Evans and Comcare
[2003] AATA 1281
•16 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1281
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/439
GENERAL ADMINISTRATIVE DIVISION )
Re KEITH EVANS Applicant
And
COMCARE
Respondent
DECISION
Tribunal The Hon CR Wright, QC (Deputy President) Date16 December 2003
PlaceBrisbane
Decision The decision under review is affirmed. .................(Sgd).......................
The Hon CR Wright, QC
Deputy President
CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements – Army officer fell downstairs and injured his shoulder when his knee unexpectedly collapsed after his discharge – whether the knee collapse was caused by the effects of a compensable injury during Army service – effect of knee injury prior to enlistment
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
16 December 2003 The Hon CR Wright QC (Deputy President) Background
1. On 4 May 2001 the applicant, Keith Evans, lodged a claim for rehabilitation and compensation benefits under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) with the Department of Defence in respect of an injury to his right shoulder. In the claim form (see Exhibit 1 – “T” Documents T4 at page 10) the applicant alleges that the injury occurred in “1997”.. The applicant, who had served as a Major in the Health Corps of the Army for several years, was discharged on either 9 or 10 February 1997.
2. The applicant had been serving as an administrative officer in the Health Corps in Western Australia when a decision was made to discharge him as medically unfit. As he wished to live in Queensland during his retirement it was decided to transfer him to the South Queensland Discharge Centre for the final administrative procedures to be completed. Accordingly, he travelled to Queensland. No active duties were required of him at this stage and he took up temporary residence at the Dockside Hotel in Brisbane.
3. Shortly thereafter, with the permission of the commanding officer of the Discharge Centre, Major Brian Grear, the applicant took up residence in the Kippa-Ring area. So long as the applicant and other dischargees under the control of the Discharge Centre reported in each day and provided information as to their whereabouts, so that they could be called back for duty at any time, as and when required, there were no restrictions upon their daily movements.
4. Availing himself of the considerable free time which this regime afforded him, the applicant started searching for a house to purchase for his retirement accommodation. As he suffered from a number of disabilities, in particular to his right leg, he sought and obtained the assistance of a friend, Mr Royston Turner, to drive him about while he was inspecting prospective purchases.
5. There is no dispute as to the foregoing chronology of facts and I accept them as proved.
The Injury and Claim for Compensation
6. The applicant says that on either 27 or 28 January 1997 whilst inspecting a house at 10 Beach Street, Kippa-Ring he placed weight on his right leg whilst descending a short flight of stairs and as a result his leg unexpectedly gave way and he fell down the stairs on to the concrete beneath, injuring his shoulder.
7. His claim for compensation in respect of the injured shoulder proceeded on the basis:
(a)That the collapse of his right leg had been caused by a compensable injury which he had sustained to that leg during the course of his career with the Australian Army and, consequently, the later injury to his shoulder should be assessed as resulting from the original knee injury and compensable accordingly.
(b)That in any event the applicant’s shoulder injury arose out of or in the course of his employment as he was on duty in all relevant respects at the time he sustained the fall.
8. On 9 May 2002 a delegate under the Act from the Commonwealth Department of Veterans’ Affairs disallowed the applicant’s claim. That disallowance was confirmed on 16 May 2002 after the delegate had been provided with additional information. The applicant’s solicitors requested reconsideration of the decision on 8 November 2002. On 27 March 2003, after reconsideration by the Manager Reconsideration of the Military Compensation and Rehabilitation Service, the decisions of 9 and 16 May 2002 were affirmed.
The Application to Review
9. On 27 May 2003 the applicant made application to the Tribunal to review the decision of 27 March 2003.
10. The application was heard in Brisbane on 20 November 2003. Evidence was given by the applicant, Dr Paul Hendry, Mr (formerly Major) Brian Grear, Mr Royston Turner and Dr Peter Andrew Grant.
11. In addition, documentary evidence, consisting of:
(a)Exhibit 1 – Section 37 (“T”) Documents;
(b)Exhibit 2 – A photocopy of notes made by Dr Paul Hendry on 18 February 1997 and a colleague on 10 March 1997 (2 pages);
(c)Exhibit 3 – Statement by Brian M Gear dated 25 June 2003; and
(d)Exhibit 4 – 5 Year Calendar.
was received.
The Issues
12. It became clear from the evidence that a serious dispute existed as to the date upon which the applicant sustained his shoulder injury. The respondent contended that the injury occurred on Sunday, 16 February 1997 and not on 27 or 28 January 1997 as claimed by the applicant. By 16 February the applicant had been finally discharged and was no longer a serving Army officer.
13. The respondent also contended that the damage to the applicant’s knee which had allegedly precipitated his fall down stairs, was the result of an injury sustained by the applicant whilst he was a member of the British Army between 1960 and 1969.
14. I shall examine each issue separately.
Did the Applicant sustain his shoulder injury before he was discharged from the Australian Army in 1997
15. After the fall, the applicant did not take steps to report his shoulder injury to anyone in authority in the Army. He says that this was because the injury did not appear to be serious at first. He thought “nothing would come of it”. Sometime later when it failed to improve, he saw Dr Paul Hendry at his Kippa-Ring Medical Practice. Subsequently, he had surgery to repair the shoulder performed by Dr Michael Fleming in March 1997.
16. Under cross-examination the applicant agreed that “Mid 2001 was the first time I thought of claiming [compensation] for the injured shoulder”.
17. The applicant’s evidence as to the nature of his fall was supported by the evidence of Mr Royston Turner. Mr Turner said that in 1997 he was living at Gin Gin but had temporarily separated from his wife and had met the applicant, whom he had known for several years, by chance in the Kippa-Ring Shopping Centre. He had then driven the applicant about in the applicant’s car to enable him to inspect various houses over a period of a couple of days. He had seen the applicant fall down stairs on the occasion now in question and he had heard him complain that his knee had given way. Mr Turner also claimed that he could remember when the applicant’s fall occurred by reference to its proximity to his return home to Gin Gin in time for his son’s first birthday on 3 February 1997. Mr Turner said he did not remember the actual date of the applicant’s fall but “obviously it was in January”.. Under cross-examination the witness agreed that he had been asked to recall the date of the applicant’s fall for the first time last year when he was approached to make a statement. There is a statement signed by the witness in Exhibit 1 – T19 at page 119, dated 16 April 2002. I infer this is the statement he was referring to.
18. Dr Paul Hendry’s evidence identified the first page of Exhibit 2 as his clinical notes made at the time of his first consultation with the applicant. The notes commence as follows:
“18/2/97 fell over Sunday (® Knee collapsed) & injured ® shoulder….”
Although he has no specific recollection of the consultation itself, Dr Hendry was sure that the reference to “fell over Sunday” could only be a reference to a fall on the Sunday immediately preceding the consultation, that is, Sunday, 16 February 1997. Dr Hendry said that the second page of Exhibit 2 was written by another doctor at the practice, although he was unable to identify the author by the handwriting on the consultation card. That entry is dated 10 March 1997 and obviously relates to the applicant’s second visit to the medical practice. Those notes contain (inter alia) the following entry:
“(2) ® shoulder pain, unable to move properly … injured ® shoulder 3 wk ago ® rotator cuff injury x ray NAD”
19. There is some additional confirmation of the respondent’s claim that the shoulder injury occurred about mid-February in Dr Michael Fleming’s report to Dr Hendry dated 21 March 1997 (Exhibit 1, T6 page 66). In this document Dr Fleming says:
“Thank you for referring Keith for an opinion re his right shoulder. He is a 52 year old right-handed gentleman who for [sic] some 4 to 5 weeks ago landed on the point of his shoulder.”
Dr Fleming was not called to give evidence and it is possible that the history of the injury reproduced above resulted from information contained in Dr Hendry’s letter to him requesting an opinion. That letter was not sighted. At best, therefore, it can be said that Dr Fleming’s letter is consistent with Dr Hendry’s evidence as to the date of the injury.
20. The applicant in my opinion was vague and unconvincing as to his purported recall of the date of the injury and Mr Turner, although a credible witness as to his claimed observation of the applicant’s accident, was much less impressive as to the date on which this event occurred. On the other hand, Dr Paul Hendry was completely persuasive. He established the authenticity of his clinical notes and their relevant meaning to my complete satisfaction. What he told me was substantially confirmed by the note of the unidentified doctor on 10 March 1997 and there is also a note in Dr Tony Blue’s report (Exhibit 1, T7 page 69) where he says (foot of the page) that the applicant told him “in February 1997 he did fall dislocating his right shoulder requiring subsequent surgery to the shoulder”.
21. Having considered the whole of the evidence relating to the date on which the applicant’s shoulder injury occurred, I have no hesitation in finding that it occurred after his discharge from the Army on 16 February 1997.
22. There is accordingly no need to consider the applicant’s contention that, as the injury was sustained while he was going about inspecting houses, his shoulder injury was compensable under the Act as arising out of or in the course of his employment. This contention was based upon my anticipated acceptance of the proposition that he was still a member of the Australian Army on the day he was injured. I have found that he was not.. There is no need to consider the decision of the Full Court of the Federal Court or the decision of the primary judge in Roncevich v Repatriation Commission and the other decisions referred to by Counsel.
Is the shoulder injury compensable because it was caused by the applicant’s right knee?
23. There is no dispute that the applicant injured his shoulder as a direct consequence of the unexpected collapse of his right knee, but the respondent contends that the relevant condition of his knee had arisen many years before he joined the Australian Army. The applicant disputes this and says that the condition of his right knee was the result of injuries he received to his knee in 1988 and 1993 in the course of his duties in the Australian Army.
24. The applicant was graded as fully fit when he enlisted in the Australian Army in 1971. He was asked when he first injured his right knee at the commencement of his cross-examination and said that it had happened “when playing Rugby for the Army in New South Wales in 1973 perhaps”.. This was plainly incorrect and when challenged by Miss Ford as to his veracity the applicant said he had misunderstood the question and thought it related to his first right knee injury while a member of the Australian Army. When the matter was pursued, he agreed that he had first sustained an injury to the right knee while serving in the British Army stationed in Hong Kong in 1965. This injury had resulted in the removal of cartilage from his right knee by open medial meniscectomy.
25. In his report to the Commonwealth Department of Veterans’ Affairs dated 2 September 1997 (Exhibit 1, T7 page 69), Dr Tony Blue said that he had examined the applicant on 27 August 1997. Part of the history recorded in that letter reads as follows:
“He recalls numerous sporting & combat injuries to both knees and he has undergone originally a right-sided open medial meniscectomy due to pain & giving way of his right knee.” (my emphasis)
Dr Blue also recorded:
“He also complains of constant pain in both knees & the fact that his right knee frequently gives way.”
26. The applicant sustained a further injury to his right knee in 1988 and on 30 August 1988 an x-ray of the knee was carried out. In his report of 22 April 1998, Dr Peter Grant described the x-ray findings as follows:
“…Severe osteoarthritic change were reported affecting the right knee joint with a large intra-articular body posteriorly within the joint. Remnants of wiring were found in close relationship to the medial surface of the distal tibial shaft consistent with a previous open reduction and internal fixation of fractures of the medial and lateral malleoli. As well, there was an old un-united fracture of the extreme tip of the medial malleolus.”
Dr Grant also described the applicant’s medical history thereafter as follows:
“Mr Evans attended Dr Ferguson, Rheumatologist, on 23 May 1989 because of a longstanding history of polyarticular damage with specific symptoms of intermittent spontaneous effusions of both knees. No effusion was seen on examination wherein minimal crepitus and a degree of limitation of movement of the right ankle was noted.
The HLA B27 and rheumatoid factor tests were both negative. Dr Ferguson diagnosed polyarticular inflammatory joint disease likely to be associated with seronegative rheumatoid disease. He recommended use of slow acting anti-rheumatic medication such as Salazopyrin in conjunction with a regular non-steroidal anti-inflammatory drug.
The claimant slipped whilst running up a grass bank on 6 September 1993 at Moorebank, and injured his right knee and right hand. He was hospitalised for three days then spent six weeks on light duties to recover. An X-ray reported on 8 October 1993 showed osteoarthritic changes with an opacity in the joint space consistent with a loose body. Surgery to remove the loose body on 20 October 1993 was postposed as the claimant was found to have an elevated blood sugar level of 17 millimoles per litre. Metformin was commenced to stabilise his diabetes mellitus. It was noted he had previously undergone bilateral knee arthroscopies.
At the medical board of 22 November 1993, his fitness grading was changed to HO and the above history noted. On 9 December 1993, Dr Maxwell performed an arthroscopic partial lateral meniscectomy without sequelae.”
27. The applicant claimed compensation in respect of permanent impairment for a right knee condition under the Act and was paid a lump sum of $25,807.56 on 30 November 1998. Whilst this payment may be explained by the two injuries which were sustained to his right knee whilst the applicant was serving in the Australian Army in 1988 and 1993 referred to in Dr Grant’s report, it does not determine the question as to whether or not the shoulder injury was caused by the 1965 knee injury or the later knee injuries in 1988 and 1993.
28. Dr Grant’s evidence before the Tribunal established that in 1988 the applicant had well-established osteoarthritis in the right knee. He said that the injury causing that condition would have occurred well before 1988. He also said that if the Hong Kong injury was the causal agent for that condition he would not have expected it to be evident when the applicant enlisted in the Australian Army in 1971. He said the osteoarthritic condition would have come on gradually over a period of not less than 10 years.
29. Dr Grant also explained how a loose intra-articular body such as seen in the 1988 x-ray can lead to joint instability and cause the knee to give way involuntarily if the loose piece of material wedges between the articular surfaces of a knee joint. He also drew attention to the wasting of the applicant’s right thigh muscle which would also lead to instability which he noted during his examination of the applicant.
30. It was submitted that having regard to the more modern surgical techniques employed when the applicant was operated upon for the injuries sustained in the Australian Army and the reported good results therefrom, it could not be concluded as a matter of probability that the knee collapse on the day of the shoulder injury resulted from those later injuries rather than from the unstable condition of the knee associated with the osteoarthritis, the muscle wasting and possible gout suggested by Dr Ferguson which appears to have followed upon the Hong Kong incident.
31. I have carefully studied the evidence given by Dr Grant and the other material contained in Exhibit 1, as well as the evidence of the applicant as to his medical history and I find myself unable to reach a conclusion, on the balance of probabilities, as to the cause of the knee collapse in February 1997. It follows that I am unable to find that the injury to the applicant’s right shoulder arose out of or in the course of his employment.
32. As a consequence, the application for review must fail. The decision under review is affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon CR Wright QC (Deputy President)
Signed: Sarah Oliver
AssociateDate of Hearing 20 November 2003
Date of Decision 16 December 2003Counsel for the Applicant Mr R Hume
Solicitor for the Applicant D'Arcys, Solicitors
Counsel for the Respondent Miss E Ford
Solicitor for the Respondent Dibbs Barker Gosling, Lawyers
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