Chick and Comcare (Compensation) - [2021] AATA 37

Chick and Comcare (Compensation) [2021] AATA 37 (22 January 2021)
Division:GENERAL DIVISION
File Number(s): 2019/5725
Re:Dana Chick
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Ms L Rieper, Member
Date:22 January 2021
Place:Hobart

The Tribunal affirms the decision under review.
..................................[sgd]......................................
Ms L Rieper, Member
COMPENSATION – whether the Applicant suffered an injury or aggravation of disease – ceased liability for medical expenses and incapacity for work – whether Comcare is liable to pay compensation – Applicant found to suffer injuries – injuries found to be resolved prior to ceased liability – decision under review affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Comcare v Nichols [1999] FCA 209
Szajna v Australian Postal Corporation [2014] FCA 1136

REASONS FOR DECISION
Ms L Rieper, Member
22 January 2021
BACKGROUND

Until recently, Mrs Chick was employed by the Department of Immigration and Border Force on a full-time basis as an Australian Border Force officer. Her role prior to her injury required her to carry a weapon and to undertake an annual basic functional fitness assessment.
An incident report records that on 27 September 2017 Mrs Chick was undertaking a use of force recertification when her kneecap slipped across and back when she was kneeling in a defensive tactic. Ice was applied, her knee was taped, and it was continually iced that evening and retaped in the morning.
Mrs Chick submitted a claim for compensation on 7 December 2017. In the claim form, she noted that the knee had been recovering well with physiotherapy, but it had it flared up again a couple of weeks earlier after climbing a particularly challenging gangway and internal stairs on a vessel in port.
Mrs Chick’s claim for compensation was initially denied, but on 30 April 2019 Comcare accepted liability for both an injury to the patella-femoral joint of her right knee sustained on 26 September 2017 and for an aggravation of that injury suffered as the result of walking up a gangway in November 2017.
However, on 8 May 2019 all liability for medical expenses and incapacity payments under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the “SRC Act”) was ceased with effect from 29 January 2018.
That decision was reconsidered and on 2 September 2019 Comcare varied it and ceased liability under sections 16 and 19 of the SRC Act from 7 February 2018 rather than 29 January 2018.
It is that decision which Mrs Chick has asked the Tribunal to review.
ISSUES
Comcare is the workers’ compensation insurer for Commonwealth employees such as Mrs Chick. It is liable to pay compensation to injured workers in circumstances prescribed by the SRC Act.
The issue for the Tribunal to determine is whether Comcare has any liability for medical expenses and/or incapacity payments beyond 7 February 2018.
LEGISLATION
Section 14 of the SRC Act provides:
1Subject 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.
2Compensation is not payable in respect of an injury that is intentionally self-inflicted.
3Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
Subsection 4(9) of the SRC Act provides:
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.
There is dispute between the parties as to whether Mrs Chick has suffered an injury or an aggravation of a disease. An injury is defined in section 5A of the SRC Act:
1In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
A disease is defined in section 5B of the SRC Act:
1In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
That was contributed to, to a significant degree, by the employee’s employment by the Commonwealth...
2In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth... the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment’
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
3In this Act:
significant degree means a degree that is substantially more than material.
Subsection 16(1) of the SRC Act says:
1Where 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 the medical treatment.
Note: Compensation is not payable under this subsection in relation to certain claims (see section 119A).
Section 19 of the SRC Act provides that Comcare is liable to pay compensation if an employee is incapacitated for work and provides a formula for the calculation of the payments.
EVIDENCE
Mrs Chick
Mrs Chick signed a statement on 11 September 2020 which was tendered in the proceedings.[1] She said that on 27 September 2017 she was participating in a Use of Force defensive tactics recertification. She was conducting a handcuffing technique on another person who was lying on the ground on their stomach with their hands behind their back. Mrs Chick was kneeling on her right knee, with her left knee bent at a 90-degree angle to support herself. She said the floor underneath her knee consisted of a thin, padded, mat-type covering. Whilst leaning forward and with her weight going through her right knee, she felt what she believed to be her kneecap popping across and sudden severe pain. She said that it felt like her kneecap moved back to its original position after approximately 30 seconds. In her evidence to the Tribunal, she added that she rolled onto her back and gave her knee a “whack” prior to the kneecap moving back.
[1] Exhibit A3.
Mrs Chick went on in her statement to say that she was assisted from the mat by a trainer and was seated with her leg elevated and an ice pack applied for approximately 20 minutes. She took anti-inflammatories and repeated the ice application. She had her knee taped and strapped and returned to the floor mat area with limited movement. That evening she continued applying ice and took more anti-inflammatories.
In subsequent weeks, Mrs Chick undertook three sessions of physiotherapy. In her statement she said that her right knee continued to improve, and she was able to return to her normal duties. In oral evidence she said that her knee was not 100% but she was still able to work with it at that stage.
On a date in November which Mrs Chick does not recall, she was boarding a vessel via a steep gangway. In her statement she said that when she reached the top of the gangway, she felt a sharp pain on the inside of her right knee. She continued with her duties and climbed stairs inside the superstructure of the vessel with difficulty and pain. She said that when she returned to her workplace, she advised her supervisor.
Notes from Newstead Medical Centre
Clinical notes from the Newstead Medical Centre are in evidence before the Tribunal. They date back to 1999. They show that Mrs Chick had complained of knee pain on several occasions in the years before her claim for compensation. A record of a consultation on 3 August 2015[2] includes a note that Mrs Chick had had lumbar back pain for more than two to three years and had intermittent swelling and/or pain in bilateral knee and shoulder joints.
[2] Ibid, p 98.
The Respondent submitted that Mrs Chick was referred to Dr Stewart Graham, rheumatologist, in December 2015 due to low back pain and stiffness and intermittent bilateral knee and shoulder pain and swelling. The Tribunal was unable to confirm this for itself from the evidence. There is a reference to a referral recorded in notes from an appointment on 8 December 2015[3] but the reasons for the referral are not evident.
[3] T21, T documents at p 95.
A record of a consultation on 1 February 2017 includes a note that Mrs Chick had a “sore back, elbows, struggles to get out of chair” and “knees sore”.[4]
[4] Ibid, p 89.
On 16 November 2017[5] Mrs Chick attended on Dr Parkes at Newstead Medical Centre who recorded “fibromyalgia rerally [sic] troublesome”, “everything aches”, and “sleeps poorly”. There was no reference to a knee injury. The doctor recorded that she had prescribed Lyrica as Mrs Chick had described some neuralgic pain and it would help with sleep. If it did not assist, she planned to try Cymbalta.
[5] T21, T documents, pp 81-118, 87.
The next consultation recorded in the clinical notes was also with Dr Parkes and took place on 1 December 2017. Dr Parkes recorded that Mrs Chick had “right knee pain began 2 months ago when kneeling”, “settled but now recurred (is this workers comp??)”, “knee locks and gives way”. Dr Parkes recorded that she was referring Mrs Chick to Dr Butorac, an orthopaedic surgeon. She also noted “clinically medial cart tear plus poss lig tear”.[6]
[6] Ibid.
On 5 December 2017 Mrs Chick saw Dr Bavin at the Newstead Medical Centre. She took a history of Mrs Chick kneeling at a training course when it felt like her patella popped/moved across and then moved back into place. It was iced and strapped and swelling started over the next 24 hours. It was sore around the patella. Mrs Chick had physiotherapy and the physiotherapist thought it was a meniscal tear. It improved to “maybe 90%”. Dr Bavin recorded that it had flared again a couple of weeks ago whilst walking up a number of stairs at work and had been ongoing since then. It seemed to be the same kind of pain but more on the medial aspect and locking and giving way. She noted that clinically Dr Parkes thought it seemed like a medial cartilage tear and had referred her to Dr Butorac.
Claim for compensation
On 7 December 2017 Mrs Chick submitted her claim for compensation.[7] In the claim form she advised that she was on medication for fibromyalgia. She said that she had not ever experienced a similar symptom, injury or illness.
[7] T5, T documents, pp 14-27.
Dr Bavin
Comcare initially asked Dr Bavin for her opinion in respect of the knee injury.[8] On 10 January 2018[9] she reported to Comcare that the provisional diagnosis was a medial cartilage tear of the right knee. She opined that work was the only contributing factor and answered no to the question “Is the condition an aggravation of a pre-existing condition?”. Mrs Chick had been referred to an orthopaedic surgeon, Dr Butorac, for further management.
[8] T6, T documents, pp 28-29.
[9] T7, T documents, pp 31-32.
Dr Butorac
Dr Butorac reported to Comcare on 19 February 2018.[10] He had recently seen Mrs Chick and initially thought her signs and symptoms were suggestive of medial meniscal pathology. Mrs Chick had reported no prior problems with her right knee. He had requested an MRI scan and reported that it showed both menisci to be intact but there was an osteochondral lesion on the medial femoral condyle as well as some chondromalacia affecting the articular surface of the patella. He thought this was consistent with the initial history of patellofemoral subluxation or dislocation. He thought that the actions she was performing on the day of the use of force recertification course resulted in the patella at least subluxing, if not dislocating briefly and it was most likely that the “flare up” a month later when negotiating a steep gangway aggravated the earlier chondral injury. She was restricted in her capacity to perform activities and movements such as kneeling and squatting, but he anticipated that she would be able to return to her normal duties at some point and it might be expedited by arthroscopic surgery.
[10] T14, T documents, pp 60-61.
Dr Butorac reported to Dr Parkes on 19 April 2018[11] that he had carried out arthroscopic surgery on that day. He noted that whilst the MRI scan had suggested a discrete lesion on the medial femoral condyle, there was some generalised chondromalacia with several large flaps. There were also multiple small flakes of articular cartilage floating about within the joint, presumably arising from the degenerating medial femoral condyle. Both menisci were intact. There was some mild chondromalacia affecting the patellar articular surface, but the trochlea was normal. The ACL was intact. Dr Butorac debrided the medial femoral condyle and removed most of the loose flakes of articular cartilage from the joint. He hoped this would provide relief from recent symptoms, but Mrs Chick had early medial compartment osteoarthritis which was likely to progress in years to come.
[11] T18, T documents p 78.
In a further report to Dr Parkes dated 30 June 2018,[12] Dr Butorac advised that he had seen Mrs Chick again and in the last week or two her knee had become a lot more troublesome. She had described posteromedial pain which was particularly noticeable when she attempted to stand or walk, and she had resorted to using a walking stick. He was at a loss to explain the recent flare up of symptoms but thought there was a possibility that she had developed osteonecrosis of the femoral condyle or some other new pathology within her knee. He had referred her for another MRI scan.
[12] T19, T documents p 79.
Dr Mulford
On 24 July 2018 Dr Mulford, orthopaedic surgeon, provided a report to Dr Parkes,[13] apparently after having been asked to provide a second opinion on Mrs Chick’s diagnosis. He took a history of fibromyalgia but noted no other relevant history. He noted that an MRI scan, which had been conducted since the arthroscopic surgery, showed chondral changes in the medial femoral condyle and there was no obvious cause for her ongoing severe pain. He recommended continued nonoperative treatment.
[13] T22, T documents pp 119-120.
Dr Mulford reported again to Dr Parkes on 4 September 2018.[14] He had seen Mrs Chick following her corticosteroid injection and a trial of an unloaded brace. She had been using the brace for three to four weeks and it was giving significant relief with her medial knee pain.
[14] T24, T documents p 136.
On 16 October 2018, Dr Mulford reported to Dr Parkes[15] that Mrs Chick continued to struggle with medial-sided knee pain. She had a good range of movement, but her pain was at the joint line region. She was unable to return to normal duties. Dr Mulford wanted a bone scan and further MRI scan before considering an osteotomy.
[15] T25, T documents p137.
Mrs Chick gave evidence that she is still consulting Dr Mulford and has a further appointment coming up. She had had a Synvisc injection in late 2018 or early 2019. It had made a substantial difference to her symptoms after about three to four weeks, but it started wearing off after about 12 months. She said she may need another Synvisc injection. She may also need a knee replacement at some point.
Dr Doig
Comcare also referred Mrs Chick to Dr Doig for review. Dr Doig specialises in general orthopaedics and trauma. He reported to Comcare on 15 February 2018[16] that Mrs Chick had advised that she had on-going anterior pain with a crunching sensation behind her kneecap. He noted that Mrs Chick was kneeling at the time of the initial incident and she described a subluxing type mechanism through the patella-femoral articulation and that the pathology had been confirmed on the MRI scan. He opined that the second incident was not a new condition but simply a symptomatic exacerbation of the patella-femoral joint arthritic change, noting that walking up and down stairs predisposes towards a lot of stress through the patella-femoral articulation and Mrs Chick was prone to further injury due to a very poor, weak quadriceps muscle. In his view, the main significant contributing factor to Mrs Chick’s current symptoms was the pre-existing, patella-femoral joint damage at the right knee joint. Dr Doig noted that Mrs Chick had denied having any previous problems with or injuries to the right knee.
[16] T13, T documents pp 55-59.
Dr Doig provided a supplementary report to Comcare dated 27 November 2018,[17] although he had not seen Mrs Chick again. Comcare had provided him with additional medical records including the report of the arthroscopic surgery. His opinion was that Mrs Chick suffered from pre-existing articular cartilage damage at the medial femoral condyle and patella-femoral articulation at the right knee joint, on a background of multi-regional joint pain and fibromyalgia. In response to Comcare asking whether he thought Mrs Chick continued to suffer from the injury suffered in September 2017, he noted that Mrs Chick had described a single instability episode at the patella-femoral joint, which may have been related to the pre-existing articular cartilage wear, which resulted in a symptomatic exacerbation of the underlying condition. He was not aware of any further episodes of patella-femoral joint instability, therefore he opined that the soft tissue injury was unlikely to have been significant. In his opinion Mrs Chick was now suffering from a chronic pain condition following the arthroscopy on a background of fibromyalgia and depression. He did not think that the incident in September 2017 caused any exacerbation of the medial compartment osteoarthritis.
[17] T27, T documents, pp 139-143
Dr Sharman
Mrs Chick’s lawyers referred her to Dr Sharman, an occupational physician, who provided a report dated 27 August 2018.[18] He took a history of no specific injury to her right knee prior to the incident in September 2017 but that Mrs Chick had had various aches and pains affecting her joints consistent with her age. He noted that on examination he was able to obtain a full range of extension and flexion of the right knee although Mrs Chick had reported discomfort at the limits of flexion. He said that there was localised medial joint line tenderness and some irritability to patellar pressure but no obvious swelling. He opined that the most likely scenario was that Mrs Chick had sustained a patellar dislocation in association with trauma involving the medial compartment on a background of probably pre-existing degenerative change. Although the patellofemoral component of her injury had settled, she had been left with progressive degenerative change affecting the medial compartment. He noted that it would be difficult to accept that Mrs Chick would have developed a symptomatic knee causing the extent of her current disability without the effects of the original inciting incident in September 2017. He said further that he accepted Mrs Chick probably had some underlying degenerative change affecting the medial compartment of her knee but his review of the medical records indicated that any pre-existing degeneration was asymptomatic and it was the incident in September 2017 that caused an injury that rendered her patellofemoral joint symptomatic and caused an exacerbation of pre-existing asymptomatic medial compartment change to cause a symptomatic knee condition.
[18] T23, T documents, pp 121-135.

Dr Sharman provided a further report dated 26 March 2020[19] having reviewed Mrs Chick on a second occasion. Dr Sharman stated that he disagreed with Dr Doig’s opinion that Mrs Chick’s ongoing symptoms relate to a pre-existing condition. He said that Mrs Chick had reported to him that she now only experienced knee symptoms if she did too much standing or walking. She could not walk at a fast pace or run although she could manage walking several kilometres at a slow pace. She also reported suffering increased symptoms if she stood in one position for too long, for example being on duty in a terminal when cruise vessels come into port. Mrs Chick reported being able to manage other aspects of her job and most household tasks other than vacuuming. She reported continuing issues with stairs, particularly descending. Dr Sharman reported that Mrs Chick’s overall physical status had improved to some extent and did not alter his previous diagnosis. He said that updated imaging was not particularly helpful but was consistent with the current clinical picture of a relatively asymptomatic knee except in association with activities that load the medial compartment. He disagreed with Dr Doig’s opinion that an injury to the medial compartment is unlikely in an incident where the patient is kneeling. In his view the continuation of symptoms, perhaps contributed to by the arthroscopic assessment, had led to the development of the current situation. He agreed with Dr Doig that the arthroscopy might have had the unintended consequence of exacerbating osteoarthritic change. He went on to acknowledge that there is a fine line between symptomatic exacerbation and acceleration of degeneration and said that, in his view, history suggested that the work-related injuries had accelerated pre-existing arthritis.
[19] Exhibit A2.
Dr Stanley-Clarke
Comcare also obtained a report from Dr Stanley-Clarke, orthopaedic surgeon, dated 29 November 2018[20] after he examined Mrs Chick at Comcare’s request. He reported that Mrs Chick had advised that she had been completely asymptomatic and had no prior knee injuries either as an adolescent or an adult or ever sought medical attention for either knee. He reported that his examination of her patellofemoral joint was normal in that there was no patellar apprehension, it was stable, and the procedure was not painful. His view was that if she had any injury to the patellofemoral joint it had resolved. He opined that Mrs Chick’s history and progress to date was consistent with two diagnoses. He said that in September 2017 she sustained either a subluxation or dislocation of the right patella. The symptoms related to that had resolved and he said that was confirmed by the arthroscopy. The second diagnosis was early medial compartmental osteoarthritis of the right knee, exacerbated by the incident in September 2017 and further exacerbated in November 2017. The exacerbations had now ceased, and her ongoing symptoms were due to the pre-existing early medial compartmental osteoarthritis of the right knee. He described arthroscopic evaluation as the “gold standard” and noted that Dr Butorac had reported generalised chondromalacia affecting the medial joint compartment which would have pre-existed September 2017.
CONSIDERATION
[20] T28, T documents pp 144-154.
Onus of proof
Both parties addressed the question of the onus of proof in written submissions. It is well settled that there is no onus or burden of proof in compensation cases in this Tribunal. Rather, the Tribunal must satisfy itself of the relevant facts.[21] In a matter such as this, where liability for medical expenses and incapacity for work was accepted but has now ceased, the Tribunal must satisfy itself as to whether or not the evidence supports such a finding.
[21] See for example: Comcare v Nichols [1999] FCA 209 at [22] and [23].
Injury or disease
Mrs Chick contends that she suffered an injury simpliciter, the effects of which continue. Comcare disagrees. A useful summary of what must be considered in such a case was set out by Rangiah J in Szajna v Australian Postal Corporation [2014] FCA 1136 at [76]:
What the cases establish is that:
(a) In order to decide whether an employee has sustained an “injury” within the meaning of that word, consideration must be given to the precise evidence on a case by case basis.
(b) If the evidence establishes something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify as such an “injury”.
(c) It is necessary to consider whether the propounded “injury” is distinct from the underlying pathology that constitutes a “disease” that directly or indirectly cause the sudden change to occur.
(d) The question of whether the physiological change or disturbance is the inevitable consequence of the progress of the disease may be relevant in deciding whether there is an “injury”, but it is not itself necessarily determinative.
The Tribunal is satisfied that Mrs Chick is suffering from an underlying disease in the form of medial compartment osteoarthritis. That is accepted by Dr Sharman, Dr Doig and Dr Stanley-Clarke. Whilst it was initially thought that Mrs Chick had suffered a meniscal tear, that was disproved when Dr Butorac carried out the arthroscopy.
On the question of injury, Mrs Chick points to Dr Sharman’s opinion, including his written response to Dr Stanley-Clarke’s report:[22]
While I would agree with Mr Stanley-Clarke that the injury was low impact and low energy, and that there is limited evidence of any significant structural change within the knee, that does not exclude the possibility of ongoing pain symptoms caused by triggering of accelerated degenerative change and the development of symptoms. While I also agree that her symptoms are probably related to degenerative pathology in her knee, I would accept that the work-related injuries have been significant and important factors rendering her asymptomatic arthritis symptomatic i.e. trauma can contribute to progressive degenerative change.
[22] Exhibit A2.
Comcare points to Dr Doig’s opinion to the effect that a torsion mechanism was needed to result in an injury to the medial compartment and neither workplace incident involved such a mechanism. In written submissions Comcare noted that Dr Doig had stated that it was unlikely the workplace incident in September 2017 caused a physiological change to the degeneration in the medial compartment and there was no damage to the meniscus.
Comcare has raised several criticisms of Dr Sharman and submitted that he should not be accepted as an expert in the area of orthopaedics or causation with respect to knee injuries. The Tribunal does not find it necessary to decide that. It does not accept the opinion of Dr Sharman with regards to the question of injury because it is speculative. Dr Sharman accepted that there was limited evidence of structural change within the knee but went on to say that it was “possible” degenerative change had been accelerated. That does not rise to the level of evidence of a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. Comcare submits that Dr Sharman’s opinion was reliant on a mechanism of injury which was not part of the history, that is, a twisting motion. The Tribunal accepts that submission; there is no evidence of Mrs Chick suffering a twisting injury.
Dr Doig’s opinion in respect of the first incident is that “…Ms Chick sustained an aggravation and symptomatic exacerbation of pre-existing, articular cartilage damage at the patello-femoral joint”.[23] His opinion in respect of the second incident is that it “…is not a new condition but is simply a symptomatic exacerbation of the patello-femoral joint arthritic change. Walking up and down stairs predisposes towards a lot of stress through the patello-femoral articulation and Ms Chick would be prone to further injury due to her very poor, weak quadriceps muscle”.[24] In his second report of 27 November 2018 he opined that “Based on the current medical documentation, it would appear that Ms Chick is now suffering from a chronic pain condition following her arthroscopy on a background of fibromyalgia and depression”.[25] Whilst Dr Doig was cross-examined extensively, his opinion did not change. In respect of whether the arthroscopy might be the cause of Mrs Chick’s ongoing symptoms, he acknowledged that he had been advised not to perform arthroscopic debridement on arthritic knees and said that it was “a possibility” that the surgery could have led to a rapid progression of degeneration in the knee joint.
[23] T17, T Documents pp 55-59 at p 57.
[24] Ibid at p 58.
[25] T27, T Documents pp 139-143 at p 141.
Dr Stanley-Clarke provided two diagnoses:
“1. At point of injury on 27 September 2017, she sustained either a subluxation or dislocation of her right patella. Symptoms related to the specific aspect of her knee have now resolved and indeed on clinical examination I could find no abnormality of this joint. This is also confirmed at arthroscopy by Dr Butorac on 19 April 2018. I would therefore state that she has fully recovered from this specific event.
2. Early medial compartmental osteoarthritis of the right knee, exacerbated by the incident on 27 September 2017 and further exacerbated in November 2017. These exacerbations have now ceased and her ongoing symptoms are due to the pre−existing early medial compartmental osteoarthritis of the right knee.”[26]
[26] T28, T Documents pp 144-154 at p 149.
Dr Stanley-Clarke also gave oral evidence. His evidence was that the incident of September 2017 caused a physiological change, because an inflammatory fluid would have been produced, but that it had resolved. He described the loading of the knee as “…an initiating event only, which is then replaced by the disease process ongoing, giving rise to the physiological change. So, in terms of the initial loading effect, that would only have a short-term effect”.[27] His evidence was that the second incident would have also caused a time limited exacerbation.
[27] Transcript, 17 September 2020 at p 111 [14-16].
Dr Stanley-Clarke had also viewed a number of MRIs and gave evidence that he could not see any evidence of degeneration between the MRI taken before the arthroscopy and one taken after the arthroscopy but he could see “very definite deterioration, especially in the medial joint compartment”[28] on an MRI taken on 12 August 2020.
[28] Ibid at p 116 [16].
The Tribunal is satisfied that Mrs Chick suffered injuries in the first incident of 27 September 2017 and the second incident in November 2017. According to Dr Stanley-Clarke there was a physiological change in the first incident in the form of the production of inflammatory fluid, but it was short-lived. Whilst he did not go into the same level of detail regarding the second incident, he was satisfied that it had resolved when he saw her in November 2018.
Have Mrs Chick’s compensable injuries resolved?
The Tribunal is satisfied that the injury resulting from the first incident had resolved well before Comcare ceased liability on 7 February 2018. The Newstead Medical Centre notes suggest that it had largely resolved prior to the second incident occurring, although the Tribunal acknowledges that Dr Stanley-Clarke opined that it was unlikely that Mrs Chick had recovered by November 2017.
Dr Stanley-Clarke’s opinion is that the injury resulting from the second incident would have resolved within six weeks. The Tribunal accepts his opinion on that issue. Whilst Mrs Chick does not recall the precise date of the second incident, it appears not to have occurred prior to 16 November 2017 because it is not noted in Newstead Medical Centre’s notes from that day. Mrs Chick did report it during her consultation on 1 December 2017. Even if had occurred immediately before the 1 December 2017 consultation, six weeks would have expired well before Comcare ceased liability.
Having found that both compensable injuries had resolved prior to 7 February 2018, it follows that the Tribunal must affirm the reviewable decision.
DECISION
The decision under review is affirmed.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of L Rieper, Member.

.......................[sgd]..............................
Associate
Dated: 22 January 2021

Dates of hearing: 16 and 17 September 2020

Solicitor for the Applicant:

Counsel for the Applicant:

Slater and Gordon

Mr B Hilliard

Solicitor for the Respondent:

Counsel for the Respondent

Australian Government Solicitor

Mr J Wallace