Zarb and Comcare

[2006] AATA 707

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 707

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          A2005/94 & 331

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANTHONY ZARB

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date18 August 2006

PlaceCanberra

Decision The decisions under review are affirmed.

..............................................

Mr S. Webb, Member

CATCHWORDS

COMPENSATION - injury - determinations accepting liability for left knee injury and medical treatment expenses revoked on reconsideration - previously existing left knee condition - inconclusive medical evidence of injury - applicant's evidence unreliable - no ascertainable physiological change resulting from alleged incident - decisions affirmed

Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16

Comcare v Etheridge [2006] FCAFC 27

Kennedy Cleaning Services Pty Ltd v Petkovska (2000) 200 CLR 286

REASONS FOR DECISION

18 August 2006 Mr S. Webb, Member         

1.      Anthony Zarb is employed as a registered nurse at the Canberra Hospital.  One of his duties is to restock patient bays in the Post- Anaesthetic Recovery Ward using a large trolley.  On 22 September 2004, in the course of performing that task, a wheel dislodged from the trolley, causing it to lurch to one side (“the trolley incident”).  Mr Zarb says that the trolley hit and injured his left knee.  He claimed and was granted compensation.  Subsequently, statements were obtained from witnesses and the grant of compensation was revoked.

2.      The issue for the Tribunal to determine is whether the decision to revoke Mr Zarb’s compensation was the correct or preferable decision.  For that purpose it is necessary to determine whether Mr Zarb sustained an injury as a result of the trolley incident.

injury

3.      Mr Zarb asserts that the trolley fell to one side and hit his left knee, causing immediate pain and stiffness in that joint.  He relies on the statements of witnesses and medical evidence to support his claim.  After the incident he attended the Accident and Emergency Department of the Hospital and was examined.  He obtained a medical certificate.  Mr Zarb asserts that he has suffered ongoing pain, stiffness and other symptoms in his left knee since the trolley incident, especially after long periods of standing, walking and using stairs. 

4.      It is accepted that Mr Zarb has had problems with his left knee in the past.  He sustained a left knee injury in 1996.  In 2002 he unsuccessfully pursued a claim for compensation for an alleged injury to his left knee.  There is medical evidence that Mr Zarb’s left knee condition was symptomatic prior to the trolley incident in 2004 (see report by Dr Richard Evans dated 31 August 2005, Exhibit A3, for example).  However, Mr Zarb asserts that the symptoms in his left knee immediately after the trolley incident were distinct and different from his previous symptoms.

5.      Under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) Comcare is liable to pay an employee compensation if that person suffers an injury that results in incapacity, impairment or death (s.14) or that requires medical treatment (s.16).  The word ‘injury’ is defined to include a physical injury or an aggravation of a physical injury that arose out of or in the course of employment (s.4).  On consideration of the facts an event may be described as an ‘injury’ if a sudden and ascertainable physiological change has occurred or the normal physiological state has been disturbed or harmed (see Branson J in Comcare v Etheridge [2006] FCAFC 27 at [35]; Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkovska (2000) 200 CLR 286 at [35]-[39]).

6.      The following matters are not controversial concerning the incident as alleged.  On 22 September 2004 Mr Zarb was using a trolley to restock patient bays in the Recovery Ward.  He successfully restocked the patient bays on one side of the ward and executed a ‘U’ turn at the end of the ward.  Pulling the trolley he then commenced tracking up the ward.  After travelling four or five metres the front right wheel of the trolley dislodged causing it to tilt to one side.  No items spilled from shelves on the trolley.  A number of nurses on the ward noticed that a wheel had dislodged from the trolley, which was tilting to one side and being supported by Mr Zarb.  Nurse Manager Kathryn Stuart and Registered Nurses Jody Mudge and Amanda Havenhand witnessed Nurse Danah Gannon refit the wheel while Mr Zarb steadied the trolley. 

7.      Mr Zarb’s claim relies, at its heart, on his own uncorroborated assertion that the trolley impacted upon his left knee with sufficient force to cause immediate pain and stiffness.  No other person witnessed this event, even though it allegedly occurred in the Recovery Ward at a purportedly busy time of day when other people were in reasonably close proximity.  Medical staff who examined Mr Zarb soon after the alleged incident recorded no abnormality in Mr Zarb’s left knee or evidence of injury other than Mr Zarb’s account and his complaints of pain.  Subsequently an MRI scan revealed no abnormality other than a minor amount of fluid in the joint, the cause of which is not clear.  Dr Pearson and Dr Stubbs made speculative diagnoses that were based in substantial part on Mr Zarb’s account of the trolley incident and on his complaints of subsequent pain and stiffness.

8.      Mr Zarb was an unimpressive witness and his evidence must be treated with caution.  His oral evidence was accompanied by intermittent exaggerated expressions of pain or discomfort, for example grimacing dramatically when he entered and sat down in the witness box.  At other times no such symptoms or expressions were apparent, for example when Mr Zarb moved quickly to demonstrate what he claims occurred with the trolley (which was brought to the hearing room).  Those demonstrations involved Mr Zarb rising, walking, pushing and pulling the trolley, twisting and turning on his left knee, flexing and bending his knee and even, exaggeratedly, hitting his left knee against the trolley before returning to his seat in the witness box.  He performed the demonstrations without any expression of discomfort or pain whatsoever. 

9.      Furthermore Mr Zarb contradicted his own evidence on a number of occasions and when this was drawn to his attention he moved quickly to provide an alternative explanation, either based on something Mr Zarb claimed he had not previously remembered or on the basis that previously he was confused or did not understand the question.  I am not persuaded by Mr Zarb’s explanations of these inconsistencies and contradictions.  His explanations lack logical consistency, are incredible and are, more likely than not, the product of invention.

10.     I note that Mr Zarb gave evidence that he experienced immediate pain and stiffness in his left knee when he was allegedly struck by the trolley.  However, Nurses Gannon, Cotton and Mudge gave evidence that they did not observe and were not told of any such symptoms or injury at the time (oral evidence; Exhibit R4 and R5, and T10, respectively).  Nurse Manager Stuart gave similar evidence (oral evidence and Exhibit R3).  Nurse Ganon gave evidence that she observed Mr Zarb walking without apparent difficulty or impediment immediately after the alleged incident.  Nurse Havenhand stated that Mr Zarb had stated that he had hurt his knee ‘very badly’ (T5 folio 8).  However, Nurse Havenhand was not called to give oral evidence and it is not clear from her written statement precisely when Mr Zarb told her he had hurt his knee. 

11.     Mr Zarb attended the Hospital Emergency Department at 1.33pm, soon after the alleged incident.  He was attended to by Triage Nurse Turner at 2.05pm and was examined by Intern Doctor Andrew Pearson at 4.30pm.  Dr Pearson’s clinical notes record “p/w work accident - fell awkwardly on L knee… Varus force on L knee, nil swelling/nil pop, knee doesn’t feel right, can weightbear/doesn’t feel unstable, nil click/locking…” (Exhibit A1, p2).  Dr Pearson’s note that Mr Zarb fell awkwardly on his left knee is not consistent with Mr Zarb’s oral evidence, in which the trolley is said to have hit his left knee.  I accept that Dr Pearson was merely recording Mr Zarb’s account of the incident, on the basis of which he recorded a varus force on Mr Zarb’s left knee.  However, those conclusions are reliant for their accuracy on the truthfulness of Mr Zarb’s account, and carry little weight therefore. 

12.     Mr Zarb gave oral evidence that he noticed a one centimetre square bruise on his left knee on the evening of 22 September 2004.  However, no such bruise or other symptom consistent with impact was recorded by medical staff who examined Mr Zarb on that day.  I do not accept Mr Zarb’s account.

13.     Dr Pearson observed no swelling or bruising or other abnormality in Mr Zarb’s left knee, but recorded his complaints of pain and gave a provisional diagnosis of “TMP  Grade 1 MCL strain -  ? medial meniscus damage” (Exhibit A1, p3; Exhibit R6, document 32).  Dr Pearson referred Mr Zarb to an Orthopaedic Registrar, Dr Bond.  On 27 September 2004 Dr Bond noted Mr Zarb’s complaints of pain but made no diagnosis.  He recorded that Mr Zarb suffered a “varus type blow to flexed L knee” (Exhibit R6, document 33).  This record merely reflects Mr Zarb’s account of what happened and is not an objective indicator that any such varus blow did in fact occur as claimed.  Dr Bond referred Mr Zarb for an MRI scan and to a physiotherapist for “quad exercises”.  The MRI scan revealed no abnormality in Mr Zarb’s left knee (Exhibit R6, document 34).  To the extent that Mr Zarb may assert that the report of a small amount of fluid in the knee joint supports his account, I do not agree.  There is no evidence linking the fluid identified in the MRI scan with any contusion or impact on his left knee on 22 September 2004.

14.     On 15 November 2004 Dr Stubbs, Orthopaedic Surgeon, reported that Mr Zarb had suffered “a twisting injury to his left knee” and, even though the MRI scan revealed no specific injury, Dr Stubbs “suspect[ed] a coronary ligament injury to the posterior portion of the medial meniscus” (Exhibit R6, document 35).  Dr Stubbs was not called to give evidence.  I am satisfied that his report of injury and his tentative diagnosis were substantially based on Mr Zarb’s own account of the incident and claimed symptoms, as reported to Nurse Turner, Dr Pearson, Dr Bond and Dr Stubbs.  With due respect to Dr Stubbs, his report carries little weight therefore in these proceedings.

15.     On 16 December 2004 Dr Judith May reported that Mr Zarb “is likely to have had a patello-femoral joint contusion” as a result of the trolley incident and referred him to Focus on Movement for physiotherapy treatment (Exhibit R6, document 36).  Dr May was not called to give evidence.  Her report and tentative diagnosis were based on Mr Zarb’s account of the incident and his subsequent subjective complaints of pain and stiffness.  As Mr Zarb’s account is not reliable, Dr May’s report carries little weight in these proceedings.

16.     The 13 January 2005 Focus on Movement clinical notes record that Mr Zarb’s left knee “buckled outwards” when the “trolley collapsed at work ontop of (L) knee”, and Mr Zarb’s left knee has been “unstable and weak since” (Exhibit R6, document 38).  That account is reliant on Mr Zarb’s evidence and there is no other medical evidence that his left knee was unstable following the trolley incident.  On 16 January 2005 Mr Stewart Andrews, a Fit To Manage physiotherapist, reported that “tightness in the medial side of his left kneecap, which radiates through to his patella tendon maybe the result of bruising when he fell” (T23 folio 43).  That account is not consistent with Mr Zarb’s oral evidence and there is no objective evidence to corroborate any bruising as a result of the trolley incident.  These reports are not compelling evidence that Mr Zarb injured his knee in the trolley incident.

17.     Two reports by Dr Richard Evans were tendered in evidence (Exhibit R3).  These reports date from August 2005, a substantial time after the alleged injury.  Interestingly, Dr Evans records Mr Zarb’s account of the trolley incident thus “… Mr Zarb was pulling a large laden trolley… A wheel came off the trolley, and he felt it tilt; he therefore turned around, to grab and steady the trolley so that it would not fall.  As he did so, he twisted his left knee and struck the inner aspect on the trolley.  He did not fall to the ground. He experienced pain, but not swelling in the knee.  It later became bruised at the site of the impact.”  On that account it appears that Mr Zarb twisted and struck his knee on the trolley, rather than the trolley falling onto or being propelled into his left knee.  That account is not consistent with his previous accounts or with Mr Zarb’s oral evidence in these proceedings.  Subsequently, Dr Evans was given information about Mr Zarb’s history of injury and persisting symptoms in his left knee prior to September 2004, which had not been provided at first consultation.  Taking that information into account Dr Evans concluded that Mr Zarb suffered “a relatively minor aggravation of damage to the left knee that had occurred in 1995” and observed “The whole matter is obviously rather odd”.  Dr Evans was not called to give evidence and his reports are not evidence that Mr Zarb injured his left knee on 22 September 2004 in the manner claimed.

18.     I am satisfied that Mr Zarb experienced persistent, if intermittent, symptoms in his left knee for a number of years prior to the incident on 22 September 2004.  While there is scant medical evidence of left knee symptoms in the period prior to September 2004, I am satisfied that Mr Zarb did not seek medical treatment for his left knee symptoms as he treated these symptoms himself.  He gave evidence that he treats himself with Voltaren, Panadeine Forte and Panadol, purportedly from drug stocks he has maintained since 2001, and mail order prescriptions. No record of any such prescription was returned from the Pharmaceutical Benefits Scheme by Medicare Australia (Exhibit R2).  I note in passing the evidence of Nurses Cotton and MacIntyre that Mr Zarb was observed talking to Dr Klar, purportedly seeking advice about a knee problem, a number of weeks prior to the trolley incident.  I understand that Dr Klar was not called to give evidence because he had no recollection of any such discussion.  Such imprecise evidence and hearsay carries little weight and can be discounted.

19.     If anything happened to Mr Zarb’s left knee during the trolley incident I am satisfied that no ascertainable physiological change was caused or resulted.  Mr Zarb’s complaints of pain and stiffness were and are subjective.  They are not amendable to objective measure.  Objective assessments have found no abnormality in his left knee and only tentative or speculative diagnoses have been proffered.  I accept that a formal diagnosis is not essential to the existence of injury.  However, the absence of objective evidence of symptoms that are consistent with the mechanics of the claimed physical injury, or evidence to corroborate Mr Zarb’s account of the injury, compels me to conclude that it is more probable than not that the incident did not occur as Mr Zarb asserts and that he did not suffer an injury to his left knee in the manner claimed. 

20.     Mr Zarb submitted that he was fully fit on the morning of 22 September 2004 but was incapacitated for work as a result of the claimed injury as a result of the trolley incident.  Dr Pearson provided him with a medical certificate on that basis.  I do not accept that submission.  Mr Zarb accepted that he was able to perform his duties before and after the alleged injury, subject to some time off work under medical certificates provided by Dr Pearson and others.  The medical certificates are not compelling evidence that an injury occurred as claimed.  They reflect the symptoms claimed by Mr Zarb at the time, which are not corroborated by objective medical evidence or by the preponderance of the evidence given by witnesses to the incident.

21.     If Mr Zarb suffers pain and stiffness in his left knee, especially after prolonged standing, walking and other forms of activity, and I accept that he has done so for many years, I am not persuaded that those symptoms are the result of an injury to his left knee on 22 September 2004.  That being so the reviewable decision in matter number A2005/94 is affirmed.  It follows that Mr Zarb is not entitled to payment of compensation for medical treatment in relation to the alleged injury and the reviewable decision in matter number A2005/331 must be affirmed.

decision

22.     The decisions under review are affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:       .................(PETER STRAUCH)....................
  Associate

Date of Hearing  14 – 15 August 2006
Date of Decision  18 August 2006
Counsel for the Applicant             Daniel Shillington
Solicitor for the Applicant             McClellands Lawyers
Counsel for the Respondent        Lorraine Walker
Solicitor for the Respondent        Australian Government Solicitor