Mark Anstee and Comcare

Case [2012] AATA 731

[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, Member
Date 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 1988

Cases

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 1642

REASONS FOR DECISION

Hon. B Tamberlin, QC, Deputy President
Dr M Couch, Member

24 October 2012

  1. 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

  2. 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.

  3. 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…

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Details
AGLC
Mark Anstee and Comcare [2012] AATA 731
Case
[2012] AATA 731
Decision Date

CaseChat Overview and Summary

The case of Mark Anstee and Comcare involves the Applicant's claim for compensation under the Safety, Rehabilitation and Compensation Act 1988, which was denied by a Comcare Review Officer. The Applicant, a 56-year-old barrister, argues that he suffered a compensable injury during his service as a Senior Constable in Cyprus in 1982, specifically a rugby incident that caused bilateral knee and thigh injuries. The Administrative Appeals Tribunal was tasked with reviewing the decision to deny compensation and determining whether the claim was barred due to the failure to provide written notice as soon as practicable.

The primary legal issues in this case were whether the Applicant's claim was barred under the Act for not providing written notice as soon as practicable and whether the Applicant suffered from a compensable injury due to the rugby incident. The Tribunal had to evaluate the medical evidence and testimonies regarding the extent and cause of the Applicant's injuries, as well as the impact of the incident on his current condition.

The Tribunal examined the medical history and evidence, finding that while the Applicant did suffer a significant muscle injury to his left thigh in 1982, there was little evidence of ongoing knee problems until later. The Tribunal preferred the evidence of Dr McGill, who concluded that the Applicant did not suffer significant impairment from the 1982 incident, despite having bilateral moderately severe patello-femoral osteoarthritis. The Tribunal affirmed the decision under review, finding that the Applicant's current condition was not significantly contributed to by the rugby incident, and thus, the claim for compensation was not substantiated.

The final orders of the Tribunal were to affirm the decision of the Comcare Review Officer, denying the Applicant's claim for compensation. The Tribunal found that the claim was not barred by the Act and that the Applicant did not suffer a compensable injury due to the rugby incident.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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