Foot and Comcare (Compensation)

[2021] AATA 317

Foot and Comcare (Compensation) [2021] AATA 317 (24 February 2021)

Division:GENERAL DIVISION

File Number(s):      2019/0872 & 2019/3099

Re:Daniel Foot

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:24 February 2021

Place:Sydney

In application 2019/0872 and 2019/3099, the decision under review is affirmed.

....................................[sgd]....................................

Deputy President B W Rayment OAM QC

CATCHWORDS

WORKERS’ COMPENSATION – where applicant suffered left knee injury – whether injury occurred in the course of the applicant’s employment – where alleged incident at work not reported by medical practitioners around time of incident – where injury arising from overtraining at a gym equally likely – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

24 February 2021

1. The applicant has brought an application for review of the respondent’s decision to reject his claim for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) arising from an injury said to have been suffered at work at the Australian Rail Track Corporation (the employer) on or about 1 August 2018.

2. When he notified his employer of his intention to make a workers’ compensation claim, his employer indicated that it had information from a physiotherapist who treated him in August 2018 to the effect that the injury to his leg was the consequence of overtraining at a gym. His employer also contradicted his assertion that on the day of the alleged incident, he had told his supervisor, Mr Heyes, of the incident, telling him that he must have ‘tweaked something’ when walking on a ballast shoulder. In a Record of Interview with the employer (the employer’s record), Mr Heyes said he had no recollection of being told that by the applicant.

3. At the physiotherapist, the applicant said in evidence that he did not inform him that the injury was suffered in the gym.

4. The physiotherapist’s notes in August 2018 (the August 2018 notes) do not record the alleged incident. The applicant said that he did not tell the physiotherapist about the work injury because he was seeking treatment on his symptoms, not making a workers’ compensation claim.

5. The applicant submits, by his counsel, that the respondent ought to have called the physiotherapist to give evidence, and that the respondent similarly ought to have called Mr Heyes if it wished to deny the applicant’s evidence of what Mr Heyes had been told by him on the day of the incident.

6. The notes of the general practitioner, Dr Crotty, were tendered by the respondent. They record nothing about the applicant informing his medical practitioners of the workplace injury before 30 October 2018, although he visited the practice in August and September 2018. On 30 October 2018, Dr Crotty noted:

   in July shutdown- severe pain in right knee when walking along track at work

   struggled to walk

   has had some intermittent pain since July

   Dr Crotty referred him to Dr Osborne, an orthopaedic surgeon who had operated on him for an injury to the same knee in 2011. The applicant had a recent MRI scan, which Dr Osborne examined.

7. Dr Osborne was not told by the applicant of any gym injury and was only told of the work injury. Dr Osborne expressed the view that the MRI scan suggested that the most likely explanation for his condition was that the chondrocyte implantation which he had inserted in the applicant’s left knee in late 2011 had failed, with grade 4 chondral damage in the femoral trochlea and inferior patella.

8. Asked whether the MRI scan made more probable an injury as described by the applicant in his evidence than an injury suffered in the gym as a result of lifting by legs of excessive weight, if that occurred, he thought that each possible explanation was equally likely. Dr Bodel and Dr Gray, orthopaedic surgeons called by the applicant and the respondent respectively, gave similar opinions in their oral evidence.

9. The applicant’s evidence was given before me without any evident intention to mislead the Tribunal. I must seek to reach the correct or preferable decision in the light of all of the evidence before me. The question is whether the applicant’s injury was suffered ‘in the course of’, his employment: s 5A of the Act. Put differently, the question is whether I am satisfied on the evidence that the injury occurred as the applicant has stated.

10. I would analyse the evidence as follows.

11. First, I am troubled by the physiotherapist’s notes. He was not called by either party. The note is a contemporaneous note. It quite strongly suggests that the information about cause of the injury came from the applicant himself, even though he denied that fact. It is true that in November 2018, the physiotherapist wrote notes casting doubt on his August 2018 notes, by stating that the cause of the condition of the knee was unknown. What precisely led the physiotherapist to write that was not proved. The physiotherapist could have been called by either party. A denial by the applicant that he told the physiotherapist of a gym injury seems improbable in the light of the August 2018 notes.

12. In the second place, it is surprising that the applicant did not report the work injury to his doctor until late October 2018, particularly since he visited the practice earlier, and he said he was in pain.

13. In the third place, there is some evidence that Mr Heyes has no recollection of being told about the incident by the applicant. The Applicant had stated in the employer’s record:

    All I know is on Monday (29/10) he came to me and said “remember I told you I had a sore knee when we were doing track centres with Scott Chapman. [sic] I assume he was referring to the day that Scott, Brett Pennell and Dr Drew were onsite during the August possession at Minimbah where we were doing track centres [sic] but I do not recall him saying anything to me … After he mentioned the August Closedown [sic] I reviewed my diary and had no notes made on that date and do not recall the conversation ever occurring. I do recall the possession and remember he walked approximately 5.5km the next day on track as we continued the track centres

    That evidence is hard to treat as conclusive, since the respondent, which in effect stands in the shoes of the employer, could have called him and failed to do so. Mr Kelly, for the respondent, submitted that the failure to call Mr Heyes should be excused because the applicant does not mention speaking to him in his written statement. The employer’s record, mentioned in [‎2] above, showed that the employer, and the respondent, had notice that it would be said that the incident was reported to Mr Heyes on the day in question.

14. The matters I have mentioned in the last three paragraphs, particularly [‎11] and [‎12], combine to make me unsatisfied that the injury occurred as the applicant said in his evidence.

15. Therefore, the reviewable decision in application 2019/0872, as to the s 14 entitlement, will be affirmed.

16. Another review, application 2019/3099, was also made by the applicant concerning medical expenditure, which he sought to have the respondent undertake on his behalf. The applicant conceded, and the respondent agreed, that on the basis of the evidence, the medical procedure, an arthroscopy, is not currently necessary, and the decision should be affirmed.

17. Therefore, the reviewable decision in application 2019/3099 will be affirmed.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

.....................................[sgd]...................................

Associate

Dated: 24 February 2021

Date(s) of hearing:	25 & 26 November 2020, 16 December 2020
Counsel for the Applicant:	Mr A Coombes
Solicitors for the Applicant:	Carroll & O'Dea Lawyers
Counsel for the Respondent:	Mr B Kelly
Solicitors for the Respondent:	Sparke Helmore Lawyers