Wallace and Comcare

[2004] AATA 633

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 633

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/322

GENERAL ADMINISTRATIVE DIVISION		)
Re		GORDON WALLACE

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date22 June 2004

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

...................[Sgd]......................

J Cowdroy
  Member

CATCHWORDS

WORKERS’ COMPENSATION – benefits and entitlements – pre-existing injury to left knee – degenerative changes in left knee – whether left knee degenerative changes accelerated by the increase strain on the left knee due to right knee injury which occurred in the course of employment – conjecture - no causal relationship shown  – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 s 4

Treloar v Australian Telecommunications Commission (1990) 97 ALR 321

REASONS FOR DECISION

22 June 2004  Ms J Cowdroy, Member     

1.      This decision relates to a review of a decision dated 18 December 2001, affirmed on reconsideration, which refused liability for a left knee condition. 

Hearing

2.      The review was conducted by way of hearing on 20 January 2004.  The applicant represented himself. Mr B Dubé appeared for the respondent, who called Dr Ho to give evidence.

3. Before the Tribunal was the T-documents admitted into evidence as exhibit 1, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, as well as the following documents:

Exhibit 2        Statement by the applicant dated 5 April 2003

Exhibit  3       Report of Dr Ho dated 13 September 2003

Exhibit 4Letter from Mr Dubé to Mr Wallace dated 25 June 2003 and his response dated 11 July 2003

Evidence

4.      The applicant gave evidence. He was born on 23 March 1936. He was conscripted into National service on 14 August 1956 and he was discharged as medically unit for service on 21 February 1957.

5.      On 18 January 1995, liability was accepted for a posterior cruciate rupture of the right knee with secondary degenerative joint disease, as a result of a motor vehicle accident that occurred on 2 October 1956. The symptoms failed to resolve after the accident and surgery was performed.  The applicant was hospitalized for a period of about three months.

6.      The applicant had injured his left knee prior to Army service, in respect of which cartilage surgery was performed in about 1955.  Following that period, he was relatively symptom free in that leg for many years. 

7.      He was unsure when the first symptoms in his left knee occurred, however he acknowledged that he told Dr Ho it was about 1996. Up until 1991, his employment was of a sedentary nature which did not place any great demands upon his knee.  In 1991 he changed employment and his work was of a more physical nature.

8.      The applicant lodged a claim for acceptance of his left knee on about 7 August 2000.  He stated relevantly:

“Because of the accident, which occurred during my military service, which caused damage to my right knee, added stress was delivered onto my left knee. In the early treatment of the injury I was confined to moving about on crutches and weight transference was constant. During the course of the years I have had my right knee cause considerable disability on occasions and some disability constantly. I have had to place extra strain onto my left knee because of the defect apparent in my right.  As time has passed and the disability of my right knee increased I have had to depend on my left knee more and more. For years I have had to “lead” with my left leg when walking up or down stairs or steep slopes.  This has, and continues to place, stress onto my left leg/knee that would not have occurred if I had not had the accident. The constant extra strain on my left knee has considerably shortened the life of effective use.  The injury to my right knee is the sole contributing factor to the onset of disability to my left knee.” 

9.      The applicant relied on a statement from his local medical officer, Dr M Clutterbuck to the effect that it was probable that his left knee degenerative changes were accelerated by the increased strain placed on his left knee due to the right knee condition.

10.     He was also relying, to some degree on the comments of Dr Ho, orthopaedic surgeon, who in a report dated 13 September 2003, stated:

“It would be nearly impossible to quantify how much the right knee had accelerated the degeneration of his left knee.  In my opinion, an educated guess would be in the region of 20% of contribution in terms of acceleration of his left knee osteoarthritis.”

Medical Evidence

11.     Dr M J Clutterbuck provided a diagnosis of “gross degenerative change” to the left knee, which is synonymous with osteoarthritis.  He considered it was probable that the applicant’s left knee degenerative changes were accelerated by the increase strain on the left knee due to his right knee injury (T5/11).

12.     At T26/49, Dr Clutterbuck referred to the left knee cartilage surgery performed on the applicant prior to his Army service.  He goes on to state:

“The left knee would have been subjected to added stress during his army service as a result of its necessity to support the injured right knee.” 

13.     Dr Ho, orthopaedic surgeon, considered that the applicant’s left knee osteoarthritis was evident in the medial compartment of the knee. The principal cause of his osteoarthritis in that knee was most probably related to a football injury in 1954 and its aftermath. His understanding was that the medial meniscus had been removed in about 1955.  At that time, keyhole surgery technique was unheard of, with the result that the presence of a tear in the medial meniscus was treated by removing the meniscus in its entirety. Present best practice would be to remove only the part of the meniscus which is torn.

14.     In the situation where the entire meniscus is removed, the patient is more likely to develop osteoarthritis in the medial compartment of that knee.  Significantly, in his opinion, this is the only area of the applicant’s left knee that is affected.  This is to be contrasted with his right knee osteoarthritis, which affects all three compartments. 

15.     The osteoarthritis in the left knee has been of slow progression, given that the symptoms did not have their onset until the 1990s.  On the basis that the applicant had been engaged in sedentary duties until 1991, coupled with the slow progression of osteoarthritic disease, he considered that any contribution emanating from the right knee was “less important”.  When asked to give an opinion on the balance of probability as to whether there was a contribution made by the right knee, he considered it “impossible” to say.  Having regard to the slow progression of the osteoarthritis and the sedentary duties, it was “less likely” that there was a relationship between the right knee and the left knee. If there was such a contribution, however, he considered it would be a maximum of 20 per cent.

Legislation

16.     The Tribunal accepts the applicant’s evidence which demonstrated some uncertainty as to the onset of symptoms in relation to the left knee. However, the Tribunal finds that the symptoms had their onset after 1 December 1988.

17.     For liability to exist under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”), it must be shown that the claimant has suffered an injury or disease either arising out of, or aggravated by the claimant’s employment. Section 4 of the Act defines disease as:

“(a)     any ailment suffered by an employee; or

(b)       the aggravation of such ailment;

being an ailment or aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth.”

Findings and Consideration

18.     The medical evidence supports a finding that the applicant underwent left knee surgery to the medial meniscus in about 1954 following a football injury in 1954. The x-ray evidence reveals the presence of osteoarthritis only in that compartment of the left knee.

19.     The Tribunal had regard to the opinion of Dr Clutterbuck, however in such matters, it defers to Dr Ho’s specialist qualifications in orthopaedic matters. It also notes that Dr Clutterbuck appears to be unaware that the applicant’s Army service was of six months’ duration, of which three months was spent in hospital.  Accordingly, the foundation on which his opinion was based is questionable. 

20.     The Tribunal was mindful of the guidance provided by the Federal Court of Australia in the matter of Treloar v Australian Telecommunications Commission (1990) 97 ALR 321. The following passages (at 328) are particularly instructive:

“Once it is established that an employee in the doing of his work was exposed to ‘a state of affairs to which he would otherwise not have been exposed’ or to ‘some characteristic of or condition in which the work was to be performed’ that such exposure was in truth a ‘contributing’ factor to the condition in respect of which he seeks compensation, then it maters not whether the contribution was of any particular size or degree

…The causal connection must be established on the probabilities and not left in the area of possibility or conjecture.  Once the link is established, however, it matters not that the contribution be large or small.”

21.     Whilst Dr Ho had provided an opinion which appeared to be supportive to some degree to the argument that the right knee condition had contributed to the development of osteoarthritis in the left knee, his oral evidence at hearing and the qualifications he attached to his initial opinion, leads the Tribunal to conclude that any causal connection was in the area of “possibility” or “conjecture”.  Therefore, the Tribunal finds that it was more probable than not that the right knee condition has not “contributed” to the left knee condition. 

22.     The Tribunal affirms the decision under review.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  20 January 2004
Date of Decision  22 June 2004

The Applicant appeared in person

Solicitor for the Respondent          Mr B Dubé, Australian Government Solicitor