Bomford and Australian Postal Corporation (Compensation)

Bomford and Australian Postal Corporation (Compensation) [2023] AATA 1901 (23 March 2023)
Division:GENERAL DIVISION
File Number(s): 2021/6345
Re:Mr Scott Bomford
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:A G Melick, AO SC, Deputy President
Date:23 March 2023
Date of written reasons: 5 May 2023
Place:Hobart

For the reasons given orally at the hearing on 23 March 2023, the decision under review is set aside and the Respondent is liable for the injuries suffered to the Applicant's left knee on 9 November 2011
...[sgn].....................................................................
A G Melick AO SC, Deputy President
Catchwords
Compensation – workplace injury – whether the Australian Postal Corporation had a present liability to pay compensation – accepted compensation claim for the right knee – whether the left knee was injured at the same time as the right knee – decision under review is set aside
Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth)
Cases
Secondary Materials
REASONS FOR DECISION
A G Melick AO SC, Deputy President
5 May 2023

This application for review concerns a denial by reviewable decision on 6 July 2021 for a claim made by the Applicant on 9 February 2021 for compensation pursuant to section 14 of the Safety Rehabilitation and Compensation Act (SRC Act) with respect to his left knee. Following the receipt of the claim on 9 February, the respondent made a determination on 10 May that it was not liable to pay the Applicant compensation pursuant to section 4 of the SRC Act which I will now refer to as the Act.
On 8 June 2021 the Applicant requested reconsideration of the decision,on 6 July 2021 the Respondent made a reviewable decision affirming the determination.
The facts that were agreed in this matter included the following:
The Applicant was born in June 1962. At the time of the incident, the Applicant was employed by the Respondent as a postal delivery officer (PDO) and therefore was an employee under the meaning of section 5 of the SRC Act.
At the time of his employment, the Applicant's duties consisted of riding a small motorbike and delivering domestic mail at the time. The delivery area was in or around the Battery Point,Hobart, Tasmania. The area is hilly, and there are many terrace houses and apartments. The Applicant was required to dismount the motorcycle frequently.
On 9 November 2011, the Applicant was delivering mail in the Battery Point area. The Applicant provided the following description of the injuries:
The injury occurred on 9 November 2011, late in the morning. He stated that a new delivery system had been developed, which resulted in a larger bag slung between the motorbike seat and handlebars. This made mounting and dismounting more difficult. He stated that he was remounting the motorbike when he accidentally kicked the mail bag, and the bike was falling to the right. He thrust out his right leg to save the fall, and he took the heavy impact on the right knee. He said he was immediately aware of tearing and stretching in the back of the knee and considerable pain. There was no popping or rupturing.
The Applicant continued deliveries, but he contacted the team leader, informing him of the situation. The team leader met the Applicant approximately an hour later and assisted with his delivery for the rest of the day.
On 18 November, the Applicant filled out an incident report, and on 25 November an incident summary was completed. The incident summary records the injuries as follows:
TPDO while getting on and of motorcycle in delivery I felt pain in my right leg behind the knee. Footpath in Battery Point are quite small, and with the new SBD bag the room between the seat and the bag is smaller. Having to turn leg to get off and on. Sometimes when gelling on you overbalance and over extend your leg. On round 71 you get off motorcycle between 80 - 140 times.
The parties agreed that the law in relation to the matter for determination was well settled. My role, in dealing with issues in contention, was to make a finding in relation to factual matters to be determined being:
Did the Applicant suffer an injury to his left knee in the course of his employment on 9 November 2011;
Whether the Applicant otherwise suffered an injury to his left knee as a result of, or in the course of his employment;
Did the Applicant suffer an ailment which was aggravated as a result of the injury to his right knee; and
Whether any injury or disease suffered by the Applicant as a result of his employment has resulted in incapacity or the requirement for medical treatment.
The Applicant gave evidence and was cross-examined thereon. In the evidence he gave, he adopted a statement which included the following;
11. On or about 9 November 2011 I was delivering mail in the Battery Point, Hobart area. I had delivered mail in this area almost every day for the previous 2 to 3 years.
12. The Battery Point area is a heritage area with predominantly older houses and uneven pavements. For this reason, when delivering mail in Battery Point, it is frequently necessary to dismount the motorbike as the mailbox is a slot in the door as opposed to a separate mailbox at the front of the house.
13. On this day, I had parked the bike and walked to a set of high rise units to deliver the mail. I left my bike parked similar to the below position on the surface at the time which was slightly uneven.
14. As I went to mount the motorbike from the left-hand side, I moved my right leg through the motorbike, it struck the front mailbag that fits between the seat and the handlebars.
15. This caused the bike to tip over to the right-hand side. As it fell, as my weight was already moving to my right, I quickly jumped through the motorbike and stretched out my right foot to brace my fall.
16. I landed awkwardly on my extended right foot. My left foot was extended the other way, so that I was almost doing the 'side splits'. From this position I then fell backward onto my backside.
17. During this fall, both my right and left legs moved in similar motions, but in opposite directions. I felt that I twisted and hyperextended both my knees, such that they bent in directions that were opposite to the knee joints. As I was moving to my right-hand side, the right leg bore more weight during this motion.
18. The bike landed on the left side of me and I do not believe it hit me.
19. After the fall, I immediately felt pain in the back and inner sides of my knees. The pain in my right knee was more intense than the pain in my left knee.
20. Prior to the incident on this day I did not have any symptoms in either of my knees. I immediately called my team leader Tony Bone and told him about the accident. I continued to deliver mail. I could still walk and ride the motorbike, albeit with some pain.
21. I returned to the Australia Post office and filled out an incident report. I do not have a copy of the original report which was submitted to Australia Post. A copy of the incident report is attached and marked 'S81 '. I was brief in the incident report form as the reporting standards were different back then and I would say 'more relaxed'. If I was filing out the report form now I would be much more thorough as the standards for completing incident report forms are much different.
22. I submitted a claim for the right knee as that was causing me the most pain.
I note at this stage that the injury to the right knee has been accepted by the Respondent, and it is the injury to the left knee which is in dispute.
The Applicant also noted at paragraphs 25-30:
25. A few days after the injury, I attended Dr Timothy Lickiss, the doctor associated with Australia Post at the time. I told Dr Lickiss generally that I fell from the bike and twisted my right knee.
26. In following consultations in or about that time, I recall saying to Dr Lickiss words to the effect of the following:
I’ve got pain in my left knee too.
27. I recall that Dr Lickiss replied with words to the following effect:
We’ll get your right knee fixed first and then we’ll worry about the other one.
28. Following the injury, I attended a physiotherapist about twice a week who was Mr Chris Hutton (Physiotherapist - Revive Motional Health) for my right knee.
29. I expressed to my physiotherapist that I was experiencing pain in my left knee as well as my right knee.
30. Around two to three weeks after the Injury, I returned to work as a Postal Delivery Officer on 'light duties'. This meant that my colleagues would deliver parts of my mail rounds.
I note particularly what the Applicant said about this time, and of course on several occasions, that he told Dr Lickiss and Mr Greg Saunders words to the following effect. "I am still having trouble with my knees."
I refer to the rest of the Applicant’s written statements. I note that there is a difference between what the Applicant says were the mechanics of the incident which caused the injury to his right knee and the now claimed left knee and what appears in the incident report. I refer to what was in an incident report, which I have already read out, but I will read it again:
TPDO while getting on and off motorcycle in delivery felt pain in my right leg behind the knee. Footpath in Battery Point are quite small, and with the new SBD bag the room between the seat and the bag is smaller. Having to turn leg to get off and on. Sometimes when getting on you overbalance and over extend your leg. On round 71 you get off motorcycle between 80 -140 times.
The parties in this matter agreed that that the law in this matter for determination is well settled. My role in dealing with issues and contentions is to make a finding in relation to the facts.
Two facts need to be determined; being did the Applicant suffer injury to his left knee on 9 November 2011 or did the injury to the Applicant's right knee, which is an accepted injury cause the Applicant to suffer an injury to his left knee.
In addition to the facts set out about the Applicant gave the following evidence.
He commenced as a postal officer in 1995 and had various roles before working as a PDO. Prior to his injury he suffered swelling of the knuckles, which was diagnosed in 2008 and 2009, for which he was prescribed and taking arthrexan tablets, which are anti-inflammatory and pain relieving.
The same medication is prescribed for his knee conditions, but the dosage remains essentially the same. In 2011, Australia Post commenced a trial to change the way in which mail was sorted and delivered, and introduced a separate bundling system. The Applicant used to deliver mail on the motorbike, which had paniers over the rear wheel and an additional bag which contained mail sitting on the inside of the front handlebars. The sides of the bag at the front of the motorcycle increased to such an extent with the new system that it made getting on or off the bike more difficult because of decreasing the gap between the bag and the seat.
The trial apparently lasted three months and the system reverted back. On 9 November 2011 the Applicant was making a postal delivery in the Battery Point area. Battery Point is an old established suburb with very narrow streets and federation buildings which have a slot in the front door rather than a mail box out the front. This means postal workers had to get on and off the bike in many times during the course of the day's work.
On the day in question after delivering mail to a block of apartments he returned to his bike and approached it from the left-hand side, as detailed in the evidence given previously. He maintained that he told Dr Lickiss about pains in his left knee, he was told they would sort that out later, because the right knee was the major problem.
I note that Dr Lickiss had no memories of any such conversation. The Applicant was extensively cross-examined about differences in descriptions as to how the injury occurred. Although he sometimes appeared to conflate incidents, I did not consider him to be a dishonest witness. I accept that his major concerns were with the right knee and that the problem with his left knee, whenever and how it occurred, was relatively minor at the outset.
The Applicant seemed to suggest that he reported problems with his left knee more often than the medical records suggest that such reporting occurred. Bearing in mind the respondent relied heavily upon the lack of reporting I note Dr Lickiss is a general practitioner who was retained by Australia Post to assess the Applicant and treat him for the injury to the right knee.
The Applicant had a separate GP who used to prescribe prescriptions and the Applicant maintained that one of the problems, or one of the reasons that Dr Lickiss may not remember or have notes about the left knee was because he had been referred to him in relation to the right knee. In any event, Dr Lickiss made the following notations:
On 18 November;
new delivery system, narrow footpaths, twisting knee, locking, noted and mild instability, tender laterally with.full ROM.
On Friday, 9 December 2011;
twisted knee, Battery Point. Twisted knee upon delivering. Knee pain may change. Does feel unstable. Tender. Function of right knee was reduced. Left, refer physio.
On 7 May 2015, we come to the first note in Dr Lickiss' notes about left knee:
No change in duties. Left knee increasing pain.
Then on 6 November 2019:
Right knee sensitivity exists by way of right knee, and now increasing pain in left knee. Watch.
Then on 3 September 2020:
Visit time, surgery consultation and bilateral knee pains ongoing. Working to review with MRI on both knees. Needs job with limited stairs.
In his proof of evidence, Dr Lickiss noted the following, where he stated:
He injured his right knee approximately two weeks prior to arriving after landing on his knee on the narrow footpath delivering mail. He may slipped while trying to steady his postal bike. On examination, he was tender laterally but his right knee had full range of movement. The was no mention of left knee pain in my notes of 18 November 2011,
Although my note did not mention the left knee, I can't be sure that Mr Bomford did mention the left knee.
I note here that in cross-examination, he talked about the commentary he would have noted. I note that a further letter that appears to be dated 14 November from Mr Chris Hutton, who is a physiotherapist and that Mr Hutton makes mention of Mr Bomford's reported symptoms in the left knee:
On 15 November 2012, 1 saw Mr Bomford for consultation on the right knee, I did not raise with Mr Bomford the note from Mr Hutton and the letter about the left knee. As our purpose was on the right knee, and that which was causing Mr Bomford the most pain.
On 3 September 2020:
The MRI on the left knee showed advanced osteoarthritis. It looked at different parts of the joint and meniscal tear. In my opinion, advanced osteoarthritis is a degenerative condition, and the meniscal tear was aggravated by the work. The advanced osteoarthritis is more than expected for a patient of his age. It was an excessive load placed on the left knee due to the poor right knee. This was the opinion of Mr Hutton for the right knee, workers compensation is an acceptable compensated condition, and advanced meniscal damage.

I am of the opinion that there has been substantial aggravation of osteoarthritis and the meniscal tear because of Mr Bomford 's employment condition for the Australian Post group, and/or also due to the knee condition.
I note that the letter referred to a note from Mr Hutton. It says among other things:
I have not seen his scans. So I am unsure as to the extent of the underlying knee pathology.
That is him referring to the right knee –
I do know that his left knee is also tender, meniscus joint, probably from taking additional load.
I pause here to note that it seems unusual for Mr Hutton to examine the left knee unless there had been a complaint about it, so I assume that at least as at 28 September 2012, which is when the physiotherapist made the report, to which Mr Hutton is referring to in his letter, means that there has been a complaint by the Applicant about his left knee at that stage. I find that is the earliest stage in which the applicant actually had made a complaint about his left knee.
I note that a letter from Dr Harvey, on 23 February 2021, that read:
I looked into his left knee. I saw him in 2012 about both knees but that information has been discarded.
I consider it is inappropriate to place significant weight on what was said by Dr Hutton in that note because he is reporting ten years or nine years later about something that occurred in relation to the Applicant’s left knee. He was not provided for cross-examination, and there was a problem with another specialist when reporting about seeing him some ten years before, making a mistake about - noting that both knees had been impacted.
I will now consider a report from Dr Wilkinson,dated 29 November 2021. It says - I now refer to the history set out in that report. The last paragraph is as follows::
The history with regards to the left knee complaints, there’s a few – soreness. He is also relatively constantly in pain. Worse with increased activity. Has difficulty with stairs and hills. There’s swelling occasionally getting in the way, and he cannot kneel or squat.
I note that once again, that is a report dated from the investigation of 29 November 2021.
On clinical examination, he noted that the Applicant walked with an antalgic gait, relating to the focus on his right rather than his left knee, demonstrated by variations with his right neutral alignment. I note that there was a correction to his report because it said his left was in misalignment, but he realised he made a mistake. It is another reason why I am not inclined to place any weight on Dr Harvey’s report.
When asked to specify the history of the left knee symptoms suffered by the Applicant, he said:
In my opinion, Mr Bomford’s left knee is likely a meniscal tear at the time of injury
on 9 November 2011 that has led to progressive degenerative change within the
left knee and ultimately now has severe post-traumatic osteoarthritis.
and that referred back to the history given by Mr Bomford. He did state later in the report, at paragraph seven:
Mr Bomford suffered an injury in the course of his work duties on the night of 9 November 2011, which has gone on as the cause of the list of pathology. That is documented in the right knee and subsequent post-traumatic arthritis. The left knee is likely to suffer similarly, whereby he suffered an injury in the course of his work duties, and then has gone on to cause a slow, progressive, degenerative change in the left knee. It is possible he had a degree of degenerative change in his knees prior to his injuries, though Mr Bomford denied any history of left or right knee injuries prior to his injury in the month of November 2011.
Generally, there was a possibility that there was a degree of degenerative change in these knees prior to his injuries. It was my opinion that either he sustained that meniscal tear that arose out of his work duties on that day, and this has led to a degenerative change, or alternatively at a minimum, the work duties on 9 November 2011 significantly contributed to an aggravation to a pre-existing change which caused the subsequent degenerative change in his knee joints. There was no imaging done at the time, so it's not possible to accurately define what were the exact details of the structural injury which he suffered at the time.
In relation to the question of whether the Applicant’s left knee symptoms resulted in injuries that had been the result of injuries sustained in the 9 November 2011. He said:
Mr Bomford developed left knee symptoms, he recalls, after his injury on 9 November 2011. There was no imaging done at the time so it's not possible to accurately find what were the exact details of the injuries that he suffered at that time. It is likely that he suffered a meniscal injury at the time that has gone on to cause post-traumatic arthritis, or that the work duties undertaken 9 November have resulted in aggravation or of orthopaedical change.

I note that under the heading diagnosis about the right and left knee injury, respective to the reports of Dr Jan Tomlinson:
I agree with Dr Tomlinson that Mr Bomford suffers from advanced degenerative arthritis. On balance, it would seem that the work injury in 2011 is a significant causing factor, that was also the cause of the right knee.
In his conclusion he said:
Mr Scott Bomford suffered an injury to his knees on 9 November 2011 when he fell off his bike, injuring both of his knees. Initially was diagnosed with lateral meniscal tear to his right knee, which required surgery, and he has developed post-traumatic arthritis in the right leg, requiring a hip replacement. He also recalls injuring his left knee at the time. The injury on 9 November 2011 represents an injury has gone on to cause progressing posttraumatic arthritis to his left knee.
The Respondent provided reports from Dr Jan Tomlinson, and there were three such reports. The first one, dated 16 April, under the heading Mechanism of Alleged Injury and Subsequent Events:
Mr Bomford sustained an injury to his knees in 2011. He reports at the time that the postal motorbikes were changed, with a bigger basket, and he recalls that he was climbing onto the bike, and he caught his knee on the bike, causing the bike to tip over to the right, taking it with him. Mr Bomford reports noticing pain in both knees following this. He eventually reported this to his doctor.
I will then read the rest of the passage under Mechanism of Alleged Injury Sequence of Events. I accept all of it, including the last paragraph:
With regards to the left knee Mr Bomford reports it was injured at the time of the injury incident in 2011, but was not as bad as his right knee. He reports, his left knee has been gradually worsening, particularly over the last two to five years, and now feels this knee is as bad as his right was.
I now outline page 5 of Dr Tomlinson’s report, under Diagnostic Investigation, down to the following page, the paragraph under Summary and Assessment, the last paragraph of which just says:
MRI scan on left knee performed recently, however, documents a significant intra-articular pathology, including the possibility of an A CL tear and a medial lateral meniscal tear, which indicates prior trauma. Mr Bomford reports no injury to left knee other than the work-related incident in 2011.
Under Diagnosis, the doctor stated that:
Mr Bomford is currently suffering from advanced degenerative arthritis of the left knee. Arthritis of the knee can either be primary or secondary. Primary arthritis is associated with certain risk factors, including age, weight, and the presence of certain risk factors including haemochromatosis. Arthritis may also be secondary to injury, including prior trauma causing intra-articular pathology, including after meniscal or ligamentous injury.
Dr Tomlinson went on to say:
in Mr Bomford 's case, he has haemochromatosis, which is a risk factor, but this has been well controlled. I consider that this has had a negligible contribution. With regard to the meniscal tears, arthritis can develop as a consequence of these tears of the meniscus. In Mr Bomford's case, as there is other evidence of injury to the ACL, this is suggestive that the meniscal tears are the primary event, and the arthritis developed as a consequence. This is suggestive of post-traumatic injury. I therefore consider Mr Bomford's arthritis in the left knee has developed as a consequence of the original work injury in 2011.
Then, under Causation:
Mr Bomford described the cause of his left knee arthritis as carrying the right knee since 2011. I consider that there has likely been an injury to the left knee at some stage. Mr Bomford denies any other knee injury, and it is therefore apparent, in addition to injury to the right knee, at the time off the injury, there was also a significant injury to the left knee. I consider his arthritis has developed as a consequence of this, rather than carrying the right knee.
I would also note that in cross-examination Dr Wilkinson indicated that he thought it unlikely the left knee injury had been caused by compensating for the right knee. He considered Mr Bomford is suffering an injury, in that he considered the arthritis in his knee has occurred as a consequence of employment due to the mechanism of injury described above.
In relation to question six, Dr Tomlinson further said:
I consider the arthritis to the left knee to have been caused by the employment. There is no pre-existing medical condition.
The doctor was then asked for a further report, after a further letter of instruction, and that report was dated 23 April 2021. In answer to a specific question asked by the respondent, in relation to her previous report, which asked:
In your response to question three, you considered that there has likely been an injury to Mr Bomford 's left knee at some stage.
And I read into the transcript the rest of the question. The answer given by Dr Tomlinson was:
With respect to question three, I make the following comments. The MRI scan performed of Mr Bomford 's left knee, 10 September 2020, demonstrates a prior injury, with well-defined thickening of the proximal aspect of the anterior cruciate ligament, consistent with an old injury. A flat tear through the inferior body of the medial meniscus is also consistent with injury, rather than having been caused by degenerative change. I consider, therefore, the primary event causing Mr Bomford’s knee arthritis is the injury. I cannot give the time of the injury. I have read the claim form, and note Mr Bomford has made no reference to his left knee. At the time of review I recall he did injure both knees at the time of the injury; just the right one was worse. I can make that comment regarding the validity of his statement. I consider the activities that Mr Bomford has undertaken since this injury have contributed to symptoms from the arthritis in his knee. This I would also note that in cross-examination Dr Wilkinson indicated that he thought it unlikely the left knee injury had been caused by compensating for the right knee. He considered Mr Bomford is suffering an injury, in that he considered the arthritis in his knee has occurred as a consequence of employment due to the mechanism of injury described above.
Then Dr Tomlinson was asked to provide a further report, making several assumptions, one of the assumptions being, as noted by the doctor:
Given that you have asked me to assume that no injury occurred to the left knee in 2011, and there were no substantial problems with the left knee in 2011 to 2019, and that the work-related condition includes only injuries that may have occurred to the left knee in 2011, at the time of the he right knee injury, any overreliance on the left knee by reason of the injury to the right and/or the altered gate as a consequence to the right knee injury, I conclude, the above work contribution did not cause Mr Bomford to develop the disease of arthritis in his left knee.
I note that in the two previous reports, Dr Tomlinson's opinions were in line with that of Dr Wilkinson, and also, to a certain extent, that of Dr Stanley Clarke, who was not called, so I place no reliance on anything in his reports. But her change of mind comes about because she was asked to make specific assumptions. That means to determine what use I can make of this report, I have to determine whether or not an injury occurred in the left knee in 2011.
Now, as can be seen from the summary, apart from the report that I have already referred to of Mr Hutton, which referred to observations made on 28 September 2012, there was no other report or complaint of injury to the left knee prior to that noted by Dr Lickiss on 7 May 2015. It is interesting to note that on that report, the doctor reports "increasing pain to left knee", which suggests that pain had been present for some time.
The Respondent also relies upon inconsistent versions given as to how the incident- as to the mechanics giving rise to how the injury occurred, with one case seeming to imply that he had fallen, bearing in mind the restriction given in the incident report. It mentions no falling, and the Respondent relies upon this inconsistency to impugn the credit. The fact that, as I understand it, it was more than rather than being an attempt at dishonesty but the lack of an accurate memory, bearing in mind the different descriptions he has given.
I have looked through the evidence, and I note that on 11 and 18 November, and again on 9 December 2011, the Respondent refers to twisting his knee, and does not mention falling off the bike. However, Dr Lickiss, in his statement, described that the Applicant certainly was trying to steady his bike; thereafter, and after including his evidence, the Applicant gave a history more in line with his evidence, rather than as outlined in the initial incident report.
On 15 May 2015, Dr Lickiss noted:
The injury occurred on 9 November 2011, late in the morning. He stated that a new delivery system had been delivered which resulted in a large bag slung between the motorbike seat and the handlebar. This made mounting and dismounting more difficult. He stated that he was mounting motorcycling when he accidentally hit the mail bag and the bike has fallen to the right. He thrust out his right leg to save the fall and took the impact on the right knee. He said he was immediately aware of tearing and stretching at the back of the knee and considerable pain. There was no popping or rupturing.
On 5 September 2013, the occupational therapist, Maree Webber, mentioned the fall at work. On 11 March 2016, Dr Porter reported:
On 9 November 2011, Mr Bomford was doing deliveries on a motorcycle. As he was remounting the bike, he accidentally kicked a mailbag, with the bike falling to the right. He tried to save it from falling, and took the impact of the fall on his right knee, with immediate pain in it. Mr Bomford said he tried to continue deliveries. Because of the ongoing right knee pain, he contacted his team leader, who came and helped finish his deliveries.
I note that there seems to be no apparent reasoning or benefit to the Applicant for changing- to changing of his version of events of what is reported in the initial incident report and what is consistently said thereafter. I note that 29 November the description given Dr Wilkinson which we have already referred to, over the course of his evidence. And there is actually no dispute that on 9 November 2011, the Applicant suffered an injury to his right knee whilst attempting to get back on his bike, whilst doing mail deliveries in the Battery Point area. What is in dispute, is the precise mechanism as to how the injury occurred. But there is no advantage to the Applicant as to whether the injury occurred with or without a fall.
In other words, I see no reason for the Applicant to be untruthful about the precise mechanism, but I note aggravation more consistent with his evidence emerged, before there is any suggestion of claiming the relation to his left knee. I do not regard this evidence as impacting on the Applicant's credibility, bearing in mind his evidence seems to be no more unreliable than I would expect from somebody whose injury occurred some 11 years ago. It may be the incident report summarised earlier in this decision conflated the actual incident together with difficulties the Applicant and others have found getting on and off the bike with the new configuration.
Even though if I have found that the Applicant is a witness of the truth, there still remains the issue of the sparsity reporting of the left knee prior to 2019. I do not find it unusual the Applicant was not overly troubled by his left knee until the condition deteriorated from about 2015 because the injury appears to be less serious than the injury to the right knee, accordingly the emphasis would have been to remedy and rectify the injury to the right knee.
The lack of reporting from Dr Lickiss could have been because of inquiry would have been in relations to the reported injury, bearing in mind that Dr Lickiss was not the Applicant's regular GP and was in fact retained by Australia Post. I note the Applicant is on an anti-inflammatory medication which could mask the symptoms of what was a relatively minor injury.
I note particularly the evidence of Dr Tomlinson. In her last report Dr Tomlinson who had been cross-examined, mentioned the question, does the tear cause the arthritis or does the arthritis cause the tear? She said in relation to the left knee symptoms, of this type are generally not particularly major, can cause pain at the time, but no ongoing pain, and are generally not a painful event, but maybe ongoing pain later on.
Also, it was accepted that the anti-inflammatory medication the Applicant was on would have masked the issues, that could have masked the pain. Dr Tomlinson did opine the contrary to what she said in the first two reports. Whereas in the two reports she opined that it was the tear that had caused the arthritis, she took a different position indicating that she would have expected the scans to have shown, rather than a clean-cut tear, a tear more obtuse because of the ongoing arthritis. However, she conceded that she had not seen the scans, and could only rely upon the radiologist's report.
This is a very finely balanced matter, but at the end of the day, I accept the Applicant's evidence, that he noticed pain in left knee after the incident on 9 November 2011.
The crucial matter, one of the most significant matters being the report, the observations made by Mr Hutton on 28 September 2012, which was only a year after the event when the Applicant referred to the pain in the left knee, as reported previously in this decision. If l accept that the Applicant noticed pain in his left knee the rationale for the final report from Dr Tomlinson falls away, and I rely upon her earlier reports, along with the report of Dr Wilkinson to accept the Applicant's case.
Accordingly, I find the Applicant suffered an injury to his left knee on 9 November 2011, and accordingly, it is not necessary to consider the alternative position of whether the injury was caused, or aggravated by compensating for the right knee injury.
Accordingly, I find the Applicant suffered an injury to his left knee in the course of his employment on 9 November 2011. That injury arose out of, and in the course of the applicant's employment, and therefore the injury has resulted incapacity and impairment in his employment and required the commencement of treatment.
Therefore, the decision under review is set aside, and the Respondent is liable, pursuant to section 14 of the Act, for the injuries suffered to the Applicant's left knee on 9 November 2011.

I certify that the preceding 72 (seventy two) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President

.....[sgn]...................................................................
Associate
Dated: 5 May 2023
Date of hearing:   21 – 23 March
Counsel for the Applicant:      Mr Brian Hilliard
Solicitors for the Applicant:     Mr Indi Gunadasa
Counsel for the Respondent: Mr Charlie Clark
Solicitor for the Respondent:   Mr Michael Snell

[2023] AATA 1901

23 March 2023

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Judicial Review

Causation

Procedural Fairness