Johnson and Comcare - [2002] AATA 1280

DECISION AND REASONS FOR DECISION [2002] AATA 1280

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/345

GENERAL ADMINISTRATIVE DIVISION          )
           Re      ALAN JOHNSON
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J. A. Kiosoglous MBE

Date10 December 2002
PlaceAdelaide

Decision      The decision under review is affirmed.
  (signed)
  J. A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
COMPENSATION – hip injury – osteoarthritis – accepted knee injuries – whether knee injuries caused hip injury by altering gait – whether hip injury directly caused by work-related accident
Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

10 December 2002 Senior Member J. A. Kiosoglous MBE

The applicant, Alan Johnson, seeks review of the decision of a delegate of Comcare given on 27 July 2000 that rejected Mr Johnson's claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). Mr Johnson has alleged that he is suffering from osteoarthritis in the right hip resulting from an accident that occurred in 1977 in the course of his employment with the Australian Army. He has further claimed that this hip condition has progressively deteriorated and has now resulted in an incapacity for work. The issue before the Tribunal is whether or not his injury is causally related to his employment. The application for Review comes to the Administrative Appeals Tribunal pursuant to s 64 of the Act as the decision of the respondent dated 27 July 2000 is a "reviewable decision": see ss 60 and 62 of the Act.
In addition to the material documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T390), the Tribunal has admitted into evidence:

two exhibits tendered by the applicant (Exhibits A1-A2); and
four exhibits tendered by the respondent (Exhibits R1-R4).

The Tribunal heard oral evidence from Mr Johnson and four medical specialists. Dr Rajendram Ravindran, general surgeon, was called by the applicant, and Dr Christopher Butcher, orthopaedic surgeon, Dr Peter Lewis, orthopaedic surgeon, and Dr Peter Stevenson, physician, were called by the respondent. The applicant was represented by Mr G. Britton, of counsel, and the respondent was represented by Mr R. Soulio, of counsel.
Background

The Tribunal finds the following, being a brief account of uncontested facts, taken primarily from the Statements of Facts, Issues and Contentions lodged by the parties and provided here by way of background.
The applicant was born on 18 July 1950, in Yorkshire, England. He moved to Australia with his parents in 1964. After several months in Australia he left school and commenced work, variously as a yard hand, machinist and plant operator. In 1972, at the age of 21, he entered the Australian army, joining the 7 Field Squadron Royal Australian Engineers.
On 1 October 1974 while climbing a flight of stairs in the course of his employment, the applicant slipped and injured his right knee.
On 9 February 1976 a determination was made accepting liability for the applicant's injury and compensation was awarded for bruising of the right patella.
On 15 October 1977 the applicant was taking part in exercises in the Shelley State Forrest in Victoria. In the course of these exercises a bulldozer became bogged. The applicant was part of a team that began working to de-bog the bulldozer.
The officer in charge determined that the de-bogging of the bulldozer was urgent and that it should continue after nightfall. The de-bogging continued under light provided by vehicle headlights.
In the course of the operation the applicant slipped into a hole. The hole was described in the evidence as being between one and two feet deep. (The respondent seemed to assume a depth of one to one and a half feet, while in his oral testimony Mr Johnson described a drop of approximately two feet.) The applicant landed on his back, with his right knee bent and his right foot pressed against his buttock. This much about the accident is agreed. The exact circumstances will be discussed further below in relation to the applicant's testimony.
The applicant subsequently lodged a claim for compensation pursuant to the Compensation (Commonwealth Government Employees) Act 1971. On 28 July 1978, liability was accepted for a sprained right medial collateral ligament. On 20 September 1978 it was determined that the injury sustained by the applicant on 1 October 1974 entitled him to compensation for "10% loss of efficient use of the right leg at or above the knee" (T28).
On 1 January 1982 the applicant's right knee gave way, causing him to fall heavily on his left knee. He lodged a claim for compensation, claiming the injury to the left knee was caused by the previous injury to the right knee. On 28 February 1984, liability was accepted for a twisting injury to the left knee (T47).
In a letter dated 5 July 1987 (T52), the applicant claimed that he had a problem with his lower back which his doctor thought was related to his compensable condition. Over the next few years, considerable correspondence by letter and telephone took place. In the course or this, the applicant complained of lower back pain and of pain in his right hip.
On 30 November 1994, the respondent determined that it was not liable for the applicant's back and hip conditions (T78).
On 13 March 1996 the respondent determined to vary the decision dated 30 November 1994 by accepting liability to pay compensation in respect of the applicant's right hip condition (T83).
On 10 August 1998 the respondent notified the applicant of its intention to revoke the decision dated 13 March 1996 accepting liability for a right hip condition (T100). The respondent invited the applicant to submit any further medical opinions that might support his case, pursuant to section 58 of the Act.
On 27 July 2000 the respondent revoked its decision of 13 March 1996 accepting liability for the applicant's back condition (T112). It was this decision which was appealed to the Tribunal.
In their Statements of Facts, the parties differ as to the reason the respondent reviewed the decision of 13 March 1996. The applicant states that the respondent made the reconsideration of its own motion. The respondent states that there was a request for review by the applicant. On 3 December 1996, the applicant requested that his back injury be considered for compensation (T90). In a letter dated 7 January 1997 (T94) the respondent stated that it noted that the letter of 3 December 1996 (T90) was a request for review of the decision of 13 March 1996. However in the reviewable decision itself no mention was made of this request. In either event, the respondent was entitled to review its original decision, pursuant to section 62 of the Act.
The injuries of the applicant
It is not disputed that the applicant suffers from a hip condition. Medical reports before the Tribunal agree on this point. The details of this condition will necessarily be discussed in greater detail in conjunction with the expert testimony. However it is convenient to provide here a brief precis of Mr Johnson's medical history as relevant to this claim. The following is taken primarily from the report of Dr Ravindran dated 3 November 2001 (T390).
Mr Johnson has suffered quite severe problems with his knees, particularly his right knee, from which joint the kneecap has been removed. He now suffers degenerative osteoarthritis in that joint.
A bony fragment was excised from the applicant's right hip. Later, osteoarthritis was diagnosed. Several arthroscopies were performed, and a chrondoplasty (that is, surgery to the cartilage) performed on the head of the femur on 18 February 1998. The joint continued to degenerate until the applicant had a hip replacement on 28 July 1999.
The Reviewable Decision
As noted above, a delegate of the Respondent initially found that the respondent was liable for the applicant's hip condition. This decision was later reversed. In revoking the original decision, the delegate stated that:
"…liability was originally accepted based upon the opinion expressed by Dr Lewis. However, Dr Lewis recanted from his position when he was given original documentation relating to the incident in October 1977. In his report of 5 November 1996 he gives an opinion that he could not understand how your hip was involved. Dr Stevenson also recanted from his opinion that your hip condition could be related to your military service. In a report dated 13 June 1997 he expressed the opinion that the relationship between your hip condition and your military service is speculative. Based on this evidence I revoke the decision of 13 March 1996 and find that the Department is not liable for your right hip condition." (T112/235)
This matter of causation is again under examination in the current proceedings. The change of opinion of the two doctors above is a matter of particular importance that was explored at length in their oral testimony.
Mr A. Johnson, the Applicant
The Tribunal had before it a statement of the applicant (Exhibit A2). The applicant in his oral evidence affirmed that the statement was true and correct.
In his statement, Mr Johnson detailed the incidents of the night of the accident in question. He stated that it was in "October 1977". It is clear from the documentary evidence that the accident did take place, on 15 October of that year (see, for example, the report of the officer who investigated the matter, T22/46-51).
Mr Johnson stated that he and a colleague were cutting a fire track with a bulldozer when the bulldozer slid down a slope and became bogged. It settled into mud, so that the belly plate of the machine was resting against the soft ground. It was decided that commencing work to retrieve the bulldozer was a matter of some urgency, as delay would result in the machine settling further into the marshy ground rendering retrieval much more difficult. Consequently work commenced despite the fact that it was getting dark. By the time the accident occurred, it was completely dark.
According to the applicant, when a bulldozer settles into mud so that its belly plate is in contact with the ground, a suction is created, and the machine cannot be extricated without first allowing some passage of air underneath it. Consequently, it was necessary to dig some earth out from underneath the bulldozer. In his own words:
"I had to dig at least 6-8" below the track. I needed to dig as a result approximately 18" to 2 feet down to clear the track and allow air in. I needed to clear around the track and the centre of the bulldozer, not underneath the track. By clearing the tracks, you allow them to come out and break the mud suction under the belly plate. The purpose is to dig below the level of track to increase the amount of air to get in when the dozer is moved." (Exhibit A2/4)
Mr Johnson goes on to explain the accident itself:
"After about an hour I had a rest. It was then completely dark. I stepped back from the bulldozer, some 15" or so. As I went back to start digging again, I slipped on a wheel rut made I think by the land rover. I was almost at the bulldozer. The wheel rut had been approximately 6" deep. My legs buckled. I fell into the hole that had been dug at the side of the right hand rear caterpillar track of the bulldozer. My right leg folded underneath, beneath my right thigh. I was in excruciating pain. I was in the hole that had been dug at the right hand side of the rear of the bulldozer. The caterpillar track was at my face. I recall pain from my knee to the middle of my back. I had slipped to the bottom of the hole on my back but with my right leg bent back double under me. My right leg was a complete mass of pain. I don't remember pain specifically in my hip. Chapman and Olive [two men working with the applicant to debog the bulldozer] tried to pull me out. I was lifted out of the hole. I couldn't put weight on my right leg. They sat me in front of the low-loader. My knee was swelling like a balloon and the calf muscles thickened. I was laid out on the back of the low-loader and was taken to the Regimental Aid Post. They decided that it was too much for them to handle and I was taken to the base hospital. I had been under the right truck track which had been touching me. I don't think I was taking any of its weight. I felt pinned and may have been pinned under my own weight. I feared that the dozer might be settling down on me in the mud. I felt downward pressure on my leg pushing me into the ground. I had that much pain that I couldn't define exactly where it was. It was right through my right side from my toe to my bottom." (Exhibit A2/4-5)
In a signed statement dated 21 June 1997, the applicant gave a similar description of the accident. However, in a letter to a delegate of the respondent dated 12 August 1994, the applicant described the event somewhat differently. In that letter he wrote that: "I slipped under a D6 bulldozer whilst debogging it and it rolling back on me resulting in further injury to the right knee and bruising the right leg to the hip" (T75/163, emphasis added).
As will become apparent, several doctors who have treated the applicant have come to understand the accident in terms different to those stated before this Tribunal. The applicant denied in cross-examination that he had ever told Dr Lewis that he had been pinned under the bulldozer in the incident.
In his oral testimony the applicant stated that his leg had buckled in part because, owing to his previous knee injury, the stability of his knee had been reduced. The applicant adhered roughly to his statement concerning the depth of the hole, saying at one point that he had dug down between one and one and a half feet, and at another point saying that the hole "would have been" two feet deep. He stated that he landed with his right knee bent and his "heel up around the calf, buttocks area." He stated that he felt pain "virtually from the right knee up to the middle of my back". As he landed he "felt a crack" and experienced pain such as he had never felt before. He said "As I slipped down, there was a lot of pressure on my knee and on my thigh and it just felt it was being torn apart."
Mr Johnson stated that he was helped out of the hole and was taken to the Regimental Aid Post, where he was given an injection to ease his pain. He was then removed to the Tallangatta Base Hospital. There he was examined, and his leg plastered from "just about my ankle to just below the hip" to immobilise the knee. He stated that the plaster stayed on for about three weeks. He testified that during that period he was initially at home, but then went to the Seven Camp Hospital where he remained for a week or one and a half weeks. He remained in bed for one to one and a half weeks before the plaster was removed and a Roberts-Jones bandage applied, again from hip to ankle. He estimated that after about five weeks he commenced physiotherapy and could flex his knee for the first time. Mr Johnson said that while the plaster remained in place, he was in constant pain, "from the knee up to the middle of the back", which began to "ease off" when the plaster had been removed and the bandage was in place. When the bandage came off, there was still "quite extensive" pain in the knee which "wrap[ped] around the middle of the back…. I wasn't very mobile in the back area at all." The applicant later stated, when asked whether following the accident he had felt pain other than in the knee: "I've had pain virtually constantly from the knee to the hip since in varying degrees, different days, different situations."
The applicant was referred in cross-examination to the Australian Army patient summary relating to his treatment following the accident (T138). He admitted that the notes therein indicated that by 21 October, that is six days after the accident, his leg was no longer in plaster, but was placed in a Roberts-Jones bandage, which was removed and replaced with each examination of his leg (T138/270). He further admitted that the notes show (T138/271) that he commenced physiotherapy exercises on 23 October, not five weeks after the accident as he had previously claimed.
Mr Johnson in cross-examination said that the plaster put on his leg did not encase the leg, but was on the top of the leg only, with bandages over it encircling the leg. He was shown an entry from his medical record from 18 October 1977 (Exhibit R2/5) which reports that the plaster was removed on that date, just three days after the accident. The same document records that the Roberts-Jones bandage was applied the same day, and that the applicant returned to desk duties on 25 October. When confronted with these documents, the applicant said that he could not recall the dates on which these events occurred, but that when he returned to light duties his leg was still bandaged.
The applicant stated that at some point between two weeks and a month after the accident, he was questioned at length by an adjutant. He estimated that the interview had lasted for one or one and a half hours. He was questioned about the "safety aspects" of the incident, with the aim of determining how it had come about. Mr Johnson also described his injuries to that interviewer, telling him of his (the applicant's) knee injuries, "because that's what I was told I had." The applicant stated that he had never seen the report that, he believed, must have resulted from that interview, and no such report was in the section 37 documents.
The applicant stated that he did not return to his duties as an operator. Rather, he was allocated what he described as "general duties", "non-operational duties", and "supervising duties."
The applicant had initially enlisted for a period of six years. He stated that the accident occurred within a few months of the end of that period. However, he had just re-enlisted for a further three years. Following the accident he was, he said, unhappy with his job in the army as he could not work as an operator. He therefore rescinded his re-enlistment and requested a discharge. He said he had wanted to stay in the army, and would have had he not sustained the injury.
Mr Soulio asked the applicant when he had "re-upped", that is applied to have his term extended. The applicant agreed that it would have been about January 1978. Mr Johnson was then referred to a letter dated 30 November 1977 (T14/36) which he acknowledged was sent by him. He admitted that he stated therein that he had already applied for discharge from the army.
Mr Johnson testified that after he left the army he attempted to work in private industry as an operator. He obtained various jobs with Chainex Engineers, F. B. Close, and Tamblyn Transport as a machine operator and driver. He said that he could not perform the work properly. In his oral testimony he stated that this was because he was "restricted by [his] injuries", while in his statement he was more specific, saying his problems were due to his knee problems (Exhibit A2/6).
The applicant stated in his oral evidence that he had constant pain in his right leg from the mid-1980s, but that it had progressively increased in severity. He testified that he felt pain from his knee to his hip. At one point the applicant stated that in relation to the hip he had "always had pain". He also stated that he had been told that pain higher in his leg was referred from his knee (see also applicant's statement, A2/7). He consulted his general practitioner, Dr Prasad, who referred him to Mr Peter Dobson, a general surgeon. His hip pain continued to worsen, and Dr Prasad referred him to Mr Peter Lewis, an orthopaedic surgeon.
In a letter before the Tribunal addressed to a delegate of the respondent and dated 12 August 1994, the applicant stated that he had complained of pain in his lower back "and possible hip" since late 1989 or 1990 (T75/162).

The applicant gave a slightly different account in his statement (Exhibit A2). There he said that he had begun having pain in his right hip in around 1993 (Exhibit A2/6). This pain worsened and Mr Johnson reported it to Dr Prasad in 1994. Dr Prasad then referred him to Dr Lewis.
In response to the applicant's claim that he had "always complained about pain" in his knee, Mr Soulio referred the applicant to his physiotherapy record (T143/277). Mr Johnson admitted that that document recorded some entries of "no pain".
In oral testimony, the applicant said that Dr Lewis had had scans taken. He detected bone fragments, which he removed in surgery. Eventually, Dr Lewis performed a hip replacement on Mr Johnson's right hip. Since the hip replacement, the applicant said he has continued to suffer constant pain in the joint. He stated that he is unable to walk as fast as he could previously, and that he limps prominently if he does attempt to walk too quickly. He has great difficulty in climbing stairs and in walking down slopes. He has difficulty in driving for any significant distance. He cannot sit in one place for long. He experiences difficulty in sexual intercourse because of his hip pain (see also the applicant's statement, Exhibit A2/7).
The applicant was asked in cross-examination whether the first time he had complained to a doctor of hip pain was in 1993, sixteen years after the accident of 1977. The applicant replied that that was when he "made it [ie his hip pain] specific", but added that he had felt hip pain for "quite some time" but had not complained earlier because several doctors had told him that this pain was referred from his right knee.
Mr Soulio referred to an injury report dated 26 January 1978 (T18/42). Mr Johnson acknowledged that he had signed it. He agreed that therein his injury was described as "RIGHT KNEE, DAMAGED CARTLIGE" (sic). He agreed that a description of how the injury occurred stated: "slipped into a wheel track, went down crooked falling on back and twisting knee." The applicant noted that he had similarly described the accident in witness report of the same date (T19/44) and in a statement quoted by Second Lieutenant Morley, the officer investigating the incident, in a report also of 26 January 1978 (T22/49).
Mr Johnson was referred to a statement made by Pilot Officer B.A. Lake, a witness to the accident, dated 26 January 1978 (T22/50). Therein Mr Lake reported that immediately after the incident the applicant was "complaining of pain in his right knee." In a statement of the same day, Sergeant C.C. Dunkley made a similar report (T22/51). Mr Johnson stated that he in fact complained of pain in the knee and leg.
Mr Soulio put it to the applicant that at the time of the accident he complained only of pain in his right knee. The applicant denied this, reiterating that he was "complaining of pain in the right leg".
The applicant was questioned in cross-examination about his consultations with various doctors.
Mr Johnson admitted that he had seen a Dr Magarey in 1978 in relation to the accident. He admitted that he could not recall making any mention at that time to that doctor of pain radiating from his right knee to his hip or back. (Dr Magarey's report dated 24 July 1978 makes no mention of any such complaint – T24/53-54.)
When asked by Mr Soulio whether he had seen a Dr S. Raptis in 1979, the applicant said he thought so, but was uncertain. He was referred to that doctor's report of 3 September 1979 (T29/59-60), and it was put to the applicant that he had never mentioned pain in his hip or back to the doctor. The applicant replied that he could not remember. (The report makes no mention of any such complaint.)
The applicant was asked if he had again seen Dr Magarey in August 1980 and in June 1981, to which he replied that he had seen him several times, but could not attest to dates, and could not remember the particular occasions. The applicant was referred to two further reports of that doctor dated 13 August 1980 (T33/66-67) and 18 June 1981 (T36/75-76). It was put to the applicant that he had not mentioned any pain other than in his knee to the doctor at that time. Mr Johnson replied that he could not recall the particular interviews. (The reports make no mention of symptoms other than in the knee.)
The applicant stated that he recalled seeing Dr P. Byrne, although he was unsure as to when. He agreed that it could have been in April 1984. He was referred to a report of that doctor dated 14 May 1984 (T49). He stated that he would have given the doctor a full medical history of the accident of 1977 and the earlier incident or 1974 which resulted in him injuring his knee. It was put to the applicant that he never told the doctor of symptoms other than in his knees. The applicant said that he might have done, but that he could not remember. (The report makes no mention of injuries or symptoms other than in the applicant's knees.)
The applicant discussed previous injuries he had suffered and accidents in which he had been involved. They were as follows:

While working for Tamblyn Transport the applicant helped to evaluate new drivers. On one occasion, as part of this duty, he was travelling with a driver who had applied for work with the company. The applicant was sleeping in the back of the cab. The truck overturned onto its side. The applicant suffered no identified physical trauma, but his left shoulder ached some time after the accident. His general practitioner, Dr Prasad, examined him and told him he was "alright" (oral testimony and Exhibit A2/6).
In about 1983 the applicant was a passenger in the back seat of a car driven by his wife. His wife hit a car in front of their car. The applicant stated that no one was injured and that the resulting damage to property amounted to some $300 (oral testimony and Exhibit A2/6).
In the early 1990s the applicant damaged an ulnar nerve in his left arm, and part of it was removed to allow the nerve to heal properly (oral testimony and Exhibit A2/6).
The applicant said he had suffered a broken knuckle in his right hand (oral testimony and Exhibit A2/6).
The applicant said he had suffered a broken toe in the army before his knee injuries (oral testimony and Exhibit A2/6).
The applicant had an "appendix/hernia" operation in the late 1990s (oral testimony and Exhibit A2/6).

Mr Johnson stated that this was an exhaustive list of his physical injuries.

The applicant admitted in cross-examination that on 12 October 1978 he had complained of back pain to Dr Prasad, and that he had pulled a muscle in his back the day before. However he said it cleared up within a few days, and was reluctant to term it an injury.
Dr R. Ravindran, general surgeon
Dr Ravindran has been an Associate Fellow of the Orthopaedic Association of Australia since 1978, and is also a Fellow of the Australian Faculty of Rehabilitation Medicine of the College of Physicians of Australia.
Dr Ravindran first examined the applicant in the early 1980s in relation to a right knee problem. The applicant was referred to him by Dr Prasad, a general practitioner. There are several mentions of back pain in reports of the doctor before the Tribunal, dating back to 1987 (T51, T183). The first mention of hip pain in the reports of the witness that have been provided to the Tribunal is in a report dated 2 June 1992 (T219). The doctor therein reported that the applicant complained of pain in his right knee, which radiated to the right hip. The doctor wrote that the symptoms had been present for about two months, and that Mr Johnson was worried about possible degenerative change in the hip joint.
The applicant first saw Dr Ravindran specifically about his right hip on 5 May 1994, again at the request of Dr Prasad. The doctor stated that he took Mr Johnson's medical history when he first saw him in relation to his knee, but that he made further inquiries when he saw him in relation to his hip. Frequent reference was made throughout the doctor's testimony to his report on the applicant's hip complaint dated 2 November 2001 (T390).
The doctor repeated the description of the accident of 1977 that he gave in his report (T390). He stated that his understanding of that incident was based on what the applicant had told him, namely that the applicant:
"…was walking back to the dozer, he slipped into a hole which was being dug and fell on his buttocks and he recalls that his right foot was placed against his right buttock."
Dr Ravindran stated that when the applicant first saw him about the hip, Mr Johnson was in hospital, confined to resting in bed. The mobility in his hip was reduced, which suggested some intra-articular pathology – that is, some damage to the surface of the joint. The doctor had an x-ray taken, but this showed no changes and after further rest Mr Johnson was discharged. (See also the doctor's report dated 17 May 1994, T233.)
The witness noted in his report of 3 November 2001 (T390/785) that: "Mr Johnson's gait pattern was satisfactory." In an unrelated passage, in answer to a question put to him in a letter from the applicant's solicitor (Exhibit R3/3), Dr Ravindran stated that "[t]he onset of symptoms in the right hip joint was not due, in my view, to the "awkward gait as a result of problems with both knees"" suffered by Mr Johnson (T390/786).
Dr Ravindran has viewed the reports of Dr P. Lewis. Dr Ravindran notes that in a report of a CT scan dated 16 January 1995 Dr Lewis observed "a separate anterior lip fragment from the right anterior column of the acetabulum" (T390/784). Dr Ravindran explained that this meant a small chip of bone had been broken off the cavity within which the ball of the hip revolves. The doctor also noted Dr Lewis's report of "hip arthrotomy – good hip surface that could be seen" (T390/784). X-rays in 1996 showed mild osteoarthritis in the right hip.
Dr Ravindran expressed the opinion that the bone chip was caused by trauma to the joint, and that on reviewing Mr Johnson's history he concluded that the only event that could have caused such trauma was the accident of 1977.
The fact that the bone chip was not visible in an x-ray of 1994 did not mean that it had not been present at that time. It was a small chip and might well evade detection until the CT scan was taken. (It might here be noted that the hip fracture was identified from x-rays taken in 1994 by Dr Peter Lewis – see T311/683)
It was put to the doctor that had the bone chip been the result of the accident in 1977, it would have caused considerable pain at the time and at all subsequent times. It was further suggested that as Mr Johnson had not complained of such pain at all material times, the injury to the hip could not have occurred in 1977. In reply, Dr Ravindran stated that the injury would have caused pain at the time, but that the knee injury was much more severe and the pain of this could easily have distracted Mr Johnson from the hip. Furthermore, the bone chip was not in a weight-bearing part of the hip, which meant that that injury would not necessarily cause constant severe pain.
The fact that osteoarthritis was present only in the right hip made it unlikely that it was caused by idiopathic degeneration. He stated that in most cases of idiopathic degeneration some pathology was present in both joints. In Mr Johnson's case, the right hip was the only joint in his body to be affected. The doctor rejected the proposition of the respondent's counsel that pathology in a single joint accounted for a large number of cases of osteoarthritis.
Furthermore, the relative youth of Mr Johnson made it unlikely that the arthritis was caused by a degenerative condition, and was unrelated to physical trauma.
When these considerations were coupled with the bone chip, which indicated some physical trauma, the most likely explanation for the arthritic condition was that some cartilage damage was suffered at the same time. That is to say, the accident of 1977 had most likely caused damage to the cartilage of the hip joint. The doctor stated that damage to cartilage in joints was often asymptomatic for many years, but that such damage often leads to osteoarthritis which emerges many years later. He gave as an example knee injuries suffered by footballers.
When questioned as to why the arthrotomy of 1995 showed no cartilage damage, Dr Ravindran stated that Dr Lewis was examining the head of the hip, not the acetabulum (the socket), and that this may have led to Dr Lewis not finding any cartilage damage. When pressed in cross-examination, Dr Ravindran conceded that had Dr Lewis found any cartilage damage he (Dr Lewis) would have reported it at that time.
The sum result of these considerations leads Dr Ravindran to believe that Mr Johnson's hip injury as discussed in these proceedings is attributable to the accident of 1977, in that it caused a fracture to the hip socket and damage to the hip cartilage, which led to osteoarthritis of that joint.
Dr C. J. Butcher, Orthopaedic Surgeon
Dr Butcher is an orthopaedic surgeon. There were a number of fairly brief reports and letters of his concerning the applicant in the section 37 documents.
Dr Butcher stated that he first saw the applicant in 1990. The applicant was referred to him in relation to pain in his knee, although he did mention some pain higher in the leg and in the lower back. The doctor focussed his examination on the knee and had an arthrogram performed on that joint.
The doctor saw the patient again on 27 September 1993. Mr Johnson complained to him of pain in his knees and hip. In a report dated 9 March 1994, the doctor stated that Mr Johnson complained that when his knee was sore, "it tended to go to the hip and later the back was worse as well" (T68/143). Dr Butcher performed an arthroscopy on the right knee and had x-rays taken. The doctor examined the right hip of Mr Johnson. He said that there was not much to observe at that time. The hip had a good range of motion, but the patient complained of tenderness. He injected the trochanteric bursa of his right hip to treat this pain.
In 1994 Dr Butcher was asked by Comcare whether as a matter of probability Mr Johnson's hip and back problems were caused by his knee injuries (T76). In his reply of 23 September 1994, the doctor stated that the hip and back complaints would probably not be caused by the knee complaint (T77). In his oral testimony Dr Butcher made clear that he was not assessing whether hip and back problems were caused by the same incident or incidents which caused the knee problems. Rather, his opinion was that the knee problem did not itself cause the hip and back problems suffered by the applicant.
The details of Mr Johnson's accident of 1977 were briefly stated to Dr Butcher. The doctor was asked whether such an accident would be likely to cause injury to the right hip. He responded in the negative.
The doctor admitted that he had not seen any radiological scans or reports concerning the applicant's right hip. He admitted that if he had seen such reports, he might have further investigated Mr Johnson's hip. He had not seen the reports of Dr Lewis. He conceded that to express a considered opinion on whether the applicant's accident of 1977 and his hip injury were causally related, he would need to see a full history of events, including medical and radiological reports.
Dr P. Lewis, Orthopaedic Surgeon
Dr Lewis first saw the applicant on 22 June 1994 (T80), following a referral from Dr Prasad. The applicant's principal complaint was of pain in his right hip. Dr Lewis stated that, at the time of that report, Mr Johnson spoke of undiagnosed hip pain, which had persisted for six to eight months. In an earlier report dated 30 June 1994 (T311), Dr Lewis recorded that the applicant had experienced hip pain for approximately three years, but that this pain had been much more severe during the six or eight months preceding the date of the examination. The doctor reported in yet another letter to the respondent that Mr Johnson told him that he had experienced pain in the right hip since the accident of 1977 (T111, 29 March 1999).
In a report dated 4 July 1994 Dr Lewis reported a CT scan showing bony fragments in the applicant's right hip (T313). On 15 August 1994 Dr Lewis operated on the applicant's right hip, discovering and removing "a fairly large non-united fragment from the anterior and superior acetabular lip" (T315).
Following the surgery to remove the bony fragment, Dr Lewis initially reported that the hip was much better (T318, 27 October 1994). This improvement evidently did not last as the applicant continued to see the specialist. In later reports the doctor noted increasing degenerative change in the hip (T327, 28 September 1995; T356, 18 February 1998).
In a letter dated 1 August 1996, Dr Lewis noted that the applicant complained of "back pain with bilateral leg radiation, but mostly on the left side." (T339)
Dr Lewis performed a hip replacement on Mr Johnson in 1999, after which procedure he noted: "…at operation, he [the applicant] had really quite a worn-out hip joint." (T373, 28 July 1999.)
The doctor stated that the applicant's knee injury was severe. The removal of the kneecap was evidence for this, although that particular procedure was performed a little more frequently at the time than now, due to the subsequent development of alternative treatments. He acknowledged that Mr Johnson's knee problems might have contributed to his hip problem.
Dr Lewis stated that knee injuries and surgery could lead to troubles in the hip, especially if movement in the knee was restricted. It was in fact more likely that damage in one knee would lead to problems in the opposite hip. The doctor stated that in such cases, "the hip has to do extra work to compensate for what the knee can't do" and this leads to later degenerative change in the hip joint. When asked if he thought that might be an explanation for Mr Johnson's condition, the doctor said: "I don't know if I have an explanation here, unfortunately."
Dr Lewis was, in any event, unwilling to nominate the knee complaints as the sole cause of the hip problem. For, in his opinion, the presence of the bony fragments that he found in and removed from the hip was a clear indication of trauma to the hip joint. (See also the brief report dated 4 July 1994, T313.)
Dr Lewis originally considered that such trauma had occurred in the accident of 1977, and hence that Mr Johnson's hip problems were caused by that accident.
In his report of 15 January 1995 (T80) Dr Lewis outlined a factual history of the accident of 1977 different from the version put before the Tribunal by all parties. As the doctor confirmed in his oral testimony, at the time he wrote that report he had understood that the applicant "had rolled over while working a bulldozer, slid down a slope and eventually was pinned beneath the bulldozer." (T80, p. 171) In the same report Dr Lewis wrote that Mr Johnson felt he had injured his hip in that accident.
Based upon the above understanding of the "bulldozer incident", the doctor had concluded that Mr Johnson had probably fractured his hip at that time. As Dr Lewis was to learn later, the account he originally relied on is inaccurate. He now accepts the history of the accident as presented to the Tribunal.
In a letter to a delegate of the respondent, Dr Lewis stated that on a better understanding of the accident of 1977, he found "it difficult to understand how his hip may be involved." Mr Johnson "…may have fallen, knocking the hip, but I suspect this would have been highlighted in his report at the time." (T84) However, In a later letter to the respondent, the doctor stated that:
"…even if the finer details of the injury description are not accurate it remains that Mr Johnson hurt his right knee and hip in the "bulldozer incident" and from that has sustained some ongoing hip problems" (T104, 15 September 1998).

While testifying before the Tribunal, Dr Lewis was asked whether the 1977 accident, as put to the Tribunal in the applicant's oral testimony, could cause damage to the hip. The doctor replied that it was unlikely that such an accident would cause injury to the hip joint itself.

The doctor still maintains that the applicant's hip injury is due at least in part to trauma in that joint. He was referred to his report about the applicant dated 29 March 1999 (T111 p. 237). Therein he stated that:
"…without any other history of hip injury, I find it hard to understand how this fragment may have appeared and therefore would relate it to some significant hip trauma in the past. I cannot tell from its appearance how long that fragment may have been present."

The doctor stated that this remains his opinion. He added that he did not have the applicant's full history so could point to no particular event as the causative one.

The doctor stated that a lack of symptomatology in a hip immediately following an accident or for some years afterwards reinforced the unlikeliness of hip damage being sustained in that accident. However, Dr Lewis testified that:
"…the hip sometimes gives complaints of knee pain and sometimes we can be a little confused with hip pathology being felt by the patient as being pain in the knee, but it would be really unlikely if all that period of time has passed without any complaints of actually (sic) hip troubles as well."
Dr Lewis said that the presence of osteophytes (bony projections on the margin of a joint) detected in a CT scan of 1999 (see T369, T370/755-756) were indicative of degenerative change in the hip. Furthermore, in a 1995 report (T80) the doctor referred to mild arthritis visible in x-rays in both hips. He stated orally that this was indicative of a natural degenerative condition in the hips. (See also his report of 30 June 1994, T311/683.)
Dr Lewis ultimately stated that it was difficult to speculate whether the applicant's hip could have been injured in the 1977 accident, or whether damage to that joint was attributable to the injured knee. The doctor said he had been asked on numerous occasions and had changed his opinion several times.
Dr P. D. Stevenson, Physician
Dr Stevenson is a physician who has been asked to provide several opinions on Mr Johnson's hip condition since 1996 (see T89, T97, T387 and T389).
Dr Stevenson was asked to consider the accident of 1977 as it has been presented to the Tribunal. He stated that he believed that that accident was not the origin of Mr Johnson's hip injury.
Dr Stevenson, like Dr Lewis, was initially of the opinion that the applicant's hip complaint could be attributed to the accident of 1977. Like Dr Lewis, he based this opinion on a misapprehension of that incident. In a report dated 27 November 1996 (T89) he describes the accident as he then understood it. He wrote that Mr Johnson
"…was assisting in digging a bulldozer out of a bog. The bulldozer evidently came free and slid sideways down a muddy slope during the attempt. Mr Johnson said that he was pinned on his back in the bog under the bulldozer, with the weight of one of the tracks over his right thigh." [Bold in original]

When he learned that that this was not an accurate account of the incident, he changed his opinion (see report dated 13 June 1997, T97). In his oral testimony the doctor stood by his revised assessment, stating that the accident was unlikely to have caused damage to the applicant's hip.

According to Dr Stevenson, the forces involved in the accident of 1977 "might be classified as 'playing field' or 'sporting-type' forces." The body position involved was like those commonly seen in "various football codes" or "doing various martial arts."
According to the doctor, the hip, being a ball and socket joint, is relatively stable and is therefore not particularly susceptible to fracture in this kind of accident. The hip contrasts with the knee in this respect. The types of events which lead to hip fractures are, in the doctor's opinion, high impact incidents, with classic examples being falls from heights and high speed motor accidents. In cross-examination the doctor made it clear that these are examples and are not the only two situations in which hip fractures occur.
In changing his assessment of the cause of Mr Johnson's hip complaint, Dr Stevenson listed a second factor that had influenced him. This was the lack of symptomatology in the hip. Dr Stevenson stated that he had originally understood the applicant to have had a greater history of pain in his right hip than was in fact the case. The doctor stated that the hip is very sensitive – at one point he said "exquisitely sensitive" – to intrinsic pathology. This made it unlikely that a hip fracture would remain undetected for any considerable period of time. Rather, it should lead to severe, immediate pain accompanied by loss of movement, and ongoing pain after that. The doctor noted the absence of complaints of hip pain in the medical records of the patient, which he had inspected. He considered this to be inconsistent with the applicant suffering a fracture to that joint in 1977.
It was put to Dr Stevenson that the bone fragment discovered and excised by Dr Lewis was evidence for some trauma to the hip. Dr Stevenson stated that there were two possible explanations for the presence of bony fragments. One was trauma to the hip, while the other was idiopathic degenerative osteoarthritis. Where osteoarthritis is present, fragments often break off the hip as the joint breaks down. The crucial matter was when the chip appeared. Had it been detected immediately after the accident, it would have been incontrovertible evidence that the accident caused the bony fragment – but that was not the case here. However, Dr Stevenson stated that he was at a disadvantage to Dr Lewis in that he had not seen the bone chip. Consequently, he said that he would defer to Dr Lewis's opinion about its origin.
Dr Stevenson was asked whether the major knee injury Mr Johnson suffered at the time of the accident of 1977 might have led to a neglect of other problems, such as contemporaneous damage to his right hip. The doctor stated that it was possible, but that it was hard to see this leading to a hip fracture going undetected. It was put to the doctor that much would depend on the severity of the fracture. The doctor agreed, but reiterated that the lack of symptoms at the time was 'a big hurdle.'
The doctor was cross-examined about his original misunderstanding of the accident. He denied that his written report differed from the notes he took on interview. He stated that the applicant was not 'the most articulate of historians', but conceded that transcribing notes invariably involved some interpretation of the original notes. He did at one time mention his reliance on Dr Lewis's reports, and it is possible the misunderstanding was conveyed in this way.
When asked whether trauma to the hip could cause osteoarthritis in that joint which did not present until years later, Doctor Stevenson replied that it depended on the severity of the trauma. High impact trauma leads to a very high frequency of osteoarthritis in later life, while lesser impacts are not such a great risk factor.
Dr Stevenson was asked to consider Dr Ravindran's evidence that minor damage to cartilage could lead to osteoarthritis many years later. Dr Stevenson said that while that statement was true for the knee, the hip 'seems to behave differently' in respect of minor damage to cartilage.
Dr Stevenson discounted the idea that the knee injury might have led to the hip injury, by altering Mr Johnson's gait and thus causing more wear and tear on the hip. He stated that no clear link has been established between the use of a joint and the development in osteoarthritis in that joint. He had heard 'soft', anecdotal evidence from some surgeons that there was some such link, and he had heard from other physicians that there was no link. He himself had been unable to find any scientific study establishing such a connection. That fact alone made him conclude that any such link was at most a minor risk factor in the development of osteoarthritis.
Dr Stevenson rejected the notion that the presence of osteoarthritis in only one hip made it unlikely that the disease was due to idiopathic degeneration. He stated that the disease was 'capricious', and could develop in only one hip. He referred to one study of people who had undergone hip replacements, wherein it was found that about 50 per cent had osteoarthritis in the other hip. Dr Stevenson also said that idiopathic osteoarthritis of the hip was quite common, affecting between one and two percent of the population.
The doctor stated that it was relatively well known that a knee condition could present as pain in the hip. Any such pain would have to be contemporaneous with the knee injury. When the knee injury was treated, the pain felt in the hip would subside.
Doctor U. Prasad, General Practitioner
Dr Prasad has been the applicant's general practitioner for many years, first seeing him in the 1970s. He did not appear before the Tribunal, but many letters and reports as well as his clinical notes were before the Tribunal. As he could not be cross-examined, the Tribunal must give less weight to certain elements of his evidence, but on certain points it is useful to have regard to it.
Dr Prasad's notes mention Mr Johnson's knee problems on many occasions in the 1980s. In 1987 the doctor noted pain in the legs and back (T154/317). In 1990 he noted "pain with legs etc" (T154/332). He mentioned that the applicant had painful "legs" on several other occasions in 1992, but not until May of that year do his notes record pain in the applicant's right hip. After that point, many references to this problem occur in the doctor's notes.
On 6 June 1996, in a letter to Dr Lewis, Dr Prasad reported that Mr Johnson was suffering from "low back ache – radiating to hips and legs" (T333/712).
Dr Prasad refers to the applicant's altered gait on several occasions in the documents before the Tribunal, with the first mention made in 1987 (T54/103). This alteration is, he states, due to Mr Johnson's knee condition. The doctor has stated the belief that this gait alteration has led to the applicant's hip condition. In a letter to the Department of Defence dated 24 May 1994, the doctor wrote:
"Mr Johnson developed pain in his right hip as a result of unbalanced gait resulting from injured knees.
He was hospitalised because of his knee condition and had radiological investigation as we felt his hip pain was related to his unbalanced gait." (T70)
Again, in a letter dated 14 January 1997, the doctor wrote of the applicant:
"…I have seen his suffering. I have constantly seen him walking with a limp. The limp was exacerbated with inflammation of the knee joint, which occurs at irregular intervals." (T96/212)

Other documentary evidence

Several other documents lodged with the Tribunal are of interest in the light of the evidence detailed above.
Dr M. Goel, a psychiatrist, wrote a report concerning the applicant dated 25 August 1991 (T61). Therein he reported that the applicant provided him with a medical history. Among other things, he states that the applicant told him that he was discharged from the army after the accident of 1977 as he could not pass the required fitness tests. The applicant also reported that his ongoing symptoms were "severe nerve pain, radiating down the hip, to his leg".
Dr Lewis referred the applicant to Dr D. Henderson. Dr Henderson sent a report to Dr Lewis dated 13 November 1995 (T332). In that report, Dr Henderson states that the applicant told him in regard to the accident of 1977 that:
"…a bulldozer slipped onto his legs whilst he was digging it out of a bog. He seems to have hurt his right hip and right knee again."

Submissions of the Respondent

The respondent submitted that counsel for the applicant put forward two theories linking Mr Johnson's hip condition to his employment with the army. He dubbed the first the "altered gait theory."
According to the respondent, Dr Stevenson rejected the suggestion that the applicant's altered gait was responsible for his hip problems. So did Dr Ravindran. Dr Lewis stated that it was possible that there was a connection. However, he also stated that injury to a knee generally leads to problems with the opposite hip. Thus, Mr Soulio submitted, on balance Dr Lewis's evidence was that any such connection in this case was unlikely. The respondent submitted that the documentary evidence of Dr Prasad should be given little weight, as he did not appear before the Tribunal and could therefore not be cross-examined. Overall, the respondent submitted that there is an "overwhelming weight of evidence" against the "altered gait theory." On the evidence before the Tribunal it was clear that use could not lead to arthritic change. Rather, the converse was true, and that with regards to joint mobility, one could apply the phrase "use it or lose it".
The second theory that the respondent submitted the applicant relied upon is what Mr Soulio termed the "direct trauma theory." According to that theory, the accident of 1977 damaged the hip joint. This damage has led to further deterioration, leading to the applicant's current hip condition.
The respondent submitted that the Tribunal should be wary of accepting Mr Johnson's evidence concerning the accident and his symptoms thereafter. This is because his testimony was contradicted by the documentary evidence. The applicant stated that following the accident of 1977 he had felt immediate pain from his knee to his lower back, and since that date this pain has been constant. Mr Soulio contended that these statements were not supported by contemporary army and medical records, which records made no mention of hip pain until some sixteen or seventeen years after the accident. The applicant exaggerated the length of time his initial recovery after the accident took, including the amount of time his leg was immobilised in a complete plaster and then in a Roberts-Jones bandage. The applicant had given a wrong description of the accident to two treating specialists, Dr Lewis and Dr Stevenson. These doctors had both understood the applicant to be trapped under the weight of the bulldozer. It would be an "astounding coincidence" if errors in note-taking had led both these doctors into making the same mistake. Mr Soulio submitted that it is open to the Tribunal to find that the applicant misled the doctors in an attempt to substantiate a link between the accident and his hip complaints.
Mr Soulio pointed the Tribunal to T169, being an application for claim due to injury relating to Mr Johnson's motor accident concerning the semitrailer. Before the Tribunal, Mr Johnson claimed he was a passenger in the vehicle. In the application, Mr Johnson wrote that he was driving the semitrailer. Mr Soulio further submitted that the documents showed that Mr Johnson's claims that he had 're-upped' were probably incorrect. These inconsistencies bring the applicant's credibility further into doubt.
The respondent submitted that in any event, the history of the accident had been agreed before the Tribunal, and that based on this account, the "overwhelming weight" of medical evidence was against such an accident causing trauma to the hip, thus leading to the applicant's hip problems. Mr Soulio referred to Dr Stevenson's testimony that the hip is "exquisitely sensitive" to internal pathology. This meant that it was unlikely to go undetected for so long. The doctor also said that osteophytes occurred in joints and could break off as a natural, unprompted part of idiopathic degeneration, and that this was a reasonable explanation for the bony fragments found by Dr Lewis.
When the above was coupled with the absence of contemporaneous medical documentation of hip problems, and the common incidence of such problems in the general community (the respondent submitted this was a matter of common knowledge), the respondent submitted that it was not possible to establish that the accident of 1977 caused the applicant's hip condition. Dr Lewis stated in his report dated 16 January 1995 (T80/172) that x-rays showed arthritis present in both hips, not just the right. The result of the evidence, according to the respondent, is that the hip condition is caused by "a combination of bad luck and genetics."
Submissions of the Applicant
Mr Britton, for the applicant, referred to the evidence of Dr Ravindran. That doctor, he submitted, stated that the accident of 1977 caused a fracture of the acetabulum in the hip joint, which injury led to the development of osteoarthritis, which degenerated with time. Dr Ravindran stated that in the case of such an injury, symptoms would not necessarily manifest immediately. He gave by way of example the knee injuries of footballers, which often lead to arthritis many years later. This, Mr Britton submitted, is in accord with common experience.
Dr Ravindran's report (T390) is, the applicant submits, cogent. The doctor takes into account the applicant's medical history in its entirety. He notes the presence of the bone fragments. He notes that they were calcified, but that it is impossible to tell how old they were.
Dr Ravindran, according to the applicant, rejects any genetic explanation for Mr Johnson's hip condition. This is because the hip is the only joint affected. It is, Mr Britton submitted, a matter of common sense that where arthritis is present in one joint it will be present elsewhere in the body. Mr Johnson has suffered arthritic change in his right knee joint, but that knee has suffered trauma. It would be an "absolute coincidence" for Mr Johnson to have arthritis in only his right hip when it was his right knee that was so badly injured in the accident unless there were some causal connection.
The applicant submitted that Mr Johnson's right knee injury had been severe. This was evidenced by the fact that he had had his kneecap removed at a very young age, being only 29 or 30. In such a case, with so much focus on the knee, it was "inevitable" that other problems would not be fully explored.
There was no weight of medical evidence which showed that an injury to the hip which resulted from the accident must have been immediately manifest in symptoms.
Mr Britton submitted that Dr Lewis testified that where a serious knee injury is sustained, whether it masks a more minor injury sustained in the hip above, or whether it causes an injury in the hip above, the hip injury will manifest later due to degenerative change in that joint. Mr Britton submitted that it is a matter of common knowledge that injuries may exist for long periods before becoming symptomatic, and that this is presumably what happened in the current case.
Dr Lewis still maintained that the bony fragments he found in Mr Johnson's hip were significant. Thus he had not changed his position so as to deny a connection between the accident of 1977 and the applicant's hip injury.
Mr Britton submitted that Dr Butcher's evidence was of little consequence. If anything, it supports the applicant in that the doctor supported the view that the bony fragment found in Mr Johnson's hip was evidence for some trauma to the joint.
Counsel for the applicant argued that Mr Johnson's complete medical history was before the Tribunal. The applicant had seen the same general practitioner, Dr Prasad, for nearly 25 years. He had consulted Dr Ravindran since the early 1980s. There were thus no other possible accidents that could have caused the trauma to his right hip that the medical evidence of Dr Ravindran, Dr Lewis and Dr Butcher indicated had occurred.
According to Mr Britton, Dr Ravindran did not support the "altered gait" theory because the clear evidence of trauma meant that he did not have to consider it as a possibility. Dr Butcher did not address the issue. Dr Lewis's evidence supported the theory as did Dr Prasad's.

Mr Britton submitted that when a joint is injured, the resulting overuse or altered use of another joint can commonly lead to degenerative changes in that joint. He referred to Dr Lewis's statement that: "the hip compensates for what the knee can't do". Mr Britton submitted that this was a matter of common sense, but that it was important to hear it from expert witnesses as well.
The evidence of Dr Prasad should, according to counsel for the applicant, be given weight as he has seen the applicant over a period of more than 20 years.
The applicant submitted that the evidence of Dr Stevenson should be given very little weight. That is because he is a physician, and the case before the Tribunal is one in which the expertise of an orthopaedic surgeon or a general surgeon is much more relevant. Moreover, Dr Stevenson sought to refer all his evidence to studies, and those he relied on were not connected with any issues before the Tribunal.
Mr Britton submitted that the large quantity of documentary evidence did not mean that it contains an exhaustive and wholly accurate account of events. Most of the records are very short, and many say very similar things. This suggests that contemporary witness accounts, for instance, were similar due to discussion between the witnesses before their statements were taken. Furthermore, it was submitted that just because the amount of documentary evidence was large did not mean that it was exhaustive. Mr Britton submitted that, for instance, it was most probable that some extensive interview between an army official and the injured applicant would have taken place. Mr Johnson testified that he had been questioned at length by an adjutant. Yet there was no satisfactory record of such an interview in the documents provided to the Tribunal.
Mr Britton defended the credit of Mr Johnson. He stated that after the motor accident as a passenger in a semi-trailer, the applicant did not make a claim for insurance. This showed that his intentions were honourable, and that he was not a man who made a claim if it was not warranted. Mr Britton stated that had the respondent wished to challenge whether the applicant was a passenger in the aforementioned truck accident, then that should have been put to him in cross-examination.
Mr Britton submitted that Mr Johnson presented as an honest, though not an articulate, man. He clearly found it difficult to give evidence before the Tribunal. Mr Britton further submitted that it would be extremely foolish for Mr Johnson to deliberately lie to establish his claim, given the extensive documentary records which exist. The misunderstanding of the accident by Dr Stevenson was evidence for this. It would, be "ludicrous" for Mr Johnson to have claimed that the bulldozer had fallen on him. Mr Britton suggested that the applicant never gave that account at all. He submitted that the applicant had thought a lot about the accident, and told the story many times. Mr Britton seemed to imply that some evolution of the story had naturally and unintentionally occurred in this process, but that no deliberate fabrication had taken place.
Discussion and Findings
The only direct evidence for many of the events in question before the Tribunal was the testimony of the applicant. His credibility is therefore of considerable importance in the matter. Before the Tribunal, Mr Johnson did present as doing his best to recall honestly events dating back to 1977. The Tribunal notes that on the night of the "bulldozer incident" the applicant was tired, and, immediately after the incident he was in severe pain. His recollection of the event itself might thus be understandably hazy. Furthermore, it is evident that the progress of his various medical conditions has been constantly on his mind, and this progress has been gradual. When this is considered together with the considerable period of time that has passed since the incident it is easy to accept that some inaccuracies in the applicant's recollection of dates might innocently arise. Regard, too, must be had to the fact that Mr Johnson is evidently, in the words of Dr Stevenson, "not the most articulate of historians." This could possibly account for some misinterpretation of the applicant's testimony over time.
The Tribunal is satisfied that inconsistencies and inaccuracies in the applicant's testimony regarding his medical treatment after the "bulldozer incident" can be explained in this way. So too can the uncertainty about the timing of the applicant's resignation from the army. The attempts of Counsel for the respondent to use these inconsistencies to establish a thoroughgoing pattern of deceit on the part of the applicant are rejected.
However, the fact remains that the applicant has at different times given dramatically different accounts of the "bulldozer incident" to a variety of different people. He has stated that the bulldozer slipped onto him, and that the bulldozer rolled over and pinned him to the ground. The Tribunal cannot accept the submission of Mr Britton that these versions are the result of misunderstanding and poor note-taking on the part of Dr Lewis and Dr Stevenson. For as well as their accounts, and that of Dr Henderson (T322), there is before the Tribunal a handwritten letter of the applicant himself, wherein he describes the bulldozer rolling back on him (T75).
Before this Tribunal, the applicant stated that he slipped into a hole under the bulldozer. This account was not contested and the Tribunal accepts it. The discrepancy between this and previous accounts, whether arising innocently or not, is such that the Tribunal must be cautious in accepting any of the more tendentious claims of the applicant.
The applicant put forward two possible connections between the accident of 1977 and his hip condition. These were succinctly described by the respondent in closing submissions as the "altered gait theory" and the "direct trauma theory".
According to the first theory offered by counsel for the applicant, Mr Johnson has suffered several knee injuries. He injured his right knee by falling on stairs. He injured his left knee when his right knee, as a result of the previous injury, gave way beneath him. He injured his right knee again in the "bulldozer incident." These injuries have all been accepted by the respondent and have been found to be compensable under the Act. Counsel for the applicant submitted that all these injuries, but especially the last one, caused the applicant to walk with a limp. This led to greater wear and tear on the joint and led to the applicant's osteoarthritis of the right hip.
The Tribunal is satisfied that Mr Johnson did suffer from an altered gait as a result of his knee injuries. Dr Prasad described the applicant's limp, and there are other references to it in the medical evidence before the Tribunal. The Tribunal is satisfied that Dr Prasad was in the best position to observe the gait of the applicant over a long period of time and there is no reason to question his opinion on this point.
The next question is whether the applicant's altered gait caused his hip injury. The medical evidence on this point was divided. Dr Prasad believes that there was a connection. However, he is a general practitioner, with no particular expertise in arthritis. Furthermore, he did not appear before the Tribunal and his written statements before the Tribunal do not give a detailed explanation of the causal connection contended for. His views can therefore be given little weight compared with the other expert evidence before the Tribunal.
Dr Lewis stated that it is possible that the applicant's altered gait caused his hip injury. He said that in general, knee injuries can lead to arthritis in the hip, especially if movement in the knee is restricted. This is because the hip has to compensate for the restricted movement in the knee. However, he also stated that the resultant arthritis generally occurs in the opposite hip to the knee injury. All the evidence before the Tribunal in this case points to the conclusion that Mr Johnson's right knee condition was much worse than his left knee condition, and he is claiming compensation for an injury to his right hip. Furthermore, Dr Lewis was reluctant to say that Mr Johnson's altered gait had caused his arthritis in the right hip because he believed that the bone fragment he removed from Mr Johnson's hip was a clear indication that the hip had suffered trauma, and he was inclined to attribute the arthritis to that trauma.
Dr Stevenson was not in favour of the "altered gait" theory. He stated that he did not believe that use of a joint led to degeneration. Rather, in his opinion, joint mobility was necessary to prevent arthritis in later life. Dr Stevenson stated that while he had heard anecdotal evidence from orthopaedic surgeons that altered mobility in one joint could cause arthritis in another, he had never seen a scientific study that established such a connection. Furthermore, he stated that he had heard of a recent study that denied any such link. In any event, the very fact that no scientific study had established a connection was, in Dr Stevenson's opinion, evidence that any causal link that might exist must be a weak one.
Counsel for the applicant submitted that the Tribunal should take no account of the evidence of Dr Stevenson, saying that he was not within his field of expertise, and that this matter was one where the knowledge of a surgeon was far more relevant than that of a physician. This is a proposition that the Tribunal is unable to accept. The doctor gave evidence that he has extensive knowledge of joints and their diseases and this matter is within his field of expertise. Furthermore, while his evidence concerning the "altered gait theory" was general in nature, so was that of Dr Lewis, on whose testimony the applicant seeks to rely.
Dr Ravindran stated that he does not believe Mr Johnson's hip injury to have been caused by his knee injury. Mr Britton submitted that Dr Ravindran said this because he believed that the hip injury was caused by direct trauma to the joint sustained in the "bulldozer incident". According to Mr Britton, Dr Ravindran's opinion on this point indicates nothing more than the fact that the doctor had an alternative explanation for the injury and thus did not consider the "altered gait" theory. The Tribunal finds, that while this is a possibility, nothing was said by Dr Ravindran to support this interpretation of his evidence. To conclude that this was his reason for rejecting the "altered gait theory" is pure speculation.
Dr Butcher also stated that he did not believe Mr Johnson's altered gait caused his hip injury. Mr Britton submitted that the doctor's testimony was of little consequence. While it is true that his evidence was not detailed, and the doctor admitted that he had not seen radiological scans of the hip, the fact remains that Dr Butcher expressed a clear opinion and the Tribunal must take it into account and give it due weight.
Mr Britton submitted that it is a matter of general experience and common sense that injury to one joint leads to injury in other joints that are forced to compensate for the original injury. He argued that the Tribunal did not need to rely on the evidence of experts in finding that Mr Johnson's knee injury caused his hip injury by changing the way he walked. However, much expert evidence was before the Tribunal. The Tribunal finds it is unable to ignore this evidence and rely on its own judgement. This is especially so when none of the expert evidence, with the possible exception of that of Dr Prasad, whose evidence was too scant to be decisive on the point, supported the "common sense" view propounded by Mr Britton. The only specialist who provided any support for the "altered gait theory" was Dr Lewis, who stated that damage to a knee could cause damage to the hip, but generally the hip on the opposite side of the body. This directly contradicts the "common sense" submission of Mr Britton, who pointed to the "coincidence" that the applicant's hip problems were on the same side of the body as his severest knee problem.
The Tribunal notes that not one specialist who gave evidence before it supported the specific proposition that Mr Johnson's hip problem was attributable to his altered gait. Dr Lewis gave evidence that it was, in general, possible for an altered gait to cause arthritis in the hip, but Mr Johnson's case did not fit the general pattern he described. The majority of specialists specifically stated that they did not consider the explanation to hold. After weighing all the evidence before it, the Tribunal finds that Mr Johnson's hip condition was not caused by his compensable knee conditions.
The second theory put forward by counsel for the applicant, the "direct trauma theory", was that the accident of 1977 caused direct trauma to the hip. Mr Britton submitted that this trauma involved a fracture to the rim of the acetabulum. The injury sustained in that accident caused the joint to develop osteoarthritis, which condition has deteriorated with time.
In 1994 Dr Lewis detected bony fragments in Mr Johnson's right hip, and operated to remove them. At operation he found a large fragment which had broken off from the front rim of the hip socket. It was, and remains, his opinion that this fragment was the result of a fracture caused by direct trauma to the joint.
Dr Ravindran also stated that the bone fragment was the result of trauma to the hip. Dr Butcher made no mention of the fragment, nor do the documents of Dr Prasad. Dr Stevenson was equivocal on this point. He stated that bony fragments could occur in joints for two reasons. One explanation was trauma to the joint. The other was osteoarthritis. This condition commonly led to small fragments of bone breaking off in a joint without any external trauma to that joint. However, the doctor ultimately stated that he was at a disadvantage to Dr Lewis in determining whether the fragment was the result of trauma in that he had not seen the fragment. He stated that he would therefore defer to Dr Lewis's opinion on the matter.
It was not disputed that a trauma-related fracture to the hip would cause arthritis. As has been noted above, Dr Lewis attributed Mr Johnson's arthritis in the right hip to the hip fracture. Dr Ravindran expressed the same opinion. In his view, the most likely explanation for Mr Johnson's right hip problems was that the trauma to the hip joint caused some minor cartilage damage to the hip, which degenerated with time. Dr Stevenson was the only witness who was equivocal about whether trauma sufficient to cause a fracture to the hip would lead to arthritis. He stated that "high impact trauma" was a very high risk factor for the later development of osteoarthritis in hips, while lesser impacts were not such severe risk factors. Dr Stevenson also stated that the hip behaves differently to the knee in respect to minor cartilage damage. When Dr Stevenson's evidence is considered as a whole, it appears that his testimony is to the effect that if an accident is severe enough to lead to a hip fracture, it is highly likely to lead to osteoarthritis in later life. Consequently, the Tribunal finds that if indeed the fragment found in Mr Johnson's hip was the result of a trauma-related fracture, that fracture in all probability caused or significantly worsened his osteoarthritis in that joint.
The question remains whether the accident of 1977 caused the trauma to Mr Johnson's hip. The medical evidence on this point was divided.
Dr Ravindran stated that he believed the accident of 1977 caused direct trauma to Mr Johnson's right hip, leading to the development of osteoarthritis in that joint. He believed that the bone fragment excised by Dr Lewis in 1994 was the result of trauma. Dr Ravindran stated that on reviewing the medical history of the applicant, the accident of 1977 was the only event that could have caused this trauma.
Dr Ravindran rejected the possibility that the applicant's arthritis in the right hip was caused by idiopathic degeneration. This meant that it must have been caused by trauma. His reasons for rejecting the idiopathic explanation were the relative youth of Mr Johnson, and his understanding that arthritis was present only in the right hip. Dr Ravindran stated that if the condition were idiopathic, one would expect it to be present in both hips.
Dr Stevenson favoured the view that Mr Johnson's arthritis in the right hip was idiopathic in origin. While he did not refer to the Mr Johnson's age in coming to that conclusion. However he evidently did not consider that the applicant's age rendered the diagnosis of idiopathic degeneration untenable. The Tribunal is satisfied that Dr Stevenson provided a considered opinion, and finds it unlikely that he did not avert to this issue.
Two things must be noted in response to Dr Ravindran's claim that the lack of arthritis in the applicant's left hip was evidence that the right hip injury was the result of trauma. The first is simply that there is evidence before the Tribunal that both of Mr Johnson's hips were affected by arthritis by at the latest 1994 (see report of Dr Lewis dated 30 June 1994, T311/683). The second is, that even if this were not the case, the evidence of Dr Stevenson is that unilateral arthritis is not uncommon, and not necessarily a sign that the arthritis is caused by trauma to the joint.
The documentary evidence of Dr Prasad did not discuss whether the bulldozer incident was likely to have caused direct trauma to the applicant's hip. Even if it had, his opinion as a general practitioner would not carry significant weight compared with that of the specialists who appeared before the Tribunal.
Dr Lewis, Dr Stevenson and Dr Butcher all stated that the "bulldozer incident" was unlikely to have damaged the applicant's hip. Dr Stevenson was the only one of the doctors who was requested by counsel to elaborate on why he considered the accident as described to have been inherently unlikely to have caused hip damage. He stated that the hip was a very stable joint, and generally it only sustained fractures in "high impact" incidents. The accident as accepted by the Tribunal was not a high impact incident. Rather, the forces and body positions involved were similar to those occasioning sporting injuries. Fracture of the hip in such a case was extremely unlikely. This explanation accounts for the fact that both Dr Lewis and Dr Stevenson initially thought that Mr Johnson's hip injury resulted from the accident of 1977, but changed their minds when their understanding of the accident changed. They initially, and incorrectly, thought that the bulldozer fell or slid onto Mr Johnson. This would have clearly constituted a "high impact" accident as described by Dr Stevenson.
In conjunction with the fact that they consider the accident of 1977 as inherently unlikely to cause a fracture to the hip, Dr Lewis and Dr Stevenson both referred to the lack of reports of hip pain referred to by the applicant. According to them, a fracture to the hip would have caused immediate pain to the hip and then ongoing pain. Dr Stevenson stated that the hip is 'exquisitely sensitive' to internal injuries. The respondent submitted that the applicant did not complain of pain in the right hip until the early 1990s, and that this was inconsistent with his sustaining a fracture to that joint in 1977.
In his oral testimony, the applicant stated that he had experienced pain from the middle of his back down his leg to his knee at the time of the accident. In his statement he said that his leg "was a complete mass of pain" but that he did not remember pain specifically in his leg. He said: "I've had pain virtually constantly from the knee to the hip since in varying degrees, different days, different situations."

The respondent pointed to the medical records, which do not bear out Mr Johnson's story. They record increasing complaints of back pain, with some referred pain, from the late 1980s and specifically mention hip pain only from the early 1990s. This of course cannot prove that the applicant did not experience hip pain, merely that he did not report it to his treating doctors. However, the medical records of Mr Johnson tend to indicate that he was reasonably assiduous in informing his doctors of his medical problems.
It is easy to accept that for some time after the accident and at various points thereafter the applicant has experienced pain in a variety of areas and the Tribunal accepts that it may have been difficult to isolate the exact point from which pain was emanating. The Tribunal also notes the discussion by various experts that hip pain may result from knee pathology, and that the applicant and his doctors could have been delayed in diagnosing his hip complaint in the mistaken belief that the pain he felt was due to his knee. The applicant certainly made mention on a few occasions that he was told his hip pain was referred from his knee. However, this must be weighed against the evidence of Dr Stevenson and Dr Lewis, who both stated that it was extremely unlikely that a hip fracture could go unnoticed for so long. Dr Ravindran's evidence that the bone fragment was not in contact with a weight-bearing surface of the hip must also be weighed against the opinions of Dr Lewis and Dr Stevenson.
Considering the medical evidence as a whole, the Tribunal is not satisfied that, on the balance of probabilities, the applicant's hip injury was caused by direct trauma to the hip in the "bulldozer incident." In so finding, the Tribunal accepts the testimony of Dr Lewis, Dr Stevenson and Dr Butcher, that the accident was highly unlikely to damage the hip, as compelling. So too the unequivocal evidence of Dr Lewis and Dr Stevenson that the lack of established symptoms at the time and over the following years made hip trauma very unlikely to have been sustained at the time. The evidence before the Tribunal concerning other accidents involving the applicant was scant, and the Tribunal is not satisfied on the balance of probabilities that Dr Ravindran is correct in concluding that this accident, described by three specialists as very unlikely to injure the hip, was the only accident that could have injured the hip. This is especially so when the variations in the applicant's descriptions of his history of hip pain and the bulldozer incident itself are taken into account. Even if it is accepted that the applicant's hip condition was caused by direct trauma to the hip, the Tribunal cannot be satisfied to the necessary standard that some other, later, incident did not cause that trauma. Consequently, the application must fail.
Decision
For the reasons outlined above, the decision under review is affirmed.
I certify that the 168 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J. A. Kiosoglous MBE
Signed:   (signed)
  John Howell, Associate
Date/s of Hearing  17, 18 and 19 September 2002
Date of Decision  10 December 2002
Counsel for the Applicant        Mr G. Britton
Solicitor for the Applicant         T. F. Owen & Co.
Counsel for the Respondent    Mr R. Soulio
Solicitor for the Respondent    Phillips Fox