Hegarty and Comcare
[2005] AATA 501
•31 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 501
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/389
GENERAL ADMINISTRATIVE DIVISION )
Re IAN HEGARTY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms MJ Carstairs, Member Date31 May 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ..................[Sgd]......................
MJ Carstairs
Member
CATCHWORDS
COMPENSATION –Commonwealth employees – effect of transitional provisions of Safety Rehabilitation and Compensation Act 1988 where liability to pay compensation arises under former legislation – injuries sustained in motor vehicle accident – whether entitled to incapacity payments now
Commonwealth Employees (Compensation) Act 1971
Safety, Rehabilitation and Compensation Act 1988 ss 4, 4(9), 14, 16, 19, 60, 123, 124(1A), 127(2), 128
Hegarty v Johnson (1981) 35 ATCR 22
Brennan v Comcare (1994) 50 FCR 555Australian Postal Corporation v Oudyn [2003] FCA 318
REASONS FOR DECISION
31 May 2005 Ms MJ Carstairs, Member 1. This is an application by Ian Hegarty (the applicant) for review of a decision made by Comcare which determined that it was not liable to pay compensation to the applicant under any section of the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act) for his compensable condition on and from 18 September 2003 on the basis that the applicant no longer suffered the consequences of injury within the meaning of the 1988 Act.
2. The applicant represented himself at the hearing in Toowoomba on 24 and 25 February 2005. The respondent was represented by Mr C Clark of counsel instructed by Phillips Fox Lawyers.
3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A1 – A10 for the applicant and R1 – R4 for the respondent and a copy of the judgement of the Supreme Court of the Australian Capital Territory in Hegarty v Johnson (1981) 35 ACTR 22.
BACKGROUND
4. The applicant is 61 years of age. He joined the Australian Capital Territory Police Force (which later became the Australian Federal Police) in 1969 and was continuously employed until 17 August 1978 when he was retired on medical grounds.
5. The applicant was involved in a motor vehicle accident on the way home from work on 10 June 1975, when the motor cycle he was riding was hit from behind while stationary at traffic lights. The respondent accepted liability for injuries sustained to the applicant’s back, neck, knee and later for hearing loss as a result of the accident.
6. On 5 September 2003 the respondent determined that the applicant was no longer entitled to medical expenses or incapacity payments from 18 September 2003. The applicant requested reconsideration. On 29 November 2003 a delegate affirmed the determination in regard to current entitlements, though she also conducted an own motion review in regard to which section of the legislation applied to past calculations of the rate of incapacity payments, a matter on which no further review has been sought. The reconsideration delegate also took the opportunity to clarify in her reasons, applying the Federal Court decision in Australian Postal Corporation v Oudyn [2003] FCA 318, that the decision to cease payments to Mr Hegarty did not entail a decision under s14 ceasing liability.
7. On 24 May 2004 the applicant filed an application for review of the decision. The issues are whether Mr Hegarty continues to suffer the effects of compensable injury to his back, neck and left knee, as well as hearing loss, so that Comcare is liable for payments of incapacity and medical payments after 18 September 2003.
EVIDENCE
8. The applicant said that prior to the motor vehicle accident he was fit for work, and did not take sick leave. After the accident he was granted leave while he recovered and his general practitioner wrote to his employer on 27 February 1976 requesting that he be relieved from patrol duties. The police services medical practitioner also recommended light duties. The applicant said that when he resumed his police duties his knee condition was aggravated when carrying out an arrest on 18 January 1977, and he then required ten days leave followed by light duties. Is seems he continued to experience difficulties with police work after the accident and accepted retirement from the police force on 17 August 1978.
9. Mr Hegarty said that in about 1981 or 1982 he worked briefly at a caravan park, but otherwise has undertaken no paid employment since leaving the police force. He said that he is able to look after his acreage property near Toowoomba using a ride-on mower and enjoys home gardening. He said that sometimes he has trouble with his knee which will become painful and swell by the middle of the day but this does not happen every day. He said that he drives a manual car and has never felt the need for an automatic car because when his knee is troubling him he avoids driving. He has reduced the more active sporting activities he once enjoyed such as tennis and cricket and limits his sporting activity to target shooting and bike riding. Mr Hegarty said that he enjoys walking, including bushwalking, and at home uses a static bike to maintain his fitness.
10. Mr Hegarty said his knee was the most troubling of his medical conditions, and he estimated that knee problems interfere with his activities at least once a week. However he takes no medication for his knee, stating in oral evidence that this was for personal health reasons. He said that about every two months the knee locks and occasionally will give way. He said his knee symptoms were gradually worsening, but not in a dramatic way and if bothered he simply rests with his feet raised. He also rests to relieve neck pain as necessary. He agreed that his neck is not tender, confirming that finding as made by Dr P Boys, orthopaedic surgeon (T117).
11. Mr Hegarty said that his back was the least troubling of his conditions and while he agreed that it might be possible that his back symptoms were related to aging, he said that nevertheless there must have been some contribution from the motor vehicle accident in 1975, given the way the accident took place. Under cross-examination he agreed that he has not sought any treatment or medication for his back, neck, or knee conditions for a number of years, stating that this was because he believed there was nothing that his general practitioner would be able to do for him. He said that he relied upon the advice of Dr A Cairns, orthopaedic surgeon, who had said in a report dated 12 April 1976 (T21):
…I do not believe that we should intervene until he becomes sufficiently disabled that his knee is interfering with his occupation and with his private life to an extent where he approaches us with a request to do “something”.
12. Under cross-examination Mr Hegarty agreed that no x-rays of the knee had been taken for a period of twenty years, but he denied refusing x-rays, as had been reported by Dr J Anderson on 16 August 1983 (T54).
13. Mr Hegarty said with regard to his present capacity to work, that he did not believe that he would have any problem undertaking light sedentary work, but that at sixty-one years of age he would be unlikely to obtain work. He said that he has never claimed to be totally and permanently disabled and if ever offered a job, he would have been able to work.
14. In a written statement (attachment C13 to exhibit A3) Mrs N Willis stated that Mr Hegarty, her neighbour until 2004, had required the use of crutches over a period of time and that she and her husband had observed this on numerous occasions. However in oral evidence Mrs Willis recalled only one occasion when the applicant walked on crutches, she said after he hurt himself, but she was unable to remember when this occurred.
15. In a written statement dated 14 June 2004 (attachment C12 to exhibit A3), Mr D Williamson, who had worked with the applicant in the police force and later moved close to where Mr Hegarty lived in Queensland, stated and repeated in oral evidence, that he had seen the applicant using crutches at home on many occasions; however he said Mr Hegarty did not use crutches in public for reasons of embarrassment. He said that he has heard the applicant’s knee click and has observed him using a procedure where he pulls his leg up his back, Mr Hegarty stating to him that he does this to relieve locking of his knee.
16. In a statement dated 10 July 2004 (attachment C14 to exhibit A3) Mrs Marilyn Hegarty said that her husband had required physiotherapy and was issued with crutches in the 1980’s after a painful medical examination. In oral evidence she said the crutches were issued by a physiotherapist at Toowoomba Hospital on one occasion only and were returned to the hospital at the end of the treatment. She confirmed that the applicant did not have crutches at home.
17. Dr P Stark, general practitioner, provided medical certificates annually from 30 July 2001 until 16 May 2003 (T109, T110) stating that Mr Hegarty suffers from a degenerative disease of the left knee, cervical spine and lumbar spine following a work-related injury in 1975. In a letter dated 6 February 2003 (T115) Dr Stark stated that he had been the applicant’s general practitioner since 1990 and had obtained a history of the motor vehicle accident in 1975 from the applicant. Dr Stark had been provided with a copy of a letter dated 3 April 1984 from a delegate of the Commissioner for Superannuation stating that the applicant was considered unfit for continued duty as a senior police constable and was retired on invalidity grounds.
18. Dr Stark stated that when requested in 2001 and 2002 he had provided Mr Hegarty with certificates re-stating the position that he was unfit to return to his previous employment. Dr Stark said that Mr Hegarty had not sought treatment from him in relation to the injuries and he was therefore unable to comment further upon questions such as his capacity for work.
19. In a report dated 26 February 2003 (T117) Dr Peter Boys, orthopaedic surgeon, stated he had been provided with the medical reports of the injury and the records of subsequent treatments. Dr Boys noted that Mr Hegarty had no ongoing treatment of any note over the years apart from simple analgesia and serepax. Mr Hegarty told Dr Boys that he experienced a slightly stiff neck and some lumbar discomfort if restricted to one position either sitting or standing, but experienced few problems if he is able to move about. Mr Hegarty described aching over the medial aspect of the left knee and clicking on extension as well as some swelling over the posterior aspect of the knee from time to time.
20. Dr Boys recorded that Mr Hegarty was fit and well-muscled, maintaining his fitness at home with weights; that he had a normal gait; had full ability to squat and had full and painless range of movement in his cervical and lumbar spine, with no adverse neurological findings present. He noted that examination of the left knee showed no wasting of the quadriceps muscles and apart from some thickening of the synovium of the medial femoral condyle there was no articular abnormality.
21. Dr Boys stated that any soft tissue strain sustained to Mr Hegarty’s neck and lower back occasioned by the motor vehicle accident was temporary and would have resolved within three months. Dr Boys considered that Mr Hegarty’s cervical and lumbar symptoms were constitutional in nature and that, based on the results of arthroscopy undertaken in 1977, it was likely that his left knee injury was the result of a developmental rather than traumatic abnormality. He stated there was no ongoing nexus between Mr Hegarty’s complaints and the accident in1975.
22. Dr Boys stated that Mr Hegarty was capable of full-time employment though he might be precluded from labouring or might experience some neck and low back strain symptoms in the course of any employment that involved repetitious, bending or lifting activities.
23. Mr Hegarty questioned Dr Boys on Dr O Deacon’s report of an arthroscopy on the left knee conducted on 1 June 1977. Dr Deacon reported on 6 June 1977 (T88):
…certainly no significant patello-femoral joint changes or central ridge chondromalacia patellae. However there were some changes over the medial femoral condyle at about the point where the tibia articulates with it in full extension of the knee and a transverse synovial plica in this position, but it looks more as if the medial femoral condyle has been struck forcibly …The menisci both appeared normal.
…He may be having occasional episodes of minimal lateral patella subluxation, of a functional type, that is, it is not possible to reproduce this clinically but certainly there is no secondary chondromalacia patella relative to this.
24. In oral evidence Dr Boys said that Dr Deacon’s primary finding in 1977 was a synovial plica, which is a thickening which may rub against the adjacent femoral condyle. Dr Deacon found no tear of the medial meniscus or of cartilage and Dr Boys confirmed to Mr Hegarty that Dr Deacon’s findings referred to soft tissue and not bony changes. In a further report dated 4 March 2004 (exhibit A7) Dr Boys stated that magnetic resonance imaging (MRI) conducted in 2003 showed an oblique under-surface tear of the medial meniscus, but said this was not present in 1977. Dr Boys pointed out that the arthroscopy procedure allows an examination to be made of the whole of the meniscus. He said that if Mr Hegarty had chondromalacia patella in 1977, there would now be resultant changes that are not evident on an examination of the knee.
25. In a report dated 28 March 2003 (T120), Dr Bruce Martin, orthopaedic surgeon examined Mr Hegarty and looked at the medical reports completed during the 1970’s and 1980’s. Based on both he concluded that Mr Hegarty was not suffering from a traumatically induced condition of the neck or back. He stated that Mr Hegarty’s gait was normal; he was able to execute a full squat demonstrating full flexion of the left knee; and although there was slight hyperextension of each knee joint he considered this was not significant. Dr Martin stated Mr Hegarty was not suffering from any condition of his left knee which could be attributed to the accident in 1975 and that Mr Hegarty’s neck and back symptoms were the result of the natural aging process.
26. Dr Martin stated that a basis for the mechanical symptoms in the left knee described by Mr Hegarty could not be determined on clinical examination and Dr Dixon’s report of the arthroscopy in 1977 had not confirmed a traumatic condition in the left knee. Dr Martin said that there were no symptoms or signs suggestive of pathology over the median femoral condyle and if there were a popliteal cyst it was not clinically demonstrable though, if present, could be expected to result in posterior knee discomfort from time to time. The popliteal cyst was not related to the accident in 1975, however. He stated there was no ongoing nexus between any current medical condition and the accident and that any effects of the accident would have ceased.
27. In oral evidence Dr Martin said that the only evidence of a tear in the medial meniscus was the MRI report in 2003. He said that the oblique under-surface tear shown in the MRI would not interfere with the movement of the femoral condyle and was not present when Dr Dixon conducted an arthroscopy in 1977. Dr Martin confirmed, as had Dr Boys, that when an arthroscopy is undertaken the whole knee is examined and a practitioner routinely takes the opportunity to probe the meniscus.
28. Dr Martin stated that Mr Hegarty possessed the capacity to engage in work for forty hours per week and should be able to perform any work which might reasonably be expected of a very fit man of his age, without restrictions.
29. In a report dated 25 August 2003 (exhibit R2) Dr Anthony Wilson, orthopaedic surgeon, reported that Mr Hegarty sustained a minor chondral injury to his left knee and injury to the supporting structures of the cervical and lumbar spine as a result of the accident in 1975. He stated that the condition of Mr Hegarty’s spine now was not related to the motor cycle accident in 1975 and any spinal and left knee injury at the time would have resolved within twelve months of the accident. He said that the symptoms Mr Hegarty experiences now were due to the natural aging process and result from constitutional, occupational, domestic and recreational factors. Dr Wilson confirmed in oral evidence that his clinical examination did not support the level of impairment that Mr Hegarty says that he experiences.
30. In a report dated 3 August 2004 (exhibit A5) Dr G Bookless, orthopaedic surgeon referred to a posterior medial meniscal tear affecting his left knee (MRI in 2003) which Dr Bookless thought probably related to the accident in 1975. In relation to Mr Hegarty’s neck condition, Dr Bookless stated that Mr Hegarty suffers from degenerative changes in his cervical region consistent with normal wear and tear. In a supplementary report dated 21 September 2004 (exhibit R1) Dr Bookless confirmed his view that Mr Hegarty’s cervical spondylosis was related to an underlying degeneration and natural aging process. He said that if one accepts that the motor cycle accident was the cause of a meniscal tear – he said however this is by no means certain – then it followed that knee symptoms now were related to the accident in 1975.
31. Dr Bookless stated Mr Hegarty is not incapacitated to engage in all work, but is incapacitated for the work he undertook immediately before the motor cycle accident. He stated Mr Hegarty could undertake sedentary work or light manual work, full-time, without restriction. He stated although Mr Hegarty was capable of undertaking a rehabilitation program such a program was not required, nor was a graduated return to work program.
32. In a report dated 31 July 2003 (T126), Dr R Black, ear nose and throat specialist, said that Mr Hegarty had an accepted (that is by Comcare) 2.7% hearing loss as a result of the accident and now has a 6.3% loss and that the deterioration over the period of time was a result of the natural aging process. He said that the injury in 1975 would not predispose Mr Hegarty to ongoing hearing loss.
CONSIDERATION OF THE ISSUES
33. The legislation that applies to determine a present entitlement to compensation is the 1988 Act, even where an injury was sustained when previous legislation was in force. Mr Hegarty was injured in 1975 when the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) was in force. Mr Hegarty made a number of submissions concerning how the legislation should be applied and maintained that decisions had been improperly made, sometimes under incorrect sections of the 1988 Act, made without power and/or infected by bias. As far as the Tribunal understands his submissions, he agreed that the 1988 Act applies to him, but only by application of Part X, that is the Transitional Provisions, and not through other sections of the 1988 Act.
34. Mr Hegarty submitted, referring to Cooper v Comcare [2002] FCA 220 that the words injury and former employee in s123A of the 1988 Act should be read expansively. He submitted that Comcare has ignored the effects of his injuries as they cause incapacity for work and said that as a result of the operation of s4(9) of the 1988 Act, which defines incapacity for work as being :
a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
he necessarily satisfies that section of the 1988 Act.
35. Mr Hegarty stated that he can no longer engage in work that he was engaged in prior to his injury. He referred also to the term suitable employment defined in s4 of the 1988 Act as follows:
suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment—employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i) the employee’s age, experience, training, language and other skills;
(ii) the employee’s suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b)in any other case—any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).
36. Mr Hegarty attached to his written submissions a number of documents relating to the period after the accident in 1975 he submitted that Comcare had not provided rehabilitation at the time when they had a duty to do so, as was now provided under s69 of the 1988 Act. He said that it can be inferred from his not being in suitable employment now, and applying the meaning given to incapacity by s4(9)(b) of the 1988 Act, that his incapacity is ongoing. He submitted (exhibit A2) that because Comcare has not instituted a rehabilitation programme, this was evidence that Comcare considered that his incapacity (s4(9)(b) of the 1988 Act) for obtaining suitable employment (s4 of the 1988 Act) was insurmountable. He submitted that Dr Boys’ evidence (T117) provided support for this view, because Dr Boys believed that he has capacity for office-based work, which was not the kind of work that Mr Hegarty was doing prior to his injury.
37. Mr Hegarty said that the decision made under s14 of the 1988 Act was invalid (Mr Hegarty not referring to the correction of this in the reviewable decision: see par 6 above). He said the decision should have been made under Part X of Division 2 of the 1988 Act because his injury occurred when the previous Act was in force. He said that Part X of the 1988 Act provided his entry to the 1988 Act. He said that s60 of the 1988 Act, under which the reviewable decision was made, did not extend to the decisions made in his case; should have been made under s124 of the 1988 Act; and were not reviewable under s60 of that Act. Mr Hegarty alleged other grounds of error including bias and failure to perform the functions as mandated by s72 of the 1988 Act. He also referred to confusion and inconsistency in the respondent’s case when speaking of injury and incapacity.
38. Mr Hegarty submitted that he was covered by s124(1A) of the 1988 Act which provides:
(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.
39. Mr Hegarty further submitted that no medical reports could detract from his preserved entitlement that arose under the 1971 Act. He said that he has never claimed to be totally disabled. It could be inferred from his submissions that he felt let down by a system that did not oversee a rehabilitation program for him after the accident in 1975.
40. Dealing firstly with Mr Hegarty’s submissions on the legislation, it is clear that once the 1971 Act was repealed (s139 of the 1988 Act), all rights, including ongoing rights, to compensation for injuries that predated the commencement of the 1988 Act had to be determined under the new legislation. The transitional provisions in Part X of the 1988 Act provide for continuity between the scheme established by the 1971 Act and that created by the 1988 Act. Section 124, 127(2) and s128 of the 1988 Act in the circumstances here mean that the liability to pay compensation is governed by the provisions of the 1988 Act. It was part of the delegate’s own-motion review, for reasons that do not need to be elaborated upon here, that the applicant was an employee and not a former employee as defined by s123 of the Part X transitional provisions of the 1988 Act. Mr Hegarty agreed with this interpretation, but his acceptance of that proposition defeats his argument that his case is determined under the transitional provisions. It is only former employees’ rates of compensation that are determined within Part X of the 1988 Act.
41. Section 127(2) of the 1988 Act provides for determinations made under the 1971 Act, and provides that after the commencement of the 1988 Act, determinations made under the 1971 Act are taken as determinations under corresponding provisions of the 1988 Act. Section 128 of the 1988 Act provides that any liability of the Commonwealth to pay compensation under any provision the 1971 Act shall be taken to have been incurred under the corresponding provision of the 1988 Act.
42. Section 14 is the primary source of liability in the 1988 Act and provides:
… 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.
43. The Tribunal does not accept Mr Hegarty’s submission that the general provisions in Part II of the 1988 Act do not apply to him and decisions are to be made under Part X of the 1988 Act. There are limited provisions for decision making under Part X that relate in the main to the calculation of rates of payment for former employees. That is not the kind of decision that has been made here. The transitional provisions indicate that the ordinary provisions of the 1988 must be applied, and the operation of the transitional provisions in this sense was referred to in Brennan v Comcare (1994) 50 FCR 555 at 562:
The provisions are transitional in a particular way. They are not concerned with the preservation of the old legislation….they deal with the creation and substitution from their commencement of new rights in respect of past events
44. In other words, all provisions for compensation payments as they continue as a present liability commence with injury occurring to an employee, injury being defined in s4 of the 1988 Act. There was of course no dispute that Mr Hegarty had suffered injury in the past. However, many persons who are injured recover and the legislation enables reviews to be conducted and new decisions to be made, if it is found that a person is no longer incapacitated for work or in need of the other kinds of compensation provided for in workers’ compensation legislation.
45. The Tribunal does not accept Mr Hegarty’s submission on the manner in which the 1971 Act and the 1988 Act operate. The Tribunal agrees with Mr Hegarty that his rights, established through the acceptance of a compensable injury under the 1971 Act, continue because of the presence of the transitional provisions in the 1988 Act. However, the 1971 Act was repealed and any current entitlements find their source in the 1988 Act. The Tribunal does not accept Mr Hegarty’s submission that the reviewable decision was invalid. The decision that was being reviewed was considered in relation to a number of payments to which Mr Hegarty was entitled under the 1988 Act, including under s16 and s19 of that Act, and clearly these were reviewable under s60 of that Act.
46. The submissions made by Mr Hegarty concerning the operations of s4(9) are incorrect. The phrase used in that section incapacity suffered by an employee as a result of injury must be read as a whole. The meaning of the phrase derives from a reading of the primary source of entitlements in s14 in conjunction with the definition of injury in s4 of the 1988 Act. It is not the case, as Mr Hegarty asserts, that a medical condition, once accepted for compensation, forever entitles a person to incapacity payments merely as a result of them demonstrating that they can no longer engage in the work that they were doing prior to the injury.
47. Mr Clark submitted that the Tribunal should accept the opinions of medical practitioners that:
§ The applicant’s neck, back, knee and hearing conditions are no longer materially contributed to by the motor vehicle accident on 10 June 1975.
§ The applicant is no longer incapacitated due to any neck, back, knee or hearing loss conditions.
§ The applicant no longer requires medical treatment for his neck, back, left knee and hearing loss as a result of the motor vehicle accident in 1975.
48. Mr Clark accepted the occurrence of injury through the accident in 1975 but disputed whether there is injury now. He submitted that there has been a material change of circumstances, the applicant having recovered a long time ago from the injuries sustained in 1975, as reflected in Mr Hegarty not having attended a doctor in relation to the injuries for over twenty years. Mr Clark noted that compensation had continued on the basis of medical reports completed by Dr Stark who confirmed in evidence that Mr Hegarty did not attend him for treatment. He submitted that the overwhelming evidence was that the applicant is not incapacitated and no compensation is payable now.
49. The medical evidence in this case points to the correctness of a conclusion that Mr Hegarty has recovered from the consequences of the injury he sustained in the accident in 1975. Mr Hegarty was forthright in his acknowledgement that certain of his conditions do not occasion substantial limitation on what he can do. He acknowledges that his back problems are minimal. The evidence of Dr Boys, Dr Martin, Dr Wilson and Dr Bookless supports what Mr Hegarty said about his back and his neck. Those doctors agreed that Mr Hegarty demonstrates the expected degenerative changes of a man of his age in regard to his cervical and lumbar spine and they agreed that Mr Hegarty would have recovered from the consequences of the accident in 1975 because the injuries were to soft tissue. It is clear from the evidence overall that Mr Hegarty is a remarkably fit man for his age, no doubt due to the care he has taken to maintain an active, physical fitness regime over the years.
50. In regard to the condition of Mr Hegarty’s left knee, with the advantage of being able to take a longitudinal view, taking account of the medical reports and the arthroscopy results from the time of the injury, and the medical reports now, some thirty years later, it is possible to conclude, as do Dr Boys and Dr Martin, that Mr Hegarty sustained no tear of the medial meniscus in the 1975 injury. Dr Bookless’ report is not to the contrary. He stated in his report that, if it were assumed that Mr Hegarty had sustained a tear in 1975, this would explain current complaints of knee problems. However, the Tribunal was satisfied, accepting the evidence of Dr Boys and Dr Martin, that there was no tear at the time because it did not show when an arthroscopy was undertaken. The tear showing now on an MRI cannot be related to the injury in 1975. The Tribunal accepts the evidence of Dr Boys and Dr Martin that the injuries sustained by Mr Hegarty in 1975 were soft tissue injuries from which he could expect to recover within a period of at most a year and the Tribunal was satisfied that he did make that recovery.
51. The Tribunal accepts that Mr Hegarty has some problems with his knee but finds that these problems can be explained by reasons other than the injury in 1975. The medical reports suggest that there is little wrong with Mr Hegarty’s knee and their findings bring into question the level of knee symptoms that Mr Hegarty says that he has. As a result of this the Tribunal finds that the applicant does not now suffer incapacity from injury to the knee sustained in work related circumstances.
52. The Tribunal accepts the evidence of Dr Black that any further deterioration of Mr Hegarty’s hearing is the result of age related changes. Mr Hegarty does not seek treatment for hearing loss from his general practitioner and in his evidence he did not suggest that hearing loss prevents him from working.
53. On the question of rehabilitation, as raised by Mr Hegarty, the Tribunal accepted Mr Clark’s submission that Mr Hegarty has no compensable symptoms that would entitle him to rehabilitation under the 1988 Act and notes the evidence of Dr Bookless that Mr Hegarty does not require a rehabilitation program in order to return to work. Any issue of rehabilitation was not part of the reviewable decision in any event, and for this reason was not before the Tribunal.
54. For these reasons, the Tribunal affirms the decision under review.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member
Signed: Camille Banks
AssociateDate/s of Hearing 24 and 25 February 2005 [at Toowoomba]
Date of Decision 31 May 2005 [at Brisbane]
The Applicant appeared in person
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Phillips Fox, Lawyers
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