Whitham and Comcare
[2010] AATA 161
•9 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 161
ADMINISTRATIVE APPEALS TRIBUNAL )
) No.s 2008/4948
GENERAL ADMINISTRATIVE DIVISION ) & 2009/5144 Re LAURENCE WHITHAM Applicant
And
COMCARE
Respondent
DECISION
Tribunal M.D. Allen, Senior Member
A. Britton, Senior Member
Dr J Campbell, MemberDate9 March 2010
PlaceSydney
Decision 1.In matter 2008/4948 the decision under review is AFFIRMED.
2.In matter 2009/5144 the decision under review is SET ASIDE and the Tribunal remits this matter to the Respondent with the Direction that, pursuant to section 25 of the Safety, Rehabilitation and Compensation Act 1988, the Applicant is entitled to payment of compensation for permanent impairment at the interim rate of 10% AND THAT further investigations are to be undertaken by the Respondent to determine what, if any, reasonable rehabilitation treatment might be undertaken by the Applicant.
- The question of costs is adjourned to a date to be fixed.
..................[sgd].........................
M.D. Allen, Presiding Member.
CATCHWORDS
WORKERS COMPENSATION – Application for payment for permanent impairment. Degree of permanent impairment assessed at 20% but possibility rehabilitative treatment would decrease degree of permanent impairment. Interim award of 10% permanent impairment, pursuant to s25 of Safety, Rehabilitation and Compensation Act 1988, and direction for further investigation regarding rehabilitative treatment.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, Ss24(2), 25.
CASES
Filla v Comcare (2002) 115 FCR 144
Comcare v Filla (2002) 115 FCR 163
REASONS FOR DECISION
9 March 2010 M.D. ALLEN, Senior Member
A BRITTON, Senior Member
Dr M.E.C. THORPE, Member1. This matter concerned two applications for review, both relating to claims for permanent impairment resulting from injuries to the Applicant’s left leg and knee.
2. At all relevant times the Applicant was an employee of the Australian Broadcasting Commission (“ABC”). On 20 December 2005 he fell in the car park of the ABC studios at Ultimo, Sydney, and suffered an injury to his left knee, viz a left tibial eminence avulsion injury with detachment of the anterior cruciate ligament. As a result he underwent surgical repair then immobilisation for two months and later physiotherapy.
3. Whilst still undergoing physiotherapy for his first injury, on 30 May 2006 the Applicant again slipped and suffered on this occasion a fractured left femur which was repaired by the insertion of a plate and screws.
4. Since that time, although further remedial surgery was recommended by his treating orthopaedic surgeon, Dr Papadimitriou, the Applicant has had no further therapeutic intervention.
5. This matter originally came before us on the 2nd and 3rd days of November 2009. After hearing from the Applicant’s specialist orthopaedic surgeon, Dr Weisz, and the Respondent’s expert, orthopaedic surgeon Professor Ehrlich, the Tribunal was concerned that neither specialist had carried out any direct examination of the Applicant to ascertain what his capabilities in fact were. We considered that it was therefore impossible to come to any conclusion as to the degree of incapacity as assessed pursuant to Table 9.7 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment (2nd Edition), (“the Guide”).
6. At the request of the Tribunal the parties agreed to an examination of the Applicant by a medical practitioner agreed to by them. In the event the Applicant was examined by orthopaedic surgeon, Dr Raymond Wallace. Dr Wallace’s report of 27 December 2009 became Exhibit R6 in these proceedings.
7. In that report, Dr Wallace, after taking a history from, and examining, the Applicant, stated that the Applicant’s condition in relation to his work injuries had now stabilised and that he had reached maximum medical improvement. He opined that the Applicant’s impairment pursuant to Table 9.7 of the Guide was 20%.
8. Both parties accept the opinion by Dr Wallace that the Applicant currently suffers 20% impairment but the Respondent submitted that the Applicant’s degree of impairment was not permanent, in that further physiotherapy or surgery might improve his condition.
9. Subsection 24(2) of the Safety, Rehabilitation and Compensation Act 1988, (“the SRC Act”), reads:
“(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and(d) any other relevant matters.
10. There is evidence in this matter that the Applicant’s degree of impairment might well be lessened by further surgical intervention.
11. On 8 May 2007, Dr Papadimitriou wrote to the Respondent stating inter alia:
“Given that Laurence has ongoing instability in his knee, reconstruction of his anterior cruciate ligament would be worthwhile.
As a prelude to this removal of the plate and screws from his distal femur would be necessary, and at the same time a knee arthroscopy would be worthwhile to remove the tibial eminence screw, and to assess the avulsed tibial eminence fragment, with a view to its excision if this is necessary, and assessment of the chrondral surfaces and menisci.”
12. On 4 June 2007, Dr Papadimitriou wrote to the Applicant’s then General Practitioner (“GP”), Dr Yong, stating:
“He has decided that he does not wish to proceed with an anterior cruciate ligament reconstruction, as he does not feel that he has significant instability in his knee.
Mr Whitham therefore asked whether it was necessary to remove the plate and screws from his distal femur and I have explained to him that the plate and screws can remain in situ indefinitely.
Mr Whitham therefore has elected to cancel the proposed surgery. He will continue with physiotherapy.”
13. In a further report to the Applicant’s GP dated 24 July 2007, Dr Papadimitriou stated:
“I again discussed with Mr Whitham his ACL deficiency. He is aware that his ACL will not heal, and that reconstruction is an option. After discussion today however he does not feel his symptoms are significant enough to proceed with surgery”.
14. At the request of his solicitors the Applicant was assessed by Dr Weisz. In his reports, Dr Weisz assessed the degree of permanent impairment but did not address surgical intervention. When questioned in these proceedings Dr Weisz on balance favoured surgical intervention.
15. Dr Weisz was asked by the Presiding Member if surgery would improve the Applicant’s condition. He replied, “I believe so, yes”. He then further explained:
“We have here two different ligaments injured. One of them, which is a cruciate, it would stabilise the front-back movement of the knee. The other one would be the lateral one, the side one, which deviated the axis of the lower limb. Both of them have stabilising effect and both of them have even influence on the suffering and disability of that particular knee. The correction of the anterior cruciate ligament, which was attempted once – and I presume it was not successful – could be certainly improved, and we have today the ability to even transplant a tendon to replace that ligament. …It’s all done in keyhole surgery. The other one is the side ligament, which is deviating. This is much easier to fix. …And that would be a relatively simple procedure to perform, and it would be worth doing it, because that would prolong the life of that knee joint.”
16. Finally, at transcript page 66, Dr Weisz stated in cross-examination:
“…the final solution would be a knee replacement, a total knee prosthetic replacement which is, today, in good hands, a very successful procedure and ending with very good result. It’s not a hundred per cent procedure, none of them are, but it’s a very promising outcome. …There is no hundred per cent success in surgery. …But considering the advances that we have today in art of medicine, I think that the risks are low. There are a serious risk but they are low in percentage and, in general, the outcome would be optimistic.”
17. Professor Ehrlich, who examined the Applicant on behalf of the Respondent, did not think surgical intervention was necessary as he did not consider that the Applicant was sufficiently disabled as to require surgery.
18. The requirement that an injured worker undergo surgery so as to mitigate the effect of injury was discussed by the Full Court of the Federal Court in Comcare v Filla (2002) 115 FCR 163 at 165. The Court said:
“Whether the rotator cuff surgery is ‘reasonable rehabilitative treatment’ is a question of fact that would have to take account of many factors, including the risk of failure and the possible extent of the benefit of the treatment, particularly when compared to the present position. Whether or not it was reasonable for the respondent to refuse to undertake rotator cuff surgery is quite a different question from whether, considering the prospects of success, risk of adverse consequences, pain, discomfort and inconvenience necessarily involved in the operation when compared with the measure of success that might possibly be achieved, and other factors, the rotator cuff surgery may fairly be described as ‘reasonable rehabilitative treatment’.”
The Court continued at 166:
“What is ‘reasonable rehabilitative treatment’ is a question for the Tribunal.”
19. The question of whether surgical intervention would reduce the Applicant’s current degree of impairment was addressed by Dr Papadimitriou, who was not called in these proceedings. Dr Weisz only considered the question of further surgery when it was raised in cross-examination and by questions of the Tribunal, and there is a considerable difference in the procedure recommended by Dr Papadimitriou viz reconstruction of the anterior cruciate ligament, and the total knee replacement suggested by Dr Weisz.
20. We find that we are unable to make any decision as to what rehabilitative treatment might be undertaken by the Applicant and whether such treatment can properly be described as reasonable rehabilitative treatment. We find that that particular matter has not been fully investigated given the Applicant’s current condition.
21. The Applicant declined to undergo the operation suggested by Dr Papadimitriou. He was referred by his GP, Dr Yong, to orthopaedic surgeon, Dr Tan at St Vincent’s Hospital for a second opinion but did not act on that referral, even though the Respondent informed the Applicant it would pay for the initial consultation.
22. Questioned as to why he did not attend upon Dr Tan, the Applicant could not remember.
23. The Applicant was cross examined as to why he did not proceed with the procedure arranged by Dr Papadimitriou. He said
“Mr Papadimitriou recommended me for conference at the North Shore Hospital, where I was seen by about 20 or 30 surgeons one morning. And when I went back to Mr Papadimitriou he said that they recommended anything from breaking the leg and resetting it to doing absolutely nothing. So after I’d been seen by that many people, I decided that I’d make the decision for myself and not have any more, because nobody really knew what to do”.
The Applicant added:
“Dr Papadimitriou also mentioned to me that there was (sic) many people walking around with a detached cruciate ligament and led quite normal lives, provided they didn’t want to go waterskiing or jumping off mountains or something”
24. Later in answer to questions by Tribunal member Dr Campbell, the Applicant said:
“Well psychologically, I don’t know if I could go through it again, to be honest. Actually after having two consecutive breakages, I just didn’t want to go through that again, from that point of view. And the other thing that, as I say before, Dr Papadimitriou told me that I’d get arthritis in it, and I think there’s an X-ray report where it mentions that. You know, so having another operation can often cause more arthritis, or there’s no guarantee that the leg would actually improve anyway. It’s just a – and after the conference, as I said, at the North Shore hospital, I really decided after that that nobody really knew what the best thing to do was anyway.”
25. The refusal of a worker to mitigate his damage by resorting to surgery was discussed by Katz J in Filla v Comcare (2002) 115 FCR 144 at 158 paragraph 66. After referring to Fazlic v Milingimbi Community Inc (1982) 150 CLR 345, His Honour said:
“The Application of such a rule to the type of workers’ compensation under consideration in the present matter has the effect that an employee who is permanently impaired as a result of injury, but the permanence of whose impairment is a result, in part at least, of the employee’s refusal to submit to treatment, will not be entitled to compensation under s24(1) of the SRCA if that refusal to submit to treatment is unreasonable according to that rule.”
26. In the absence of Dr Papadimitriou we are not in a position to reject the Applicant’s evidence regarding the conference at Royal North Shore Hospital, although it seems inconsistent with Dr Papadimitriou’s report to the Respondent of 8 May 2007 in which he recommends reconstruction of the Applicant’s anterior cruciate ligament.
27. Notwithstanding the Applicant’s quite understandable reservations regarding further surgery, he did not seek the further opinion offered by the proposed consultation with Dr Tan which was arranged by his own GP. Furthermore, he now has the benefit of the opinion of Dr Weisz.
28. We find that the proposal by the Respondent in these proceedings, namely that pursuant to s25 of the SRC Act that the Applicant should be granted an immediate payment calculated at 10% permanent impairment with a further determination made after further investigation of what remedial treatment the Applicant might reasonably undertake is a proper course to pursue and one that is in the Applicant’s best interest.
29. In coming to this conclusion we are mindful of the remarks of Professor Ehrlich who, when questioned as to the need for remedial surgery, said:
“Well, there’s a sort of global answer to ‘Does a person need surgery or not?’ I think the answer is you earn surgery through suffering. If you suffer a lot, you have to resort to surgery, if surgery is available. If you are not suffering that much, well, obviously it would be silly to go and have operations.”
30. The Respondent submitted that any impairment to the Applicant’s left leg and knee was caused by the initial injury to the Applicant’s left knee and that the fracture injury had completely resolved.
31. In his report of 27 December 2009, Dr Wallace specifically refers to impairment from the left knee injury.
32. Professor Ehrlich in his report of 1 April 2009 stated:
“It is therefore my view that his ongoing knee problems should be attributed to the initial cruciate ligament problem and not to the fracture of the femur.
His impairment is largely in the form of reduced knee function…”
He concluded his report by stating:
“I believe that his impairment should be regarded as essentially due to the initial knee injury not the femoral fracture.”
33. Dr Yong, the Applicant’s GP, in a report to the Applicant’s employer dated 4 June 2007 after reviewing the Applicant’s history stated:
“The symptoms described are due to the reduced stability of the knee from anterior cruciate ligament tears. In my opinion this is not a new injury but that the demands of his work are aggravating the compensable injury.”
34. Given the above reports we find that any impairment currently suffered by the Applicant is a result of his initial knee injury. The consequence of that finding is that the decision in matter 2008/4948 is AFFIRMED.
35. In matter 2009/5144 the decision under review is SET ASIDE and the Tribunal remits this matter to the Respondent with the Direction that pursuant to s25 of the SRC Act the Applicant is entitled to payment of compensation for permanent impairment to his left knee at the interim rate of 10% AND THAT further investigations are to be undertaken by the Respondent to determine what, if any, reasonable rehabilitation treatment might be undertaken by the Applicant.
36. Because of matters which arose on the last day of the hearing, the question of costs is adjourned for further submissions on a date to be fixed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M.D. Allen, Senior Member A. Britton, and Dr J. Campbell, Member.
Signed: ....................[sgd].......................................
K. Lynch, AssociateDate/s of Hearing 2 & 3 November 2009 and 22 February 2010
Date of Decision 9 March 2010
Counsel for the Applicant Mr J. Thompson
Solicitor for the Applicant D Edwards & Associates
Counsel for the Respondent Mr D. Richards
Solicitor for the Respondent Dibbs Barker
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