Stinton and Telstra Corporation Limited [2009] AATA 67 (4 February 2009)

Last Updated: 19 February 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 67

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W 200700020, 2007/4803, 2007/5543

GENERAL ADMINISTRATIVE DIVISION		)
	Re		KENNETH STINTON

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal

Deputy President S D Hotop Dr P A Staer, Member

Date 4 February 2009

Place Perth

Decision

The Tribunal decides as follows: Application No W 200700020 The Tribunal affirms the decision under review. Application No 2007/4803 The Tribunal sets aside the decision under review and, in substitution therefor, decides that, for the period from 21 August 2007 to the present date, and as at the present date, the respondent is liable to pay compensation to the applicant, in accordance with s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), in respect of the cost of orthotic inserts as reasonably obtained from time to time by the applicant in relation to his right foot injury. Application No 2007/5543 The Tribunal sets aside the decision under review and, in substitution therefor, decides that, for the period from 5 October 2007 to the present date, and as at the present date, the respondent is liable to pay compensation to the applicant, in accordance with s 16 of the SRC Act, in respect of the cost of physiotherapy treatment (if any) obtained by the applicant on a referral by a legally qualified medical practitioner for the treatment of temporary exacerbations of his right knee condition or right knee symptoms in relation to his right knee injury. .

Application may be made to the Tribunal in relation to the costs of the proceedings in Application No 2007/4803 and Application No 2007/5543 within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of the proceedings in Application No 2007/4803 and Application No 2007/5543 incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction

................[sgd S D Hotop]..............

Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employees – applicant suffered knee injury in course of employment by respondent – respondent accepted liability to pay compensation to applicant for right knee injury – applicant suffered right foot injury secondary to right knee injury – respondent accepted liability to pay compensation to applicant for right foot injury – applicant incapacitated for work as result of right knee injury – applicant able to earn normal weekly earnings in suitable employment – amount of compensation payable to applicant for incapacity for work is nil – decision under review affirmed – respondent liable to pay compensation to applicant for cost of orthotic inserts for right foot injury – decision under review set aside – respondent liable to pay compensation to applicant for cost of physiotherapy for temporary exacerbations of right knee condition – decision under review set aside

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(9), s 14(1), s 16 and s 19

REASONS FOR DECISION

4 February 2009

Deputy President S D Hotop Dr P A Staer, Member

INTRODUCTION

1. Kenneth Stinton (“the applicant”), who was born in October 1958, has at all material times been employed by Telstra Corporation Limited (“the respondent”).
2. On 6 December 2002 the applicant claimed compensation for an injury to his right knee said to have been suffered by him on 5 December 2002 in the course of his employment as a communications technician. On 10 January 2003 a determination was made that the respondent was liable pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) to pay compensation to the applicant for “right knee sprain”, and the applicant subsequently received payments of compensation for medical expenses and for incapacity for work, in accordance with (respectively) s 16 and s 19 of the SRC Act, in respect of that injury.
3. On 4 October 2006, however, a determination was made that the respondent was not presently liable to pay compensation to the applicant for incapacity for work in accordance with s 19 of the SRC Act. That determination was affirmed in a “reviewable decision” dated 23 November 2006.
4. The applicant has applied to the Tribunal for review of the reviewable decision of 23 November 2006 (Application No W 200700020).
5. On 5 October 2007 a determination was made that the respondent was not presently liable to pay compensation to the applicant for the cost of medical treatment, namely, physiotherapy, in accordance with s 16 of the SRC Act, in relation to his right knee injury. That determination was affirmed in a “reviewable decision” dated 25 October 2007.
6. The applicant has applied to the Tribunal for review of the reviewable decision of 25 October 2007 (Application No 2007/5543).
7. In the meantime the applicant had, on 30 May 2007, claimed compensation for right foot pain said to be “due to altered gait due to knee injury”.
8. On 21 August 2007 a determination was made that the respondent was liable to pay compensation to the applicant for medical expenses, in accordance with s 16 of the SRC Act, in relation to “secondary medial mid tarsal joint pain”, with effect from 30 November 2006, but that the respondent was not presently liable to pay compensation to the applicant for medical expenses or for incapacity for work in relation to that injury because the applicant did not presently require medical treatment for that injury and was not presently incapacitated for work as a result of that injury. That determination was affirmed in a “reviewable decision” dated 26 September 2007.
9. The applicant has applied to the Tribunal for review of the reviewable decision of 26 September 2007 (Application No 2007/4803).

THE LEGISLATION

10. The SRC Act (as in force at all material times) relevantly provided as follows:

“4 Interpretation
(1) In this Act, unless the contrary intention appears:
...
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

...

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;
...

medical treatment means:
(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
...
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
...
(f) the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
...
(h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
...

(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened

...

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.

...

16 Compensation in respect of medical expenses etc

(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
...

19 Compensation for injuries resulting in incapacity

(1) This section applies to an employee who is incapacitated for work as a result of an injury, ...
...”

Section 19 contains various provisions in accordance with which the relevant amount of compensation is determined having regard to, inter alia, the employee’s “normal weekly earnings” and “the amount per week (if any) that the employee is able to earn in suitable employment”.

THE EVIDENCE

11. The evidence before the Tribunal comprised:
    • the “T Documents” in respect of Application No W 200700020 (T1–T224, pp1–406), Application No 2007/4803 (T1–41, pp1–71) and Application No 2007/5543 (T1–T21, pp1–58) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
    • Exhibits A1–A7 tendered by the applicant;
    • Exhibits R1–R28 tendered by the respondent;
    • the oral evidence of the applicant and of the following witnesses:
      • - Dr Neil Ozanne and Kevin Murphy (who were called by the applicant);
      • - Dr Alan Home, Mr Philip Hardcastle, Mr Dibyendu Gope, Brian Walsh and Paul Hocking (who were called by the respondent).

The applicant’s evidence

12. The applicant’s evidence-in-chief may be summarised as follows:
    • from the time he sustained his right knee injury in December 2002 he has been unable to perform his pre-injury work duties by reason of ongoing right knee pain, and from 2006 he has instead been doing a “modified light duty job” which involves driving to telephone exchanges and doing “some very light maintenance” work at those exchanges;
    • his work hours up until the end of 2007 were “more or less full time” but from the beginning of 2008 he worked half days (from 8.00 am to 12.00 noon) until the end of June 2008 since when he has been working 5 hours per day (8.00 am to 1.00 pm);
    • he has undertaken a physiotherapy and gym program recommended by his general practitioner, Dr Ozanne, and he has found that if he does not undertake that program the condition of his knee deteriorates and he is not able to perform his “normal work”;
    • the physiotherapy treatment (which he had until the respondent’s insurer ceased paying for it in October 2007) consisted of ultrasound and manipulation which reduced his knee pain and inflammation and enabled him to “carry out work on a regular basis”;
    • the gym program consists of weights and strengthening exercises for his knee, and swimming;
    • he undertook the gym program until December 2007 when the respondent’s insurer ceased paying for his gym membership, and he found that thereafter he had “more stiffness in the leg and a lot more pain;
    • if he does not do the gym program he is “not able to work”;
    • he resumed the gym program in June 2008 when the respondent’s insurer renewed his membership, and he has been attending the gym 3–4 times per week.
13. In cross-examination the applicant elaborated on the nature of his current work duties. He said that since April 2006 he has been engaged in exchange maintenance work which involves driving to various telephone exchanges in the Perth metropolitan area and performing cleaning and tidying duties. He stressed that his current duties are “light duties” and he agreed that those duties are within his physical capacity.
14. As regards the gym program, the applicant said that over time he had let that program “slide” by ceasing the weights exercises and concentrating on the swimming because he found that swimming was giving him the most relief from pain. He said that for the last 2 years or thereabouts he has been going to the gym in the afternoon and swimming about 12 laps in a 50-metre pool as well as walking and doing other exercises in the pool.
15. The applicant acknowledged that, in the period December 2007 – May 2008 when his gym membership had not been renewed by the respondent’s insurer, he did not attend the gym and that he “just did home exercises”.

The evidence of the medical witnesses

Dr Alan Home

16. Dr Home, Occupational Physician, examined the applicant on 11 July 2006 and 2 April 2008 and subsequently prepared reports dated 11 July 2006 and 3 April 2008 in respect of those examinations.
17. Dr Home’s report of 11 July 2006 states:

“ ...
History From Examinee
Mr Stinton states that he sustained injury to his right knee on 5 December 2002 whilst working adjacent to a retaining wall during the fitting of an extra phone line to a property in Lesmurdie. He was climbing the wall on a third occasion when he stood on a rock at the edge of the face which dislodged, causing him to fall, striking the point of his right knee on the wall as he fell onto his back.
He experienced the immediate onset of right knee pain. He attended his general practitioner, Dr Ozanne.
He confirms subsequent medical and surgical management under the care of Mr Gig Pisano, orthopaedic surgeon, and Mr Desmond Williams, ...
Essentially, he underwent arthroscopic debridement of the patello-femoral joint and an intra-articular ganglion undertaken by Mr Pisano on 20 March 2003. He confirms subsequent arthroscopic surgery performed by Mr Desmond Williams, orthopaedic surgeon, on 9 February 2004, consisting of debridement of a medial suprapatellar plica and a lateral retinacular release.
Unfortunately, on both occasions the surgery did not result in any significant improvement in his pain symptoms.
He has undertaken extensive exercise. He continues to undertake hydrotherapy swimming for 40 minutes thrice to four times weekly at the Belmont Oasis pool. This maintains residual flexibility in the knee joint.
He does take Glucosamine one tablet daily, Celebrex anti-inflammatory medication almost every day, and Tramadol analgesia, 100 mg two to three days weekly. There is no planned further surgical measure in the short to medium term.
Prior to the accident he was a communications technician. He has successfully rehabilitated to work as an exchange co-ordinator within the Metropolitan Area, undertaking maintenance tasks within 110 telephone exchanges. His work includes upgrading records on the exchange blocks and collecting bags of scrap wire. He travels between exchanges using a Toyota Hi-Ace van.
He states that in total he is undertaking his normal hours of work, although he is certified to ‘knock off an hour early’ so that he can undertake his rehabilitation swimming exercise within work hours. He tells me that there has been a dispute with his employer, regarding the performance of physical rehabilitation within work hours. He has discussed this with his union’s solicitor. He has been advised that he is able to undertake the physical rehabilitation within working hours.
In discussion with him today, he concedes that he is physically able to work full time hours, however he wishes to continue to undertake his swimming regime within his normal working day.
Current Symptoms
He reports an ongoing intermittent ache in the right knee. This occurs for up to several hours per day. It is more prominent during cold weather.
He describes stiffness and soreness on cold mornings. It takes him an hour to fully mobilise his knee.
There is residual stiffness in the joint, even after full mobilisation.
He has no difficulty walking on the flat throughout the working day. He does experience some difficulty ascending and descending steps, and does so in a zigzag fashion, although with an alternating gait.
He is only able to crouch to a half squat.
His knee locks momentarily on occasion. There is no true locking. He describes prominent clicking beneath the right patella.
Abilities/Disabilities
He is left hand dominant. He denies disability in relation to sitting, driving, dressing himself, and sleeping through the night.
He is able to lift and carry light weight or moderate weight over short distances. He avoids carrying heavy weights or moderate weight over long distances.
He avoids domestic chores that require him to crouch, such as weeding in the garden, although he does continue lawn mowing and sweeping, occasional food preparation and dish washing.
He has managed to play an occasional game of golf utilising a golf buggy. He has not returned to playing squash or indoor cricket.
Past Medical History
There is a past history of a minor knee injury sustained as a child, from which he recovered fully without recourse to surgery.
Over the last twelve months he has received a diagnosis of diabetes mellitus, controlled by exercise and diet.
...
Examination
Mr Stinton is a 47 year-old with tall stature and obese build, weighing 102kg.
Examination of the right knee reveals moderate quadriceps wasting. There is no joint effusion. There is lateralisation of the tibial tubercles symmetrical with the left side.
There is tenderness elicited to palpation overlying the medial, lateral, posteromedial and posterolateral aspects of the tibiofemoral joints. There is further mild tenderness at the medial patello-femoral joint.
There is a restricted range of active movement at the knee, measured at 10-110˚. There is prominent patello-femoral crepitus, symmetrical with the finding on the non-injured left side. Clarke’s manoeuvre is negative. That is, there is no pain with compression of the patella against the femur during quadriceps contraction. Ligaments are stable.
The examinee walks with a pronounced antalgic limp, favouring his right knee. He is able to semi-squat.
Assessment
Mr Stinton presents with a history of ongoing mechanical right knee pain. Pain appears to be primarily intrinsic within the tibio-femoral joint or knee joint proper. There has been adequate orthopaedic treatment of additional patello-femoral chondromalacia or anterior knee pain.
There are clinical findings of residual prominent crepitus within the patello-femoral joint. I do note investigation findings of early degenerative change at the patello-femoral join (sic). There is also reported arthroscopic evidence of early degenerative change within the tibio-femoral joint medial and lateral compartments.
There is reduced active movement at the right knee.
There is objective evidence of disability with residual quadriceps wasting despite intensive exercise over several years. This reflects his antalgic gait due to right knee pain.
In answer to your specific questions:

1. Mr Stinton suffers from mechanical knee pain due to intrinsic tibio-femoral (knee) joint pathology, in addition to patello-femoral joint chondromalacia.
2. His knee was asymptomatic prior to the workplace injury with Telstra. It is unlikely that he would be currently experiencing any symptoms in that knee if it were not for the workplace injury.

On the balance of probabilities, his knee condition is entirely related to the fall sustained with Telstra in December 2002.

3. There is no significant pre-existing medical history relevant to the current claim. He does report a childhood injury to that knee, from which he made a full recovery.
4. I do not expect full resolution of Mr Stinton’s condition. It is my opinion that Mr Stinton has reached maximum medical recovery.
5. Mr Stinton is undertaking hydrotherapy exercise to maintain residual flexibility in his knee and quadriceps tone. The exercise will not otherwise improve his condition. He requires the ongoing symptomatic use of analgesic, anti-inflammatory medication and Glucosamine. These medications are reasonably related to the work-caused injury.

There is a likelihood that Mr Stinton will go on to require knee joint replacement in the long term, that is, after a further period of ten to fifteen years. It is normally recommended that knee joint replacement is performed after the age of 65, due to the lifespan of the prosthesis.

6. Mr Stinton should be restricted from work that requires him to undertake repetitive crouching, that is, squatting or kneeling, over that right knee. There is no requirement to restrict his hours of work.
7. Mr Stinton is fit to undertake full time hours of work as a maintenance risk assessor, as detailed in the Worksite Assessment Report of 24 November 2005 prepared by Konekt Workplace Health Solutions. Mr Stinton is fit for full time working hours.

He has explained that the only reason he has been certified fit for only seven hours of work per day is so that his exercise regime can be accommodated within his otherwise normal working hours of eight hours per day. This appears to me to be an industrial issue rather than a medical one. I would defer to legal opinion regarding the merits of that claim.

8. Mr Stinton is incapacitated for his pre-injury duties as a communications technician. He does have a capacity for full time work in his current role as a maintenance risk assessor, generating maintenance repair jobs for Telstra communication technicians at Telstra Herdsman. He has a capacity to perform his current work, which involves a maintenance role within telephone exchanges, as detailed in his history above.
9. Mr Stinton does not require further medical examination by other specialists, in my view.” (T168 – W 200700020)
18. Dr Home’s report of 3 April 2008 states:

“ ...
History from Examinee
Mr Stinton states that he has experienced pain in his right foot for several years. He reports an improvement in foot pain with use of orthotics.
He reports ongoing pain in his right knee.
...
Mr Stinton states that following my last examination he continued to attend hydrotherapy three to four days weekly for up to 90 minutes each session. He undertook walking laps of the pool and swimming. Once weekly he would perform some light weight lifting at the gymnasium to strengthen his upper and lower limbs.
He reports that funding for hydrotherapy was withdrawn, such that he ceased his attendance in December 2007.
He continues to take Endep, one tablet nocte. He reports the use of Tramadol, 200 mg twice daily, and Panadol Osteo one tablet twice daily. He self-funds Glucosamine and Fish Oil.
After completion of formal hydrotherapy he undertook hydrotherapy exercises in his own pool, consisting of walking laps each day and walking at night.
He believes that his symptoms were stable prior to discontinuation of his formal hydrotherapy. He states that his symptoms have deteriorated since December 2007.
He confirms that he attended Dr Ozanne on 17 January 2008. His work hours were reduced to four hours daily five days weekly. Prior to that he was working seven hours daily, taking one hour off as paid sick leave to attend the hydrotherapy exercises three to four days weekly.
He states that he was attending a physiotherapist at three-weekly intervals until funding ceased during late 2007 (he cannot recall the date).
Current Symptoms
Mr Stinton reports symptoms of mild stiffness in the joint. He reports right knee pain at average intensity 7 out of 10. He believes that this compares to previous pain level of approximately 4 out of 10 in the period leading up to December 2007.
To direct inquiry he denies symptoms of giving way, although his knee wobbles a little if he steps over an uneven surface.
He reports occasional symptoms of catching in the joint.
He describes occasional tingling at the lateral aspect of his right leg.
Abilities/Disabilities
He estimates a capacity to walk for approximately 1km. He usually stops walking after 15 minutes.
He avoids squatting. He is unable to kneel over his right knee.
He denies difficulty with sitting. He prefers to walk after sitting for 20 minutes to relieve knee stiffness.
...
Examination
Mr Stinton is a 49 year-old with mild valgus deformity of the right knee. There is no knee joint effusion.
The circumference of the right thigh measures 53 cm compared with 52.5 cm on the left. The circumference of the right calf is 37.8 cm compared with 38.6 cm at the left calf.
The range of right knee joint movement is minus 10˚to 110˚, with possible restriction of further flexion by pain. There is moderate crepitus at the right patello-femoral joint, symmetrical with the finding on the left side. Clarke’s manoeuvre is positive today (pain reported with compression of the patella against the femur during quadriceps contraction). There is normal AP and lateral ligamentous stability.
There is a full range of movement at the right foot and ankle.
Palpation of the right foot revealed tenderness overlying the 3rd, 4th and 5th tarso-metatarsal joints. There is no tenderness overlying the metatarsal heads. Lateral compression of the metatarsals did not reproduce pain. There is no tenderness overlying the right heel, the subtalar joint or the toes.
Assessment
Mr Stinton reports ongoing right knee pain. Pain has been present since December 2002.
Again, there is evidence that pain is intrinsic to the tibiofemoral joint. This is likely to reflect very early degenerative change within the tibiofemoral joint compartments. There is also a complaint of patello-femoral or anterior knee pain, reflecting a diagnosis of patello-femoral chondromalacia and early degenerative change at the patello-femoral joint.
Range of knee joint movement and quadriceps strength has been maintained despite cessation of pool swimming.
In answer to your specific questions:

1. The clinical findings of Mr Stinton’s knee condition and right foot condition are detailed above.

2. It is my opinion that Mr Stinton requires the following work restrictions –

• avoiding work that requires repetitive crouching,
• avoiding excessive vertical activities such as frequent stair climbing.

3. Mr Stinton is fit to undertake full time work within the appropriate restricted duties. I do not find clinical evidence of significant deterioration in this man’s quadriceps strength since last review in 2006. His range of knee movement has not deteriorated since last review despite cessation of funding for physiotherapy and pool exercise.
4. I agree that Mr Stinton should undertake regular water-based exercise or other suitable exercise as a maintenance measure. I agree with Dr Gope that this could be undertaken in a home pool or a heated swimming pool. Use of an exercise bike or regular short periods of walking will be suitable alternative measures. Straight leg raising exercise is also useful. It is unlikely that his unheated home pool would be a suitable environment for exercise outside of summer months.

Exercise will help to maintain the flexibility and strength in his quadriceps. There is no other perceived benefit.

5. Other forms of exercise that will allow him to maintain flexibility in his knee include home-based exercises, walking and use of an exercise (low resistance) bicycle.
6. Mr Stinton could reasonably undertake exercise in his home pool during the summer months.

...” (Exhibit R13)

19. Dr Home gave oral evidence in which he confirmed the opinions expressed in the abovementioned reports. It is unnecessary to refer to that evidence in detail in these reasons.

Mr Philip Hardcastle

20. Mr Hardcastle, Orthopaedic Surgeon, examined the applicant on 6 August 2007 and he prepared a report dated 13 August 2007 in relation to that examination.
21. Mr Hardcastle’s report of 13 August 2007 states:

“ ...
DETAILS OF INCIDENT
Mr Stinton reports that at about 4.30 pm on 5 December 2002, he was doing an installation to put a second line in a house. He had finished the inside duties and was connecting the lead outside to the network. There was a pit with a two metre retaining wall and he had got out of the pit, which he had done on several occasions, and stood on the top. Inadvertently there was a rock under the grass, and this caused him to fall sideways and down the retaining wall, landing on his back, hitting his knee on the way down. He thinks he twisted it as well. He crawled back up to the top and rang his boss and was subsequently taken to see the doctor who arranged for x-rays.
PROGRESS
Mr Stinton was off work for about six weeks with continuing symptoms and had physiotherapy.
He then underwent surgery on the knee with an arthroscopy and was off work for about ten weeks after this.
He then returned to office duties and continued with his hydrotherapy. After several months of this type of work he was graduated back to doing some work outside in vehicles. However the symptoms persisted in the right knee, and he subsequently underwent a second operation in March 2004, which was an arthroscopy and included a lateral release.
Unfortunately, there was no improvement once again with this procedure, and he then undertook a rehabilitation program which he has continued since doing regular swimming and attending a gymnasium. He is doing this presently on a four times a week basis.
He recalls on Thursday 3 December 2006 after physiotherapy, his knee felt stiff so he went for a long walk to overcome this stiffness. After this he noticed some foot pain. It was giving him a few twinges the next day. He then went on holidays and over the next four or five days the symptoms in the foot increased. He went to see Dr Neil Ozanne.
X-rays were taken and he was then referred to a Podiatrist who provided him with inserts. He has been wearing the inserts since and they have provided good relief of the foot pain though he still gets symptoms if he does not wear them.
Overall his symptoms have remained static in relation to his knee.
PRESENT TREATMENT
Apart from the rehabilitation program mentioned above, he is taking Celebrex, 2 tablets per day, a slow release Tramal per day and Glucosamine.
STATUS AT PRESENT
Mr Stinton complains of right knee pain which is not constant. He reports it as being worse in the cold weather. It does not swell but does occasionally give-way on flat ground however this has not resulted in a fall. It can lock at times at approximately 90 degrees of flexion. His symptoms tend to be worse at the end of the day and his symptoms are aggravated by kneeling, going down stairs and particularly walking and standing.
His right foot has swollen at times and the pain is over the medial arch and over the dorsal aspect. Pain is intermittent.
There are no complaints of tingling or numbness in the lower limb.
CURRENT ACTIVITIES
Mr Stinton drives a Hi-Ace van quite a lot at work. He does not do any overtime.
His work is mainly at ground level but occasionally he has to go on a ladder.
Mr Stinton undertakes a reasonable amount of housework but stated he cannot squat and in the garden he can mow the law but is restricted with weeding because of his squatting restriction. He helps with the shopping.
He has no specific hobbies but he does go to the park with the children on occasions.
His wife works part time.
CLINICAL ASSESSMENT
Mr Stinton was a well looking man with short brown hair and glasses. He was noted to have a slight limp.
He is 180 cm in height and weighs 108 kg.
Lower Limbs
These had relatively normal alignment and he walked with a right sided limp.
There was no specific foot deformity apart from in the standing position there was very slight planus.
On examination hip rotation to the right was slightly reduced to the left.
Other movements of the hip including extension, flexion and abduction were equal on both sides.
Right knee examination showed some scars from previous surgery but no effusion. He was tender over the medial aspect of the joint itself and the patella. Movement was from 0–90 degrees with patellofemoral crepitus and the knee was stable to examination. Apley’s distraction and compression tests were mildly positive.
Examination of the left knee demonstrated some mild crepitus.
Foot examination demonstrated tenderness over the insertion of the tib ant tendon on the medial side of the foot and over the adjacent mid tarsal region. There was also a little tenderness posterior to this well below the medial melleolus. There was no ankle tenderness.
He demonstrated a full range of ankle and subtalar movement and the ankle was stable.
...
OPINION
The diagnosis is of degenerative osteoarthritis of the patellofemoral joint. There are some clinical features to suggest he may be developing problems on the left as well but these would not be related to the fall.
The development of right foot symptoms is related injury in respect to the limping and the nature of his gait. He has had appropriate treatment for this with inserts which are controlling the situation. On plain x-rays and bone scan there is no evidence of any structural lesion or degeneration to account for these symptoms and so I would expect these symptoms to resolve when his gait improves. I would not recommend any specific treatment for his foot symptoms apart from continuing to use the inserts.
He has not reached the stage where knee replacement should be considered. It would be advantageous at some stage to get some updated radiology but I would recommend that he remains on his light duties for the present.
Condition(s) suffered by the employee
1. What specific condition, if any, is now suffered by Mr Stinton?
He suffers from osteoarthritis of the right patellofemoral joint and medial mid tarsal joint pain.

2. What is the precise relationship, if any, between any such condition and his employment by Telstra? (Your opinion on this should be given on the balance of probabilities, as distinct from possibilities.)

Based on the history provided, the degenerative osteoarthritis of the right knee would have been aggravated by the fall and therefore rendering it symptomatic. He subsequently developed secondary foot pain as a result of limping over a long period of time.
...
Medical Treatment

9. What medical or other treatment is indicated for Mr Stinton’s knee injury?

I would not recommend any further treatment for his knee injury at this stage.

10. What medical or other treatment is indicated for Mr Stinton’s complain (sic) of foot injury/pain?

He does not require any specific treatment for his foot injury apart from the inserts he is currently using. He may benefit in the winter months by the use of an elastic-type knee support.

11. Please advise whether the treatment currently being received is reasonably required in relation to a work-related injury or condition. You should also distinguish between such treatment and any treatment that is required in relation to conditions not related to Mr Stinton’s employment.

Present treatment is reasonable.

12. In your opinion, is ongoing long-term medical treatment reasonable and appropriate treatment for Mr Stinton’s condition? Please elaborate.

Ongoing medical treatment is reasonable and appropriate for his condition. I would not recommend further surgery to the knee at this stage but it remains a potential option in the future.
Employment capacity

13. Is Mr Stinton currently capable of doing full-time work in his previous normal (pre-injury) duties as a communication technician?

Mr Stinton would be considered unfit for this type of work because of his inability to safely negotiate ladders.

14. If not fit for full-time pre-injury duties, is Mr Stinton currently capable of doing full-time work in alternative duties in Telstra? If so, what type of work is he suited to do?

Mr Stinton is fit for full time alternative duties which he is presently doing.

15. What work restrictions, if any, do you consider apply to Mr Stinton at present? Please specify those restrictions related to any work-caused injury.

The work restrictions would be to avoid negotiating stairs or ladders on a regular basis and he should avoid kneeling, squatting and long periods of walking. These would be considered related to the work injury.
...

18. What schedule of working hours and days in each week do you consider reasonable for Mr Stinton?

He would be considered suitable for full time hours.
...” (T28 – 2007/4803)

22. On 22 August 2007 the respondent’s insurer wrote to Mr Hardcastle in response to his report of 13 August 2007 informing him that the applicant’s general practitioner, Dr Ozanne, had requested that the applicant’s gym membership be renewed so that he could “continue a swimming and gym program”, and requesting his response to the following questions:

“ ● Is the request for a swimming & gym membership reasonable for his injury?
● If reasonable, in your medical opinion how long should the gym & swimming program be undertaken?
● Do you have any recommendations as to the number of times Mr Stinton should undertake gym or swimming per week?” (T8, p 32 – 2007/5543)

By letter dated 28 August 2007 Mr Hardcastle responded as follows:

“ I certainly would not be against Mr Stinton undertaking a swimming and gymnasium membership, if he wished. This would be over a three month period and I would recommend three times a week combining the gymnasium with the swimming.” (T9 – 2007/5543)

23. In his oral evidence Mr Hardcastle said that appropriate treatment for the applicant’s knee condition included “very basic, simple, straightforward exercise just to keep the knee muscles ... in tone and strong”. He referred to “McConnell exercises” in which the person places an appropriate weight on the foot and exercises the knee joint by moving it “between the straight and the slightly bent position”. He said that such an exercise should be performed for 5–10 minutes, at least 3 times per week. He added that medication should also be taken on an “as necessary basis”, and activities which involve “impact loading of the patello-femoral joint”, such as running on hard ground, squatting, and frequently climbing ladders and stairs, should be avoided.
24. As regards his abovementioned letter of 28 August 2007, Mr Hardcastle said that he was “happy to support” Dr Ozanne’s request for a further 3–month gym membership for the applicant. Asked what his opinion would be if the applicant’s knee condition had not “alleviated or ameliorated” after 3 months, Mr Hardcastle said:

“ I would say that it’s not worthwhile continuing ... But I would be continuing with those exercises I mentioned.”

Mr Hardcastle said that, if the applicant did not perform the “simple” exercises that he had mentioned, his knee was likely to become a bit weaker and more painful. As regards swimming, Mr Hardcastle said that it is not an exercise specifically for the knee and that it is “more a body exercise”.

25. Mr Hardcastle was asked to express his opinion regarding the utility of ongoing physiotherapy after the acute stage of a musculo-skeletal injury has concluded. He responded:

“ I believe that it should only be used for specific indications. In terms of overseeing and just the patient coming back occasionally and just having a check and given some advice on further exercises or increasing their program, I don’t have a problem with that; occasional exacerbation, maybe a short course of local therapy further down the line, I don’t have a problem with that. It depends on the individual circumstances. But in terms of once treatment has been completed then – and the self-managed program is undertaken – then physiotherapy has to have either an overseeing role with occasional reviews and a treatment only with specific indications.”

He confirmed that he would advocate that a referral for such physiotherapy treatment should be made by a general practitioner “at least”.

26. As regards his opinion (as expressed in his report of 13 August 2007) that the applicant is “fit for full-time alternative duties which he is presently doing”, Mr Hardcastle said that he was referring to the applicant’s current light duties as an exchange maintenance officer.

Mr Dibyendu Gope

27. Mr Gope, Consultant Orthopaedic Surgeon, examined the applicant on 18 November 2003 and 11 March 2008 and subsequently prepared reports in relation to those examinations.
28. In his most recent report, dated 1 April 2008, Mr Gope stated:

“ ...
Continuing Employment/Work Duties:
Mr Stinton said that since my last assessment he did a return to work and rehabilitation program culminating in resumption of full-time but restricted duties (avoiding heavy lifting, using ladders and stairs etc). Initially he was employed to detect pay-phone faults for four weeks. This job required considerable periods standing and hence his job was changed to running telephone jumpers in the exchange for the next 12 months. He apparently worked eight hours a day, of which one hour was spent in his rehabilitation program (supervised by Konekt). The rehabilitation program was closed in 2004 due to vocational objectives having been achieved when he was able to resume full-time hours in the duties of a pay-phone communications technician (73.30 hours per fortnight).
During this period it was recommended he undertake intensive conservative rehabilitation with swimming two or three times per week. A structured exercise program directed at strengthening his right knee was commenced in April 2005 and finished in July 2005 under the supervision of exercise physiologist, Ms Susan Casey. At that time it was felt Mr Stinton was capable of undertaking a self-directed exercise program from then on.
Mr Stinton’s employment in the exchange with running jumper cabling had to be changed because that job was no longer available and he was then employed in a special project involving exchange fault reduction where he was required to visit different exchanges, managing alteration of jumpers working seven hours a day, with one hour undertaking the rehabilitation program until 4 February 2008.
Apparently at that time Mr Stinton was complaining of an increase in knee symptoms. He was again certified for part-time duties by Dr Ozanne, General Practitioner. Mr Stinton believes that the aggravation occurred because he had stopped the rehabilitation program with the exercise and pool work. Apparently the funding was ceased. At present he continues to work part-time in a project. He added that he has been referred back to Konekt for assessment regarding his future rehabilitation.
Continuing Symptoms/Disabilities:
Mr Stinton stated that he suffers from stiffness and aching in the right knee particularly after working past midday. His knee also aches at night and his sleep pattern is broken once or twice.
Sometimes his knee feels stiff and ‘locks up’ which he is able to manually unlock. His knee starts to ache after standing for 20 minutes and stretching the knee helps. His knee does not swell up that often. His knee does not give way. He is not able to squat on his right knee but he is able to (by extending his right knee) squat on the left.
With regard to his right foot, he said it aches over the dorsum of the foot along the lateral aspect of the tarsometatarsal region. The onset was apparently two years ago, the day before he commenced his holidays. He was treated by Dr Ozanne on that occasion and lodged a claim with Telstra.
He was seen by a podiatrist for his right foot. An orthopaedic insole was provided which has been helpful. Apparently his foot pain has worsened since stopping the physiotherapy. His right foot does not hurt while at rest only hurting now when he walks without using the insole.
Mr Stinton is able to drive a car for approximately 30 minutes at a time.
He avoids the gardening and ironing.
He has not returned to playing golf since the knee injury.
Continuing Treatment:
Mr Stinton visits his general practitioner, Dr Ozanne once a month.
Lately he has not been having any physiotherapy or hydrotherapy. He performs some exercises at home and uses his pool (8 m x 4 m) in order to have some exercise during the summer for about 40 minutes.
He consults Mr Williams, Orthopaedic Surgeon, every six months or so, the last visit being December 2007.
He is taking Tramal 200 mg twice a day, two OsteoEze a day, one Endep at night, one Celebrex a day, and 2000 mg of glucosamine a day.
Mr Stinton mentioned that his use of medication has increased in the last four months since he has stopped undertaking the rehabilitation exercise program.
He has been diagnosed with type ll diabetes and now takes two Diabex at night.”

He then set out his findings on physical examination, summarised the results of radiological investigations, and continued:

“ SUMMARY AND ASSESSMENT:
This 49 year old Telecom technician has been suffering from ongoing symptoms from his right knee injury sustained in 2002. Mr Stinton now shows signs of established chronic osteoarthritis of the right knee which will require ongoing management with a self-directed exercise and rehabilitation program along with anti-inflammatory medication under the supervision of his general practitioner.
It is quite likely the right foot condition could be secondary to the degenerative change at the lateral tarsometatarsal joint due to his abnormal gait pattern. This has been addressed with the use of an innersole and will also require mobilisation and exercises. Apart from that, weight reduction would be advisable.
In response to the specific questions listed in your correspondence of 5 March 2008:
...

2. Your opinion as to what work restrictions are required in order to accommodate Mr Stinton’s knee and foot conditions. In this regard, do you agree with Dr Hardcastle’s view that appropriate restrictions are to avoid stairs or ladders on a regular basis and to avoid kneeling, squatting and long periods of walking? If not, please advise of the specific restrictions you would recommend.

It is my opinion that from time to time work restrictions may be required to address aggravation of his arthritic condition (which is the expected natural history of degenerative disease). It is my opinion that the restriction does not need to be on a permanent basis and would be dependent on the work tolerance. Of all the restrictions the most notable impairments are those of difficulty in squatting, kneeling and climbing up and down stairs. These activities increase the compressive force exerted to the patellofemoral joint.

3. Assuming that these work restrictions are complied with, do you agree with the views expressed by Dr Home and Mr Hardcastle that Mr Stinton is fit to undertake full time work undertaking appropriate restricted duties?

I agree with Dr Home and Mr Hardcastle’s opinions that Mr Stinton is fit for full-time employment undertaking appropriate restricted duties. He would benefit by alternating between standing and sitting as required as well as avoiding kneeling and squatting activities etc.

4. Do you agree with Dr Williams that Mr Stinton needs to undertake swimming on a regular basis? If so, is this for the benefit of his health generally (including the maintenance of a desirable weight and control of his diabetes), or to maintain flexibility in his knee, or both?

It would be beneficial for Mr Stinton to continue with a regular rehabilitation program which includes swimming on a regular basis. This could be self-directed and unsupervised since he has gained experience doing such previously. As mentioned, weight reduction is a very important factor in controlling his knee symptoms.

5. Are there alternative forms of exercise open to Mr Stinton (ie other than swimming in a public pool), that would assist him maintain flexibility in his knee (such as cycling or exercises at home)?

Undertaking ground exercises and hydrotherapy has a synergistic effect when done alternately during the week. Mobilising exercises and avoidance of too much loading on the right knee would be ideal exercises – this would include using an exercise bike and undertaking other ground exercises.

6. Mr Stinton has a pool at his home. Are there exercises that he could reasonably undertake in his pool at home that would assist him maintain flexibility in his knee?

Mr Stinton can undertake exercises in his pool at home involving walking in water and other exercises that can be done in the water. His pool at home measures 8 m x 4 m and may not suitable (sic) for swimming however, even without swimming the other exercises in water could be quite valuable. Exercise in outdoor pool can only be done in the summer months.

7. Do you consider that Mr Stinton currently requires any treatment for his foot pain other than the use of orthotic inserts? If so, can you please advise the treatment you consider appropriate.

I would recommend Mr Stinton avoids exerting abnormal force on his right leg and might have to use a walking stick to take the stress out of the right foot from time to time. The orthotic insert is of considerable value for him. Mr Stinton takes anti-inflammatory medication for his knee condition which will also help his right foot symptoms. I do not consider that ongoing physiotherapy is required for his right foot.

8. What current treatment do you consider reasonable for Mr Stinton’s knee condition? Do you consider that ongoing passive physiotherapy is required? If so, for what periods of time?

Reasonable treatment for his right knee condition would be to maintain an active exercise program preferably in a gymnasium but this could be undertaken at home using some of the equipment. Hydrotherapy would be of help as an ongoing process. It is my opinion that ongoing passive mobilisation treatment is of limited value. His exercise requirements should be reassessed every six months or so.

9. Regarding passive physiotherapy, it is our understanding (gained from a general policy statement on the management of injuries to the musculo-skeletal system issued by the Australian Orthopaedic Association, WA Branch), that generally this is most effective shortly after an injury is sustained and that all passive treatments have a limited application and achieve their maximal effects relatively quickly (usually within a period of weeks following injury). Is our understanding correct? If not, please advise the aspects of it that are incorrect.

I agree with the general policy statement of the Australian Orthopaedic Association, WA Branch regarding passive physiotherapy.

10. It is also our understanding that active physiotherapy treatment, in the nature of ongoing exercise, has greater long term benefit than passive treatment. Is our understanding in this regard correct?

It is my opinion that an active ongoing exercise program has a greater long-term benefit than passive treatment unless it is for a very short period of time.

11. If you consider that it continues to be of benefit for Mr Stinton to undertake exercise in a pool, or to swim in a pool for his knee, how often would you recommend that these exercises or swimming be undertaken (ie how many times a week) and for what period of time or distance.

It is my opinion that Mr Stinton will benefit from undertaking exercises in the pool either at home or in the gymnasium. Obviously it is more convenient to swim in a longer swimming pool but there are other aquarobic exercises he could conduct in his home pool that would be of assistance. The period taken for hydrotherapy will depend on Mr Stinton’s tolerance; however, it is recommended that one should have hydrotherapy not exceeding 45 minutes per session.
...” (Exhibit R19)

29. The Policy Statement on the Management of Injuries to the Musculo-skeletal System issued by the Australian Orthopaedic Association (WA Branch), referred to in question 9 in Mr Gope’s abovementioned report, states, as regards the use of physiotherapy as a treatment for musculo-skeletal injuries, as follows:

“ PHYSIOTHERAPY
Physiotherapists have a number of treatments available. In addition they are a good source of information on musculo-skeletal injuries. They are often used by doctors to supervise the rehabilitation of injured patients. The treatments that they prescribe can be classified in various categories.
Passive treatments
These are treatments that do not require any significant effort from the patient. They include techniques which reduce the swelling and bruising which follows injury. These are very useful in the first few days. Some of the techniques, including ice, local heat and electrical treatments reduce local pain. Others, mainly mobilisations and manipulations attempt to re-establish movement of stiff joints.
All passive treatments have a limited application and achieve their maximal effects relatively quickly. Benefits of physiotherapy treatment should be assessed by the referring doctor after a maximum period of six weeks. The review date should be set at the commencement of treatment. Continuance of treatment should be dependant on that review process.
Active treatments
These are treatments which require a substantial effort from the patient. The most common and by far the most useful is an active exercise program.
Exercise is an absolutely vital component of all rehabilitation programs. Its main aim is to maintain and increase muscle strength. This prevents the pain that occurs as muscles fatigue, increases the endurance for physical activity and increases muscular co-ordination. In addition it improves general fitness, produces a better sleep pattern and results in a feeling of well being.
Physical fitness increases the threshold for pain so that people who are fit feel less pain than those that are not. It also helps to prevent re-injury.
Exercise based rehabilitation consists of two components. The first is a specific exercise program for the injured part. This usually requires careful planning to prevent re-injury and to minimise the discomfort that results. Physiotherapists are usually skilled in planning such exercise programs. The second component of an exercise program is to increase the general level of physical activity. Many patients who suffer musculo-skeletal injuries are unfit to start with. Their injury causes a further deterioration in their condition. The pattern of progressively reducing work related, domestic and recreational activity has to be reversed in a planned and structured manner. Your physiotherapist may be able to help you in constructing such a program.
However patients must be aware that exercise programs have a relatively slow effect. Initially pain may be increased as weak and unused muscles are exposed to the higher level of activity. There is almost never any improvement in under 6 weeks and often it takes months for the patient to feel substantial benefit. Nevertheless once improvement starts it is long lasting and significant.
If there is significant pain on exercise then the patient needs to be assessed by a doctor to ensure that there is no structural disease.” (Exhibit R18)

30. In his oral evidence Mr Gope confirmed that, in his opinion, the applicant did not require ongoing physiotherapy for his right foot condition or his right knee condition. He added, however, that the applicant’s knee condition is degenerative and that, from time to time, it is likely to become more painful, in which event a short physiotherapy program – “say, four or five sessions in two weeks” – would be helpful. He agreed that, on such occasions, the physiotherapy treatment should be obtained on referral by a medical practitioner.
31. Mr Gope recommended “active exercise” for the applicant’s right knee condition. He referred to the “McConnell’s program” which he described as:

“ a quite involved program of exercises for strengthening of the quadriceps and also hamstring group of muscle ...”

He recommended that the applicant perform those exercises for 15–30 minutes per day.

Dr Neil Ozanne

32. Dr Ozanne has been the applicant’s treating general practitioner throughout the period since he sustained his right knee injury in December 2002. Dr Ozanne issued the “Workers’ Compensation FIRST Medical Certificate” on 5 December 2002 in respect of the applicant’s right knee injury and he has continued to issue progress medical certificates on a regular basis since that date. The most recent of those medical certificates which is before the Tribunal was issued on 27 November 2008.
33. Dr Ozanne has, throughout the period since the applicant sustained his right knee injury in December 2002, consistently certified the applicant as unfit for his pre-injury work duties but fit for restricted duties and for restricted hours. In 2006 and 2007 Dr Ozanne certified the applicant as fit for restricted duties for up to 7 hours 40 minutes per day (that is, one hour less than full-time daily hours), for 5 days per week. From 17 January 2008 to 12 June 2008 Dr Ozanne certified the applicant fit for restricted duties for 4 hours per day, for 5 days per week. Dr Ozanne thereafter certified the applicant as fit for restricted duties for 5 hours per day, for 5 days per week from 26 June 2008, increasing to 5.5 hours per day from 4 August 2008 and to 6 hours per day from 16 October 2008.
34. Dr Ozanne has consistently recommended a gym exercise and swimming program as a means of treating the applicant’s right knee condition with a view to increasing, or at least maintaining, his work capacity.
35. Dr Ozanne provided a report, dated 15 October 2007, to the respondent’s insurer as follows:

“ ...
1. What specific condition, if any, is suffered by Mr Ken Stinton?
Mr Stinton has ongoing pain and stiffness of the right knee due to osteoarthritis secondary to the injury sustained at work on 5 December 2002. He also has persistent right foot pains due to biomechanical stress of altered gait of the right lower limb, which is due to his right knee osteoarthritis due to the work injury of 5 December 2002.

2. If Ken Stinton is suffering from a particular condition, what is the precise relationship, if any, between that condition and his employment by Telstra?

Mr Stinton’s right knee condition is directly due to his fall on 5 December 2002 while working for Telstra. His right foot symptoms are due to altered gait due to his right knee (osteoarthritis), causing increased biomechanical stress on the right foot.

3. Does Ken Stinton have any pre-existing medical history or conditions that are relevant to the current claim?

Mr Stinton does not have any pre-existing medical history or conditions that are relevant to the current claim.

4. Do you expect a full resolution of Ken Stinton’s condition? If so, how long should this take?

I do not expect a full resolution of Mr Stinton’s condition. I expect that his symptoms will persist indefinitely.

5. With regard to treatment which is presently being provided to Ken Stinton, we ask that you address the following (namely his request for a gym and swim program)
   • What outcome is achieved with the current level of treatment being provided to your patient at present? How do you measure this outcome?

The outcome being achieved from the current level of treatment and provided to Mr Stinton is maintenance of useful work activity and prevention of deterioration. I measure this outcome by direct questioning and listening to his answers.

• Is treatment being administered providing improvement in the employee’s condition? If the treatment is more for ‘symptomatic relief’ are there other forms of therapy (eg home based exercises) which can provide the same type of result? If self-management strategies have been implemented, please indicate response.

The gym and swim program is providing both maintenance and partial improvement of his right knee pain and stiffness. Mr Stinton is able to undertake these activities in a self-managed manner, however he requires the gym equipment and large swimming pool in order to do these exercises. Home based exercises would not provide the same type of result as this would not include a pool exercise program nor adequately equipped gym exercise program.

• What clinical justification is there for the frequency of visits at the moment? Please detail the future treatment plan for the patient indicating the frequency, type of intervention and duration of treatment. Would a reduction or termination of the treatment identified adversely affect the patient’s condition and/or quality of life?

I recommend Mr Stinton attend gym and swim program at least 5 days per week, indefinitely. Reduction of the gym and swim program results in loss of improvement and deterioration in his condition, work capacity and quality of life. Termination of the gym and swim program would further worsen his condition, work capacity and quality of life, resulting in earlier need for joint replacement surgery and further medical restrictions to his work capacity.

• Do you ever expect the patient to be discharged? If so, when and what will facilitate this action? If not, why not?

I do not expect Mr Stinton to ever be discharged. I expect his condition will continue indefinitely.

• You have indicated in the letter sent to Allianz on 17 April 2007 that Ken Stinton is having improvement to his pain and stiffness to his right knee as a result of regular gym program. Can you please indicate how the progress has been measured?

I measure Mr Stinton’s progress in terms of his symptom reports to me, and my observations of his gait and of his ease of transferring from sitting to standing and walking.

• Do you feel that the same progress can be achieved with Ken Stinton doing a home based exercise program?

I do not feel that the same progress would be achieved with Mr Stinton doing a home based exercise program as he does not have a suitable pool nor does he have suitable gym equipment at home.

• Please comment on the need for ongoing physiotherapy.

Mr Stinton requires physiotherapy for exacerbations of his knee condition, for example when he jars or twists it.
...” (T18 – 2007/5543)

36. In his oral evidence Dr Ozanne said that since 2002 he has recommended “aerobic” exercises for the applicant, and that he believed that the applicant had been doing those exercises in accordance with the recommended program. He said that he had “no real concern” regarding whether the applicant did those exercises during, or outside, his working hours.
37. It was put to Dr Ozanne that the applicant had said in evidence that he did not find the gym exercise program helpful and had let it “slide”. Dr Ozanne said that he was not aware of that and that he thought that the applicant was continuing to attend the gym and was benefiting from the exercise program. Dr Ozanne was referred to Mr Hardcastle’s evidence in which he recommended that the applicant perform the “McConnell exercises” for 5–10 minutes at least three times per week. Dr Ozanne opined that those exercises were insufficient for the applicant’s right knee condition.

Additional medical evidence

38. The Tribunal had before it additional medical evidence regarding the applicant’s right knee and right foot conditions and his capacity for work, including the following reports of Dr Desmond Williams and Dr Brian Galton-Fenzi.

Dr Desmond Williams

39. Dr Williams, Orthopaedic Surgeon, first examined the applicant in relation to his right knee condition on 31 July 2003. He performed surgery on the applicant’s right knee on 9 February 2004, and he has since regularly reviewed the applicant’s progress and provided numerous reports to Dr Ozanne.
40. Dr Williams first recommended that the applicant undertake a gym exercise program and swimming and pool exercises in a report to Dr Ozanne dated 15 March 2004 (T72 – W 200700020) and he consistently maintained that recommendation in subsequent reports.
41. In a report dated 20 April 2006 Dr Williams stated:

“ ...
He needs to continue with his swimming schedule and build up his own exercise schedules, decreasing his hands-on physiotherapy.
It is a long-term management commitment and he needs to be self-directed in the main and only use physiotherapy for short intermittent bursts when he is having acute flare-up.
...” (T144 – W 200700020)

42. In a report dated 21 September 2006 Dr Williams stated:

“ ...
This 47-year-old patient was reviewed 16 August 2006. His current job is as an exchange coordinator which involves lighter work activities than his previous employment and he is coping better in this work situation.
On examination of his right knee there is no effusion or synovitis. There is good motion range. There is crepitus on right knee movement.
The knee is not angry or irritable.
He needs to proceed with his ongoing rehabilitation efforts. He swims three or four times a week. He needs to maintain his weight reduction schedule.
He is now in a lighter work area that he has been coping with over the last 3–4 months with less standing and knee flexion stresses.
...” (T188 – W 200700020)

43. In a report dated 29 March 2007 Dr Williams stated:

“ ...
He has seen a podiatrist with regard to the right foot pain and orthotics have been helpful over the last six weeks. He noted this right foot pain emerged in December.
He has the ongoing right knee pain persisting.
The right knee had no effusion or synovitis at review and there is some crepitus and clunking on knee movement.
With regard to his work schedule, he notes that three days a week he has an hour off at the end of the day and in that hour he undertakes rehabilitation activities.
For some two months in January/February he was not allowed this schedule of time off and he lost the regularity of his gym and swimming program and he has put on weight and there has been a resulting increase in right knee pain and he has had to have some time off work, I understand, with flaring of the knee problems.
He needs to continue his pool swimming program 2–3 times a week and beach walking and the use of a stationary bicycle in his home situation. He stated his bicycle is in the shed and I think it is time he gets it out and uses it actively in rehabilitation as it is a non weightbearing knee exercise.
The rehabilitation efforts are the key to minimising his symptoms and maintaining his work capacity and the arrangement of one hour off, three days a week led to a regular rehabilitation commitment and effort and I would be supportive of continuing that schedule as the cost of arguing and having further medical opinions and the cost involved in his increased weight and increasing knee symptoms with further time off work should be balanced against a hard day’s work commitment and then taking the last hour off to complete his rehabilitation efforts.
I would like to see him in three or four months’ time. As I have outlined, his rehabilitation efforts are the key to maintaining his functional capacities.
...(Exhibit R6)

44. The most recent report of Dr Williams which is in evidence is his report of 24 January 2008 in which it is stated:

“ ...
In terms of management, he needs a commitment to a weight reduction schedule and a long term swimming and exercise schedule, avoiding weightbearing stresses. He will need an exercise bicycle and a home gymnasium kit and access to a pool schedule.
He needs to look at his training so that he has a long term future in light, sedentary bench or desk work with a flexible workstation.
...” (part of Exhibit R23)

Dr Brian Galton-Fenzi

45. Dr Galton-Fenzi, Specialist Occupational Physician, examined the applicant, following a referral by Dr Ozanne, on 9 February 2007 and he provided a report, dated 12 February 2007, to Dr Ozanne as follows:

“ ...
At interview, Mr Stinton states that when getting out of bed in the mornings he wakes up with a stiff right knee and requires daily anti-inflammatory ‘painkillers’. He finds that by 9 am the knee tends to ‘loosen up’ and he attends work on light duties. However by 1–2 pm the knee once more ‘stiffens up’ and can find (sic) by the evening that the ache is substantial. From time to time the knee clicks and is accompanied by a sharp pain at the time. He takes his medication at breakfast, lunch and with the evening meal.
He denies any obvious swelling of the knee and it does not appear to exhibit instability. He describes a recent event when he experienced pain in the right forefoot which was seen to be related to the changes in his gait requiring a podiatric shoe insert.
I will not repeat the history as given to me by Mr Stinton though he indicates on 5th December 2002 whilst working in a telephone pit beside a 2 metre retaining wall, when he stepped on a loose item, falling heavily off the retaining wall and injuring his right knee.
...
Mr Stinton indicates that he had returned to work in a modified capacity both by way of duties and, it would appear, hours of work. He had become the Exchange Coordinator to the metropolitan area being required to visit some 120 exchanges which (sic) he sweeps the floors, replaces fallen labels and picks up jumper wire bags. He has undertaken this role for some 12 months after having worked in restricted duties ‘running jumpers’ and earlier maintaining outside pay telephones. The job with running jumpers required the climbing of ladders and this also caused significant problems. He found that when maintaining pay telephones he was required to go into the telephone pit behind these pay phones which (sic) with squatting and having to get into the telephone pits he was aggravating his knee, hence the reason he became the exchange coordinator. Also he was encouraged to attend rehabilitation (swimming pool and light gym exercises) and to enable this ceased work one hour earlier, initially for 5 days a week (this caused an increase in his right knee symptoms, probably because of overactivity) so resulted in Monday, Wednesday and Friday rehabilitation work and intermittent physiotherapy.
The more recent cessation of the time allowed for his rehabilitation along with the loss of pay were he to leave work (as required by the Workers’ Compensation Insurer) the hour early, has found that working the longer day resulted in an increase in his symptoms during the evening, and an increased wakefulness at night because of the ache.
On clinical assessment, it was noted he is left hand dominant. He walked with a limp on his right leg. There was no obvious swelling of the right knee.
He was unable to perform a full squat because an increase in discomfort occurs with flexion of the knee both under weight bearing and with passive range of motion assessment. Flexion and extension results in increasing discomfort and obvious retropatella crepitus. Any patella movements and pressure caused increased pain. He appeared to be substantially tender over the medial collateral ligament of the right knee.
Provocative tests were negative and there was no evidence of ligamentous laxity.
Examination of the left knee was unremarkable, though coarse crepitus, being age related, was noted.
I utilized the opportunity to review the numerous radiological investigations ...
The evidence therefore indicates that Mr Stinton continues with a right chondromalacia patellae.
Recommendations:
I believe that it is appropriate to increase the paracetamol to 2 tablets QDS (with possibly panadeine in the evenings as an alternative) and that a cessation of his anti-inflammatories would be wise. Evidence based medicine does lend support to the use of long term chondroitin sulphate with glucosamine (3 years).
I also recommend that Mr Stinton be formally instructed in an isometric stabilizing exercise program for both his lower limbs, with light isotonic exercises to reduce the dynamics on the knee joint itself.
In reviewing his potential for work related activities, much would depend on his tolerance of pain which will be inevitable until a knee replacement occurs. I would recommend variable duties such as two hours in standing and walking tasks with one hour seated, interspersed through a normal 8 hour working shift. He does give evidence that any period longer than some 4 hours on his feet does result in an increase in his right knee symptoms. Equally however, being sedentary for any extend (sic) amount of time increases his ‘stiffness’ of the knee. Certainly he is not able to squat, which is expected of him in his job as a Telecom Technician full time.
In summary, therefore, the condition of retropatella chondromalacia results in a chronic pain condition which requires adequate mild daily analgesics, an appropriate exercise program that does not aggravate the situation and selected duties allowing both standing, walking and seated duties, but no kneeling or squatting activities. In the event that this mix of activities is not possible, his continuous standing tolerance time is less than a full working shift. Realistically some 4 to 6 hour shifts should be sanctioned, in an effort to ensure that he does not have a substantial ache in the evenings as a full 8 hour shift in a standing and walking job increases his symptoms.
...” (original emphasis) (T221 – W 200700020)

Additional evidence

46. The Tribunal also heard evidence from three lay witnesses, and numerous additional exhibits were tendered in evidence. It is unnecessary, however, for the Tribunal to refer to any of that evidence in these reasons.

ANALYSIS

Application No W 200700020

Is compensation payable to the applicant, in accordance with s 19 of the SRC Act, for incapacity for work resulting from his right knee injury in the period from 4 October 2006?

47. It is common ground that the applicant has at all material times been, and is presently, “incapacitated for work” as a result of his right knee injury, in the sense that he has at all material times been, and is presently, incapacitated for “work at the same level at which he ... was engaged” by the respondent immediately before he sustained that injury (see s 4(9)(b) of the SRC Act). It is, accordingly, common ground that the respondent has at all material times been, and is presently, liable pursuant to s 14(1) of the SRC Act to pay compensation, in accordance with s 19 of that Act, to the applicant in respect of his right knee injury.
48. It is also common ground that the applicant has at all material times been, and is presently, engaged by the respondent in exchange maintenance work involving light duties in accordance with work restrictions certified by Dr Ozanne.
49. The critical question for the Tribunal’s determination, for the purpose of deciding whether compensation has been payable to the applicant, in accordance with s 19 of the SRC Act, from 4 October 2006 (being the effective date of cessation of payment of such compensation to the applicant by the respondent), is whether the applicant has, from that date, had the physical capacity to engage in the abovementioned exchange maintenance work for full-time hours.
50. There is conflict in the evidence of the medical witnesses in relation to that issue. Whereas Dr Ozanne, the applicant’s treating general practitioner, has at all material times certified the applicant as fit to undertake the restricted duties of his exchange maintenance work but only for restricted hours, Dr Home, Mr Hardcastle and Mr Gope have each opined that the applicant is fit to undertake those duties for full-time hours.
51. As regard the additional medical evidence before the Tribunal in relation to this issue – namely, the reports of Dr Williams and the report of Dr Galton-Fenzi (see paragraphs 39–45 above) – the Tribunal notes that:
    • Dr Williams has not expressed a clear opinion as regards the applicant’s work capacity but he has consistently expressed the opinion that the applicant needs to continue with, inter alia, his swimming exercise program in order to maintain his work capacity;
    • Dr Galton-Fenzi expressed the opinion, in effect, that the applicant has the capacity to work a “normal 8 hour working shift” per day with the following work restrictions:
      • - standing and/or walking duties limited to two hours per day;
      • - seated duties available for up to one hour per day;
      • - no duties requiring kneeling or squatting.
52. As regards the medical witnesses, the Tribunal attaches greater weight to the evidence of the specialist medical practitioners, namely, Dr Home, Mr Hardcastle and Mr Gope, than it attaches to the evidence of the applicant’s general practitioner, Dr Ozanne, notwithstanding that Dr Ozanne has been treating the applicant in relation to his right knee injury from the time he sustained it in December 2002. Dr Home, a very experienced specialist occupational physician, prepared two very comprehensive reports covering the period from July 2006 to April 2008 and, in the Tribunal’s opinion, the opinions expressed in those reports and reiterated in his oral evidence were presented objectively and cogently. Dr Ozanne, on the other hand, appeared to the Tribunal to be not entirely objective in presenting his evidence in support of the applicant’s case and, in the Tribunal’s opinion, that lack of objectivity detracted from the quality of his evidence. In short, the Tribunal prefers the evidence of Dr Home, and the similar evidence of Mr Hardcastle and Mr Gope, to the evidence of Dr Ozanne, in respect of the applicant’s work capacity in the relevant period.
53. Having regard to the whole of the evidence before it, the Tribunal accepts the expert opinion of Dr Home, and the similar expert opinions of Mr Hardcastle, Mr Gope and Dr Galton-Fenzi, and, on the basis of that expert evidence, the Tribunal finds that the applicant has had from 4 October 2006 to the present date, and presently has, the physical capacity to undertake, on a full-time basis – that is, for full-time hours – the exchange maintenance work involving restricted duties which he has been undertaking throughout that period and is presently undertaking.
54. The Tribunal notes that the applicant has, during the abovementioned period, attended a “leisure centre” on 3–4 afternoons per week for the purpose of performing swimming and related pool exercises, provided that the cost of such attendance has been met by the respondent’s insurer, and the Tribunal accepts the medical evidence that such exercises are beneficial for his knee condition and his physical wellbeing generally. The Tribunal finds, however, on the basis of the abovementioned medical evidence, that the applicant has at all material times had, and continues to have, the physical capacity to undertake, on a full-time basis, the abovementioned exchange maintenance work involving restricted duties, irrespective of his performing the abovementioned swimming and related pool exercises. In other words, the Tribunal’s finding that the applicant has had, and presently has, the physical capacity to undertake the abovementioned exchange maintenance work on a full-time basis is not subject to the applicant’s having performed, and continuing to perform, those swimming and related pool exercises. Accordingly, attendances by the applicant at the leisure centre for the purpose of performing swimming and related pool exercises, during the period from 4 October 2006, are to be regarded as not falling within his normal full-time hours of work. The Tribunal notes in this connection that, although the respondent’s insurer has agreed to meet the cost of such attendance from time to time by way of compensation pursuant to s 16 of the SRC Act, the respondent has not directed or otherwise required such attendance by the applicant for the purpose of his employment.
55. Having regard to the findings set out in paragraphs 53–54 above, the Tribunal understands that, in the event that the Tribunal were to make such findings, it would be common ground that the amount of compensation payable to the applicant, in accordance with s 19 of the SRC Act, for the period from 4 October 2006 to the present date, and as at the present date, would be nil on the basis that the applicant has been for the whole of that period, and is presently, able to work full-time hours and earn the full amount of his “normal weekly earnings” in “suitable employment” for the purposes of s 19 of the SRC Act.
56. Accordingly, the Tribunal concludes that, for the period from 4 October 2006 to the present date, and as at the present date, the respondent has been, and is, liable pursuant to s 14(1) of the SRC Act to pay compensation, in accordance with s 19 of that Act, to the applicant in respect of his right knee injury, but that, for the whole of that period, and presently, no amount of compensation is payable to the applicant in accordance with s 19.

Application No 2007/4803

Is the respondent liable to pay compensation to the applicant, in accordance with s 16 of the SRC Act, in respect of the cost of medical treatment obtained in relation to his right foot injury in the period from 21 August 2007?

57. The respondent has conceded that at all material times it has been, and is presently, liable pursuant to s 14(1) of the SRC Act to pay compensation, in accordance with s 16 of that Act, to the applicant in relation to his right foot injury. The applicant did not contend that compensation for incapacity for work was payable to him, in accordance with s 19 of the SRC Act, in respect of his right foot injury.
58. The respondent has also conceded that the use of orthotic inserts constitutes reasonable “medical treatment”, for the purposes of s 16 of the SRC Act, in relation to the applicant’s right foot injury. In the Tribunal’s opinion, having regard to the medical evidence – in particular, the evidence of Mr Hardcastle and Mr Gope – that concession was rightly made. The Tribunal also finds, on the basis of that evidence, that no other medical treatment has been reasonably required by the applicant in relation to his right foot injury in the relevant period.
59. Accordingly, the Tribunal concludes that the respondent has at all material times been liable, and is presently liable, to pay compensation to the applicant, in accordance with s 16 of the SRC Act, in respect of the cost of orthotic inserts as reasonably obtained from time to time by the applicant in relation to his right foot injury.

Application No 2007/5543

Is the respondent liable to pay compensation to the applicant, in accordance with s 16 of the SRC Act, in respect of the cost of physiotherapy treatment obtained in relation to his right knee injury in the period from 5 October 2007?

60. On the basis of the medical evidence before it – in particular, the evidence of Mr Hardcastle, Mr Gope and Dr Ozanne, and Dr Williams’ report of 20 April 2006 – the Tribunal finds that:
    • in the period from 5 October 2007 ongoing physiotherapy has not been, and is not presently, required by the applicant in respect of his right knee condition;
    • physiotherapy may be required by the applicant from time to time in the event of a temporary exacerbation of his right knee condition or symptoms.

The Tribunal, furthermore, accepts the evidence of Mr Hardcastle and Mr Gope that physiotherapy treatment for temporary exacerbations of the applicant’s right knee condition should be obtained only on a referral by a medical practitioner.

61. Accordingly, the Tribunal concludes that, for the period from 5 October 2007 to the present date, and as at the present date, the respondent is liable to pay compensation to the applicant, in accordance with s 16 of the SRC Act, in respect of the cost of physiotherapy treatment (if any) obtained by him on a referral by a legally qualified medical practitioner for the treatment of temporary exacerbations of his right knee condition or right knee symptoms in relation to his right knee injury.

DECISION

62. For the above reasons the Tribunal decides as follows:

Application No W 200700020

• The Tribunal affirms the decision under review.

Application No 2007/4803

• The Tribunal sets aside the decision under review and, in substitution therefor, decides that, for the period from 21 August 2007 to the present date, and as at the present date, the respondent is liable to pay compensation to the applicant, in accordance with s 16 of the SRC Act, in respect of the cost of orthotic inserts as reasonably obtained from time to time by the applicant in relation to his right foot injury.

Application No 2007/5543

• The Tribunal sets aside the decision under review and, in substitution therefor, decides that, for the period from 5 October 2007 to the present date, and as at the present date, the respondent is liable to pay compensation to the applicant, in accordance with s 16 of the SRC Act, in respect of the cost of physiotherapy treatment (if any) obtained by the applicant on a referral by a legally qualified medical practitioner for the treatment of temporary exacerbations of his right knee condition or right knee symptoms in relation to his right knee injury.

I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr P A Staer, Member

Signed:.......[sgd E Jordan]....................

Associate

Dates of Hearing 1–4 July, 8–9 December 2008

Date of Decision 4 February 2009

Representative of the Applicant Mr C Prast

Solicitor for the Applicant Slater & Gordon

Counsel for the Respondent Ms P Giles

Solicitor for the Respondent Sparke Helmore