ALLAN JAMES and COMCARE

[2010] AATA 393

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 393

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3665 &
  )          2008/4439

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ALLAN JAMES

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Dr P. Wilkins, Member

Date27 May 2010

PlaceCanberra

Decision The decisions under review are affirmed.

.....................[sgd].........................

Mr S. Webb, Presiding Member

CATCHWORDS

COMPENSATION - accepted left knee injuries – pain - claims for periods of incapacity - underlying degenerative osteoarthritis – pseudogout - left knee replacement surgery - incapacity not the result of injury - decisions affirmed

Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 19, 67

REASONS FOR DECISION

May 2010 Mr S. Webb, Member
Dr P. Wilkins, Member       

1.      Allan James suffers from osteoarthritis and pseudogout (chondrocalcinosis)   in his left knee. He has two accepted injuries to his left knee – a strain to the cruciate ligament[1] and aggravation of osteoarthrosis.[2] In February 2008 he underwent left knee replacement surgery. He claimed compensation for periods of incapacity. The specific periods of incapacity claimed are:

1 October 2007 to 30 January 2008, and

31 January 2008 to 15 March 2008.

[1] Date of injury – 9 May 2006.

[2] Date of injury – 24 September 2007.

Mr James’ entitlement to incapacity during these periods was determined in the negative in two separate decisions.[3] Unhappy with this result, Mr James requested reconsideration and, having not obtained satisfaction, applied for review.

[3] T58 and T65.

2.      The issue for determination is Mr James’ entitlement to compensation for incapacity during these periods. Essentially, to be so entitled, it must be established that the periods of incapacity resulted from an injury under the Safety, Rehabilitation and Compensation Act 1988 (the Act).

3.      Mr James asserts that the periods of incapacity resulted from one or more compensable injuries to his left knee. In his submission, his left knee was injured in three separate incidents at work.[4] He says the first incident occurred in March 2006 while undergoing fitness testing – a ‘beep test’. His evidence is that he twisted his left knee during exercises on a rubber mat: he heard an audible snap in his left knee and experienced pain which subsequently subsided, but never went away. The second incident apparently occurred in May 2006 on a shooting range: he bumped his knee (the inferior patella) on a metal spike and experienced increased symptoms of pain and swelling. Subsequently, on 22 November 2006 Dr Miniter, an orthopaedic surgeon, conducted an arthroscopic investigation of Mr James’ left knee and performed “a resection of a degenerative lateral meniscal tear, a notchplasty and stabilisation of the lateral meniscal remnant.”[5] The Doctor noted a large amount of pseudogout changes in the knee. Shortly thereafter, Mr James’ left knee became swollen and a further arthroscopic wash-out for possible septic arthritis was performed. A further arthroscopy was performed on 13 February 2007 by Dr Morris, another orthopaedic surgeon, in which biopsies were taken and the earlier…