Zubcic and Australian Postal Corporation - [2000] AATA 683

DECISION AND REASONS FOR DECISION [2000] AATA 683

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1141

GENERAL ADMINISTRATIVE DIVISION          )
           Re      EVA ZUBCIC
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Mr B. H. Pascoe, Senior Member Dr C. Re, Member Adjunct Professor Rodopoulos, Member

Date7 August 2000
PlaceMelbourne

Decision The Tribunal affirms the decision under review.

...….(Sgd) B. H. Pascoe...............
Senior Member
CATCHWORDS
COMPENSATION – anterior cruciate ligament rupture – fall from bicycle – arthroscopies – whether arthrodesis result of original injury – allegations of self-infecting – infection of unknown origin – whether infections result of medical treatment – whether incapacity caused by work-related injury
Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

7 August 2000 Mr B. H. Pascoe, Senior Member Dr C. Re, Member Adjunct Professor Rodopoulos, Member

This is an application to review a decision of the respondent of 10 August 1999 which affirmed a determination of 25 June 1999 to cease liability to pay compensation to the applicant in respect of "right knee cruciate ligament rupture" on and from 8 July 1999. The applicant, Mrs Zubcic, had originally claimed compensation for an injury on 16 October 1996 and liability was accepted by determination dated 11 November 1996.
At the hearing the applicant was represented by Mr M. Carey of counsel and the respondent by Mr M. Croyle of counsel. Evidence was given by Mrs Zubcic; her husband; Professor J. Spicer, a pathologist; Dr G. Shuttleworth, a general practitioner; Dr J. Demitrzoglou, a general practitioner; Dr K. Jenkins, a psychiatrist; Dr A. Fuller, a consultant physician in infectious diseases; Mr H. Hadley, an orthopaedic surgeon; Mr E. Edwards, an orthopaedic surgeon and Dr C. Moore, a psychiatrist.
Mrs Zubcic was born in 1968. After leaving school she worked as a shop assistant and junior clerk before working with her parents in the family company at Dandenong. She worked for some ten years with this company which was an importer of laboratory chemicals, research materials and equipment. After her marriage in 1990 she and her husband purchased a residence on a property of over 3 acres in Korumburra. She was an enthusiastic horse rider and participated in show jumping and dressage competitions and, until November 1999, maintained her horse on the property. On 8 August 1996 she commenced employment with Australia Post as a postal delivery officer on a casual basis. Her fixed term employment ended on 27 September 1997 and was not renewed. Her duties involved mail sorting and delivery.
Mrs Zubcic said that, on 16 October 1996, she commenced work at 5.00 a.m. and commenced her deliveries by bicycle at 11.00 a.m. Her first delivery was to be the supermarket. There was light rain and, travelling down hill, she braked, the bicycle skidded to the left and she fell to the right. She had considerable pain in the right leg and suspected it may have been broken. She said that she remained on the ground until an ambulance came and took her to hospital. At 1.30 p.m. she was seen by a doctor who recommended ice to reduce the swelling and then drove her back to the post office. She said that she was not aware of the need to complete an accident report until some days later. She completed the report on 22 October 1996 and a claim for compensation on 25 October 1996. She saw her general practitioner, Dr Shuttleworth, who referred her to Mr Edwards. Mr Edwards recommended an arthroscopy which he performed on 23 October 1996. She was off work for two weeks and returned on light duties. Her treatment consisted of hydrotherapy, physiotherapy and use of an exercise bike. She resumed horse riding. Mrs Zubcic said that her right knee remained painful and she fell frequently when the knee gave way. She had difficulty in standing and sorting mail although continued with mail deliveries on foot with a trolley cart in the commercial area. She returned to Mr Edwards who performed another arthroscopy in March 1997. Mrs Zubcic said that there was some improvement in knee bending but no alleviation of it giving way. She said that she became depressed at her inability to cope. She said that she experienced resentment by other staff at the post office who accused her of exaggerating the effect of the injury.
After ceasing work with Australia Post in September 1997, Mrs Zubcic said that she sought other part-time work without success. She said that she maintained her efforts at horse riding until approximately December 1997 but because of the pain and instability of the right knee had considerable difficulty in controlling the horse. She returned to Dr Edwards who proposed a knee reconstruction. This was originally scheduled for June 1998 but was deferred as a result of her pregnancy. She miscarried in late July and, in August 1998, Mr Edwards performed a further arthroscopy with the intention, if necessary, of proceeding with a reconstruction. No reconstruction was considered necessary. Mrs Zubcic said that there was considerable swelling of the knee and antibiotics prescribed by her doctor caused her to become nauseous. She was re-admitted to hospital with an intravenous drip to combat infection in the knee. After several bouts of re-infection and re-admission to hospital, Mr Edwards performed an arthrodesis of the right knee on 18 February 1999. Mrs Zubcic said that the doctors did not appear to know the source of the continuous re-infection of the knee and made no recommendation that she should make any changes to her care of the knee. She recalled that the nurses at the hospital had had some difficulty in setting up the drip lines when in hospital. She believed that she had followed all medical instructions in caring for the wound in her knee. She denied ever deliberately interfering with the drip in hospital or that anybody had suggested such a thing.
Mrs Zubcic said that, after the arthrodesis, she had a plaster cast for four months. There was some improvement with the knee but it remained painful and she required the use of a walking stick to retain her balance. Being unable to ride, she sold her horse in November 1999. She has not looked for work since February 1998 and is doubtful that she could undertake any work with limitations on sitting for any period and an inability to kneel, squat or lift.
Mrs Zubcic acknowledged that she had injured her knee on falling from her horse in 1996. She had seen Dr Demitrzoglou for this injury and said that prior to commencing with Australia Post, she had asked the doctor if there would be any problem with the knee which would prevent her riding a bicycle for some three hours per day. She said she was told that there was no residual damage to the knee. She did not recall any suggestion of having an arthroscopy at that time.
Mr Zubcic said that, prior to 1996, his wife had been an active person involved in gardening and horse riding. After the accident in 1996 he had to take on the responsibility for caring for the horse and his wife had not provided any significant help with the garden. He said that his wife was upset and confused as a result of the recurring infections in her knee with regular hospitalisation. He had considered some of the hospital nurses had been rude to his wife.
Dr Demitrzoglou said that he saw Mrs Zubcic on 5 August 1996 with a knee injury from falling off a horse. He saw here again on 14 August and noted that she could not fully flex the knee. He noted also that she was starting employment with Australia Post as a mail delivery officer using a bicycle. He recommended that she wait for two weeks and, if pain persisted, she should have an arthroscopy. He did not see her again and assumed that the knee had recovered. He assumed that it would have been painful to ride a bicycle at that time.
Dr Shuttleworth said that he first saw Mrs Zubcic in relation to her knee on 18 October 1996. A colleague had seen her on the day of the accident. His role thereafter was the management of her pain and rehabilitation of the knee after the arthroscopies. He said that Mrs Zubcic became depressed and he had prescribed anti-depressants from March 1997. He was unsure whether the pregnancy which delayed the arthroscopy in April 1998 was planned. He saw her on 4 September 1998 when she presented with an infected discharging wound from the arthroscopy site. Dr Shuttleworth did not see Mrs Zubcic again until 6 January 1999 when he noted that she felt and looked better and there was no sign of any infection in or around the knee. Although he had been away most of the period between September 1998 and January 1999, he was aware of the recurrent knee infections during that period. He had no reason to believe that she had not been compliant with the treatment recommended. Dr Shuttleworth said that he would be surprised if Mrs Zubcic participated in horse riding at a show in January 1998 as he had thought she was not up to such activity.
Dr Jenkins visited Mrs Zubcic on ten occasions during her various stays in hospital and each visit was 45 minutes to one hour. Mrs Zubcic was referred to Dr Jenkins by Mr Edwards who considered that there had been evidence of unusual behaviour and depression. Dr Jenkins said that the miscarriage in July 1998 had been a significant loss to Mrs Zubcic. The doctor considered that Mrs Zubcic had an underlying depressive illness tending not to express needs in an emotional sense and that such needs were being expressed in a physical illness rather than a psychological illness. She was aware that nursing staff were concerned that Mrs Zubcic had interfered with the intravenous equipment and believed that this may well have been an unconscious effort to prolong the illness and to continue being cared for. The doctor was of the opinion that the wound infections were factitious to produce physical symptoms to satisfy a need for care and to be looked after. Dr Jenkins said that she had advised the nursing staff not to confront Mrs Zubcic with their suspicions and she had not put to Mrs Zubcic her opinion of deliberately re-infecting wounds. She said that this would have been counter-productive with loss of rapport and, in any event, a denial would have been expected. The doctor said that her notes of the consultations referred to concern at the loss of mobility, loss of the job, loss of a baby, loss of horse riding activities and alienation at work and in the community.
Professor Spicer had read the various contemporaneous medical reports and considered that the infection after the arthroscopy on 8 August 1998 was consistent with a not unusual post-operative infection. He assumed that each subsequent re-infection to March 1999 had entered the same wound site. He accepted that it was extraordinarily unusual to have so many organisms and different organisms in subsequent infections. He said that the faecal organisms identified in the infections were frequently present on the skin of a person's lower limbs and that the source of the infection can be the patient's own skin or externally from items such as clothing. He said that while an infection may appear to be healed it may not have disappeared and can re-appear after being dormant for a period. The most likely source of the subsequent infections once the wound has healed would be prior infection unless occurring in a new access point at a different site. The fact that different organisms were present in subsequent infections could mean that the knee was either intentionally re-infected or unintentionally re-infected from skin or clothing in contact with the wound.
Dr Fuller was involved with treatment of Mrs Zubcic from 17 August 1998. He treated all of her infections and last saw her on 4 October 1999. In August 1999 Mr Owen, an orthopaedic surgeon, was consulted by Mrs Zubcic in relation to a possible knee replacement. Mr Owen wrote to Dr Fuller requesting information on the prior infections and commented on allegations of tampering with her wound and the possible cause of "the strange mixture of infective organisms that has led to arthrodesis". Dr Fuller provided a reply to Mr Owen and included five letters outlining the problems which developed after the arthroscopy on 8 August 1998. His letter of 11 October 1999 stated:
"In summary, Eva developed infection after infection after infection with different organisms. Each seemed to be sited at the arthroscopy puncture site. These organisms were of faecal origin and not the usual post-op organisms. Methicillin Sensitive Staph aureus was isolated on one occasion, but no MRSA. You will see in my letters that each infection was aggressively treated with both antibiotics IV and orally and debridement. There were two organism that were later isolated that had never been found in the early stages, and to this day I have no idea how these organisms entered her knee. There were concerns voiced that her wounds had become accidentally infected at home.
The end result of these infection [sic] was that in February 1999 Eva's cartilage was destroyed by a combination of organisms and Mr Elton Edwards had no option but to scrape out the destroyed cartilage and perform an arthrodesis. At that time I treated her with six weeks of IV penicillin and meropenem, finishing this on the 30.3.99. Since then Eva's ESR has normalised and remained normal and her latest ESR on the 23.9.99 was 6, her CRP is also normal."

Dr Fuller said that one of the original organisms identified after the August arthroscopy was Staphylococcus Aureus ("SA") but this was not the Multiple Resistant Staphylococcus Aureus ("MRSA") which is the type normally only found in hospitals. The normal SA is commonly found on the skin of patients. The other organism identified initially was clostridium perfringens which is a faecal organism. Subsequent infections in September, October, November and December were primarily faecal organisms and Dr Fuller felt that they could have been acquired from contact with horse manure. In September 1998, Dr Fuller was of the opinion that the then infection had been resolved and cured. In February 1999 the new infection contained three new organisms. Dr Fuller said that one, Nocardia, was normally found in soil and it was very unusual for it to be found in a patient infection. He said that, although it was not impossible, it was very unusual for the organism responsible for Mrs Zubcic's infection to be hospital acquired. He was satisfied that the infection was from an external source. There was no similar infection of any other patient of the hospital and all proper standards were maintained by the hospital. He had been satisfied that earlier infection had been defeated and, if anything, Mrs Zubcic had been overtreated for the infections. He assumed that the organisms present on 8 February 1999 had entered the knee only a week or two prior to that date but could find no puncture mark or foreign matter. He said that, prior to this later infection, the bone scan had been clear. Dr Fuller said that he had asked Mrs Zubcic about possible contamination but she had told him that she had done everything to keep the wound from becoming infected. He had heard of allegations of Mrs Zubcic tampering with her intravenous lines but had not observed anything personally. He confirmed that, to this day, he has no idea how the organisms entered the knee in February 1999. However, he was firm that the skin was totally healed some months before February 1999.

Mr Hadley examined Mrs Zubcic on 15 February 2000 and provided a report dated 9 March 2000. He was of the opinion that the fall from the bicycle in October 1996 had, apparently, ruptured the right anterior cruciate ligament, that a post-operative infection following the August 1998 arthroscopy resulted in septic arthritis requiring the arthrodesis on 18 February 1999. He said that a healed wound with an abscess below can take months to develop and assumed that the infection in February 1999 had been caused by dormant bacteria which had eventually flared up. However, he agreed that it would be a reasonable assumption that the organisms involved in the February 1999 infection would have been the same organisms present in earlier infections.
Mr Edwards had provided a report to the respondent dated 11 March 1999 based on his records. He said that, when Mrs Zubcic was re-evaluated in April 1998, she had multiple complaints regarding the function of her right knee. He recommended another arthroscopy and, if deemed necessary, an anterior cruciate ligament reconstruction. The knee was carefully inspected arthroscopically in August 1998 and no significant abnormality could be identified so that the reconstruction was not considered necessary. He concluded that her episodes of her knee giving way were not the result of anterior cruciate ligament deficiency but rather as a result of functional instability, related to quadriceps and hamstring function. A rehabilitation program was recommended. On 13 August 1998, Mrs Zubcic's general practitioner advised Mr Edwards that the knee was inflamed and he admitted her to hospital on 17 August. He said that, following this initial infection, there were multiple infections about the knee with a variety of different organisms. In only one of her multiple hospitalisations had a traditional hospital based wound infection organism, SA, been identified. On all other occasions one or more faecal organisms had been identified and, in general, the recurring infection has not been with the same organism, but rather with different organisms. In his view, the treatment had been successful in eradicating each bout of infection with a further new infection occurring. He noted that it had been reported by nursing staff that Mrs Zubcic had interfered with the intravenous line on several occasions. Mr Edwards understood that Mr Owens felt that Mrs Zubcic had acknowledged that she had been responsible for the infections by her lack of any denial of the allegations of the self-inflicted infections.
In his oral evidence Mr Edwards said that, at the time of the first arthroscopy in October 1996, he was satisfied that the anterior cruciate ligament rupture had occurred only one week prior. He said that, in April 1997, he felt that Mrs Zubcic was becoming depressed and tried to convince her that her knee would recover and to commence activities in as normal way as possible, including horse riding. He believed that she was receiving some non-medical advice which was not assisting and sought to have her limit advice to himself and her general practitioner. In April 1998 he considered it appropriate to have a further look at the knee surgically as, although he believed that there was no problem within the knee, the stated symptoms from Mrs Zubcic justified examination. When the examination, under anaesthetic, was conducted in August 1998 all tests were within the normal range. At that time, he anticipated a full recovery, with full function of the knee. He said, that, by the end of 1998 with the regular infections, there were sufficient problems that indicated that the outcomes were not as good as might have been expected in August. Mr Edwards confirmed that there had been no infection following the arthroscopies in October 1996 and March 1997. He had no evidence that Mrs Zubcic interfered with her wound but, because of the organisms involved and the re-infections, he was suspicious of external interference. He had no recollection of saying to Mrs Zubcic that the "pain was in her head", which was a comment said to have been attributed to him by Mrs Zubcic in a file note of a conversation by an Australia Post employee with her on 8 April 1997 when she sought approval for a second opinion. Mr Edwards maintained his opinion that the current position of Mrs Zubcic's knee resulted from the October 1996 injury.

There were two incident reports from Victoria House Hospital tendered by the respondent. One dated 26 September 1998 noted that, between checking the intravenous lines at 5.25 p.m. when the line was intact and again at 5.30 p.m., all of the fluid had run through. Mrs Zubcic had a towel under her arm which was wet with antibiotic fluid, the side arm cap was no longer connected and the clamp to the PICC line was closed. Mrs Zubcic stated that she was unaware that her arm was wet although she had been "fidgeting" with the line. The side arm cap was found under her pillow. On 9 February 1999, a report noted that some 500 ml of fluid had gone missing from the container between 8.40 a.m. and 9.15 a.m. Mrs Zubcic had been to the bathroom twice in 30 minutes after the intravenous line was inserted.
Dr Moore examined Mrs Zubcic on 6 June 2000 and provided a report dated the same day. He found no evidence of any psychiatric disorder. He said that she impressed him as being tightly emotionally controlled and, although her lack of depression and anger did not constitute any form of abnormality, it was somewhat unusual in her circumstance. He found that she does not fit the usual picture of a person suffering from factitious disorder. He said that this disorder was first described as "Munchausen Syndrome" and that the essence of the disorder was to seek out the role of being a patient. He said that persons with the disorder are wanderers going from hospital to hospital and state to state. In his practice he had encountered only one person who appeared to fulfil the criteria for factitious disorder but who remained a member of a stable family unit and in the same geographical area. However, that person showed the classic features of "doctor shopping" and admission to hospital in dramatic circumstances for a variety of conditions. He did not consider that this was the picture presented by Mrs Zubcic.
It was submitted for the applicant that the injury of 16 October 1996 resulted in the ongoing incapacity of Mrs Zubcic. It was argued that the ongoing infections following the arthroscopy of 8 August 1998 were the result of that operation and that the infection could have entered only from that wound and the appropriate medical treatment of the work-related injury. It was said that there was no evidence of any self-inflicted infection which had been strongly denied at all times by Mrs Zubcic. The knee injury from the horse riding incident in August 1996 was said to have been completely resolved prior to October 1996 and there was a clear fresh traumatic injury to the knee from the October bicycle accident. Mr Carey maintained that Mrs Zubcic is incapacitated for all work available to her and that no suitable duties had been offered by the respondent. He said that there was no evidence that Mrs Zubcic had ever refused to work to her capacity.
For the respondent it was submitted that any effect of the injury to Mrs Zubcic's knee of 16 October 1996 had ceased no later than 8 July 1999. It was said that the evidence demonstrated that the "right knee cruciate ligament rupture" had resolved by August 1998 when Mr Edwards performed the arthroscopy. The subsequent infections resulting in the arthrodesis in February 1999 were said not to be related to the August procedure and, therefore, not resulting from the injury. It was further submitted that there was a reasonable likelihood that it was the horse riding accident in August 1996 which had injured the knee and the bicycle accident in October 1996 had aggravated that injury with the effect of that aggravation having ceased subsequently. The respondent submitted that Mrs Zubcic had been capable of performing appropriate work subject to restrictions caused by her knee until the infection and subsequent arthrodesis in February 1999. It was this that has caused a greater incapacity but that incapacity is not related to the initial injury but to the non work-related infection.
The major difficulty of this case is whether the infections of the right knee between August 1998 and February 1999 were directly related to the arthroscopy performed in August 1998. We have no difficulty in accepting that Mrs Zubcic's right knee was injured in a fall from a bicycle on 16 October 1996. It should be said, however, that the evidence of Dr Demitrzoglou left us with the opinion that the knee injury sustained in August 1996 from the fall from a horse was more significant than Mrs Zubcic was prepared to admit. On 14 August 1996 she could not fully flex her knee and the doctor was of the opinion that if pain persisted for two more weeks, an arthroscopy would be appropriate. She started work with Australia Post and did not see the doctor again. Nevertheless, given the injury on 16 October 1996, even if it was an aggravation of a pre-existing condition, Mrs Zubcic is entitled to compensation. It is noted that Mr Edwards clearly attributes the anterior cruciate ligament rupture to that later injury. The respondent has accepted that her knee problem was employment caused, at least until August 1998. The difficult question is the cause of the subsequent deterioration.
We accept the evidence of Dr Fuller that the source of the infection after, at least, the August 1996 infection was external to the hospital. While the SA organism was potentially in the hospital it is also found commonly outside hospitals. The other faecal organisms were said to be very unusual to be hospital acquired. The fact that subsequent infections involved new and different organisms leads to the view that they were acquired external to the hospital. The evidence indicates that, by December 1998, all previous infections had been cleared. While Mr Hadley and Professor Spicer felt that the final infection in February 1999 could well have arisen from organisms which had been dormant under the skin, this does not explain how the infecting organisms at that time were new and different from the preceding organisms. We accept Dr Fuller's view that the February 1999 organisms must have been introduced in some way to the site after December 1998 and it was these organisms which caused the final destruction of the cartilage and the necessity of an arthrodesis. Dr Fuller is not prepared to express an opinion as to how these organisms entered the knee. Neither is Mr Edwards. However, given the facts and the history of the infections we find that the infection of February 1999 did not result from the arthroscopy of August 1998 or subsequent medical treatment prior to such infection. It is not necessary, in our view, to find that the infection was deliberately self-inflicted by Mrs Zubcic but to find, on the balance of probabilities, that it did not result from any medical treatment of the knee which was injured in October 1996.
There is considerable support for the view that the infections were self-inflicted in the evidence of Dr Jenkins. We prefer her view from that of Dr Moore. Dr Jenkins spent many hours with Mrs Zubcic in the relevant period and formed the clear view that the infections were factitious. While Mr Owen did not give evidence, it appears that, after examining Mrs Zubcic, he was concerned at the likelihood of the infections having been self-inflicted. It is clear that Mrs Zubcic was fully advised on the care of her wound and while an accidental infection by one who is spending considerable time with a horse may well be possible, the constant recurrence particularly involving new and different organisms leads against a view that they were accidental or arose from a latent prior infection. The final infection of February 1999 appears inexplicable by the growth of latent prior infection or by any prior medical procedure. It was caused by new organisms which, on the evidence of Dr Fuller must have entered the site only a short time prior.
The evidence of Mr Edwards was that there was no anterior cruciate ligament deficiency in August 1998 and that an appropriate rehabilitation program would resolve her problems. It was the subsequent infections, particularly that of February 1999 which caused the ultimate arthrodesis. It was the evidence also of both Mr Edwards and Dr Fuller that there had been a complete resolution of infection in December 1998.
There is clear concern at the number of factors outside the work-related injury which related to Mrs Zubcic between August 1996 and March 1999. These include the knee injury in August 1996, the conflicting evidence of whether or not she sought to become pregnant in 1998, the miscarriage and its effect on her in July 1998, the allegations of tampering with the intravenous lines in hospital and the recurrent infections involving new and unusual organisms. These tend to support the view of Dr Jenkins and to support our view that, on the balance of probabilities, any incapacity of Mrs Zubcic beyond 8 July 1999 cannot be attributed to the injury of 16 October 1996, the effect of which had ceased no later than that date.
It follows that the decision under review should be affirmed.
I certify that the twenty-six (26) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B. H. Pascoe, Senior Member
Dr C. Re, Member
Adjunct Professor Rodopoulos, Member
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  13 June, 13 & 14 July and 2 August 2000
Date of Decision  7 August 2000
Counsel for the Applicant        Mr M. Carey
Solicitor for the Applicant         Slater & Gordon
Counsel for the Respondent    Mr M. Croyle
Solicitor for the Respondent    Sparke Helmore