Coggan and Comcare (Compensation) - [2017] AATA 1905

Coggan and Comcare (Compensation) [2017] AATA 1905 (25 October 2017)
Division:GENERAL DIVISION
File Numbers: 2016/4153
Re:Lee Coggan
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Senior Member J Sosso
Date:25 October 2017
Place:Canberra

The Tribunal affirms the decision under review.
........................................................................
Senior Member J Sosso
CATCHWORDS
COMPENSATION – workplace injury – aggravation of osteoarthritis in left knee – whether the applicant suffered a physical injury – whether the applicant suffered an aggravation of an injury during the course of employment – whether employment contributed to a significant degree to the aggravation of an ailment – Comcare not liable to pay compensation – decision under review affirmed.
LEGISLATION
Safety Rehabilitation and Compensation Act (Cth) ss 5A, 5B, 14.
CASES
Australian Postal Corporation v Bessey [2001] FCA 266; 32 AAR 508
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468
REASONS FOR DECISION
Senior Member J Sosso
25 October 2017
INTRODUCTION
Application for review

Mr Lee Coggan (the Applicant) lodged an application for review dated 9 August 2016 in relation to a decision of Comcare (the Respondent) which denied liability to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of “aggravation of osteoarthritis – localised – knee (left)” – Exhibit 1 T1 pp. 1-2.
The Applicant provided the following reasons for his application – Exhibit 1 T1 p. 2:
“1. The decision is wrong in fact and law.
2. The decision does not adequately or at all take into account the totality of the evidence.”
The Applicant was born in 1963 and commenced employment with ACTION as a bus driver on or about 1986. During the course of his employment, the Applicant sustained an injury to his right knee which required surgery and resulted in a Comcare claim – Exhibit 2 paras 2-3.
The Applicant lodged a claim for workers’ compensation dated 22 March 2016 in respect of a claimed injury to his left knee. The Applicant claimed that he twisted his left knee while driving a bus at approximately 2:15pm on 9 February 2016 – Exhibit 1 T3 p. 6.
The Applicant provided a written statement which outlines his version of what transpired on 9 February 2016 and subsequently. The relevant parts are set out below – Exhibit 2 paras 4-6:
“4. On or about 9 February 2016 I experienced left knee pain upon getting out of the bus I was required to drive by ACTION. I believe that this occurred around
2:15 pm or 2:30 pm on 9 February 2016 towards the end of my shift. I had noticed left knee discomfort for a period of approximately two hours while driving the bus prior to 2:15 or 2:30 pm. I do not recall feeling any pain or discomfort in my left knee prior to 9 February 2016.
5. On or about 13 February 2016, I fell at home when my left knee gave way. I was not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Coggan and Comcare (Compensation) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] AATA 1905
Decision Date: 25 October 2017

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr Coggan, against a decision by Comcare to disallow his workers' compensation claim for an injury to his left knee. The applicant alleged that he sustained an injury to his left knee on 9 February 2016 while driving a bus for his employer, and that this injury was an aggravation of a pre-existing condition. Comcare's delegate had disallowed the claim, finding that while the applicant had suffered an aggravation of degenerative arthritis in his left knee, this condition was more likely caused by a fall at home and the natural progression of arthritis, rather than arising out of or in the course of his employment.

The primary legal issues before the court were whether the applicant had suffered a physical injury, whether that injury was an aggravation of an ailment, and whether his employment contributed to a significant degree to that aggravation. The court was required to consider the evidence presented, including the applicant's own testimony regarding the onset of pain, the medical opinions of various doctors, and the circumstances surrounding the alleged incident at work and a subsequent fall at home.

In reaching its decision, the court considered the conflicting medical opinions. Dr Le Leu opined that the subject accident caused a medial meniscal tear, which was the principal cause of the applicant's injury, but that there was mild-to-moderate background degeneration resulting from a previous right knee injury. Conversely, Dr Stokes concluded that the applicant's condition was not related to his employment, suggesting the flare-up was more likely due to a fall at home and the natural progression of degenerative arthritis, with the meniscus tear being long-standing and chronic. The court ultimately preferred the opinion of Dr Stokes, finding that while an aggravation of degenerative arthritis had occurred, it was not satisfied on the balance of probabilities that this condition arose out of or in the course of the applicant's employment.

The court affirmed the decision of Comcare, finding that the applicant had not established that his employment contributed to a significant degree to the aggravation of his left knee condition. Therefore, Comcare was not liable to pay compensation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

This statement is consistent with an email Ms Mills sent to Ms Pamela Best on 12 April 2016. This email contains a chronology of meetings held and messages exchanged between Ms Mills and the Applicant in the 16 February 2016 to 11 April 2016 period. So far as the 16 February 2016 meeting, Ms Mills gave, inter alia, the following account – Exhibit 1 T7.6 p. 38:“Came to see me said he is in real pain with his left knee. He was really struggling to walk in a lot of pain. He said this has been happening since the end of last week. Rested his knee over the weekend sat, sun was better, (RICE) has been taking pain relief. He said he did fall over on Saturday when hanging out the washing and landed on the clothes basket. He said it was lucky some friends turned up to assist him…I offered assistance in getting him to his car and he said he would be ok. He had a knee spasm and nearly fell in starters. Union boys came and assisted and drove him home at 11.20am.”The Applicant’s evidence The Applicant gave oral evidence and was cross-examined. The Applicant testified that he injured his right knee in 2003 when he picked up a cricket ball and in March 2003 underwent an arthroscopy. Subsequently, in 2009 he injured his right knee when he was getting out of his bus seat and in October 2010 he had knee replacement surgery – Exhibit 4 p. 3. The Applicant testified that prior to 2016 he had no pain or instability with his left knee. Further, in the 2013 – 2016 period his right knee was “good” and he was able to walk reasonably well, though he could not walk long distances, had problems walking up hills and sitting in the same place for a long time. During cross-examination, the Applicant explained that the buses he drove had two peddles, and he operated the brake and accelerator pedals with his right foot. The Applicant testified that on 9 February 2016 while driving a bus he went to stretch his left leg and got “an awful big pain”. He was sitting at the time and experienced severe pain in his left knee either side of the kneecap. Despite the pain he kept driving and did not pull over. The incident occurred at approximately 2:00pm and he continued driving for another 45 minutes until he reached the Depot. The Applicant’s left knee was very painful from this time forward. After arriving at the Depot, the Applicant drove home without speaking to anyone about the incident. The Applicant treated the pain in his left knee with hot and cold packs. The next morning (10 February 2016) the Applicant had a shower, but was not in pain at that time (4:30am). After driving to work he commenced duties at approximately 5:40am and his left knee began to ache when he started walking. The Applicant applied a frozen water bottle to relieve the pain which increased until it became nearly unbearable. Again, at the conclusion of the shift at 2:30pm, the Applicant told no one about the pain in his left knee. After driving himself home he self-medicated by the application of hot and cold packs, Voltaren cream and the ingestion of pain killing medication.

Decision

Reasons for decision

Finally, Dr Le Leu was asked whether the Applicant’s left knee injury substantially arose from the 9 February 2016 incident and/or substantially arose from overuse or compensation of the left knee arising from the previous right knee injury. He answered as follows – p. 8:“Firstly, there is no reason to believe that the knees were symmetrically degenerating before the first accident. The first injury in 2009 was specifically twisting of the right knee.It is more probable than not that the mild to moderate degeneration observed on medical imaging results from compensation by the left knee for the right knee. However, he was asymptomatic in the left knee before the subject accident.The subject accident caused the medial meniscal tear from which he is now recovering. Hence, this was the principal cause of his injury, but there was mild-to-moderate background degeneration resulting from his previous work-related right knee injury.”Workers’ Compensation Claim – Initial Decision 9 May 2016 and reviewable decision 1 July 2016 On 9 May 2016 Ms Lisa Watt, delegate of the Respondent, disallowed the Applicant’s workers’ compensation claim. The following reasons were given – Exhibit 1 T9 pp. 71-72:“In assessing the causation of your claimed condition, we have considered the evidence provided and have had particular regard to the following:·In your claim form you state you sustained your injury to your left knee when you twisted it.·You have provided an incident report, dated 21 March 2016, that was completed by your colleague Mhairi Mills on your behalf. It states the incident occurred when you got out of the bus at the end of your shift and you experienced pain in your left knee. It also indicates you attribute this to the position you were sitting in on the bus.·A chronology of events which was provided by your employer states you advised your date of injury was 9 February 2016 and you experienced pain in your left knee while exiting the bus at the end of your rostered shift. However, there is no indication you reported this to anyone at the time. The chronology states you fell over at home on Saturday 13 February 2016 while hanging out the washing and you landed on the clothes basket. It states you met Ms Mills during your lunch break on 16 February 2016 when you advised you were in a lot of pain and struggling to walk. You advised you fell at home on Saturday while hanging out washing. It is you noted you first sought medical treatment in relation to the claimed condition on 17 February 2016.·The medical certificates provided by Dr Rao, state the cause of your ‘left knee injury probable meniscal tear’ is due to ’twisting while driving the bus at work’.·The progress report from Dr Creer, dated 24 March 2016, states, ‘The injury occurred to the left knee when he was at work on 6 February 2016, when he stood up from sitting in the bus he was driving and he got acute pain and developed a small effusion’.·The report from Dr Stokes, dated 9 May 2016, states you have had a flare in symptoms of degenerative arthritis in your left knee. In his opinion, ‘that flare was probably caused by an impact on [your] left knee rather than any twisting manoeuvre when getting up from [your] driver’s seat in the bus’. Dr Stokes states that the fall and landing on your clothes basket is more likely to explain the bone bruised pattern seen on the MRI scan of your medial femoral condyle. In relation to the meniscus tear, Dr Stokes states that this has occurred in a degenerate meniscus and is long standing and more chronic in nature previous to 9 February 2016.·Dr Stokes states, ‘In my opinion, the condition suffered by Mr Coggan is not related to employment as a Bus Driver’.From this assessment, I am satisfied you have suffered an aggravation of the degenerative arthritis to your left knee. However, I am not satisfied on the balance of probabilities, this condition arose out of, or in the course of, your employment. I have preferred the medical opinion of Dr Stokes and which supports your current condition it is more than likely a flare up due to the fall on your washing basket at home and the natural progression of degenerative arthritis.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.