Dimoff and Miclyn Express Offshore (Australia) Pty Ltd (Compensation) - [2016] AATA 269

Dimoff and Miclyn Express Offshore (Australia) Pty Ltd (Compensation) [2016] AATA 269 (29 April 2016)

Division

GENERAL DIVISION

File Number

2015/0363

Re

John Dimoff

APPLICANT

And

Miclyn Express Offshore (Australia) Pty Ltd

RESPONDENT

DECISION

Tribunal Deputy President Dr Christopher Kendall

Date 29 April 2016

Place Perth
The decision under review is set aside and, in substitution therefor, it is decided as follows:
·Liability exists as a result of an injury sustained by the Applicant to the right knee, involving a posterior horn tear of the medial meniscus, knee joint effusion, injury to the medial patellofemoral joint and possible sprain of the medial collateral ligament and medial patellofemoral ligament.
·For the period 17 July 2014 (the date of injury) to the present date, compensation is payable to the Applicant for incapacity for work as a result of the injury in accordance with section 31 of the Seafarers Compensation and Rehabilitation and Compensation Act 1992 (Cth).
·For the period 17 July 2014 to the present date, compensation is payable to the Applicant for the cost of medical treatment for the injury sustained by the Applicant on 17 July 2014, in accordance with section 28 of the Seafarers Compensation and Rehabilitation and Compensation Act 1992.
·The Respondent is to arrange for assessment of the Applicant’s capability under section 49 of the Seafarers Compensation and Rehabilitation and Compensation Act 1992 and make arrangements under section 50 for provision of a rehabilitation program.

The Tribunal orders, pursuant to s 92(1) of the Seafarers Compensation and Rehabilitation and Compensation Act 1992, that the costs of these proceedings incurred by the Applicant be paid by the Respondent in accordance with section 6.9 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
............[sgd].................................................
Deputy President Dr Christopher Kendall
CATCHWORDS
COMPENSATION – whether workplace injury to right knee is an “injury” or a “disease” for the purposes of the Seafarers Rehabilitation and Compensation Act 1992 – extent of incapacity post workplace injury – decision under review set aside
LEGISLATION
Seafarers Rehabilitation and Compensation Act 1992 (Cth) – sections 3, 10(7), 26, 28, 50
CASES
Bui and Australian Postal Corporation (Compensation) [2016] AATA 135
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
INTRODUCTION

This matter requires the Tribunal to determine whether John Dimoff is entitled to compensation payments under the Seafarers’ Rehabilitation and Compensation Act 1992 (the “SRC Act”) for an injury to his right knee sustained at work on 17 July 2014.
Mr Dimoff is 54 years of age. He was employed as a Chief Engineer by Samson Express Offshore (“Samson”) on 30 January 2014.
On 18 July 2014, Mr Dimoff presented to Samson’s medical room with right knee pain and swelling. He claimed he was injured at 7:30 pm the previous night when he was climbing into his bunk on board the Pacific Installer (an accommodation vessel) (T6 at 35).
On 6 August 2014, Mr Dimoff lodged a claim for compensation under the SRC Act for “internal right knee damage” sustained whilst tying to climb onto the top-bunk on 17 July 2014 (T12).
On 13 August 2014, Allianz issued a determination denying Mr Dimoff’s claim in respect of his right knee condition (T13). Relevantly, that determination found:
Reason for Determination:
Pursuant to Section 10(7) of the SRCA;
“For the purposes of this Act a disease suffered by an employee, or an aggravation of such a disease, is not taken to be an injury to the employee if the employee has at any time, for purposes connected with his or her employment or proposed employment in the maritime industry, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.”
Allianz notes that you have a history of osteoarthritis and joint disease along with a previous motor bike accident to your right knee. Allianz notes that you wilfully omitted any reference to these pre-existing conditions in your Samson pre-employment medical form.
In particular Allianz draws your attention to your answer of “No” to the following questions
1.Do you have or have had any significant or recurrent problems with the following? Joint pain or arthritis.
2.Have you ever been hospitalised?
3.Have you ever received payments for workers compensation?
Allianz reminds you of your previous claim for arthritis of the left knee which ran from 2004-2009.
Allianz also puts you on notice regarding your apparent previous statements regarding your incapacity and inability to ever return to offshore work, that were previously made on this earlier claim.
By letter dated 12 September 2014 (T15), Mr Dimoff requested a reconsideration of the determination dated 13 August 2014. By deemed reviewable decision pursuant to section 79 of the SRC Act, the determination was affirmed.
On 23 January 2015, Mr Dimoff lodged an Application for Review of Decision in the Administrative Appeals Tribunal (the “Tribunal”).
ISSUES
Before this Tribunal there was considerable disagreement between the legal representatives for the parties in relation to what was and was not in issue in relation to this matter.
In its Statement of Facts, Issues and Contentions dated 12 January 2016, counsel for Mr Dimoff outlined the following issues as being relevant:
1.The Applicant's entitlement to weekly compensation payments pursuant to Section 31 of the Seafarers’ Rehabilitation & Compensation Act 1992;
2.The duration and quantum of any weekly compensation payable to the Applicant;
3.The Applicant's entitlement for medical treatment costs and reimbursement of travel expenses pursuant to Section 28 of the Seafarers’ Rehabilitation & Compensation Act 1992;
4.The Applicant's entitlement to the provision of a rehabilitation program pursuant to Section 50 of the Seafarers’ Rehabilitation & Compensation Act 1992.
In its Statement of Facts, Issues and Contentions dated 29 January 2015, counsel for the Respondent in these proceedings, Miclyn Express Offshore, outlined the following issues as being relevant:
(a) What is the correct diagnosis of the Applicant’s conditions of the right knee?
(b)In respect of each of those conditions, is it an “injury” or “disease” for the purposes of the SRC Act?
(c)In respect of any injury, did the injury arise out of or in the course of the Applicant’s employment?
(d)In respect of any disease, was the disease contributed to, to a material degree by the Applicant’s employment?
(e)Is liability for the condition, being a disease, excluded by virtue of section 10(7) of the SRC Act due to the Applicant making a wilful and false representation that he had not previously suffered from that disease?
(f)The extent, if any, of the Applicant's entitlement for medical treatment costs and reimbursement of travel expenses are shown to section 28 of the SRC Act;
(g)Whether the Applicant is entitled to the provision of a rehabilitation programme pursuant to section 50 of the SRC Act.
It is clear from the above that central to the question whether Mr Dimoff can claim compensation under the SRC Act is a determination as to whether Mr Dimoff’s workplace injury is an “injury” or a “disease” as those words are defined in the SRC Act. To the extent that Mr Dimoff’s injury is an “injury”, the exemption contained in s 10(7) of the SRC Act ceases to be an issue. To the extent that Mr Dimoff’s injury is an “injury” that is not a “disease”, then whether or not he failed to disclose past medical conditions on workplace forms etc. becomes largely irrelevant – other than to the extent that this might go to his credibility and work capacity.
LEGISLATION
Section 26 of the SRC Act provides:
Compensation for Injuries
(1) If an employee suffers an injury that results in his or her death, incapacity for work, or impairment, compensation is payable for the injury.
Section 28 of the SRC Act provides as follows:
Compensation for medical and related expenses
(1) If an employee:
(a) suffers an injury; and
(b)obtains medical treatment for the injury, being treatment that it was reasonable for the employee to obtain in the circumstances;
compensation is payable for the cost of the medical treatment, of such amount as is appropriate, having regard to the nature of the treatment.
Section 49 of the SRC Act relevantly provides:
Assessment of capability of undertaking rehabilitation program
(1)If an employee suffers an injury that lasts, or is expected to last, 28 days, which results in an impairment or an incapacity for work, the employee's employer must, within 28 days after receiving notice of the injury, arrange for the assessment of the employee's capability of undertaking a rehabilitation program.
Section 50 of the SRC Act relevantly provides:
Provision of rehabilitation programs
(1)If an employee of an employer is assessed under section 49 as capable of undertaking a rehabilitation program, the employer must, after consulting the employee in relation to:
(a)the selection of an approved program provider; and
(b)the development of an appropriate rehabilitation program by an approved program provider;
make arrangements with an approved program provider for the provision of an appropriate rehabilitation program.
Section 10(7) of the SRC Act provides:
(7)For the purposes of this Act, a disease suffered by an employee, or an aggravation of such a disease, is not taken to be an injury to the employee if the employee has at any time, for purposes connected with his or her employment or proposed employment in the maritime industry, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
“Injury” is defined in section 3 of the SRC Act as follows:
(a) a disease; 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;
“Disease” is defined in section 3 as follows:
(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.
“Ailment”, is turn is defined as:
any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Finally, “aggravation” is defined as including “acceleration or recurrence”.
CONTENTIONS
In its Statement of Facts, Issues and Contentions dated 12 January 2016, Mr Dimoff’s solicitors contended as follows:
1.The Applicant relies upon the opinions of Dr Anthony Robinson and Dr Phillip Hardcastle.
2.The Applicant contends that he has been unfit for his pre-injury work as a result of his employment related injury since 17 July 2014.
3.The Applicant contends that he is entitled to weekly compensation payments on the basis of total incapacity for work from 17 July 2014 to date and continuing.
4.The Applicant contends that he is entitled to reimbursement for the cost of medical treatment recommended by his treating doctors.
5.The Applicant contends that he is entitled to reimbursement of his treatment related travel expenses.
6.The Applicant contends that he is entitled to the provision of a rehabilitation program with a Seacare approved program provider.
In its Statement of Facts, Issues and Contentions dated 29 January 2016, solicitors for Miclyn Express Offshore contended as follows:
4.1The Respondent accepts that on 17 July 2014 the Applicant suffered an injury in the course of his employment, namely an injury described as posterior horn tear of the medial meniscus, knee joint effusion and an injury to the medial patellofemoral joint.
4.2The Applicant also suffers from a chondral flap lesion of the patellofemoral joint, synovitis and a pre-existing (viz. pre-existing 17 July 2014) degenerative condition of the right knee.
4.3None of these conditions is an “injury” for the purposes of the SRC Act.
4.4If the Tribunal finds that the pre-existing degenerative condition of the right knee was aggravated by the incident on 17 July 2014 then:
(a)The aggravation is a “disease” for the purposes of the SRC Act;
(b)Liability for the condition is excluded by virtue of section 10(7) of the SRC Act due to the Applicant making a wilful and false representation that he had not previously suffered from that disease, namely the representations made by the Applicant in his pre-employment medical examination on 12 February 2014.
4.5The Applicant has not suffered any incapacity for work over the period from 17 July 2014 to the present save for a discrete short period after his surgery on 26 August 2014.
4.6Alternatively, to the extent that the Applicant has been incapacitated for work over the period from 17 July 2014, this is as a result of:
(a) The effects of his pre-existing injury to the left knee;
(b)The effects of his chondral flap lesion of the patellofemoral joint and synovitis;
(c)The effects of his pre-degenerative condition;
(d)The effects of his heart condition, disclosed for the first time in his statement dated 22 December 2015; and/or
(e)The effects of depressive condition, disclosed for the first time in his statement dated 22 December 2015.
4.7The Respondent contends that the Applicant is not entitled to reimbursement for the cost of medical treatment obtained by him, save to the extent that such treatment was for the injury described in paragraph 4.1 herein.
4.8The Respondent contends that the Applicant is not entitled to reimbursement for the cost treatment [of] related travel incurred by him, save to the extent that such treatment was for the injury described in paragraph 4.1 herein.
4.9The Respondent contends that the Applicant is not entitled to the provision of a rehabilitation programme with a CK approved programme provider.
EVIDENCE
STATEMENT OF JOHN DIMOFF DATED 22 DECEMBER 2015 (A1)
Relevantly, Mr Dimoff’s witness statement reads as follows:
1.    My date of birth is … 1961 and I am 54 years of age.
2.    I was born in Adelaide and I am one of 4 siblings.
3.    I left school at the age of 13½. I am dyslexic and I have difficulty reading and writing.
4.    After leaving school, I secured work in the commercial fishing industry as a deckhand off the coast of South Australia.
5.    I attended Swan TAFE and Challenger TAFE in order to pursue a career in the offshore maritime industry.
6.    I am the holder of a HR and C class driver’s license.
7.    I have a history of previous injuries as follows.
8.    In 1975 I had a recreational motor bike fall. I sustained injuries at my right knee and underwent surgery in relation to same. I had a good recovery from this injury and was able to resume working in the commercial fishing industry for many years beyond 1975.
9.    On 14 December 1998, I underwent a procedure involving reconstruction of my left ACL at Freemantle Hospital under the care of Dr Hardisty.
10. In early January 1999, I had a fall 2 weeks after having surgery causing further pain and a delay in my recovery in relation to the left knee surgery.
11. On 24 May 1999, I had a further arthroscopy procedure at my left knee.
12. On 15 December 2004, whilst employed by Mermaid Marine Group, while working in the thruster room of a vessel I stepped on an unsecured floor plate, which was covered in oil and the retaining screws had not been inserted after access by a co-worker. When I stepped on the plate, it slipped sideways exposing the underlying boat bilge into which I fell twisting my left knee and impacting my right elbow as I braced myself to avoid falling thought the hole.
13. I sustained multiple abrasions including lacerations to the right arm and pain and swelling about the right elbow and left knee.
14. As a result of this incident, I underwent a left knee lateral release procedure. There was a 6 month delay in having the procedure due to Allianz delay in dealing with my claim.
15. In relation to the right elbow, I was treated by hand, wrist, elbow and shoulder surgeon, Dr Alex O'Beirne. I had surgery performed on my right elbow 6 months after the injury again due to Allianz refusing to pay for the associated medical costs.
16. The claim eventually resolved by way of settlement.
17. In November 2008 my daughter passed away and as a result my wife and myself became the sole carers of her 16 month old son. I suffered from immense grief and depression for a period of time thereafter.
18. On 16 February 2009 whilst shopping at Woolworths, I slipped on water that had leaked onto the floor during the course of repairs to an ice freezer, impacting on my right knee to the floor [sic]. As a result of that incident I had immediate pain and swelling to my knee. Under instructions from the Woolworths Store manager, I attended upon my GP at the time, Dr Michael Joyce and at my request I was referred to Dr David Colvin, Orthopaedic Surgeon.
19. On 2 March 2009, I underwent an MRI of my right knee on referral from Dr David Colvin. The results revealed mucoid degeneration within the posterior horn of the medial meniscus, fraying and irregularity of the free margin of the body of the medial meniscus without a discreet tear, mild patella and medial compartment chondral pathology and ACL ganglion.
20. On 3 March 2009, I had a scan of my right knee. I am unsure as to whether that was an ultrasound or X-ray. The results were relatively normal.
21. The doctor indicated that I had sustained a patella-femoral compression injury. The doctor advised that I could have an arthroscopy type procedure in relation to this injury. The doctor indicated that the bulk of my articular wear was probably pre-existing but that it had become symptomatic as a result of my injury. The wear was asymptomatic prior to my injury.
22. On 16 March 2009, due to the immense grief induced stress relating to the loss of my daughter I suffered a major heart attack where I required the insertion of a stent.
23. Shortly thereafter, I also contracted appendicitis and had to have surgery in relation to that issue also.
24. With those issues over the following months, my symptoms during that time came good to the point where I did not require any knee procedure. In fact I have not seen Dr Colvin since 2009 or any other Orthopaedic Surgeon in relation to my right knee, until I sustained the injury the subject of these proceedings.
25. In relation to my heart attack, I saw Dr Alan Whelan, Cardiology Consultant.
26. I had discussions with Woolworths in relation to the incident, which resolved by way of settlement for a modest amount.
27. Prior to the injuries the subject of my current claim, I was in good health and had no issues with my fitness to work.
28. On 25 July 2013, I attended a comprehensive pre-employment medical examination at Leighton Health Centre for a pre-employment health assessment for work on the Gorgon Project, through a sub-contracting company, Broad Sword Marine Contractors, who I was employed by at the time. I had to attend the pre-employment medical, even though I was already employed by the company, for the purposes of working on this particular project.
29. This was a strenuous medical examination which involved urine analysis, audiogram, spirometry, vision test, a cardiovascular test, a respiratory test, an abdominal examination, testing in relation to neck and back function and testing in relation to upper and lower limb function.
30. As part of this examination, I was required to undertake a “heel walk”, a “duck walk”, a “toe walk” and “the plank”, the results of which were all normal. There was also a step test. I was also required to undertake push ups, above shoulder lifting, sustained squats, repetitive squats, kneeling for a protracted period and hovering on my toes. My knee extension was measured on both sides.
31. I achieved good results and was certified fully fit to work as a Chief Engineer. The examining doctor certified that I was a low risk in terms of injury.
32. The doctor indicated that there was some difficulty with my lung function and advised me to reduce smoking. A copy of the pre-employment health assessment documentation has been produced under Summons in these proceedings.
33. I worked for Broad Sword Marine Contractors on Barrow Island for about 6 months immediately prior to commencing my employment with the Respondent, Samson Marine Pty Ltd (“Samson”). Samson approached me to work for them because the contract at the company I was currently working for was coming to completion at the end in February 2014. I had all the qualifications to work at Barrow Island, it was an easy transition for Samson to employ me, rather than to pay for training of a new employee and wait the time required to secure approval for a new employee, who would have to obtain the medical and associated clearances that I already had.
34. On 23 February 2014 I undertook another rigorous pre-employment medical examination, for Samson. Once again, I successfully passed the examination.
35. I started my swing with Samson at the end of February 2014, working as a Marine Engineer. My rate of pay (NWE) with Samson was $5,224.05 per week. Samson were responsible for anchor positioning, logistics, supplying fuel and water and towing barges to Mangrove Passage which was a safe haven for vessels in cyclones. Whilst at Mangrove Passage we would do the hook-up of the line of the barges to the mooring lines. To go there and back from Barrow Island took a full day.
36. We were accommodated in crew compartments (mini cabins) on the barge Pacific Installer which was also used as general crew accommodation.
37. 17 July 2014 was my first nights' accommodation on the Pacific Installer, with a twin bunk style beds [sic]. This particular room had not initially been built as a double room. The rooms were only supposed to accommodate 1 person. The bed had been recently modified in July 2014 because of the necessity for increased accommodation and in each small room, an extra bed had been installed by carpenters over the top of the existing lower bed, with a small ladder at the foot of the bed used to access the top bunk.
38. I was in the process of getting up onto the top bunk as the lower bunk was to be used by a different worker on a different shift.
39. I put my right foot on the bottom bed and then when putting my left foot onto the rail / ladder, I had to turn to the right to get into the bunk, levering myself up with both hands on top of the bunk. My right foot which was meant to pivot got caught on the contoured combing rail of the lower bunk causing my right knee to twist as I launched myself up onto the top bunk. I felt immediate pain. My knee made a crunch sound and immediately swelled up. I was in immense pain, and could not get back down due to the height of the bunk and awkward position of the ladder. With my painful, swollen knee, it was difficult to manoeuvre myself down from the bunk until the following morning. I was forced to try sleep with the light on, as in the haste of having additional bunks installed, light switches above the bunk bed had not yet been installed.
40. A photograph of my bunk on the accommodation barge Pacific Installer is attached to the report of Dr Hardcastle filed by the Respondent in the proceedings.
41. The incident was reported to my Skipper immediately upon arrival for duty where all incident reports and necessary documents were filed with the company. An appointment was arranged for me to see the medic onboard the Pacific Installer, Julie Robinson. Upon return to Barrow Island I was taken to the Barrow Island Medical centre by Julie Robinson where I was given treatment for pain relief, anti-inflammatory medication and ice with a bandage. I attended the Barrow Island Medical Centre every 2-3 days until my rostered swing finished.
42. I was asked by Samson Maritime Management if I was able to finish my swing due to the difficulties in getting a replacement Chief Engineer at short notice. I agreed I could manage using pain relief until my swing finished on 31 July 2014. I did require some help from fellow crew members with my duties as it was a further 12 days until completion of my swing.
43. I was flown back to Perth from Dampier through Karratha on 31 July 2014. Shortly prior thereto I was advised that my injury would not be covered by Workers Compensation. On 28 July 2014 I received an email from Ilana Jewson of the Samson HR Department to the effect that the injuries I sustained “were not work related as I did not injure myself on day to day duties as a chief engineer on the vessel” and “if I required medical treatment upon returning home it would be at my own cost”.
44. On returning home to Perth, on 1 August 2014, I was sent to have an MRI by the company. The MRI revealed complex tearing to my medial meniscus combined with grade 1 sprain of the superficial medial collateral ligament and the medial patellofemoral ligament, moderate to severe chondral wear in the centre weight bearing portion of the medial femoral condyle.
45. On the same day I attended upon Dr Wang-Jetyee at South Street Medical Centre. I was issued with a workers compensation Workcover First Certificate.
46. I later came under the care of GP Dr John Hilton who was close to my home at Rockingham, who became my treating GP in relation to this injury.
47. I lodged a claim for Seafarer’s compensation benefits. On 12 August 2014 at 11.30am I received an abusive and threatening phone call from an Allianz Representative, Robert Ramage (now deceased). He claimed to be an Allianz Claim Specialist. He attempted to convince me not to pursue the claim. I felt intimidated.
48. On 13 August 2014 the Seafarer’s compensation insurer declined liability in respect of my claim.
49. At my request of Dr John Hilton I was referred to see Mr Jens-Ulrich Buelow, Orthopaedic Surgeon who I saw for the first time on 20 August 2014. The doctor recommended that I undergo an arthroscopy and partial meniscectomy procedure. The doctor further opined that my condition was a work related injury particularly noting that I was pain and symptom free up until the accident had occurred. He also certified me unfit for work from 11 August 2014 to 30 August 2014. The doctor was the only surgeon who would perform surgery as a self-funded patient.
50. On the same day I underwent X-rays of both my knees. The results were relatively normal.
51. I again saw Mr Buelow on 25 August 2014. By this time I had decided to proceed with the arthroscopy and partial meniscectomy procedure recommended by the doctor and it was scheduled for the following day. The doctor once again confirmed with me that the meniscal tear was work related.
52. On 26 August 2014, I underwent surgery at the hands of Mr Buelow at Bethesda Hospital, which I self-funded from my savings, at a cost of approximately $6500. I didn’t have private health cover. The procedure confirmed complex tearing to my medial meniscal body and posterior horn. There was also generalised grade 2 to 3 cartilage damage in the trochlea and medial femoral condyle. Careful chondroplasties were performed. Loose bodies were removed. I was released from hospital the following day.
53. Shortly after having the procedure, I noted the clicking and crunching in my knee was still present and nothing had improved after surgery.
54. On 2 September 2014, I attended upon GP, Dr S Sethuraman as Dr John Hilton was away. The doctor certified me unfit to work from 31 August 2014 to 30 September 2014.1 was prescribed Celebrex and Panadeine Forte.
55. I saw Mr Buelow on 3 September 2014. The doctor was happy with my progress. He recommended physiotherapy and cycling and swimming at a later time. The doctor again indicated that he believed my condition was an aggravation of a pre-existing condition, caused by the accident at work. He certified me unfit for work from 3 September 2014 to 15 October 2014.
56. On 30 September 2014, I attended upon Dr S Sethuraman. The doctor certified me unfit to work from 1 October to 31 October 2014.
57. On 15 October 2014, I again attended upon Mr Buelow. At this time I was unhappy with my knee and had significant patellofemoral pain and discomfort. I had no improvement from the surgery. I was still unable to kneel, squat or run. I found it difficult to use my exercise bike. I asked Mr Buelow about my strained ligaments and I was told “they would improve in time”. That has not turned out to be the case. The doctor certified me unfit for work from 15 October 2014 to 30 November 2014.
58. Mr Beulow recommended that I see a physiotherapist for a structured quadriceps and strengthening program. The doctor also recommended a Synvisc injection (costing $1000 per injection) and provided me with a referral to see Dr Lionel Lim for these purposes.
59. With no income I was unable to afford any treatment at this time. The treatment recommended by Mr Buelow could not be funded under Medicare.
60. On 30 October 2014, I attended upon Dr Sethuraman. The doctor certified me unfit to work from 30 October 2014 to 30 November 2014.
61. On 1 December 2014, I attended upon Dr Sethuraman again. The doctor certified me unfit for work from l December 2014 to 5 January 2015.
62. On 5 January 2015, I attended upon Dr Sethuraman again. The doctor certified me unfit for work from 5 January 2015 to 5 February 2015.
63. On 4 February 2015, I attended upon Dr Hilton. The doctor certified me unfit for work from 4 February 2015 to 30 March 2015.
64. On 4 March 2015, I attended upon Dr Hilton again. The doctor certified me unfit for work from 4 March 2015 to 4 April 2015.
65. On 2 April 2015, I attended upon Dr Hilton again. The doctor certified me unfit for work from 2 April 2015 to 2 May 2015.
66. At around this time I commenced on Lyrica medication.
67. On 8 April 2015, I attended upon Dr Hilton again. Due to my ongoing symptoms, I asked the doctor for a referral for a second opinion. The doctor arranged a referral to see Dr Tony Robinson, Orthopaedic Surgeon. I was also issued with a further certificate certifying me unfit for work from 8 April 2015 to 8 May 2015.
68. On 21 April 2015, I attended upon Dr Robinson for further opinion. The doctor referred me for MRI of my right knee which I had on 22 April 2015.
69. The results revealed interim partial medial meniscectomy with several tiny remnant tears in the posterior horn and the posterior horn's body junction, mild medial tibial femoral degeneration, small amount of new high grade chondral fissuring on the posterior third of the lateral tibial plateau, new moderate size high grade chondral flap on the patella with a tiny chondral flap on the upper trochlea and moderate knee joint effusion containing synovitis and lipoma arborescent.
70. Ultimately, Dr Robinson indicated that I should be assessed regarding medial collateral ligament reconstruction and chondroplasty of the right patella. The doctor also indicated my ongoing problems were due to my work related injury on 17 July 2014.
71. On 8 May 2015, I attended upon Dr Hilton again. The doctor certified me unfit for work from 8 May 2015 to 8 June 2015.
72. On 20 May 2015, I attended upon Dr Phillip Hardcastle at the behest of the solicitors for the Seafarer’s compensation Insurer. The doctor took a history from me and I answered the doctor’s questions to the best of my ability.
73. In relation to my past medical history, the doctor discussed with me in great detail the recreational motor bike fall I had had in 1975 as a juvenile. In regards to the fall I had at Woolworths in February 2009, at the time of the examination I had no recollection of the incident. I was not reminded of the incident until documents were produced in these proceedings by Dr Joyce. I believe the incident didn’t come to mind at this time as the fall had not caused any permanent injury to my knee, and the discomfort in relation to the fall had resolved.
74. On 4 June 2015, I attended upon Dr Hilton again. I was certified unfit for work from 4 June 2015 to 4 July 2015.
75. On 3 July 2015, I attended upon Dr Hilton again. I was certified unfit for work from 3 July 2015 to 23 August 2015.
76. On 30 July 2015, I attended upon Dr Hilton again. I was certified unfit for work from 30 July 2015 to 30 October 2015.
77. On 30 October 2015, I attended upon Dr Hilton again. The doctor certified me unfit for work from 30 October 2015 to 30 January 2016.
78. I continue to suffer from pain, weakness, instability and crunching about the right knee. I am unable to run, squat or kneel. I can climb stairs one at a time but this causes pain and I have to take it slowly. The situation is similar in terms of ladder climbing. As there is a significant amount of stairs and ladder climbing and working in confined spaces in my pre injury role these issues are preventing me from returning to work. I am currently on pain management medication.
MEDICAL EVIDENCE
Letter from Julie Robinson, Paramedic, Leighton Contractors (undated) (T9 at 40)

This letter from the paramedic who assisted Mr Dimoff after he was injured at work (July 2014) reads as follows:
As you are aware John Dimoff presented to the P.I Medical room this morning with R)Knee pain and swelling he said happened approx 1930hrs last night when climbing into his bunk.
John was taken to Butler Park Medical centre and assessed by the Dr and Physio for his R)Knee strain.
He has not been issued with a medical certificate.
For R.I.C.E.
Given non prescription analgesia and Anti-inflammatory medication.
R)Knee taped and knee support applied.
Fit for full duties but requires further treatment.
To avoid excessive bending and frequent use of stairs.
For review at the Medical centre Butler Park at 0900hrs 21/07/2014 by physio and Dr.
Changed to single room – no bunk.
Could John please meet me at the PI Medics room by 0845hrs Monday 21/07/2014.
Report of Dr Wang-Jet Yee of 1 August 2014 (T8 at p39)
This report, addressed to Perth Orthopaedic and Sport Medicine Centre, reads as follows:
Thank you for seeing Mr John Dimoff age 52 years, who has injured R knee through a twisting injury. Mri scan has shown a torn meniscus. Previous surgery from a mba in 1976.
Problem List
Nil sig
Current Medications
None
Allergies
None
Email from Tia Adie (Injury Management Assistant with “Return to Work Solutions”) to Ilana Jewson (of Samson Express Offshore) dated 1 August 2014 (T10 at 41)
This email reads as follows:
I have just returned from John Dimoff’s doctor’s appointment with Dr Yee.
The MRI confirms that there is a tear of the right medial meniscus in his right knee. In addition to this, John has also sprained the medial collateral ligament and the patellofemoral ligament. Dr Yee has written up a letter of referral for surgery to Perth Orthopaedic and Sport Medicine Clinic and has prescribed John pain medication and anti-inflammatories.
When speaking to John to determine the events that led to this injury, John iterated to me that when climbing up to the top bunk, he needed to first step on the bottom bunk, as the ladder did not extend to the floor. In the process of transferring himself from the bunk to the bottom of the ladder, John twisted his knee.
I told John that I would follow up with him on Monday after updating yourself.
Please find attached Johns First Medical Certificate, the MRI Results and the referral letter.
Report of Dr Ganesh Iyer, radiologist to Dr Yuri Pavic, dated 1 August 2014 (T7 at 37)
This report reads as follows:
MRI Right Knee
Clinical history:
Twisted while offshore.
Findings:
In the posterior horn of the medial meniscus is a complex tear involving the superior and inferior articular surfaces. The tear has both horizontal and vertical components and measures about 2.5cm in length. Extension into the meniscal root posteriorly is also shown with probable tear of the root ligaments as well.
A pseudoextrusion of the ramus of the meniscus is consequently seen, which is however unremarkable. The ventral horn is normal. There is no abnormality of the lateral meniscus.
The anterior and posterior cruciate ligaments are intact. The lateral knee stabilisers inclusive of the popliteus tendon and fibular collateral ligament are normal. Oedema surrounding the superficial medial collateral ligament can be seen. The meniscofemoral and meniscotibial ligaments are normal. Significant chondral wear in the central weightbearing portion of the medial femoral condyle is seen without evidence of a flap tear. The lateral tibiofemoral articular cartilage and subchondral bone are normal. There are a few superficial fissures in the patellar cartilage. The femoral trochlear cartilage is normal.
A large suprapatellar effusion is shown with irregularity of the Hoffa’s fat pad posteroinferiorly due to concurrent synovitis.
The popliteal fossa is unremarkable.
The patellar retinacula, lateral patellofemoral ligament, the visualized quadriceps and patellar tendons are normal. The medial patellar retinaculum is hyperintense compared to its counterpart but is largely intact.
Summary:
1.    Complex tear involving the posterior horn of the medial meniscus extending into the root and with probable involvement of the root ligaments.
2.   Grade 1 sprain of the superficial medial collateral ligament and the medial patellofemoral ligament.
3.   Moderate to severe chondral wear in the central weightbearing portion of the medial femoral condyle in keeping with osteoarthritis. No evidence of chondral flap / delamination.
4.   Significant suprapatellar effusion with concurrent synovitis.
Report of Dr Tony Robinson dated 30 April 2015 (A3)
Dr Robinson is a Consultant Orthopaedic and Knee Surgeon. He did not provide oral testimony before the Tribunal. His written assessment of Mr Dimoff reads as follows:
As the treating Orthopaedic Surgeon for Mr John Dimoff I believe his right knee problems are as follows:
1. Chondral flap of the right patella.
2.Giving way which is due to the laxity in the medial collateral ligament and thigh muscle wasting.
3.Soft tissue inflammation of the fat pad over the region of the lateral joint line.
I would recommend the following:
1.Assessment by a knee surgeon regarding medial collateral ligament reconstruction.
2.Right knee arthroscopy, chondroplasty and removal of the inflamed patella fat pad. The patient may also need to undergo a lateral release procedure.
I believe the patient’s ongoing problems are due to his work related injury on the 17th of July, 2014.
The above is information in Mr John Dimoff. If there are any points which may need clarification I will gladly do so.
Report of Dr Philip Hardcastle dated 20 May 2015 (A2)
Dr Hardcastle was retained by solicitors for the Respondent to undertake an assessment of Mr Dimoff. A briefing letter was sent to Dr Hardcastle on 15 May 2015. He provided a written report, detailed below. Dr Hardcastle was then called as a witness by solicitors for Mr Dimoff and cross examined by counsel for the Respondent at the hearing of this matter.
Dr Hardcastle’s extensive written report, dated 20 May 2015, reads as follows:
Thank you for your letter of 15 May 2015 requesting an independent assessment of Mr John Dimoff who was reviewed on 20 May 2015.
REVIEW OF MEDICAL DOCUMENTATION
I acknowledge your current medical evidence under 2.1 through to 2.20.
BACKGROUND
…
He said that at the time of him having the injury there was a different barge there which he had not slept on before. It had been modified because of the necessity for increased accommodation and in each small compartment, an extra bed had been put in by carpenters over the top of the lower bed with a small ladder used to access the top bunk. He has given me a picture of the room which I enclose.
Following his injury, he continued working using Tramadol until his contract had finished on the 30 July 2014. He required some help with his duties. He has been off work since then and has not had any specific rehabilitation.
PAST MEDICAL HISTORY
He reports in 1975, he had a fall from a motor bike as part of an off-road experience. He twisted his knee after falling off the bike in the bush. He said he was able to continue riding, but had some knee pain which persisted. He saw a medical practitioner and underwent surgery and was put in a plaster for about eight weeks after this. He made an excellent recovery and had no further problems in relation to the right knee.
Following his assessment, and on review of the Perth Radiological Clinic website which showed x-rays and MRI of the right knee from 2009, I viewed images which did not demonstrate any specific pathology related to any trauma apart from some thickening of the MCL and an ACL ganglion consistent with previous trauma, some degenerative changes in the medial meniscus, but no specific tearing of note, and some degeneration in the medial compartment with a small joint effusion. The clinical details make reference to a new injury with patellofemoral symptoms which I presume settled reasonably quickly, as he subsequently returned to work after this doing casual duties, and I understand he underwent some medical examinations prior to working on Barrow Island.
Following his assessment his clinical notes were subsequently reviewed and there is a report from Dr Gerard Hardisty dated 17 April 2000 about his arthroscopy of the left knee on this date with full thickness cartilage loss over the medial femoral compartment and similar changes over the medial facet of the patella on the left. He subsequently had an ACL graft to the left knee and further review by Mr Hardisty (24 March 2005) reporting the intact ACL reconstruction and repair of the medial meniscus. He was of the opinion that his pain was patello femoral and was considering a further arthroscopy and chondroplasty of the patello femoral joint on the left. (I do note that the letters from Mr Hardisty refer to a John Peterson with the same birth date as John Dimoff and presume it is the same person). Mr Hardisty has referred in his letter to the further arthroscopy which was a lateral release and chondroplasty with still ongoing problems after this, with references also to his right elbow
Mr O'Beirne has made reference in his enclosed letters to surgery for olecranon bursitis around 2005 with some minor residual ongoing problems (29 June 2006) after he had done an ultrasound showing no specific further olecranon bursitis or injury to the ligaments or around the elbow joint ligaments or problems around the elbow joint.
PREVIOUS WORKERS’ COMPENSATION/MOTOR VEHICLE CLAIMS
He has not had any previous motor vehicle accidents.
In 1997, he had an operation on his left knee when evidently he fell through an inspection hatch after slipping on some oil. He also injured his right elbow and had an operation on both.
In 2004, he had problems with his left knee for which the details, due to legal reasons, cannot be disclosed.
He still had some continuing problems with the left knee which took a long time to settle down. He got off medication and he returned to work following this on a casual basis in 2010, but has subsequently passed medicals with respect to his work on Barrow Island.
…
DETAILS OF INJURY
He reports they had gone across to Mangrove Island on one of the barges. This was his first night accommodation in the new barge that I have referred to with the twin bed, one above the other (see photo enclosed). He was in the process of getting up onto the top bunk as the other bunk was for another person who was on a different shift. He put his right foot on the bottom bed, then when putting his left foot onto the rail or ladder as shown in the picture, he had to turn to the right to get into the bunk, levering himself up with both hands on the top bunk.
His right foot, which was meant to pivot, got blocked by the uneven elevation on the lower bunk (seen in photo) causing his right knee to twist as he described launching himself up onto the top bunk.
There was immediate pain. The cabin light was on and he could not get out to turn it off. The knee swelled up so he stayed on the bed and found getting down at the appropriate time was difficult.
He did mention at this stage that other problems had developed with workers in relation to these bunks.
He reported the incident to the skipper and had some medication. When back at Barrow Island, he was reviewed by the Medical Officer. He was given some treatment with physiotherapy, ice and a bandage and took Panadeine regularly, as well as anti-inflammatories.
TREATMENT RECEIVED TO DATE
He continued working with difficulty, as he did need help to carry weights in particular. He was given a single room after this and finished this contract on the 26 July 2015, then went to Dampier, which is part of the normal routine. He was advised that he would not be covered by workers compensation for his injury and he flew back through Karratha.
An MRI scan had been booked in Perth which showed a torn meniscus, and he was again advised that he would not be provided with workers compensation support.
He reports some abusive phone calls. Due to his continuing problems with his knee, he said he contacted quite a number of orthopaedic surgeons and the only one who would treat him was Mr Jens Buelow. He paid for an operation himself which was performed on 26 August 2014. The operative report makes reference to a complex tear of the medial meniscal body and posterior horn with generalised grade 2-3 cartilage damage in the trochlear and medial femoral condyle. The lateral compartment was reported as normal and the cruciate intact.
He said he was kept in overnight after the surgery and noticed crunching and felt some continuing symptoms in the knee. He did not get any improvement from the surgery and was advised by the surgeon that the situation should improve with exercise, but he reports that this has not happened.
He has recently been put on Lyrica, one tablet twice a day, and he has been taking Panadeine Forte regularly, two to four tablets a day.
He has tried a small brace on his knee which he used for his left knee previously, but he has not found this of any benefit.
STATUS AT PRESENT
The pain is over the anterior aspect of the knee generally, and around the knee, and it occasionally swells. It has given way, but there have been no falls and there is no locking. Giving way is intermittent and he reports it has a tendency to hyperextend when it does this.
It does click and crunch and he said there is a constant throbbing generally in the knee, which also pops.
Aggravating factors include local pressure including blankets, walking, standing and he is unable to kneel, squat or run.
He has an exercise bike but he finds this difficult to use. He can go up a ladder or stairs slowly.
There are no complaints of tingling or numbness in the leg.
CURRENT ACTIVITIES
He can drive a vehicle but prefers an automatic.
Around the house he does some activities slowly. The garden is generally low maintenance, but he can pick up leaves and do some light activities. There is no lawn. He does not normally go shopping.
During the day he does very little, staying around the house most of the time and he is getting anxious and depressed. He has not had any payments for a long period of time and they are supporting his eight year old grandson. His wife is not working. He watches TV mainly and he has stopped going to the gym. He has been maintaining a fairly low level of activity but he has been trying to lose weight, and so far, at this stage he has been successful with his diet.
On his self-assessed Oswestry questionnaire he reported the following:
•Pain is fairly severe at the time of assessment (7-8/10 on the Visual Analogue Scale).
•          Painkillers give very little relief from pain.
•          Can look after himself normally without causing extra pain.
•          Pain prevents him standing more than one hour.
•          With sitting he prefers to lie down but can sit as he did today for a period.
•          Pain prevents him walking more than 100m.
•Pain prevents him from lifting heavy weights but can manage light to medium weights if conveniently positioned.
•          Because of pain has less than four hours sleep.
•          Sex life severely restricted by pain.
•          Pain has restricted his social life and he does not go out as often.
•          Can travel anywhere but it gives extra pain.
CLINICAL ASSESSMENT
He was a well looking man with dark silver hair and he walked with a limp. He was 174cm in height, weighing 104kg.
Upper Limbs
There were no signs of laxities, swellings, callosities or tremor and a full range of upper limb movement.
Back/Spine
He had normal curves with some increase in thoracic kyphosis and he could forward flex with the fingertips coming to the ground. He had normal spinal rhythm.
Lower Limbs
There was mild genu varum and there was a 15cm medial scar over the right knee and a 10cm central vertical scar over the left knee.
Straight leg raising was 90° on both sides with slight flexion of the knees on this.
Reflexes were symmetrical and intact with motor and sensory examination normal.
Examination of the left knee demonstrated no effusion with movement from 0° – 120° and the knee was stable with negative rotation tests.
Examination of the right knee demonstrated tenderness generally around the knee anteriorly and over the medial and lateral sides, with no effusion and a small fixed flexion deformity of 10° and flexion to 110°.
The knee was stable in antero-posterior testing but there was slight medial increased movement on the right compared to the left which caused mild pain.
He had some pain on the apprehension test but lateral subluxation or movement of the patellofemoral joint laterally was only grade 1 which was normal.
It was difficult to do rotation and other tests because of pain.
He could slowly walk on his toes and heels for a short distance and squat with his knees flexing to 20°.
Quadriceps circumference was reduced on the left by 1 cm compared to the right and calf circumferences were equal.
Knee circumferences at the superior patellar pole was equal on both sides.
INVESTIGATIONS PERFORMED
1.        MRI Right Knee (2 March 2009)
These report mild patellar and medial compartment chondral pathology with some degeneration of the posterior horn of the medial meniscus with fraying and irregularity of the free margin without discrete tear and an ACL ganglion.
2.        Plain X-rays Right Knee (3 March 2009)
This reports mild medial compartment joint space narrowing with lateral joint space well maintained and mild patellar tilting noted laterally on the skyline film with some spurring of the patellofemoral joint margins with no evidence of a joint effusion.
3.        Plain X-rays Both Knees (20 August 2014)
a)Right Knee – There are degenerative changes to the medial compartment and a small joint effusion with mild marginal osteophytosis reported in the patellofemoral joint.
b)Left Knee – This reports an ACL repair with mild to moderate degenerative changes in the medial tibiofemoral compartment.
4.        MRI Right Knee (1 August 2014)
This reports a complex tear of the posterior horn of the right medial meniscus and a Grade 1 sprain of the superficial medial ligament and medial patellofemoral ligament with moderate to severe chondral wear on the central weight bearing surface of the medial femoral condyle with osteoarthritis and a significant suprapatellar effusion with concurrent synovitis.
5.        MRI Right Knee (22 April 2015)
This has reported the partial medial meniscectomy and the medial compartment degeneration with a new moderate-sized high grade chondral flap on the patella where they have compared this to the previous pre-operative MRI and a moderate knee joint effusion with evidence of synovitis.
OPINION
This history as reported is consistent with a posterior horn tear of the medial meniscus as demonstrated on the subsequent MRI and possibly even an injury to the medial aspect of the patella and medial collateral ligament.
He has had protracted treatment and subsequently an arthroscopy and removal of the meniscal tear, but he has had ongoing symptoms since then which are fairly non-specific and generalised. On his clinical findings, there is evidence of some patellofemoral pain and medial collateral ligament pain or at least pain in this region, with the more generalised pain most likely of a non-specific nature given that there is no specific joint effusion, though the MRI has reported some synovitis.
My recommendation for treatment at this stage would be for him to have an intra-articular steroid injection into the knee and dependent on the results of this, possibly a further arthroscopy with a chondroplasty of the medial patellar femoral joint.
Currently, he is unfit for work, but with further significant improvement in the symptoms he should have the potential to get back to his engineering duties or alternatively redeployment in some area involving seaman activities with respect to the engineering aspect.
In reply to your specific questions:
3.1      The claimed injury
a)What history of the claimed condition did the applicant give at examination? Please obtain details of any specific incidents reported by the applicant during the course of his employment.
See body of report above.
b)Does the applicant suffer an underlying, pre-existing or constitutional condition relevant to the claimed condition? If so, what is the nature of this condition and why did it arise?
This is outlined in the report.
3.2      Current condition
a)What condition/s if any, does the applicant currently suffer from?
He has ongoing fairly generalised right knee pain consistent with patellofemoral and medial compartment problems relating to degenerative issues and most likely some synovitis.
b)Given the applicant’s history and after review and consideration of the enclosures, when do you consider that the described condition arose?
This is a difficult question to answer as he did have the previous knee injuries, one which I reported earlier with the surgery in 1975. He reported no further problems from this, though there is an MRI of 2009 showing the degenerative disease.
Following the reported injury, the MRI has shown new pathology with a significant tear of the posterior horn of the medial meniscus consistent with an injury occurring when getting into the bunk in July 2014. There is also evidence on the post-operative of a chondral flap lesion of the patellofemoral joint and some synovitis which potentially relate to this particular injury.
Therefore, at this stage the evidence supports that he developed a new injury in July 2014 and that is when this condition arose on a background of longstanding, pre-existing degenerative problems, which were asymptomatic.
c)Do you consider the condition suffered by the applicant is best described as a sudden identifiable physiological change or did it have a gradual development over time?
There is evidence that this was a sudden identifiable physiological change with a posterior horn tear of the medial meniscus and most likely a knee joint effusion as well as an injury to the medial patellofemoral joint.
d)If you consider the condition as a sudden, identifiable physiological change, do you consider that it was contributed to by some incident or aspect of the applicant’s employment or his work generally? If so, how?
In my opinion, his work activities have been a significant aggravating factor to the injury as described, accepting his veracity. When trying to get up onto the top bunk with his weight on his lower limbs and pushing off where one would normally rotate through the feet, given that the pelvis would have been close to the bed and not allowing a lot of rotation here, his foot became jammed because of the nature of the contour of the lower bunk, and the rotation forces transferred to the knee associated with compression as he was taking the weight.
e)If you consider the condition to have gradually developed over time, do you consider that it was contributed to, to a material degree, by the applicant’s employment? If so, how?
Not applicable.
f)Are there any non-work related factors which have caused or contributed to the applicant’s condition? If so, please indicate what these factors are.
He does have pre-existing degeneration, in particular involving the patellofemoral and medial compartment due to a previous injury in approximately 1975.
This has not specifically contributed to the condition apart from weakening the structure of the medial meniscus as evidenced on the MRI, but it does make it more susceptible to ongoing chronic pain due to the underlying degenerative condition.
g)If you consider the applicant has suffered or does suffer from a condition contributed to by his employment:
i)Have the effects of the work related condition ceased, and if so, when did they cease?
The surgery would have removed the medial meniscus tear which has been supported on the MRI, but there have been ongoing effects and synovitis that is present. The other chondral tear on the medial patella could well be still related to the injury leading to a protracted recovery.
ii)If they have not ceased, what current symptoms continue to be contributed to by his employment?
The evidence does support that current symptoms are at least still being contributed to by the injury to a reasonable extent appreciating that the underlying degenerative condition would be also having some effect on his current symptoms.
iii)If they have not ceased, when do you expect that the employment related effects of the injury (if any) will cease.
I would expect that potentially the employment related effects would resolve over a period of between six to twelve months depending on his progress and response to further treatment.
h)Did any aspect or incident of the applicant’s employment accelerate the natural progress of the applicant’s condition, such that his condition would not be in its current state if not for the work-related aggravation? In other words, do you consider that the applicant’s condition would be the same today, regardless of any aspect or incident of his employment?
The work related injury has caused a degree of acceleration of the underlying natural progression of the pre-existing degenerative condition. On the evidence, it is unlikely his condition today would be the same without this particular incident.
i)If you do not consider the work related effects of the condition have ceased, when do you consider they will cease?
It is not my opinion that the work related effects of the condition have ceased at this stage, but I would consider with further treatment that the effects of the work related injury should have ceased within 12 months of the original injury or possibly a little longer, given that there has been more protracted delay in treatment.
j)         What is your prognosis in relation to the applicant’s condition?
The prognosis at this stage is guarded on the basis of the pre-existing degenerative condition. However, I would expect potentially the work related aggravation and local synovitis can be improved to a significant extent with some local injection treatment and possibly a further arthroscopy or a chondroplasty of the patellofemoral joint where there is evidence of a chondral flap which may be causing some of the symptoms.
He reports that the clicking and crunching only started after the operation and this is likely to relate to this chondral flap pathology.
3.3      Work capacity
a)Has the applicant suffered any, and if so what, incapacity for employment due to any work-related condition?
There has been an incapacity for work since the injury.
b)        Is the applicant fit for his pre-injury duties?
He is not fit for pre-injury duties at this stage.
c)If not, when do you consider that the applicant will be fit for his pre-injury duties?
Potentially, he could get back to pre-injury duties in the next three to six months, but certainly at that stage should be able to get back to at least some form of full time work.
d)Is the applicant currently capable of undertaking any work, whether in a full-time or part-time capacity? Please comment on the types of work most suited to the applicant.
There are limitations on his work capacity because of the current symptoms and his limited schooling, with all his previous experience related to seaman type engineering activities. Any available rehabilitation graduated work trial would need to be done close to his home because of limitations with travel. Currently, he is unfit for work until he undergoes further treatment.
It is difficult at this stage to determine his specific work capacity appreciating he has the potential to get back to his normal work duties with a good outcome, until the results of further treatment are known.
e)Is any current work incapacity due to conditions or circumstances other than the claimed condition?
No.
4.4      Other factors
a)Is there any evidence of non-organic factors and voluntary or involuntary exaggeration of the symptoms or signs? Please explain.
There are no specific non organic factors on clinical examination.
There are some issues with anxiety and depression that he refers to, but these are out of my area of expertise.
The tenderness around the knee itself was a little non organic but I do not consider this specifically of any significance in the context of the situation and am of the opinion I was able to obtain at least some reasonable objective clinical findings at this stage.
b)Should the applicant be examined by a practitioner in any other field of medicine? If so, which.
My recommendation at this stage would be for him to undertake further assessment by an orthopaedic surgeon with a view to doing a combined arthroscopy and steroid injection and a view to chondroplasty to the patellofemoral joint. Following this, then review the situation six to eight weeks after such surgery.
c)Are there any other comments you wish to make relevant to the issues of the date of onset of the claimed condition and/or causation of the claimed condition?
I have to rely on the veracity of the patient in relation to my assessment. There are pre-existing longstanding degenerative factors in the knee and it is accepted that these are often asymptomatic up to a certain point when they can become symptomatic, either through the natural progression of the degeneration, or in other cases where there is a specific injury.
This can bring forward the natural development of symptoms dependent on the nature of such an injury by a period of time. In this case, I would consider that the injury has brought forward the symptomatic degenerative condition by about two or three years, from my interpretation of the available evidence.
By this I mean that without this particular event that he has reported, the knee is likely to have become symptomatic in the next two or three years as a result of progression of the degeneration, but certainly the injury itself as reported has had a significant effect in bringing forward this period by most likely around two or three years
OTHER EVIDENCE

In written submissions dated 29 January 2016 the Respondent contended as follows:
2.1The Applicant has suffered a number of knee injuries, namely (so far as the Respondent is presently aware):
(a)In 1975 the Applicant had a fall from his motor bike as part of an off-road experience. He underwent surgery and was put in plaster for about 8 weeks;
(b)On 15 December 2004 the Applicant injured his left knee in an incident at work. This injury was the subject of a previous claim for compensation under the SRC Act;
(c)on 16 February 2009 the Applicant suffered a right knee injury when he slipped in a Woolworths’ store;
(d)on 17 July 2014, the applicant suffered a right knee injury the subject of the claim.
In relation to (a) to (c) above, counsel for the Respondent also tendered evidence related to previous medical issues and compensation claims by Mr Dimoff.
The majority of this evidence seems to have been tendered for the purposes of meeting the requirements of section 10(7) of the SRC Act and/or bringing into question Mr Dimoff’s truthfulness as a witness and/or to cast doubt on the usefulness of Dr Hardcastle’s reports and testimony in light of Mr Dimoff’s failure to disclose some of the medical information tied to these incidents to Dr Hardcastle when examined by him.
In that regard, the Tribunal has reviewed the contents of the following documents:
·Pre-Employment Medical Questionnaire dated 25 July 2013 (R2)
·Report of Dr Colvin dated 3 March 2009 (R3)
·Letter from Dr Colvin to Dr Whelan dated 7 July 2009 (R4)
·Letter from John Dimoff to Tracy Warwick dated 2 July 2009 with attachment (R5)
·Letter from Brennan and Associates to Dibbs Barker dated 15 April 2009 (R6)
·Draft unsigned statement of John Kenand Dimoff (R7)
·Report of Dr McCarthy dated 22 January 2007 (R8)
·Claim for Rehabilitation/Compensation dated 23 March 2005 (R9)
·Report of Dr Michael Bloom dated 2 July 2005 (R10)
·Report of Dr Barrie Slinger dated 19 September 2006 (R11)
·Bundle of WorkCover Workers’ Compensation Progress Medical Certificates – pages 435-487 (R12)
·Settlement and Release Agreement dated October 2008 (R13)
·Report of Dr Colvin dated 2 March 2009 (R14)
·Clinical notes from Grange Medical Centre (R15)
CONSIDERATION
Diagnosis of Mr Dimoff’s Right Knee Injury
In its written submissions dated 4 March 2016, counsel for the Respondent described the nature of Mr Dimoff’s injury as “posteriorhorn tear of the medial meniscus, knee joint effusion and an injury to the medial patellofemoral joint”.
In written submissions dated 14 March 2016, counsel for Mr Dimoff wrote as follows:
13.... The nature of that injury is best appreciated by reference to [T7], an entirely objective assessment, which highlights:
(1)a tear “involving the posterior horn of the medial meniscus extending into the root and with probable involvement of the root ligaments”;
(2)“grade 1 sprain of the superficial medial collateral ligament and the medial patellofemoral ligament”;
and also mentions chondral wear and effusion.
14.Dr Hardcastle’s report [Exhibit Al, pp7 and 8], provides substantial corroboration of that.
…
16.It is accordingly submitted that on the evidence, the summary of injury at submission 3.1 of the respondent’s submissions would be better described as:
“injury to the right knee, involving posterior horn tear of the medial meniscus, knee joint effusion, injury to the medial patellofemoral joint and possible sprain of the medial collateral ligament and medial patellar-femoral ligament.”
Having reviewed the evidence before it, the Tribunal agrees that the best description of the nature of Mr Dimoff’s workplace injury is “injury to the right knee, involving posterior horn tear of the medial meniscus, knee joint effusion, injury to the medial patellofemoral joint and possible sprain of the medial collateral ligament and medial patellar-femoral ligament.”
“Injury” or “Disease”
There was considerable disagreement between the parties in relation to this issue. Not surprisingly, given the significance of section 10(7) of the SRC Act to this matter, the Respondent was keen to stress that Mr Dimoff’s injury was a “disease” as that term is defined in section 3 of the SRC Act. This is particularly relevant because, as noted above, to the extent that Mr Dimoff’s right knee condition is a “disease” then any evidence that he failed to disclose relevant medical evidence to his employer would mean that he is not entitled to any compensation of any sort under the SRC Act. If, however, the right knee condition is an “injury” then compensation may result.
This issue has been the subject of an enormous body of jurisprudence. It is complex and an understanding of how the relevant statutory definitions work within the particular facts and medical and non-medical facts of each case is not for the faint hearted.
During the hearing of this matter, the Tribunal specifically requested that final written submissions from the parties outline whether, applying relevant authority, Mr Dimoff’s right knee condition was a “disease” or an “injury” and why.
In written submissions dated 16 February 2016, counsel for Mr Dimoff contended as follows in relation to this issue:
3.Section 10(7) essentially provides that a disease or aggravation of a disease is not compensable in certain circumstances.
4.It is submitted that what incapacitated the applicant on 17 July 2014 and what necessitated medical treatment was not a disease but an injury:
a)    There is uncontradicted evidence that he had undergone strenuous medical examinations in 2013 and 2014 and was asymptomatic in the period leading up to 17 July 2014 [Exhibit Al, paras 28 to 35].
b)    On 17 July 2014, there was a “sudden identifiable physiological change” [Dr Hardcastle, Exhibit A2, p8; Applicant’s statement, Exhibit Al, para 39. See also Paramedic description at T9].
c)    The MRI from 2014 showed new pathology as compared with the MRI in 2009 [Dr Hardcastle, Exhibit A2, p8].
d)Any pre-existing degeneration “has not specifically contributed to the condition apart from weakening the structure of the medial meniscus” [Dr Hardcastle, Exhibit A2, p9].
5.Once it is determined that the incapacity and the need for treatment were caused by the “sudden identifiable physiological change”, the only other issue raised by the applicant’s and respondent’s Statements of Facts, Issues and Contentions is the extent of entitlements.
In written submissions dated 4 March 2016, counsel for Miclyn Express Offshore wrote as follows:
3. Injury
3.1The Respondent notes that the Applicant’s position is that liability exists under s 26 of the SRC Act for an injury described as “posterior horn tear of the medial meniscus, knee joint effusion and an injury to the medial patellofemoral joint”.
3.2The Respondent has accepted this injury in its Statement of Facts and Contentions.
3.3The Applicant also suffers from a chondral flap lesion of the patellofemoral joint, synovitis and a pre-existing (viz. pre-existing 17 July 2014) degenerative condition of the right knee. The Respondent’s submission is that none of these conditions is an “injury” for the purposes of section 6 of the SRC Act.
3.4The Respondent notes that the Applicant has not submitted that any other pathology of the Applicant's right knee is an injury for the purposes of the SRC Act.
3.5Accordingly, the Respondent makes no further submissions in respect of liability concerning the other pathology of the Applicant’s right knee, it being unnecessary for it to do so.
3.6It is, therefore, also unnecessary for the Respondent to make any submissions in support of the contention advanced in paragraph 4.4 of the Respondent's Statement of Facts and Contentions including that the pre-existing degenerative condition of the right knee is excluded by virtue of s 10(7) of the SRC Act.
In written submissions in reply dated 14 March 2016, counsel for Mr Dimoff then contended:
1.The applicant does not perceive that para 1 to 5 of its submissions dated 16 February 2016 are seriously disputed by the respondent’s submissions. Rather the basis of the respondent’s resistance to the claim has evolved so that it:
a)    no longer relies on exclusion by virtue of s10(7) of the Act (the basis of the determination dated 13 August 2014),
b)    Nor on attributing any capacity to a disease or other pre-existing condition (as in the statement of facts, issues and contentions 29 January 2016), …
….
5.Any reliance on 10(7) has been abandoned [see submissions 3.6]. Of the 17 pages, about 50% (notably pp 4 to 12) are devoted to consideration of the accuracy of the answers of the applicant to cross-examination on entirely collateral matters.
…
Relevant issues
12.Ultimately, it is submitted, there is little reason to reconsider any of the medical findings even if there were doubts about the applicant’s reliability.
Issue 1 – The injury
13.That there was a compensable injury to the right knee on 17 July 2014 is now conceded [see contention 4.1, respondent’s statement of facts, issues and contentions 29 January 2016]. The nature of that injury is best appreciated by reference to [T7], an entirely objective assessment, which highlights:
1)    a tear “involving the posterior horn of the medial meniscus extending into the root and with probable involvement of the root ligaments”;
2)    “grade 1 sprain of the superficial medial collateral ligament and the medial patellofemoral ligament”;
and also mentions chondral wear and effusion.
14.Dr Hardcastle’s report [Exhibit Al, pp7 and 8], provides substantial corroboration of that.
15.It is important not to confuse “diagnosis” with “injury”. “The diagnosis is just the best guess of the aetiology of the injury and may change over time as more relevant information comes to the attention of the medical practitioners (See Ballard, Annotated SRC Act 1988, 10^th Ed, p706 and the authorities there quoted).
16.It is accordingly submitted that on the evidence, the summary of injury at submission 3.1 of the respondent’s submissions would be better described as;
“injury to the right knee, involving posterior horn tear of the medial meniscus, knee joint effusion, injury to the medial patellofemoral joint and possible sprain of the medial collateral ligament and medial patellar-femoral ligament.”
Finally, in a response to these submissions in reply, counsel for the Respondent wrote:
1.2The Applicant’s further submissions (paragraphs 1(a) and 5) misstate the Respondent’s submissions. The agreed characterisation at the hearing of the injury as posterior horn tear of the medial meniscus, knee joint effusion and an injury to the medial patellofemoral joint, and there being no submission on the Applicant’s behalf that he also suffered further pathological change which could be characterised as a ‘disease’ made it unnecessary for the Respondent to make any submissions as to s 10(7) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the SRC Act”).
The first thing to notice in relation to the above is that despite a specific request from the Tribunal for analysis of relevant jurisprudence and its application to the facts of this case, and despite numerous pages of written argument, there is no reference, anywhere, to, or any discussion, anywhere, of the case law relevant to the meaning of “injury” and “disease” as those terms are used in the SRC Act. Given the significance of this issue to the outcome of this case, this is unhelpful.
What can be concluded from the written materials filed before the Tribunal is that the Respondent contends that Mr Dimoff’s knee condition constitutes a “disease”. It would appear that this contention is based on an assumption that because Mr Dimoff had a pre-existing ailment (“degenerative knee”) his work related injury of 17 July 2014 constitutes some sort of “aggravation” of that ailment, resulting in the injury being classified as a “disease” for the purposes of the SRC Act. Mr Dimoff’s counsel on the other hand, relying on the only medical witness before this Tribunal (Dr Hardcastle), contends “once it is determined that the incapacity and the need for treatment were caused by the “sudden identifiable physiological change”, the only other issue raised by the applicant’s and respondent’s Statements of Facts, Issues and Contentions is the extent of entitlements.”
Unfortunately, as stated above, neither counsel provided any legal analysis to support or refute these contentions and the assumptions that are the basis for them.
This then requires the Tribunal to determine how these terms are to be interpreted in relation to the specific facts of this case.
The Tribunal is greatly assisted in that regard by the decision of Deputy President Forgie in Re Bui and Australian Postal Corporation [2016] AATA 135 (“Bui”).
Although determined under a different statutory regime (the Safety, Rehabilitation and Compensation Act 1988), the analysis provided by Deputy President Forgie in relation to the meaning of “disease” and “injury” is nonetheless useful in relation to the issues before this Tribunal under the terms of the SRC Act.
Section 14(1) of the Safety, Rehabilitation and Compensation Act provides:
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.”
The term “injury” has the meaning given to it by s 5A of the Safety, Rehabilitation and Compensation Act, which provides that injury mean:
(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;
“Disease” in turn is defined in section 5B as meaning:
(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 employees employment by the Commonwealth or a licensee.”
“Aggravation” is defined in section 5B(2) as including “acceleration or recurrence”.
“Ailment” is defined in section 4 as meaning:
any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
The provisions in the Safety, Rehabilitation and Compensation Act 1988 to which Deputy President Forgie refers in Bui are essentially the same as those in the SRC Act relevant to Mr Dimoff’s matter.
In Bui, Deputy President Forgie provided an extensive and clear review of the jurisprudence in relation to the application of these terms, as follows:
What is a disease?
10.The concept of disease had been considered by the Federal Court in the case of Mooi. At the time it was decided, s 5B had not been enacted and the definitions of “disease” and “ailment” were found in s 4(1) of [the Safety, Rehabilitation and Compensation Act 1988] the SRC Act. Those definitions were in terms consistent with their current definitions. Drummond J began by noting that:
“By s 4, the term ‘injury’ means physical or mental injury other than disease, while the term ‘disease’ means any physical or mental ailment, disorder, defect or morbid condition. The expression ‘ailment’ is used in s 4 of the Act as a synonym for the term ‘disease’. It is apparent from the exhaustive meaning given by s 4 to the term ‘ailment’, and from the ordinary meaning of that word – ‘a morbid affection of the body or mind; indisposition: a slight ailment (The Macquarie Dictionary) – that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones.”
11.Referring to the ordinary meanings of the word “disease” as well as the meanings given in medical dictionaries, Drummond J concluded:
“Only conditions involving a disturbance of the normal functions of body or mind are within the term ‘disease’, as defined, and thus ‘injuries’ for the purposes of s 14(1) of the Act.”
….
What is an aggravation of a disease?
13.This was a question considered in Ogden Industries Pty Limited v Lucas (Ogden). Arising out of his employment, Mr Lucas suffered a coronary occlusion and myocardial infarction on 1 February 1965. That amounted to an injury in the form of an aggravation and acceleration of his coronary artery disease and myocardial degeneration. The disease progressed and he suffered a further coronary occlusion and myocardial infarction a little before 30 June 1965. A few days later, on 7 July 1965, he died from a pulmonary oedema. The parties had agreed that pulmonary oedema was a disease for the purposes of the Workers Compensation Act 1958 (Vic). It had arisen out of a sudden physiological change for the worse in Mr Lucas’s lungs and out of the work-aggravated and accelerated coronary artery disease and myocardial infarction. Mr Lucas’s pulmonary oedema was the terminal event in a long history of cardiac disease.
14.The majority of the High Court decided that Mr Lucas had not suffered a further injury within the meaning of the legislation. Windeyer J explained it in this way:
“... It seems to me that it is impossible to bring this occurrence within that definition. It was not in itself a disease contracted in the course of employment. Was it the aggravation ... of a pre-existing disease? It seems to me that it cannot be said that it was. ‘Aggravation’ means, I think, that an existing disease had been made worse, not that it has simply become worse.”
15.This is consistent with the views later expressed by the Full Court of the Federal Court in Commonwealth v Beattie. It was in a different factual and legislative context requiring consideration of whether incapacitating pain brought on by activity undertaken in the course of employment could constitute the aggravation of a physical injury notwithstanding that there was no pathological change. In their joint judgment, Evatt and Sheppard JJ said:
“It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place.”
What is an injury be it physical or mental?
16.In Canute v Comcare (Canute), the High Court made three general observations about the concept of an “injury”:
“... First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment; it is liable to pay compensation in respect of ‘the injury’. Secondly, the term ‘injury’ is not used in the Act in the sense of ‘workplace accident’. The definition of ‘injury’ is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body. Thirdly, the term ‘injury’ is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to ‘disease’ or ‘physical or mental’ injuries and, at least to that extent, it assumes that an employee may sustain more than one ‘injury’. The use in s 24(1) of the indefinite article in the expression ‘an injury’ reinforces that conclusion.”
17.The definition of “injury” is framed in disjunctive terms of “disease”, an injury within the meaning of s 5(1)(b) or an aggravation of a physical or mental injury as prescribed in s 5(1)(c). It is an exhaustive definition. That follows from the fact that Parliament has prescribed that the word “injury means” (emphasis added). It has not prescribed what it “includes”. Had it taken that latter course in the context of the SRC Act, I suggest that Parliament would be taken to have intended to enlarge the ordinary meaning of the word. By choosing the word “means”, Parliament has indicated that it intends the meanings it has given to be exhaustive.
18.When it is used in s 5(1)(b), the word “injury” is not further defined but, if it is to come within that paragraph and so be an injury within the meaning of the SRC Act, it must be one that has four particular features. One is that it is not a disease. That brings into consideration the meaning of “disease”. The second is that it may be either a physical or mental injury. The third is that it must be an injury “arising out of, or in the course of, the employee’s employment.” In this regard, the SRC Act draws a distinction between the consequences of a person’s suffering an injury or a disease. In the case of the former, there does not need to be proof of a specific causal connection between an injury and the employee’s employment. That contrasts with the requirement of the causal connection required by the definition of “disease” in s 5B(1) i.e. that it “... was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.” The definition of “injury” shares its fourth feature in common with that of “disease” and with an aggravation of a physical or mental injury. That feature is that it was not suffered as a result of reasonable administrative action. Beyond those features, I must look to the authorities in order to determine the meaning of “injury” as it is used in s 5(1)(b).
19.In Comcare v Etheridge, Branson J, with whom Spender and Nicholson JJ agreed, considered the definition of “injury” as it appeared in the Commonwealth Employees’ Compensation Act 1930 (1930 Act) in 1949. At that time, it had been amended to read:
“‘injury’ means any physical or mental injury and includes an aggravation, acceleration or recurrence of a pre-existing injury.”
Her Honour said:
“The above definition discloses an intention to put beyond doubt that a mental injury, and also an aggravation, acceleration or recurrence of a preexisting injury, is an ‘injury’ for the purposes of the Act. However, these kinds of the definition does not seek to give the word ‘injury’ a meaning other than that which it bears in common use. In common use, as the Macquarie Dictionary reflects, an injury is a harm sustained. In the context of workers’ compensation legislation an injury has long been understood in Australia to be a sudden or identifiable physiological change including a change internal to the body (see: Kennedy Cleaning Services Pty Ltd v Petkoska per Gleeson CJ and Kirby J at [35]-[36]).”
20.The case of Kennedy Cleaning Services Pty Limited v Petkoska, to which Branson J referred in this passage, arose in these circumstances. Mrs Petkoska had, for some years, suffered from rheumatic mitral valve disease. Her employment was not a contributing factor to her having contracted that disease or to its aggravation or acceleration. One day, she collapsed at work. As a result of a paroxysm of atrial fibrillation, a blood clot had formed in the left atrium and a piece had broken off. That piece had travelled directly to the left temporo-parietal region of her brain and immediately rendered her incapable of speech and incapacitated for work. A subsequent CT scan showed a lesion in that area of Mrs Petkoska’s brain. As Gleeson CJ and Kirby J said in their joint judgment, “... it is appropriate to conclude that the word ‘lesion’ in the medical reports here meant a sudden change or disturbance to the physiological state of ... Mrs Petkoska.”
21.Mrs Petkoska claimed compensation under the Workers’ Compensation Act 1951 (ACT) (ACT Act). Where a worker suffered personal injury arising out of or in the course of employment, the employer was liable to pay compensation. “Injury” had been defined in the ACT Act to mean “any physical or mental injury” and to include “aggravation, acceleration or recurrence of pre-existing disease”. “Disease” was defined to include “any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development” and “the aggravation, acceleration or recurrence of a pre-existing disease”. Where a worker’s employment was a contributing factor to his or her contracting a disease or suffering an aggravation, acceleration or recurrence of pre-existing disease, s 9(2)(c) provided that the contraction or the aggravation, acceleration or recurrence were deemed to be a personal injury arising out of the employment of the worker.
22.On appeal, the employer had argued that the AAT Act had established mutually exclusive classifications of claims for compensation for an “injury” and those for compensation for a “disease”. This was rejected by the High Court. In their joint judgment in Kennedy Cleaning Services Pty Limited v Petkoska, Gleeson CJ and Kirby J underlined previous authority to the effect that:
“... the inclusion in the definition of ‘injury’ in s 6(1) of the Act of ‘mental injury’ makes it plain beyond argument in this case that the injuries for which the Act provides are not confined to those originating externally to the body of the worker.
Secondly, the mere fact that a sudden physiological change is in some way connected with an underlying ‘disease’ process does not, of itself, prevent the classification of such a change as an ‘injury’ within the primary statutory provisions that apply to such a case. All the members of this Court in the majority in Zickar [Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310] referred with approval to the remarks of Murphy J in McIntosh [McIntosh [1991] VicRp 65; [1991] 2 VR 253] with whom both Crockett and Cummins JJ agreed. In McIntosh, the Court was considering a case involving a sudden rupture of blood vessels and a consequent cerebral haemorrhage arising from arteriovenous malformation. It was called upon to decide whether such a rupture could amount to a ‘physical injury’ within the Accident Compensation Act 1985 (Vict.). In the passage specifically approved in the joint reasons in Zickar, this is what Murphy J said:
‘If the rupture is due to blood pressure, arteriosclerosis, arteriovenous malformation, or any other congenital or diagnostic aetiology, it is nonetheless a rupture – something quite distinct from a defect, disorder or morbid condition, which enables it to occur.’”
Distinguishing between an injury (physical or mental) and a disease
23.In order to determine whether a person has suffered an injury or a disease, close regard must be had to the evidence. After reviewing some of the previous authorities, Gleeson CJ and Kirby J said in Kennedy Cleaning Services Pty Limited v Petkoska:
“... All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and the incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word. If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the worker’s employment. If the propounded ‘injury’ is distinct from the underlying pathology that constitutes a ‘disease’ that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met.
The foregoing approach does not rob the disease provisions of the Act of utility. They would apply in cases of a disease in the nature of dermatitis, lead poisoning, brucellosis and many others of a progressive type. The disease provisions remain as an alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an ‘injury’ in the primary sense. There is no reason to read the word ‘injury’ down because of the alternative and additional definition of compensable disease conditions. On the contrary, considerations of the language and structure of the Act, of legislative history and of the proper approach to construing such legislation reinforce the conclusion to which the majority came in Zickar.”

In applying the above principles to the facts of Mr Dimoff’s case, the Tribunal can only refer to the evidence before it.
In that regard, the Tribunal notes that before this Tribunal there was credible written and verbal evidence from only one medical specialist - Dr Hardcastle - who prepared a detailed medical report at the request of the Respondent and who appeared as a witness before this Tribunal. Somewhat surprisingly, no medical witnesses were called by the Respondent.
Dr Hardcastle’s written evidence states quite clearly that the workplace incident of 17 July 2014 resulted in a “sudden identifiable physiological change” (A2 at 8).
Further, Dr Hardcastle concludes that although there was a pre-existing degenerative condition, this pre-existing condition has not specifically contributed to the injury in question (A2 at 9)
Further, in his written report, Dr Hardcastle writes as follows:
b)Given the applicant’s history and after review and consideration of the enclosures, when do you consider that the described condition arose?
“This is a difficult question to answer as he did have the previous knee injuries, one which I reported earlier with the surgery in 1975. He reported no further problems from this, though there is an MRI of 2009 showing the degenerative disease.
Following the reported injury, the MRI has shown new pathology with a significant tear of the posterior horn of the medial meniscus consistent with an injury occurring when getting into the bunk in July 2014. There is also evidence on the post-operative of a chondral flap lesion of the patellofemoral joint and some synovitis which potentially relate to this particular injury.
Therefore, at this stage the evidence supports that he developed a new injury in July 2014 and that is when this condition arose on a background of longstanding, pre-existing degenerative problems, which were asymptomatic.
c)Do you consider the condition suffered by the applicant is best described as a sudden identifiable physiological change or did it have a gradual development over time?
There is evidence that this was a sudden identifiable physiological change with a posterior horn tear of the medial meniscus and most likely a knee joint effusion as well as an injury to the medial patellofemoral joint.
d)If you consider the condition as a sudden, identifiable physiological change, do you consider that it was contributed to by some incident or aspect of the applicant’s employment or his work generally? If so, how?
In my opinion, his work activities have been a significant aggravating factor to the injury as described, accepting his veracity. When trying to get up onto the top bunk with his weight on his lower limbs and pushing off where one would normally rotate through the feet, given that the pelvis would have been close to the bed and not allowing a lot of rotation here, his foot became jammed because of the nature of the contour of the lower bunk, and the rotation forces transferred to the knee associated with compression as he was taking the weight.
e)If you consider the condition to have gradually developed over time, do you consider that it was contributed to, to a material degree, by the applicant’s employment? If so, how?
Not applicable.
f)Are there any non-work related factors which have caused or contributed to the applicant’s condition? If so, please indicate what these factors are.
He does have pre-existing degeneration, in particular involving the patellofemoral and medial compartment due to a previous injury in approximately 1975.
This has not specifically contributed to the condition apart from weakening the structure of the medial meniscus as evidenced on the MRI, but it does make it more susceptible to ongoing chronic pain due to the underlying degenerative condition.
In relation to the above and the issue of what is a “disease” versus what is an “injury”, Dr Hardcastle makes clear that Mr Dimoff’s workplace injury was not aggravated by or in any way related to his pre-existing degenerative knee ailment. They were separate and distinct at the time of the workplace accident. The degenerative ailment existed but the July 2014 injury was not aggravated by it. Rather, the July 2014 injury will now likely aggravate his pre-existing ailment – not the other way around.
The Respondent would have this Tribunal accept that an Applicant can never receive compensation for a new, unrelated “injury” because of the existence of a pre-existing but unrelated “ailment/disease” – ie, that in those circumstances, the injury becomes a “disease”, thus triggering section 10(7) of the SRC Act. This would mean that any new injury could never be compensated if there was a pre-existing but completely unrelated disease about which the Applicant had remained silent.
Applying Bui and the authorities cited therein, the Tribunal does not read the legislation to be so restrictive. The Tribunal finds, after considering the precise evidence in relation to what happened to Mr Dimoff on 17 July 2014 that what occurred and what resulted can be characterised as an “injury” in the primary sense of that word. The propounded injury is distinct from an underlying pathology that constitutes a “disease”. On the evidence, there is no causal connection between the latter “injury” and the former “ailment/disease”. As at July 2014, they were separate, unrelated and distinct. What happened on 17 July 2014 can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state – an “injury” that is not a “disease” as that term is used in the SRC Act. This, in turn, means that the provisions of section 10(7) of the SRC Act do not apply. Mr Dimoff is thus entitled to seek compensation – an issue addressed by the Tribunal below.
Credibility Issue
In evidence before this Tribunal, solicitors for the Respondent filed extensive submissions questioning Mr Dimoff’s credibility as a witness.
The Tribunal expresses concern in relation to the way in which this was approached. In that regard, the following references to Mr Dimoff’s credibility as stated in the Respondent’s Outline of Submissions dated 4 March 2006 bear highlighting:
2.2The Applicant has also suffered, and continues to suffer, a number of other heath complaints. Whilst these conditions do not directly relate to his knee injury they are nonetheless relevant to the issues which the Tribunal needs to decide. This is because:
(a)the Applicant’s general evasiveness and outright lies when questioned about these matters – and about his right and left knee conditions – are such that the Tribunal would find that he is a wholly unreliable witness;
…
Dr Hardcastle
3.32The Applicant also withheld information from Dr Hardcastle. Firstly, the Applicant withheld any information from Dr Hardcastle about his injury to the right knee in 2009. Dr Hardcastle discovered this injury when he accessed radiological investigations. The Applicant also withheld any information from Dr Hardcastle about seeing a specialist orthopaedic surgeon, Dr Colvin, concerning his right knee in 2009.
3.33Dr Hardcastle had presumed that the Applicants right knee symptoms had settled down. He made this presumption because the Applicant told him nothing about the right knee injury in 2009 and because the Applicant told him he went back to work in 2010. This was false information. On the evidence most favourable to the Applicant he did not return to any work until 2012.
The Applicant’s excuses
3.34The Applicant provided various excuses for the lies he had been caught out making. The Applicant sought to distance himself from what was in the Questionnaire by stating as follows:
So, that’s your writing?---Yes.
In any event, you signed this form to say that it was accurate, didn’t you?---I don’t normally read things properly before I sign them.
You’re saying you don’t read things properly before you sign them; is that what you’re saying, Mr Dimoff?---Yes, correct.
3.35The words of George Washington are apt here: “It is better to offer no excuse than a bad one.”
3.36There can be no mistake: the Applicant knew his statements to his prospective employer were false and made them with the intention that his prospective employer would believe them to be true.
3.37Further examples abound of the Applicant’s excuse-making to cover his lies and deceit.
3.38The Applicant sought to distance himself from the letter to Woolworths by seeking to attribute its contents to his daughter who had typed it for him. The Tribunal should not accept this. The Applicant is an experienced litigant. He admitted so himself. There can be no mistake: the statements in this letter were the Applicant’s own.
3.39The Applicant made a belated attempt to excuse his non-disclosure of his medical history because of the discrimination he would have endured from giving proper disclosure:
Yes. So you went through a medical examination but you didn’t tell the examiner about your heart attack, your depression, your left knee problem, your right knee problem, your headaches, did you?---Well, you – you – sometimes you can’t put everything because then it’s discriminate – they discriminate against you for – for a job, when you need work.
Okay, so you didn’t reveal that information because you thought you’d be discriminated against?---Well, if some people say they have a compo claim or they get headaches or something the employers do discriminate against them.
You’re making this up as you go along, I suggest to you, Mr Dimoff. You didn’t tell the tribunal at any time earlier today that the reason you gave false answers in your employment questionnaire to Leighton is because you were concerned about being discriminated against, did you?---No.
3.40In order to diminish the importance of the right knee injury in February 2009, the Applicant asserted that the operation was all Dr Colvin's idea: The Tribunal is specifically referred to page 17 at line 19 where the Applicant said: “No, Dr Colvin was insisting on having a arthroscopy.” The Applicant even went so far as to claim that it was Woolworths which had insisted that he get his knee checked out, not him.
3.41All these various excuses do is highlight what a habitual and opportunistic liar the Applicant is. The Applicant chooses to follow his own definition of what a lie is:
So you presented as a representation to Woolworths that you’d suffered a major heart attack, didn’t you?---Well, yes.
And you told this tribunal that on 16 March 2009 you suffered a major heart attack in your statement, didn’t you?---I signed it, yes.
Okay. And yet when I asked you about exhibit R02, about your general health and your failure to mention your heart attack, you said the reason you didn’t mention it in that pre-employment medical was because it was a minor?---It’s minor and personal to me.
It’s personal?---Yes.
Well, if it was personal to you why were you telling Woolworths about it and trying to get them to pay on the basis that you’d suffered a significant heart attack?---(No audible reply)
Why?---(No audible reply)
You were prepared to lie to Woolworths, were you, and present this heart attack as being major when it was in fact minor, is that the answer?---No, it’s not lying, it’s may – might have dramatised.
So it’s all right to exaggerate something that’s minor and call it major? That’s fine with you, is it?---All means the same to me.
And so equally, when you describe your current symptoms in respect of your right knee?---Yes
3.42The first point that can be said about this evidence, is that the Applicant's attributing to Woolworths liability for his major heart attack was not mere dramatisation. It was a lie, pure and simple. The second key point is that the Applicant’s concession, extracted under cross-examination that, to him, it is legitimate and permissible to exaggerate for the purpose of a legal claim is critical to the Tribunal's assessment of everything the Applicant has said about his symptoms and level of incapacity.
3.43Another matter which further diminishes the Applicant's credit is his excuse that he did not reveal information about certain injuries to his prospective employers because he was prevented from discussing or disclosing the injuries relating to his previous workers compensation claim by his settlement agreement. This excuse is entirely disingenuous. Why would the Tribunal accept this explanation when the Applicant has clearly lied about so many other things? The simple fact is that the Applicant had very good reasons not to disclose the injuries he claimed to have suffered in 2006 (and at other times) to his prospective employers, namely that disclosure would inevitably had led a chain of inquiry revealing that that he had been certified as being totally incapacitated for work, and had both claimed, and received, substantial compensation for that incapacity. The Applicant cannot have reasonably believed that this settlement agreement prevented him from truthfully telling a prospective employer about the fact that he had suffered injuries to his left knee and right elbow in 2004 and the fact that he had surgeries for these injuries.
Conclusions
3.44 The Tribunal should find that:
(a) The Applicant has repeatedly lied to suit his purposes;
(b)The Applicant has repeatedly lied in a workers compensation context;
(c)The Applicant’s veracity is critical to the Tribunal’s findings about his capacity to work;
(d)Dr Hardcastle relied on the Applicant’s veracity (including the genuineness of his symptoms) in formulating his opinions ….
The above amounts to an extraordinary attack on Mr Dimoff’s character and seems unnecessary. The use of descriptives such as “liar”, “deceitful”, “caught out making lies”, “habitual and opportunistic liar” (all tied together with an unreferenced quotation from George Washington) is overstated and not particularly useful as a form of advocacy before a tribunal or court. Indeed, what occurred here was entirely inappropriate.
It is also not entirely clear why this was done. On one level, despite a lack of clarity, it appears that this was done in order to bring into question the reliability of Dr Hardcastle’s evidence. In particular, much is said by the Respondent about the fact that Mr Dimoff had not disclosed all of his previous medical, employment and legal history to Dr Hardcastle. This, according to the Respondent, means that Dr Hardcastle’s conclusions were formed on the back of misrepresentations and/or an incomplete summary of the past.
In relation to this issue, the Tribunal notes that despite being provided relevant details about these past medical events during the hearing of this matter, Dr Hardcastle did not withdraw or amend his conclusions in relation to whether Mr Dimoff suffered a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state and/or whether what occurred was in any way related to a pre-existing degenerative condition/ailment/disease. Dr Hardcastle did say when cross examined that medical history would have been important to the views he expressed in his medical report but, as noted by counsel for Mr Dimoff in his written submissions in reply, Dr Hardcastle did not say that his views had changed as a result of new information. This is significant.
In the circumstances, the Tribunal finds no reason to question or doubt the conclusions reached and articulated by Dr Hardcastle in so far as his evidence relates to the issue of whether what occurred to Mr Dimoff can be classified as an “injury” or a “disease”. On the basis of his evidence, the Tribunal finds that Mr Dimoff’s right knee condition is an “injury” for the purposes of the SRC Act. It is not a “disease”.
Work Capacity
Similar concerns arise in relation to the issue of work capacity.
In relation to work capacity, the Respondent contended as follows in submissions dated 4 March 2016:
4.        Incapacity for work over the period from 17 July 2014 to the present.
What was the Applicant’s capacity for work before July 2014?
4.1To recap briefly, on 15 December 2004 the Applicant injured his left knee in an incident at work. This injury was the subject of a previous claim for compensation under the SRC Act. The Applicant pursued proceedings in the Tribunal for compensation under the SRC Act respect of this injury.
4.2The Applicant was examined by Dr Michael Bloom, Occupational Physician on 2 July 2005 (10 months post injury) at the request of his employer’s insurer. Dr Bloom details that he limped into and out of the examination room. His complaints to Dr Michael Bloom included him being in constant pain, being unable to bend the knee fully, it remaining swollen and debilitating, and thus being unable to fully weight bear bend the knee or squat.38
4.3Dr Barrie Slinger, orthopaedic surgeon, examined the Applicant on 11 September 2006 (1 year 9 months post injury) at the request of his employer’s insurer and provided a report dated 19 September 2006.39
4.4Dr Slinger recorded the complaints the Applicant reported to him as follows:
At the left knee he experiences pain as a deep throbbing, ache within the knee, as if something is exploding from the front of the knee, crunching or crepitus on certain movements and burning or tingling discomfort about the superior aspect of the knee, which radiates proximally along the lateral thigh.
Pain is aggravated by weight bearing, prolonged standing or walking, and has to move and change position, or sit to rest. When walking he does so by hobbling or limping and can tolerate less than 400 metres.
Pain and stiffness prevent him from crouching or kneeling, negotiating steps he does so one step at a time, leading with the right foot, using the rail where necessary, or in general, preferring to avoid steps.
Symptoms prevent him from running, hopping, skipping or jumping, there has been no obvious giving way and on occasions he has noticed swelling about the knee, associated with increased heat. There is prominent muscle wasting about the thigh, symptoms commonly wake him at night and he usually requires a rest in the afternoon.
4.5Dr Slinger outlined the progression of the injury through 2005 and 2006 finally noting that with respect to the applicant’s capacity to work:
“this man is not fit to return to his pre-accident employment. The only capacity he would have for work would be in a position which would allow him to primarily sit at a desk or workbench although clearly he has no previous or prior experience in such employment and would require vocational guidance, counselling and assessment as to appropriate retraining or redirection”.
4.6He was asked whether the applicant would eventually be able to return to pre-injury duties and noted:
“This man is permanently unfit to return to his pre-injury duties and I have indicated in the proceeding my recommendations as to the alternative employment which would require appropriate vocational assessment and guidance from a rehabilitation provider.”
4.7Dr Peter McCarthy, Consultant Psychiatrist, examined the Applicant on 9 January 2007 (2 years post injury) at the request of his employer’s insurer and provided a report dated 22 January 2007.40 Dr McCarthy recorded his complaints as follows:
Mr Dimoff complains that he continues to suffer from constant left knee pain radiating to left thigh and aggravated by weight bearing. He says he can walk but is limited to about 300 m by pain and cannot keep up with his wife. He says that with walking he will have back and left hip pain as well as left knee pain. He says he still has a sore left elbow and he says he suffers from headaches, occasionally with photophobia, usually on the left side, two or three times a week.
4.8The Applicant supplied certificates evidencing that he was totally unfit for work at all times between May 2005 and 17 November 2008. In October 2008 the Tribunal proceedings were settled. A copy of the settlement in release agreement was tendered at the hearing. This ended the Tribunal proceedings and, therefore, the need for the Applicant to submit any further medical certificates evidencing that that he was totally unfit for work. This explains why there are no further medical certificate after that date.
4.9By 17 October 2008 the Applicant had been incapacitated for work from nearly 3½ years. The contemporaneous medical reports over this period the Applicant paid paint a picture of overwhelming incapacity which would be ongoing.
4.10The Applicant says that he commenced working for Broadsword Marine Contractors Pty Ltd in 2012. He claims to have done two short stints of work for Broadsword, in 2012 and 2013 respectively.
4.11Accordingly, on the best evidence for the Applicant, he had not worked for a period of about seven years from May 2005 and there is ample evidence that he was incapable of doing so as a marine engineer.
4.12 In his statement the Applicant claims that he worked for Broadsword for about six months immediately prior to commencing his employment with the Respondent (at the end of February 2014). The Applicant gave no real evidence about the nature of his duties in this employment with Broadsword. What is notable is that Broadsword is the same company which provided the Applicant with a letter in support of his claim against Woolworths. The Applicant told the Tribunal that the Managing Director of the company (Mr Grant Faris) was his friend. The Applicant was categorical in seeking to have the Tribunal believe that this was not in truth a job but was more of a helping hand from a friend. He describe the role that he was to perform for his friend that this company in 2009 as follows: “No it wasn't work”.
4.13The Applicant produced no income taxation returns to corroborate that he ever worked for this employer. He was caught out telling lies to Dr Hardcastle about this employment. He told Dr Hardcastle that he was in this employment from2010 which was patently false. He has also been caught out elsewhere lying that he worked for Broadsword for 7 years.
4.14In all of these circumstances, it is submitted that the Tribunal would not accept that there is sufficiently reliable evidentiary basis to find that the Applicant ever worked for Broadsword or, if he did, that he actually performed engineering duties in such an employment. He may have performed some role for Broadsword, but this is not evidence that he demonstrated the capacity to work as an engineer for Broadsword.
4.15Dr Hardcastle was asked about the Applicant's capacity for work before July 2014 in light of the contents of the reports of Drs Bloom and Slinger and what he otherwise understood to be the position with the Applicant’s left knee condition. Unsurprisingly, Dr Hardcastle was not in a position to categorically say whether the Applicant would have had capacity to perform work duties as an engineer over this time or not. What he could and did say is that he agreed that the sorts of duties an engineer performed were contra indicated and he would advise against them.45 He also agreed with medical advice in the mid 2000's (Dr Bloom and Slinger) that the Applicant was not going to be able to perform normal engineering duties.
4.16The Applicant’s only confirmed period of employment is his employment with the Respondent from the end of February 2014 to 7 July 2014 when he was injured, a period of some 4½ months. Whilst the Applicant was able to perform his engineering duties over this limited period of time, it by no means follows that he had ongoing capacity to perform these duties. The Applicant has not demonstrated that his knees, both left and right, could withstand the rigours of working as an engineer for a sustainable period. The evidence outlined above points to the contrary. Further, the evidence outlined above makes it probable that the Applicant would not have been able to sustain performing his duties as an engineer even if he had not injured his knee on 17 July 2014.
4.17The Applicant places reliance on himself having being certified fit to work as a chief engineer. However, he did not call evidence to support this assessment, and any such certification is liable to be undermined by the same matters as have been submitted in respect of Dr Hardcastle's written opinion, namely it surely depended on the Applicant’s veracity with the certifying doctor.
4.18In summary, the only evidence before the Tribunal that the Applicant had a sustainable capacity to work as an engineer is his own evidence. As a witness with no credibility, his evidence should not be accepted.
4.19For these reasons, the Respondent submits that the Applicant has not suffered any compensable incapacity for work over the period from 17 July 2014 to the present.
4.20Alternatively, the Tribunal could instead approach the matter on the basis that there is, as outlined above, compelling evidence pointing to a finding that the Applicant did not have a sustainable capacity to work as an engineer but that it is impossible to be certain about when this incapacity would have prevented the performance of his duties. Recognising this, it is submitted that a legitimate alternative approach is to find that the Applicant suffered incapacity for a discrete period as a result of his right knee injury. Weighing up the evidence, if the Tribunal adopts this approach then the Respondent submits that a period of three months of incapacity from 17 July 2014 is reasonably appropriate balancing the competing considerations.
4.21The Applicant had arthroscopic surgery on 26 August 2014 and removal of the meniscal tear. With regards to the Applicant’s post-operative situation, Dr Hardcastle’s evidence was that:
(a)the Applicant has ongoing fairly generalised right knee pain consistent with patellofemoral and medial compartment problems relating to degenerative issues and most likely some synovitis;
(b)the source of the Applicant’s ongoing symptoms was his underlying pre-existing degenerative condition;
(c)if not for the Applicant’s degeneration he would have expected “a very quick recovery”.
4.22On the basis of this evidence, which it is submitted the Tribunal ought to accept, the period of any incapacity resulting from the Applicant’s right knee condition ended a short period after the Applicant’s operation. The Respondent submits that a matter of weeks is a reasonable time to allow for this period.
4.23It is submitted however that the Tribunal would have great difficulty accepting that the Applicant’s right knee condition was in truth causing him incapacity for work from any time shortly after his arthroscopy.
4.24In this regard, Dr Hardcastle said that his opinion in terms of the Applicant’s incapacity at the time he saw him was based on three things: what had had been told by the Applicant; what he examined; and what he saw radiologically. As to the first of these matters, the Applicant told Dr Hardcastle relevantly that:
(a)       he was in severe pain at the time of the assessment;
(b)       that pain prevents him standing for more than one hour;
(c)       pain prevents him from walking more than 100 m;
(d)       pain caused him to have less than four hours sleep;
(e)       the other matters outlined on page 4 of his report.
4.25This information was plainly highly relevant to the Applicant’s functional capacity and, therefore, as assessment of his capacity for work. Further, it was all entirely subjective information depending upon the Applicant’s veracity. Dr Hardcastle accepted this information as being genuine and true.
4.26Further a number of the results of Dr Hardcastle's examination of the Applicant were, as Dr Hardcastle said, entirely subjective, namely the Applicant’s complaint that his pain impacted on his rotation and other tests and prevented him from squatting. This part of the examination was plainly highly relevant to an assessment of the Applicant’s capacity for work.
4.27Accordingly, because the Applicant was not a credible witness, the basis of Dr Hardcastle’s opinion that the Applicant’s right knee condition causes him ongoing incapacity cannot be substantiated, per the Ramsay principle.

In relation to these submissions, counsel for Mr Dimoff responded as follows:
17.The applicant’s evidence is that his symptoms from the 2009 fall “came good" [Exhibit Al, para 24] and there is no material which justifies doubting that. Similarly there is no reason to doubt his statements at paras 31 and 34, that he passed two medical examinations and was considered fit – on the contrary, the respondent might have been expected to adduce any contrary evidence it has as a result of the mountain of subpoenas and its position acting for the respondent (“Samson”). Purkess v Crittenden (1965) 114 CLR 164 creates a presumption that the (unchallenged) incapacity immediately following the accident was caused by the accident in the absence of evidence to the contrary.
18.If further evidence were needed, the fact that the applicant worked without incident for the respondent between February and the injury in July 2014 would supply it.
19.For the respondent to assert [submission 4,16] that “the applicant has not demonstrated that his knees both left and right could withstand the rigors of working as an engineer for a sustainable period’\ is to reverse the onus of proof.
20.The same rules apply to incapacity following the surgery on 26 August 2014. There is no evidence that “a matter of weeks is a reasonable time to allow” [submission 4.22]. On the contrary, we have the evidence of incapacity in the certificate [T14] and also in Dr Hardcastle [Exhibit A2, p10] which he confirmed at the end of his evidence that he adhered to (the applicant refers in particular to 3.3(e)). By then Dr Hardcastle had been apprised of all the matters which the respondent says he should have known about.
21.While Dr Hardcastle did say that the medical history would have been important to his views, he did not say that his views had changed as a result of any new information.
22.If findings cannot be made by the Tribunal beyond the three months referred to in the respondent’s 4.20, then the ensuing period can be left to further determinations by the employer.
The Tribunal can only rely on the evidence it has before it. In that regard, the Tribunal notes that only Dr Hardcastle was called as a medical witness and cross examined on his expert evidence. He struck the Tribunal as highly credible and objective in his assessment of Mr Dimoff’s work capacity both before and after the workplace incident of 17 July 2014. As noted above, there is nothing in his evidence that would lead the Tribunal to conclude that Mr Dimoff’s injury of 17 July 2014 was related to a pre-existing degenerative knee condition.
Dr Hardcastle concludes that following the workplace accident of 17 July 2014, Mr Dimoff was unable to work, writing as follows:
g)If you consider the applicant has suffered or does suffer from a condition contributed to by his employment:
i)Have the effects of the work related condition ceased, and if so, when did they cease?
The surgery would have removed the medial meniscus tear which has been supported on the MRI, but there have been ongoing effects and synovitis that is present. The other chondral tear on the medial patella could well be still related to the injury leading to a protracted recovery.
ii)If they have not ceased, what current symptoms continue to be contributed to by his employment?
The evidence does support that current symptoms are at least still being contributed to by the injury to a reasonable extent appreciating that the underlying degenerative condition would be also having some effect on his current symptoms.
iii)If they have not ceased, when do you expect that the employment related effects of the injury (if any) will cease.
I would expect that potentially the employment related effects would resolve over a period of between six to twelve months depending on his progress and response to further treatment.
In relation to whether or not the Tribunal should accept Dr Hardcastle’s findings in relation to work capacity (in light of arguments advanced by the Respondent about Mr Dimoff’s credibility), the Tribunal again stresses that it places considerable reliance on the expertise of the medical witnesses who appear before it. In that regard, the Tribunal repeats what it said above at paragraph 70. Specifically, despite being provided relevant details about past events and issues of credibility that might logically arise in that regard, Dr Hardcastle did not withdraw or amend his written conclusions in relation to work capacity. Despite an extensive cross examination, Dr Hardcastle did not say that his views had changed. Again, this is significant.
In the circumstances, the Tribunal accepts Dr Hardcastle’s evidence in relation to Mr Dimoff’s capacity for work post injury. Accordingly, for the period 17 July 2014 (the date of injury) to the present date, compensation is payable to the Applicant for incapacity for work as a result of the injury in accordance with section 31 of the Seafarers Compensation and Rehabilitation and Compensation Act 1992 (Cth).
Other Entitlements
In relation to any other entitlements, counsel for Mr Dimoff contended as follows:
23.Clearly the cost of the surgery ($6,500) is due to the applicant, together with any other expenses vouched to and determined by the respondent.
…
25.The entitlement to a rehabilitation program is triggered by 28 days of incapacity (see s49). That existed and yet there was no assessment of capability made by the respondent.
The Tribunal agrees and finds that pursuant to section 28 of the SRC Act, Mr Dimoff is entitled to the costs of his right knee surgery, together with any other expenses vouched to and determined by the Respondent.
Further, having found that Mr Dimoff is entitled to compensation for his injury, and in light of the provisions of sections 49 and 50 of the SRC Act, the Tribunal finds that the Respondent is required to arrange an assessment of Mr Dimoff’s capacity under section 49 of the SRC Act and make arrangements under section 50 for the provision of a rehabilitation program.
DECISION
On 17 July 2014, Mr Dimoff suffered an injury (other than a disease) as that term is used in section 3 of the SRC Act - that being an injury to the right knee, involving posterior horn tear of the medial meniscus, knee joint effusion, injury to the medial patellofemoral joint and possible sprain of the medial collateral ligament and medial patellar-femoral ligament.
In the circumstances, as Mr Dimoff’s injury does not constitute a “disease” for the purposes of the SRC Act, section 10(7) of the SRC Act does not apply to these proceedings.
Accordingly, the decision under review is set aside and, in substitution therefor, it is decided that:
·Liability exists as a result of an injury sustained by the Applicant to the right knee, involving a posterior horn tear of the medial meniscus, knee joint effusion, injury to the medial patellofemoral joint and possible sprain of the medial collateral ligament and medial patellofemoral ligament.
·For the period 17 July 2014 (the date of injury) to the present date, compensation is payable to the Applicant for incapacity for work as a result of the injury in accordance with section 31 of the Seafarers Compensation and Rehabilitation and Compensation Act 1992 (Cth).
·For the period 17 July 2014 to the present date, compensation is payable to the Applicant for the cost of medical treatment for the Injury sustained by the Applicant on 17 July 2014, in accordance with section 28 of the Seafarers Compensation and Rehabilitation and Compensation Act 1992.
·The Respondent is to arrange for assessment of the Applicant’s capability under section 49 of the Seafarers Compensation and Rehabilitation and Compensation Act 1992 and make arrangements under section 50 for provision of a rehabilitation program.

I certify that the preceding 84 (eighty four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall
...............[sgd D Brodie]..........................
Administrative Assistant
Dated 29 April 2016

Dates of hearing 3 and 4 February 2016

Date final submissions received 15 March 2016

Counsel for the Applicant Mr D Bruns

Solicitors for the Applicant McNally Jones Staff

Counsel for the Respondent Mr A Harding

Solicitors for the Respondent Sparke Helmore

Division	GENERAL DIVISION
File Number	2015/0363
Re	John Dimoff
APPLICANT
And	Miclyn Express Offshore (Australia) Pty Ltd
RESPONDENT

Tribunal	Deputy President Dr Christopher Kendall
Date	29 April 2016
Place	Perth

Dates of hearing	3 and 4 February 2016
Date final submissions received	15 March 2016
Counsel for the Applicant	Mr D Bruns
Solicitors for the Applicant	McNally Jones Staff
Counsel for the Respondent	Mr A Harding
Solicitors for the Respondent	Sparke Helmore