Graham and Comcare [1999] AATA 437 (21 June 1999)

Last Updated: 13 August 1999

DECISION AND REASONS FOR DECISION [1999] AATA 437

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/598

GENERAL ADMINISTRATIVE DIVISION )

Re Melodie Lee-Ann GRAHAM

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date 21 June 1999

Place Sydney

Decision The Tribunal:

1. Sets aside the decision under review; and

2. Remits the matter to the Respondent for assessment of the amount payable to the Applicant with the Direction that -

(i) Pursuant to s 14 of the Safety Rehabilitation and Compensation Act 1988 ("the Act") the Applicant suffers from a work-related condition in her right knee arising out of an injury sustained at work on 14 March 1989 for which the Respondent continues to be liable;

(ii) pursuant to s 16 of the Act the Applicant is entitled to receive payment for reasonable medical treatment in respect of this condition; and

(iii) pursuant to s 19 of the Act the Applicant is entitled to payment of compensation for loss of earnings during the period of her medical treatment and convalescence.

3. Orders that the Respondent pay the Applicant's costs of these proceedings pursuant to s 67 of the Act as set out in the Tribunal's General Practice Direction.

...........Sgnd M T Lewis...........

M T Lewis

Senior Member

CATCHWORDS

COMPENSATION - knee injury - whether work related knee injury in 1989 caused osteoarthritis of knee requiring surgery in 1997

Safety Rehabilitation and Compensation Act 1988 - ss 14, 16, 19, 67

EMI (Australia) Ltd. v Bes [1970] 2 NSWR 238

Re Clarke and Telstra Corporation Ltd (1997) 47 ALD 472

REASONS FOR DECISION

21 June 1999 Mrs M T Lewis, Senior Member

1. An application was lodged by Melodie Lee-Ann Graham ("the Applicant") to review a reconsideration decision of a delegate of Comcare ("the Respondent") dated 6 August 1997 which affirmed a primary determination dated 28 April 1997 denying liability in respect of a claim for compensation for the costs of surgery following an injury to her right knee.

2. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (exhibit T1). The following documents were tendered as evidence on behalf of the Applicant -

* Documents produced by Dr O'Keefe in response to a summons (exhibit A)

* Reports of Dr O'Keefe dated 25 November 1998, 2 December 1998 and 15 December 1998 (exhibit B)

* Report of Diane F Tyter, physiotherapist, dated 27 August 1998 (exhibit C)

* Documents produced by Cape Hawke Private Hospital in response to a summons (exhibit D)

* Report of Dr S Sherif dated 20 January 1997 (exhibit E)

* Documents produced by Dr G Lewis in response to a summons (exhibit F)

* Documents produced by Dr J MacPherson in response to a summons (exhibit G)

* Documents produced by Central Brunswick Medical Centre in response to a summons (exhibit H)

* Statement of the Applicant dated 19 February 1999 (exhibit J)

* Statement of James Andrew Graham dated 15 February 1999 (exhibit K)

* Statement of Elsie-May Graham dated 15 February 1999 (exhibit L)

* Statement of Dale Cartwright dated 16 February 1999 (exhibit M)

* Statement of Christopher Paul Ardron dated 16 February 1999 (exhibit N).

3. A report from Dr RWD Middleton dated 29 October 1998 (exhibit 1) was tendered as evidence on behalf of the Respondent, together with a letter from the Respondent's solicitor to Dr Middleton dated 16 October 1998 (exhibit 2).

4. The Applicant gave oral evidence at the hearing. James Andrew Graham, Elsie-May Graham, Christopher Ardron, Dale Cartwright and Dr O'Keefe also gave evidence on behalf of the Applicant. Dr Middleton gave evidence on behalf of the Respondent.

evidence

5. The Applicant was born on 10 March 1958. She worked at the Bulimba Depot of the Department of Defence as a cleaner for six hours a day, 5 days a week. On 14 March 1989 she was mopping an office floor and she hit the side of her right knee on the arm of a wooden chair. She finished the mopping. She was uncertain whether she reported the incident then or the next day. The incident report was completed by Captain Sypher, in whose office the incident occurred. He completed it for her because she is dyslectic. She said her knee was sore immediately after she struck it, but she was still able to walk. She said it was still sore the next day and that was why she went to the doctor. Dr MacPherson, whom she attended because her general practitioner was not available, provided a medical certificate dated 16 March 1989 and she was away from work for a week, for which she was paid compensation. She then returned to the same duties (T8).

6. At the time the Applicant was off work she lived with Mark Cilia and Chris Ardron in a flat at Ashgrove which was accessed by a long flight of stairs. She said that she needed assistance at that time going up and down the stairs, and so she mainly stayed in the flat. She was assisted by Mr Ardron during her time off work, as he was not working at the time. She needed assistance to get in and out of the shower. Mr Ardron did the shopping. She said that at the end of that period off work she was fairly mobile but she still had some difficulty going up and down stairs.

7. The Applicant said that she continued to have difficulty in managing stairs after she returned to work. She continued working at the Bulimba Depot and later she also worked a few days a week at the Meanndah Depot, a large base where she was required to walk between cleaning sites. She said that she was able to cope with her cleaning duties at both bases and did not have time off for knee problems. After Meanndah Depot was privatised her work was then confined to Bulimba. She continued working six hours a day, five days a week until she moved to Forster in 1996.

8. The Applicant said that she moved to a ground floor flat at Red Hill in 1992. Mr Ardron also lived there for a short while, and her mother lived next door. She said she moved there because she found it difficult to manage the full flight of stairs to the flat at Ashgrove, and she wanted to live on her own for a while. Another friend, Dale Cartwright, moved in for a while in 1994. She said that she used to go walking with Mr Cartwright, mainly in the afternoons. She said that sometimes her knee would be sore after she had been walking, but after she had a bath and rested it was alright.

9. At Forster the Applicant worked short and variable shifts at the local hospital because that was the only work available. She said that after the pain in her knee increased she continued to perform her work, but her boss was concerned about her. She was off work and in hospital for a few days before the knee surgery but apart from that she did not take time off from work prior to the knee surgery. She denied swapping shifts because of knee pain.

10. The Applicant said that she hurt her back while cleaning the shower block at work about a year before the knee incident. She said that she sustained muscle and tissue damage to her back. Her back continued to be sore after the time of her knee injury, and even now it is sore occasionally.

11. The Applicant said that during her late teens to her late twenties she weighed about 13 stone. She estimated that at the time of the injury she weighed about 100 kg, but said that her weight fluctuated between about 90 and 120 kg. She said that she weighed about 85 or 86 kg when she moved to Forster. Her weight started to increase in 1994 when she reduced her walking program. She was under stress at work and she had an ache in her knee at that stage. She said she first attended a doctor about her knee in Forster because she could feel something moving in it and it was aching.

12. The Applicant attended Dr MacPherson again in May 1989 in respect of her knee. She told him that she still experienced pain and tenderness over the inner side of the knee. She said that she did not see him again because he said that it would heal itself. The Applicant then began attending Dr Gerard Stares at the Brunswick Medical Centre, and went there for 3 or 4 years until she moved to Forster. She said that after May 1989, the next time she mentioned her knee to a doctor was in November 1996 when she attended Dr Lewis in Forster, who referred her to Dr O'Keefe, orthopaedic surgeon. She said that towards the end of 1996 the pain got much worse, whereas previously, after she rested her knee, the pain would ease.

13. The Applicant said that she has had no problems with her left knee and was unable to recall it grating or clicking. She also could not recall whether after 1989 her right knee clicked.

14. The Applicant said she has had two operations on her knee, one on 20 February 1997 and the second on 6 May 1998, and she had physiotherapy after each one. She also had a course of hydrotherapy. The Applicant said that she no longer walks as much as she used to.

15. The Applicant said that the pain in her knee which she experienced in 1996 when she consulted Dr Lewis was different from the pain she had previously, in that in 1996 it was persistent rather than intermittent. Indeed, she said that she was eventually hospitalised prior to the first surgery because of the severity of the pain. In the interval between 1989 when she saw Dr MacPherson and 1996 when she saw Dr Lewis she did not have physiotherapy because Dr MacPherson had not suggested it.

16. James Andrew Graham, the Applicant's de facto husband, gave evidence and provided a written statement (exhibit K). He and the Applicant started living together on a part-time basis in 1994 when she visited him in Forster about six times a year while she continued to live and work in Brisbane. On a number of those visits he noticed that the Applicant was limping and complaining of pain and stiffness in her knee. At the time he thought that it was the bus journey from Brisbane which caused the stiffness. However sometimes her knee was stiff and painful for all or most of her stay with him, which ranged from four days to a week or two. Although at times her knee would improve it never resolved completely. They used to treat it with ice packs. Her knee was swollen and appeared to have fluid on it, which when pressed caused a dent. She had commented to him in passing that she had hurt her knee previously.

17. After the Applicant moved to Forster in August 1996 he realised that her knee problem was ongoing and not intermittent and related to her bus travel as he had thought previously. By then she was having "some really bad days", and sometimes two or three days or a week at a time, where she had to sleep separately and with her knee raised on pillows. At times she was in tears because of the pain. He said that they had not been walking together since she came to live in Forster on a permanent basis.

18. Mr Graham considered that the Applicant was a "workaholic". He said "she loves her job and she loves the people that she's with at her job" (transcript, 25 February 1999, p.39). He said that if she woke with a sore knee she might have swapped her shift with someone else. He said that she had time off work before the surgery, but it was not clear to the Tribunal whether he was referring to the period of hospitalisation just prior to the surgery.

19. Mr Graham said that the Applicant still has occasional problems with her knee, but she is better now compared with the period before the surgery. He had no knowledge of her having any problem with her left knee.

20. Mrs Elsie-May Graham, the Applicant's mother, gave oral evidence by telephone and provided a written statement (exhibit L). She said that in March 1989 when the Applicant injured her knee she saw the Applicant almost every day, and that continued after the Applicant moved into the flat next to her at Red Hill in about 1992. Mrs Graham said that from 1992 to 1996 she cooked for the Applicant and they ate together, while the Applicant assisted Mrs Graham with her housework. She said that the Applicant did not have any difficulty doing the housework. They had intended to move in together but when the flat next door became available that was more convenient overall. In 1996 they moved to a flat together in Wilston for six months before the Applicant came to Forster.

21. Mrs Graham said that she was aware that the Applicant had experienced pain in her right knee from time to time from 1989 until she moved to Forster. These complaints started approximately one to two years after the knee injury in 1989. On occasions the knee was swollen and Mrs Graham applied ice packs and hot water bottles to the knee. She was not aware of the Applicant having any other problem with or injury to either knee. She thought that the Applicant's complaints were of about the same intensity until she moved to Forster permanently.

22. Mrs Graham was unable to recall any work injury to the Applicant's back in 1987. She was not aware that the Applicant had any particular problem with her back. She recalled that the Applicant was off work for a few weeks in 1989 after she injured her knee.

23. Christopher Ardron provided a written statement (exhibit N) and gave oral evidence by telephone at the hearing. He shared a flat with the Applicant at Ashgrove from 1988 to 1992. He moved to another flat alone in 1992. He said that one of the reasons for the Applicant moving in 1992 was that she had to negotiate two flights of stairs to their flat at Ashgrove, incorporating some 40 to 50 stairs. After her knee injury in 1989 he said that for a couple of weeks he had to assist her in using the stairs, in showering, dressing, and in doing the shopping for her. Thereafter he assisted her at times when she had a sore back and a stiff knee. He observed that while they were in the Ashgrove flat, from time to time she would rub her knee. He said that he also lived with the Applicant for 8 to 10 months at Red Hill, but during that time he had his own problems and he relied on her for support. He said that he did not think to ask her during that time how her knee was because he was absorbed with his own needs.

24. In respect of the Applicant's knee injury, Mr Ardron recalled that the Applicant came home from work and told him that she had injured her knee at work, it looked red, and she said that it was sore. She also had pain in her back, commencing prior to the time he moved into her flat in 1988. She complained of both a pain in her back and her knee from time to time.

25. Mr Ardron said that the Applicant's move from Ashgrove to Red Hill was for a combination of reasons, but mainly it was so that she could look after her mother. He said that she did a lot for her mother, and he considered that her knee "didn't really get much of a look in" (transcript, 25 February, 1999, p.59). He considered that the flat which he shared with the Applicant was "like a pig sty", inferring that there was not much housework done by either of them (transcript, 25 February, 1999, p.59).

26. Dale Cartwright gave oral evidence by telephone and provided a written statement (exhibit M). He has known the Applicant for twelve years, and shared a flat with her in Red Hill for six months from about April 1994. He said that during the first two or three months there he and the Applicant walked for a distance of about one mile three to four times a week for exercise. He recalled that at times during the walks she complained that her right knee was hurting, and on a number of occasions she cancelled the walk because her knee was hurting too much. He said that it was apparent to him that she was in a great deal of pain. At those times she would rest with her knee elevated. After two or three months they stopped going for walks and changed to aqua aerobics instead. He said that this was at the Applicant's instigation and he understood that it was because of the problems she was having with her right knee. He said that after he moved out of the flat he continued to see her two or three times a week until she moved to Forster. From time to time during that period he noticed that she was limping, and she advised him that her knee was hurting.

27. In his oral evidence Mr Cartwright said that the Applicant was not a "whinger" and was a "woman of very few words" (transcript, 25 February, 1999, p.61). He said that at times when they went for walks she needed to sit down on the way, and he understood that she was in a lot of pain and had wished she had not gone on the walk. He also said that he used to see her towards the end of the day after he had moved out of the flat, and she often appeared to have a fairly bad limp. He did not recall her complaining of back pain. He said that although she had lost a lot of weight after the banding operation he understood that her knee pain was not affected by her weight loss.

28. Mr Cartwright said that he has continued to keep in touch with the Applicant after she moved to Forster. She told him that her leg was aching, and on a few occasions she "blew up a little bit" because "the pain got to her" (transcript, 25 February, 1999, p.62). He advised her to seek medical attention but he was not sure what she did about that. He understood that she hurt her knee when she knocked it at work.

29. Dr David O'Keefe, the Applicant's treating orthopaedic surgeon, gave oral evidence and provided reports (exhibit B). The Applicant was first referred to him on 13 February 1997. On 20 February 1997 he performed an exploratory arthroscopy on the Applicant's right knee and noted that the damage was mostly in the patellofemoral joint on the lateral side. He performed a "lateral release, cleaned up the arthritis and then removed a 'melon seed' body from her prepatellar bursa" (transcript, 25 February, 1999, p.66). He said that there was no other pathology inside the Applicant's knee other than in her patellofemoral joint. He considered that a 'melon seed' body was almost always post-traumatic in origin. He explained that an injury to one of the bony prominences of the knee can cause small loose pieces of bone to flake off.

30. Dr O'Keefe was asked about the aetiology of the full thickness osteoarthritis of the lateral femoral ridge which he found at the time of the arthroscopy (exhibit A). He said that he had been of the opinion that the Applicant had a valgus knee on the right side, but subsequent X-rays have shown that both knees are the same. Therefore he considered that the osteoarthritis could only be attributed to some sort of traumatic aetiology, possibly a subluxation of the kneecap, but not a dislocation because that would have to have been put back under anaesthetic at the time of the initial injury. At the time of the arthroscopy Dr O'Keefe had a history that the Applicant suffered "some sort of direct blow injury to her knee cap some years before whilst working in Queensland in 1989" and he then obtained a history of steadily worsening pain over a period of years (transcript, 25 February 1999, p.66).

31. Dr O'Keefe, in referring to the Applicant being overweight, said that "her body habitus is an aggravating factor but it should have an equal effect on both knees..." (transcript, 25 February 1999, p.67).

32. Dr O'Keefe said that the arthroscopy provided relief for a limited period only. It was necessary, because of her ongoing symptoms, to perform an osteotomy on 6 May 1998 as it became apparent that the pathology was mainly due to the patellofemoral problem. He considered that the second operation produced remarkably good pain relief, although the Applicant continues to suffer from crepitus in the knee so the arthritis has not been cured. As a result of retracking her patella mechanism, her arthritis is less of a problem for her and she was able to return to work after a six week recovery period following the second operation.

33. Dr O'Keefe noted in his report of 2 December 1998 (exhibit B) that the Applicant had a positive attitude towards work and she wanted to continue with it. He said, "at no stage did I feel that she was exaggerating her symptoms". He also said in that report that he agreed with most of Dr Middleton's report in respect of 'history' and 'examination'. However he disagreed with Dr Middleton that the Applicant has varying degrees of valgus in both knees. Dr O'Keefe explained that he had obtained standing X-rays which failed to show varying degrees of valgus in both knees. He indicated that there would need to be bilateral valgus of similar degree for a congenital abnormality to be responsible for her condition. The medial and lateral compartments of the right knee were essentially normal as seen at arthroscopy. He said that the Applicant had five degrees of valgus bilaterally, using standing X-rays to achieve measurement of the degree of valgus. He considered that this was within normal limits. Therefore he disagreed with Dr Middleton's conclusion that the Applicant has a congenital abnormality, stating that "I feel strongly that it is post-traumatic...". He added -

This is the equivalent of "dashboard knee" that occurs in motor vehicle accidents where even though the initial injury to the knee may seem trivial the cartilage on the back of the kneecap and the corresponding area of the femur degenerate over a period of years until they become painful and osteoarthritis supervenes. Even though she does have some patellofemoral crepitus in her left uninjured knee she certainly does not have the severe osteoarthritis she has in her right knee indicating a post-traumatic origin.

34. Dr O'Keefe agreed in cross-examination, however, that a "dashboard knee" was more likely to result from a more significant injury than that which was recorded in Dr MacPherson's clinical notes. On the other hand, and taking into account the description of the incident on the claim form (T3), it was possible, because of her heavy weight, that she sustained greater force on the knee when she knocked it on the chair.

35. Dr O'Keefe noted that Dr Middleton considered that the most likely cause of the Applicant's arthritis which effected solely the patellofemoral compartment was the mal-tracking, but if that was the case Dr O'Keefe considered that she should also have the same symptoms in her other knee.

36. Dr O'Keefe assumed that Dr Middleton had performed only clinical measurements to determine valgus, which he said was notoriously inaccurate because a measurement from the centre of the hip joint cannot be identified other than by X-ray. By use of X-rays Dr O'Keefe was able to draw lines down the centre of the bone and through the centre of the knee, and then measure the angles. In the Applicant's case they were both five degrees, which he said was an acceptable degree of valgus. He agreed that valgus knees are often seen in overweight people, but as the load is equally distributed between the knees it is usual to see the same degree of valgus in both knees.

37. Dr O'Keefe did not disagree with the following statement in Dr Middleton's report, as a general principle -

Whilst trauma may be associated with the genesis of osteo-arthritis, such trauma usually needs to be of a severe nature and should produce considerable disruption and irregularity of the joint bearing surfaces. (exhibit 1 at p.3)

However Dr O'Keefe noted instances where osteoarthritis develops after just a minor subluxation of the kneecap which was spontaneously reduced, where the initial discomfort settles, and then arthritis does not develop subsequently until a period of years have elapsed. If the injury was severe osteoarthritis would develop within 12 or 18 months, whereas in a minor injury it would take a lot longer. Dr O'Keefe agreed that while there was no considerable disruption or irregularity of the joint subluxation of the two main joint surfaces, there was disruption or irregularity of the patellofemoral joint causing osteoarthritis, a factor which was also accepted by Dr Middleton.

38. Dr O'Keefe considered that he had an advantage over Dr Middleton insofar as he had had the opportunity to inspect the condition of the Applicant's knee joint by arthroscopy whereas Dr Middleton's view was confined to X-ray, clinical signs and clinical measurement at the time of his examination in October 1998. Dr O'Keefe said that he was 90 percent confident of his opinion that the Applicant's right knee condition arose from a traumatic event.

39. Dr O'Keefe opined that if the Applicant continues working the distal realignment which he performed is likely to give her relief for 10 to 12 years, but she is likely ultimately to need a knee replacement, although he does not like performing that surgery while one continues to work or if one is younger than 60 years.

40. When referred to the clinical notes of Dr MacPherson for the dates 16 March 1989 and 26 May 1989 (exhibit G) Dr O'Keefe said he would expect that the Applicant would have had the clinical signs of a torn cartilage on that history. However when he inspected the cartilage some eight years later there was no evidence of a torn cartilage and if it had occurred it would have been visible at the time of his arthroscopy some 10 years later. Dr O'Keefe noted the inconsistency of the entry on 26 May 1989 that there was no history of injury, when indeed the entry of 16 March 1989 gives a history of injury. He agreed that the reference in the clinical notes suggested that it was not a major injury, although he said that five days off work was significant.

41. Dr O'Keefe said that while he would expect there to have been bruising after the injury, as bruising occurs close to the bone it may not have been able "to track through the thicknesses" to come to the surface in the Applicant's knee (transcript, 25 February, 1999, p.82). Dr O'Keefe said that at the time he took the history he was not particularly interested in what had happened between the injury in 1989 and when he first saw the Applicant. The history he recorded was "an old work injury at the Department of Defence and Comcare workers' comp" (exhibit A). He was more concerned with trying to alleviate her problem.

42. Dr RWD Middleton, orthopaedic surgeon, gave oral evidence called by the Respondent, and provided a report (exhibit 1). He opined that the most likely cause of arthritis affecting solely the patellofemoral compartment of the knee is the demonstrated lateral mal-tracking of the patella seen in the X-rays of 7 April 1998. He considered that such mal-tracking is probably associated with the increased valgus of the right knee. He considered that the valgus of the knee was not due to ligamentous laxity of the knee, or to any pathology in the lateral or medial compartments of the knee, but that it was probably of congenital origin "as this knee posture is often seen in overweight people" (exhibit 1, p.3). He concluded that "in no circumstance can the knee valgus be related to the incident of injury occurring in 1989" (exhibit 1, p.3). He considered that that injury was of a minor nature in that she required only a week off work and the disorder was not considered serious enough by her doctor to warrant taking X-rays. He added that whilst trauma may be associated with the genesis of osteoarthritis, such trauma usually needs to be of a severe nature, producing considerable disruption and irregularity of the joint bearing surfaces, of which there is no evidence in this case.

43. In his oral evidence Dr Middleton said that the causes of patella femoral osteoarthritis can be divided into incidents of acute trauma which need to be fairly severe in order to damage the cartilage sufficiently, or body shape which is determined congenitally, or by various mal-alignments of the knee cap in the functioning of the knee, or ligament damage such as ruptures of the anterior cruciate ligament, or various biochemical causes - diseases such as rheumatoid arthritis. In the Applicant's case the most likely cause was mal-alignment which gives rise to poor patella tracking, and which is one of the most common causes of patella problems in young people.

44. In respect of the degree of valgus Dr Middleton said that he made his measurement by direct clinical observation of the Applicant standing, using surface markings on both the femur and the tibia. He noted that the X-rays arranged by Dr O'Keefe did not demonstrate any bony valgus. He conceded in cross-examination that his conclusion about the role of valgus was based on a differential valgus between the two legs. He said that there was an alternative explanation for the appearance, presumably meaning the clinical appearance which he noted, that being that the Applicant is -

...an extremely large lady and the distribution of subcutaneous fat often hides or alters the appearance of things but nevertheless the appearance of the knock-knee was there and there is no doubt about it. However that I think is quite a side issue because I don't think that that is the cause of the degenerative change in the knee joint. The degenerative change to the knee is quite clearly due to the mal-tracking of the patella which is not determined by the valgus position. However I must say that the increase in body weight and the apparent valgus condition have both been stated in the standard text books which aggravate the disorder we are dealing with. (transcript, 26 February, 1999, pp.4-5)

45. Dr Middleton said that the incident in 1989 was "very minor" according to Dr MacPherson's notes of March 1989. He based that assessment on the Applicant needing only one week off work and the fact that no X-ray was taken at the time. The site of discomfort was over the inner side of the Applicant's knee, both in March and May 1989 when she consulted Dr MacPherson. If she bumped the inner side of her knee then the kneecap was spared and, according to Dr Middleton, that is additional evidence of the mal-tracking being the prime causative factor. Dr Middleton also considered that the presence of crepitus in the Applicant's left knee as well as her right knee, may indicate that she has early osteoarthritis in the left knee also, and that she has a congenital propensity to develop arthritis. Moreover, her weight is an additional risk factor in the development of knee arthritis.

46. Dr Middleton disagreed that it was necessarily the case that the more severe the trauma the lesser time it would take for arthritis to occur following the trauma, but generally speaking he agreed with the principle. However he said that -

A tiny little bump to the knee which might not have been to the patella and probably wasn't, according to my information, is not productive of trauma necessarily. It's not productive of osteoarthritis,... (transcript, 26 February 1999, p.14)

He estimated that an injury from an incident such as he understood the Applicant to have suffered would take two or three weeks to resolve. However -

... this patient was developing osteoarthritis of the knee because of mal-tracking for years and years and years and years and years and years, and the incident of bumping is a very minor thing that has probably nothing at all to do with the development of the osteoarthritis which was occurring in any case because she had mal-tracking of the patella. If in fact she had some continuing discomfort after what she did to her knee at work ....., the explanation of that is the development of the osteoarthritis which was inevitable because of her mal-tracking patella. It's as simple as that. (transcript, 26 February 1999, p.15)

Specifically he thought the mal-tracking of the patella could have dated back to her teenage years. He said that it is not always associated with pain at that early age and stage. He considered that mal-tracking of the patella due to a constitutional arrangement in the knee could have occurred in one knee rather than in both. He also said that it can occur following acute dislocation of the knee where some of the patella ligaments are ruptured and never heal properly. He discounted an acute dislocation in the Applicant's case because of the initial history and the way the knee progressed in the early stage after the incident, and to the "very clear notations made by Dr MacPherson" (transcript, 26 February 1999, p.17).

47. Dr Middleton said that he thought work contributed "very little" to the Applicant's condition, which he then changed to "none". He relied on Dr MacPherson's clinical notes in coming to that conclusion. When told of the details of the Applicant's incapacity when she was off work for the week just after the incident he did not alter his opinion. Because Dr MacPherson noted that she had tenderness on the inner part of the knee and not the kneecap it was probable that the injuries she suffered were to the knee joint and not the kneecap. He opined that such an injury would have taken a few weeks to resolve. He also said that that type of injury is not a cause of osteoarthritis unless the joint surfaces are very badly disrupted.

48. In respect of the crepitus noted in the Applicant's left knee, he said that crepitus generally indicates cartilage roughening which is the earliest phase of an arthritic joint.

49. Dr Middleton disagreed strongly with Dr O'Keefe's hypothesis that the injury caused a partial subluxation of the patella. He also did not know how Dr O'Keefe could be confident that the condition of the Applicant's knee was caused by trauma because of the appearance of the knee at the time of his surgery. Dr Middleton noted that the Applicant also had lower back pain, and said that "bodily discomforts ... have an additive effect" (transcript, 26 February 1999, p.21).

submissions

* Applicant

50. It was submitted for the Applicant that the matter turns on two aspects - the accurate history of what happened to the Applicant from the time of the injury, and the direct conflict between the two medical experts on the question of causation and contribution.

51. The history in the earlier documents and that which was given to various doctors was less than has been provided to the Tribunal. The initial medical consultation, which did not have any follow up, has led to the medical opinion that no treatment was required because no treatment was provided. Dr MacPherson's notes have been relied upon by the Respondent to indicate a minor injury and one that is inconsistent with the Applicant's condition. Dr O'Keefe agreed that on their face the notes suggest a minor injury. However he saw significance in the fact that the two early consultations were two months apart, and he placed weight on the additional history obtained at the hearing and from his own observations of the Applicant. It was submitted that in the event of a conflict of medical opinion, the Tribunal should prefer the evidence of Dr O'Keefe, who, being the treating and operating doctor, has actually observed the structures operated on and thus was best placed to comment on aetiology. He expressed his views confidently and was not shaken in cross-examination.

52. Dr O'Keefe was also able to assist the Tribunal in the assessment of the Applicant's character as a stoical person, who was "not a whinger", that being in itself a reason for the lack of medical treatment over the years. In effect, that same image of the Applicant that was presented by her friends, was also repeated by Dr O'Keefe who has seen her both in the workplace and in a professional capacity.

53. Dr O'Keefe opined that in the absence of any other causative agent, the ongoing symptomatology following the knock to the knee led him to his opinion that the knock was the causative factor. He acknowledged that the Applicant's weight could be a contributory factor. However, it was submitted that in terms of the requirements of the legislation, it is of no import if there are other contributory factors in addition to work.

54. Dr O'Keefe hypothesised that the original injury was a partial subluxation of the patella such that there was sufficient internal stress on the knee to cause disruption and, over time, the development of osteoarthritis. Dr O'Keefe placed great importance on the fact that the osteoarthritis is only visible in one of the Applicant's knees. Dr Middleton acknowledged that crepitus was the only symptom suggestive of osteoarthritis in the left knee, and both he and Dr O'Keefe agreed that most people have some degree of crepitus. Dr O'Keefe opined that painless crepitus is not related to osteoarthritis, whereas painful crepitus tends to be. In the Applicant's case she has had painless crepitus in the left knee and no-one, other than Dr Middleton and Dr O'Keefe, seems to have been aware of it - not even the Applicant.

55. It was submitted that the history relied upon by Dr Middleton was lacking in detail, particularly in respect of the recurrence of pain since 1989. Indeed, Dr Middleton did not seem particularly interested in the intervening period since the injury, but focused instead on the terms of the injury as described to him. It is apparent from the qualifying letter that he was sent the brief injury reports and, on balance, he appears to have relied upon them, although he was unable to recall doing so. In any event, the injury reports were brief and were prepared by a lay witness to the incident.

56. In his initial conclusion Dr Middleton stated that the arthritis was related to mal-tracking which was probably associated with increased valgus of the right knee. He was unwilling to modify his view, even after new material was put to him in the course of his oral evidence. It was submitted that in the opinion expressed in his report he made a strong link with the differential valgus, which has been shown to be incorrect. Whilst Dr Middleton stated that trauma needs to be major to cause osteoarthritic change, he conceded that more severe trauma would have an osteoarthritic effect sooner than less severe trauma and that as a consequence a long time might elapse before the development of osteoarthritis after a less severe trauma. It was submitted that even on Dr Middleton's view, it was open to the Tribunal to find that the later development of osteoarthritis related to the trauma in 1989. Indeed it was more likely that that passage of time would have to have elapsed before onset.

57. It was noted that Dr Middleton relied on the assumption that the Applicant weighed 166 kg in 1989, whereas that weight was only achieved in 1992 immediately before the stomach banding procedure. Dr Middleton also hypothesised that the mal-tracking which he took to be the cause, had been present since teenage years. It was submitted that there was no evidence of this; the evidence before the Tribunal shows the Applicant to be symptom free until March 1989. She was then in severe pain and incapacitated, causing her to be absent from work. She suffered a continuing pattern of pain and discomfort, although with little time off work, through to the crescendo of symptoms around the end of 1996.

58. It was submitted that the Applicant was a credible witness. She presented as someone who is not overly demonstrative and perhaps is inclined to underplay her problems. Mr Graham described her as a workaholic. It was submitted that this aspect of her character explains why a disrupted work pattern, which might be expected in relation to such an incapacitating injury, is not present. From late 1996, at which time it is acknowledged that the severity of symptoms increased, until such time as the operation, when there is actual medical evidence indicating pain and discomfort, the Applicant took no time off work.

59. The Applicant said that she did not seek further medical assistance in 1989 because Dr MacPherson told her that nothing could be done and that she should let things take care of themselves. She seems to have adhered to this philosophy for a long time, putting up with the pain and not seeking further medical consultation until 1996 when it reached the point that she sought assistance again and required surgery almost immediately.

60. It was submitted that the Respondent continues to be liable for the Applicant's injury pursuant to s 14 of the Safety Rehabilitation and Compensation Act 1988 ("the Act") and that the Applicant is entitled to payment of compensation in respect of medical treatment pursuant to s 16 and loss of earnings during the period of treatment pursuant to s 19. It was submitted that in the event of a favourable decision the matter should be remitted to the Respondent for calculation.

* Respondent

61. It was submitted for the Respondent that this is not a frivolous claim, but a matter in which the Tribunal must assess on a common sense basis, what is the material contribution, if any, of work to the injury sustained by the Applicant. It was submitted that the Tribunal would derive assistance from the NSWCA case of EMI (Australia) Ltd. v Bes [1970] 2 NSWR 238 which the Tribunal has applied in another matter: Re Clarke and Telstra Corporation Ltd. (1997) 47 ALD 472. EMI (supra) establishes the proposition that an Applicant need not prove to scientific demonstration, an association between an incident at work and particular medical conditions: Herron CJ at 242. It was submitted that EMI (supra) is to be distinguished in the sense that there is strictly no onus of proof in the Tribunal, although it is in an Applicant's interest to bring forward evidence to support a particular outcome. While that evidence need not prove a scientific demonstration, it does need to constitute a demonstration of sufficient credence as to logically lead a decision maker to a common sense finding such that a decision maker is reasonably satisfied that there is a material contributor and that such a finding does not defy current scientific expertise.

62. It was submitted that the incident seems to be very minor and the role of minor trauma in the aetiology of osteoarthritis is very conjectural. Even a lay person would be surprised at an association between a bump on the knee, gross pain and the surgical treatment required in February 1997. However, when one analyses the lay evidence in detail, it is not uniform in presentation. One flatmate focussed on the symptomatology that was causing difficulty for the Applicant for 2 weeks. The Applicant's mother described the onset of symptomatology in her statement as occurring one year later. In oral evidence she then said 2 to 3 months or perhaps up to 18 months. It was submitted that this evidence was more consistent with someone gradually experiencing and reporting an onset of congenitally derived arthritis.

63. It was submitted for the Applicant in reply that the lay evidence was uniform in the sense that matters. The earlier witnesses focussed on the discrete period surrounding the injury while the later witnesses focussed on later difficulties. The important point is that all of the witnesses describe an ongoing incapacity of the same nature and the same type of response by the Applicant.

64. It was submitted for the Respondent that on Dr O'Keefe's evidence, if one was going to make predictions as to the type of individual who would develop osteoarthritis, the Applicant is just such a person because of her age and weight. Intuitive reasoning does not, in any way, compel what is a prima facie minor incident as associated materially with the current condition. Rather, intuitive reasoning leads one to the conclusion that this merely exemplifies a phenomenon well known to medical science, and that the work incident is mere coincidence.

65. It was submitted that an important aspect of the medical evidence is not what it says, but what it does not say. The material is noteworthy for the absence of the Applicant's complaint about the knee until her consultation with Dr Lewis in November 1996. It was submitted that when the Applicant's knee was really painful in 1989 and then again in 1996, she consulted a doctor. In the intervening period there were no complaints about knee pain. It was submitted that in terms of intuitive reasoning the absence of complaint suggests that the event in March 1989 was not of such severity as to allow medical science to associate that event with the osteoarthritic condition, but rather, that it was simply a bump on the front of the knee.

66. Dr MacPherson, general practitioner, is the only doctor who saw the Applicant's knee in 1989. His contemporary note records "tenderness on the inside, diffuse, and no bruising", which suggests trauma to the side of the knee, not the front (exhibit G). The Applicant is unable to remember which part of the knee she struck. In terms of the severity of the trauma, it seems that the incident occurred at 8.30 am. and the Applicant was able to work for the remainder of that day and for the next few days. It was submitted that this evidence is consistent with the picture of a minor incident. Moreover, someone whose weight is heavy will have difficulty with stairs if his/her knee is a bit sore. That is simply a matter of body mechanics.

67. It was submitted that literature about forensic evidence suggests that while a treating clinician has intimate clinical knowledge of a patient, s/he also has particular associations with a patient which a reporting doctor does not have. It was submitted that each has advantages and disadvantages. It does not follow that the treating clinician's evidence should be preferred when the question is in terms of the material contribution to a condition, as opposed to whether the person has a condition at all.

68. There is no dispute about the presence of crepitus in both knees, only about its role and significance. It was submitted that medical science does not say that the onset of crepitus has to be simultaneous in each knee, and factors such as gait may be relevant. It was not a condition of Dr Middleton's evidence that the Applicant weighed 166 kg. - he maintained his opinion when asked to assume that her weight was 120 kg.

69. It was submitted that there was evidence of mal-tracking which led to the need for surgery. Although by 1996 the Applicant was taking time off work and swapping shifts, before that time she had worked every day, even when she was required to walk between sites on a large base. It was submitted that the March 1989 incident was no more than a distraction.

consideration of evidence and findings of fact

70. The Tribunal notes some inconsistency in the evidence of the Applicant and the lay witnesses, but does not consider it to be of a nature which undermines the credibility of the Applicant. The Tribunal found the Applicant to be somewhat handicapped in giving expression and detail about her condition and the way in which it has affected her over the years. The evidence of the other lay witnesses, together, provided a context within which to consider the Applicant's evidence. There was a general consistency in the evidence sufficient for the Tribunal to find that the Applicant is credible, and that she attempts to get on with her life in the face of adversity. Obviously Dr O'Keefe is impressed with the Applicant as a stoical person with a strong work ethic. That assessment is consistent with the general thrust of the evidence before the Tribunal, and the Tribunal so finds.

71. The Tribunal finds that the Applicant continued to suffer from a significant but tolerable level of discomfort and pain in her right knee following the incident in March 1989, particularly at times when she stressed her knee by climbing up and down stairs and walking. The Tribunal also finds that the Applicant did not consult a doctor about her right knee condition after May 1989 because she understood from Dr MacPherson that nothing could be done about it, and because she was the sort of person who was able to get on with her life in spite of the level of discomfort which she continued to experience. The lack of treatment provided by Dr MacPherson should not be interpreted as her lack of need for treatment and investigation, particularly when by May she was still complaining to him of problems with her knee. By that time, even on the evidence of Dr Middleton, the effects of the injury should have resolved if it was indeed of a minor nature.

72. The Tribunal also finds that by the time the Applicant consulted Dr Lewis about her knee pain late in 1996, it was having a marked negative affect on her lifestyle to the point where she could not tolerate it any longer. By then she was in tears as a result of the pain. At least from 1992 when she moved to Red Hill (some three years after the incident), in part to avoid having to climb the stairs to her Ashgrove flat, there is evidence of ongoing pain and discomfort, increasing in severity over the years, and finally culminating in surgery in February 1997.

73. Despite some concessions which Dr O'Keefe made in cross-examination, his opinion that the Applicant's right knee pain arose as a result of the injury was a strong opinion and one which he continued to be able to justify. Dr O'Keefe's evidence was carefully reasoned, apparently objective and convincing. Additionally and importantly, he had the advantage of having viewed the state of the Applicant's knee by arthroscopy. The Tribunal notes Dr Middleton's opinion that it was not feasible for Dr O'Keefe to conclude from inspecting the Applicant's knee when he performed the arthroscopy that the appearances were consistent with her having sustained an injury to her right knee, but Dr O'Keefe's evidence is preferred on this issue.

74. Dr O'Keefe said that the patellofemoral joint is much more sensitive to injury than other major joints of the knee which then leads to degenerative arthritis in that area. In the light of all the evidence the Tribunal prefers Dr O'Keefe's testimony, notwithstanding Dr Middleton's rejection of it, that the Applicant was likely to have partially subluxated her patella involving a tear, and although the tear would improve the patella will always then mal-track laterally. It was common ground that the mal-tracking of the patella caused the problem which needed to be relieved by surgery in February 1997.

75. In respect of the existence of crepitus in the left knee, the Tribunal prefers the evidence of Dr O'Keefe to that of Dr Middleton that crepitus was "almost a normal finding" in young to middle aged persons, and is not necessarily associated with any pathology. Crepitus does not need to be painful, but crepitus associated with arthritis is usually painful.

76. While this matter fundamentally represents a conflict of medical opinion where the Tribunal inevitably must prefer the opinion of one doctor over the other, the weakest aspect of Dr Middleton's evidence was the extent to which he relied in his report on the differential valgus being the Applicant's main problem. The Tribunal accepts Dr O'Keefe's opinion based on radiological measurement, that the Applicant has five degrees of valgus bilaterally, and that this is within normal limits and would not have been significant in causing her pathology. When valgus is removed as an issue for the Tribunal, Dr Middleton's opinion is not sufficiently strong for the Tribunal to prefer it to that of Dr O'Keefe, more particularly when the Tribunal is satisfied as to Dr O'Keefe's objectivity.

77. Although Dr O'Keefe and Dr Middleton disagree as to the level of contribution which the Applicant's weight may have had to the osteoarthritic condition in her right knee, both agree that her weight would have contributed. However, the Tribunal finds that the major contribution was the trauma to the Applicant's knee when she knocked it on a chair at work in March 1989. The Tribunal does not accept Dr Middleton's opinion that it was her weight which caused the valgus which in turn caused her condition - that is, that her weight was the only contributor. The Tribunal also finds that the existence of a longstanding back problem, which has not interfered with the Applicant's capacity to work over the last ten years or more, is of no significance in this matter.

78. Rather than distinguishing the decision of EMI (supra) from this matter, the Tribunal finds that EMI (supra) is of assistance to the Applicant's case. In that matter Herron CJ said at 242 -

... if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.

Indeed in the matter now before the Tribunal Dr O'Keefe's evidence supports the Applicant's case on the balance of probabilities. The issue does not arise for the Tribunal having to consider medical evidence which is merely a possibility. Similarly the matter now before the Tribunal is more strongly and obviously in support of the Applicant than Re Clarke (supra) to which the Respondent also referred.

79. The Tribunal finds that the condition in the Applicant's right knee was contributed to in a material degree by the incident at work in March 1989, and the Respondent continues to be liable in respect of this injury pursuant to s 14 of the Act. The Respondent is liable to pay compensation to the Applicant in respect of medical treatment pursuant to s 16 of the Act, and loss of earnings during the period when she was incapacitated for work pursuant to s 19. The Tribunal will remit the matter to the Respondent to assess the compensation payable to the Applicant in accordance with these findings.

80. As the Tribunal's decision is in favour of the Applicant, and noting the submissions of the parties in respect of costs, pursuant to s 67 of the Act the Tribunal will order that the costs incurred by the Applicant in these proceedings be paid by the Respondent as set out in the Tribunal's General Practice Direction.

I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member.

Signed: ......Sgnd Rachel Harris......................

Associate

Date/s of Hearing 25, 26 February 1999

Date of Decision 21 June 1999

Counsel for the Applicant Mr M Vincent

Solicitor for Applicant Stacks

Counsel for the Respondent Mr J Logan

Solicitor for the Respondent Australian Government Solicitor