Gabelish and Comcare - [2000] AATA 694

DECISION AND REASONS FOR DECISION [2000] AATA 694

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1998/127

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ANTHONY JOHN GABELISH
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Associate Professor S D Hotop, Senior Member Dr D Weerasooriya, Member

Date11 August 2000
PlacePerth

Decision      The decision under review is affirmed.
  ...........(sgd S D Hotop)...........
  Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant served in Royal Australian Navy from 1949 to 1959 – applicant suffered lacerations to left knee and left middle finger in motor cycle accident in January 1952 – applicant was hospitalised and treated for injuries – applicant's injuries asymptomatic until 1987 – applicant's left knee became symptomatic in 1987 and left middle finger became symptomatic in early to mid1990s – applicant claimed compensation in May 1996 for condition described as osteoarthrosis in the left knee and left middle finger – applicant's present left knee condition diagnosed as progressive degenerative osteoarthritis – applicant's present left middle finger condition diagnosed as early or minor arthritic changes in proximal interphalangeal joint – whether respondent liable to pay compensation to applicant in respect of each condition – whether each condition related to applicant's employment in Royal Australian Navy from 1949 to 1959.
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 14(1), 123A, 124
Compensation (Commonwealth Government Employees) Act 1971, ss 5(1), 27(1), 29
Comcare Australia v McGuire (1996) 68 FCR 329

REASONS FOR DECISION

11 August 2000 Associate Professor S D Hotop, Senior Member Dr D Weerasooriya, Member

This is an application by Anthony John Gabelish ("the applicant") for review of a reviewable decision, dated 6 February 1998, affirming a determination, dated 27 March 1997, that the Department of Defence is not liable to pay compensation to the applicant under the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act"), in respect of osteoarthrosis of the left knee and left middle finger.
At the hearing the applicant was represented by Mr P Marsh of counsel. Comcare (which is the appropriate respondent in this matter: see Comcare Australia v McGuire (1996) 68 FCR 329) was represented by Mr R Nash of counsel. The Tribunal had before it the documents ("T documents") lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and the following documentary exhibits tendered in evidence by the parties:

Statement of Evidence of the applicant, dated 6 August 1998 (A1);
letter from Mr P Morris, Delegate of the Repatriation Commission, to the applicant, dated 19 March 1996, regarding the applicant's claim for a disability pension (A2);
letter from the Naval Officer in Charge, Fremantle to the Secretary, Naval Board, Melbourne, dated 21 March 1952 (A3);
letter from Lieutenant Commander Gibson, HMAS Parkes, Fremantle to the Naval Officer in Charge, Fremantle (undated) (A4);
Statement by Stoker I Watson, dated 28 January 1952 (A5);
Report on Motor Cycle Accident by the applicant, dated 5 March 1952 (A6);
medical report of Mr M C Tiller, dated 16 February 1999 (A7);
medical report of Mr N J Batalin, dated 25 March 1999 (R1); and
bundle of documents comprising Dr F Rodino's clinical notes, and related documents, concerning the applicant (R2).

Oral evidence was given by the applicant, by Mr M C Tiller (who was called as a witness by the applicant), and by Mr N J Batalin (who was called as a witness by the respondent).

Subsequent to the hearing the Tribunal drew the parties' attention to an x-ray report, dated 7 July 1992, by Dr S Young (Pt of Exhibit R2) which had not been referred to in the course of the hearing and which had apparently not been made available to Mr Tiller and Mr Batalin for the purpose of preparing their abovementioned reports (Exhibits A7 and R1, respectively). The Tribunal afforded the applicant the opportunity to obtain and tender a supplementary report from Mr Tiller, having regard to the abovementioned x-ray report. Likewise, the Tribunal afforded the respondent the opportunity to obtain and tender a supplementary report from Mr Batalin, having regard to that x-ray report. The respondent subsequently tendered a supplementary report from Mr Batalin, dated 16 May 2000 (Exhibit R3), and the applicant tendered a supplementary report from Mr Tiller, dated 24 July 2000 (Exhibit A8). Both parties were then afforded by the Tribunal the opportunity to lodge written submissions in relation to the abovementioned supplementary reports, but they chose not to do so.
The Factual Background
The background facts, as found by the Tribunal on the basis of the T documents and exhibits and about which there is no dispute between the parties, are as follows.
The applicant, who was born on 20 August 1931, served in the Royal Australian Navy from 10 March 1949 until 22 September 1959.
On 24 May 1996 the applicant lodged with the Department of Defence a "Claim for Rehabilitation and Compensation" form in which he claimed compensation in respect of an injury or illness described as "osteoarthrosis" in the left knee and left middle finger. In response to questions in the form it was indicated by the applicant that the relevant injuries occurred in October 1951 in a traffic accident when his motor cycle was forced from the road by a vehicle at the "Power House 'S' bend, Coogee" whilst he was travelling during working hours from his workplace, HMAS Parkes, Garden Island, to HMAS Leeuwin, East Fremantle "to get pay prior to leave". It was also stated in the form that he first received medical treatment for the injuries at Repatriation General Hospital, Hollywood (T3, p9).
In the applicant's medical service documents it is recorded that on 24 January 1952 he suffered lacerations to his left knee and left middle finger when he was involved in a motor cycle accident while off duty. It is also recorded that the applicant was admitted to Repatriation General Hospital, Hollywood on 24 January 1952 and was discharged on 15 February 1952. It is further recorded that, on examination following his admission to the hospital, he was found to have a laceration over the left patella and another one below, both of which went to the subcutaneous plane but with no visible entry into the knee joint, and a laceration on the radial side of the first interphalangeal joint of the left middle finger involving the removal of an area of skin "the size of sixpence". While in hospital the applicant's left knee and left middle finger wounds were debrided and sutured. (T19, T20).
A document headed "Report on Motor Cycle Accident" dated 5 March 1952 and signed by the applicant (Exhibit A6) states:
"I, Stoker Mechanic Gabelish, O.N. 37137, was proceeding home on overnight leave, on my motor cycle, on the night of the 24th. January, 1952, at approximately 1710, from Rockingham to Fremantle, with Stoker Watson as pillion passenger. The weather was fine and visibility good. When rounding a sharp 'S' bend at the railway crossing near the South Fremantle Power House, in second gear at 20 to 25 M.P.H., my front wheel slipped on the road surface into a water rut, and we were both thrown heavily to the ground. After regaining my feet, I found the only injuries I received were light lacerations to the knee and finger. Stoker Watson was unhurt. We continued to Stoker Watson's home on the machine, which was undamaged, with Stoker Watson riding. On his mother's advice, we went to R.G.H. Hollywood for medical treatment, where I was admitted."

A document headed "Statement by Stoker I Watson, ON 39686 – Motor Cycle Accident" dated 28 January 1952 (Exhibit A5) states:
"I was pillion passenger on Stoker Mechanic Gabelish's motor cycle riding along the Rockingham Road, near the South Fremantle Power House, at approximately 1710 on Thursday 24th. January, 1952, when, while passing over the 'S' bend level crossing, at approximately 25 M.P.H., and in 2nd gear, the cycle skidded, left the bitumen, and Gabelish and myself were thrown heavily to the ground. No serious injuries were evident at the time, so the cycle was righted and we continued our journey home. On arrival at my home, at 91 Derby Road, Shenton Park, my mother suggested that Gabelish should have attention at R.G.H. Hollywood, for lacerations to knee and finger. We then rode the cycle as far as R.G.H., where I left Gabelish, and returned home. I did not know he had been admitted to R.G.H. until I telephoned the Hospital about 2030 on the same day."

On 27 March 1997 a delegate made a determination that the Department of Defence was not liable to pay compensation to the applicant, under the 1988 Act, for his condition of osteoarthrosis of the left knee and left middle finger. (T11)
On 6 February 1998 another delegate decided, following a reconsideration, to affirm the determination of 27 March 1997. (T18)
On 31 March 1998 the applicant lodged with the Tribunal an application for review of the reviewable decision of 6 February 1998. (T1, p3)
The Applicant's Evidence
In his Statement of Evidence (Exhibit A1) the applicant described the circumstances regarding his motor cycle accident on 24 January 1952 and his present symptoms as follows:
"12.     The accident occurred when I was travelling between HMAS Parkes and HMAS Leeuwin. HMAS Parkes was a minesweeper. There were six minesweepers altogether at Garden Island. I was part of the maintenance crew. It was our job to ensure that the minesweepers were kept in readiness. We made sure the engines were turned regularly. We ate and slept on HMAS Parkes, but were attached to HMAS Leeuwin. My usual fortnightly pay was sent over to HMAS Parkes from HMAS Leeuwin, the main base. If I wanted a leave pass I had to travel to HMAS Leeuwin. I also had to collect my leave pay from here. If I needed any medical attention I would have to travel to HMAS Leeuwin.
13.      We had to travel ashore on a workboat as there was not a causeway in those days. We would land at Palm Beach Jetty on the mainland just North of Rockingham. I kept my motorbike parked at the Jetty, just behind the store. There was a ute available to take those without transport to HMAS Leeuwin.
14.      I took a pillion passenger with me, Mech (Eng) I. Watson, Ian David. I usually took a passenger with me when I travelled to Leeuwin.
15.      I always travelled along the coast road. This was the only road available and the most direct route. All naval traffic travelled along this road.
16.      The accident occurred along this road. A vehicle came up alongside me. We were travelling about 35 miles per hour. As a result of being crowded by this other vehicle I was forced to make a sharper turn of an 'S' bend. I was going just a bit too fast to negotiate the bend, particularly with the other vehicle alongside, and we came off. I recall being taken to the hospital on the back of my motorbike by Watson, who was not as badly injured as me. I understand Watson suffered quite severe bruising to his genitals as a result of hitting the pillion handlebar when he came off. I do not know if he sought medical treatment for this.
17.      I have not been able to obtain a statement from Ian Watson. Sadly he committed suicide. I only knew him in the Navy and did not stay in touch when we were discharged. It took me some time to track down and find out what had happened to him.
18.      I was travelling from HMAS Parkes to HMAS Leeuwin to collect a leave pass and my leave pay. I never made it. I ended up in Hollywood hospital. I should have been on six weeks annual leave. Instead after nearly 4 weeks in hospital I was discharged to HMAS Leeuwin and it was recommended I be given 2 weeks sick leave. I do not understand why, if I was on leave and therefore off duty, I would be given 2 weeks sick leave.
19.      I do recall that I eventually took my annual leave, but I do not remember whether this was straight after leaving hospital or after I had taken sick leave.
20.      I recall being asked by the medical attendant at Hollywood Hospital for my details. I told him that I was going on leave from HMAS Leeuwin. He wrote down that I was off duty. However, I believed, and still do, that I was on duty until I received my leave pass. I never got this prior to the accident.
21.      I have been asked what it is I want from the Department of Defence. I believe my present difficulties relate to the injuries I received when I had a motor vehicle accident whilst on duty. This has not interfered with my lifestyle or employment until recent years. Now my knee swells. It becomes stiff and sore. I enjoy playing a round of golf, but I can only manage 9 holes. It is too painful to play any more than this. I have a motorised caddy to assist me, but walking around the course gives me pain despite this.
22.      Myself and my wife, Mary Jane, have a ten acre block of land on which we run a small Alpaca herd. I am unable to help with rounding up, I find it almost impossible to negotiate fences. My middle finger is particularly aggravating. I cannot help to catch the animals or to assist the vet when giving them medication. My finger has a mind of its own. I catch it in fences and gates. When it is cold I cannot feel it.
23.      I am in discomfort as a result of my 'deformed' finger and become immobilised by the pain in my knee. I have always led an active life. I have always been employed up until I retired in 1993. I am disappointed that I cannot put as much effort into our business as Mary Jane is able to."

In his oral evidence the applicant explained the system of watches and leave that applied at HMAS Parkes. He said that the crew was divided into 3 watches – red, white and blue – each of which was on duty every third night. Those crew member who were not on watch duty were permitted to leave the ship in mid-afternoon and were required to return to the ship by 7.00 am the next day. This overnight leave, he said, was known as "short leave". Asked whether the term "off duty" would have been used in the case of a crew member who was on "short leave", the applicant replied "No" and added that that term was not used because they were all really on duty 24 hours a day.
The applicant said that at the time of the motor cycle accident he was travelling from HMAS Parkes near Rockingham to HMAS Leeuwin at East Fremantle – a distance of about 30 kilometres – in order to collect his leave pass and leave pay as he was about to commence a period of long leave.
The applicant told the Tribunal that in the period of 6 months after the accident he had no reason to claim compensation in respect of the injuries he sustained in that accident. He believed he had made a good recovery from those injuries while in hospital. Although his left knee gave him a little bit of trouble when he played rugby, it did not significantly affect his lifestyle until 1987. He said that in 1987 his left knee became swollen and painful and he was unable to walk on it and he had to consult his general practitioner, Dr Rodino, about it.
The applicant said that since 1987 he has had ongoing problems with his left knee, namely, swelling, stiffness and soreness. Asked to compare the symptoms in both knees, he said that he could not recall having any trouble with his right knee.
As regards his left hand middle finger, the applicant said that this had been troublesome periodically, but it had become "more noticeable" in recent years when he and his wife commenced to run a small alpaca farm. He explained that, especially in cold weather, the finger becomes stiff and he cannot bend it and it "gets in the way", but it is not painful. Asked by the Tribunal whether his finger condition affected his ability to grasp a golf club, however, the applicant said that it did not.
The applicant confirmed that he was diagnosed by Dr Rodino as having gout in 1993 or 1994 but that he has since taken daily medication for it and it has not caused him any problems.
The applicant also told the Tribunal about his employment history since leaving the Navy in 1959. He first worked with Dunlop Rubber in a supervisory capacity as manager of their flooring division for about 4 years. He next managed a service station for about one year. He spent the next 6 years in Melbourne, Sydney and Brisbane during which he again worked for Dunlop Rubber as a floor tiler and took on various other jobs of a short-term nature. He returned to Western Australia in 1970 and was employed by the Lombardo group on an oil platform and as a maintenance engineer in their dockyard for a short period, but most of his employment comprised piecework in hard floor covering. He also did some diving and became interested in collecting, and then buying and selling, seashells. In 1983 he was working on a cray fishing vessel when he sustained a lower back injury for which he received workers' compensation and subsequently a lump sum damages payment of $30,000. In 1985 he applied for, and was granted, an invalid pension by reason of his back condition but that pension was terminated in 1993 because his wife inherited some property as a result of which the pension ceased to be payable to him.
The applicant told the Tribunal that in 1995 he applied to the Department of Veterans' Affairs for a disability pension. He said that he was given a fairly thorough medical examination (including x-rays) in connection with that application and was granted a pension in respect of the conditions of tinnitus and osteoarthritis of the left knee and left middle finger. On 19 March 1996, however, a delegate of the Repatriation Commission decided that the conditions of osteoarthritis of the left knee and left middle finger were not related to a period of "operational service" (within the meaning of the Veterans' Entitlements Act 1986) and, accordingly, pension was not payable to the applicant in respect of those conditions. (Exhibit A2) He said he was then advised to apply to the Department of Defence for compensation and he did so on 24 May 1996.
The applicant told the Tribunal that he and his wife have, for the last 4 years, been engaged in raising alpaca on a rural property. He said that, because of his physical condition, he is unable to do very much work on the property, and the heavy work is done by his wife and neighbours and, occasionally, by casual labourers. All he is able to do is feed the animals and chores such as raking and keeping the firebreaks clear but not heavy physical work such as fencing or rounding up the animals.
In response to questioning by Mr Nash (for the respondent), the applicant said that there was no medical officer stationed on board HMAS Parkes but there was such an officer on duty at HMAS Leeuwin during normal daily working hours from about 7.30 am to 3.00 or 4.00 pm. He said that the usual procedure, in the event that medical attention was required, was to see the "officer of the day" at HMAS Leeuwin for instructions as to where to go for medical treatment. He said, however, that when he had the motor cycle accident on the way to HMAS Leeuwin he did not follow that procedure and instead went directly to Hollywood Hospital because he had suffered some fairly serious injuries and was in severe pain.
The applicant was referred by Mr Nash to the document headed "Report on Motor Cycle Accident" dated 5 March 1952 and signed by him (Exhibit A6 – see paragraph 8 above). The applicant said that he did not recall making that statement although he acknowledged that he had signed it. He added that he was only 20 years old at the time and did not regard the statement as important or significant and that he would have signed anything that was placed before him in order to get it over with. He maintained that that statement contained errors. First, whereas the statement said that the applicant was "proceeding home on overnight leave" at the time of the accident, he maintained that he was proceeding to HMAS Leeuwin and was then going on long leave. He also maintained that the accident did not occur at 5.10 pm as stated but occurred, instead, between 3.00 and 4.00 pm. He explained that he was on his way the HMAS Leeuwin in order to collect his leave pass and leave pay and he had to be there before the office closed at 4.00 pm. As regards the reference in the statement to his receiving "light lacerations to the knee and finger", he explained that he had probably not bothered to go into detail about his injuries. Finally, as regards the statement that he and Stoker Watson continued on to Stoker Watson's home and that he later went to Hollywood Hospital for treatment, the applicant accepted that they did go to Stoker Watson's house in Shenton Park although he could not remember doing so. He denied, however, that they were travelling to Stoker Watson's house at the time of the accident and reiterated that they were on their way to HMAS Leeuwin but that they "didn't make it to Leeuwin".

Questioned as to his failure to claim compensation within 6 months of the accident, the applicant said that there was no reason to do so and it would not have entered his mind to do so. He acknowledged, however, that at the time he was unaware of his right to claim compensation for injuries sustained in the accident or of any obligation to give notice of such injuries for the purpose of claiming compensation.
The applicant told the Tribunal that whilst in the Navy he played rugby union on a social basis. He continued playing rugby after he moved to Melbourne in about 1963 and he also played whilst living in Sydney and Brisbane. While in Sydney he played grade rugby with a second division team. He said that he continued to play rugby up until he was 40 years of age. He said that during the time he played rugby in the Navy he had a couple of leg injuries in 1952 and 1953 but since leaving the Navy he could not recall having any problems with his knees when playing rugby.
As regards his employment history, the applicant said that he did not undertake employment, apart from his seashells "hobby", after sustaining his lower back injury on the cray fishing vessel in 1983. He said that, when his left knee suddenly became swollen and painful in 1987, he was not engaged in any physical activity at that time which might have precipitated his knee symptoms.
The applicant, when asked why he did not claim compensation from the Department of Defence when his left knee became symptomatic in 1987, responded that it did not enter his mind to do so. He added that this was probably because he was unaware that he had any entitlement to compensation.
The Medical Evidence
Mr M C Tiller, orthopaedic surgeon, was called as a witness by the applicant. Mr Tiller confirmed that he had examined the applicant on 16 February 1999 and had prepared a report on the same day. That report (Exhibit A7) states as follows:
"…
a.        His present clinical condition is as follows:-
The above gentleman complains of problems relating to his left middle finger in the form of difficulty in flexing the finger at times, especially during cold weather and also more recently, a sensation of numbness mainly involving the middle, ring and little fingers. This tending to occur at night.
The patient also complains in regard to his left knee, that he has swelling and pain in the back of the joint, with a sense of instability and an associated limp.
b.        Reviewing his story, it appears on the 24th of January, 1952 he was riding a motor cycle in the Rockingham area, when he missed a bend in the road and fell, landing heavily on his left side. He was as far as I am aware, taken to Repatriation General Hospital, Hollywood the patient at the time serving with the Royal Australian Navy. At the time he had an operation on his left knee and left middle finger, the left middle finger being lacerated. He continued in the Navy after these injuries.
In regard to his left knee – he states that he has had continuing problems in regard to that joint since the date of his injury and this has affected his ability to play football and later to play rugby.
Reviewing his Repatriation General Hospital records, I note that he had a Debridement of his left lower limb wounds and left middle finger, abrasions at the time being over the anterior aspect of the patella. It would appear that he had Debridement of the left pre-patella area, with suturing.
The above patient is as far as I am aware at the present retired.
I took the opportunity to examine him today (16.2.99) noting that in regard to his left hand he had a scar about the proximal interphalangeal joint of the left middle finger and a tender nodule involving the flexor tendon of the left middle finger, felt at the level of the distal palmar skin crease.
Examining his knees – he had evidence of bilateral genu varum, left more than right, with a healed scar involving the anterior aspect of the left knee in the pre-patellar area.
His range of movements of both knees was from 0 – 120 degrees, but the patient was unable to squat.
In regard to his left knee – he was extremely tender over the medial joint line of the left knee, there being some valgus/varus instability on examination.
Radiographs – I reviewed films available to me with respect to his left knee from as far back as the 6th August, 1987 noting a moderate degree of degenerative change involving the medial femoral compartment of the left knee and also patello-femoral joint, with the presence of an effusion.
Films in regard to both knees dated 28th September, 1995 showed medial femoral compartment osteoarthritic changes with a loss of joint space bilaterally, again left worse than right. There was also evidence of bilateral patello-femoral degenerative disease.
Up to date films of both knees today 16th February, 1999 shows increasing evidence of degenerative disease involving the patello-femoral and medial femoral compartments of both knees, left worse than right.
c.        The nature of the treatment received and details of any future treatment – I would suggest that he is likely to require Decompression of the fibrous flexor sheath of his left middle finger, due to triggering which exists and problems in regard to the flexor tendon moving through the sheath. It is difficult to say this is directly related to his left middle finger injury of 46 years ago, as this is not an uncommon finding in people of increasing age, certainly those above 50.
In regard to his left knee – there is no doubt that he may well have been left with some degree of patello-femoral degenerative disease following his fall, but it is obvious that he has bilateral degenerative disease in regard to his knees, the medial femoral compartment and patello-femoral joints showing significant change.
In regard to his future – he is likely to require at some stage in his future years, Bilateral Total Knee Replacements, left certainly sooner than right. The fact that the patient has changes of a similar nature in both knees, left worse than right, may argue that he did suffer from patello-femoral changes at the time of his accident, which in turn have an ongoing effect within the knee joint itself. He is unable to squat and standing for prolonged lengths of time produces quite marked discomfort in the left knee. This in turn of course will affect his Alpaca business in which he is involved, due to I am sure, the need to squat and mobilise, and move throughout the day.
In regard to his triggering of the right middle finger – there is the suggestion that this may have occurred as part of his ongoing aging, but as I have stated it is difficult to relate it entirely to his injury of 1952.
In regard to residual disabilities – one would have to suggest that in regard to the left hand – he may well have a residual 5 – 10% disability of the right middle finger, the left knee showing a 10% residual permanent disability.
Again, I think one has to state that in view of the prolonged length of time since his injury, it is hard to be completely convinced that these are entirely associated with his accident of January, 1952."

In his oral evidence Mr Tiller noted that the reference to the "right middle finger" in both the third last paragraph and the penultimate paragraph of his report was erroneous and should be corrected to read "left middle finger".

Mr Tiller was asked to clarify his view regarding whether or not there is a connection between the applicant's motor cycle accident in 1952 and his present left knee condition. Mr Tiller responded:
"Well, what I am saying is I think that from the description of his injury, what I could find out, was that it appears that he was struck heavily over the front knee. And this, in turn, I am sure, caused some damage to the patello-femoral joint. Or joint between the knee-cap and the femur. And this, in turn, would have given rise to a local degenerative or chondropathy or osteoarthritis. And that, in turn, then has had an accelerative effect throughout the joint." (Transcript, p91)

Mr Tiller confirmed that the applicant has a degenerative osteoarthritis condition in both knees but that the degeneration is more advanced in the left knee as compared with the right knee. Asked whether he would attribute the more advanced degenerative condition of the applicant's left knee to his motor cycle accident in 1952, Mr Tiller responded:

"I am saying that it could be associated with it". (Transcript, p92)

Mr Tiller was referred by Mr Nash to a medical report on the applicant by Mr N Batalin dated 25 March 1999 (Exhibit R1). Mr Tiller said that he agreed with Mr Batalin's findings that the applicant's left knee showed no collateral or cruciate ligament instability, and that both knees showed a similar degree of crepitus. Asked to comment on Mr Batalin's view that the applicant has "moderately severe osteoarthritis of both knees but … slightly more pronounced on the left side", Mr Tiller said that he would describe the applicant's osteoarthritis in the knees as "reasonably advanced" but he agreed with Mr Batalin's description that it was "slightly more pronounced on the left side".
Mr Tiller responded to questions by Mr Nash regarding whether or not there is a connection between the applicant's motor cycle accident in 1952 and his present left middle finger and left knee conditions as follows:
"In relation to his middle finger, his left middle finger, the – you say that the flexor tendon problem is one which is not uncommon for people of Mr Gabelish's age?--- Yes.
And it's not possible to say that that problem was as a consequence of the motor cycle accident, would that be…?--- Yes, I can't initially tie it in saying that definitely is the cause of the present triggering although I'm well aware of the fact he had an injury to his left middle finger.
Yes, and in fact would it – can the same be said of the left knee, you can't say as a matter of fact that the injury that he sustained to his left knee on the motorcycle is a factor in his current presentation?--- No, other than as I have stated before, he appeared to have had an injury to the patella area and I believe that may have damaged the patello-femoral joint which in turn has set in motion his arthritic change somewhat earlier." (Transcript, p97)

In his supplementary report dated 24 July 2000 (Exhibit A8), Mr Tiller said that the x-ray report of 7 July 1992 (referred to in paragraph 3 above) did not alter in any way his opinion expressed in his report of 16 February 1999 (Exhibit A7) and his oral evidence given at the hearing.
Mr N J Batalin, orthopaedic surgeon, was called as a witness by the respondent. Mr Batalin confirmed that he had examined the applicant on 25 March 1999 and had prepared a report on the same day. In that report (Exhibit R1) Mr Batalin recited the applicant's history commencing with the motor cycle accident on 24 January 1952 and subsequent treatment, the applicant's current symptoms, past health and employment history, his findings on examination of the applicant and the results of x-rays taken in the period from 6 August 1987 to 16 February 1999, and he summarised his findings and conclusions as follows:
"At the time of my assessment I noted that Mr Gabelish is a 67 year old man with evidence of progressive arthritis affecting both knees, but to a greater extent on the left side. He also had slight arthritic changes in the metacarpophalageal joints of the left hand and perhaps proximal interphalageal joint of the left middle finger with a history of 'triggering' of the left middle finger.
I believe the cause of the knees problems is arthritic and there is clear radiological evidence of bilateral knee involvement. It should be pointed out that many 67 year old individuals will have similar changing due to 'wear and tear and aging process'. However, clearly Mr Gabelish also presents with a history of periodic acute arthritis dating back to 1987. It is relevant to note that subsequently he was diagnosed as suffering from gout and it is common to see similar presentation with gout.
Again it is relevant to note that the onset of restriction of movements in the left middle finger and tendency for periodic triggering did not start until the early 1990s and at that stage the patient was engaged in fairly heavy farming work. He does have early Dupuytren's contracture of the left little and middle finger and there are some arthritic changes in the left middle finger but I could not clearly establish the diagnosis of stenosing tenovaginitis of the flexor sheath of the left middle finger at the time of my assessment (I could not clearly confirm the diagnosis of left middle 'trigger finger'.) I note the patient's history of motor bike accident on 24.1.52 but from the available documentation I noted that he sustained laceration to the front of his left knee and to the left middle finger requiring repair. I also note that there was progressive healing and resolution of his symptoms and he remained asymptomatic for a long period of time. Therefore, to the best of my knowledge, at this stage I cannot establish a clear relationship between that accident and his present condition, particularly since there is evidence of more recent factors contributing to the current diagnosis.
In answer to your questions:
a)        Mr Gabelish does have moderately severe osteoarthritis of both knees but this is slightly more pronounced on the left side. Such arthritic problems can occur due to osteoarthritis in a man of his age but, in my experience, it is more likely to occur if there is underlying susceptibility to polyarthritis such as gout.
He does have clinical evidence of minor arthritic changes affecting the metacarpophalangeal joints of the left hand and proximal interphalageal joint of the left middle finger.
b)        The causes of osteoarthritis are multiple and include aging process, congenital predisposition factors, association with other causes of polyarthritis and trauma.
c) As far as I could tell, I could not clearly establish cause and relationship between the motor bike accident in 1952 and the current problems in this patient. If there was significant injury it is more likely than not that there would have been associated bony cartilaginous damage to the injured areas, ie the left knee or left finger but as far as I could gather, no fracture was diagnosed. Furthermore, post-traumatic degenerative changes tend to occur early. A further point worth making is that the patient has, in fact, bilateral, moderately severe, osteoarthritis of the knees although admittedly it is more pronounced on the left side. As far as I know, the right knee was not injured. The latter would suggest that there are other than traumatic factors contributing to the genesis of his pathology.
d)        The patient did not volunteer any history of a football injury but certainly if one allows injuries as contributing factors to degenerative changes one has to consider all other injuries and many of the occupations such as working in a mine or working as a farmer.
e)        It is relevant to note that Mr Gabelish, in spite of his age, is still running an alpaca farm. Nevertheless, this does not detract from the fact that he has moderately severe arthritis of both knees which will progress and I suspect that he will eventually require bilateral total knee arthroplasties."

In his oral evidence Mr Batalin confirmed his findings that the applicant has degenerative changes in both knees as well as some degenerative changes in the joints of the hands. He noted that the applicant has a history of gout and commented that gout classically can affect joints and present as painful, swollen joints and can lead to progressive degenerative joints. Asked by Mr Nash (for the respondent) about a possible causal relationship between the applicant's motor cycle accident in 1952 and his present arthritic condition, Mr Batalin confirmed that he could not establish such a relationship for the following reasons:

that accident occurred many years ago and the contemporary medical documentation suggested a superficial injury (laceration) to the knee and finger (which subsequently healed) with no evidence of significant bone or joint damage;
a long period of time elapsed between the original injury and the onset of symptoms;
that fact that the applicant's knee symptoms are bilateral, and not confined to the left knee which was originally injured;
progressive degenerative osteoarthritic changes in joints are common in persons who are ageing;
other factors may have contributed to the acceleration of the applicant's osteoarthritis, including playing contact sport and participating in physical labouring activities such as farming; and
the fact that the applicant has been diagnosed as having gout – a documented and recognisable cause of polyarthritis.

Asked again by Mr Nash whether, in his opinion, on balance there is a causal connection between the applicant's 1952 motor cycle accident and his current left knee and left finger conditions, Mr Batalin responded in the negative in relation to each condition. Mr Batalin was subjected to vigorous cross-examination by Mr Marsh (for the applicant) in relation to his stated opinion that there is no causal relationship between the applicant's 1952 motor cycle accident and his present left knee and left middle finger conditions but nevertheless strongly adhered to that opinion. Finally, in response to questions from the Tribunal, Mr Batalin was, however, prepared to acknowledge the possibility that the left knee injury sustained by the applicant in his 1952 motor cycle accident is responsible for the "slightly greater degenerative changes" in his left knee as compared with his right knee. Asked whether this was a probability, rather than a mere possibility, Mr Batalin responded that he was unable to say.

In his supplementary report dated 16 May 2000 (Exhibit R3), Mr Batalin said that the availability of the x-ray report of 7 July 1992 (referred to in paragraph 3 above) did not significantly alter his conclusions set out in his report of 25 March 1999 (Exhibit R1).
The Issues
The parties raised various issues for the Tribunal's consideration and determination and made oral submissions in relation thereto. The Tribunal will first address what it sees as the fundamental issues and, depending on its determination of those issues, will then address any other relevant issues that arise from that determination.
The fundamental issues in the present case are:

What relevant condition(s) does the applicant presently suffer from?
When did each such condition arise?
Is each such condition related to the applicant's employment by the Commonwealth in the Royal Australian Navy from 10 March 1949 to 22 September 1959?

Findings on Material Questions of Fact and Consideration of Fundamental Issues

On the basis of the medical evidence before it – namely, the medical reports and oral evidence of Mr Tiller and Mr Batalin – the Tribunal finds that the applicant presently suffers from the following relevant conditions:

moderately severe or reasonably advanced progressive degenerative osteoarthritis in both knees, although slightly more advanced in the left knee;
early or minor arthritic changes in the proximal interphalangeal joint in the middle finger of the left had, with a tendency of "triggering" in that finger;

On the basis of the applicant's oral evidence and other material before it, the Tribunal finds that:

the applicant's present left knee condition became symptomatic in 1987 and he then, for the first time, sought medical treatment for it;
the applicant's present left middle finger condition became symptomatic in the early to mid 1990s and the condition was first medically diagnosed in 1995 in connection with the applicant's claim for a disability pension under the Veterans' Entitlements Act 1986.

The important question then arises: are either or both of the abovementioned conditions related to the applicant's employment by the Commonwealth in the Royal Australian Navy from 10 March 1949 to 22 September 1959? It was submitted on behalf of the applicant that both conditions are the consequence of the motor cycle accident in which the applicant was involved on 24 January 1952, as described in his Statement of Evidence set out in paragraph 13 above. For the purpose of determining this issue, the Tribunal will assume (without finding) that the abovementioned accident occurred in the course of the applicant's employment by the Commonwealth.

On the basis of the medical reports and oral evidence of Mr Tiller and Mr Batalin, the Tribunal is not satisfied on the balance of probabilities that the applicant's present left knee and left middle finger conditions are related to or are the consequence of the applicant's motor cycle accident in January 1952. Mr Tiller's evidence in relation to this matter was somewhat equivocal. In his report of 16 February 1999 (Exhibit A7) he stated that it was "difficult to say" that the applicant's present left middle finger condition is "directly related" to the left middle finger injury he suffered in the motor cycle accident in 1952. As regards the applicant's left knee, Mr Tiller commented in his report that the applicant "may well have been left with some degree of patello-femoral degenerative disease following his fall" in the 1952 motor cycle accident, but immediately added that it was "obvious that he has bilateral degenerative disease in regard to his knees". Later, Mr Tiller opined that, having regard to the fact that the applicant has similar degenerative changes in both knees, but worse in the left knee, it was arguable that he suffered from "patello-femoral changes at the time of his accident, which in turn have an ongoing effect within the knee joint itself". Finally, he commented that "it is hard to be completely convinced that [the applicant's present left knee and left middle finger conditions] are entirely associated with his accident of January 1952". In his oral evidence Mr Tiller essentially reiterated the opinion stated in his report of 16 February 1999. In particular, when asked whether he would attribute the more advanced degenerative condition of the applicant's left knee to his motor cycle accident in 1952, Mr Tiller responded that it "could be associated with it". Mr Batalin, on the other hand, was clearly and firmly of the opinion, as stated in his oral evidence, that on balance there is no causal relationship between the applicant's 1952 motor cycle accident and his present left knee and left middle finger conditions. He, furthermore, articulated 6 grounds on which that opinion was based. The Tribunal is persuaded by Mr Batalin's reasoning and, in the absence of any medical evidence which clearly and unequivocally contradicts Mr Batalin's opinion, the Tribunal accepts that opinion.
Accordingly, the Tribunal finds that the applicant's present left knee and left middle finger conditions are not related to or the consequence of, and do not arise out of, his motor cycle accident on 24 January 1952 or his employment by the Commonwealth.
Are the Applicant's Present Left Knee and Left Middle Finger Conditions Compensable Under the 1988 Act?
In the light of the Tribunal's findings on the abovementioned fundamental issues, the Tribunal will now consider the question whether the applicant's present left knee and left middle finger conditions are compensable under the 1988 Act.
Section 14(1) of the 1988 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 following relevant definitions appear in s4(1) of the 1988 Act:

" 'ailment' means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);
…
'disease' means:
(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 by the Commonwealth or a licensed corporation;
…
'impairment' means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;
'injury' means:
(a)       a disease suffered by an employee; 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;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
…".

Part X of the 1988 Act contains a number of transitional provisions dealing with the application of that Act to injury, loss or damage suffered by an employee before the "commencing day" of that Act (namely, 1 December 1988). Section 124 relevantly provides:

"(1)     Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A)     Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2)       A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage;
(a)where the injury, loss or damage was suffered before the commencement of the 1930 Act – under the 1912 Act;
(b)where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c)in any other case – under the 1971 Act as in force when the injury, loss or damage was suffered.

…".

Section 123A provides:

"A reference in this Part to an injury suffered before the commencing day is a reference to an injury within the meaning of whichever of the 1912 Act, the 1930 Act or the 1971 Act was in force when the injury was suffered, as that Act was then in force."

Finally, it is provided in s4(1) of the 1988 Act that:

" 'the 1912 Act' means the Commonwealth Workmen's Compensation Act 1912;
'the 1930 Act' means the Commonwealth Employees' Compensation Act 1930;
'the 1971 Act' means the Compensation (Commonwealth Government Employees) Act 1971;".

For the purposes of applying the relevant legislation to the circumstances of the present case, the Tribunal must first clarify the nature of the applicant's claim for compensation lodged on 24 May 1996. In the relevant claim form, the applicant claimed compensation in respect of an injury or illness described as "osteoarthrosis" in the "left knee/ left middle finger". In answer to questions in the form regarding the time and circumstances of the occurrence of the injury, the applicant indicated that the injuries occurred in the abovementioned motor cycle accident, although the date of the accident is wrongly given as October 1951, instead of the correct date of 24 January 1952. It is apparent from the applicant's oral evidence, however, that his abovementioned claim for compensation related to the osteoarthritic conditions of his left knee and left middle finger which became symptomatic in 1987, and the early to mid 1990s, respectively. Furthermore, according to the contemporaneous medical records, the only injuries the applicant suffered in the motor cycle accident in January 1952 were lacerations to the left knee and left middle finger which subsequently healed. There is no medical evidence before the Tribunal that the applicant contracted osteoarthritis in the left knee and the left middle finger in that motor cycle accident or at any time before, in the case of the left knee, 1987, and in the case of the left middle finger, the early to mid 1990s. Accordingly, the Tribunal finds that, on 24 May 1996, the applicant claimed compensation under the 1988 Act in respect of "osteoathrosis" in the "left knee/ left middle finger" which became symptomatic in 1987 (in the case of the left knee) and the early to mid 1990s (in the case of the left middle finger) and which he attributed to the motor cycle accident in which he was involved in January 1952 (see para 21 of his Statement of Evidence set out in paragraph 13 above).
In order to consider the question whether the applicant's left knee and left middle finger conditions are compensable under the 1988 Act, it is convenient to deal with each condition separately.
The Left Knee Condition
The Tribunal has already found (see paragraph 39 above) that the applicant presently suffers from the condition of progressive degenerative osteoarthritis in his left knee and that that condition became symptomatic in 1987 and he then, for the first time, sought medical treatment for it. Accordingly, the Tribunal finds that the applicant first suffered osteoarthritis in his left knee in 1987. That being the case, the question whether that condition is compensable under the 1988 Act depends on whether it would have been compensable under the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act"): see s124 of the 1988 Act. The Commonwealth Employees' Compensation Act 1930 ("the 1930 Act") is, accordingly, not relevant to this issue.
Under s27(1) of the 1971 Act personal injury was, subject to and in accordance with that Act, compensable by the Commonwealth in the case of an injury caused to an employee "arising out of or in the course of the employment of [the] employee by the Commonwealth". Section 29 of that Act relevantly provided:
"(1)     Where –
          (a)       an employee contracts a disease…; and
(b)      any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease…,
the succeeding provisions of this section have effect.
(2)If –
          …
          (e)       the total or partial incapacity for work of the employee,
results from the disease … then, for the purposes of this Act, unless the contrary intention appears –
(f)the contraction of the disease … shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and
(g)… the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of injury."

In s5(1) of the 1971 Act the term "disease" was defined to include

"any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development"

and the term "injury" was defined, relevantly, to mean "any physical or mental injury" but, subject to s29, not to include a disease.

The applicant's left knee condition of progressive degenerative osteoarthritis is clearly a "disease" as defined in s5(1) of the 1971 Act. Accordingly, that condition would have been compensable under s29 of that Act provided that the applicant's employment by the Commonwealth was "a contributing factor" to the contraction of that disease. The Tribunal has already found (see paragraphs 42-43 above) on the basis of the medical evidence before it that the applicant's left knee condition is not related to or the consequence of, and does not arise out of, his motor cycle accident in January 1952 or his employment by the Commonwealth. Accordingly, the Tribunal finds that the applicant's motor cycle accident in January 1952 or his employment by the Commonwealth was not a contributing factor to the contraction of his present left knee condition. That condition would not, therefore, have been compensable under the 1971 Act. It follows that that condition is not compensable under the 1988 Act.
The Left Middle Finger Condition
The Tribunal has already found (see paragraph 39 above) that the applicant presently suffers from early or minor arthritic changes in the proximal interphalangeal joint in the middle finger of the left had, with a tendency of "triggering" in that finger, and that that condition became symptomatic in the early to mid 1990s and was first medically diagnosed in 1995. Accordingly, the Tribunal finds that the applicant first suffered arthritis in his left middle finger in the early to mid 1990s. That being the case, the question whether that condition is compensable by the respondent falls to be determined under the provisions of the 1988 Act alone. Neither the 1930 Act nor the 1971 Act is relevant to this issue.
The relevant provisions of the 1988 Act – namely s14(1) and the definitions of "ailment", "disease", "injury" and "impairment" in s4(1) – have already been set out in paragraph 45 above.
The applicant's left middle finger condition is clearly an "ailment" , as defined in s4(1) of the 1988 Act. In order to constitute an "injury" (being a "disease"), within the meaning of the definitions of those terms in s4(1) of the 1988 Act, however, that condition (or "ailment") must be one that "was contributed to in a material degree" by the applicant's employment by the Commonwealth. In order to constitute an "injury (other that a disease)", within the meaning of the definition of the term "injury" in s4(1) of the 1988 Act, on the other hand, that condition must constitute a physical injury "arising out of, or in the course of," the applicant's employment. The Tribunal has already found (see paragraphs 42-43 above) on the basis of the medical evidence before it that the applicant's left middle finger condition is not related to or the consequence of, and does not arise out of, his motor cycle accident on 24 January 1952 or his employment by the Commonwealth. Likewise, the Tribunal finds that the applicant's left middle finger condition or "ailment" was not "contributed to in a material degree", or at all, by his motor cycle accident in January 1952 or his employment by the Commonwealth. That condition is, therefore, neither an "injury" (being a "disease") nor an "injury (other than a disease)", as defined in s4(1) of the 1988 Act and is, accordingly, not compensable under s14(1) of that Act.
Conclusion
The Tribunal concludes, therefore, that:

pursuant to s124(2) of the 1988 Act the applicant is not entitled to compensation under that Act in respect of his left knee condition; and
the respondent is not liable, under s14(1) of the 1988 Act, to pay compensation to the applicant in respect of his left middle finger condition.

In the light of those conclusions and the Tribunal's abovementioned findings in this matter, it is not necessary for the Tribunal to consider other issues raised by the parties relating, in particular, to the requirements under the 1930 Act, the 1971 Act and the 1988 Act for the giving of timely notice of the relevant injuries or diseases in respect of which compensation is claimed.
Decision
For the above reasons the Tribunal affirms the decision under review.

I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Senior Member
Dr D Weerasooriya, Member
Signed:
........................(sgd S Railton)........................
Associate
Date/s of Hearing  2 December 1999
Date of Decision  11 August 2000
Counsel for the Applicant        Mr P Marsh
Solicitor for the Applicant         Kott Gunning
Counsel for the Respondent    Mr R Nash
Solicitor for the Respondent    Australian Government Solicitor