 18 October 2013.
Ms Tikoalu-Thorogood’s claim for compensation
On 21 November 2013, Ms Tikoalu-Thorogood claimed compensation for “aggravated old injury soft tissue injury to left knee”. She indicated on the claim form that she had a similar injury on 22 August 2001 for which she had claimed compensation. It is apparent from the claim form that the “old injury” was the soft tissue injury in 2001.
Ms Tikoalu-Thorogood identified the date when she first noticed her injury as 8 January 2013. In response to a question on the form as to when she first sought medical treatment for her injury, she indicated she saw her general practitioner, Dr Ian Cameron, on 22 October 2013. (Dr Cameron’s report indicates it was on 21 October 2013 but nothing turns on this). She described the “action, exposure or event” that caused her injury as follows:
Slipped on floor (kitchen)
Standing in one spot at huddle had to sit down turn around to sit (sic).
There is no dispute that, on 8 January 2013, Ms Tikoalu-Thorogood fell at work when her crutch slipped on a magnet that had been left on the kitchen floor. There is also no dispute that an incident occurred on 18 October 2013 during a morning “huddle” meeting when Ms Tikoalu-Thorogood complained of knee pain while standing and had to sit down, although exactly what happened and in what sequence is the subject of some dispute.
Ms Tikoalu-Thorogood has continued in her employment with the respondent, performing modified duties, since the “huddle” incident in October 2013. She has had minimal time off work and minimal medical expenses. However, her treating orthopaedic surgeon, Dr George Kirsh, recommends she undergo a left knee replacement. Dr Neil McGill and Dr James Bodel, both of whom gave evidence before the Tribunal, agree with that recommendation although Dr McGill would be inclined to defer surgery for a time.
In practical terms, this matter concerns liability for the cost of the knee replacement.
The reviewable decision
Ms Tikoalu-Thorogood did not seek medical attention after the fall on 8 January 2013. Her evidence about this is discussed below. On 22 October 2013, she saw Dr Cameron who completed a WorkCover NSW certificate of capacity. He diagnosed “soft-tissue injury to left knee” on 8 January 2013. He did not refer specifically to the incident on 18 October 2013 but noted “worse 2 days”.
On 9 December 2013, the respondent accepted liability for “soft tissue injury to the left knee” resulting from “a fall in the workplace on 8 January 2013”. This description of Ms Tikoalu-Thorogood’s injury appears to be based on Dr Cameron’s certificate.
On 19 December 2013 and 23 January 2014, Dr Cameron completed further WorkCover NSW certificates of capacity diagnosing “acute aggravation of osteoarthritis left knee” from an injury on 8 January 2013. He did not specifically refer to an incident in October 2013.
For reasons that are not clear, the respondent treated the certificate dated 19 December 2013 as a new claim for “acute aggravation of osteoarthritis left knee”.
On 20 March 2014, Ms Tikoalu-Thorogood saw Dr Neil McGill, rheumatologist, for assessment. Dr McGill took a history of both incidents. He diagnosed severe osteoarthritis in her left knee “secondary to dependency on the left lower limb because of her right lower limb amputation with possible aggravation from the events that occurred in 2001”.
On 28 March 2014, the respondent wrote to Ms Tikoalu-Thorogood referring to its acceptance of liability for the soft tissue injury, and denying liability for “acute aggravation of osteoarthritis of the left knee” allegedly sustained on 8 January 2013. The Notice of Determination referred to Ms Tikoalu-Thorogood’s claim on 21 November 2013 for compensation for an injury to the left knee “alleged to have been sustained on 8 January 2013 with a further alleged incident on 16 (sic) October 2013”.
On 26 June 2014, the respondent made the reviewable decision which is the subject of these proceedings. The Notice of Determination acknowledged the claim was in respect of two incidents in the workplace, being the fall in January 2013 and the “huddle” incident in October 2013. It affirmed the original decision to deny liability for “aggravation of osteoarthritis”.
Although Dr Cameron’s diagnosis apparently varied between the certificates on 9 December 2013 and 19 December 2013, it is clear that Ms Tikoalu-Thorogood’s claim was for an aggravation of her “old injury” in 2001 as a result of the incidents at work in January 2013 and October 2013. It is clear that the reviewable decision dealt with her claim as such.
The 2001 injury
From 1985 to 2010, Ms Tikoalu-Thorogood was employed as a pharmacy assistant. She had a number of falls in that time but none appears to have affected her ability to continue in her full-time employment. She recalls no symptoms in her left knee before 2001.
In August 2001, Ms Tikoalu-Thorogood fell while working in a pharmacy. Her claim for workers compensation was accepted. On another occasion she fell at work, and another time her knee “popped” when she was bending and turning while restocking shelves.
In September 2001, Dr Neville Rowden, orthopaedic surgeon, performed an arthroscopy on Ms Tikoalu-Thorogood’s left knee. X-rays showed “[m]inimal degenerative changes”. Findings of the arthroscopy were Grade 3 changes in the patellofemoral joint, Grade 2 changes in the medial compartment, and subluxing patella. One week later Dr Rowden noted Ms Tikoalu-Thorogood’s progress was slow and recommended physiotherapy. At a six-week review, he noted she was improving, she had “a little swelling after prolonged standing” and her quadriceps were still weak. He recommended Celebrex and further physiotherapy.
X-rays of Ms Tikoalu-Thorogood’s left knee in October 2013 showed advanced osteoarthritis. What role, if any, the falls in 2001 played in the progression of the osteoarthritis is not clear. Dr Kirsh believes it stems from the 2001 fall. Dr James Bodel, orthopaedic surgeon, who saw Ms Tikoalu-Thorogood for assessment in September 2014, also thought it started with the fall in 2001. Dr McGill reported that Ms Tikoalu-Thorogood’s recollection of events and the lack of documentation prevented him from making a “reasonable determination as to whether the incidents in 2001 caused a temporary aggravation of symptoms or are likely to have caused long term change in the progression of her knee osteoarthritis”. Their evidence is considered further below.
The period 2001 to January 2013
Ms Tikoalu-Thorogood gave evidence that she experienced “terrible pain” for the year and a half after the arthroscopy, and stiffness in her left knee for which she had physiotherapy, and she took medication but otherwise her left knee was “relatively asymptomatic” following the 2001 injury by which she meant it was “not troublesome” like it is now.
Ms Tikoalu-Thorogood has not regained full movement in her knee since and cannot bend it back “like a normal person” but she got on with her life. She had pain from time to time and, in June 2012, caught her foot in a laundry basket (see below) but she does not recall ever feeling pain like she did after the incident at work on 18 October 2013. (There was also the October 2009 incident when she dropped a can of tomatoes on her foot).
Ms Tikoalu-Thorogood says, and we accept, that she led a relatively active life, including swimming most days, fishing on weekends, and doing usual household chores, until October 2013. Most years she went on holidays, to the Gold Coast or overseas, with her family.
The respondent disputes Ms Tikoalu-Thorogood’s claim that she was relatively pain-free from around mid-2003 until 2013. The respondent contends her doctors’ records show a different history.
In July 2003, Ms Tikoalu-Thorogood’s then general practitioner, Dr Cheung, recorded that she was in “constant pain still”. He referred her for an x-ray which showed “medial compartment osteoarthritis” of the left knee. In August 2003, a doctor at the same practice recorded that she had good results with physiotherapy and she had full range of movement. In September 2003, however, she saw a cardiologist who noted “[c]urrently she has significant pain in her left knee” and was using “occasional Celebrex for osteoarthritis”.
In July 2006, Ms Tikoalu-Thorogood saw her then general practitioner, Dr Suzanne Sebeih. She recorded the reason for the visit as “osteoarthritis”. She recorded Ms Tikoalu-Thorogood had “been on Panadol for a while for the pain, would like to try Panadol Osteo”.
In October 2006, Dr Amgad Roman suggested a trial of the painkiller Mobic. The reason is not stated in his notes. The respondent contends that the stated reason for Ms Tikoalu-Thorogood’s visit on that occasion would not have required painkilling medication, and a reasonable inference is that her left knee was causing pain.
Between October 2006 and October 2009, Ms Tikoalu-Thorogood saw her doctor five times and was prescribed medications including Brufen, Panadol Osteo, Celebrex and Osteoeze.
In October 2009, Ms Tikoalu-Thorogood saw Dr Tam Pham after dropping a can of tomatoes on her left foot. She maintains that, while it caused pain in her foot, it did not cause pain in her left knee. However, Dr Pham noted “[osteoarthritis left] knee. Pain ++”. He noted “long discussion re meds” and prescribed Tramal in place of Celebrex. The respondent submits that the clear implication is that medications were prescribed for Ms Tikoalu-Thorogood’s osteoarthritis rather than for any injury associated with dropping the can on her foot.
Ms Tikoalu-Thorogood started working for the respondent in May 2010. She was employed for 23 hours a week over five days. Apart from a period of approximately four weeks following the October 2013 incident when her hours were reduced to 20 per week, she has continued to work her pre-injury hours. Up until October 2013, she carried out her normal duties using one crutch.
No further visits for complaints related to Ms Tikoalu-Thorogood’s knee were recorded until June 2012 when she saw Dr Sherif Francis after pulling her knee back when she tangled her foot in a washing basket at home. Ms Tikoalu-Thorogood maintains she hurt her hamstring but not her knee. Dr Francis certified her unfit for two days and referred her to Dr Kirsh for “pain [left] knee after falling”. Ms Tikoalu-Thorogood did not see Dr Kirsh at that time and says she has no recollection of the referral.
Ms Tikoalu-Thorogood gave evidence that, although she was prescribed Celebrex on a number of occasions, she did not always fill the prescription or did not always use the medication herself. She produced to the Tribunal one unfilled prescription and said she had other prescriptions filled to take to her mother in Indonesia who had suffered an injury. She said she also used painkilling medication for dysmenorrhea, headaches and phantom pains. There is no reference in the clinical notes to Ms Tikoalu-Thorogood complaining of phantom pains although it would not have been surprising if she had; there is no reference in the notes to her complaining of dysmenorrhea.
In our view, the clinical history indicates a greater level of pain in her left knee from time to time than Ms Tikoalu-Thorogood recalled, or was willing to concede, before the Tribunal. However, we found her to be generally open and frank in her oral evidence; she did not appear to exaggerate. Even Dr McGill, who commented in his report of 20 March 2014 on the discrepancy between her report of only mild symptoms up until 2013, and the clinical notes indicating repeated prescriptions for painkillers, found her to be a “clear historian” and did not suggest that she was exaggerating.
Despite the inconsistencies between Ms Tikoalu-Thorogood’s account and the clinical records, we are not persuaded that they seriously undermine her credibility. She struck us as a fairly stoic person who does her best to get on with things despite her disability, which may go some way to explaining the history she gave in evidence. In any event, there is no evidence to suggest that she was unable at any time to carry out her duties, or that she required time off work, or that she was unable to carry out her normal activities including daily swimming, on account of the osteoarthritis in her left knee. We are satisfied that she had episodes of pain which were sometimes severe but that she was relatively pain-free from around mid-2003 until January 2013.
8 January 2013
On 8 January 2013, Ms Tikoalu-Thorogood slipped on a small button magnet that had been left on the floor at work. She landed on her knee, causing extensive bruising which can be seen in photographs taken at the time. There is no dispute that she suffered a soft tissue injury to her left knee that resulted in pain, swelling and bruising.
On 9 January 2013, Ms Tikoalu-Thorogood completed an Incident Report Form which was signed by her supervisor, the branch manager Ligaya Pulmano. Ms Tikoalu-Thorogood claims Ms Pulmano “started yelling” at her when she asked for an incident report form; she said there was “no such thing” and the fall was her own fault. She claims Ms Pulmano said words to the effect of was she “one of those trouble-makers”.
Although in her written statement, Ms Tikoalu-Thorogood said she complained to Ms Pulmano regularly over the months, in her oral evidence she said she complained on two or three occasions to Ms Pulmano about the pain but she was unsympathetic and ignored her. She says she did not want to complain more because Ms Pulmano’s reaction made her fearful of losing her job.
On 15 January 2013, Ms Tikoalu-Thorogood spoke to Kathy Boutros, a workers compensation case manager, who recorded that Ms Tikoalu-Thorogood had applied ice to her knee and the swelling had reduced; she had had no time off work and had not sought medical attention; she wanted to wait and see if her knee improved and would only seek medical attention if it worsened. Ms Boutros recorded that she advised Ms Tikoalu-Thorogood she could be given forms in the future if she decided to claim compensation but, in the meantime, she would not take any further “management action”. Ms Tikoalu-Thorogood agrees Ms Boutros’ notes accurately reflect their conversation.
Most of Ms Tikoalu-Thorogood’s duties were carried out while sitting down, serving customers. She had no time off work following her fall. She continued to carry out her normal duties, although she says, and we accept, that she found taking bags of coins from a cabinet close to floor level and carrying them to a trolley several times each day caused her pain that she had not previously experienced.
Clinical records show Ms Tikoalu-Thorogood saw her doctor once between 15 January 2013 and 18 October 2013, for an unrelated complaint. She did not seek medical attention for her painful knee until after the second incident.
Ms Tikoalu-Thorogood gave evidence that her knee remained painful throughout that period and she felt like it was “losing its strength”. She would put ice on it at the end of each day and elevate her leg, and she took Nurofen or Panadol as needed. She says she complained regularly to a colleague (who was not called to give evidence) but she was worried she could lose her job if she complained too much to Ms Pulmano.
Towards the end of February 2013, Ms Tikoalu-Thorogood and her husband took a holiday in Hawaii. She gave evidence, which he supported and which we accept, that she needed a wheelchair to get around sightseeing because her knee made it painful to walk any distance. The respondent submits that, in light of the other evidence, it is reasonable to conclude her use of a wheelchair was a preference rather than a necessity.
18 October 2013
On Friday, 18 October 2013, Ms Tikoalu-Thorogood attended a team meeting which took the form of a “huddle” at which staff stood around a white board with their manager. Present with her were Ms Pulmano and another colleague.
Ms Tikoalu-Thorogood’s account of what happened during the huddle has varied. In her written statement, she said that, after about 15 minutes, her knee was hurting and she “yell[ed] I had to sit down and as I turned around to sit I felt my knee pop”. She sat down and felt her knee hurting. She finished her shift “with difficulty” but did not have any immediate treatment for the pain but went home and rested.
Giving oral evidence, Ms Tikoalu-Thorogood said she had been standing for a while when she started to feel discomfort and her knee started shaking “like it’s not stable”. She thought she had to sit down and turned around; as she did so, she could feel her knee “like a click, like a pop”. It was the same feeling as her 2001 injury. She did not feel pain until she sat down and then she felt a nagging pain; the last time she felt such pain was when she had the arthroscopy. She did not say anything to Ms Pulmano and was able to continue working for the rest of the day because her job is mainly sitting down.
The following Sunday, Ms Tikoalu-Thorogood attended a colleague’s wedding. Her knee was painful and she had to take off her shoe and go barefoot. By Monday her knee was hurting “quite significantly”. She felt sick and by the end of her shift was “really in trouble”; she went home, rested and slept.
On Tuesday, 22 October 2013, Ms Tikoalu-Thorogood could not stand when she tried to get out of bed. She went to see Dr Cameron and her husband telephoned Ms Pulmano. An x-ray of her left knee showed “well marked [osteoarthritic] change” but no signs of any traumatic lesion or a previous fracture. Dr Cameron wrote the certificate confirming a soft tissue injury on 8 January 2013. Ms Tikoalu-Thorogood claims she called Ms Pulmano after seeing Dr Cameron and she was again unsympathetic and questioned why Mr Thorogood had rung in instead of her.
Over the course of the next two to three months, Dr Cameron certified Ms Tikoalu-Thorogood fit for suitable duties, initially on reduced hours and, by January 2014, on her pre-injury hours. His clinical notes refer to the 2001 injury and the fall in January 2013 but not specifically to the “huddle” incident, although his notes for 22 October 2013 show “worse 2 days” which suggests reference to it. Ms Tikoalu-Thorogood gave evidence that she believes she did tell Dr Cameron about the incident because that was the reason she went to see him. We think it probable that she did. It is clear from a needs assessment undertaken by a rehabilitation provider on 30 October 2013, and from a report from Dr Kirsh who saw her on 6 November 2013, that Ms Tikoalu-Thorogood complained to them of symptoms following both incidents.

On 21 November 2013, Ms Tikoalu-Thorogood lodged her claim for compensation. On 9 December 2013, the respondent accepted liability for a soft tissue injury (see above).
After a brief period on reduced hours, Ms Tikoalu-Thorogood has worked her full hours but on restricted duties since the incident in October 2013. There is no dispute that she can no longer lift bags of coins which she used to do two or three times each day and she remains on restricted duties. We accept that she cannot work at the same level as previously and that she has an incapacity for work within the meaning of the Act.
Ms Pulmano’s evidence
Ms Pulmano has been the manager of Ms Tikoalu-Thorogood’s branch since July 2012. She disputes Ms Tikoalu-Thorogood’s version of what happened immediately following her fall in January 2013. She agrees she told Ms Tikoalu-Thorogood there was no book to report incidents, and a report should be made online but she believes one of the other tellers showed Ms Tikoalu-Thorogood how to complete it. She recalls Ms Tikoalu-Thorogood complaining of pain in her knee on the day of the fall and the next day but that was “pretty much” it. She denies ignoring her complaints of pain and being unsympathetic. She denies suggesting she was a trouble-maker.
Ms Pulmano gave evidence that, except for a day or two after the fall, she did not observe Ms Tikoalu-Thorogood having any difficulty performing her duties. She acknowledged that she spent several hours each day in her office where she had limited opportunity to observe other staff but said she could observe them, including Ms Tikoalu-Thorogood, at other times. That said, she acknowledged that her observations of her were “limited”.
Ms Pulmano’s oral evidence as to how she responded to Ms Tikoalu-Thorogood’s fall suggested to us that she was rather less than sympathetic. She agreed, for instance, that she did not ask if her knee hurt because another staff member had already told her about the fall; she did not inquire whether Ms Tikoalu-Thorogood needed to see a doctor or go to hospital; she was a “bit frustrated” at someone having left a magnet on the floor and returned to serving the customer she had left. Ms Pulmano should have asked Ms Tikoalu-Thorogood more about her injury. She did not ask her the next day whether she was still in pain. She “heard a conversation” to the effect that Ms Tikoalu-Thorogood had used a wheelchair while on holiday in Hawaii but she did not inquire further.
As she recalled the incident in October 2013, Ms Pulmano said she was present during the “huddle”. She gave evidence that Ms Tikoalu-Thorogood said words to the effect that her knee was sore and she needed to sit down. Ms Pulmano saw she was in pain. She continued the meeting and did not ask Ms Tikoalu-Thorogood how her knee was when the meeting was over. As she recalled, Ms Tikoalu-Thorogood carried out her normal duties for the rest of the day but she noticed she was in pain when she was leaving at the end of the day.
Ms Pulmano might have been less sympathetic than some managers, and we accept that Ms Tikoalu-Thorogood might have felt reluctant to let on how much pain she was in for fear of losing her job, but her own evidence is that she managed her duties without a great deal of pain or difficulty between January and October 2013.
Mr Thorogood’s evidence
Ms Tikoalu-Thorogood’s husband, David Thorogood, provided a written statement and gave oral evidence. He says that, following the arthroscopy in 2001, she was “pretty much able to go back to the way she had been before the surgery in terms of her life style and activities”. He does not recall her complaining of pain in her left knee before January 2013. He thought she might have experienced some pain or swelling from time to time but he did not recall it in particular; if she did, it was not like it was after the fall; she was able to walk a reasonable distance, and she could stay upright, without any trouble.
Mr Thorogood confirmed Ms Tikoalu-Thorogood’s account of having to use a wheelchair in Hawaii in February 2013 and said she took another trip there this year with their daughter and had to hire a mobility scooter for the whole time she was away.
Mr Thorogood describes Ms Tikoalu-Thorogood as “very persevering” and independent. Up until 2013, her only physical restriction was that she could not do “cardio workouts”. Since then, he says, there has been “a clear difference”: she complains of pain and her leg swells up; she has to sit in front of the oven when cooking; if they cannot find a parking bay close to where they are going she has to use a wheelchair and a second crutch; they keep a wheelchair in the car and she uses it if they have to go any distance; she can only use one crutch for short distances and needs two for anything longer; she “probably uses ice for swelling on her left knee about once a month”. She is unable to shower standing up and has to sit on the floor. He now does all the shopping and housework.
Mr Thorogood impressed us as a truthful person and we accept his evidence. That he only recalls seeing Ms Tikoalu-Thorogood putting ice on her knee “about once a month” after January 2013 is at odds with her evidence that she did so daily. We think it probable that it was not as much as she claims. That finding would be consistent with her written statement that, before her injury on 18 October 2013, she was “able to easily mobilise” and she had no difficulty with her pre-injury duties.
That said, we accept that Ms Tikoalu-Thorogood’s left knee became more painful after the fall on 8 January 2013. We accept that she had some difficulty carrying bags of coins but, otherwise, she was able to carry out her normal full-time duties and she saw no reason to see her doctor. We accept that, given her disability, she may have been apprehensive about making too much of her injury but, in any event, the evidence is there was not a lot to make anything of.
Dr Bodel’s evidence
Dr Bodel, saw Ms Tikoalu-Thorogood for assessment on 28 August 2014. He has provided written reports and gave oral evidence.
The history that Dr Bodel took of the incident in October 2013 was different from that taken by others and from that given in evidence by Ms Tikoalu-Thorogood. He understood that she was in the ‘huddle” when she got up; as she did so “she turned and her knee ‘popped’ and that caused her to collapse on the floor”. Based on this, he reported that it appeared “the patella transiently subluxed”.
Giving oral evidence, Dr Bodel said that, if Ms Tikoalu-Thorogood had not fallen as he had understood, his opinion would only change insofar as the patella may or may not have “transiently subluxed”. However, he remained of the view, given her history, that the events at work in 2013 caused an aggravation of the arthritic process in her left knee.
Based on the fact that Ms Tikoalu-Thorogood did not seek treatment after the fall in January 2013, Dr Bodel believes the incident in October 2013 was the more clinically significant. In his view “it sounded like an aggravation to an arthritic knee”. Although there probably was not something structural that caused a change in the pathology, that did not mean it was not aggravating temporarily the long-standing pathology in her knee. He thought, if it was temporary, that it should settle down but it did not. He acknowledged he relied on the history given to him by Ms Tikoalu-Thorogood.
Dr Bodel agrees with Dr Kirsh and Dr McGill that Ms Tikoalu-Thorogood will “eventually” need a knee replacement. He agrees with Dr Kirsh that the need for the knee replacement arises primarily from the longstanding degenerative condition which started with the injury in 2001. In his opinion, the mechanisms of injury of both incidents at work in 2013 have caused “an aggravation, acceleration, exacerbation and deterioration of the underlying disease process, which is the arthritic change in the left knee”.
Dr McGill’s evidence
Dr McGill saw Ms Tikoalu-Thorogood for assessment on 20 March 2014. He has provided a written report and gave oral evidence.
Dr McGill diagnosed Ms Tikoalu-Thorogood as suffering severe left knee osteoarthritis secondary to dependency on her left lower limb following the amputation of her right. He took a history from her that her left knee gradually improved after the arthroscopy in 2001; it never returned to how it had been previously but she stopped taking medication and “returned to her normal life including driving and shopping”. He could not determine from the information available to him whether the 2001 fall had caused a temporary aggravation of Ms Tikoalu-Thorogood’s symptoms or had caused a long term change in the progression of her osteoarthritis.
Dr McGill considered the clinical records indicating that Ms Tikoalu-Thorogood was regularly prescribed painkillers at odds with her report of only mild symptoms up until the fall in January 2013, and he noted that in June 2012 her symptoms were sufficiently severe for her doctor to refer her to Dr Kirsh. (He gave evidence, however, that he was not aware of the incident around that time when she fell after tangling her leg in a laundry basket. Clinical notes show Dr Sherif Francis referred her to Dr Kirsh on 18 June 2012 for a painful knee “after falling”. It is not clear that she actually saw Dr Kirsh before November 2013).
Dr McGill agreed that, despite her osteoarthritic knee, up until 2013 Ms Tikoalu-Thorogood “was obviously pushing on and functioning remarkably well”.
In Dr McGill’s opinion, the fall in January 2013 produced soft tissue bruising and swelling and “is likely to have made the osteoarthritic changes in her knee more symptomatic for a few weeks” but “it did not have any more prolonged effect”. He based his opinion on the advanced osteoarthritis already present in 2001, her report of symptoms over the years since, and the nature of her fall which was “the sort of injury that you would expect to make an osteoarthritic knee sore for days, or … probably for two or three weeks … [and not] likely to change the underlying osteoarthritic process.” Although he did not take a history that she used a wheelchair in Hawaii, he said it would not surprise him.
Ms Tikoalu-Thorogood told Dr McGill that, after the fall in January 2013, the bruise resolved but she “continued to be aware of clicking in the knee and some nagging discomfort”. He took a history to the effect that, during the “huddle” in October 2013, her knee became progressively sore while standing for 15 to 20 minutes, she had to sit down and, as she turned to do so, she felt a “click in the knee”; at the wedding the following Sunday, it was so painful she had to remove her high heeled shoe and sit throughout the ceremony.
In Dr McGill’s view, “the work contribution in October 2013 is likely to have been very minor but her duties may have increased her symptoms for a few days”. He gave evidence that standing on an osteoarthritic knee can cause pain that would usually settle within two or three days. He said a “click” or “pop” in an osteoarthritic knee is common and not in his view significant. There was no event “capable of changing the structure of her knee”.
Dr McGill noted that the x-rays of Ms Tikoalu-Thorogood’s left knee in October 2013 showed “advanced osteoarthritis in all three compartments with a bone on bone appearance in the medial compartment”. He agrees with Dr Kirsh and Dr Bodel that a knee replacement is “the appropriate intervention”. However, he considers the need for surgery reflects her slowly progressive osteoarthritis and is unrelated to either incident in 2013. Given the level of her symptoms, he does not think it sensible to proceed with surgery now but he acknowledges the very personal nature of such a decision and the need to give “high priority” to a patient’s wishes.
Dr Kirsh’s reports
Ms Tikoalu-Thorogood first saw Dr Kirsh on 6 November 2013. On 29 January 2014 he reportedto Dr Cameron that her knee was “feeling unstable”, she could not stand even doing cooking, and “simple activities of daily living give her trouble”. He recommended a knee replacement.
On 6 February 2014, Dr Kirsh reported that Ms Tikoalu-Thorogood had osteoarthritis stemming from the 2001 injury. He considered it was aggravated by the fall in January 2013 and there was “some aggravation” from “the accident… at the bank 3 months ago” (by which he appears to mean the October 2013 injury). He reported that “her medical presentation now is due to aggravation of her knee osteoarthritis and that continues”. He noted that Dr Cameron had diagnosed her with soft tissue injury but had changed the certificate as he (Dr Kirsh) had said it was an “acute aggravation of osteoarthritis of the left knee” that was caused by the 2001 incident and aggravated “by the second”. Dr Kirsh provided a report in similar terms on 3 September 2014.
In a further report dated 6 August 2015, Dr Kirsh said he had reviewed the general practitioner’s clinical notes but his opinion about “the significance of events in 2013” was unchanged, that Ms Tikoalu-Thorogood “developed post traumatic osteoarthritis following her 2001 injury and she had minor flares of the osteoarthritis which settled and then after the injury in 2013 the knee did not settle”.
Although Dr Kirsh’s reports refer to two incidents in 2013, the significance of one or the other is not clear from his reports. He appears to attribute more significance to the January 2013 fall. The respondent submits that his opinion cannot be relied upon because it depends in large part on Ms Tikoalu-Thorogood’s report that she had knee pain, but no stiffness, after she had recovered from the arthroscopy.
Legislation
By s 14 of the Act, the respondent is liable to compensate an employee for an injury suffered by the employee if the injury results in death, incapacity for work or impairment.
Section 5A(1) provides that injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment.
Disease in the Act means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee: s 5B(1).
Significant degree means a degree that is substantially more than material: s 5B(3). In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment matters that may be taken into account include: the duration of the employment; the nature of, and particular tasks involved in, the employment; any predisposition of the employee to the ailment or aggravation; any activities of the employee not related to the employment; and any other matters affecting the employee's health: s 5B(2).
Consideration
There is no evidence that Ms Tikoalu-Thorogood suffered any symptoms in her left knee before the injury in 2001 although the evidence in x-rays suggests that she had osteoarthritis in her knee by that time.
The evidence shows that, following that fall, Ms Tikoalu-Thorogood suffered severe pain that gradually resolved over the next three years or so. We are satisfied that, apart from when she dropped a can on her foot in 2009 and when she fell in mid-2012, she was relatively symptom-free until 2013 although she had episodes of pain, sometimes quite severe, from time to time. From time to time she was prescribed various painkillers which she took for phantom pains or unrelated pain as well as for pain in her left knee. We accept that she did not fill at least one prescription. There is nothing to suggest that her symptoms affected her capacity for work or her ability to carry out ordinary daily activities.
It is not in dispute that Ms Tikoalu-Thorogood suffered a soft tissue injury in the fall at work in January 2013. The respondent has accepted liability for that injury.
We accept the opinions of Dr Kirsh and Dr Bodel that Ms Tikoalu-Thorogood’s osteoarthritis stemmed from the 2001 injury, whether by causing additional frank damage or by hastening the progression of the underlying disease. We note that Dr McGill did not dispute that opinion but could not come to a “reasonable determination” himself on the information he had.
We are satisfied that Ms Tikoalu-Thorogood suffered an increase in pain following the fall in January 2013 that continued more than the few weeks that Dr McGill expected it would. We found her and her husband to be credible witnesses and we accept their evidence. We accept that she would frequently put ice on her knee, and rest it, although probably less often than she recalls. We accept that she minimised the pain at work to some extent because of what she perceived, whether rightly or not, Ms Pulmano‘s response would be. Nevertheless by her own evidence it did not interfere in her capacity to perform her duties other than to make lifting bags of coins several times each day more difficult.
We are satisfied that Ms Tikoalu-Thorogood suffered a further increase in pain following the “huddle” incident that has not abated and that she has had an incapacity for work since.
For Ms Tikoalu-Thorogood it is submitted that the “sudden ratcheting up” of her symptomatology in 2013 is more consistent with a frank injury than with an aggravation of her underlying degenerative disease. If the fall in January 2013 is properly characterised as a frank injury, then there can be no dispute that it that arose out of, or in the course of, her employment.
Taking into account the medical evidence, we prefer the characterisation of the fall in January 2013 as an aggravation of Ms Tikoalu-Thorogood’s underlying degenerative disease. We accept Dr Bodel’s opinion that, while clinically less significant than the “huddle” incident, the fall temporarily aggravated the “long-standing pathology” in her arthritic knee. We do not consider the history given to him by Ms Tikoalu-Thorogood so unreliable as to undermine that opinion. Further, it is consistent with Dr Kirsh’s opinion. Dr McGill considers it likely to have made the osteoarthritic changes in her knee more symptomatic for a few weeks, although we are satisfied that they continued at an increased level until October 2013.
In our view, there can be no dispute that her employment contributed, to a significant degree, to that aggravation
We find the respondent liable under s 14 of the Act to compensate her for aggravation of her osteoarthritis that resulted from the fall in January 2013.
We are satisfied that Ms Tikoalu-Thorogood’s symptoms increased significantly after the “huddle” incident and that she continues to suffer pain. We accept her evidence, and that of her husband, that she now has difficulties performing many ordinary daily activities that she was previously able to do. She has been on restricted duties since.
Given our finding in relation to the January 2013 fall, it is not strictly necessary to determine whether the respondent is also liable to compensate Ms Tikoalu-Thorogood in relation to the “huddle” incident. We are satisfied that standing for longer than usual had the effect of provoking worsening pain and a “clicking” or “popping” sensation as she sat down. Although he misunderstood what had occurred, that did not change Dr Bodel’s view, consistent with that of Dr Kirsh, that it caused an aggravation of the arthritic process in her left knee.
Whether the “huddle” incident caused any change in the pathology in Ms Tikoalu-Thorogood’s knee, we are satisfied that an event occurred at that time which led to an increase in her symptoms which still continues. We are satisfied that it aggravated her osteoarthritis and that her employment contributed to a significant degree to that occurrence.
Liability for knee replacement

No reviewable decision having been made concerning liability for the cost of a knee replacement, that is not a matter we are required to determine but counsel for Ms Tikoalu-Thorogood has said it would be helpful for us to express a view, if we are able on the evidence before us, as to what a favourable determination of the s 14 issue might mean for claims under s 16.
There is no dispute among the doctors that Ms Tikoalu-Thorogood needs a knee replacement, the only point of any difference being the timing of the surgery. We appreciate that it might assist if we were to express an opinion on the respondent’s liability, if any, but there is insufficient information before us to say with any confidence the extent to which surgery is required in relation to her injuries although the medical evidence suggests that, regardless of the incidents in 2013, she would have required surgery.
Conclusion
We are satisfied that Ms Tikoalu-Thorogood suffered aggravation of her osteoarthritis in January 2013 and October 2013 for which the respondent is liable to compensate her. We set aside the decision under review and substitute a decision to that effect.

96. I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey and Dr Toh, Member.

...................................
Associate
Dated 30 October 2015

Date(s) of hearing

7 – 10 & 25 August 2015

Representatives for the Applicant

Mr Leo Grey, Counsel

Ms Fiona Seaton, Turner Freeman Lawyers

Representatives for the Respondent

Mr Brendan Kelly, Counsel
Ms Christine Tskeouras, Commonwealth Bank

[2015] AATA 840

30 October 2015

Key Legal Topics

Areas of Law

Workers Compensation Law

Legal Concepts

Compensatory Damages

Breach of Contract

Unjust Enrichment

Causation

Limitation Periods

Division	GENERAL DIVISION
File Number(s)	2014/4346
Re	Justina Tikoalu-Thorogood
APPLICANT
And	Commonwealth Bank of Australia
RESPONDENT

Tribunal	Senior Member J F Toohey Dr Saw Hooi Toh, Member
Date	30 October 2015
Place	Sydney