Zivanovic and Comcare (Compensation)
[2020] AATA 343
•27 February 2020
Zivanovic and Comcare (Compensation) [2020] AATA 343 (27 February 2020)
Division:GENERAL DIVISION
File Numbers: 2016/4553
2017/7357
2017/7356
Re:Vladimir Zivanovic
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:27 February 2020
Place:Melbourne
The Tribunal:
(a)In application 2016/4553:
(i)Sets aside the reviewable decision and remits the matter for reconsideration of entitlements under the Safety, Rehabilitation and Compensation Act 1988 with the direction that:
A.the Applicant continues to suffer from an aggravation of pre-existing patellofemoral dysplasia in his left knee;
B.the Applicant’s condition of secondary hypertension was not contributed to, to a significant degree, by his employment;
(ii)costs in this application reserved.
(b)Affirms the decisions in applications 2017/7356 and 2017/7357.
....[sgd]....................................................................
Dr Stewart Fenwick, Senior Member
Catchwords
COMPENSATION — degenerative osteoarthritis in both knees and lumbar spine – hypertension – prior acceptance of aggravation of underlying left knee condition – prior acceptance of liability for right total knee replacement – whether conditions caused by altered gait and/or medical treatment – whether conditions contributed to, to a significant degree, by employment – impact of age and weight on conditions – first decision set aside and remitted – second and third decisions affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007
Cases
Brackenreg v Comcare (2010) 187 FCR 209
Comcare v Power (2015) 238 FCR 187
Comcare v Sahu-Kahn (2007) 156 FCR 536
Commonwealth v Borg [1991] FCA 710Prain and Comcare (Compensation) [2016] AATA 459
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
27 February 2020
BACKGROUND
Mr Zivanovic applied on 26 August 2016 (the 2016 application) for review of a decision of a Review Officer of Comcare dated 27 June 2016, affirming an earlier determination, dated 11 April 2016, that Comcare had no present liability for medical expenses, incapacity payments, and household services and attendant care in relation to an accepted claim for aggravation of a left knee condition and secondary hypertension (the no present liability decision).[1]
[1] Tribunal file number 2016/4553.
In related applications dated 13 December 2017 (the 2017 applications), Mr Zivanovic sought review of the following decisions affirming determinations by Comcare in which liability was declined:
(a)On 8 December 2017, a Review Officer of Comcare affirmed a determination dated 9 October 2017 to decline liability for medications related to hypertension and cholesterol management;[2] and
(b)On 8 December 2017, a Review Officer of Comcare affirmed a determination dated 6 October 2017 to decline liability for a lumbar spine condition and a total right knee replacement.[3]
These conditions were the subject of claims lodged on Mr Zivanovic’s behalf by his legal representatives in the course of the 2016 application.
[2] Tribunal file number 2017/7356.
[3] Tribunal file number 2017/7357.
Mr Zivanovic suffered an injury to his left knee on 3 August 1990 while riding a tram in the course of his employment as a clerk in a Commonwealth agency. Mr Zivanovic is currently 63 years old and according to medical opinion, in addition to his conditions, he is considered to be morbidly obese. He was 34 at the time of the injury.
The original accepted claim, dated 31 July 1997, was for aggravation of a pre-existing patellofemoral dysplasia of the left knee (a developmental or congenital abnormality) and secondary hypertension. A procedure was conducted on his left knee following the 1990 injury, and a number of further similar procedures were performed in later years. Liability for a permanent impairment of the left knee was accepted on 31 March 2005.
In 2014 Mr Zivanovic underwent a total knee replacement of the right knee which was accepted by Comcare, at the time of the determination dated 24 October 2014, as being due to the additional load arising from the principal injury.[4] Comcare also accepted liability on 24 October 2014 for secondary hypertension on the basis of a medical opinion that this condition was related to changes in his mobility.
[4] Letter of Mr Lynch dated 16 September 2014; ST28, Supplementary T-Documents, p 143.
As noted above, the related review applications include a claim for the cost of medications. These were purchased after the no present liability decision was made in relation to the 2016 application. Mr Zivanovic had sought to have his back and right knee conditions accepted as secondary conditions to the original claim.
The conditions of the knees and back result from degenerative change and the question that arises to be answered by this review, essentially, is whether they should be understood as resulting from the original injury.
Comcare has lodged with the Tribunal four bundles of documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 in relation to all claims, known as ‘T documents’ and Supplementary T documents. The T documents appear in two bundles: those relating to the 2016 application will be referred to as ‘T’, and those relating to the 2017 applications will be referred to as ‘T-A’. The Supplementary T Documents appear in two bundles, however, both relate to the 2016 and 2017 applications and will be referred to as ‘ST’.
LEGISLATION
Liability for compensation arises under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of an injury suffered by an employee that results in death, incapacity for work, or impairment.
Injury is defined in s 5A of the Act to encompass both injuries that arise ‘out of, or in the course of, the employee’s employment’, including an aggravation thereof, and a disease suffered by an employee. Disease is defined in s 5B(1) to be an ailment, or an aggravation thereof, ‘that was contributed to, to a significant degree, by the employee’s employment’. Significant degree is defined in s 5B(3) as ‘a degree that is substantially more than material’.
Under s 5B(2) of the Act a number of matters may be taken into account when determining whether the ailment, or its aggravation, meets the causal test in s 5B(1):
(a) The duration of the employment;
(b) The nature of, and particular tasks involved in, the employment;
(c) Any predisposition of the employee to the ailment or aggravation;
(d) Any activities of the employee not related to the employment;
(e) Any other matters affecting the employee’s health.
The definition of disease was amended to its present form by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 and prior to this (between 1988 and 2007) the relevant causal test was whether employment contributed ‘in a material degree’ to the condition (see s 4 of the Act prior to 13 April 2007).
Specific forms of compensation relevant to this matter arise under the following provisions of the Act:
(a)compensation for medical treatment ‘obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances)’ (s 16);
(b)compensation for injuries that result in incapacity for work (s 19);
(c)compensation for injuries resulting in permanent impairment (ss 24 and 27); and
(d)compensation of reasonable amounts for household services obtained by the employee (s 29).
MEDICAL CONDITIONS
Left knee
A comprehensive description of the state of Mr Zivanovic’s left knee and subsequent procedures is found in the report of Mr John Hart, Clinical Associate Professor of Surgery, dated 17 December 1996 (T6, pp 19–23). In summary, he states in that report that:
(a)In August 1990, Mr Zivanovic ‘twisted his left knee’ (p 19), which swelled immediately afterwards and was painful;
(b)In December 1990, Mr Zivanovic was referred to an orthopaedic surgeon and had an arthroscopy performed, in which a torn medial meniscus and torn medial shelf were removed and that surgeon noted patellofemoral degeneration;
(c)X-rays from May 1991 indicated a patellar realignment procedure was performed on a patella with a very deficient medial facet;
(d)In April 1996, CT scans showed there was osteoporosis;
(e)In 1996, Mr Hart suspected ongoing secondary chrondomalacia;
(f)Mr Zivanovic’s x-rays indicated underlying dysplastic patella, ‘but that is quite a common finding and it is not always symptomatic’ (p 21); and
(g)Mr Hart assumes the original injury was a patellar dislocation, but it is possible Mr Zivanovic tore his meniscus at the same time.
In a report of 31 January 1998 (T10, pp 31–32), Mr Hart describes performing an arthroscopy and a lateral release in December 1997. He describes the prognosis as favourable.
The report of Dr Stanley O’Loughlin, Consultant Orthopaedic Surgeon, dated 17 March 2005 (T13, pp 44–51) notes that Mr Zivanovic underwent an arthroscopy in December 1997 and there was ‘minor wear on the joint surface of the patella’ and ‘[a] revision of the realignment was performed with a lateral release of the patella’ (T13, p 45). Dr O’Loughlin assessed Mr Zivanovic as having a whole person impairment of 20% due to his left knee condition, which was 100% attributable to his employment. Liability was accepted by Comcare on 31 March 2005 (T14, pp 52–53).
Mr Zivanovic suffered ongoing issues with his left knee including ‘irritability and instability’ leading to referral to a specialist, according to the report of his General Practitioner (GP), Dr David Frost, 19 February 2010 (T22, p 72). Mr Bernard Lynch, Orthopaedic Surgeon, reported on 10 December 2014 (T44, pp 148–149) that he conducted an arthroscopy on 5 May 2010. Mr Lynch states there that, in his review on 8 September 2014, Mr Zivanovic’s weight was ‘approximately 150 kgs’ (T44, p 148). He describes the procedure in which unstable chondral tears were resected and several loose bodies removed and states that ‘[m]oderate degeneration was noted at the patellofemoral joint’ (T44, p 148).
Mr Zivanovic’s legal representative requested a further permanent impairment assessment on 16 March 2012 (T28, pp 85–86). This request appears to have been motivated by the issuing of a new set of assessment guidelines and by the concerns of Mr Zivanovic’s treating GP as to his significant weight gain, causing a risk of ‘lifestyle illness’ (T28, p 96).
Mr Iain Kelman, Consultant Orthopaedic Surgeon, conducted his review on behalf of Comcare. In his report dated 12 June 2012 (T30, pp 109–119), Mr Kelman diagnoses patellofemoral osteoarthritis, and an ongoing permanent impairment of 14% (T30, p 113). He describes Mr Zivanovic as morbidly obese with a Body Mass Index (BMI) of over 44kg/m2 (T30, p 112). He observes that the underlying congenital condition does not, under normal circumstances, lead onto osteoarthritis but that osteoarthritis had developed in the patellofemoral joint (T30, p 115). He states that arthritis will develop in the other knee compartments due to the malalignment of the knee and this, together with his morbid obesity, is likely to lead to a total knee replacement (T30, p 116).
An x-ray conducted on 9 July 2013 (ST25, p 140) describes ‘minor degenerative change within the medial compartment’. A further x-ray on 17 February 2015 (ST31, p 146) showed:
‘Mild patellofemoral osteoarthritic changes. There is mild decreased joint space of the medial compartment which is progressed since the previous study’.
Dr David McGrath, Occupational and Musculoskeletal Physician and Master of Pain Medicine, conducted a review of Mr Zivanovic for Comcare. In his report dated 30 November 2015 (T46, pp 157–165) Dr McGrath diagnoses degenerative arthritis of the left knee. He states the condition has both genetic and traumatic causes (T46, p 161). He states the following:
(a)‘It was also reported that he had pre-existing kneecap arthritis’ (T46, p 161), referring to medical records from the time of the original diagnosis;
(b)‘There appeared to be some narrowing of the medial joint line space (arthritis)’ (T46, p 160), referring, it appears, to a 2009 x-ray;[5]
(c)‘Some degeneration was also noted in the patellofemoral compartment. This is arthroscopic evidence of two compartment arthritis’ (T46, p 161), referring to Dr Lynch’s report of 2014.
[5] The report of Dr Druce (ST17, p 132) of 13 May 2009 is cited in the report, but the document itself records there are no signs of degenerative change.
Dr McGrath states further:
‘His current osteoarthritis is not unexpected for his high BMI and age. On the basis of that observation we could consider that his aggravation has resolved’ (T46, p 161).
He considers the left knee condition to be a result of ‘metabolic and weight induced deterioration’ and the constitutional dysplasia (T46, p 162). Dr McGrath states that Mr Zivanovic was morbidly obese at 170kg (T46, p 160).
Mr Kelman conducted a further review of Mr Zivanovic’s condition and prepared a report dated 2 February 2017 (T-A5, pp 16–25). Mr Kelman states that Mr Zivanovic’s weight was 150kg, unaltered since his review in 2012, with a height of 183 cm (T-A5, p 19). This gave him a BMI of over 44kg/m2, making him morbidly obese; Mr Kelman states his ideal body weight, according to BMI, would be 77kg (T-A5, p 19). Mr Kelman diagnoses osteoarthritis of the left knee (T-A5, p 21). While symptoms began in 1990, Mr Kelman states the original accident is ‘now no longer relevant to his current condition of generalised osteoarthritis’ (T-A5, p 21). He states further: ‘The tram accident is likely to have contributed to an initial aggravation of an underlying developing osteoarthritic change, the effects of which have ceased’ (T-A5, p 22).
Mr Kelman also comments in this report that, having reviewed notes with which he was supplied, ‘there is no definitive evidence’ that Mr Zivanovic dislocated his knee in 1990 (T-A5, p 25). He considers that malalignment of the patellofemoral articulation is due to congenital factors, together with a smaller than normal patella: ‘none of these are related to the accident’ (T-A5, p 25). Mr Kelman states that procedures carried out on the left knee were for Mr Zivanovic’s underlying knee condition and not injury related (T-A5, p 25).
A report was prepared for Mr Zivanovic’s legal representatives by Mr Thomas Kossmann, Orthopaedic Surgeon (T-A6, pp 26–36). In this report, dated 3 April 2017, Mr Kossmann states that Mr Zivanovic told him that in the 1990 accident he lost his balance on the tram and ‘fell to the floor and landed on his left knee’ (T-A6, p 26). Mr Kossmann states that on physical examination Mr Zivanovic weighed 180kg (T-A6, p 28). The prognosis for the left knee is described as poor: ‘He has signs of advancing osteoarthritis and he will most likely have to undergo a total knee replacement at some time’ (T-A6, p 31).
Hypertension
As noted, liability was accepted for secondary hypertension in 2014 (T43, pp 146–147). This decision was based on reports from Dr Frost. Dr Frost’s report dated 18 July 2013 (T38, p 138) states that as a result of the injury Mr Zivanovic was unable to exercise, which led to a large weight gain and the conditions of hypertension and hypercholesterolaemia. Dr Frost states further: ‘[h]e has previously had his medications for these conditions paid for under his claim’ (T43, p 138).
Dr Frost’s report dated 1 August 2014 (T41, pp 143–144) responds to a query from Comcare about the ongoing payment for medications for high blood pressure and high cholesterol. He states that Mr Zivanovic ‘was placed on both medications after the injuries to his knee’ and that he was continuing medications that Mr Zivanovic was already taking when Mr Zivanovic became his patient in 2008 (T42, p 143).
In the report of November 2015, Dr McGrath observes that Mr Zivanovic is aware of his morbid obesity (T46, p 159). He had recently lost 2kg after consulting a nutritionist, and had previously trialled a CSIRO diet; ‘This was also successful but he was unable to maintain the recommendations’ (T46, p 159). Dr McGrath states that the link between hypertension and the original injury is ‘speculative’ (T46, p 162). In his opinion high blood pressure is a common condition and a high BMI is a recognised risk factor for this condition.
Mr Kelman, in his report of February 2017, states that Mr Zivanovic’s hypertension and hypercholesterolaemia are constitutional and aggravated by his morbid obesity (T-A5, p 25).
Right knee
Mr Zivanovic experienced pain, swelling and tenderness in 2010 which resulted in treatment at a hospital emergency department, as seen in the report of Dr Marc Friso, Orthopaedic Intern, dated 8 May 2010 (T26, p 81). Dr Friso diagnosed osteoarthritis and Mr Zivanovic received a cortisone injection.
Mr Lynch states in a report of 18 May 2010 that Mr Zivanovic’s right knee is ‘more of a problem’ than the left (ST21, p 136). There was a small effusion on the knee and ‘there [wa]s significant antalgic aspect to his gait’ (meaning a limp) (ST21, p 136). Follow-up radiology was arranged and a request sent to Comcare for an arthroscopy.
Mr Lynch recommended in his report dated 16 September 2014 (ST28, p 143) that Mr Zivanovic have a right knee replacement due to medial compartment osteoarthritis. This condition was described following x-rays in 2013 and 2014 as ‘mild degenerative change’ (ST25, p 140 and ST27, p 142). The condition of this knee is also described in Mr Lynch’s December 2014 report (T44, pp 148–149). The results of the May 2010 x-ray are described as showing ‘evidence of degeneration in the medial compartment of the knee and at the patellofemoral joint’ (T44, p 148).
As noted, the right knee replacement was accepted by Comcare and the decision of the delegate dated 24 October 2014 (T54, pp 228–229) cites Mr Lynch’s recommendation. A report of Dr Frost to Comcare dated 1 August 2014 (T41, pp 143–144) explains his referral of Mr Zivanovic to Mr Lynch for review of his right knee. Mr Zivanovic was said to be suffering significant pain:
‘Over the long period of his disability his significant weight gain this had put [sic] abnormal forces on his right knee. This has led to further pain and disability for the patient’ (T42, p 144).
In his report of 30 November 2015 (T46, pp 159–165), Dr McGrath expresses the view that Mr Zivanovic’s left knee injury was not the cause of his right knee osteoarthritis (T46, p 162). He states that weight gain and constitutional factors were the cause and that it is ‘most likely’ that he would have required a knee replacement regardless of the 1990 injury: ‘Knee arthritis is common in this age group and particularly with his BMI’ (T46, p 162).
Dr Frost responded to Dr McGrath’s report stating in a letter to Comcare, dated 3 March 2016 (T49, pp 173–174), that lack of exercise is a major factor in weight gain (T49, p 173). He states that there is a causal relationship between the left knee condition and osteoarthritis in that operations to repair torn cartilage in knees do ‘speed up the onset of osteoarthritis’ (T49, p 174). Dr Frost further states:
‘[With] weight and the speeding up of the onset of osteoarthritis there [sic] opposite knee will be put under a lot more pressure and thus increases the risks of it developing osteoarthritis as well’ (T49, p 174).
In his report of February 2017 Mr Kelman states that he does not consider the 1990 accident to be a contributing factor to Mr Zivanovic’s right knee condition (T-A5, p 23).
In his April 2017 report Mr Kossmann states that Mr Zivanovic’s right knee replacement has a limited life span and may have to undergo one or several revisions (T-A6, p 32). He expresses the opinion that there is a relationship between the left knee injury ‘and [Mr Zivanovic’s] changed gait, which most likely led to the right knee injury’ (T-A6, p 35).
A supplementary report dated 6 June 2018 was provided by Mr Kelman (Exhibit R2). He states that there are no evidence-based, peer reviewed articles that support ‘claims that arthritis in the index knee joint is a significant contributing factor to the development of arthritis in the contralateral side’ (T-A6, p 3, in answer to question 10).
Lumbar spine
Mr Lynch reported in a letter to Dr Frost dated 27 February 2015 (ST32, p 147) that Mr Zivanovic’s main problem was low back pain, adding: ‘[w]eight loss is essential’. A report from a CT scan conducted on 16 December 2015 (ST33, p 148) concludes:
‘Bilateral L5 pars defect and spina bifida occulta. Bilateral L5-S1 and L3-4 foraminal stenosis’.
A moderate broad based disc bulge was observed at L5-S1 and the report states that L5 nerve roots could be impinged by the stenosis.
Clinical notes from Dr Frost describe visits contemporaneous to the scan as being for ‘[s]evere, [c]hronic, [d]egenerative disc disease, lumbar spine’ (ST11, p 91).
In his report dated 6 June 2018, Mr Kelman describes the condition as ‘[l]umbar spine – [d]egenerative osteoarthritis with severe bilateral L5/S1 foraminal stenosis’ (Exhibit R2, p 2). He states here that morbid obesity is the primary cause of this degenerative osteoarthritis, and that it is unrelated to the conditions of left and right knee (Exhibit R2, p 3, in answer to question 11.2).
Mr Zivanovic spent a period of three days as an inpatient in January 2016 for ‘acute on chronic back pain’ (ST34, at pp 150–151). Hospital records indicate Mr Zivanovic was weighed on admission and weighed 170kg (ST34, p 167). A further hospital record notes Mr Zivanovic’s weight at 179kg (ST34, p 177) and another lists his weight as 175.5kg (ST34, p 182).
It appears Mr Zivanovic gave a history during his hospital treatment of chronic back pain since his knee operation in November 2014 (ST34, p 183). This is confirmed in Mr Kelman’s February 2017 report which records that Mr Zivanovic complained of lumbar backache while undergoing physiotherapy and hydrotherapy after his right knee replacement (T-A5, p 18).
Mr Kossmann states in his April 2017 report that the prognosis for Mr Zivanovic’s lumbar spine condition is poor (T-A6, p 32). He describes the lumbar spondylosis was ‘as a result of the degenerative change at the L3/4 and L5/S1 level’ (T-A6, p 31). Mr Zivanovic will require further pain management and may become a candidate for spinal surgery (T-A6, p 32). As noted above, Mr Kossmann attributed changed gait to the original injury and was of the opinion this ‘most likely’ led also to his back injury (T-A6, p 35).
Mr Kelman states in his supplementary report of June 2018 that Mr Zivanovic’s morbid obesity is the primary cause of degenerative osteoarthritis in the lumbar spine (Exhibit R2, p 3). This condition is not related to that of his left or right knee. He states further that, as with his opinion in relation to Mr Zivanovic’s right knee, the cause is not related to the condition of a distant joint (Exhibit R2, p 4).
EVIDENCE AT HEARING
Mr Zivanovic
Mr Zivanovic stated that prior to the accident he was a ‘fit healthy young chap’ who enjoyed fishing, camping and hunting. He can no longer do these things. He stated his left knee is now unstable, swollen, puffy and sore. Mr Zivanovic gave evidence that he can now only walk between 50–100 metres at a time, not upstairs and not over rocks. After two-to-three laps of the corridor at home he has to lie down.
His left knee is the main problem and it spasms at night for between 5–10 minutes or hours if he cannot find the right position. He further stated that it pops out of joint, clicks and is unstable. Because of the pain Mr Zivanovic stated he needs to take painkillers to fall asleep. He uses walking aids, being a stick (for the past 10 years) and frame (for the past three years). The frame has a seat built in and is used if he needs to sit if he walks for any distance.
Mr Zivanovic stated that he used to help his wife with cooking and cleaning but he can no longer do so. He has had the rear of his house paved and his neighbour mows the front. During the day he spends time lying on the bed and ‘very rarely’ goes out. He listed the medications taken on a daily basis which include panadeine forte between four and five times per day. He attends the GP every 3–4 weeks.
In relation to the incident on the tram Mr Zivanovic stated that the tram took off suddenly and he fell onto his left knee and was pulled onto his right knee. In cross-examination he acknowledged that in the initial injury report (T3, pp 7–14) there is no reference to an injury to the right knee, and that it states he twisted the left knee. Mr Zivanovic stated no mention was made of his right knee because he suffered no problem with it at the time.
After leaving government employment two years after the injury Mr Zivanovic was employed by a friend in a pet supply business. This lasted between 2000 and 2010 and he has not worked since leaving that job. He experienced some knee swelling, but there were no limitations to the number of breaks he could take. In re-examination Mr Zivanovic explained that his job involved some walking, bending and sitting.
Mr Zivanovic stated that problems started with his right knee four years after the left knee injury, due to changed load bearing on the right side. The pain in his right knee was ‘excruciating’. The right knee replacement resolved the pain and it is ‘fine now’. Following this operation Mr Zivanovic experienced severe pain across the back, buttocks and into his calf. He stated that this was because load bearing was different following the operation.
Mr Zivanovic stated that his weight has increased from 85–90kg at the time of the accident to 180kg. He was asked why his weight increased and stated in response ‘because I can’t move’. In cross-examination Mr Zivanovic was asked about a recommendation made by his GP on 18 February 1999 that he reduce his intake of cordial. He stated that until recently he had consumed 3–4 litres of cordial a day in summer, but he had cut down. Mr Zivanovic also stated: ‘I’m hypoglycaemic and have to have a hit of sugar’. He gave evidence that he was diagnosed with this ‘many years ago’ and was advised to take glucose lollies to control it.
Mr Zivanovic stated in evidence that he has given up cigarettes. I noted at this point in the hearing that medical records indicated he was a smoker between 1980 and 2014. In cross-examination he was directed to a clinical note of 19 June 2008 indicating that he had gained weight on giving up cigarettes (ST10, p 20). Mr Zivanovic stated that when he tried to give up smoking he ‘sometimes went to food’.
In cross-examination Mr Zivanovic agreed that he had discussed diet and exercise with his doctor and had tried both. Mr Zivanovic disagreed with a clinical record indicating he had not used any of five visits to a dietician (ST11, p 88), confirming that he had seen a dietician. Mr Zivanovic did not dispute the fact that he gains weight because he eats more. He confirmed he had been informed about intermittent fasting and the CSIRO diet but stated there ‘wasn’t enough food’ when dieting. He stated his weight was related to his knee: ‘I need to eat to survive, it’s because I can’t exercise’.
Mr Zivanovic agreed in cross-examination that he swam in the 1990s with support from Comcare, and that eight years after his original injury he was exercising — Mr Hart’s report dated 31 January 1998 stated that he was ‘exercising enthusiastically’ (T10, p 31). He stated that he stopped swimming because he developed conjunctivitis and a severe rash doing hydrotherapy. When I asked him whether he considered visiting the pool of his own volition he said: ‘No; for one reason — I saw people urinating in the pool’.
Mr Kossmann
Mr Kossmann explained that he observed a posterior draw in Mr Zivanovic’s left knee due to instability in the posterior cruciate ligament. He explained that instability can lead to inflammation and to advancing osteoarthritis. In Mr Kossmann’s opinion Mr Zivanovic ‘never had a functional knee’ following the original injury in 1990. This view was supported by the fact he had four revision procedures. In relation to the mechanics of the left knee injury he stated there is ‘always a rotational component’, as most people twist during a fall. In cross-examination Mr Kossmann was asked if his opinion would be affected by whether Mr Zivanovic experienced a twist or a fall, or possibly both. He responded ‘I would say the twist’, but it would not change his overall opinion.
Mr Kossmann stated that the teaching at the time of the original injury was to remove a tear via a meniscectomy. However, 20–30 years following such knee reconstruction, osteoarthritis will develop — this is something he sees in his practice all the time. In cross-examination Mr Kossmann added that it was important to note that the meniscectomy caused further damage to the knee, and he saw this as being different to a risk factor.
Mr Kossmann agreed that weight gain due to a lack of mobility was not surprising given Mr Zivanovic’s knee condition: ‘If someone has pain in the knees they don’t walk’. Obesity is regarded as a risk factor for osteoarthritis, but not everyone who has osteoarthritis is obese. Mr Kossmann stated that, in his opinion, the knee is the predominant factor but obesity is also a factor in the development of Mr Zivanovic’s osteoarthritis. In cross-examination he agreed that age, constitution and increasing weight were all risk factors. Increased weight ‘without a doubt’ puts increased weight on joints and Mr Kossmann agreed that wear and tear increases due to obesity, irrespective of how mobile that person is.
In relation to the impact on a person’s gait, Mr Kossmann stated in evidence that in his clinical experience people who have had the same procedure as Mr Zivanovic ‘never walk right’. Mr Kossmann stated he did not have data to support this opinion. He stated gait analysis now shows that changed gait can cause problems in the lower limb joints on both sides, and the lower back. In cross-examination Mr Kossmann stated he did not perform gait analysis but observed a limp and shortness of breath. Mr Kossmann was unable to state how much walking would be required for a changed gait to have the sort of impact he had diagnosed, as gait analysis is a new area.
In relation to Mr Zivanovic’s back he stated there was pain mostly in the leg. Mr Kossmann noted that Mr Zivanovic had a congenital defect at the L5 disc affecting the facet joints. This can be seen in 15–20% of people, but is not necessarily symptomatic; however, in Mr Zivanovic’s case there was impingement. Changed gait can cause pressure on facet joints and affect the loading of the spine.
Mr Kelman
Mr Kelman stated it was probable that both of Mr Zivanovic’s knees were dysplastic — a developmental abnormality in which the patella is smaller than usual, being not fully formed. He stated that x-rays indicated Mr Zivanovic had patellar joints that are smaller than usual. The first knee procedure was a lateral release at which time lateral degenerative change was found. Further surgery was conducted to realign the patella to assist in preventing further degeneration.
Notwithstanding this, Mr Zivanovic went on to develop degenerative change in the knee cap, the patellofemoral joint. In cross-examination Mr Kelman accepted that his 2012 report states that it is likely that Mr Zivanovic would in future develop arthritis in the other compartments of his left knee.
Mr Kelman stated that x-rays showed reasonable knee joint spaces up until about 2010. Mr Kelman stated that in 2010 Mr Zivanovic’s right knee showed significant osteoarthritis, which was the effect of morbid obesity. Mr Zivanovic demonstrated degenerative change in the left knee, lumbar spine and also hips. These conditions are secondary in respect to the ageing of his genetic code, and osteoarthritis is significantly complicated by his morbid obesity, the latter ‘allows arthritic conditions at almost a hyperbolic rate’. The obesity is not caused by a lack of exercise but by consuming too many calories. In cross-examination he acknowledged that he did not discuss diet with Mr Zivanovic, but described his BMI as ‘really, really high’.
In examination-in-chief, Mr Kelman agreed that knee procedures can speed up osteoarthritis, but only in the knee operated on. He was asked to rate the identified risk factors being surgery, age and obesity and stated that are all contributing factors; in his opinion they are all equally significant factors. In cross-examination Mr Kelman did not accept that he had made this statement, but rather sought to stress that surgery had been intended to lessen the impact of degeneration. He agreed with the proposition that the factors were obesity, age and ‘other matters’.
In cross-examination Mr Kelman stated he did not consider that altered gait would have led to osteoarthritis in other joints, and that this was a result of obesity. Mr Kelman further stated he observed Mr Zivanovic used a walking aid in his right hand when examined, which was a sign of altered gait. He was asked his opinion as to Mr Kossmann’s clinical experience that following a knee injury it was possible to develop a problem with the opposite knee and/or back. Mr Kelman stated there was ‘no evidence for that’, he had not seen it himself in his years of dealing with multiple problems with gait from arthritis in knees and hips.
Dr McGrath
Dr McGrath stated in evidence that obesity is the number one cause of knee arthritis ‘across the board’ and the chance of osteoarthritis goes up exponentially given a high BMI. In his opinion 55–60 years was a reasonable age to develop osteoarthritis in an obese person, which is confirmed in the literature.
Dr McGrath stated that some arthritis on the left side could have arisen from bad surgical intervention. However, the issues with Mr Zivanovic’s right side were not a result of the problems with the left side. The risk factors for osteoarthritis greatly exceeded the trauma and the original incident was an insignificant factor. When asked the relative significance of the knee procedures to Mr Zivanovic’s condition, Dr McGrath responded that morbid obesity outranks this by a long way.
In his opinion the extent of the osteoarthritis was not explained by the previous surgery. He stated that Mr Zivanovic had tri-compartment osteoarthritis, explaining that arthritis usually commenced in the medial compartment and spread laterally. Sometimes it was found in the knee cap, which is the ‘third compartment’.
Dr McGrath was of the opinion that knee problems can cause trouble in the opposite hip, but there was ‘no causal arrow’ for problems in an opposing knee. All the literature on biodynamics indicated the right knee could not be involved. Asked about Mr Kossmann’s opinion on altered gait he stated that it is ‘just not true’, and there is no literature to support this opinion. Dr McGrath stated that his observation from clinical experience supported this view. He himself had seen ankle-to-hip (contralateral) problems arise, but stated that just walking differently does not mean you develop osteoarthritis.
In relation to the issue of a relationship between the injury, restricted activity or exercise and weight gain, Dr McGrath stated that there are people with lower limb conditions who are not overweight. He did not believe obesity was such a risk factor for back problems, as there are plenty of obese patients with no back problems.
I asked Dr McGrath to clarify the relationship between osteoarthritis and obesity. He stated that there are risk factors relating to glucose in the body and the production of cartilage. It is not just a matter of physical forces, but also the biochemistry involved.
CONSIDERATIONS
Given the claims history and the evidentiary issues, it is helpful to state some key propositions that I take from the authorities. I consider that I need to be persuaded that the circumstances giving rise to entitlement under the Act exist (Commonwealth v Borg [1991] FCA 710, [16]). There is no onus of proof as such (Comcare v Power (2015) 238 FCR 187, 197 [57]–[58]), but I need to be positively satisfied that the original injury caused or contributed to the conditions for which treatment is sought, or expense incurred (Brackenreg v Comcare (2010) 187 FCR 209, 223 [62]–[64]). The fact that compensation has already been paid does not change this approach.
As will be seen below, the nature of the contribution made to Mr Zivanovic’s conditions by different factors is a critical concern in this matter. Accordingly it is necessary to briefly refer to the authorities relating to the relevant causal tests. I accept that the change to the degree of contribution required for a disease to qualify as an injury under the Act strengthened the causal relationship with employment. The new test of contribution ‘to a significant degree’ is defined with reference to language used in the previous test, which was contribution to a ‘material degree’. That is, significant degree is defined as ‘substantially more than material’. This definition invites consideration of ‘material’ and this was undertaken by Finn J in Comcare v Sahu-Kahn (2007) 156 FCR 536. His Honour found that the word must be interpreted in the context of the relevant factors, and that whether the threshold is met is a matter of fact and degree (at 542–3 [16]). His Honour also discussed dictionary definitions, which include the word ‘substantial’ (at 542 [15]); the very qualifying word chosen when the test was amended.
What I take, then, from the introduction of the new causal test is recognition that there must be something more than a mere causal relationship between a factor and a condition. The addition of the word ‘significant’ reinforces this, emphasising that any contribution of an employment related factor must be substantial. Furthermore, the test needs to be applied in the context of at least those factors specified in s 5B(2) of the Act. Adapting the reasoning of the Tribunal in Prain and Comcare (Compensation) [2016] AATA 459 at [70], where there are a range of significant factors, the inquiry might take the form: ‘is an employment related factor a significant contributor to the condition’?
I accept that, under the Act, Mr Zivanovic’s conditions are all to be understood as ‘diseases’. Given the years spanned by the conditions, and the medical evidence, it is necessary to determine, where possible, when the conditions arose. This is because there are two different causal tests that might apply.
Left Knee
There is consistent evidence that osteoarthritic change was present in Mr Zivanovic’s left knee at the time of the first surgical procedure following the 1990 injury. The degree of change was described as moderate, and has been described in several sources as patellofemoral degeneration.
Mr Zivanovic appears to have altered his description of the incident itself over time, including reference to a fall as opposed to the original report of a twist. Having considered the medical evidence, I do not consider that the references to a fall to be of significance.
Several further procedures were conducted and at the time of an arthroscopy in 2010, degenerative change was again noted. Mr Lynch, the treating surgeon, describes patellofemoral degeneration (T44, p 148) which appears to be consistent with the pre-existing condition of Mr Zivanovic’s left knee. It is possible that further degenerative change was evident in 2009. The evidence for this is somewhat equivocal as Dr McGrath stated that a 2009 x-ray image showed medial joint arthritis, whereas the record of this radiological examination states there is no sign of degenerative change.
In July 2013, change in the medial compartment is observed, and in 2015 there is also mild decreased joint space in the same compartment, considered to have progressed since 2013. This appears to be consistent with Mr Kelman’s 2012 report in which he stated that he expected degenerative change to spread to other compartments (T30, p 116). It is also consistent with Mr Kossmann’s report describing advancing degenerative change (T-A6, p 31). It is consistent with Dr McGrath’s reference to ‘two-compartment’ arthritis (T46, p 161).
I consider that Mr Zivanovic’s degenerative condition commenced in the patellofemoral compartment and progressed to the medial compartment. Accordingly, I accept that Mr Zivanovic’s left knee condition is one of ongoing degenerative change. I consider that based on the evidence the key change appears to have taken place at some time between 2010 and 2013. On this basis, the relevant causal test in relation to the employment related injury is that of ‘significant’ contribution.
There are multiple risk factors posited as contributing to Mr Zivanovic’s left knee condition. It is necessary to determine whether an employment related factor contributed to the degeneration to a degree that is substantially more than material. In making this determination I may take account of the factors in s 5B(2) of the Act. The factors as they were addressed in evidence at the hearing, beside the injury itself, are the various post-incident surgical interventions, Mr Zivanovic’s weight, and his age.
As noted, medical opinion clearly anticipated the prospect of advancing degenerative change. This issue was explored at the hearing, specifically with reference to the procedures carried out on Mr Zivanovic’s left knee. In Mr Kossmann’s opinion, his knee had not functioned properly since the incident and that knee reconstruction surgery of the kind practiced at the time would lead to osteoarthritis. Mr Kelman considered in 2012 that malalignment of the knee would lead to further osteoarthritic change, although he considered the malalignment to be constitutional. At the hearing, Mr Kelman stated very clearly in evidence that knee procedures can speed up degenerative change in the knee concerned. Dr McGrath also stated that arthritis can arise from bad surgical intervention.
There was clear agreement among the witnesses that obesity was a risk factor for osteoarthritic change, indeed in the opinion of two witnesses this was likely to be the most significant risk factor by far. In his 2012 report Mr Kelman observed that Mr Zivanovic was obese, but did not qualify his opinion about the impact of the condition of the knee on this basis. This would appear to be consistent with his evidence at the hearing, which was that surgery, weight and age were all equally important risk factors.
Dr McGrath considered the original injury to be an insignificant risk factor. Mr Kelman also sought in cross-examination to qualify his view about risk, stating that the surgical procedures were intended to reduce the impact of degeneration. I do not accept this to be a fundamental qualification on his original evidence which clearly accepted a range of risk factors as being causes of Mr Zivanovic’s degeneration, including the surgical intervention.
Mr Zivanovic was very seriously overweight by the time further degenerative change was detected. At the time of the incident in 1990 he was aged 34 and weighed between 85–90kg. There is no independent evidence of Mr Zivanovic’s earlier weight but I accept, in the absence of contradiction, that this was the case. According to his evidence he was leading an active lifestyle.
By the time of an arthroscopy in 2010, Mr Zivanovic was 54 years old and his weight had nearly doubled. His weight, as I understand the evidence, was a consequence of personal choices around diet and exercise. On his own evidence he chose to cease exercise programs. He also stated that he was not satisfied by the amount of food available to him when attempting to diet, for which he had professional assistance.
I also note from the evidence that weight gain has had a dual effect on the knee. It was clear from the evidence of both Mr Kossmann and Dr McGrath that weight in and of itself increases the load on the knee, thereby causing change due to the physical impact. Dr McGrath also clarified the way in which obesity leads to a biochemical effect which has itself an impact on changes in joints. Evidence as to the amount of activity required to produce degenerative change was equivocal.
It was submitted on behalf of Mr Zivanovic that the injury led to mobility problems which in turn led to the obesity. On this basis I understand this to be an argument that obesity should be considered an employment related factor. I do not accept this position for the reasons given above about the circumstances of his weight gain.
Advancing age is also a risk factor, and I consider this as being somewhat aligned with the development of morbid obesity. I note the evidence of Dr McGrath that he expected that osteoarthritic change could be evident in an obese person from their mid-50s, and this is consistent with the evidence in this case. That is, advancing age in general, within the context of Mr Zivanovic’s weight, is a causative factor for degenerative change.
On behalf of the Respondent an argument was sought to be advanced that Mr Zivanovic had received little if any medical treatment for his left knee for a relatively lengthy period of time. Mr Zivanovic appeared to accept the proposition that he had consulted his GP on only two occasions between 1999 and 2006. The statement of Mr Zivanovic’s employer, Ms Patricia Freeman (Exhibit R1), indicates that he experienced ongoing pain and difficulty with his knee throughout his work with her, commencing in around 2000.
I accept that there is a correlation in time between the emergence of signs of progressing degenerative change in Mr Zivanovic’s left knee and his obesity and age. This is consistent with the medical evidence. Two of the three medical witnesses were of the opinion that these factors were more significant in their impact than the first factor considered, being the impact of surgical procedures. I understand the evidence, overall, to be very clear on the importance of obesity as a risk factor and I do not challenge this evidence. Indeed, it is reasonable to conclude that this risk factor is in itself very significant.
However, the question I need to determine is whether the post-incident surgical procedures can be considered as meeting the relevant statutory causal test. As explained below at paragraph [101], I find that it does, however I will return to this issue further in the conclusion of this section, having further considered Mr Zivanovic’s other conditions.
Hypertension
Mr Zivanovic’s hypertension and claim for expenses for medication were not addressed in evidence at the hearing. I accept on the material that I have before me, and consistent with the submission in Comcare’s Statement of Facts, Issues and Contentions (dated 4 September 2019, p 4 [20]), that Mr Zivanovic first commenced treatment for this condition after his injury, prior to the change to the statutory test of causation. Accordingly I must be satisfied that the condition was materially contributed to by employment. I accept the opinions in the medical reports, set out above, that the condition is due to constitutional factors developed independently of Mr Zivanovic’s knee condition. Therefore I do not accept that this condition is employment related.
Lumbar spine and right knee conditions
I will address the lumbar and right knee conditions together as was done in submissions. I accept that Mr Zivanovic developed degenerative change in his right knee, and also in his lumbar spine. The earliest radiology of his right knee available to me appears to be 2010, at which time Mr Zivanovic had what I understand to be osteoarthritis in two compartments. From my understanding of the evidence at the hearing, this might be considered a relatively advanced form of degenerative change. There is no spine radiology before 2015.
The relevant causal test in both cases is whether employment contributed to a significant degree to these conditions. In essence the case was advanced that the effect of the ongoing difficulties with Mr Zivanovic’s left knee led to a change of gait. Ms Freeman’s statement indicates that Mr Zivanovic carried a limp when he started work with her in 2000, some ten years after the original incident. In his evidence Mr Zivanovic stated that he had been using a walking stick for around ten years, suggesting this aid was in use from around 2009, which is around the time of ceasing work with Ms Freeman.
The Applicant’s submission that a change of gait can cause degenerative change in these other joints is not sustainable on the evidence. The emphatic opinion of Mr Kelman and Dr McGrath was that there is no scientific, evidence-based support for this proposition, and it was not their direct clinical experience. I acknowledge that Mr Kossmann advanced a contrary view about the impact of gait. However, given the consistent positions of the other specialist witnesses and the absence of other material supporting Mr Kossmann’s opinion, I consider that, on balance, I must prefer the evidence of the other witnesses.
While I accept reports that Mr Zivanovic indeed exhibited a changed gait in the form of a limp, there was no evidence as to its extent and possible impact. Furthermore, there was no evidence before me to quantify or assess in any systematic way what change had occurred to Mr Zivanovic’s gait, and no evidence as to the relative contribution it might be said to have made to degenerative change, taking other risk factors into account.
I have accepted the evidence as to the impact of Mr Zivanovic’s weight as a risk factor for the development of degenerative joint change. Both Mr Kelman and Dr McGrath were of the opinion that this was the cause of the lumbar spine condition and the earlier right knee osteoarthritis, or what Mr Kelman described as generalised osteoarthritis. I have also accepted that obesity is not an employment related factor in this case. I therefore accept that weight gain is the cause of degenerative change in the lumbar spine and right knee.
Conclusion
I consider there are several significant contributing factors to degeneration in Mr Zivanovic’s left knee. The picture is complicated by the identification of obesity as an important risk factor, and as the operative causal factor for the lumbar spine and right knee conditions. The complication arises because of the correlation in time in the emergence of advancing degenerative change in the left and right knees. I consider that the onset of further degenerative change in the left knee, beyond that already present at 1990, to be between 2010 and 2013. As seen from the evidence, degenerative change was also present in the right knee, in a relatively advanced form, by 2010.
Further, I have accepted the medical evidence as indicating that a person who had undergone the kind of interventions Mr Zivanovic experienced would very likely have found themselves with further degeneration in that knee. To accept that Mr Zivanovic’s morbid obesity is most likely the primary and significant cause of his generalised osteoarthritic condition does not preclude a finding that the surgical intervention can continue to be considered a significant contributor to the degeneration in his left knee. I consider the medical evidence to clearly show that, notwithstanding any other change in Mr Zivanovic’s lifestyle and health overall, there was a significant risk that he would develop degenerative change in other compartments of the left knee as a result of the knee reconstruction and other follow-on procedures.
Therefore, taking into account the factors in s 5B(2) of the Act, I consider that with respect to his left knee condition, Mr Zivanovic continues to suffer an aggravation of pre-existing patellofemoral dysplasia. I consider the condition of hypertension and osteoarthritic change in the right knee and lumbar spine to be constitutional and a result of lifestyle factors independent of the problems with Mr Zivanovic’s left knee.
DECISION
For the reasons given above, the Tribunal:
(a)In application 2016/4553:
(i)Sets aside the reviewable decision and remits the matter for reconsideration of entitlements under the Safety, Rehabilitation and Compensation Act 1988 with the direction that:
A.the Applicant continues to suffer from an aggravation of pre-existing patellofemoral dysplasia in his left knee; and
B.the Applicant’s condition of secondary hypertension was not contributed to, to a significant degree, by his employment;
(ii)costs in this application reserved.
(b)Affirms the decisions in applications 2017/7356 and 2017/7357.
I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member
....[sgd]....................................................................
Associate
Dated: 27 February 2020
Dates of hearing: 10 & 11 October 2019 Counsel for the Applicant: Mr Mark Seymour Solicitors for the Applicant: Maurice Blackburn Lawyers Counsel for the Respondent: Ms Cathy Dowsett Solicitors for the Respondent: Australian Government Solicitor
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