Writer and Comcare [2003] AATA 1249 (11 December 2003)

Last Updated: 10 March 2004

DECISION AND REASONS FOR DECISION [2003] AATA 1249

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2002/493

GENERAL ADMINISTRATIVE DIVISION	)
	Re	NEVILLE WRITER

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Mr S. Webb, Member

Date 11 December 2003

Place Canberra

Decision

The decision under review is affirmed.

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

Mr S. Webb, Member

CATCHWORDS

COMPENSATION - permanent impairment - liability accepted for left knee injury and related lumbar spine condition - generalised osteoarthritis - right knee condition - causative role of compensable left knee injury and altered gait in the onset or aggravation of contralateral osteoarthritis - not employment related - decision affirmed.

Safety, Rehabilitation and Compensation Act 1988 sections 14, 16, 67

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33

REASONS FOR DECISION

11 December 2003

Mr S. Webb, Member

1. Neville Writer injured his left knee in employment by Totalcare Industries Limited ("Total care") and received payment of compensation in relation to that injury. Mr Writer is claiming payment of compensation in relation to a right knee condition he alleges was materially caused or aggravated by his left knee condition. Comcare determined to reject his claim on 18 October 2002 (T24, f50). Mr Writer requested a reconsideration of the determination, which was subsequently affirmed on 16 December 2002 (T28, f59). Dissatisfied with the determination Mr Writer applied for review by this Tribunal on 17 December 2002 (T2).

ISSUES

2. The issue for determination is whether Comcare is liable to pay Mr Writer compensation in relation to his claimed right knee condition. Did Mr Writer's compensable left knee injury materially contribute to cause or aggravate his claimed right knee condition?

LEGAL PRINCIPLES

3. Mr Writer's claim is under the Safety, Rehabilitation and Compensation Act 1988 ("the Act").

4. For Mr Writer's claim to succeed the Tribunal must be satisfied that his previous employment with Totalcare materially contributed to cause or aggravate his right knee condition. The causal connection must not be left open as a possibility but must be established on the balance of probabilities (Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at [323]). Under the Act Comcare is liable to pay compensation in respect of an injury if the injury results in death, incapacity for work or impairment (s.14). "Injury" is defined to include a disease or a physical injury arising out of or in the course of employment (s.4). "Disease" is defined to include an ailment or an aggravation of an ailment that was contributed to in a material degree by employment (s..4). Where an employee suffers an injury under the Act, Comcare is liable to pay appropriate compensation for medical treatment costs relating to that injury, regardless whether the injury results in death, incapacity or impairment (s.16).

EVIDENCE

5. Mr Writer gave oral evidence at the hearing in this matter. He was represented by Mr Hugh Selby, counsel, who called upon Dr R. Schellenberger, Surgeon, to give evidence. Mr R. Soulio, counsel, who called upon DR W. M. Wearne, Consultant Orthopaedic Surgeon, Dr R. Whittaker, Consultant Rheumatologist, and DR N. Thompson, Orthopaedic Surgeon to give evidence, represented Comcare. A list of exhibits that were taken into evidence is in Schedule 1.

FACTUAL CONTEXT

6. The following facts are drawn from the evidence.

7. Mr Writer (born 28 February 1947) injured his left knee on 16 November 1992 falling from a ladder while employed as a painter by Totalcare (T4, f6). He sought treatment on 17 November 1992 and lodged a claim for compensation on 15 December 1992 (T4, f7). Comcare accepted liability for the left knee injury.

8. Mr Writer underwent two left knee arthroscopic procedures in 1993 in consequence of his injury (T6, f10). In 1995 Depo-Medrol was administered by injection and he underwent a left knee arthroscopic chondroplasty on 24 November 1998 (T8, f12).

9. Mr Writer was promoted to foreman in or about 1994 and his employment with Totalcare ceased on 6 December 1999. Subsequently on 6 March 2000, Besselink Master Painters Pty Ltd employed him as a painter on a casual "hours worked" basis. He continues to work in that employment.

10. On 26 April 1996 Comcare accepted liability for a lower back condition as a result of changes in Mr Writer's gait caused by his left knee injury. On 11 September 1997 Comcare accepted liability to pay compensation for permanent impairment on the basis of a whole person impairment of 19 percent in relation to Mr Writer's left knee condition and the right-sided low back condition (T5).

11. On 13 August 2002 Mr Writer underwent an arthroscopic medial meniscectomy on his right knee (T22, f48) and a further arthroscopy of 10 February 2003. Comcare refused to accept liability for the right knee surgery as "we have never accepted liability for a work related right knee condition" (T24, f50).

SUMMARY FINDINGS

12. Mr Writer is morbidly obese and suffers from generalised osteoarthritis, a degenerative disease. Osteoarthritis affects his knee joints, his lumbar and cervical spines, his shoulders and his elbows. His condition has gradually deteriorated over time.

13. Mr Writer's left knee injury and any alteration to his gait that resulted from that injury did not materially contribute to cause or aggravate the osteoarthritis in his right knee.

14. I am satisfied on the balance of probabilities that the onset of Mr Writer's right knee symptoms is the result of the progression of his generalised osteoarthritis and is not related to the injury to his left knee in 1992.

DECISION

15. Mr Writer's employment with Totalcare did not materially contribute to cause or aggravate the osteoarthritis affecting his right knee. His right knee condition is not compensable.

16. The decision under review is affirmed.

REASONS FOR DECISION

17. Making this decision I carefully considered all of the evidence, the submissions of the parties, the relevant caselaw and legislation.

18. Mr Writer's credibility as a witness was not challenged. It is noted, however, that his memory is, in his own words, "like a sieve".. With this in mind, his uncorroborated evidence must be treated with caution.

19. Despite the repeated requests of the solicitor for Comcare (Ex R7), those acting for Mr Writer did not call Dr Bagatol or Dr Morris, his treating doctors, to give evidence at the hearing. Written medical reports from both doctors were in evidence. In consequence of this failing their written evidence could not be tested in cross-examination before the Tribunal. If reliance is to be placed upon the evidence of a witness by a party in proceedings before the Tribunal, the other party has the right to test that evidence and to cross-examine that witness. There is a value that attaches to the giving of oral evidence before the Tribunal by medical witnesses who have produced written reports of relevance. That is, the giving of oral evidence provides an opportunity to test whether the conclusions of the medical witness are founded on a full knowledge of the claimant's circumstances. There is also significant value in putting to an expert medical witness other medical opinions or propositions or facts for comment, which may not have been considered or given previously (see Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33).

20. I accept submissions put on behalf of Comcare that the evidence of Dr Bagatol and Dr Morris should not be given significant weight therefore. Their evidence has not been tested before the Tribunal. Their written reports must be assessed on their face without the advantage of explanation or supplementation in oral evidence. Factors such as the amount of detail, the thoroughness of examination and analysis, and the objectivity and scientific rigour of conclusions must emerge from the page alone for consideration. It follows that the weight given to a brief report lacking detailed analysis or explanation, albeit from a treating doctor, will not be given the same weight as a detailed report that deals with the issues comprehensively and with impartial rigour.

RIGHT KNEE CONDITION

21. The preponderance of the medical evidence compels me to conclude that Mr Writer suffers from osteoarthritis affecting his right knee (Ex R1, p6; Ex R3, p2; Ex A1, p5; Ex A2, p1). That much is not in dispute.

22. Osteoarthritis is a disease. There is no history of trauma to Mr Writer's right knee.

23. I accept Mr Writer's evidence that his right knee first became symptomatic in 2000. Indeed, in November 2000 Dr Whittaker reported "Mr Writer has reported some intermittent knee pain and his examination suggested there may be some early degeneration in his right patellofemoral joint" (T13, f30). It is curious that Dr Wearne makes no reference to any complaint by Mr Writer concerning his right knee on examination in April 2001, but noted that movement of that knee was accompanied by crepitus (T14,f36). Dr Morris conducted an arthroscopy on Mr Writer's right knee on 13 August 2002 and reported (T21, f47):

"...he had a contused tear of his medial meniscus on his right knee which we have trimmed back and also some medial compartment chondromalacia which we also smoothed. I think John's knee should improve now, but, clearly, getting the weight off will have a really beneficial effect."

CAUSE OF THE RIGHT KNEE CONDITION

24. I accept that osteoarthritis is multifactorial in origin. However, as will become apparent, I do not accept Dr Schellenberger's conclusion that "...over-reliance on the right leg to protect the injured left knee since the 1992 work-related injury...has been a significant contributing factor especially in recent years with substantial deterioration in the left knee" (Ex A1, p5). Nor do I accept Dr Morris' similar conclusion on 5 September 2002 (T22, f48).

25. On the evidence before me, I am compelled to conclude that Mr Writer did not suffer from an altered gait continuously following the injury to this left knee in 1992, or the surgical procedures that ensued in 1993, until the onset of his claimed right knee condition in November 2000. Dr Schellenberger's own evidence indicates that Mr Writer did not have a limp in 1996 and 2000 (T10, f17). Mr Writer gave evidence that during this period he was not working as a painter, as he was when he injured his left knee, but was performing the duties of a foreman in an organising role in which he could work at his own pace. Accepting this evidence, it is clear that Mr Writer was spending less time on his feet at work than prior to the accident and there was some improvement in his gait. On this basis, I am satisfied that the explanation for Dr Schellenberger's observation that he did not have a limp is that he was not, in fact, limping at that time.

26. I accept that Mr Writer had a "slight limp" in November 2000 (Dr Whittaker's evidence) which deteriorated into a "marked limp" in April 2001 (Dr Wearne's evidence). Dr Whittaker reported on 17 November 2000 (T13, f30):

"It would appear that his acute left knee pain gradually settled and he was left with intermittent pain which has progressed more recently and is suggestive of patellofemoral joint degeneration, with these [sic] findings being confirmed at arthroscopy. These ongoing symptoms reflect a progression of his underlying degenerative osteoarthritis and are not a reflection of the injury sustained in November 1992.

Mr Writer has reported some intermittent right knee pain and his examination suggested there may be some early degeneration in his right patellofemoral joint."

Dr Whittaker's conclusion is consistent with the evidence and I accept it.

27. Drs Thomson, Whittaker and Wearne gave evidence that generalised osteoarthritis progresses by nature, even though such progression may be accelerated by obesity and other factors.. Their evidence was that osteoarthritis may occur spontaneously in consequence of hereditary factors or in born weakness and seldom progresses to both knees concurrently. It appears from their evidence that a period of years may elapse between the onset of osteoarthritis in one knee and subsequently in the other. Dr Schellenberger, however, was of the view that osteoarthritis has either a traumatic or insidious onset and did not accept that the disease may follow a natural progression, pointing to the Clearwater Osteoarthritis Study (Ex R6). I am not persuaded by Dr Schellenberger's evidence.

28. I pause to note that the prospective Clearwater Osteoarthritis Study is concerned with the association between acute knee injury and the onset of osteoarthritis.. It does not shed light on the association between acute knee injury and the incidence of contralateral osteoarthritis as claimed by Mr Writer. Furthermore, the study excluded persons suffering from gout (Ex R6, p612), from which Mr Writer has suffered, and in the final analysis found that physical activity, among other factors, "demonstrated only a minute variation" and was dropped from the final predictive model (Ex R6, p614). It is clear, however, that obesity is a significant factor.

29. This being the case, I do not accept that Mr Writer's right knee condition was materially caused to become symptomatic by alterations to his gait following his left knee injury. The proposition put by Mr Writer that his left knee condition deteriorated following his employment as a painter in March 2000 may be true. The evidence of Dr Schellenberger indicates that at that time he did not have a limp but had a "waddle consistent with his obesity" (T10, f17). The evidence of Dr Whittaker and Dr Wearne suggests that such deterioration did not result in a limp until November 2000 and that limp became "marked" by April 2001. However, his claimed right knee condition was symptomatic prior to November 2000. On this evidence I do not accept that any deterioration in Mr Writer's right knee that may have been due to his work after March 2000 contributed to cause the onset of symptoms in his left knee.

30. The medical experts agree that Mr Writer was likely to suffer from osteoarthritis in his right knee at some point in time. The expert evidence concerning the progression of osteoarthritis in an obese person is that the hips and knees and possibly the ankles of the person would likely be affected. In Mr Writer's submission it was put that he did not suffer from any symptoms in his hips or ankles. I am not satisfied that contention is consistent with the facts. On 22 November 1999 Dr Morris noted that Mr Writer "had some right hip discomfort" in 1995 (T8, f12). Similarly, on 5 November 2003 Dr Whittaker reported:

"Mr Writer is now 56 years old and when I assessed him in November 2000 I noted features suggestive of generalised osteoarthritis, which was involving the cervical spine, the right elbow, lumbar spine, hips (left greater than right) and knees (left greater than right). This is a very common joint distribution in patients with generalised osteoarthritis."

31. Considering all of the evidence I am satisfied on the balance of probabilities that Mr Writer's right knee osteoarthritis was not caused by any alteration to his gait or other factor that can be attributed to his left knee injury in 1992.

IS THERE A CHAIN OF CAUSATION BETWEEN MR WRITER'S LEFT KNEE INJURY AND AGGRAVATION OF HIS RIGHT KNEE CONDITION?

32. I am satisfied on the balance of probabilities that Mr Writer's left knee injury did not materially contribute to aggravate the degenerative osteoarthritis in his right knee. In Mr Writer's submission he placed more emphasis on his dominant right leg because of the injury related problems in his left leg and the deterioration in his left leg caused an acceleration of the osteoarthritis in his right knee.

33. The practical logic of this submission is not supported by the facts in this case. Mr Writer is a person of considerable weight, described medically as morbidly obese. It is probable on the available evidence and scientific knowledge that his obesity has played some significant part in the onset and progression of his right knee osteoarthritis. The benefit of removing the force of weight from Mr Writer's osteoarthritic right knee joint was noted by Dr Morris following his conduct of an arthroscopy on that knee in August 2002 (T21, f47). Dr Thomson commented similarly (Ex R1, p6):

"I consider that his right knee condition is due to a constitutional condition of degenerative osteoarthritis, and has been contributed to by the natural progression of this disease, and the fact that he is grossly overweight for his height."

Dr Wearne concluded (Ex R3, p2):

"...it is my opinion that the main factors in the current impairment of his right knee are natural progression of the degenerative condition of the knee joint together with his obesity."

34. Dr Schellenberger agreed with Dr Whittaker that the adverse effect of a left knee injury on the other knee would commonly be apparent within two years of the injury. In Mr Writer's case that would be in or about 1994. In fact he did not experience any problems with his right knee until 2000 and subsequently required arthroscopic chondroplasty in 2002 and 2003. During the period 2000 until 2003 Mr Writer was working as a painter on a casual basis, painting while sitting on a crate whenever he could but otherwise standing to paint. When asked about his difficulty using a ladder, his evidence was that both his legs were of equal strength but he was not able to climb a ladder other than one step at a time. He did not paint from a ladder. This I accept. However, this evidence and the opinions of Dr Schellenberger (Ex A1), Dr Morris (T22) and Dr Berenson (T19) do not persuade me that there is anything but a possibility that Mr Writer's left knee injury had any part to play in the progression of his right knee osteoarthritis. Possibility alone is insufficient. I must be satisfied on the balance of probabilities.

35. The proposition that Mr Writer's left knee injury materially contributed to cause an aggravation of his right knee osteoarthritis is not made out. I am persuaded by the evidence of Dr Thomson, Dr Whittaker and Dr Wearne, in Dr Wearne's words, that "the connection is too tenuous to be credible" (Ex R3, p2).

CONCLUSION

36. Mr Writer's right knee osteoarthritis was neither materially caused nor aggravated by his employment with Totalcare. The decision under review must be affirmed. Mr Writer is not entitled to an award of costs against Comcare pursuant to section 67 of the Act.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:

Ms S. Rososinski, Associate

Date of Hearing 20-21 November 2003

Date of Decision 11 December 2003

Counsel for the Applicant Mr H. Selby

Solicitor for the Applicant Mr W. Redpath

Counsel for the Respondent Mr R. Soulio

Solicitor for the Respondent Ms M. Dubey

Schedule 1 - List of Exhibits

A1 Report of Dr R. Schellenberger, dated 7 March 2000

A2 Report of Dr D. Batagol, dated 1 June 2003

R1 Reports of Dr N. Thomson, dated 17 June and 1 November 2003

R2 Report of Dr N. Thomson, dated 10 November 2003

R3 Report of Dr M. Wearne, dated 22 October 2003

R4 Report of Dr R. Whittaker, dated 5 November 2003

R5 Letter from Dr D. Batagol, dated 1 October 2003

R6 "The Clearwater Osteoarthritis Study", history of acute knee injury and osteoarthritis of the knee: a prospective epidemiological assessment

R7 Bundle of correspondence

Schedule 2 - Relevant legislation

Safety, Rehabilitation and Compensation Act 1988

Section 4 Interpretation

In this Act, unless the contrary intention appears:

...

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;

...

injury means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;

...

Section 14 Compensation for injuries

(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.