KIRK ZWANGOBANI and COMCARE
[2009] AATA 755
•10 September 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 755
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3152
GENERAL ADMINISTRATIVE DIVISION ) Re KIRK ZWANGOBANI Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr P.S. Wilkins MBE, MemberDate10 September 2009
PlaceCanberra
Decision 1. The decision under review made by Comcare on 21 May 2008 is set aside.
2. In substitution, it is decided that, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988, Comcare is liable to pay compensation in accordance with the Act in respect of an injury to the right knee suffered by Mr Zwangobani on 24 May 2003.
3. Comcare shall pay the costs of the proceedings incurred by Mr Zwangobani.
..................[sgd].......................
J.W. Constance, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – injury – notice under s 53 of safety, rehabilitation and compensation act 1988 – nature of injury – applicant failed to give written notice – applicant gave notice that did not comply with s 53(1) – failure to give written notice resulted from applicant’s ignorance – respondent would not be prejudiced by notice being treated as sufficient – decision under review set aside – respondent liable to pay compensation pursuant to s 14
Safety, Rehabilitation and Compensation Act 1988 (Cth) – Sections 4, 14, 53
REASONS FOR DECISION (IN THE FORM OF AN EDITED TRANSCRIPT)
10 September 2009 J.W. Constance, Senior Member
Dr P.S. Wilkins MBE, MemberINTRODUCTION
1. This is an application to review a decision of Comcare made 21 May 2008 affirming an earlier determination which denied liability for an injury to Mr Zwangobani’s right knee on the basis that the evidence did not establish that the injury had arisen out of or in the course of the employee’s employment.
2. The injury, the subject of this application, is alleged to have occurred on 24 May 2003 when Mr Zwangobani was a teacher employed by the ACT Department of Education and Training. For the reasons which follow the decision under review will be set aside.
LEGISLATIVE BACKGROUND
3. The legislative background to this matter is contained in the Safety, Rehabilitation and Compensation Act 1988. Subsection 14(1) of the Act provides:
Subject to this part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
4.Subsection 4(1) of the Act defines “impairment”:
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
5. The other relevant provisions are contained in section 53 of the Act which relate to the giving of notice of an injury. Section 53(1) relevantly provides that:
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…
6.Subsection 53(3) relevantly provides that:
Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
ISSUES FOR DETERMINATION
7.The issues in this matter are as follows:
(1) Did Mr Zwangobani suffer an injury on 24 May 2003?
(2)If so, did Mr Zwangobani give the notice required to be given under section 53 of the Act?
(3) If the required notice was given, what is the nature of the injury?
FACTS
8. We are satisfied of the following facts on the balance of probabilities. Our findings are based on the evidence of Mr Zwangobani unless otherwise stated. The credibility of Mr Zwangobani was raised by Counsel for Comcare during the hearing. Having observed and listened to Mr Zwangobani in the witness box, we are satisfied that he is an honest witness and was endeavouring to give his evidence truthfully to the best of his recollection.
9. On the basis of his evidence, we are satisfied that Mr Zwangobani was employed as a teacher by the Department, and has been so employed since 2001. In 2003 he was employed as a teacher at the Narrabundah College in the Australian Capital Territory.
10. In his teaching role, on 24 May 2003, Mr Zwangobani took part in an outdoor educational camp with three other teachers and about 10 to 12 students. The camp involved mountain bike riding in the nearby Snowy Mountains. On the last day of the camp, Mr Zwangobani and the others in the group were riding mountain bikes down a steep hill. He was riding in company with one of the students. They were riding carefully to slow their descent.
11. About halfway down the slope, as he was approaching a bend in the track, Mr Zwangobani heard yelling from behind and another student rode past them very quickly; he estimates at probably two to three times the speed that they were travelling. Mr Zwangobani tried to move to the side of the track to get out of the way of the student coming behind him. He went off the track, tried to brake, and came over the handlebars of his bicycle. His right kneecap struck a boulder as he fell.
12. The student with whom he was riding helped to pick up his bike, and Mr Zwangobani went back to the track. He had difficulty walking and felt pain in his knee. He was unable to properly bear weight on his right leg. He had minor cuts and scrapes. At the immediate time, he was not aware of any other injury to his knee.
13. Mr Zwangobani was able to get back on his bike and complete the descent. At the bottom of the hill he informed the group leader (another teacher), Mr Pitchford, of the incident and the fact that he had hurt his knee.
14. Mr Zwangobani said, and we accept, that he was not aware of the strict stipulations of reporting an accident, especially an accident of this nature. At the time he did not believe he had sustained any serious injury. In fact, the documents record that the accident was reported to Narrabundah College much later: on 7 June 2005, just over two years after the accident happened. Mr Zwangobani did, from time to time, discuss the incident with Mr Pitchford in the meantime.
15. In 2004 Mr Zwangobani began to suspect there was something wrong with his knee and, during discussions with Mr Pitchford some time in 2004, they discussed the need to lodge an accident report. In fact, it was mid-2005 by the time that accident report was lodged by reason of a delay in Mr Zwangobani obtaining the actual date of the trip. That does seem to be an extremely long time but that was not questioned. We accept that, while it may not have been a good reason, it was the reason for the additional delay.
16. Mr Zwangobani said, and we accept, that prior to this incident he had not suffered an injury to his right knee and had not suffered any subsequent injury to his knee subsequent to 24 May 2003.
17. Mr Zwangobani continues to have problems with his right knee and for some years he has not been able to kneel on the knee without suffering an acute, severe pain. He says that it occurs in a specific area of his knee. He eventually became concerned that something needed attention. He said that this condition still happens from time to time and if he touches his knee in a particular spot on the front of the kneecap he still experiences acute pain and irritation. To the best of his recollection, he first experienced this problem with his knee in the second half of 2004.
18. Mr Zwangobani showed us the area on his knee in which he experiences pain. That was noted by Dr Wilkins as the entire inferior border of the patella. Mr Zwangobani is not currently receiving any treatment for the injury to his knee. He did mention the problems he was experiencing to his general practitioner, Dr Perera. To the best of his recollection, this was in early 2005, when he was consulting her in relation to an unrelated condition. Dr Perera gave him a referral for an x-ray, but for various reasons, largely related to family, Mr Zwangobani did not have that x-ray taken until 27 September 2005.
19. It should be noted that Dr Perera does not have any note of that attendance in relation to his knee in early 2005, but we accept Mr Zwangobani’s evidence in this regard. He says that Dr Perera said to him at the time that she would give him a referral to get an x-ray and that it would be best to talk to a sports physician rather than seeing her in relation to it, as it was not her area of expertise. This may explain why Dr Perera did not make particular note of that consultation.
20. Mr Zwangobani also consulted Ms Campbell, a chiropractor, in 2005 and Ms Campbell referred him to Dr Howse. In the referral by Ms Campbell, she referred to Mr Zwangobani’s right knee hurting after attempting a lotus position.
21. Mr Zwangobani said that the problem with his right knee, referred to by Ms Campbell, was a tightness down the side of his knee which was quite different from the sharp pain he felt on kneeling.
22. We have also taken into account various statements made by Mr Zwangobani as to the incident, and these are contained in exhibits A1, R1, R2 and R3. There is nothing in those statements which cause us to doubt the evidence which he gave in the witness box. Nor did that cause us to reconsider our perception that he was a witness of truth.
23. Mr Zwangobani was subject to a very detailed cross-examination by Counsel for Comcare. Counsel raised a number of issues with Mr Zwangobani. Those matters included that Mr Zwangobani had suffered problems with his left knee in 2004 and that he had suffered problems with his left knee about two years ago, as a result of running and cycling. It was also put to Mr Zwangobani that prior to the incident he had suffered a fracture or dislocation of his right knee. Mr Zwangobani denied this.
24. Mr Zwangobani denied that he had ever suffered a fracture or dislocation of his right knee.
25. None of the matters that were put to Mr Zwangobani have caused us to doubt the validity of his evidence.
26. Mr Zwangobani lodged a claim for compensation dated 22 May 2007 which is exhibit A8 and, in fact, it is that claim which is the first written notice of the injury. The description which Mr Zwangobani included as a diagnosed condition was:
Dr Robert Still has diagnosed a bursa on the right knee as a result of an impact.
MEDICAL EVIDENCE
27. Mr Zwangobani consulted Dr Howse on 27 May 2005. Dr Howse was another general practitioner within the practice, which was attended by Mr Zwangobani. In exhibit A4, which is a copy of Dr Howse’s clinical notes, Dr Howse has recorded in relation to that attendance:
History:
R knee
2 years fell on patella; since int. discomfort with kneeling.
And we take the letters “INT” to mean intermittent.
28. Mr Zwangobani also consulted Dr Still, a physician, on 11 February 2006, having been referred by Dr Perera. In a report to Dr Perera of 11 December 2006, which is exhibit A5, Dr Still said that there was initial swelling, but it seemed to be “ok” initially. However, he then developed anterior sharp pain with yoga and with localised pressure such as kneeling. The examination revealed a smaller fusion, some tenderness and thickening over the pre-patella bursa producing his symptoms and also some very minor laxity of the posterior cruciate ligament. The rest of the examination was normal. Mr Zwangobani had evidence of previous trauma to the pre-patella bursa producing some painful thickening of the bursa walls.
29. Mr Zwangobani was examined by Dr Billet at the request of Comcare’s solicitors. That examination took place on 14 November 2007. In his report of 26 November 2007, which is exhibit A15, Dr Billet said at page 2 of the report:
On 24 May 2003, while on an outdoor educational camp, Mr Zwangobani was cycling down a hill with a student. Another student came past quite fast and swung in front of Mr Zwangobani. He turned off the track and managed to avoid the trees. However, the front wheel of his bike locked and he went over the handlebars and struck his right knee on a boulder, experiencing pain in the inferior, anterior and medial aspects of his right knee. There was initial swelling and he started to limp. He eventually became aware of a bursa in the infra-patellar area.
30. We make reference to the cross-examination of Mr Zwangobani in relation to his reporting of the incident to Dr Billet. It appears to us that that recording by Dr Billet was in accordance with the evidence given to us. The fact that Dr Billet indicated that Mr Zwangobani “started to limp” does not indicate that that limping was a long-term consequence.
31. Later in his report, Dr Billet said:
At this stage I would recommend an MRI arthrogram of his right knee and if he has a meniscal tear he would require an arthroscopic assessment to deal with the pathology, followed post-operatively by intensive physiotherapy, a gym program and pool therapy.
Later:
The clinical diagnosis is that of a possible meniscal tear of the right knee and chondromalacia patellae, as well as an injury to the infra-patellar fat pad.
Dr Billet expressed the opinion that the injury to the knee was sustained as a result of the fall of 24 May 2003.
32. Dr Billet obtained a report of an MRI study of Mr Zwangobani’s right knee which was taken on 17 December 2007. In a report of 10 January 2008, which is exhibit A16, Dr Billet suggested that Mr Zwangobani “has an arthroscopic assessment of his right knee, followed by physiotherapy, pool therapy and a gym program for six to eight weeks”. This has not happened.
33. As there was concern as to the history given to Dr Billet, Messrs Sparke Helmore, solicitors for Comcare, wrote to Dr Billet on 17 February 2009. A copy of that letter is exhibit A18. Dr Billet was asked to consider that in a Health Services Australia assessment dated 29 July 2003, two months after the claimed injury:
The applicant answered “no” to the question ‘Have you suffered from pain or limitation of use of the lower limbs?’
Dr Billet was also asked to take into account that the HAS assessor, Dr Richards, found “nothing of significance” and made no reference to any musculoskeletal injuries.
34. The solicitors for Comcare further pointed out to Dr Billet that Mr Zwangobani has provided a statement addressing the HSA report:
He has stated that he only suffered ’bruising and inflammation in the weeks following the accident’ and that ‘It was only at some stage following the accident … towards the end of the year if not later that upon kneeling [he] experienced the pain and discomfort.’ We are not aware of any evidence the Applicant received treatment for a right knee problem before February 2005.
35. Dr Billet was asked whether he considered the right knee injuries that he had diagnosed in his previous report were still attributable to the incident on 24 May 2003. It was also noted that the MRI report of 18 December 2007 revealed “probable old ACL foot plate low grade tear” and “previous low grade proximal MCL injury”.
36. In a report of 26 February 2009, which is exhibit A17, Dr Billet said:
I should state that the opinion expressed in my previous report dated 26 November 2007 was based on the information provided to me during the interview. I arranged the MRI study, and combining this with the clinical findings, this led to my conclusions.
Thus, I have no reason to alter my opinion.
And later he said:
The clinical examination documented an equivocal McMurray’s test, indicating a possible meniscal lesion, and there was evidence of irregularity at the patella.
37. Dr Billet went on to say that the history was consistent with his clinical findings and that, therefore, Mr Zwangobani sustained a definite injury to his right knee; and this correlates with the clinical findings. He also said that he had noted that Mr Zwangobani had stated he only suffered bruising and inflammation in the weeks following the accident. In the opinion of Dr Billet, it was possible that Mr Zwangobani initially only had minor symptoms which later became more severe.
38. We note that in this matter, and there was no criticism intended of this course, none of the doctors were called and we were asked to rely on their reports. However, in doing this, we need to balance what is in the reports with what was given in sworn evidence before us. In this case, we do not see any particular irregularity in that evidence.
39. We are satisfied on the basis of the evidence of Dr Billet, supported by the other practitioners, that Mr Zwangobani suffered an injury to his right knee, which causes ongoing intermittent pain and has caused irregularity of the patella. There is clearly a need for further investigation as recommended by Dr Billet and possible further treatment depending on the findings.
REASONING
Did Mr Zwangobani suffer an injury on 24 May 2003?
40. The answer to this question is, yes, he suffered the injury that we have just described. The blow to his right kneecap immediately caused pain, swelling and difficulty in walking. This, alone, is sufficient, in our view, to amount to an impairment within subsection 4(1), and therefore satisfied the requirements of an injury for the purpose of subsection 14(1).
Did Mr Zwangobani give the required notice under section 53?
41. Clearly, Mr Zwangobani did not comply with subsection 53(1), which requires that notice in writing be given as soon as practicable after he became aware of the injury. He did give verbal notice to his superior but he did not give written notice.
42. It is then necessary to consider the provisions of subsection 53(3). We are satisfied that notice shall be taken to have been given. On the evidence of Mr Zwangobani that he was not aware of the requirements that he give notice, we are satisfied that the failure to give notice was from his ignorance of the requirements of the Act in this regard. We are assisted in reaching that decision on the basis of his evidence and also by noting that it appears that his group leader and superior, Mr Pitchford, was equally ignorant of that requirement. It is not surprising that employees could be unaware of that requirement of the Act.
43. In this regard, we refer to the annotated Safety, Rehabilitation Compensation Act 1988, 8th edition, by Ballard and Sutherland. At page 425, after reviewing numerous authorities, the authors say:
As these authorities show, there is a thin line between “mistake” and “ignorance”. If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant.
44. Alternatively, if we were wrong in relation to ignorance, we are satisfied that Comcare would not, by reason of the failure to give notice, be prejudiced if the notice was treated as being sufficient. Comcare has been able to have Mr Zwangobani examined by Dr Billet and there has been no claim for incapacity to date.
45. Comcare is still able to assess the ongoing need for treatment and if there was any claim for incapacity in the future, that can be assessed at the time. We also note that witnesses are available and on the case as presented by Comcare there was no issue that, in fact, the incident occurred. There was an injury, an immediate injury, that was apparent and that alone would be sufficient to meet the requirements of section 14.
What is the nature of the injury?
46.We have already referred to that in these reasons.
DECISION
47.The decision under review made by Comcare on 21 May 2008 is set aside.
48. In substitution, it is decided that, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988, Comcare is liable to pay compensation in accordance with the Act in respect of an injury to the right knee suffered by Mr Zwangobani on 24 May 2003.
49.Comcare shall pay the costs of the proceedings incurred by Mr Zwangobani.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr P.S. Wilkins MBE, Member.
Signed: ...................[sgd].............................................................
T. Aviram, AssociateDate of Hearing 17 July 2009
Date of Decision 10 September 2009
Written reasons delivered 30 September 2009
Counsel for the Applicant Mr S. Pilkinton
Solicitor for the Applicant Mr B. Hatch, Pamela Coward Higgins
Counsel for the Respondent Mr M. Gollan
Solicitor for the Respondent Mr A. Schofield, Sparke Helmore
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