Vros and Australian Postal Corporation (Compensation)
[2021] AATA 791
•8 April 2021
Vros and Australian Postal Corporation (Compensation) [2021] AATA 791 (8 April 2021)
Division:GENERAL DIVISION
File Numbers: 2019/0532 and 2019/5810
Re:Jo'Ann Vros
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
DECISION
Tribunal:Senior Member C. J. Furnell
Date:8 April 2021
Place:Melbourne
With respect to the proceeding designated by the Tribunal as 2019/0532, the Tribunal decides to set aside the decision under review and remit it to the Respondent for reconsideration in accordance with a direction that Ms Vros is to be considered to have been on 17 September 2018, and to be currently, continuing to suffer the effects of her left knee medial meniscus tear injury.
With respect to the proceeding designated by the Tribunal as 2019/5810, the Tribunal decides to affirm the decision under review.
....[sgd]....................................................................
Senior Member C. J. Furnell
Catchwords
COMPENSATION – Ceased effects decision – condition an injury – left knee medial meniscus tear – pre-existing degenerative condition – osteoarthritis – injury aggravated pre-existing condition – injury materially contributes to incapacity and impairment – decision set aside and remitted for reconsideration with direction
Permanent impairment decision – impairment is not permanent – real prospect of improvement – knee replacement surgery – degree of impairment not more than ten percent – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Guide to the Assessment of the Degree of Permanent Impairment 2011 Edition 2.1 (Cth)Cases
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Bailey and Australian Postal Corporation [2004] AATA 713
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Caldipp v Delov [2002] FCAFC 352
Casarotto v Australian Postal Commission [1989] FCA 116
Comcare v Power [2015] FCA 1502
Commonwealth v Smith (1989) 18 ALD 224
Darling Island Stevedoring v Hankinson (1967) 117 CLR 19
Dunstan v Comcare [2011] FCAFC 108
Filla v Comcare Australia [2001] FCA 964
Gordon and Comcare (Compensation) [2020] AATA 352
Hart v Comcare [2005] FCAFC 16
Howard v Comcare [2019] FCA 1031
Hurley and Australian Capital Territory (Compensation) [2019] AATA 2450
Justin Tippett v Australian Postal Corporation [1998] FCA 335
Kavas and Comcare [2011] AATA 935
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Lees v Comcare [1999] FCA 753
Lindeman v Colvin (1946) 74 CLR 313
Liu and Comcare [2004] AATA 617
Martin v Australian Postal Corporation [1999] FCA 655
McDonald v Director-General of Social Security (1984) 1 FCR 354
Mellor v Australian Postal Corporation (2009) 108 ALD 159
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Millar and Comcare (Compensation) [2019] AATA 4973
Neuendorf and Australian Postal Corporation (Compensation) [2019] AATA 2430
Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537
Prain v Comcare [2017] FCAFC 143
Re Commonwealth Banking Corporation v Raymond William Percival [1988] FCA 240
Re Lorraine Joy Shearing and Director-General of Social Security [1983] AATA 116
Small and Comcare [2017] AATA 2383
Telstra v Hannaford [2006] 151 FCR 253
Toomey and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 468
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321Walshe and Comcare [2013] AATA 812
REASONS FOR DECISION
Senior Member C. J. Furnell
8 April 2021
Ms Vros has applied to the Tribunal for review of two decisions concerning her entitlement to compensation payable under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
The first is a decision of 15 January 2019 (the ceased effects decision).[1] It affirmed a determination of 17 September 2018[2] to the effect that Ms Vros then had no present entitlement under the Act for incapacity for work or medical treatment cost compensation with respect to a “left knee medial meniscus tear” injury sustained on 2 April 2015.
[1] T115 – “T” being a reference to documents lodged with the Tribunal under s 37 of its constituent legislation with respect to the proceeding designated by the Tribunal as 2019/0532.
[2] T107.
The second is a decision of 2 September 2019 (the permanent impairment decision).[3] It affirmed a determination of 1 August 2019[4] denying liability to pay compensation under the Act for permanent impairment and non-economic loss with respect to “a severe knee injury,” said in the claim for such compensation of 9 July 2019[5] to have been an “accepted condition.”
[3] 2T8 – “2T” being a reference to documents lodged with the Tribunal under s 37 of its constituent legislation with respect to the proceeding designated by the Tribunal as 2019/5810.
[4] 2T5.
[5] 2T4.
Put shortly, I have decided to:
· set the ceased effects decision aside and remit it to the Respondent for reconsideration in accordance with a direction that Ms Vros is to be considered to have been on 17 September 2018, and to be currently, continuing to suffer the effects of her left knee medial meniscus tear injury; and
· affirm the permanent impairment decision.
Before outlining my reasons for these decisions, I should first identify aspects of the legal and factual context in which they are made.
LEGAL CONTEXT – GENERAL
The decisions the subject of review deal with four types of compensation under the Act; incapacity for work, medical treatment cost, permanent impairment and non-economic loss compensation.
Section 14 of the Act addresses, expressly, two of those types of compensation. Under that section, the Respondent is liable to pay compensation in accordance with the Act in respect of any injury suffered by an employee if it results in incapacity for work or impairment.[6]
[6] Section 14 of the Act refers to Comcare. In relation to employees of the Respondent, however, that reference is taken to be a reference to the Respondent, as a licensed corporation for the purposes of the Act: Act, s 4(10).
The liability to pay compensation in accordance with the Act in respect of an injury resulting in incapacity for work is dealt with in s 19 of the Act. A present liability to pay such compensation may arise where an employee is incapacitated for work as a result of an injury. An employee will be so incapacitated if the employee suffers an incapacity as a result of an injury and the incapacity is either an incapacity to engage in any work or an incapacity to engage in work at the same level at which the employee was engaged immediately before the injury.[7]
[7] Act, s 4(9).
The liability to pay compensation in accordance with the Act in respect of an injury resulting in impairment is dealt with in s 24 of the Act. Such a liability may arise where the resultant impairment is permanent (that is, likely to continue indefinitely[8]) and the degree of that impairment is 10% or more[9] as determined using “the approved guide”[10] (being the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 2011 (Cth) prepared and approved under s 28 of the Act).
[8] Act, s 4(1).
[9] Act, s 24(7).
[10] Act, s 24(5).
As for compensation for non-economic loss, the liability for it is addressed in s 27 of the Act. Such a liability may only arise where compensation for an impairment is payable in respect of an injury.
The last form of compensation of relevance to the decisions the subject of review is medical treatment cost compensation. It is dealt with in s 16 of the Act. A present liability to pay such compensation may arise in respect of the cost of medical treatment obtained by an employee in relation to an injury if the treatment was reasonable for the employee to obtain in the circumstances.
As is apparent from what has just been said, the liability to pay both incapacity for work and impairment compensation is conditional on the incapacity and impairment being a result of an injury. In order to be considered to be a result of an injury, however, it is not necessary that incapacity or impairment be caused solely by the injury. As was said in Kavas,[11] “…the causal relationship ‘as a result of’ is not exclusive or conditioned by adjectival singularity - it permits the conjunctival co-existence of multiple contributory causes.” It will be sufficient if the injury is “an effective and operative cause” of the incapacity or impairment[12] or a “material contributor”[13] to it.[14]
[11] Kavas and Comcare [2011] AATA 935 – cited with approval recently in Gordon and Comcare (Compensation) [2020] AATA 352 at [13].
[12] Justin Tippett v Australian Postal Corporation [1998] FCA 335 at [41].
[13] Small and Comcare [2017] AATA 2383 at [139] where it was said to be sufficient that an injury contribute in a material sense to incapacity. See too Gordon and Comcare (Compensation) [2020] AATA 352 at [70]-[73] and Hart v Comcare [2005] FCAFC 16.
[14] I note that this is consistent with s 7(6) of the Act which addresses the issue of when incapacity for work and impairment might be considered to be the result of an injury being a disease.
Also as is apparent, a liability to pay compensation under the Act only exists in respect of injuries.[15] I will address the concept of “injury” under the Act in more detail later. In the meantime, however, I note that an injury includes its effects or symptoms.[16] Hence, an effect or symptom of a medical condition which results in, say, incapacity for work will be considered to be the result of an injury which caused the relevant employee to suffer from the effect or symptom.
[15] In this regard I note that under s 4(8) of the Act a reference in the Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee in respect of which compensation is payable under this Act.
[16] Justin Tippett v Australian Postal Corporation [1998] FCA 335 per Finklestein J “What Beattie also makes clear is that the symptom of an injury, that is the experience of the injury, is a part of the injury in respect of which compensation is payable. This proposition was confirmed by the Full Court in Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 20 FCR 176 where it was said that while for many medical purposes it may be necessary to draw a distinction between the underlying injury and the symptoms of it that is not so for compensation law where it is fundamental that the symptom of an injury is a part of that injury.”
The effects of an injury include the effects of medical procedures reasonably undertaken to treat the injury. In this regard “…if an injury resulting from accident arising out of and in the course of the employment is aggravated by medical treatment or if the surgical procedures adopted to remedy or alleviate the injury cause a secondary traumatic or pathological condition or death, the total condition is to be attributed to the accident, that is so long as the workman acted reasonably.”[17]
[17] Lindeman v Colvin (1946) 74 CLR 313 per Dixon J.
FACTUAL CONTEXT – GENERAL
Ms Vros is 59 years old and has been an employee of the Respondent for around 22 years.
At all relevant times her position with the Respondent was as a postal delivery officer.
In the early morning of 2 April 2015, while working a night shift, Ms Vros injured her left knee (the April 2015 incident). The mechanism for the injury would seem to have involved Ms Vros’ left foot hitting a concrete floor when she slipped off (or was getting off) the chair on which she was sitting.[18] Her left leg was said to have slipped off her chair as she was getting off, something that had apparently occurred “twice in three days” and which had left her leg “very sore at the back of” her knee.[19]
[18] This reflects the description given in various reports. See, for example, the report of Mr Bartlett, orthopaedic surgeon, of 29 June 2015 at T16. In certain reports it is said that Ms Vros’ knee hit the concrete floor but it is not contended by either party that this discrepancy is material.
[19] See incident report of 10 April 2015 at T4.
On 28 April 2015, Ms Vros claimed compensation with respect to the injury, which she described as a “sprain to left calf muscle and left knee”.[20]
[20] T5.
On 12 May 2015, an X-ray was taken and an ultrasound performed in relation to her left knee. Nothing abnormal was revealed by the X-ray; the knee and patellofemoral joint being said to be normal. The ultrasound revealed non-specific mild to moderate sized joint effusion.[21]
[21] T12,47.
An MRI scan of the left knee on 14 May 2015, however, revealed a “2mm wide full thickness radial tear posterior horn of medial meniscus. Mild chondromalacia medial femoral condyle. Irregular partial thickness chondral defect measuring 6 x 8mm in posteroinferior aspect of lateral femoral condyle. Superficial chondral fissure mid lateral patellar facet/apex junction. Baker’s cyst.”[22]
[22] T7.
In a report of 29 June 2015,[23] Mr Bartlett, orthopaedic surgeon, described the results of this imaging as revealing a “pathology of a medial meniscus tear and some degenerative changes.”[24] As for the latter, he characterised the changes as “minor”.
[23] T16.
[24] T16, 95.
While both knees showed full extension, according to Mr Bartlett, flexion in the left knee was limited to 70 degrees while in the right knee it was 125 degrees. Moreover, unlike the right knee, in the left knee there was medial joint line tenderness with pain on rotation stress. Both knees were said to show a five degree femorotibial valgus alignment.
Mr Bartlett opined that the mild effusion and definite posterior horn radial tear of the medial meniscus revealed by the MRI scan “could be considered to be recent and consistent with impact trauma” and was “consistent with the history of an impact stress to the left knee”. He considered that Ms Vros had “sustained a traumatic injury with a radial tear of the medial meniscus in the described injury of 2 April 2015,” the meniscus tear being traumatic in origin.
In his prognosis, Mr Bartlett mentioned the prospect of arthroscopic surgery and noted that a “partial meniscectomy does predispose one to the premature onset of osteoarthritis which may become apparent some ten years later”.
Pausing there, given the findings I arrive at in this matter, as I see it, Mr Bartlett was prescient in his warning about the premature onset of osteoarthritis albeit that, as things transpired, his ten-year time frame was optimistic.
On 8 July 2015, the Respondent determined to accept liability to compensate Ms Vros in accordance with the Act with respect to a left knee medial meniscus tear injury of 2 April 2015 (the accepted condition).[25] It did so, having accepted that the injury was “traumatic with the mechanism being a jarring impact.”
[25] T17.
In the period between July and December 2015, Ms Vros, generally, continued to attend work but with short, four-hour shifts.[26] However, she was still experiencing left knee pain,[27] with her knee reportedly giving way on occasion.[28]
[26] T31, occupational therapist letter of 26 August 2015.
[27] Respondent hearing documents marked as Exhibit R3, r15, being various clinical notes of the Wantirna Mall Clinic. See notes in relation to 25 August 2015 and 5 October 2015.
[28] Ibid. See notes on 3 December 2015 when Ms Vros apparently reported that she had had a recent fall when her left knee gave way and twisted resulting in her having fallen down some stairs.
On 5 December 2015, Mr Ma, an orthopaedic surgeon, performed an arthroscopy and partial medial meniscectomy and chondroplasty of the medial femoral condyle and patella in relation to Ms Vros’ left knee (the partial meniscectomy).[29] The operative diagnosis[30] entailed a left knee posterior horn medial meniscal tear with moderate osteoarthritis patella and medial femoral condyle.
[29] T108.
[30] Exhibit R3, 19-23, operative report of Mr Ma to Dr Charlton.
I digress for a moment just to note that it is not contended that the partial meniscectomy was not reasonable treatment for the accepted condition. Hence, applying the legal proposition outlined earlier, any effects of it are, I consider, effects of the accepted condition.
After the partial meniscectomy, Ms Vros returned to work in February 2016,[31] albeit with modified duties[32] (having reported to her general practitioner that her knee was much better[33]). There followed, however, a period of fluctuating symptomology,[34] with her capacity for work fluctuating.[35] Nevertheless, by late May 2016, Ms Vros’ knee had apparently improved to an extent such that she was then happy to increase her hours of work.[36] Indeed, on 21 June 2016 Ms Vros is reported as having told her general practitioner that she wished to return to her pre-injury duties.[37]
[31] T63 – indicating a return to work in early February 2016.
[32] Modifications affecting the extent to which she was required to, for example, engage in sitting, walking, bending and kneeling-see, for example, T116, 344.
[33] Exhibit R3, 55.
[34] Exhibit R3, 54, clinical notes suggesting fluctuating pain levels in March 2016 and an inability to move for several days in April 2016.
[35] See for example T116 at 343, certificate to the effect that Ms Vros had no work capacity with respect to the period 16 April 2016 to 22 April 2016. See also T116 at 344 referring to three-hour shifts.
[36] Exhibit R3, 53.
[37] Ibid.
Consistent with her apparent wish to do so, in June 2016 Ms Vros did return to her full pre-injury hours and duties.[38] Her general practitioner certified that she then had a capacity for work unaffected by any need for modification.[39]
[38] Ms Vros’ statement of April 2020 marked as Exhibit A1, [12].
[39] T116, 345.
While for some time her medical certificates did not refer to them, nevertheless, “modifications” were in place in relation to Ms Vros’ working conditions. In a worksite assessment report of 21 July 2017,[40] it was noted that Ms Vros was managing to maintain full hours at work, using a footrest to elevate her leg and mitigate swelling while working seated, and obtaining assistance with manual handling of bags.
[40] T96.
In relation to those periods when Ms Vros had no capacity or only a limited capacity to engage in work, she was paid incapacity for work compensation. The last such compensation so paid, however, would appear to have been in respect of a period expiring in March 2016.[41]
[41] T69, letter of 13 April 2016 approving incapacity for work compensation in relation to the period from 29 February 2016 to 1 March 2016.
The Respondent approved physiotherapy treatment for the accepted condition[42] (the symptoms of which were then said to be pain in her left knee standing, sitting and walking up and down stairs[43]), and continued to do so up until September 2017[44] (as well as approving the payment of compensation for costs incurred in obtaining treatment from her general practitioner up until July 2017[45]).
[42] T78.
[43] T76.
[44] T95.
[45] T97.
The need for ongoing treatment is reflected to some extent in Ms Vros’ general practitioner’s clinical notes. Those notes suggest, for example, that Ms Vros experienced a flare up of pain in her left knee on several occasions in June and July of 2017 and July of 2018.[46] At the hearing, Ms Vros’ evidence was to the effect that her knee flared up frequently but irregularly.
[46] Exhibit R3, R15, clinical notes of Wantirna Mall clinic.
On 20 November 2017, an MRI scan of the left knee revealed degenerative changes in the medial and lateral menisci, with no tear. Osteoarthritis in the medial femorotibial compartment was said to be severe.[47] Small irregular meniscal tissue was said to remain in the posterior horn.
[47] T98.
Thereafter Ms Vros was said to be noticing increasing left knee pain such that her general practitioner again referred her to Mr Ma.
In anticipation, presumably, of Mr Ma’s examination, an X-ray of Ms Vros’ left knee was obtained on 15 February 2018. In the report of that X-ray it was stated that there was “a mild varus angulation and there is moderate to marked degeneration at the medial compartment. There is minor degeneration at the other compartment.”[48]
[48] T108.
Based on the X-ray, Mr Ma then opined that there had been progression of osteoarthritis in Ms Vros’ left knee involving the medial compartment and that her “joint space was substantially thin compared to a year and a half, two years ago.”[49] Mr Ma thought that joint replacement would be worthwhile when Ms Vros’ osteoarthritis progresses to a point that she becomes functionally limited and that Ms Vros might become a suitable candidate for a medial unicompartmental knee replacement if her arthritis was just on the medial compartment.
[49] T100.
On 28 April 2018, Ms Vros’ general practitioner, Dr Charlton, certified that her capacity for work was affected by an inability to squat or kneel, that she should not be required to lift weights heavier than five kilograms and that assistance should be provided with respect to “bags, lifting and tiping (sic)…[and] with plastic”, with sitting being recommended “for periods of time”.[50]
[50] T116, 350.
In a letter of 31 July 2018,[51] Dr Charlton repeated her opinion that Ms Vros’ workplace duties should be restricted so as not to involve “lifting of objects heavier than 5kg. Assistance required with bags lifting and tipping. Sitting is recommended for 50% of the time.” She believed these restrictions to be permanent until Ms Vros had her left knee total replacement operation.
[51] T111.
As noted earlier, on 17 September 2018,[52] the Respondent determined that Ms Vros then had no present entitlement under the Act for incapacity for work or medical treatment cost compensation with respect to the accepted condition (that is, the “left knee medial meniscus tear” injury sustained on 2 April 2015), a determination affirmed by the ceased effects decision of 15 January 2019.[53]
[52] T107.
[53] T115.
In March 2019, Ms Vros requested a reduction in hours from a five-day working week to a four-day working week. She submitted a written request for the reduction and completed a “workplace flexibility request form”, both dated 6 March 2019. The form identified the reason for the request as being “…to assist with my knee care and management to prolong my working career”.[54] The written request was, at least in terms of the knee, more coy. It simply stated that “dropping a day will assist me in prolonging my working life”.[55]
[54] Exhibit R3, 28.
[55] The absence of an express reference to the knee injury in the request would seem to have been negotiated with the Respondent, as Ms Vros suggested at the hearing. That there was some negotiation of the request might also be inferred from two letters of Dr Charlton addressed “to whom it may concern”, one of 21 February 2019 and the other of 25 February 2019. The first recommends a reduction in working hours as Ms Vros suffers from ongoing stress from her injury and “from the situation”. The second recommends a reduction in working hours simply “to reduce impact on her knee”. At the hearing, evidence was led to the effect that Dr Charlton produced this second letter as Ms Vros was not content with the first.
The reduced working hours request would appear to have been accepted. As from 2019 Ms Vros worked (and currently works) four days per week. In doing so, however, she is precluded from lifting objects weighing in excess of 14kg[56] and (as was the case reflected in the workplace assessment report of July 2017) obtains, informally, assistance with the manual handling of bags.
[56] Ms Vros’ statement of April 2020 marked as Exhibit A1.
As noted earlier, on 1 August 2019,[57] the Respondent determined to reject Ms Vros’ claim of 9 July 2019[58] for permanent impairment and non-economic loss compensation with respect to “a severe knee injury”,[59] a determination affirmed by the permanent impairment decision of 2 September 2019.[60]
[57] 2T5.
[58] 2T4.
[59] In the claim of 9 July 2019, the severe knee injury was characterised as the accepted condition. By this I take it that the reference was to the condition in respect of which the Respondent had, in July 2015, accepted liability to pay compensation, that is, the left knee medial meniscus tear.
[60] 2T8.
I turn now to identify the questions in issue in reviewing the ceased effects and permanent impairment decisions in the legal and factual context just outlined. Before doing so, however, I propose first to address an alternative submission of the Respondent. It is that the condition in respect of which Ms Vros claims to be entitled to compensation is not, for the purposes of the Act, an injury.
ACCEPTED CONDITION AN INJURY?
Under the Act, a condition might be an injury if it is either:
·a “disease” suffered by an employee, that is, an ailment (or an aggravation of an ailment) contributed to, to a degree substantially more than material, by the relevant person’s employment;[61] or
·an injury which is not a disease (or an aggravation of such an injury) suffered by an employee arising out of or in the course of employment.[62]
[61] Act, s 5B.
[62] Act, s 5A. I note that for injuries sustained prior to 12 April 2007 the definition of the term “injury” that applied was one found in s 4 of the Act. Neither party has contended that the amendments that came into effect on that date are of any particular relevance in this proceeding.
It is the “…nature and incidents of the physiological change” engendered by a condition that determines its characterisation as either a disease or an injury (other than a disease). [63]
[63] See Prain v Comcare [2017] FCAFC 143 at [74].
Given the nature and incidents of the physiological change alleged to have occurred in relation to Ms Vros as a result of the April 2015 incident, her claim to an entitlement to compensation under the Act is based on her having suffered an injury, not being a disease, arising out of or in the course of her employment.
The accepted condition (being the meniscus tear) is said by Ms Vros to have been the result of trauma suffered by her in the context of the April 2015 incident. As described by her, it involved “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”[64] or “…some definite or distinct ‘physiological change’ or ‘physiological disturbance’ for the worse which, if not sudden, is at least ‘identifiable.”[65]
[64] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 at 300.
[65] Military Rehabilitation and Compensation Commission v May [2016] HCA 19 at [75].
The Respondent submits that Ms Vros did not suffer such an injury. While it is accepted that she suffered a meniscus tear it is said not to have been a result of trauma from the April 2015 incident. Instead, it is said to have been the result of a pre-existing degenerative condition that was not contributed to, to a degree substantially more than material, by Ms Vros’ employment. At most, says the Respondent, the April 2015 incident resulted in a temporary aggravation of symptoms of a pre-existing meniscal tear.
In order to accept the Respondent’s submission, I need to be satisfied that it is correct. In other words, I will accept that Ms Vros suffered the injury she claims to have suffered (and which the Respondent determined in July 2015 that she had suffered) unless, on the basis of relevant and probative material before me, I am persuaded that she did not.
Approaching the issue in this way is consistent with the accepted position in relation to Ms Vros’ left knee condition.
The Respondent’s July 2015 determination gave rise to an entitlement to compensation payable in accordance with the Act in respect of the accepted condition (albeit not a present entitlement to any particular form of compensation payable under the Act[66]). Given that entitlement, for the purposes of the Act, the accepted position is that Ms Vros suffered a compensable left knee medial meniscus tear injury.
[66] Lees v Comcare [1999] FCA 753 at [34].
In submitting that Ms Vros did not suffer such an injury, the Respondent urges that I make findings of fact that run counter to those underlying Ms Vros’ compensation entitlement and which reflect both a denial that the accepted condition is an injury and a departure from that accepted position.[67]
[67] In considering whether to accept those findings I am not reviewing the determination of 2015. As no reviewable decision has been made as to that determination, I do not have jurisdiction to review it – see Liu and Comcare [2004] AATA 617 at [3]. Hence, “[t]he liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act” – Australian Postal Corporation v Oudyn (2003) 73 ALD 659 at [31]. Instead, what the Respondent is asking of the Tribunal is to make findings of fact that undercut those made in the context of the 2015 determination while nevertheless leaving that determination in place – Telstra v Hannaford [2006] 151 FCR 253 at [59].
Where, as here, a party seeks to prosecute a case that reflects such a departure, the party will only succeed if I can be satisfied that the departure is appropriate[68] (so that, in that sense, the party bears a burden of persuasion[69]).
[68] Toomey and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 468 at [58-59].
[69] Millar and Comcare (Compensation) [2019] AATA 4973 at [152] – a burden that will not satisfied by mere suspicion as to the appropriateness of a departure from an accepted position – Re Lorraine Joy Shearing and Director-General of Social Security [1983] AATA 116 at [30]. This is not to suggest that a party bears an onus of proof – see BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [54] where it was stated that “…the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite….”. Indeed, in Tribunal proceedings, any suggestion that a party bears such an onus, whether legal or evidential, is apt to mislead – Comcare v Power [2015] FCA 1502 at [57]; McDonald v Director-General of Social Security (1984) 1 FCR 354 at 358.
In this matter I am not so satisfied that such a departure is appropriate.
As I noted earlier, Mr Bartlett, an orthopaedic surgeon, opined in July 2015 that Ms Vros had “sustained a traumatic injury with a radial tear of the medial meniscus in the described injury of 2 April 2015,” the meniscus tear being traumatic in origin.[70]
[70] T16, 66.
Mr Kelman, a consultant orthopaedic surgeon, in his report of 3 July 2018, opined that, after having taken a careful history regarding the mechanism of injury, the April 2015 incident gave rise to an injury “…resulting in a medial collateral ligament injury which might well have resulted in a meniscal tear.”[71] Later he states that Ms Vros had “…suffered a traumatic meniscal tear as a result of a twisting injury at work.”[72]
[71] T103, 261.
[72] T103, 264.
Similarly, Mr Slattery, orthopaedic surgeon, in his report of April 2020, opined that Ms Vros suffered the accepted condition as a consequence of the April 2015 incident. In oral evidence he stated that twisting, such as that entailed in the April 2015 incident, was a mechanism known to result in meniscal tears the risk of which, in the case of Ms Vros, was enhanced by her pre-existing osteoarthritis. According to Mr Slattery, “Ms Vros suffered a radial tear of her medial meniscus of her left knee, as stated by Mr Bartlett, which was caused by her fall at work. This is different from a degenerative meniscal tear, which is usually horizontal in nature…”.
While Mr Ma, the orthopaedic surgeon who performed the partial meniscectomy in December 2015, suggested in his reports that Ms Vros’ meniscal tear was a result of
pre-existing degeneration in her knee,[73] in oral evidence he stated that the tear was likely to be attributable to trauma.[73] T108, 275.
I prefer the evidence to which I have just referred to that of Associate Professor Steadman, orthopaedic surgeon, on whose opinions the Respondent relied in submitting that the meniscal tear in Ms Vros’ left knee was the result of a pre-existing degenerative condition.
In his two written reports, AP Steadman did not comment directly on the aetiology of the meniscal tear other than to suggest, in the context of the April 2015 incident, that Ms Vros had sustained “an injury to her patellofemoral joint while the meniscal pathology and associated synovitis was largely incidental.”[74] As I see it, this leaves open the question of whether Ms Vros’ meniscal tear injury was traumatic in origin. In oral evidence, however, AP Steadman stated that Ms Vros’ meniscal tear looked degenerative.
[74] Exhibit R4.
In the context of the other medical evidence previously outlined, AP Steadman’s opinion as to the look of Ms Vros’ meniscal tear does not satisfy the burden of persuasion that must be satisfied if I am to depart from the accepted position and accept that the tear was not, for the purposes of the Act, an injury. This is especially the case given AP Steadman’s acceptance, in oral evidence, that Mr Ma was in a better position than him to assess whether Ms Vros’ meniscal tear was traumatic in origin.
I propose now to address the various questions in issue in relation, first, to the ceased effects decision and then the permanent impairment decision.
QUESTIONS IN ISSUE – CEASED EFFECTS DECISION
The entitlement under the Act to compensation for an injury at a particular time is, generally, contingent on the effects of the injury then continuing. Hence, for a person who has suffered an injury (such as the accepted condition) to be entitled to, say, incapacity for work compensation, the effects of the injury must have been continuing at the time of the incapacity.[75]
[75] Hurley and Australian Capital Territory [2019] AATA 2450 at [80] where it is said, in essence, that for there to be a continuing entitlement to compensation under the Act with respect to an injury, there must be continuing incapacity or impairment as a result of the injury. See also Neuendorf and Australian Postal Corporation (Compensation) [2019] AATA 2430 at [131].
In this proceeding and in the context of the ceased effects decision, the underlying question in issue is whether the effects and symptoms Ms Vros experienced and experiences in relation to her left knee on and from September 2018 constitute the continuing effects of the accepted condition.
As mentioned earlier, in the ceased effects determination the Respondent determined that the effects of the accepted condition had ceased on 17 September 2018. At that time Ms Vros was engaged in work as an employee of the Respondent (and is currently so engaged).
The Respondent accepts that Ms Vros was experiencing at that time (and currently experiences) an incapacity for work. She then had, and currently has, an incapacity to engage in work at the same level at which she was engaged by the Respondent immediately before the April 2015 incident.[76] In particular, the Respondent accepts that the effects and symptoms experienced by Ms Vros in relation to her left knee have resulted in her having had on 17 September 2018, and now having, a continuing incapacity for work.[77] The Respondent was right to do so.[78]
[76] Act, s 4(9).
[77] Respondent’s statement of facts, issues and contentions of 29 April 2020 (R’s SFIC), contention [2].
[78] Reference is made, for example, to the certificates from Dr Charlton of April and July 2018 referred to earlier. I note, for instance, Dr Charlton’s admonition that Ms Vros be restricted from lifting items in excess of certain weights and refer, in this regard, to the decision of Bailey and Australian Postal Corporation [2004] AATA 713 where at [121] it was said that “…the reference in s 4(9) to engaging in work "at the same level" as was the case immediately before the injury happened refers to work in the sense of the work activities which the applicant was previously undertaking, including in this case her ability to receive parcels over the counter of varying weights, and to attend to bagging the mail.”
Further, the Respondent does not contend that Ms Vros does not suffer an impairment[79] as a result of those effects and symptoms or that it was unreasonable for her to obtain the medical treatment she in fact obtained since 17 September 2018 in relation to those effects and symptoms.
[79] An impairment being the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function: Act, s 4(1).
What the Respondent submits, however, is that Ms Vros’ incapacity for work and her impairment is not a result of, and the medical treatment obtained by her was not in relation to, the accepted condition.
More colloquially, the effects and symptoms associated with Ms Vros’ left knee condition are said by the Respondent not to be effects and symptoms of the accepted condition, at least since 17 September 2018. Indeed, according to the Respondent:
· Since 17 September 2018 Ms Vros has ceased to suffer from the effects of the accepted condition.[80]
· Neither the accepted condition nor the partial meniscectomy makes any significant contribution to the symptoms Ms Vros experiences in relation to her left knee.[81]
[80] R’s SFIC, response [4].
[81] Respondent’s short outline of submissions of 18 June 2020 (R’s Outline), [12].
According to the Respondent, the effects and symptoms associated with Ms Vros’ left knee condition are solely[82] or predominantly[83] attributable to the natural progression of osteoarthritis (a condition from which Ms Vros is said to have suffered before the April 2015 incident) in association with constitutional factors irrelevant to her employment (such as her age, genetics, obesity and abnormal anatomical alignment).
[82] R’s outline, [6].
[83] R’s SFIC, response [5].
Ms Vros accepts that the effects and symptoms associated with her left knee condition since 17 September 2018 are generally attributable to osteoarthritis (particularly in the medial compartment of the knee). She is right to do so. Indeed, Ms Vros’ current diagnosis is said simply to be osteoarthritis of the left knee:[84] “Her basic condition at the present time is osteoarthrosis of her left knee.”[85]
[84] Dr Charlton’s report of 30 January 2020 and similar report of 31 July 2018 at T106.
[85] Mr Kelman’s report of 3 July 2018, T103, 264.
Moreover, she does not take issue with the proposition that she suffered from osteoarthritis in her left knee before the April 2015 incident.
Acceptance of the role that osteoarthritis has in Ms Vros’ left knee difficulties does not, however, operate to deny a role to the accepted condition given the potential for
multi-factorial causation to which I referred previously. By causing her left knee osteoarthritis to become symptomatic and to progress at a rate faster than it otherwise would have, the effects and symptoms associated with her left knee osteoarthritis may, for the purposes of the Act, properly be said to be a result of the accepted condition.In essence, Ms Vros submits that:
(a)The accepted condition caused her left knee osteoarthritis to be symptomatic and to progress at a rate faster than it would otherwise (the factual contention).
(b)By so doing, for the purposes of the Act, it may properly be concluded that the accepted condition has resulted in the incapacity for work and impairment caused by the effects and symptoms associated with her left knee osteoarthritis (the legal contention).
I accept both the factual contention and the legal contention. I find that Ms Vros has, since 17 September 2018, continued to suffer from the effects of the accepted condition.
Factual contention – effect of accepted condition on osteoarthritis
While before the April 2015 incident there would appear to have been some osteoarthritic changes to Ms Vros’ left knee, they were then minor.[86] Indeed, Ms Vros’ evidence (which I accept) is that prior to the April 2015 incident she did not experience discomfort in either of her knees.
[86] Reference is made to the report of Dr Bartlett in June 2015 mentioned earlier at T16.
Things rapidly changed for the worse, however, after the April 2015 incident and the partial meniscectomy in December 2015.
First, as is clear from the factual context, Ms Vros’ left knee condition became symptomatic.
Second, the extent of the osteoarthritic changes in her left knee had changed from minor to “severe”.[87] In February 2018, her surgeon, Mr Ma, stated that “x-rays today have confirmed that there is progression of osteoarthritis in her left knee involving the medial compartment. Her joint space is still present but is substantially thin compared to a year and a half, two years ago when she had her knee arthroscopy.”[88] AP Steadman accepted that there had been a rapid degeneration in Ms Vros’ knee.[89]
[87] T98 – MRI scan results of November 2017 characterised the osteoarthritis in the medial femerotibial compartment of Ms Vros’ left as severe.
[88] T100.
[89] See AP Steadman’s report of 4 November 2019.
The Respondent submits that what occurred in relation to Ms Vros’ left knee simply reflected the natural progression of her osteoarthritic condition in combination with a series of non-work-related factors, such as Ms Vros’ age, genetics, obesity and abnormal anatomical alignment.
I reject that submission.
Ms Vros’ left knee osteoarthritis becoming symptomatic, and the degree of osteoarthritic change in her left knee after both the April 2015 incident and the partial meniscectomy did not reflect the natural progression of her pre-existing arthritic condition.
According to Mr Ma, prior to the April 2015 incident Ms Vros had no knee symptoms. As a result of the incident, however, her symptoms had been aggravated. He opined that the incident “… has brought on the symptoms of a degenerative medial meniscal tear and some pre-existing degenerative changes …there is no doubt that I do suspect that her injury has contributed to the aggravation of the pre-existing degenerative changes and meniscal tear… there has been an aggravation of her symptoms from the initial injury sustained in 2015.”[90]
[90] T108, 277.
Similar sentiments were expressed by Dr Kennedy, sports and industrial physician. According to him “…the acceleration and exacerbation of the osteoarthritic changes in her left knee joint have occurred as a direct consequence of the work incident on 2 April 2015 referenced by the comparison to x-rays of her right knee joint with regard to the progression and acceleration of osteoarthritic changes in her left knee joint.”[91]
[91] See Dr Kennedy’s report of 17 April 2019.
In oral evidence, Dr Kennedy stated that trauma was a significant accelerant of osteoarthritis, a condition the symptoms of which was also likely to be accelerated by a meniscectomy. As for this latter point, Dr Kennedy explained that the medial meniscus helps protect the articular cartilage from damage. A discectomy removes meniscal tissue and thereby accelerates cartilage damage.
Ms Vros’ osteoarthritis of the left knee was characterised by Mr Slattery, orthopaedic surgeon, to be secondary to trauma and the partial meniscectomy.[92]
[92] See Mr Slattery’s report of 21 April 2020.
As for trauma, Mr Slattery opined in oral evidence that the injury Ms Vros suffered in the context of the April 2015 incident precipitated her left knee condition becoming symptomatic.
As for the effect of the partial meniscectomy, like Dr Kennedy (and consistent with Mr Bartlett’s forecast in 2015), Mr Slattery stated that the “…excision of the medial meniscal tear has contributed to the development of her osteoarthritis, as per the AMA Guides to Causation second edition.” In the case of Ms Vros, Mr Slattery opined that the contribution of the partial meniscectomy to her knee problems was substantial. According to Mr Slattery, a result of a meniscectomy is to increase the rate of wear on the relevant knee, with the actual rate depending on the size of the tear and the amount of the meniscus which is removed, especially the latter factor. In Ms Vros’ case, Mr Slattery considered that a significant amount of meniscus had been removed, a removal that had occurred in the context of a knee cartilage that had already been damaged by pre-existing osteoarthritis.
That a significant amount of the meniscus had been removed (or, at least, more than would have been thought necessary given the initial description of the meniscal tear as being two millimetres in length) was confirmed by Mr Ma. Mr Ma’s estimate was that the tear was, in fact, five to six millimetres in length, reflecting the extent of the trimming he undertook in the context of the partial meniscectomy.
I prefer the evidence to which I have just referred to that on which the Respondent sought to rely in pursuing its ceased effects submission (being the evidence of Mr Kelman and AP Steadman).
Mr Kelman’s evidence was, from the Respondent’s perspective, equivocal, at best.
Mr Kelman seemed to be of the view that the accepted condition no longer had any effect on Ms Vros’ condition. He stated that “…the traumatic meniscal tear suffered by the applicant as a result of a work injury has now been adequately dealt with…” by the partial meniscectomy[93] and that the accepted condition “… has now been addressed and is no longer relevant. ”[94]
[93] T103, 264.
[94] T103, 266.
A conclusion that the accepted condition no longer had any effect, and Mr Kelman’s characterisation of the accepted condition as now being irrelevant, is, however, difficult to reconcile with other aspects of Mr Kelman’s evidence. For instance, he stated that:
·The accepted condition is “a precursor of arthritic change in” Ms Vros’ knee.[95]
·The “injury to her knee possibly caused a tear of her meniscus and rendered her knees symptomatic”.[96] I note in passing that Mr Kelman’s reference to “knees”, plural, is somewhat peculiar given that he acknowledged that Ms Vros’ right knee was asymptomatic.[97]
·Ms Vros’ osteoarthritis in her left knee was aggravated by the accepted condition; “…there has been an aggravation of the underlying arthritic condition as a result of this injury. However, the progress is inevitable, severe arthritis will develop and she will ultimately be a candidate for joint replacement surgery.” [98]
[95] T103, 261.
[96] T114, 297.
[97] T103, 263.
[98] T114, 298.
This last statement suggests that Mr Kelman’s opinion that the accepted condition “is no longer relevant” is based on a proposition that events which accelerate the progress of an underlying condition are irrelevant if, ultimately, it is inevitable that the condition will progress. Hence, Mr Kelman was able to conclude that, while Ms Vros’ condition was aggravated by the accepted condition, it was not caused by it. As I see it, Mr Kelman’s apparent reliance on this inevitable proposition has led him astray.
The fact (if it is a fact) that, in the unaided progression of her pre-existing osteoarthritis, Ms Vros’ left knee condition would ultimately have reached the point it was at on 17 September 2018 and is at currently is irrelevant.
Where a person has been incapacitated for work because an injury has aggravated an underlying condition, any award of compensation “…is not terminable because that incapacity would in any case have been the end result of the pre-existing disease.”[99] Where an aggravation of a disease results in incapacity and provided that the effect of the aggravation continues,[100] “…it is beside the point to say that if the aggravation had not occurred total incapacity or death would at some later time have resulted from the natural progress of the disease.”[101]
[99] Darling Island Stevedoring v Hankinson (1967) 117 CLR 19 at 26-27 per Barwick CJ. See also Martin v Australian Postal Corp [1999] FCA 655.
[100] Cf Casarotto v Australian Postal Commission [1989] FCA 116 which dealt with short lived or trivial effects of work-place incidents on an underlying condition. See Re Commonwealth Banking Corporation v Raymond William Percival [1988] FCA 240 at [27] – “… it is to be inferred from the whole of the Tribunal's reasoning that the Tribunal was not satisfied that there was any relevant continuing aggravation of Mr Percival's condition after his retirement. Such a finding was essential if the Tribunal was to hold that Mr Percival had a compensable incapacity for work.”
[101] Darling Island at 31 per Taylor J.
Mr Kelman sought to attribute to factors related to “leg dominance and possibly other out of the workplace activities” the fact that the effects and symptoms experienced by Ms Vros in relation to her left knee were materially worse than those she experienced in relation to her right knee.[102] While Mr Kelman was prepared to accept that unidentified “out of the workplace activities” may have had an effect, it is unclear why he would deny any effect to an injury which he expressly accepted had possibly rendered Ms Vros’ “knees” symptomatic and aggravated her osteoarthritis.
[102] T114, 296.
As for AP Steadman’s evidence, a difficulty with it arises from his mischaracterisation of the issue in contention. He said the debate between the parties is as to whether the accepted condition (referred to as the injury at work) was the cause of Ms Vros’ osteoarthritis. His response to that debate is to note that osteoarthritis reflects a
disease-based degenerative process. That response, however, fails to address the real issue in dispute, which (as described earlier) is whether the accepted condition caused that osteoarthritis to become symptomatic and progress (or was a cause of it becoming symptomatic and progressing) at a rate faster than it otherwise would have.AP Steadman did, however, opine that Ms Vros’ employment did not contribute to an aggravation of her pre-existing progressive underlying constitutional condition: “…. in my opinion the aggravation for the work related injury would long have passed.”[103] Rather, the most significant factors contributing to her condition were said to be age, genetics and morbid obesity, with morbid obesity being the main reason for the rapid degeneration in Ms Vros’ knee. Indeed, in his report of 13 August 2019, in response to a question as to what factors were contributing to Ms Vros’ left knee injury, AP Steadman referred simply to age and obesity.
[103] See AP Steadman’s report of 13 August 2019.
Those factors afford no explanation as to why the degeneration in Ms Vros’ left knee progressed at a rate significantly faster than that of her right knee. Moreover, the factor on which AP Steadman appeared to place most reliance, obesity, does not explain why the left knee became symptomatic after the April 2015 incident. While the evidence before me suggests that obesity has a role to play in the development of osteoarthritis, in the case of Ms Vros it fails to explain why the osteoarthritic condition in her left knee became symptomatic and rapidly progressed after the April 2015 incident, while the osteoarthritis in her right knee remained asymptomatic.[104] There had then been no sudden or significant upsurge in Ms Vros’ weight. On the material before me (and as elaborated upon in
cross-examination of Ms Vros) her weight would seem to have been relatively consistent over the period 2007 to 2019 (something which Ms Vros’ general practitioner, Dr Charlton, confirmed in oral evidence).[104] In referring to Ms Vros’ right knee as being asymptomatic I am referring to it as such in both a general sense and a relative sense (when compared to the condition of her left knee). I recognise in this regard that Ms Vros may have, on occasion, suffered some discomfort in relation to her right knee: see T96, 243 in relation to an assessment conducted in July 2017 where reference is made to Ms Vros having reported soreness in her right knee.
In cross-examination, AP Steadman suggested other factors that might explain the differences in the condition of Ms Vros’ knees; body shape asymmetry and left leg dominance. He did not, however, identify any relevant asymmetry in Ms Vros’ body shape. As for left leg dominance, why it would offer an explanation for the rapid progression of Ms Vros’ left knee osteoarthritis after the April 2015 incident more plausible than that offered by the accepted condition and partial meniscectomy was left unclear.
Legal contention – result in incapacity or impairment if injury accelerates or renders pre-existing condition symptomatic?
As I stated earlier, by causing Ms Vros’ left knee osteoarthritis to become symptomatic and to progress at a rate faster than it otherwise would have, for the purposes of the Act, the effects and symptoms associated with that osteoarthritis may properly be said to be a result of the accepted condition.
Like the case addressed by Burchett J in Martin,[105] here and as a result of the accepted condition, Ms Vros’ underlying osteoarthritic condition in her left knee was rendered symptomatic, “… not just for a time, but so as to continue increasingly to cause pain and disability thereafter.”
[105] Martin v Australian Postal Corporation [1999] FCA 655 at [28].
Attributing to her work-place injury (the accepted condition) the effects and symptoms of an underlying pre-existing condition rendered symptomatic by the injury simply reflects the principle that an employer takes its employees as it finds them. As in the case where a work-place injury brings about incapacitating psychological symptoms of a person pre-disposed to mental illness, “…the injury is an element which only completes the tale of circumstances which constitutes the cause of the incapacity in the non-legal sense, but in the legal sense it is itself the cause of the incapacity which ‘results’ from it:… The legal concept of causation when applied to the field of personal injury takes the person injured as it finds him, with all the predispositions and susceptibilities, whatever they may be…”.[106]
[106] Commonwealth v Smith (1989) 18 ALD 224 at 226 per von Doussa J, cited in Hurley and Australian Capital Territory (Compensation) [2019] AATA 2450 at [91].
The accepted condition:
·Aggravated Ms Vros’ osteoarthritis in the sense of making it worse (rather than simply the osteoarthritis having become worse).[107]
·By causing her osteoarthritis to become and remain symptomatic to an extent sufficient to result in incapacity[108] and impairment, it has been “an effective and operative cause” of, or a “material contributor” to, the incapacity and impairment which Ms Vros suffers from in connection with, and her need for medical treatment in relation to, that osteoarthritis.[109]
[107] Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537 at 593 per Windeyer J.
[108] See, for example, Caldipp v Delov [2002] FCAFC 352 where Higgins J, addressing legislation analogous to the Act, stated at [74] that “The point is that it is only necessary that the employment aggravates the symptoms of the underlying disease to the point where those symptoms cause incapacity.”
[109] I note that, in the context of aggravation of a disease, the person’s employment needs to have contributed, to a significant degree, to it. The need for a significant contribution applies in the link between employment and the aggravation. While I have not sought to rely on them in these reasons, several authorities suggest that there is no similar need in relation to the link between the aggravation and its effects on, say, work incapacity. For instance in Walshe and Comcare [2013] AATA 812 at [46] it was said that the Act requires that “employment be a material cause of the aggravation” but not that “the effect of the aggravation be material” (citing Mellor v Australian Postal Corporation (2009) 108 ALD 159 at [36]). See also Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 at 328. It is, however, still necessary that an injury constituted by an aggravation of a condition result in, say, incapacity or impairment and it is unclear why this should be considered to be the case where the effect that the aggravation has on a person’s capacity for work or impairment can be identified and is assessed as being immaterial. Moreover, it is clear that the decision in Treloar requires reconsideration in the light of legislative change: see Dunstan v Comcare [2011] FCAFC 108 at [38-39].
As is apparent from this conclusion, I reject the Respondent’s implicit contention that, in order to be compensable, it is necessary that the accepted condition have made a significant contribution to Ms Vros’ incapacity for work, impairment and need for medical treatment. No authority was cited in support of that contention. Instead, as I stated earlier, it is sufficient if the accepted condition continues as an “effective and operative” cause of, or is a material contributor[110] to, that incapacity, impairment and need.
[110] Small and Comcare [2017] AATA 2383 at [139] where it was said to be sufficient that an injury contributes in a material sense to incapacity. See, too, Gordon and Comcare (Compensation) [2020] AATA 352 at [70-73].
BAKER’S CYST HYPOTHESIS
Before addressing the questions in issue in relation to the impairment decision I propose to address, briefly, an alternative hypothesis raised by the Respondent on the first day of the hearing of this proceeding.
On that day, the Respondent raised the possibility that the effects and symptoms suffered by Ms Vros might have been the result of a baker’s cyst, rather than her medial meniscus tear.[111]
[111] On the first day of the hearing the Respondent submitted a two-page memorandum headed “Bakers cyst alternative injury thesis”.
Insofar as by raising that possibility the Respondent was making a submission, I reject it. No relevant and probative material was before me (and, in particular, no medical evidence was adduced) on the basis of which I could be satisfied that Ms Vros’ symptoms were the result of a baker’s cyst.
Indeed, the medical evidence before the Tribunal suggested that the existence of a baker’s cyst provided corroboration for the case put on Ms Vros’ behalf that the accepted condition was the result of a traumatic incident rather than a pre-existing constitutional condition. For instance, in oral evidence, Dr Kennedy, a sports and industrial physician, opined that the baker’s cyst was suggestive of trauma to Ms Vros’ knee joint. It was likely to have been formed over a period of weeks due to excess synovial fluid being produced because of joint irritation caused by the meniscal tear.
QUESTIONS IN ISSUE – PERMANENT IMPAIRMENT DECISION
As I stated earlier, where an injury results in impairment, a liability to pay compensation in accordance with the Act may arise where the impairment is permanent (that is, likely to continue indefinitely[112]) and the degree of that impairment is 10% or more[113] as determined using “the approved guide”[114] (being the Guide to the Assessment of the Degree of Permanent Impairment 2011 Edition 2.1 (Cth) prepared and approved under s 28 of the Act).
[112] Act, s 4(1).
[113] Act, s 24(7).
[114] Act, s 24(5).
Ms Vros will be considered to suffer from an impairment if her condition entails the loss, the loss of the use, or the damage or malfunction, of any part of her body or of any of her bodily systems or functions or part of such system or function.[115]
[115] Act, s 4(1).
It is not in issue that Ms Vros suffers from such an impairment caused by the effects and symptoms associated with her left knee osteoarthritis. Moreover, I have concluded that this impairment is the result of the accepted condition. In light of this conclusion, the “resultant effect”[116] of the accepted condition involves damage to a part of Ms Vros’ body and the malfunction of her left knee joint.
[116] Howard v Comcare [2019] FCA 1031 at [33].
In the context of the permanent impairment decision, what remains in issue is whether the impairment from which Ms Vros suffers as a result of the accepted condition is permanent and whether the degree of it is 10% or more, assessed using the approved guide.
I am not satisfied as to either of those matters.
Impairment permanent?
In determining whether the impairment resulting from the accepted condition is likely to continue indefinitely (i.e. whether it is permanent), the Act requires that regard be had to all relevant matters, including:
(a)The duration of the impairment.
(b)The likelihood of improvement in Ms Vros’ condition.
(c)Whether Ms Vros has undertaken all reasonable rehabilitative treatment for the impairment.
Having regard to these factors, I am not satisfied that the impairment which results from the accepted condition is permanent. While it has subsisted for some time, the material before me suggests that there are real prospects for improvement upon her undergoing the full or partial knee replacement surgery which it is suggested that she will (or, at least, will need to) undergo. Further, whether or not such surgery might be characterised as rehabilitative,[117] that surgery has been in prospect for some time but is yet to be undertaken.
[117] Filla v Comcare Australia [2001] FCA 964 at [22] where Katz J suggested that open heart surgery may properly be characterised as rehabilitative treatment.
In this regard, in her oral evidence Ms Vros stated that she will undergo knee replacement surgery if her medical advice is to do so. It would, however, appear that she has already had that advice. In her letter of 30 January 2020, Ms Vros’ general practitioner, Dr Charlton, stated that the “…treatment required is eventually a total knee replacement. Physiotherapy and exercises can also improve symptoms. Jo’ann is aware of this and has seen a knee surgeon, Mr Francis Ma. She is awaiting the right timing for this knee replacement.”
Dr Charlton’s reference to the right timing for the surgery is unclear in the sense that it appears to be a matter that has been left to Ms Vros, as opposed to a medically recommended deferral. Indeed, I was unable to locate in the material before me any medical reason for such a deferral. Whatever is the case, however, it is clear that the prospect of, and need for Ms Vros to undergo, surgical treatment has been apparent for some time.
In his April 2020, report Mr Slattery stated that it “…is likely in the future that … [Ms Vros] will require either a partial or full knee replacement.” In August 2019, AP Steadman stated that “it is highly likely that eventually she will have a knee replacement.”[118] In his April 2019 report, Dr Kennedy stated that “…on the balance of probabilities …[Ms Vros] will require a left total knee arthroplasty procedure in the foreseeable future.” In 2019, the knee surgeon to which Dr Charlton referred, Mr Ma, had already apparently advised Ms Vros “… that she will require a total knee arthroplasty procedure in the future”.[119] In a letter of 31 July 2018, Dr Charlton opined that Ms Vros’ condition will not resolve until she has a total knee replacement operation.[120] Also in July 2018, Mr Kelman stated that “surgery will ultimately be required for her knee in the form of a joint replacement.”[121] In February 2018, Mr Ma stated that he discussed with Ms Vros that future joint replacement surgery may be an option, involving medial unicompartmental knee replacement or total knee replacement.[122]
[118] Report of AP Steadman of 13 August 2019.
[119] See report of Dr Kennedy of 17 April 2019 in the context of discussing Ms Vros’ medical history.
[120] T106, 270.
[121] T103, 265.
[122] T108, 277.
I infer from this unanimity of medical opinion that there is a reasonable basis to believe that the contemplated surgery represents a real prospect of materially ameliorating the level of impairment from which Ms Vros suffers as a result of the accepted condition.
Given the prospect of surgical treatment (and in light of the matters to which I am required to have regard), I am not satisfied that the impairment resulting from the accepted condition is likely to continue indefinitely.
Degree of impairment 10% or more?
Even if (contrary to what I have found) the impairment resulting from the accepted condition is permanent, I am not satisfied that the degree of it is 10% or more.
Two assessments of the degree of that impairment are before me.
The first was made by Mr Slattery. It comprises two elements, a fixed flexion deformity (described by Mr Slattery as reflected in a failure to reach full extension) and a varus angulation (which, according to Mr Slattery, is often characterised as bowlegs).
On behalf of Ms Vros, it is submitted that I should ignore Mr Slattery’s assessment. It is said to take into account impairment which is not the result of the injury in question, the accepted condition. Instead, according to Ms Vros, it takes into account an effect on her gait, an effect which pre-dated the April 2015 incident.[123]
[123] Applicant’s outline of submissions of 10 June 2020.
I accept that submission, in part. As Mr Slattery acknowledged, the varus angulation element of his assessment was unlikely to be a result of the accepted condition. It is that element of Mr Slattery’s assessment which I ignore.
As for the fixed flexion deformity element of Mr Slattery’s assessment, I do not accept it, basically for reasons identified by the Respondent.[124] In particular, the capacity to carry out an effective assessment was impeded by the necessity to conduct it via a “telemedicine consultation.” Mr Slattery was unable to conduct a physical measurement of the range of motion of Ms Vros’ left knee, and nor did Mr Slattery ensure (contrary to the approved guide) that his measurement was consistent over several repetitions.
[124] Respondent's short outline of submissions of 18 June 2020.
The second assessment of the degree of Ms Vros’ impairment resulting from the accepted condition was made by Dr Kennedy. He arrived at a 20% degree of impairment applying Table 9.7 of the approved guide.
I am not satisfied of the validity of Dr Kennedy’s assessment. In particular, I am not satisfied that Table 9.7 was the appropriate table to apply in the circumstances, for the reasons which follow. Before outlining those reasons, however, I should first say something about the structure of the approved guide.
Part 1 of the approved guide identifies certain principles to be applied in making an assessment. The seventh such principle states that where a table “…is applicable in respect of a particular impairment, there is no discretion to choose an impairment value not specified in that table.” Principle 12 states that where an assessment cannot be made “…in accordance with the provisions of Part 1 of this guide, the assessment is to be made under the American Medical Association’s Guides to the Evaluation of Permanent Impairment 5th edition 2001”.
Chapter 9 of the approved guide deals generally with impairments concerning the musculoskeletal system, with Part 1 of that chapter devoted to the lower extremities.
In the introduction to Part 1 of Chapter 9, the principle that an assessment may be made under the provisions of the American Medical Association’s Guides to the Evaluation of Permanent Impairment 5th edition 2001 is said to apply where a condition cannot be assessed under any of Tables 9.1 to 9.4. I pause here to note that no assessment under those guides is before me.
In the introduction to Part 1 of Chapter 9 of the approved guide, there can also be found statements concerning when an assessment may be made under Table 9.7 and when such assessments cannot be so made.
As to when an assessment may be made under Table 9.7, it is said that this may occur where the assessor considers “…that the impairment is not adequately assessed using one of Tables 9.1, 9.2, 9.3 and 9.4, and the condition does not cause a reduction in the range of motion of a joint but there is significant interference with gait”.
As to when an assessment cannot be made under Table 9.7, it is said that this is the case “…if the condition causes a reduction in the range of motion of a joint and an assessment can be made under any one or more of Table 9.1, 9.2, 9.3 or 9.4.”[125]
[125] This is repeated in the introduction to Table 9.7 of the approved guide.
Turning now to the specifics of Ms Vros’ case, her condition does cause “a reduction in the range of motion of” her left knee joint.
Given this, we are not here dealing with a situation where it is said that an assessment may be made under Table 9.7. Nor, however, are we dealing with a situation where it is said that such an assessment cannot be made provided that Ms Vros’ impairment cannot adequately be assessed, or an assessment made, under any of Tables 9.1 to 9.4.
On behalf of Ms Vros it is submitted that her impairment cannot be assessed adequately, or an assessment made, under any of Tables 9.1 to 9.4. I am not satisfied that this is the case.
Table 9.3 is expressed to apply to knees. In particular, it is expressed to apply to an assessment of impairments to range of motion and deformity of the knee. A criterion by reference to which assessments under Table 9.3 are made concerns degrees of flexion. For example, if the impairment to a knee involved 80° to 105° of flexion, the impairment would be assessed under Table 9.3 as 5%. Similarly, the impairment would be assessed at 10% if the degrees of flexion involved were between 60° and 75°.
Ms Vros contends that the degree of flexion in her left knee exceeds 105° and that no other criteria relevant to an assessment under Table 9.3 apply. Hence, it is said that no assessment could be made under Table 9.3, given that it does not expressly provide for a zero percent level of impairment (unlike, say, Tables 9.5 and 9.6). Applying the seventh principle outlined in Part 1 of the approved guide, I am not at liberty to choose an impairment value not specified in Table 9.3. Hence, contrary to what the Respondent impliedly suggests that I do, I am unable to come to an assessment of impairment of less than 5% under Table 9.3, given that the Table does not provide for impairment values of less than 5%.
Table 9.3 does, however, provide for an impairment value of 5%. In the case of Ms Vros, it would do so if the degree of flexion in her left knee was 105° or less. While Ms Vros contends that it was more than 105°, in the material before me there are at least six assessments of that degree of flexion, only two of which would have it exceeding 105°. Chronologically, there was an assessment of 70° in July 2015 (Mr Bartlett), 120° in February 2018 (Mr Ma), 90° in June 2018 (Mr Kelman), 115° in April 2019 (Dr Kennedy), 95° in August 2019 (Mr Steadman) and 75° in March 2020 (Mr Slattery).
Given the significant variation in these assessments (albeit ignoring Mr Slattery’s assessment) and given that the most recent, reliable assessment had the degree of flexion in Ms Vros’ left knee being less than 105°, I am not satisfied that the degree of flexion exceeds 105.° As such, I am not satisfied that Ms Vros’ impairment cannot be adequately assessed or an assessment made under Table 9.3. Accordingly, I am not satisfied of the validity of the assessment made by Dr Slattery under Table 9.7.
DECISION
With respect to the proceeding designated by the Tribunal as 2019/0532, the Tribunal decides to set aside the decision under review and remit it to the Respondent for reconsideration in accordance with a direction that Ms Vros is to be considered to have been on 17 September 2018, and to be currently, continuing to suffer the effects of her left knee medial meniscus tear injury.
With respect to the proceeding designated by the Tribunal as 2019/5810, the Tribunal decides to affirm the decision under review.
I certify that the preceding 148 (one hundred and forty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Chris Furnell
.....[sgd]........................................
Associate
Dated: 8 April 2021
Dates of hearing:
1-3 June and 1 July 2020
Counsel for the Applicant:
Solicitors for the Applicant:
Mark Carey
Angela Sdrinis Legal
Advocate for the Respondent:
Roy Seit
Solicitors for the Respondent:
Australian Postal Corporation
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