John Lewis and Comcare

[2015] AATA 285

[2015] AATA 285  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/5395; 2013/6289-94
Re	John Lewis
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance Deputy President Gary Humphries
Date	30 April 2015
Place	Sydney

2013/5395

The decision of Comcare, dated 9 October 2013, denying liability to compensate Mr Lewis in respect of a claimed injury to his right knee, is affirmed.

2013/6289-6294

The decision of Comcare, dated 3 December 2013, denying liability to compensate Mr Lewis in respect of claimed permanent impairments resulting from injuries to his hands, is affirmed.

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

Deputy President J W Constance

Catchwords

COMPENSATION – injury - claim for compensation for injury to right knee – whether Applicant suffered an injury to right knee – decision affirmed

COMPENSATION – permanent impairment – injuries to hands – no finding of resultant permanent impairment – decision affirmed

COMPENSATION – jurisdiction – whether jurisdiction to consider claim based on nature and conditions of work – no claim lodged in respect of an injury arising out of nature and conditions of work

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 14, 24, 53

Cases

Canute v Comcare [2006] HCA 47
Szabo v Comcare [2012] FCAFC 129

REASONS FOR DECISION

Deputy President J W Constance
Deputy President Gary Humphries

INTRODUCTION

1. Between 1984 and October 1998, Mr Lewis was employed as a Licensed Plumber, Drainer and Gasfitter by Asset Services (a Commonwealth government agency).  During most of that time he worked on Army bases within the Sydney region, often on call for emergencies.  It was hard physical work.

2. Not surprisingly, Mr Lewis suffered a number of soft tissue injuries to his hands over the years. In addition, he says that on one occasion in 1991, he fractured his left thumb when he hit it with a hammer.  Mr Lewis also claims that in 1995 he injured his right knee at work.

3. Mr Lewis is claiming compensation in respect of all these injuries in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth). He claims that the injuries to his hands have resulted in permanent impairments for which he is entitled to compensation.[1]  In respect of the right knee injury he claims Comcare is liable to pay compensation as the injury has resulted in incapacity for work and impairment.[2] In particular he claims that he was required to undergo surgery to replace his right knee as a result of the injury.

   [1] See sections 24 and 26 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)

   [2] See section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)

4. Comcare has decided to deny liability for each claim.  Mr Lewis has applied to the Tribunal to review these decisions.

5. For the reasons which follow, each of the decisions under review will be affirmed.  As the claim in respect of the knee is separate from those in respect of the hand injuries we will deal with the claims separately.

   PART A.  APPLICATION 2013/5395

   CLAIM IN RESPECT OF INJURY TO RIGHT KNEE

   BACKGROUND

   The evidence of Mr Lewis given to the Tribunal

6. At approximately 9pm on a day between 28 March 1995 and 21 November 1995, Mr Lewis was working at Ingleburn Army Base in New South Wales, having been called out at night to repair a broken water main.  He was wearing gumboots.  As he was attempting to get out of a trench his right foot became stuck in the mud.  As he tried to pull his foot free, he felt his knee “snap”.  He felt pain in his knee and he immediately attended the Base Hospital.

7. The incident was witnessed by a fellow employee, Mr Warren Ritchie, who has since died.  Mr Ritchie attended the Base Hospital with Mr Lewis.  Mr Lewis said that the doctor who examined him told Mr Lewis that he had suffered a medial ligament tear.  However, later in his evidence, he said that Mr Ritchie suggested to the doctor the nature of the injury Mr Lewis had suffered and the doctor agreed.

8. That night Mr Lewis reported the incident to his Call Out Supervisor.  The following day he reported the incident to the Chief Executive Officer at Regents Park who, to the best of his recollection, was a Mr Ron Ericson.  On that day he also consulted his general practitioner, Dr Tan. 

9. Mr Lewis was unfit for work during the 7 days following the incident.  He continued to receive his wages during the time off work. Mr Lewis understood that he was initially paid sick leave which was later reinstated from compensation payments.

   Claim for compensation

10. On 22 March 2013, Mr Lewis lodged a claim for compensation in respect of the injury.[3] Much of the information requested in the form was not supplied at the time the form was signed.  However, in Comcare’s decision under review (dated 9 October 2013), this was the claim identified as the one in respect of which the decision was made.[4] The injury was described in the Claim as a medial ligament tear to the right knee. 

    [3] Exhibit R1 p.34.

    [4] Exhibit R1 p.100.

11. A delegate of Comcare disallowed the claim on 14 August 2013.  The injury was classified by the delegate as “osteoarthritis localised knee (right) injury”. [5] 

    [5] Exhibit R1 p.86.

12. On 9 October 2013, Comcare affirmed the determination of 14 August 2013.[6]   Comcare decided the claim as being in respect of a specific injury to the knee which occurred in 1995 or 1996 rather than in respect of an injury being osteoarthritis.  The claim was described as being for “compensation for a medial ligament tear to [the] right knee.”[7]

    [6] Exhibit R1 p.99.

    [7] Exhibit R1 p.100.

13. At least three other claims in respect of the same injury were lodged by Mr Lewis during 2013.  However, as the reviewable decision was made in respect of the claim made 22 March 2013, it is this claim which is the subject of our review.

    LEGISLATION

14. Mr Lewis' claim was made under subsection 14(1) of the Act.  This subsection reads:

    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.

15. Sections 16 and 19 of the Act provide for payment of medical expenses and loss of earnings respectively.

16. Subsection 53(1) of the Act provides in part:

    This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:

    (a)       as soon as practicable after the employee becomes aware of the injury…

    COMCARE’S ARGUMENT

17. It is argued on behalf of Comcare that we cannot be satisfied that Mr Lewis suffered the injury to his knee.  It is further contended that, even if we are satisfied that the injury occurred, the Act does not apply (and therefore Mr Lewis is not entitled to compensation under the Act) as he failed to give notice of the injury as required by subsection 53(1).

    CONSIDERATION

    Did Mr Lewis suffer an injury to his right knee during the period 28 March 1995 and 21 November 1995?

    Dates of injury nominated by Mr Lewis

18. Statements by Mr Lewis as to precisely when he injured his knee vary.

19. In his claim form,[8] and when giving evidence before us, Mr Lewis nominated the date of injury as being between 28 March 1995 and 21 November 1995. He also referred to this period in a letter dated 28 May 2013 forwarded to Comcare.[9]

    [8] Exhibit R1 p.48.

    [9] Exhibit R1 p.53.

20. The range of dates (28 March 1995 to 21 November 1995) coincides exactly with the period identified in a Comcare Employee Claim List[10] relating to Mr Lewis and released to him under the Freedom of Information Act on 16 May 1997. There is no entry opposite claim number 22 on that form. The remaining 29 claim numbers record claims all made by Mr Lewis. Claim number 21 is dated 21 November 1995; claim number 23 is dated 28 March 1995. When it was put to Mr Lewis that he had nominated the date of his knee injury to coincide with the period which included the missing claim number 22, he denied this.

    [10] Exhibit A1 p.115.

21. Mr Lewis was assessed by Dr Kalnins, Orthopaedic Surgeon, on 18 July 2013.  In his report dated 18 July 2013,[11] Dr Kalnins records Mr Lewis having told him that the date of his injury was 2 January 1996.  Mr Lewis denied that he told Dr Kalnins that he was injured on this date.

    [11] Exhibit R1, p.73.

22. In a report dated 9 April 2014,[12]  Dr Bodel, Orthopaedic Surgeon, records having taken a history from Mr Lewis that the injury occurred on 28 May 1995.  When asked, Mr Lewis said that he did not know where these dates came from, but he was sure that there was only one occasion when he injured his right knee.

    [12] Exhibit A1 p.63.

    Evidence as to time Mr Lewis was absent from work following the injury

23. Mr Lewis told us that he was off work for “about seven days” after he hurt his knee.

24. In a letter to Comcare dated 28 May 2013[13] Mr Lewis stated, in part:

    I was on Call Out at the time I suffered a medial ligament tear to my Right Knee at the Ingleburn Army Camp, I was treated by an Army Doctor at the Ingleburn Army Camp, reported the Injury to my Right Knee immediately to my Call Out supervisor and the next day to my Work Supervisor, I had numerous weeks off with this injury, all these records are in the hands of my past employer, Asset Service as I did lodge a Compensation Claim with Asset Service Pay Office when I finally returned to work and subsequently I was paid compensation for the period I was off.

    [13] Exhibit R1 p.53

25. On 7 June 2013, Mr Lewis made a statutory declaration in which he stated that he recalled having a “lengthy time off work with this injury”.[14]

    [14] Exhibit R1 p.66.

26. A Sick Leave Report detailing all sick leave taken by Mr Lewis during his employment by Asset Services[15] does not show any leave being taken in respect of a knee injury in the relevant period. 

    [15] Exhibit R1 p.83.

27. When cross-examined as to the apparent discrepancies in his description of the time he was absent from work, Mr Lewis said that, to him, seven days was a long time.  He admitted that his statement that he had numerous weeks off work was an exaggeration.

    Evidence as to the mechanism of the claimed injury

28. In the opinion of Dr McGill it is unlikely that the mechanism of pulling a foot out of mud would have caused a ligament to tear, although it may cause a minor strain. Further, he said that if a person suffers a complete rupture of a medial ligament it is often accompanied by other pathology requiring surgery.

    Evidence of treatment after the claimed injury

29. Mr Lewis said that from the time of the injury, his knee was weak and he suffered constant pain.  He said also that he consulted his general practitioner, Dr Tan, the day following the injury.  However, in his statutory declaration made 7 June 2013[16], he said that “my normal treating compensation Dr T T Tran had nothing to do with the treatment of this injury …”.  Mr Lewis sought to explain this by saying that he may have seen another doctor at Dr Tran’s practice.

    [16] Exhibit R1 p.66.

30. There is no evidence which suggests that Mr Lewis sought any further medical treatment until several years later, despite his claim that he continued to suffer weakness and pain in his right knee.

    History given to examining Medical Specialists

31. In November 1999, Dr McGill examined Mr Lewis in regard to a claim for compensation for an injury to his left knee.  In his report of 29 November 1999,[17] Dr McGill reported on the history of various injuries suffered by Mr Lewis whilst working for Asset Services.  Dr McGill said that he pressed Mr Lewis to describe all of the conditions from which he suffered but no mention was made of any symptoms in the right knee.  On examination, Dr McGill found that Mr Lewis had full movement in his right knee which was clinically normal.

    [17] Exhibit R3.

32. Dr Bornstein, Orthopaedic Surgeon, also examined Mr Lewis in November 1999.  In the history taken from Mr Lewis there is specific reference to injuries to the left knee, both elbows and the back.  Mr Lewis provided particular dates of these injuries.  There is no reference to an injury to the right knee.[18]  Dr Bornstein reported a restriction in the movement of both knees.

    [18] Exhibit A1 p.100.

    Evidence as to reporting of the incident

33. Although Mr Lewis told us that he reported the injury to two supervisors, there is no evidence of any record of these reports.  He also told us that he made a claim in respect of the injury shortly after the incident.  Again there is no documentary evidence to support the making of such a claim.

    Evidence as to the making of a claim

34. Mr Lewis' evidence as to the manner in which he made the claim is equivocal.

35. When Mr Lewis wrote to Comcare on 28 May 2013,[19] he stated that after he had “numerous weeks” off work, on his return, he lodged a claim form with his employer’s pay office. When he gave evidence, he told us that he does not remember filling out a claim form and that he left it to staff in the office to “fix it up”. When questioned further he said he was unsure whether he left it to the office staff to complete the form. He did understand at the time that the completion of a claim form was a separate process from that of notifying his employer of an injury. The documents contained in exhibit R1 establish that Mr Lewis had completed other claim forms himself.

    [19] Exhibit A1 p.122.

36. Neither Mr Lewis nor the Department of Finance has been able to locate any documentary evidence to support the lodgement of a claim in respect of the injury Mr Lewis says he suffered. The Department maintains the records of Asset Services.

    Evidence of Dr Senior, General Practitioner

37. Dr Senior has been Mr Lewis’ general practitioner since 2008. He provided three reports,[20] and gave evidence.

    [20] Exhibit A1 pp.71-74.

38. In February 2012, Dr Senior reported:

    John has ongoing pain in his right knee, which limits his mobility and activity levels. He has a persistent ache in the knee. I believe he has ongoing significant impairment in the knee, which is caused by his initial injury. It would be very unlikely for him to have so many musculoskeletal injuries resulting in osteoarthritis and epicondylitis (and now bursitis), and then also have a similar problem in a joint and this be unrelated to the initial injuries. There is no other obvious cause of his knee injury.[21]

    [21] Exhibit A1 p.70.

39. When he gave evidence, Dr Senior said that based on his understanding of Mr Lewis’ employment duties and injuries to his joints, his employment made a “significant contribution” to his present injuries. Dr Senior agreed that if Mr Lewis suffered a medial ligament tear he would have required several weeks off work to recover.

    Discussion

40. Although Mr Lewis does not bear an onus of proof, we must be satisfied on the evidence before us that, on the balance of probabilities, Mr Lewis suffered the injury he alleges. It is not necessary that we be satisfied of the exact date of the alleged injury.

41. Considering all of the evidence, we are not satisfied that Mr Lewis suffered a medial ligament tear to his right knee at any time. The variations in the statements made by Mr Lewis and his failure to tell both Dr McGill and Dr Bornstein of the ongoing pain in his right knee, which he alleges he suffered, causes us to conclude that he is not a reliable historian. In our view, it is unlikely that all documents relating to the lodgement of the claim have been lost.  Further, it is unlikely that there is no record of Mr Lewis having taken leave at the time he says he was injured, if in fact he took such leave.

42. Dr Senior’s opinion that Mr Lewis’s condition of osteoarthritis was caused by an injury sustained at work was based on the history given to him by Mr Lewis. For the reasons we have stated, we are not satisfied that the history given by Mr Lewis in regard to his right knee was accurate.

43. Mr Lewis relied heavily on there being no detail of claim 22 in the list of his claims maintained by Comcare. Comcare maintains that this was a result of a computer glitch. Nonetheless, we are satisfied that Mr Lewis initially claimed the injury occurred within the range of dates he did because he was aware that claim 22 had no details entered against it in Comcare’s records.

    Other issues in relation to Mr Lewis' claim in respect of his right knee

44. As we are not satisfied that Mr Lewis suffered the injury he claims, it is unnecessary that we decide the further issues relating to notice of the injury and what, if any, impairment Mr Lewis has suffered as a result of the injury.

45. However, for completeness, we indicate that even had we been satisfied that Mr Lewis suffered the injury alleged and that he had given the required notice of that injury, we would not have been satisfied that the injury resulted in the impairment he claims.  For the reasons we will set out in relation to Mr Lewis' claim in relation to the injuries to his hands, we are satisfied that he suffers from a constitutional condition of osteoarthritis in his knees and that any aggravation of this condition would have been of short duration.

46. Further we would not have been satisfied that the injury resulted in the need for the knee replacement operation he underwent in 2007 or that any aggravation arising from his employment caused the ongoing pain from which he suffers.

    PART B.  APPLICATIONS  2013/6289-6294

    CLAIMS IN RESPECT OF INJURIES TO HANDS

    BACKGROUND

47. During the time he was employed by Asset Services, Mr Lewis sustained a number of injuries to his hands for which Comcare accepted liability to pay compensation.  On 10 August 2012 and 13 November 2012, Mr Lewis lodged claim forms with Comcare which, between them, made claims for additional compensation in respect of each of the injuries on the basis that each had resulted in permanent impairment.

48. The injuries in respect of which the claims were made and the dates of those injuries are:

    ·burn to left hand  16 March 1988

    ·infected third finger right hand  21 September 1989

    ·infected right finger  18 December 1989

    ·fractured left thumb  18 November 1991

    ·bruising right second finger  28 March 1995

    ·sprained right wrist/bruised right hand          5 February 1996.

49. On 25 June 2013, Comcare determined that it was not liable to pay the compensation claimed.  Subsequently, having considered additional evidence received after the initial determination, Comcare reconsidered the determination.  On 3 December 2013, it affirmed the determination.

50. Mr Lewis has applied to the Tribunal to review the decision of 3 December 2013 in respect of each of the injuries. The applications to the Tribunal are numbered 6289 – 6294 inclusive.

    LEGISLATION

51. Section 24 of the Act provides in part:

    (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

    (2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

    (a) the duration of the impairment;

    (b) the likelihood of improvement in the employee's condition;

    (c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

    (d) any other relevant matters.

52. In subsection 4(1) impairment is defined to mean:

    … 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.

    ISSUES FOR DETERMINATION

53. The following issues arise for determination.

    (a)Have any of the injuries suffered by Mr Lewis resulted in an impairment?

    (b)If so, is that impairment or are those impairments permanent?

    (c)If so, what is the degree of permanent impairment in each case?

    FACTS

54. When Mr Lewis submitted his original claim in respect of the injury to his left thumb, he described the injury as “fractured left thumb”.[22]  There does not appear to have been any medical evidence lodged in support of the claim that Mr Lewis' thumb was fractured.

    [22] Exhibit R2 p22.

1. Mr Lewis injured his thumb when he was using a lump hammer and a chisel to break way part of a concrete wall in November 1991.  He accidentally hit his thumb with the hammer.  The next day Mr Lewis consulted his general practitioner, Dr Tan, who told him that he had sustained a fracture of the thumb.

2. In a certificate dated 10 August 2012, which accompanied Mr Lewis' claim for compensation for permanent impairment, Dr Senior gave his diagnosis of the condition for which the claim for permanent impairment was made as “severe osteoarthritis multiple joints left hand secondary to old fracture.” [23]

   [23] Exhibit A1 p.10.

3. Mr Lewis continually suffers pain in his left thumb.

   THE ARGUMENT PUT ON BEHALF OF MR LEWIS

4. In the Applicant’s Statement of Facts, Issues and Contentions filed on behalf of Mr Lewis on 1 September 2014 it was stated, in part:

   As a result of the 6 frank injuries … and as a result of the nature of the particular tasks involved in the Applicant employment, the Applicant suffers from a generalised osteoarthritic condition to his hands.

   ……

   The Applicant has sustained an injury to his hands generally and in particular an injury to his left thumb as result of his employment with the Commonwealth Public Service which has resulted in permanent impairment liable to be compensated by the Respondent under ss.24 and 27 of the Safety, Rehabilitation and Compensation Act 1988…

   MEDICAL EVIDENCE

   Dr McGroder, Consultant Occupational Health Physician

5. Dr McGroder examined Mr Lewis on 26 July 2012.  He provided a report dated 26 July 2012.[24]

   [24] Exhibit A1 p.75.

6. Dr McGroder reported:

   He has had a number of injuries to the hands and fingers and this has resulted in broken bones and he has developed secondary osteoarthritis. He has pain and restriction of range of movement of the fingers and has difficulty using any force or pincer gripping involving the fingers and thumb.

   ……

   … there was evidence of arthritis in the IP joints and decreased strength and dexterity noted.

   ……

   Diagnosis

   ……

   Left Hand - chronic osteoarthritis

   Right Hand - chronic osteoarthritis.

   Dr Rea, Surgeon

7. At the request of Comcare, Dr Rea examined Mr Lewis on 14 February 2013.   He provided reports dated 15^th February 2013,[25] and 5 April 2013.[26] 

   [25] Exhibit A1 p.90.

   [26] Exhibit A1 p.94.

8. In his first report, Dr Rea stated, in part:

   A specific condition which this patient now suffers is a significant disability in both hands, and the prognosis for this condition is not good.

   The patient were certainly not exaggerating his symptoms or consciously guarding any restriction of movement, and my findings on physical examination were consistent with the patient’s complaints.

   There is no doubt that the patient’s current condition is related to his previous employment as a technician and trade worker; there are no factors unrelated to work in his disability. I do not consider that there is any particular age element in this patient’s disability, and he has not developed any different condition from that already listed and claimed for.

   There is no doubt that the patient’s impairments are permanent, and this will continue indefinitely.

   ……

   I consider that the impairment for the right upper extremity, hand, and arm, is 30%; and for the left upper extremity, hand, and arm, is 25%.

   I am not able to isolate the effects of the patient’s injuries in my assessment.

   Dr Bodel, Orthopaedic Surgeon

9. Dr Bodel assessed Mr Lewis at the request of his Solicitors on 9 April 2014.  He provided reports dated 9 April 2014[27], 3 June 2014[28], 4 July 2014[29] and 21 July 2014[30]. He also gave evidence.

   [27] Exhibit A1 p.63.

   [28] Exhibit A3.

   [29] Exhibit A4.

   [30] Exhibit A5.

10. On 9 April 2014, Dr Bodel reported:

    In relation to the hands there is a small joint arthritic disease in the interphalangeal joints, particularly the distal ring finger of the right hand and to a lesser extent on the left-hand side and there is also evidence clinically of an old fracture of the fifth metacarpal in the right hand. There is some minor persisting angulation. He lacks the last few degrees of extension in all of the interphalangeal joints, lacking 10 degrees of extension in the distal interphalangeal joint and the proximal interphalangeal joint in all four digits of each hand. He is able to make a reasonable fist on both sides but grip strength is weak. I am unable to detect any measurable restriction of flexion in the finger joints of either hand. There is no definite residual scarring that I can identify in either hand. There is no evidence of median or ulnar nerve pathology in either hand.

    ……

    Clinically this gentleman has a generalised genetic tendency to arthritic change as is evidenced by the number of joints around the body that have now been afflicted by this illness. The nature and conditions of his work, which was heavy manual work as a plumber for the Australian Federal Government, has however caused an aggravation of the small joints in the hands leading to the assessable impairment just given.

    Dr Bodel gave various assessments according to the Comcare Guides, all of which were less than 5%.

11. On 4 July 2014, Dr Bodel reported:

    I confirm the reports of the Applicant’s x-rays of both hands and ultrasounds of both hands dated 02 September 2013. These confirmed the presence of ganglia, mild flexor tenosynovitis of the index finger and “advanced degenerative changes in the carpometacarpal joint at the base of the left thumb”. There is also some degenerative change elsewhere in the hand, particularly in the distal phalanx of the left middle finger.

12. When he gave evidence, Dr Bodel said that in his opinion if Mr Lewis suffered a fracture of the left thumb this would have contributed to his suffering osteoarthritis; if there was no fracture, the osteoarthritis would not be causally linked to any injury to his thumb when he hit it with a hammer.  He did not consider it possible to isolate any of the other particular hand injuries as contributing to the aggravation of the constitutional osteoarthritis, rather it was the nature and conditions of Mr Lewis' work as a plumber which aggravated his condition.

    Associate Professor McGill, Consultant Rheumatologist

13. Professor McGill examined Mr Lewis in November 1999, August 2012 and on 9 July 2014.  These examinations were at the request of Comcare.  He provided reports dated 29 November 1999[31], 8 August 2012 [32] and 9 July 2014 [33] and gave evidence.

    [31] Exhibit R3.

    [32] Exhibit R2 p.76.

    [33] Exhibit R4.

14. Professor McGill noted in the history taken from Mr Lewis in 1999 that he had suffered fractures in his right hand.  How those fractures occurred was not recorded.

15. On 8 August 2012, Professor McGill noted that:

    The report of a whole body bone scan and SPECT CT on 24 August 2011 described “degenerative changes and discovertebral arthritis in the lower thoracic and lumbosacral spine with associated mild bilateral L3/4 and left L4/5 facet joint arthropathy”.  It was also described that there were mild arthritic changes at the acromioclavicular joints bilaterally, left elbow, both wrists, small joints of both hands and in both feet and in the right sternoclavicular joint.

16. On 9 July 2014, Professor McGill assessed Mr Lewis in relation to his hands, wrists and right knee.  In his report of the same date he said, in part:

    He suffered an injury to the left thumb on 18 November 1991. Although that has been repeatedly referred to as a fracture, in the accident report recorded at that time it is referred to as a strain/sprain. As far as I could determine there has been no x-ray suggesting a fractured left thumb at any stage.  He currently has bilateral thumb base (carpometacarpal joint) osteoarthritis, slightly worse on the left. It is conceivable that the injury to this left thumb in November 1991 influenced the subsequent progression of his left thumb base osteoarthritis but that is only possible, not probable.

    ……

    He does not continue to suffer the effects of the infected third finger of the right hand (21 September 1989), infected right finger (18 December 1989) or bruising of second right finger (28 March 1995). There is no suggestion those injuries caused anything more than a relatively brief temporary problem.

    As discussed above, I do not know whether he fractured his left thumb on 28 March 1995. If he fractured his left thumb, I do not know which part of the thumb was fractured.

    He currently has osteoarthritis of the left thumb carpometacarpal joint but he has osteoarthritis in many joints including joints that are very unlikely to have been influenced by his work (such as the DIP joints of his fingers). With reference to the assessment of thumb base movement …… he rates 1% Whole Person Impairment. I think it is probable that the impairment is a reflection of constitutional degenerative change but I cannot exclude the possibility that the thumb injury on 28 March 1995 contributed.

    He does not continue to suffer the effects of the burn to his left hand (16 March 1988). There is no residual effect at all.

    He does not continue to suffer the effects of a sprain to the right wrist (5 February 1996). His wrist movements were full and symmetrical.

17. When he gave evidence Professor McGill expressed the opinion that the distribution of arthritic changes in Mr Lewis' body was typical of constitutional osteoarthritis – the greater the degree of symmetry the more likely that the arthritis is constitutional.  He also was of the opinion that to cause or aggravate osteoarthritis the bone under the cartilage needs to be disrupted.

    The x-ray and ultrasound study of both hands[34]

    [34] Exhibit A6.

18. These examinations, carried out on 2 September 2013, refer to various degenerative joint changes.  There is no reference to any indication of a fracture of the left thumb.

    CONSIDERATION

    Issue 1:  Have any of the injuries suffered by Mr Lewis resulted in an impairment?

19. In Canute v Comcare,[35] the High Court stated:

    At this juncture, three things may be observed about the concept of "an injury". First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of "the injury". Secondly, the term "injury" is not used in the Act in the sense of "workplace accident". The definition of "injury" is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term "injury" is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to "disease" or "physical or mental" injuries and, at least to that extent, it assumes that an employee may sustain more than one "injury". The use in s 24(1) of the indefinite article in the expression "an injury" reinforces that conclusion.

    ... ...

    ... it is important to remember that recourse to the criteria and methodologies set out in the Guide is only necessary once the key statutory criterion of the occurrence of "an injury" (which resulted in at least one permanent impairment) has been fulfilled. The Guide is to be approached through the prism of each "injury".

    [35] [2006] HCA 47, at paras 10 and 14.

20. Dr Bodel and Professor McGill agree that Mr Lewis suffers from constitutional osteoarthritis.  They both have expertise in the field and we had the benefit of their giving evidence and being questioned as to their opinions.  We prefer their evidence to the opinions expressed in the reports of Dr McGroder, Dr Rea and Dr Senior who suggest that the osteoarthritis was secondary to the work-related injuries suffered by Mr Lewis.  Both Dr Bodel and Professor McGill gave reasons for their respective views that the osteoarthritis was constitutional.  We accept their evidence in this regard.

21. Dr Bodel and Professor McGill also agree that none of the injuries, other than the injury to the left thumb, was such as would aggravate the constitutional condition or cause osteoarthritis to develop.  On the basis of their evidence, we are satisfied that none of these injuries resulted in an impairment.

22. Turning to the injury to the left thumb, we cannot be satisfied on the evidence that Mr Lewis suffered a fracture of his left thumb on or about 18 November 1991.  Although Mr Lewis says Dr Tan told him that he had fractured his thumb there is no contemporaneous medical evidence to support this diagnosis or that Mr Lewis received any particular treatment for such an injury.  We have taken into account that in the Accident Report completed by Mr Lewis' supervisor after he spoke to Mr Lewis, the injury is described as a strain/sprain.[36]

    [36] Exhibit R2 p.25.

23. We are satisfied that Mr Lewis suffered an impairment to his left thumb as a result of hitting it with a hammer.  This is not in dispute.  However, we are not satisfied that the impairment was the development, or aggravation, of osteoarthritis.

    Issue 2:  Is the impairment which resulted from the injury to Mr Lewis' left thumb, permanent?

24. As we are not satisfied that Mr Lewis suffered a fracture of his left thumb, we are satisfied that any impairment he suffered was only very short term.  This is consistent with the opinions of Professor McGill and Dr Bodel.  Mr Lewis does not suggest that he suffered any long term effects of the injury other than his claim that the injury caused or aggravated osteoarthritis.

25. We are not satisfied that the injury to Mr Lewis' left thumb resulted in a permanent impairment.

    Issue 3:  What is the degree of permanent impairment?

26. As we have decided that none of the injuries suffered by Mr Lewis resulted in a permanent impairment, this issue does not arise.  However, had we found that one or more of the impairments was permanent, this would not have assisted Mr Lewis.

27. Bearing in mind what the High Court said in Canute v Comcare,[37] each injury and any resulting impairment must be considered individually.  In these applications none of the injuries would have been assessed as resulting in a 10% Whole Person Impairment or more in accordance with the Comcare Guidelines.  This is confirmed by the assessment made by Professor McGill and Dr Bodel that the various injuries had only limited effect on Mr Lewis' ability to function.  The ongoing impairment suffered by Mr Lewis was a result of his constitutional osteoarthritis.

    [37] [2006] HCA 47.

    PART C.  CLAIM BASED ON “NATURE AND CONDITIONS” OF WORK

28. As an alternative to the claims based on specific injuries dealt with above, Mr Lewis sought to rely on an argument that he injured his knee, and suffered permanent impairment resulting from the injuries to his hands, as a result of the nature and conditions of his working as a plumber.  It was put that the heavy nature of his work and the multiple injuries he suffered caused him to develop osteoarthritis, or alternatively, aggravated his pre-existing condition.

29. We have not considered a claim made on this basis as we do not have jurisdiction to do so.  In Szabo v Comcare[38] the Full Court of the Federal Court dismissed an appeal against a decision of the Tribunal.  The Tribunal decided that as Mr Szabo had not made a formal application regarding an injury arising out of the nature and conditions of work, the Tribunal did not have jurisdiction to deal with such a claim when deciding a claim for compensation arising from specified discrete injuries.

    [38] [2012] FCAFC 129.

30. Justices Emmett and Greenwood said:[39]

    It is not possible to find, in the documents completed by or on behalf of Mr Szabo immediately following the incident of 20 June 1989, a claim in respect of some injury or disease arising from the nature and conditions of his employment. ... That is not to say that it would not now be open to him to make a claim.  However, until such a claim is made, and has been determined by Comcare, there is no decision that could be the subject of review by the Tribunal.

    [39] [2012] FCAFC 129, paras 41 and 42.

31. Here we are dealing with a claim in relation to a specific knee injury said to have occurred on a specific date and claims for compensation for permanent impairments, each a result of a specified injury suffered on a specified date.  To echo the words of the Full Court, it is not possible to find, in the documents completed by or on behalf of Mr Lewis immediately following any of the incidents, a claim in respect of some injury or disease arising from the nature and conditions of his employment.

32. Mr Lewis has made many claims over the years and has made more than one claim in respect of the injury to his right knee.  It may be that in other claims there is reference to the nature and conditions of his work, but we can only review those claims in respect of which Comcare has made a reviewable decision.  These are the claim in respect of the knee made 22 March 2013[40] and the claims in respect of the injuries to his hands made 10 August 2012[41] and 13 November 2012.[42]

    PART D.  CONCLUSION

    [40] Exhibit R1 p.34.

    [41] Exhibit A1 p.10.

    [42] Exhibit A1 p.45.

    Application 2013/5395

33. For the reasons set out, the decision of Comcare, made 9 October 2013, denying liability to compensate Mr Lewis in respect of a claimed injury to his right knee, will be affirmed.

    Applications 2013/6289-6294

34. For the reasons set out, the decision of Comcare, made 3 December 2013, denying liability to compensate Mr Lewis in respect of claimed permanent impairments resulting from injuries to his hands, will be affirmed.

I certify that the preceding 88 (eighty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance and Deputy President Gary Humphries

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

Associate

Dated   30 April 2015

Date(s) of hearing	17-18 February 2015
Date final submissions received	26 February 2015
Solicitor for the Applicant	E Refenes
Counsel for the Respondent	S Callan
Solicitors for the Respondent	Sparke Helmore Lawyers