Mark Anstee and Comcare
[2012] AATA 731
•24 October 2012
[2012] AATA 731
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2010/4125, 2011/3294
Re
Mark Anstee
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Hon. B Tamberlin, QC, Deputy President
Dr M Couch, MemberDate 24 October 2012 Place Sydney The decision under review is affirmed.
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Hon. Brian Tamberlin, QC, Deputy President
Catchwords
COMPENSATION: whether claim is barred for failure to give written notice as soon as practicable – written notice given - whether Applicant suffered compensable injury – Applicant does not suffer from a compensable injury as a result of rugby incident – decision under review affirmed.
Legislation
Compensation (Commonwealth Government Employees) Act 1971 ss 53 and 54
Safety, Rehabilitation and Compensation Act 1988Cases
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1
Frosch v Comcare [2004] FCA 1642REASONS FOR DECISION
Hon. B Tamberlin, QC, Deputy President
Dr M Couch, Member24 October 2012
The Applicant seeks review of a decision by a Comcare Review Officer which denied liability for compensation under the Safety, Rehabilitation and Compensation Act 1988 in respect of what is described as a claim for “internal derangement of knee (bilateral)”, because the delegate was not satisfied that the injury was significantly contributed to by his employment.
BACKGROUND
The Applicant is a 56 year old barrister. Between June 1982 and July 1983 he served as a Senior Constable in an Australian civilian police contingent in Cyprus, which was classified as “War Zone”. On 1 September 1982, the Applicant was playing in a United Nations rugby union game. He states that during the course of the second half, an opposing player kicked a long, high ball across the open field to a position near where the Applicant was standing. The Applicant jumped high for the ball and, as he was coming back towards the ground with the ball in his hands, an opposing player charged down at him at high speed and at the last minute launched himself towards the Applicant with both knees forward, connecting with both the Applicant’s knees and lower thigh muscle on the front of the left leg. The Applicant hit the ground landing heavily on both knees and he was propelled backwards due to the remaining momentum of the opposing player. He says that he noted the onset of severe pain at his bilateral knees and left thigh. The game was stopped and the Applicant was unable to stand up and was removed by stretcher. He noted redness and dark bruising at his lower left thigh and gross colouring and discolouration to both knees over and above the knee caps. He had approximately two days off work during which he rested. Afterwards, he says he had difficulty walking to the office.
The Applicant says he prepared a report outlining the incident and later gave it to Chief Inspector Young, and although the Inspector appeared to read it, he tore it in half and threw it in the Applicant’s face. The Applicant left the office, moving with what he says was extreme difficulty. He was put on light duties for two to three months. A week after the collision he says that he attended on the Chief Medical Officer, Colonel Vernon Penketh and was told there was no fracture, but there was some scar tissue to the thigh muscle on his left leg. He says he had further attendances on Dr Penketh. He says he received massage and physiotherapy to his left and right legs, concentrating on the thigh and knee area, over a period of nearly three decades since the injuries were received.
The Applicant returned from Cyprus on about 13 September 1983.
During the early 1980s, he saw his GP, Dr G C Killen of Rose Bay, who has since died. On 14 November 1983, he was certified fit for work. He continued to work with the Australian Federal Police Force until 31 January 1988.
The Applicant says he had ongoing problems with both knees, particularly with his left knee and thigh over the following years, although he was able to continue to work and get on with life. He says his sporting career was “outshot”. On 31 January 1988, he was referred for an x-ray of his left knee and he says he consulted a Dr Cross, an orthopaedic surgeon of North Sydney, around this time.
In mid-1992, he was assaulted by a stranger at the Royal Hotel in Paddington, suffering blows about the face and head.
On 1 May 1998, he was involved in a motor vehicle accident whilst riding a motor cycle, having been hit from behind by a van. He suffered a stiff neck, a bruised right hip and elbow, muscular strain and bilateral knee pain. However, he did not go to hospital.
He was involved in a further motor vehicle accident on 14 November 1998. He was stationary on his motor cycle and sustained further injury to his left knee and right ankle as well as a head injury.
He saw two local general practitioners and was referred to orthopaedic surgeons, Dr Ridhalgh and Dr Donald Faithfull. The Applicant says he had significant problems with his left knee for a period of time after the second accident and required a walking stick. On occasions, his left knee gave way. He did not undergo surgery.
Over a period of time, the pain settled and he has continued to note a similar discomfort that he had prior to the motor vehicle accidents.
The Applicant also suffered Post Traumatic Stress Disorder and the onset of symptoms of paranoid schizophrenia as a result of the two motor vehicle accidents. He was referred to a psychiatrist, Dr Lucire, and this condition was chronic for a significant period of time. He underwent treatment and those issues were resolved.
The Applicant lodged claims under the Motor Accidents Scheme in respect of each motor cycle accident. These claims were resolved by way of settlement prior to arbitration for which he received compensation. The following years he says he continued to note ongoing symptoms in his knees with the left being worse than the right. He was able to cope.
During 2009 and 2010, he said his symptoms become worse. He attended Dr Kremer, a physician and surgeon at Bondi Beach. On 1 February 2010, the Applicant underwent a MRI scan of his left knee. On 5 March 2010, he lodged the present claim for compensation benefits.
The Applicant’s case is that he sustained severe and permanent injuries at his bilateral knees and left thigh during the course of his employment with the Respondent in September 1982, and says that his condition has deteriorated with age, resulting in bilateral patello-femoral joint disease and bilateral cartilage degeneration. Both of these are claimed to be permanent.
MEDICAL HISTORY
In evidence there is a handwritten completed form dated 14 November 1983, which is a record of an examination on his return from overseas. There is a reference to injuries occurring overseas, which are described therein as “injured left leg above knee”. As there was some soreness in the same area from time to time, reference was made to treatment from Dr Killen of Rose Bay. In relation to physical examination, there are comments that treatment was not given in Cyprus for physiotherapy, but exercise had been prescribed. There was reference to him suffering a little pain if he did a lot of walking. No reference is made to any abnormality such as swollen knee or loss of function, but there is a reference to minimal swelling in the area of injury.
According to an Australian Federal Police certificate of 14 November 1983, Mr Anstee was in good health, of sound constitution and fit both physically and mentally to perform the duties of the rank of Sergeant.
In cross-examination the Applicant stated that the injury from the rugby incident to the left thigh, just above the knee, was his main area of soreness. He saw Dr Mervyn Cross, in or about January 1988, who recommended that he cease jogging on such a consistent basis.
There is in evidence a statement from a registered remedial massage therapist, Mr Matthew Carr, dated 8 April 2012, who said that he had known the Applicant since 1972, and gave him treatments through 1983 through to 1987. He also saw the Applicant being treated for lateral knee problems including scar tissue in the left thigh.
In 1998, the Applicant had two motor cycle accidents. He stated that he developed bilateral knee pain after being knocked off his motor cycle on 1 May 1998, and sustained further injury to the left knee when he was again knocked off his motor cycle on 14 November 1998. As a result, he had significant problems with his left knee for a period of time after the second accident and required a walking stick.
In 2001, he commenced two compensation actions in the District Court seeking to claim in respect of an injury to the “left knee involving the muscular and ligamental structure” attributed to the motor cycle accidents that occurred in May and November 1998. There was no mention of the right knee.
The clinical notes from the general practitioner in January 1999 refer to the left knee having been swollen, with pain in the right elbow and neck, as a result of the motor vehicle accidents.
On 18 June 1999, Dr Ridhalgh, an orthopaedic surgeon, noted that the Applicant worked as a barrister and enjoyed snow skiing, horse riding, bike riding and swimming. The Applicant however says that he had only been skiing two or three times since 1982, but there was no mention of the rugby incident in the history taken by Dr Ridhalgh.
In a report from Dr Stephenson, an orthopaedic surgeon, dated 2 August 1999 there is no reference to the 1982 rugby injury, but there is a reference to the injury to the left knee as a result of the motor cycle accidents.
Dr Stephenson recorded his examination of the knees and found there was a good range of motion of the right knee and that there was no effusion in the left knee. It was stable on examination, but there was an old rupture of part of the vastus lateralis muscle, lower aspect of the left thigh laterally, consistent with a history of an old football injury. X-rays of both knees in November 1988 were reported to have shown no narrowing of joint space or other obvious abnormality.
On 19 March 2002, Dr Stephenson reports on his examination of the knees, that both knees were stable to examination, with a good range of motion. The Applicant reported to him, in relation to the left knee, that the pain was mainly over the upper part of the patella and adjacent quadriceps tendon and he pointed to that area.
On 10 April 1999, Dr Lucire, the forensic psychiatrist, reported that the Applicant was using a walking stick and that he attributed the instability of his left knee to a blow to a thigh muscle in the accident on 1 May 1998 and recorded that there was a claim of intermittent swelling under the knee cap. The history records that he told Dr Lucire, in relation to the hotel assault in 1992, that he took six weeks leave from his work and then he returned to horse riding, swimming and jogging. He continued those activities, including riding a spirited thoroughbred horse, until the first motor cycle accident in May 1998.
In relation to the current Comcare claim a number of medical reports were prepared. Dr Matthew Giblin, in his report of 9 March 2011, obtained a history that the motor cycle accident in May 1998 led to the knees being aggravated for a period of six months, and then following the second accident, that there was a slight aggravation for a period of a month. These ceased and the knees went back to their pre-motor vehicle accident condition.
Dr Giblin’s history recorded worse symptoms to the right knee than the left. He noted that the Applicant walked without a limp, but that he pushed himself out of the chair using the armrests. He notes that the Applicant recorded a full range of movements in both knees, but there was a slight wasting of the left thigh compared with the right. He concluded that it was impossible to know what the original injury was, but thought nevertheless that it was clear that he had an injury to the knee which resulted in ongoing disabilities. A further report was obtained from Dr Giblin of 13 June 2012 but it was along similar lines.
In the report dated 14 February 2012, Dr Louis McGuigan refers to the history of the 1982 incident and notes that, on examination, each knee was stable with no effusion and that the range of movement appeared to be normal. He considered that the conditions in both knees could be attributed to the football injury in 1982.
Also in evidence is a report by Dr William Bye, orthopaedic surgeon, who made reports in April and September 2011 at the request of the Respondent. In the history given to him, Dr Bye records that the Applicant reported that he had not been involved in any sporting activities since the event in 1982, and was subsequently engaged in sedentary work as a barrister involving the making of loss assessments. This is a significantly different history to that which was given around 1999 by the Applicant.
A report was made by Dr McGill, at the request of the Respondent, in or about November 2011. He obtained a different history. The history obtained by Dr McGill was more extensive and detailed than that given to Dr Bye. Dr McGill reviewed and considered the multiple previous medical reports in detail. Dr McGill considered that the effect of the rugby incident in 1982 was to cause an injury to the lateral component of the quadriceps. He did not think that the Applicant suffered any significant knee injury on either side as a result of the rugby incident. He noted that the account given was consistent with an injury to the quadriceps. He thought it was difficult to understand how the type of tackle described by the Applicant could result in him hitting the ground, landing on both knees. Dr McGill considered that the documentation from 1983 did not suggest that the Applicant suffered injuries to the left knee, and observed that there was no mention of any right-sided injury. He also noted that the multiple reports generated in respect of the motor cycle accidents in 1998 specifically documented that the Applicant was able to play a range of sports including running apparently without any difficulty.
Dr McGill noted that the knee symptoms are now symmetrical and considered that degenerative change was a primary explanation for the knee symptoms. He was of the opinion that the evidence was strong to the effect that the Applicant suffered an injury to the left knee as a result of the motor vehicle accidents. He considered that there was no evidence that the Applicant had a pre-existing or degenerative condition affecting his knees prior to the rugby incident in 1982, and no evidence that he had any significant knee problem over the subsequent 15 years. Having reviewed the statement from the remedial massage therapist, Mr Carr, Dr McGill concluded, in a report dated 23 April 2012, that the diagnosis of scar tissue formed on the left thigh was accurate and was another way of describing the left vastus lateralis injury, which he suffered as a result of the rugby tackle in 1982.
Both Dr McGill and Dr Bye gave concurrent evidence to the Tribunal. The doctors agreed that known causes of the bilateral osteoarthritis of the Applicant could be due to constitutional factors such as obesity, maltracking of the patella and significant direct trauma. Dr Bye noted that the greatest difficulty was that the original injury was 30 years earlier, with one brief medical report 14 months later, and multiple intervening incidents.
Dr Bye and Dr McGill obtained significantly different histories. Subsequently, Dr Bye confirmed that in general the vastus medialis is the critical muscle for stabilisation and the correct tracking of the patella. There was some discussion of factors such as the Applicant’s varying reports of walking tolerance.
In addition to the forgoing, there were two MRI scans, one dated 1 February 2010 in relation to the left knee and one on 29 March 2012 in relation to the right knee.
The changes reported in these imaging studies are similar and consistent with the clinical reports of Dr Bye and Dr McGill.
ISSUES
The issues are whether:
(a)the claim is barred because written notice of the injury was not given as soon as practicable after the injury occurred or the Applicant became aware of the required by s 53 of Compensation (Commonwealth Government Employees) Act 1971 (the Act); and
(b)the Tribunal is satisfied on the evidence that the Applicant suffered a compensable injury affecting both his knees that arose out of the course of his employment on or about 1 September 1982.
NOTICE ISSUE
The Respondent relies on s 53 and 54 of the Act as barring the claim on the ground that the notice was not given as “soon as practicable” after the injury or after the employee became aware of the injury. Subsection 53(3) provides that if a notice is given to the Commonwealth, but such a notice fails to comply with the time requirements of the section and the Commonwealth is not prejudiced by the failure, such notice shall be deemed to have been served in accordance with the Act.
Section 54 is concerned with the making of a claim for compensation and requires that a written claim be served within the prescribed period of six months of the date of injury or the date on which the employee became aware of the injury.
The Respondent contends that the failure to give notice of injury or claim required means that the Applicant’s claim must fail. It also says that it would be significantly prejudiced if such a claim were to be made because as a result of the passage of time, namely the period of 25 years between the incident and the making of the claim, documents are not available, contemporaneous investigations cannot be made, witnesses, records and documents may now not be available, and memories will have faded or been distorted.
The Respondent refers to and relies on Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534 at [6], and Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at [2], [8] and [9].
In response, the Applicant submits that the Act is directed to benefiting employees, and therefore the Tribunal should be reluctant to find that an applicant’s claim is barred: see Frosch v Comcare [2004] FCA 1642 at [8]. There is no prescribed form of the notice of an injury. The purpose of giving notice is to enable the Respondent to determine whether the claim should be met.
The Applicant also asserts that he did not become aware of the nature and extent of the 1982 injury until shortly before the making of the claim.
There is uncontradicted evidence from the Applicant that he took days off work in September 1982. Following the incident he prepared a report outlining the incident and his conditions. He gave the report to a Chief Inspector Young who proceeded to read it and then tore it in half and threw it in the Applicant’s face whereupon the Applicant left the office.
Although the contents of the torn up notice are not in evidence, the Tribunal accepts that a notice in writing of the injury and the incident was served on the Chief Inspector, and considers this notice in the circumstances was sufficient to make the Respondent aware of the incident and the likelihood that a claim was being made by the Applicant for compensation. In our view, it is inherently more probable than not, that such notice of injury would foreshadow that a claim would be made against the Respondent and the report in our view was consistent with the principles underlying the notice provisions, because the notice would have alerted the Respondent for the need to carry out investigations at that time and to gather necessary documents and evidence with a view to defending the matter if the claim was not accepted.
Accordingly, the Tribunal does not accept that the Applicant’s present claim was barred by ss 53 or 54 of the Act.
REASONING ON MEDICAL EVIDENCE
The medical history, evidence and documentary records indicate that in September 1982 the Applicant received a significant direct muscle injury or tear to the lateral left thigh as a result of the rugby tackle, producing significant pains and some initial disability and resulting in some minor scarring in the muscle.
There is little evidence of ongoing knee problems between 1982 and 1998. Having regard to the various statements and histories, including those of the Applicant at different stages as to the extent of his activities which included skiing, swimming, horse riding, squash and jogging, he was able to engage in physically demanding activity in this period.
In addition, there is evidence of an injury to the left knee in the motor cycle accidents he suffered in 1998, although other injuries appeared to have been the main focus of attention as a result of those accidents.
He also included in his claims for compensation payments, in respect of those accidents, particulars in relation to the types of injury which he claims arose from the 1982 incident. The matters were settled and he received substantial compensation. At present, he has bilateral moderately severe and quite symmetrical patello-femoral osteoarthritis clinically and as shown on the MRI scan. There may also have been constitutional family predisposition of this condition. He has been obese and this, together with aging, would augment the risk to some extent.
Having considered the extensive body of medical evidence before us, we prefer the evidence of Dr McGill to that of the other expert witnesses. The examination and reporting of Dr McGill is in our view more exhaustive and the history given by him was more comprehensive, including the review of the histories given to other medical witnesses. The history he obtained of a direct forceful injury to the anterior left thigh is consistent with the documentary records and the other evidence as to the Applicant’s activities. Dr McGill did not consider that the Applicant suffered any significant impairment as a result of the incident.
Dr Bye gave a different analysis and opinion of the cause of the present condition. This was based on a different history of direct injury to both knees. Dr Bye agreed that the different histories could explain the different conclusions reached by himself and Dr McGill.
It is in our view significant that the earliest documentation, which was in 1983, states that the injury was to the left quadriceps in an area above the knee. The injury is therein described as “injured left leg above knee” with persisting symptoms or disabilities expressed to be soreness in the same area from time to time. The comments of the medical officer record the history as being “injury (L) thigh, just above knee at Rugby … now has a little pain … on a lot of walking. Told it will gradually settle.” In relation to whether there was any abnormality on examination there is reference to “minimal swelling in area injury”. There is also a certificate from the Australian Federal Police certifying that he was of good health, of sound constitution and fit physically and mentally to perform the duties of the rank of Sergeant.
Having regard to the forgoing evidence and documentation, we conclude that the Applicant does not suffer impairment as a result of the rugby incident in 1982, and we prefer the conclusion of Dr McGill that the Applicant did not suffer impairment as a result of the injury in 1982, although he does have a minor injury to the left vastus lateralis, which is separate from the left knee.
CONCLUSION
We find that the correct and preferable decision is that the claim has not been made out and that the decision under review should be affirmed. We also find that the claim is not barred by the Act.
Having regard to the above conclusions it is not necessary to consider, amongst other things, the extent of impairment.
58. I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Hon. B Tamberlin, QC, Deputy President and Dr M Couch, Member.
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Associate
Dated 24 October 2012
Dates of hearing 14 and 15 June 2012 Counsel for the Applicant Mr John Sharpe Solicitor for the Applicant W.G. McNally Jones Staff Lawyers Counsel for the Respondent Mr Peter Woulfe Solicitor for the Respondent Australian Government Solicitors
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