Tracy and Australian Postal Corporation
[2009] AATA 642
•27 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 642
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3383
GENERAL ADMINISTRATIVE DIVISION ) Re Norman Tracy Applicant
And
Australian Postal Corporation
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member
Dr J Campbell, MemberDate27 August 2009
PlaceSydney
Decision The Administrative Appeals Tribunal sets aside the decision under review and finds that at the date of the reviewable decision there was a liability to pay compensation in respect of Mr Tracy’s knee condition pursuant to sections 16 and 19 of the SRC Act
.................[sgd]........................
Ms N Isenberg
Senior Member
CATCHWORDS
COMPENSATION LAW – workplace injury – compensation for medical treatment – compensation for incapacity – whether Respondent had liability to pay compensation to applicant for injury – knee injury – Applicant continued to suffer from injury – Respondent liable to pay compensation – decision under review set aside
Relevant Act
Safety, Rehabilitation and Compensation Act 1988 – sections 5A, 16 and 19
REASONS FOR DECISION
27 August 2009 Ms N Isenberg, Senior Member
Dr J Campbell, Member1. Norman Tracy is an employee of Australia Post. He has complained of an ongoing condition affecting his left knee that he asserts was sustained by reason of having twisted his left knee while sorting mail on 1 December 2005. Australia Post says that as at 16 November 2006 he no longer continues to suffer the effect of the twisting injury.
Background and History of Application
2. Mr Tracy has worked for Australia Post since 1981. His claim for compensation was initially refused because his general practitioner had informed him that he suffered gout, but his claim was subsequently accepted upon reconsideration. Then, on 16 November 2006, it was decided that Australia Post had no liability to pay compensation to Mr Tracy pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 for the injury that he sustained to his left knee whilst working for Australia Post.
3. In a reviewable decision dated 23 May 2007, Mr Tracy was found to no longer suffer from any left knee condition related to the work-related incident on 1 December 2005. Accordingly, the Reconsideration Officer of Australia Post, affirmed the earlier decision of Ms McGregor of 16 November 2006.
Issues for Determination
4. The Tribunal must decide whether, at the date of the reviewable decision, there was a liability to pay compensation in respect of Mr Tracy‘s condition; that is, whether Mr Tracy continued to suffer from an “injury” as defined by section 5A of the Safety, Rehabilitation & Compensation Act 1988 (“the SRC Act”) as a result of the work accident he sustained on 1 December 2005.
Relevant Legislation
5. Section 16 SRC Act relevantly provides for the payment of compensation to an employee for the cost of medical treatment obtained in relation to an injury sustained during the course of his or her work.
6. Section 19 of the SRC Act provides for the payment of compensation to an employee who becomes incapacitated for work as a result of an injury suffered whilst at work.
7. For the purposes of sections 16 and 19, an “injury” is defined in section 5A of the SRC Act as:
(1) …
(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 …
Evidence of the Applicant
8. Mr Tracy gave evidence that he had previously had problems with his knee. He clearly remembered his knee being struck with a hammer in 1971, but could not recall who treated it or what the treatment was. He also described a fall from a train in the mid-1980s and that he underwent an arthroscopy soon thereafter. He could not remember if he had subsequent treatment, but recalled being off work for a few weeks, after which time the knee had healed. Mr Tracy said that he did not experience any further problems with his knee until 2005.
9. On Thursday 1 December 2005, while sorting large express post envelopes, Mr Tracy said he twisted around to the left and twisted his left knee at the same time. He claimed that he experienced a sharp pain, mostly behind the kneecap, like a “crack” or a “pop”. He was able to continue his shift, thinking his knee would settle in a day or two. He based that expectation on previously having twisted joints and usually not having a lot of problems with them. He reported to his manager, Terry Cox, that he had twisted his knee and that it was a bit sore. He applied a home remedy. He was able to work the next day; he said his knee was a “niggling annoyance”. The pain was ‘not drastic’ and was relieved when he sat down a few times during the day for five minutes but came back again “pretty quick”.
10. On the Saturday morning immediately subsequent to the injury, Mr Tracy rested, conserving his strength for planned festivities that night, but the knee started to become sore and began to swell. He recalled that it was awkward to stand at all on the Saturday night because the left knee was sore. He said his right foot was also sore. By Sunday, the knee had become extremely swollen.
11. On the Monday, he went to see his general practitioner, Dr Beckwith, by which time he was unable to even walk on flat surfaces. He had to make arrangements to access his father’s car on flat ground in order to be driven to the doctor.
12. He thought that at the time there was a bit of gout in his right foot, although Mr Tracy admitted that his memory was not good. Having regard to Dr Beckwith’s notes, it is clear that Mr Tracy made an error. He said that he had suffered from gout since 1995 and that the condition had been medicated since that time. When he had flares, he would take medication for 1-3 weeks depending on the severity of the flare. He thought it may have been about six months before 1 December 2005 that he had his last flare. He could not recall having gout in September 2005, as recorded by Dr Beckwith. Since January 2006, he has taken Zyloprim daily as a prophylactic.
13.
He said that his knee is constantly sore and gives way without notice. He continues to have problems walking up and down stairs and slopes, and is unable to bend and pick things up. Since his knee was aspirated by Dr Schulze, the
facility-nominated doctor on 5 December 2005, it no longer swells, except for an occasion of incorrect physiotherapy.
Medical Evidence
14. On Monday, 5 December 2005, Dr Beckwith recorded in his notes that Mr Tracy gave a history of having twisted his knee on 1 December 2005 whilst sorting mail. Mr Tracy told the doctor that he had thought it would settle in a day or two, but that it got much worse on Friday and over the weekend. Dr Beckwith noted that Mr Tracy previously had an arthroscopy that revealed loose cartilage. On examination, Mr Tracy was found to have ”gross effusion of the left knee, gout left mtpj – great toe.“ There was a failed attempt at aspiration. Dr Beckwith certified Mr Tracy as unfit for work for the period of 5 December 2005 to 9 December 2005 due to his sprained left knee.
15. On the same day, Dr Schulze observed Mr Tracy to be struggling on crutches and that he had to use a wheelchair. The doctor successfully performed joint aspiration, which revealed acute gout.
16. On 9 December 2005, Dr Beckwith recorded “gout on fluid aspirate” and that Mr Tracy’s knee had improved after walking with crutches. The knee was not swollen and had no redness or heat, but was still tender. In a medical certificate of the same date, Dr Beckwith diagnosed “gout resolving reasonable well; mild knee sprain”
17. On 12 December 2005, Dr Beckwith recorded in his notes that Mr Tracy’s ”left knee [was] still extremely sore – very sore lateral joint line = lateral meniscus.”Dr Beckwith issued a further medical certificate and noted a diagnosis of ”gout, probable meniscus injury.” He was of the opinion that the knee had not improved at all and requested an MRI of the knee.
18. On 16 December 2005, Dr Beckwith recorded that Mr Tracy’s knee had improved, but “still [had] fair bit of fluid in the (sic) ist mtpj.” On examination, the knee was only mildly tender and Dr Beckwith diagnosed gout, but in a further medical certificate of that date diagnosed left knee strain. He noted that the injury had improved significantly and that it should continue to do so. Dr Beckwith continued to refer to Mr Tracy’s gout throughout December 2005 and January 2006.
19. On 7 February 2006, Dr Schulze reported to Australia Post that ‘although [the Applicant] has a constitutional condition, gout, an acute attack can be precipitated by even minimal trauma. Hence [the Applicant’s] acute gouty arthritis of the knee, as described by himself after “straining” his knee on 1 December 2005, is certainly plausible… and should be a compensable matter.’
20. On 20 February 2006, Dr Beckwith recorded that Mr Tracy’s knee seemed to be getting worse and reported to Australia Post that Mr Tracy “[had] increased laxity in his left knee, raising the possibility of an anterior cruciate ligament injury… [the Applicant] is likely to have incurred some other injury as a result of his knee incident.” He recommended that Mr Tracy be referred to an orthopaedic specialist.
21. An x-ray dated 24 February 2006 revealed “an oval-shaped semi-opaque density seen at the joint space in the midline just above the tibial condyle. This could be due to calcification in the cartilage. There is also minimal spur formation seen at the articular margin of the tibia. There may be slight calcification in the lateral semilunar cartilage in the meniscus. There are vascular calcification seen in the femoral vessels and posterior tibial vessels.”
22. On 28 February 2006, Dr Justin Roe, orthopaedic surgeon, reported to Dr Beckwith that Mr Tracy had given a history of gout affecting his toes. He noted that Mr Tracy had previously had a left knee arthroscopy and had cartilage removed. Dr Roe was of the opinion that Mr Tracy “had a flare up of gout following a twisting injury at work. It has unfortunately progressed to his knee.”
23. On 22 March 2006, Dr Ron Muratore, sports physician, reported to Australia Post that “the traumatic episode at work on 2 December (sic) may have precipitated an acute attack of gout in the left knee; he has now recovered from this… [the Applicant] will have intermittent time off work because of the gout rather than the compensable left knee injury.” At the time, Mr Tracy was suffering from gout in both his feet.
24. On 23 May 2006, following review of the MRI of 7 May 2006, Dr Roe reported to Dr Beckwith that the MRI confirmed degenerative changes in the medial and patellofemoral compartment of the left knee. He was of the opinion that the accident had exacerbated the process, which he regarded as fairly typical. He recommended a rehabilitation program, intermittent analgesics and anti-inflammatories, and home strengthening exercises.
25. Australia Post referred the MRI scans to Dr John Korber, radiologist, for comment on 4 July 2006. The doctor was of the opinion that it was almost certain that the degenerative changes in the patellofemoral joint and the tibiofemoral joint preceded the injury, suggesting pre-existing arthritis. He thought it possible that Mr Tracy could have exacerbated the previous condition. He was of the opinion that the meniscal tear could be post traumatic and that it is not possible that the injury caused Mr Tracy’s gout.
26. On 10 July 2006, Dr Beckwith recorded that Mr Tracy had a fall nine days earlier and noted “medial malleolus left leg very tender”. An x-ray was arranged. He recorded that “knee remains unchanged. Medial joint line tenderness. Right knee pain as well – lateral patella.”
27. In December 2006, Dr Beckwith recorded that Mr Tracy’s knee was more painful. By January 2007, it was extremely painful. He noted that Mr Tracy had been on crutches for the most of the preceding 13 months. He diagnosed possible gout. Dr Beckwith performed an aspiration after which the knee showed some improvement. He noted that Mr Tracy had two attacks of gout in the previous year.
28. On 29 January 2007, Ms Vicki Kesby, physiotherapist, reported to Dr Beckwith that the initial examination of Mr Tracy’s left knee revealed “decreased knee flexion, pain limited and pain with all knee movements, especially medial and lateral rotations.” She noted that those findings are consistent with degenerative changes.
29. On 29 October 2007, Dr Beckwith recorded that the condition of Mr Tracy’s knee was occasionally good, but was still irritable.
30. Dr Bentivoglio, orthopaedic surgeon, provided a report dated 6 November 2007, and gave oral evidence at the hearing. He diagnosed complex tear in the medial meniscus in left knee together with aggravation to pre-existing degenerative changes present in the knee region. He was of the opinion that the tear was as a result of the twisting injury at work on 1 December 2005. He considered that Mr Tracy continued to experience symptoms in the knee region and that he would benefit from arthroscopic debridement, although this would not render him entirely asymptomatic.
31. He opined that the majority of the ongoing complaints were as a result of the medial meniscal tear. In his evidence he said that a twisting injury is the most common cause of meniscal tear. He thought it highly unlikely that a meniscal tear in 1994 became symptomatic in 2005.
32. Dr Bentivoglio opined that Mr Tracy probably also had previous meniscal tear in the mid-1980s, which was rectified by arthroscopic debridement, following which symptoms in his knee would have been minor. However, he would have expected more frequent symptoms than in 1990 and 1994 as had been recorded in the general practitioner’s notes, in the order of a couple of times a year
33. He considered it relatively common to have a slow swelling present in the knee and considered Mr Tracy’s knee condition as probably being exacerbated by the fact that he had an acute episode of gout. He thought that this condition probably caused the knee to be more swollen subsequently than it would normally have been if it was just a simple tear of his medial meniscus. With the tear of the medial meniscus, he would expect knee pain with swelling over two or three days and thought that that was complicated by the fact that Mr Tracy probably had an acute flare-up of gout at the same time. In his evidence, he said it was quite common after an incident to get a flare-up of gout. He considered the gout in the knee itself to be an insignificant problem once it was treated.
34. He considered that some of the signs of arthritis possibly developed as a result of Mr Tracy’s initial injury in 1985, but that there was no accurate way of determining that unless the person had undergone serial scans. In his oral evidence, Dr Bentivoglio stated that one “normally expect[s] that six months is a little bit early to develop some degenerative changes especially in the knee joint following an incident in December 2005.”
35. Australia Post arranged for Mr Tracy to be examined by Dr Bruce Caldwell, Orthopaedic Surgeon, on 1 September 2006. In his report, he opined that the incident at work was an aggravation of underlying osteoarthritic change and that it also triggered an attack of constitutional gout. He noted that Mr Tracy had never had a gouty attack in his left knee before, but that the gout had nothing to do with his workplace. He stated that, on the balance of probabilities, the condition is “a pre-existing constitutional underlying condition with some natural progression of his medial meniscectomy. There has been an aggravation due to the incident of 1 December 2005, but essentially [Mr Tracy] has an osteoarthritic knee with come some overlying gout”. Mr Tracy was currently suffering from a pre-existing constitutional underlying condition with some progression of medial meniscectomy. Dr Caldwell thought that the aggravation due to the accident of 1 December 2005 would have resolved over a four to six week period following the injury.
36. Mr Tracy
was referred to Dr Caldwell for a re-examination on 4 April 2008.
Dr Caldwell wrote that in his previous report he had not mentioned that, after reviewing the MRI, he was of the opinion that Mr Tracy had a tear of the medial meniscus which probably still exists, though is not obvious. He initially commented that he thought that Mr Tracy probably sustained a tear of the medial meniscus in the twisting injury at work as Mr Tracy described. However, later in the report he stated that it could be argued that the tear would have occurred at this stage of life in any case and that there was only a simple twisting injury, which was probably not compensable. He stated that it could also be argued that the medial meniscal tear is degenerative. Dr Caldwell said that Mr Tracy had pre-existing osteoarthritis and that then meniscal tear or injury precipitates an episode of gout. He noted that at the time of examination, Mr Tracy’s discomfort was due to the medial meniscal tear, and not gout. He was of the opinion that Mr Tracy’s gout would have occurred in the knee regardless of the injury as it is constitutional.
37. Dr Neill McGill, consultant rheumatologist, examined Mr Tracy at the request of the Respondent and alas gave evidence. In his report of 23 October 2008, he wrote that “the history at the time was thus in keeping with an attack of gout. The history was not at all typical of a meniscal tear… Assessments on 28 February 2006 and 22 March 2006 indicated that he suffered from flares of gout in other joints over the same period of time.”
38. Dr McGill noted that the MRI demonstrated chronic degenerative change in the knee and medial meniscal degeneration. He was of the opinion that meniscal degeneration with tearing is a very common finding in the setting of degenerative arthritis. In his evidence he expressed the view that, given the minor nature of his symptoms after the twisting injury at work, it was unlikely to have been when he had his meniscal tear.
39. Dr McGill stated that the fact that Mr Tracy experienced attacks of gout in his left knee, left great MTP joint and right MTP joint in a short period of time cannot be attributed to the injury of the left knee. He was of the opinion that “most of his ongoing symptoms are due to chronic degenerative change (osteoarthritis) in the left knee.” He noted that although Mr Tracy did not have marked gouty inflammation in the knee, “it has been well established that low grade gouty inflammation persists between attacks of gout if there are still urate crystals present in the joint.” Dr McGill was of the opinion that Mr Tracy’s left knee symptoms were not related to the incident on 1 December 2005 or to his work duties in general and that any effect from the twisting action at work had ceased by the time of the attack of gout in the left knee had settled (within three weeks). He further opined that Mr Tracy’s ongoing symptoms are due to chronic degenerative change in the left knee. He noted that the medial knee pain was not recorded soon after the pain and swelling from the twisting injury. He did not think surgery would be of any benefit.
40. He said in his evidence that he considered the extreme soreness suffered by Mr Tracy for several days after the incident at work was when he started developing his attack of gout. At examination, Mr Tracy described osteoarthritic symptoms which could also be made worse by low grade ongoing gouty inflammation in the knee.
41. Dr McGill considered Mr Tracy’s symptoms to be those of osteoarthritis in the knee with or without some ongoing persistent low grade gouty inflammation, noting that pain is exacerbated by steps, stairs, inclines, squatting and kneeling. The fact that there was no mention of locking or clicking within the knee led him to the view that there was no unstable meniscal tear. The typical history of someone suffering a significant meniscal tear is to feel substantial pain at the time and to have a rapid onset of knee swelling. He referred to Mr Tracy experiencing swelling on the Sunday, with pain increasing. The following day the joint was aspirated and a substantial amount of uric crystals were found. If the pain Mr Tracy had in his knee was due to the meniscal tear, and if that had contributed significantly to the knee being very swollen, it would not have settled down. The fact that his knee settled down does not fit with meniscal tear having been a significant player in his knee symptoms.
42. He was confident, then, that Mr Tracy’s symptoms were due to gout, an attack of which can be triggered by trauma. A trauma such as twisting of the knee could contribute to the interaction between the crystals and the inflammatory system. Once the effect of trauma in triggering an attack of gout ceases there is no ongoing risk of future attacks of gout. He said, however, that it was quite plausible that someone could have a substantial injury, then have an attack of gout over the next few days and yet still have problems related to their injury, although he did not agree that Mr Tracy’s history suggest that that is likely to have occurred. It is also possible that it was just a coincidence and he experienced a flare of gout, because he was experiencing attacks of gout in other joints as well.
43. A medial meniscal tear should cause symptoms predominantly on the medial side of the knee, either anterior or posterior. A tear of the posterior horn of the medial meniscus would not expect to cause symptoms behind the kneecap. Mr Tracy has patella femoral osteoarthritis, so Dr McGill thought it very unlikely that a posterior horn tear would influence patella femoral symptoms.
44. In summary, Dr McGill was of the view that Mr Tracy’s osteoarthritis is playing a significant role in his symptoms and it is likely that gout is also continuing to play such a role.
Consideration and Findings
45. There was no dispute that Mr Tracy suffered a twisting injury of his left knee at work on 1 December 2005. Mr Tracy’s case was that as a result of the injury to his left knee that day, he suffered a meniscal tear. Alternatively, it was contended on his behalf that there was aggravation of pre-existing degenerative condition.
46. There was a complicating feature in that Mr Tracy had suffered gout in his toes beforehand and, it was conceded, probably had some quiescent gout in his knee. It appears on the medical evidence that this event, in addition to whatever else it did to Mr Tracy, also triggered an onset of symptomatic gout in the knee.
47.
Contrary to Mr Tracy’s recollection of experiencing no problems after the
mid-1980s, his former general practitioner, Dr Anderson, recorded problems in 1990 and 1994. According to Dr Anderson’s notes Mr Tracy had left knee problems for several months in 1990.
48. In 1994 there was an episode that Mr Tracy described in his evidence as having ‘water on the knees’. According to Dr Anderson’s notes, Mr Tracy had developed effusions of the left knee after kneeling then standing up. The kneecap ‘stuck out’. The doctor noted Mr Tracy’s previous knee injuries when the knee had been hit with a hammer and the fall from the (sic) truck. The doctor took a history that the knee tends to clunk and very occasionally give way. He noted the previous arthroscopy. He queried if there were degenerative findings. On examination effusion, tender medial joint line and pain were identified. After that time, Mr Tracy’s knee did not appear, from the records, to have troubled him.
49. However, the records of Mr Tracy’s general practitioner, Dr Beckwith, after October 2006, when liability was ceased, note ongoing knee complaints. Of these, only one complaint, in Januar 2007, was specifically for gout, although Dr Beckwith also recorded that Mr Tracy had experienced two attacks of gout the previous year.
50. There is little commonality in the medical evidence, largely, it seems because the MRI appears to have been difficult to interpret. The MRI scan disclosed, in the view of the radiologist, Dr Melville, chondromalacia of the patella, and that there were some degenerative changes behind Mr Tracy’s kneecap. Mr Tracy was examined by Dr Roe, a knee specialist and who examined Mr Tracy quite close to the events in question. He made no diagnosis of medial meniscal tear. Dr Korber, an expert radiologist reported on the x-ray a partial anterior cruciate ligament tear but within normal limits, which apparently can be a normal finding and consistent with early osteoarthritis.
51. Dr Moratore said that it was possible that twisting on a loaded left foot had caused an acute attack of gout and concluded that Mr Tracy had recovered from that episode.
52. Dr Caldwell ultimately agreed that there was a tear whilst Dr Bent’s evidence indicated that a twisting injury was the most common cause of meniscal tear and that it was highly unlikely that a meniscal tear in 1994 would become symptomatic in 2005.
53. Only Dr McGill was quite definitively of the view that Mr Tracy’s symptoms were not those of a medial meniscal tear, largely on the basis of the history given by Mr Tracy as to the onset of his symptoms. He conceded, though, that it was possible for symptoms to develop more slowly than he would have expected. This was the view of Dr Bentivoglio.
54. The evidence of Doctors Caldwell, Bentivoglio and Korber, with the concession by Dr McGill, persuades us that there was a medial meniscal tear.
55. It was agreed, though, that Mr Tracy has osteoarthritis in the left knee. By all accounts, that osteoarthritis was asymptomactic before the events complained of: the last complaint to do with his left knee was in 1994, some 11 years prior to the twisting incident.
56. Review of Dr Beckwith’s notes shows that there was a lifting of the knee symptoms by aspiration, which the Tribunal finds were attributable to the gout episode. However, there were subsequent episodes of osteoarthritic symptoms as well, such that by February 2006, notwithstanding the gout treatment, his knee worsened. The continuing symptoms - such as the knee giving way as had not previously occurred - are likely attributable to degenerative changes, and this was the view of both Dr Roe and Dr McGill. The Tribunal does not accept though that the period of aggravation came to an end, noting in particular that when Dr Caldwell examined Mr Tracy in April 2008, he considered his discomfort, at that time, was due to the medial meniscal tear, and not due to gout.
57. Further, Dr McGill opined that gout can be triggered by a traumatic episode and could well have been triggered by the twisting injury on 1 December 2005. This was also the view of Dr Schulze. Dr Roe also linked the spread of the gout into the knee from the toes to the twisting injury. The Tribunal finds that the twisting injury also contributed to the continuing gout problems in Mr Tracy’s knee.
58. The Tribunal therefore finds that at the date of the reviewable decision, Mr Tracy continued to suffer from an “injury” as defined by section 5A of the SRC Act as a result of the work accident sustained on 1 December 2005.
Decision
59. The Administrative Appeals Tribunal sets aside the decision under review and finds that at the date of the reviewable decision there was a liability to pay compensation in respect of Mr Tracy’s knee condition pursuant to sections 16 and 19 of the SRC Act.
I certify that the fifty-nine (59) preceding paragraphs are a true copy of the reasons for the decision herein of
Ms N Isenberg, Senior Member and Dr J Campbell, Member.Signed: ......................................[sgd]...................................................
AssociateDate of Hearing 22 and 24 June 2009
Date of Decision 27 August 2009
Counsel for the Applicant Mr J Dodd
Solicitor for the Applicant Ms M Cassidy, Slater & Gordon Lawyers
Counsel for the Respondent Ms R M Henderson
Solicitor for the Respondent Mr S Matthews, Australia Post
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