Booth and Telstra Corporation Limited [2000] AATA 88 (11 February 2000)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 88

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/350

GENERAL ADMINISTRATIVE DIVISION )

Re KENNETH JOHN BOOTH

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Senior Member M D Allen Dr M E C Thorpe, Member

Date 11 February 2000

Place Sydney

Decision 1. The decision under review is set aside and this matter remitted to the Respondent for such further action and decisions as are necessary consistent with these reasons for decision. 2. The Respondent is to pay the Applicant's costs.

(Sgd) M D ALLEN

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

Presiding Member

CATCHWORDS

WORKERS' COMPENSATION - Whether pre-existing degenerative osteoarthritis aggravated by work injury. Preference for views of treating surgeon.

Social Security Act 1988 - s14

REASONS FOR DECISION

11 February 2000 Senior Member M D Allen Dr M E C Thorpe, Member

1. This application for review concerns a "reviewable decision" made by a delegate of the Respondent on 19 October 1998 affirming a prior determination dated 3 September 1998 which read:

"Telstra Corporation Limited is not liable to pay compensation to the said Kenneth Booth in respect of 're-occurring right knee problem' allegedly sustained on or about 29 October 1997 on and from 3 September 1998."

2. The matter came on for hearing before this Tribunal on 31 January 2000. At that hearing the following documents were taken in as exhibits and marked as follows, namely:

T1 - T87 Documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975

A1 Applicant's Statement of Facts and Contentions

A2 Report of Dr Y Kai Lee dated 29 June 1999

A3 Report of Dr F G Machart dated 20 December 1999

A4 Report of Dr T Sachinwalla dated 7 October 1999

R1 Respondent's Statement of Facts and Contentions

R2 Report of Dr N L Thomson dated 22 June 1999

R3 Report of Dr H Wood dated 20 June 1996.

3. Both parties were content to rely upon the medical reports tendered and, the facts being within a relatively small compass, the Tribunal regards this approach to be commended as we are certain that no additional assistance would have been rendered to the Tribunal had medical practitioners been called.

4. The Applicant has been employed by the Respondent since 1972. At all material times he was employed as a linesman.

5. On or about 12 June 1996 the Applicant injured his right knee whilst in the course of his employment. He consulted his general practitioner and was prescribed a course of physiotherapy. After a period of absence from work because of this injury, he returned to work on normal duties but gave evidence to the Tribunal that from that date his right knee continued to have pain "off and on".

6. An x-ray report dated 20 June 1996 (Exhibit R3) reads:

"There are prominent spurs at the site of insertion of the quadriceps tendon into the patella and of the patellar tendon into the patella. The inferior is the largest spur.

There is a moderate sized suprapatellar effusion. Small osteophytes are seen on the margins of the articular surface of the patella. No other abnormality is seen."

This report indicates that at that date there was some pre-existing degenerative change in the Applicant's right knee.

7. On 29 October 1997 the Applicant again injured his right knee when he slipped after having alighted from a linesman's van in the course of his employment. His evidence was that he experienced pain "like a knife jabbed in your knee" and the knee swelled up and became hot.

8. Upon referral from his general practitioner, Dr Benjamin, the Applicant consulted orthopaedic surgeon Dr Machart. On 17 December 1997 the Applicant underwent an arthroscopic partial meniscectomy and debridement of the right knee at the hands of Dr Machart. The operation record (T18) reads:

"FINDINGS:

There was a tear of the posterior horn of the medial meniscus with degenerative changes of mild to moderate degree involving the medial compartment. ..."

9. Unfortunately, the Applicant's recovery from this operation was complicated by infection. This resulted in the Applicant being confined to bed for two weeks with his leg immobilised in a Zimmer knee splint and the prescription of antibiotics.

10. The Applicant's condition continued to be reviewed by Dr Machart. On 4 February 1998 (T27) Dr Machart reported inter alia:

"This gentleman came in for review on 3.2.98. His knee is now much better. As you know he had synovial fistula and this has now settled. He will take further Naprosyn because there is still a little bit of swelling in his knee. He describes discomfort in keeping with the degenerative nature of his knee condition. ..."

11. In a report dated 3 March 1998, Dr Machart stated that the Applicant was fit for light duties. The evidence of the Applicant was that no such duties were available and he remained absent from work until 24 July 1998.

12. A report by Dr Machart to the Applicant's general practitioner, dated 7 April 1998, is incorrect as he refers to the Applicant as having returned to work. In that report Dr Machart notes a complaint of more pain in the right knee, particularly around the patella.

13. In a report of the same day to the Respondent, Dr Machart refers to the Applicant as having degenerative changes in his right knee.

14. Document T58 is a report from Dr Machart which reads:

"This gentleman came in for review on 2.6.98. He has persistent symptoms in his knee. It has been aggravated when he fell on his knee and twisted it. He now has pain essentially over the patellar ligament and over the medial hamstring. This will be addressed by physiothapy (sic).

He remains fit for light duties which is sedentary work mostly ..."

The Applicant, who impressed us as a particularly poor historian, albeit attempting to give an accurate account, could not advance any further information regarding the incident of his having fallen and twisting his knee, referred to by Dr Machart, in the report outlined above.

15. On 20 July 1998, Dr Machart certified that the Applicant was fit to return to work with no restrictions. As stated above, the Applicant did in fact return to work on 24 July 1998 and, after a period of some three to four weeks carrying out office duties, was able to assume the duties of a linesman thereafter. The Applicant is still carrying out the duties of a linesman, however, is now able to avoid the more rigorous duties of his employment as he has been provided with a trainee who is able to carry out the more physical tasks.

16. Although still employed as a linesman by the Respondent, the Applicant states that he continues to suffer pain "all the time" but with exacerbations. Naprosyn has been prescribed for pain but the Applicant found that it caused him to have stomach ulcers, so he has ceased taking Naprosyn (although prescribed by his general practitioner) and when pain is bad he self medicates with alcohol.

17. On 1 August 1998, Dr Machart reported to the Applicant's general practitioner (T70):

"This gentleman's knee is now asymptomatic.

I have cleared him to return to normal duties without restriction.

..."

18. Dr Machart has not adhered to his opinion of 1 August 1998 that the Applicant is asymptomatic. The Applicant's evidence to the Tribunal was that pain continued at varying levels of severity ever since his arthroscopy. In a report to the Applicant's solicitors (Exhibit A3) Dr Machart states inter alia:

"PROGRESS:

Mr Booth was reviewed on 1^st October 1999. He reported that his right knee was considerably worse. He had poor anti-gravity extension and a considerable amount of pain. Pain was aggravated when flexing beyond 90 degrees. He reported that flexion beyond this range would give him severe pre-tibial pain, referred all the way to the ankle. Pain was reported to be mostly anterior and medial.

Because of his apparently worsening symptoms, I organized for MRI.

MRI was carried out on 7^th October 1999, together with plain x-rays. Degenerative changes were noted.

SUMMARY:

...

It is my opinion that degenerative changes were aggravated and caused to be symptomatic through his injuries."

19. That the Applicant's torn medial meniscus caused or contributed to his current problems was also the opinion of Dr Kai Lee, Orthopaedic Surgeon. In a report dated 29 June 1999 (Exhibit A2) he states:

"Radiological Examination: His X-ray taken on the 26th June, 1996 was normal. The one taken in November, 1997 was also normal. There was exostosis at the front of the patella which was seen in both films.

Impression: Mr. Booth has injured his right knee and I believe he suffered possibly torn medial meniscus. This has been dealt with by the arthroscopy but unfortunately it appeared that he had an infection which slowed down the progress.

4. ...

5. The prognosis is fair. He has since returned to suitable duties and I believe he should be able to remain so.

..."

20. At the request of his employer, the Applicant was examined by Dr Parkington, Orthopaedic Surgeon, on 27 July 1998. After noting a history of no knee pain prior to 1996 and that, on examination, there was slight wasting of the right quadriceps muscle with patello-femoral crepitus on the right but no patello-femoral irritability, Dr Parkington opined that the Applicant appeared to be suffering from mild age-related degenerative disease in his right knee. The incidents which occurred during his employment represented temporary aggravation of a pre-existing underlying degenerative condition and did not represent an injury as such. Unfortunately, Dr Parkington did not discuss what effect an arthroscopy and debridement might have on a pre-existing degenerative condition except to state, without explanation, that the incidents of his employment were a temporary aggravation.

21. Exhibit R2 is a report of Dr Thomson, Orthopaedic Surgeon, to the Respondent's solicitors. Dr Thomson stated under the heading of "Opinion":

"I have reviewed the supplied documentation and note that the findings at Arthroscopy was a tear of the posterior horn of the medial meniscus with degenerative changes of mild to moderate degree involving the medial compartment. He was treated by partial meniscectomy and debridement.

In answer to your specific questions:

1. Patient suffers from degenerative osteoarthritis of the right knee joint. He has suffered a meniscal tear at the time of the described injury.

2. I consider that there was an episode of injury at work on two occasions which probably led to tearing of the medial meniscus which has now been corrected by operative treatment. There was pre-existing osteoarthritis present in the knee joint prior to the injury.

3. The injury has led to tearing of the medial meniscus which has now been treated. I do not believe that the injury will have significantly altered the natural history of the pre-existing condition.

4. ....

5. I now consider that his present disability is related to the degenerative arthritis that was present at the time of injury.

6. ....

7. ...

8. I believe that the effects of the work injuries has now ceased."

22. There is no dispute between the experts, and this is confirmed by Exhibit R3, that the Applicant did have degenerative osteoarthritic changes in his right knee prior to arthroscopy. The point of contention is the effect of the tear to the Applicant's medial meniscus. Whereas Drs Thomson and Parkington do not accept that there was any effect upon the Applicant's degenerative right knee. Dr Machart, who was the Applicant's treating surgeon, does.

23. We are aware that in his report of 1 August 1998, Dr Machart opined that the Applicant's knee was asymptomatic. After further review of the Applicant, he changed this opinion. At the time of his later opinion, namely 20 December 1999, Dr Machart did have the benefit of an MRI examination of the Applicant's right knee, which procedure was carried out on 7 October 1999. The Respondent's doctors did not have this advantage.

24. As the Applicant's treating surgeon, Dr Machart has had recourse to x-rays of 20 June 1996. He also has the advantage of having performed surgery on the knee. Prior to June 1996 the Applicant had no pain in his right knee but since that time has continued to experience pain. Dr Machart now opines that the meniscal tear rendered an asymptomatic condition symptomatic as well as aggravating that condition.

25. Accepting as we do the Applicant's evidence that prior to 1996 he had no pain in his right knee, we prefer the opinion of the treating surgeon to those medical practitioners who have only see the Applicant for medico-legal purposes and who did not have the benefit of the mri scan. We therefore find that the Applicant's work injuries did aggravate, in the sense of accelerating or making worse than it otherwise would have been, the osteoarthritis in his right knee.

26. The decision under review will therefore be set aside and this matter remitted to the Respondent for such consequential decisions as are required consistent with these reasons. The Respondent is to pay the Applicant's costs.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen

Dr M E C Thorpe, Member

Signed: Ivanka Mamic .....................................................................................

Associate

Date of Hearing 31 January 2000

Date of Decision 11 February 2000

Counsel for the Applicant Mrs B Ross

Solicitor for Applicant Eugene Lepore & Associates

Counsel for the Respondent Mr B Kelly

Solicitor for the Respondent Sparke Helmore