Abarca and Telstra Corporation Limited [2003] AATA 468 (23 May 2003)

Last Updated: 26 May 2003

DECISION AND REASONS FOR DECISION [2003] AATA 468

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/487

GENERAL ADMINISTRATIVE DIVISION	)
	Re	JUAN LUIS ABARCA

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal

Senior Member M D Allen Dr J Campbell, Member

Date 23 May 2003

Place Sydney

Decision

The Decision under review is SET ASIDE. The Respondent is to pay the Applicant's costs.

(Sgd) M D Allen

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

Presiding Member

CATCHWORDS

WORKERS' COMPENSATION - decision of Respondent to cease liability - whether existing symptoms due to work injury or pre-employment injury - did work injury presently contribute to symptoms or would effects of work injury only be present at an indeterminate future time.

Safety, Rehabilitation and Compensation Act 1988 - s14

Australian Postal Corporation v Oudyn [2003] FCA 318

Re Devine and Commonwealth of Australia 5 ALN N28

REASONS FOR DECISION

Senior Member M D Allen Dr J Campbell, Member

1. By application made 17 April 2001 the Applicant sought review of a "reviewable decision" dated 27 February 2001 made in the following terms, namely that the Respondent was no longer liable to pay compensation in respect of the injury described as "lateral meniscal strain right knee" and that liability in respect of the said injury ceased on and from 13 June 2000.

2. There is no dispute that the Applicant injured his right knee in the course of his employment with the Respondent on 6 March 1997. After initially consulting his local general practitioner Dr Singh, the Applicant was referred to Orthopaedic Surgeon Dr Sorrenti.

3. On 30 May 1997 Dr Sorrenti performed an arthroscopy of the Applicant's right knee and found that the Applicant had sustained a parrot beak tear of the lateral meniscus and that the lateral tibial plateau had early grade 3 chondral damage. A partial lateral meniscectomy and lateral tibial chondroplasty was performed (see post operative report at document T13).

4. The subsequent history of the matter is set out in a report by Dr Sorrenti to the Respondent dated 15 February 2001 (see document T39). In that report Dr Sorrenti states inter alia:

"Post operatively he was reviewed on the 13 June 1997 and he was progressing well following the arthroscopy. On the 5 July 1997 he had done very well with his rehabilitation program and he was to return to normal activities. He was to be wary of doing activities which involved a great deal of bending, squatting or heavy lifting.

He was then reviewed on the 28 October 1997 and at that stage he had felt his knee had deteriorated and he felt that there had been an episode where his knee had swelled up quite significant (sic) and again he was advised to return to physiotherapy concentrating especially on the McConnell Program. Again when seen on the 2 December 1997 most of the symptoms were related mainly to the patellofemoral joint most likely due to muscle imbalance.

He was seen on the 2 May 2000 and again the problem was mainly patellofemoral made worse by the muscle imbalance and again he was advised to have some physiotherapy. He was last reviewed on the 13 June 2000, he had reported significant improvements as far as his right knee and the improvement had coincided with achievement of adequate muscle balance and he was to return to normal activities and was to be reviewed subsequently if there were any problems. At this stage I do not have any history of having seen your client since then.

In summary your client was seen by me followed (sic) a work related injury on 6 March 1997 for which he required an arthroscopy. He initially responded well but subsequently developed problems mainly related to muscle weakness and muscle imbalance and when last reviewed he had done very well with the physiotherapy and had returned to normal activity."

5. In his evidence to the Tribunal the Applicant stated that he still has problems with his right knee particularly after prolonged standing or when nursing his child.

6. Currently the Applicant is engaged in a program of exercises at a gymnasium. Initially, upon beginning the program, he experienced pain in his right knee but now the pain caused by the gymnasium program was bearable. He still gets pain after riding his bicycle.

7. The Applicant stated that he had injured his right knee whilst in year 7 or year 8 at school being in 1984 or 1985. As a result of this injury he spent a period on crutches but this injury had resolved.

8. Cross-examined, the Applicant stated that prior to his injury on 6 March 1997 he had experienced pain when alighting from a truck and had consulted his general practitioner.

9. Exhibit R10 is the clinical notes of the physiotherapy practice attended by the Applicant on reference by Dr Singh in March 1997. Those notes reveal the following history namely that in November 1996 the Applicant had a gradual onset of pain in his right knee on kneeling and that he had attended his general practitioner regarding that pain. The said history also confirmed the prior injury to his right knee whilst a school boy..

10. It is clear, therefore, that on this material the Applicant's knee was not asymptomatic until the injury on 6 March 1997, but that he had experienced symptoms both in January 1997 and November 1996.

11. As the Applicant was experiencing symptoms most notably pain and swelling in his right knee, he again consulted his treating orthopaedic surgeon Dr Sorrenti on 2 May 2000 and Dr Sorrenti's report has been detailed above. As was pointed out in that report the Applicant had "done very well with the physiotherapy and returned to normal activities".

12. Exhibit A2 is a report by Dr Sorrenti to the Applicant's solicitors. Unfortunately it would seem that Dr Sorrenti was never asked to examine the Applicant for the purposes of that report or asked specifically to comment on the relationship between the Applicant's work injury and his prior injury to the right knee when a school boy.

13. Doctor Sorrenti concluded his latest report by stating:

"In summary your client was seen by me followed (sic) a work-related injury on the 6 March 1997 for which he required an arthroscopy. He initially responded well but subsequently developed problems mainly related to muscle weakness and muscle imbalance and when last reviewed he had done very well with the physiotherapy and had returned to normal activity."

14. On 6 August 2002 in a report to the Respondent (exhibit R2) Dr Dalton orthopaedic surgeon states, inter alia:

"I opine that the effects of the injury which occurred in 1997 are likely to have been temporary other than with respect to symptoms directly referrable to the lateral compartment of his knees.

...

This man has mild patellofemoral pain affecting his right knee which does not affect his ability to work. He would benefit from an exercise program and possibly a short course of physiotherapy but other than that no further treatment is required. Given the presence of chondral changes in the lateral compartment and a previous partial meniscectomy there is an inherent risk of this man developing degenerative arthritis in the lateral compartment of his knee in later life. I must express some doubt as to whether or not these changes can be solely attributed to the injuries sustained at work as I consider it likely that there was pre-existing pathology which became symptomatic as a result of the nature and conditions of his employment."

15. In a later report dated 6 November 2002 (exhibit R3) Dr Dalton states, inter alia:

"Mr Abarca appears to suffer from early degenerative change in the right knee joint and findings at arthroscopy indicate that a proportion of this is due to a pre-existing and non-work related condition."

16. Dr Neal Thomson, orthopaedic surgeon, in his initial report to the Respondent advanced an opinion favourable to the Applicant. However after being given the history of prior injury he modified his opinion and stated, inter alia, in a report dated 23 September 2002 (exhibit R5):

"I do consider that Mr Abarca suffered an injury in or around 6 March 1997 arising out of his employment with Telstra, but I believe that the effects would now have ceased. I do consider that the effects had ceased by 13 June 2000.

...

It would be considered that the need for partial lateral meniscectomy would be a contributing factor to the need for some ongoing medical treatment for osteoarthritis of the knee to a minor degree.

I do consider that there is an effect of permanency in the contribution of having required a partial arthroscopic lateral meniscectomy. This may well contribute in a moderate degree to ongoing generative change in the lateral compartment of the knee joint."

17. By report dated 4 November 2002 (exhibit R6) Dr Thomson stated:

"It is likely that the injury, and the fact that a partial lateral meniscectomy had been performed, would have contributed to the degree of degenerative change in the lateral compartment of the right knee occurring between 6 March 1997 and 13 June 2000."

18. In evidence Dr Thomson resiled from the absoluteness of the above opinion. In cross-examination he stated that the work injury may in the long term (Tribunal's emphasis) contribute to any changes that occur to the Applicant's right knee but that the current symptoms were due to degenerative arthritis caused by the earlier injury. The effect of the work injury had disappeared.

19. In answer to questions by the Tribunal, Dr Thomson said that if there was pre-existing degenerative change in the Applicant's right knee then the injury and subsequent meniscectomy would contribute to that degenerative change becoming worse, however, he did not think that the work injury was contributing to the Applicant's current symptoms and signs.

20. Given the evidence before us, whilst we find the Applicant is a truthful witness the reports of Doctors Dalton and Thomson together with the evidence of Dr Thompson enable us to say that on the balance of probabilities the Applicant's current symptoms are not attributable to his work injury.

21. We are strengthened in this conclusion by the reports of Dr Sorrenti of 15 February 2001 (T39) and 20 July 2001 (exhibit A2). These reports reveal that after physiotherapy the Applicant had returned to "normal activities" and Dr Sorrenti does not discuss the effect of any prior injury.

22. We are also satisfied that work did not cause any exacerbation of a prior injury or cause an asymptomatic condition to become symptomatic, as the Applicant had complained of pain in his right knee prior to the 6 March 1997, the date of the work injury.

23. The evidence of Dr Thomson does however make it clear that the Applicant's work injury will contribute at a later time to any osteoarthritic condition that may arise in his right knee.

24. The Applicant has no current claims before the Respondent regarding payments pursuant to the Safety, Rehabilitation and Compensation Act 1988. The decision regarding which review was sought was a decision which stated that the Respondent was no longer liable to pay compensation in respect of the Applicant's work injury and which also purported to "cease liability".

25. As pointed out by Cooper J in Australian Postal Corporation v Oudyn [2003] FCA 318 at paragraph 35 to the extent that the Respondent attempted to exonerate itself from future liability and to foreclose any future claims by the Applicant it acted beyond power.

26. The opinion of the Respondent's specialists is that the Applicant's work injury will eventually contribute to the degree of degenerative arthritis which the Applicant suffers in his right knee but it is not doing so at present. As pointed out in re Devine and Commonwealth of Australia 5 ALN N28 (a Tribunal presided over by Davies J) any decision of the Tribunal as to events post its decision cannot bind the Respondent.

27. The decision under review in so far as it purports to deny liability in the future must be set aside in conformity with Oudyn's case super. Currently the Applicant has no claims before the Respondent for any specific payments, be it medical expenses, lost wages, or permanent impairment. These claims must be addressed by the Respondent as and when they arise.

28. The decision under review is SET ASIDE. There is no decision that the Tribunal can make in substitution for that decision.

29. The Applicant has been successful to the extent that the decision denying liability in the future has been set aside. The Respondent is to pay the Applicant's costs of this application for review.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr J Campbell, Member.

Signed: .......................................................................................

Associate

Dates of Hearing 28 and 29 April 2003

Date of Decision 23 May 2003

Counsel for the Applicant Mr G Foster

Solicitor for the Applicant J A Buda & Associates

Counsel for the Respondent Mr B Kelly

Solicitor for the Respondent Sparke Helmore