McCarthy and Military Rehabilitation and Compensation Commission

[2014] AATA 83

[2014] AATA 83 

Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2012/3125 and 2014/0584
Re	Andrew McCarthy
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Deputy President RP Handley
Date	21 February 2014
Place	Sydney

The decisions under review are affirmed.

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

Deputy President RP Handley

Catchwords

COMPENSATION – transitional provisions – Whether notice of injury given as soon as practicable according to Commonwealth Employees’ Compensation Act 1930 – injury reported to the Sick Bay – particulars of notice recorded on medical record

COMPENSATION – transitional provisions – whether failure to make a claim within six months the result of mistake or reasonable cause – ignorance of the right to make a claim not reasonable cause

COMPENSATION – claim for injury arising out of medical treatment – Commonwealth not liable for knee injury – not liable to pay compensation for osteoarthritis arising from an operation to treat that injury

Legislation

Commonwealth Employees’ Compensation Act 1930 (Cth) s 16
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4(3), 124

Cases

Commonwealth of Australia v Connors (1989) 86 ALR 247
Hunt and Military Rehabilitation and Compensation Commission [2010] AATA 259
Long and Comcare [2003] AATA 116
Muras and Department of Defence (1998) 52 ALD 579
Siemsen and Comcare [1999] AATA 871
Telstra Corporation v Roycroft (1997) 77 FCR 358
Wallace and Comcare [2002] AATA 1131

REASONS FOR DECISION

Deputy President RP Handley

1. Mr McCarthy (the Applicant) has applied to the Tribunal for the review of decisions of delegates of the Military Rehabilitation and Compensation Commission (MRCC) (the Respondent):

   (1) a decision dated 21 March 2012 to affirm a decision to refuse Mr McCarthy’s claim for compensation in respect of an injury to his right knee; and

   (2) a decision dated 30 January 2014 to affirm a decision to refuse Mr McCarthy’s claim for compensation for osteoarthritis of his right knee.

   BACKGROUND

2. Mr McCarthy was born in New South Wales in 1951. He left school in Year 9 and enlisted in the Royal Australian Navy (RAN) at the age of 15. In the Navy, he trained as an aircraft engineer. He served in the Navy, working mostly on helicopters, until 7 July 1976.

3. During his period of service, Mr McCarthy claims to have suffered a number of incidents involving his right knee while stationed at HMAS Nirimba. On 18 December 1968, he was playing hockey during a compulsory sports afternoon and was struck on the right knee by a hockey stick. Several days after this incident Mr McCarthy went on recreational leave. During leave on 19 January 1969, he lost his balance when walking backwards and fell into the Hawkesbury River near Windsor, twisting his right knee, causing it to lock. Mr McCarthy returned to Nirimba later that day and sought medical attention for his knee on 20 January 1969. His knee was bandaged and treated with physiotherapy.

4. Subsequently, on 11 February 1969, while running to his cabin in heavy rain, Mr McCarthy’s knee locked and he experienced significant pain. He consulted a RAN Doctor about this incident that day and received treatment. He was later referred to an Orthopaedic Surgeon, Dr C Selby Brown who, on 26 February 1969, diagnosed a tear to Mr McCarthy’s right medial meniscus. On 21 March 1969, Dr Selby Brown performed a meniscectomy on Mr McCarthy’s right knee at the RAN Hospital at HMAS Penguin. This involved the removal of the meniscus. He received physiotherapy to assist his recovery from the operation. On his discharge from the Navy, on 7 July 1976, Mr McCarthy did not report any symptoms affecting his right knee.

5. After leaving the Navy, Mr McCarthy worked for a number of aviation companies as an aircraft maintenance engineer. In 2002, Mr McCarthy consulted a General Practitioner (GP) about pain in his right knee which had been troubling him for approximately 2 years. He was referred to an Orthopaedic Surgeon, Dr W Kuo, and had a number of x-rays in the following 2 years as well as an arthroscopy on 28 July 2004. In 2008, Dr Kuo advised Mr McCarthy to reduce his working hours. On 6 February 2008, Mr McCarthy applied to his then employer, Jetstar to continue his employment on a casual basis, having previously been working full time. The request was granted on 1 March 2008, and Mr McCarthy worked casually, averaging about 20 hours a week, until he retired in October 2013.

6. In July 2011, Mr McCarthy was advised by an RSL advocate that he could make a claim for compensation. On 5 August 2011, Mr McCarthy applied to the MRCC for compensation with respect to the meniscal tear in his right knee. His claim was refused by a delegate of the MRCC in a decision dated 5 January 2012, on the basis that the injury did not arise out of, or in the course of, military service. The delegate also stated that the extensive period of time between the alleged original injury and the claim prejudiced the MRCC in its ability to verify the claim. Mr McCarthy applied for a review of this decision. The decision was affirmed by another delegate of the MRCC on 21 March 2012 and, on 23 July 2012, Mr McCarthy applied to the Tribunal for a review of this decision.

7. On 6 November 2013, Mr McCarthy made a further claim for compensation in respect of osteoarthritis of his right knee which was refused in a decision dated 12 December 2013 on the ground that the original claim for compensation for injury to his right knee had also been refused. This decision was affirmed by a delegate on 30 January 2014 and, on 3 February 2014, Mr McCarthy applied to the Tribunal for a review of this decision.

   LEGISLATION AND ISSUES

8. At the time Mr McCarthy made his claim for compensation on 5 August 2011, the relevant legislation was the Safety Rehabilitation and Compensation Act 1988 (the SRC Act), the relevant provisions of which came into effect on 1 December 1988. Part X, Division 2 of the 1988 Act contains transitional provisions in respect of injuries or diseases that occurred or were contracted before that date. In particular, s 124(2) provides relevantly:

   (2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

   …

   (b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered;

   …

9. The 1930 Act referred to is the Commonwealth Employees’ Compensation Act 1930 (the 1930 Act). The incidents affecting Mr McCarthy’s knee occurred in 1968 and 1969 at which time the 1930 Act was in effect. The Tribunal must therefore consider the application of the 1930 Act. Section 16 of the Act states:

   16(1)The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made –

   (a)       within six months from the occurrence of the accident; or

   (b)in the case of death – within six months after advice of the death has been received by the claimant:

   Provided always that –

   (i)the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, effect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and

   (ii)the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.

10. Mr McCarthy did not provide the Commissioner with formal notice of the injury to his knee prior to his discharge from the Navy. Nor did he make a claim for compensation within 6 months of any of the incidents involving his right knee. Before deciding the substantive issues in this matter, the Tribunal must, as a preliminary matter, decide the issues arising from the application of s 16(1):

    ·first, if notice was not given, whether the failure to give the required notice is not prejudicial to the Respondent, or if it was the result of a mistake or other reasonable cause; and

    ·second, whether the failure to make the claim within six months of the accident was the result of mistake or reasonable cause.

11. If the Tribunal finds in favour of the Applicant on these issues, it will then proceed to determine the substantive issues, the principal issue being whether the tear to the meniscus in Mr McCarthy’s right knee arose out of or in the course of his employment with the Navy.

12. Section 9 of the 1930 Act states that the Commonwealth is liable to compensate an individual for personal injury arising out of, or in the course of, his employment by the Commonwealth. Mr McCarthy claims to have experienced two incidents involving injuries to his right knee during service. The question for the Tribunal is whether the right meniscal tear was the result of either of these incidents, being the injury on 18 December 1968 when he was hit on the knee by a hockey stick and the injury sustained on 11 February 1969 when he was running to his cabin in the rain. If the Tribunal decides that Mr McCarthy should be compensated for the injury to his knee, the further question is whether he should also be compensated for osteoarthritis of his knee, the subject of his more recent claim.

    THE FACTUAL EVIDENCE

13. Mr McCarthy provided statements dated 21 March 2013 and 25 March 2013 and gave oral evidence at the hearing. The Tribunal also had the benefit of Mr McCarthy’s Service Medical Records which were included in the Tribunal documents.

14. Mr McCarthy said he enlisted in the Navy at the age of 15 years and 9 months on 8 July 1967. On 18 December 1968, he was hit on the right knee by a hockey stick while playing hockey during a compulsory sport afternoon on the Base at HMAS Nirimba. He thinks it was this incident which was the starting point of the problems with his knee. Four or five days later, he went on leave, during which he does not recall any problems with his knee until the last day, Sunday 19 January 1969, when at the Hawkesbury River near Windsor he walked backwards and fell into the River, twisting his knee which locked in the water.

15. Mr McCarthy said Naval apprentices were told to get treatment at the time they had a medical problem and so his brother took him to Parramatta Hospital where he was treated as an outpatient and “given the all clear”. That evening, his brother drove him back to the Base and the next day he reported to the Sickness Quarters (the Sick Bay). He recalls having his knee bandaged and being given heat treatment. A Daily Medical Record dated 20 January 1969 completed by Lieutenant L Barnett, a Medical Officer at Nirimba, records a diagnosis of “Effusion R knee” and states that the injury happened when Mr McCarthy was:

    … walking backwards in water & R knee ‘came out’. Eventually went ‘back in’. No previous trouble. No previous damage.

16. Mr McCarthy’s recollection of exactly what happened 45 years ago is understandably hazy. He said he was one of about 600 apprentices. Normally, he would have been required to attend ‘parade’ and then marched off to class. On 20 January 1969, his knee probably would have been swollen, so he would not have marched but would have attended class.

17. Mr McCarthy thinks his knee “settled down” after the incident on 19 January 1969 although a Daily Medical Report dated 24 January 1969, completed by Lieutenant Barnett, refers to treatment continuing and to Mr McCarthy being excused from marching and doubling and sport. On 28 January 1969, Mr McCarthy was admitted to the Sickness Quarters at Nirimba for “Synovitis right knee” and discharged on 3 February 1969. Mr McCarthy could not recall whether he had further treatment after discharge but, on 7 February 1969, he was reviewed by Lieutenant Barnett who recorded the treatment as increased exercise and ‘IR heat’, noting that Mr McCarthy was excused sport and marching and doubling (Daily Record dated 7 February 1969).

18. On 11 February 1969, Mr McCarthy said he was running to his cabin on the Base in heavy rain when he felt a “crunch” in his right knee, his knee “locked up” and gave way. Mr McCarthy thinks his knee must have been coming good at this time because he was confident enough to run on it. After the incident, his knee had difficulty straightening and he could not walk at all. He thinks he was admitted to the Sick Bay but has no specific recollection of the treatment he received over the next week. Mr McCarthy regards this as the most serious of the accidents involving his knee.

19. A Daily Medical Record completed by Lieutenant Barnett on 11 February 1969 records a diagnosis of “Tear of R medial meniscus”, which occurred “while running to cabin in rain, knee ‘crunched’ and locked in flexion. Medial aspect pain.” An “In-Patient Record” completed by Lieutenant Barnett records that Mr McCarthy was admitted to the Sickness Quarters at Nirimba on 11 February 1969 and discharged on 14 February 1969 to light duties, and that the ‘final diagnosis’ was “Tear of right medial meniscus”. Lieutenant Barnett reviewed Mr McCarthy on 17 February 1969 when, in the Daily Medical Record, he noted “Some improvement”. However, on 26 February 1969, Lieutenant Barnett referred Mr McCarthy to an Orthopaedic Surgeon, Dr Selby Brown. In an ‘Out-Patient Record’ dated 28 February 1969, Dr Selby Brown diagnosed “Torn right medial meniscus” and booked Mr McCarthy in for surgery on 21 March 1969. Mr McCarthy said he thinks that he had ‘physio’ in the period before and after surgery to strengthen his leg muscles.

20. A Daily Medical Record completed by Lieutenant Barnett on 17 March 1969 on reviewing Mr McCarthy states “Exacerbation following fall on stairs at home”. Mr McCarthy said he has no recollection of this incident. An ‘In-Patient Record’, also completed by Lieutenant Barnett, records that Mr McCarthy was admitted to the Sickness Quarters at Nirimba on 17 March 1969 and discharged on 21 March 1969. The diagnosis stated was “Tear R medial meniscus – effusion R knee”. Mr McCarthy was admitted to the RAN Hospital at HMAS Penguin at Balmoral the same day and Dr Selby Brown performed a right medial meniscectomy on his right knee on 21 March 1969. This involved removing the meniscus from Mr McCarthy’s right knee. Mr McCarthy was discharged to the Sickness Quarters at Nirimba on 8 April 1969 where he received intensive physiotherapy and was discharged on 11 April 1969, having “progressed well”.

21. Mr McCarthy recalled having ongoing physiotherapy after the surgery, daily at first and then tapering off. A Daily Medical Record completed by Lieutenant Barnett on 29 May 1969 states that Mr McCarthy was “progressing very well now” and should “continue physio”. Mr McCarthy thought that by between about July and December 1969 his knee was probably no longer giving him trouble.

22. Mr McCarthy said when he was discharged from the Navy on 7 July 1976 he no longer had symptoms in his right knee. He had a medical examination on discharge but it was just cursory. After discharge, he played golf for about the first 10 years and walked when he could, but, as he was working shifts as an aircraft maintenance engineer and raising a family, his time for such activities was limited. In the late 1980s and 1990s he started getting sore knees and the pain gradually got worse. He stated that on 13 August 2002 he saw a GP about intermittent right knee pain that had been troubling him for about two years. The GP ordered x-rays. On 5 June 2004, he saw another GP at the same practice who referred him to Dr W Kuo, Orthopaedic Surgeon, and he had another x-ray. Dr Kuo advised him to have an arthroscopy which Dr Kuo performed on 28 July 2004.

23. Mr McCarthy said at that time he still had not made the connection between the earlier problems with his right knee when he was in the Navy, and it did not occur to him to consult a solicitor. On 28 January 2008, Mr McCarthy saw Dr Kuo again and he recommended that Mr McCarthy should reduce his working hours to stand a better chance of avoiding knee replacement surgery until after he turned 60. Mr McCarthy followed this advice and relinquished his full-time employment, instead working on a casual basis. He continued to work on this basis until October 2013 when he retired. As a result, he is no longer working.

24. Mr McCarthy said that in 2008 he responded to a newspaper advertisement and consulted a solicitor about making a claim, but was advised that he could not make a claim because the injury had occurred when he was on leave. In about July 2011, he attended a lunch for retired Navy personnel. In getting up from his chair he stumbled and another person at the lunch suggested that he should consult someone about making a claim. Mr McCarthy subsequently went to see an RSL advocate at his home and, on 5 August 2011, signed a compensation claim form for his right knee injury. He continues to experience pain and restriction of movement in his right knee.

25. Mr McCarthy was asked why he did not make an incident report to his supervisor or a claim for compensation at the time of his right knee problems in 1969. He said that at the time he was a 17 year old apprentice and “didn’t know anything”. He believed that being in the Navy meant that the Navy would look after him. He did not know anything about accident or incident reports or making claims for compensation. He does not think that accident or incident reports existed at that time: if you were injured, you were expected to go to the Sick Bay.

    MEDICAL EVIDENCE

26. The Tribunal was provided with expert reports from two Orthopaedic Surgeons, Dr James Bodel and Dr David Maxwell. Dr Bodel’s reports are dated 15 March 2013, 23 July 2013 and 12 September 2013. Dr Maxwell’s reports are dated 9 April 2013 and 18 June 2013.

27. In his report dated 15 March 2013, Dr Bodel stated that Mr McCarthy “suffered a torn medial meniscus in the region of the right knee as a consequence of the injury that occurred on 11 February 1969”. He said: “The medical entry on 24 January 1969 indicates no signs of meniscal damage but this does not exclude a meniscal tear. The meniscal tear was found surgically.” In his report dated 12 September 2013, Dr Bodel responded to a question of the significance of the “crunch” in his right knee when running to his cabin on 11 February 1969:

    The fact that there was a feeling of “crunching” followed by a locking of the joint in partial flexion indicates that something structural happened at that time, either by way of displacement of a previous torn meniscus or some other intra-articular body triggered by the “running to his cabin” causing that displacement of internal structures to lock the knee in a partial flexed position. As I have said many times before, that event could have caused additional structural damage, even if we assume that the right medial meniscus was injured in mid-January 1969, leading to the extension of that assumed pre-existing meniscal tear by the act of “running to his cabin in the rain”.

28. In his report dated 23 July 2013, Dr Bodel said he agreed with Dr Maxwell that the hockey incident is unlikely to have contributed to the osteoarthritis in Mr McCarthy’s right knee.

29. In his report dated 9 April 2013, Dr Maxwell said, in his opinion, Mr McCarthy “sustained a tear of the medial meniscus on 19 January 1969 when he twisted his knee while walking in the Hawkesbury River”. Dr Maxwell said “it would be very unlikely that a direct injury from a hockey stick would cause a medial meniscus tear, which usually occurs from a twisting injury”. He said:

    It is quite clear that prior to the incident while running to the cabin in the rain, he had an episode of locking of his knee at the time he first tore his right medial meniscus. … The incident while running to his cabin in the rain was merely an exacerbation of the pre-existing torn medial meniscus.

    Dr Maxwell said he does not consider that Mr McCarthy sustained any impairment to his right knee as a result of any injury on 18 December 1968 or on 11 February 1969. The injury which caused the torn meniscus was twisting his knee in the river.

1. In his report dated 18 June 2013, Dr Maxwell reiterated that Mr McCarthy tore his medial meniscus when walking backwards into the river: “Once the meniscus is torn, it can cause locking at any time, particularly when running or twisting.” Dr Maxwell said:

   I consider that Mr McCarthy would have required medial meniscectomy whether or not he had experienced symptoms while running to his cabin. Once the meniscus is torn, it always has the potential for flipping between the femoral and tibial joint surfaces, causing locking and irritation of the knee. Reasonable sized meniscal tears do not have a good potential for spontaneous healing because of the avascular nature of the meniscus. Therefore once he tore the meniscus on 18 January 1969, it would have continued to cause problems until he had the posterior horn of the medial meniscus excised.

2. The two expert witnesses gave evidence concurrently on the second morning of the hearing having had a brief discussion beforehand to identify areas of agreement and disagreement. They agreed that:

   ·The hockey stick injury on 18 December 1968 did not cause a meniscal injury nor lead to arthritis.

   ·The torn meniscus occurred on 19 January 1969 when Mr McCarthy twisted his knee in the River causing it to lock.

   ·Lieutenant Barnett’s note on 24 January 1969 that there were no signs of meniscal damage was incorrect. While some tests might have been negative, there were other signs suggesting there might be meniscal damage.

   ·Dr Selby Brown recorded locking at the time of the original injury lasting five days and “Two subsequent episodes of locking for 4 days” indicating an unstable meniscus.

   ·The ‘crunch’ while running to the cabin in the rain did not cause the tear. (Dr Bodel said this may have enlarged the tear.)

   ·There was an episode mentioned in the records of Mr McCarthy falling down the stairs.

   ·The torn medial meniscus excised any good recovery.

   ·Mr McCarthy developed medial compartment arthritis.

3. Dr Maxwell said that the only point of disagreement between he and Dr Bodel is whether the incident when Mr McCarthy’s knee locked while running to the cabin enlarged the tear. Dr Maxwell said that he thought the tear, likely to have occurred on 19 January 1969, was probably a large flat ‘parrot beak’ tear. Such tears do not heal themselves but need to have the torn portion surgically removed. Mr McCarthy’s recollection that this was the most significant of the incidents affecting his knee can be explained by reason of the fact that he was running at the time and that the locking of his knee was therefore more “violent” and more painful. Dr Maxwell said it is typical for a person with a flat meniscal tear to have recovered sufficiently to be able to run afterwards.

4. With regard to the osteoarthritis now affecting Mr McCarthy’s knee, Dr Maxwell said the surgical removal of the meniscus is the most likely cause. At that time in March 1969, it was accepted thinking that the whole meniscus should be removed. Given that Mr McCarthy’s left knee is asymptomatic, the surgery is likely to have made a significant contribution to the osteoarthritis.

5. Dr Bodel thought it more likely that the initial tear was a ‘bucket handle’ tear. The effusion following the incident on 19 January 1969 would probably have settled over 7 to 10 days. With regard to the incident on 11 February 1969, while it is unlikely that running would cause a new tear, the ‘crunching’ Mr McCarthy recalls suggests a greater severity for the incident and that it is likely that additional structural damage – an extension of the tear - occurred at that time. Dr Bodel noted that after 20 January 1969 the condition of Mr McCarthy’s knee settled and no further expert opinion was sought, whereas after the 11 February 1969 incident Mr McCarthy was referred for a specialist opinion.

6. Dr Bodel said osteoarthritis in the medial compartment of the knee is inevitable after such a meniscectomy. He noted that surgeons today try and remove only the torn part of the meniscus to avoid later onset of osteoarthritis. However, he agreed with Dr Maxwell that in 1969 removal of the whole meniscus was the accepted practice.

   SUBMISSIONS

7. Mr Mrsic, for the Applicant, said Mr McCarthy’s focus is on his osteoarthritis and the need for him to have a knee replacement. He noted that Dr Maxwell and Dr Bodel agree that the meniscectomy – the surgery performed by Dr Selby Brown to remove the torn meniscus – is the most likely cause of Mr McCarthy’s osteoarthritis.

8. Mr Mrsic submitted that the application of s 16(1) of the 1930 Act should be approached realistically given that the events in question occurred in 1968 and 1969, approximately 45 years ago. At that time, Mr McCarthy was a 17 year old apprentice who, in his own words, “didn’t know anything” and thought that if he was injured, his duty was to report this at the Sick Bay on the Base. This he did. Mr McCarthy gave evidence that he believed ‘the Navy would look after him’ and he had no reason to think there were other requirements with which he had to comply.

9. In any event, Mr Mrsic noted the evidence that on discharge from the Navy in 1976, Mr McCarthy was asymptomatic. The need to complete and lodge a claim for compensation did not arise.

10. Mr Hawker, for the Respondent, drew attention to the two separate and distinct requirements set out in s 16(1) of the 1930 Act. First, notice of the accident must be served “as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth”. Section 16(2) of the 1930 Act states that the notice “shall contain the name and address of the person injured, and a statement in ordinary language of the cause of the injury and the date at which the accident happened”. Mr Hawker submitted that Mr McCarthy did not give the required notice: at earliest, he gave notice on 5 August 2011 when he submitted his claim for compensation.

11. Addressing the proviso in s 16(1)(i), Mr Hawker submitted that the Respondent has been prejudiced by, amongst other matters: the lack of any accident or incident reports in relation to the incident of 11 February 1969, the lack of contemporaneous evidence of the incidents, including witness statements, the lack of evidence concerning Mr McCarthy falling down stairs on 17 March 1969 (in respect of which Mr McCarthy was admitted to the Sickness Quarters at Nirimba on 17 March 1969, being discharged on 19 March 1969, as recorded in an In-Patient Record completed by Lieutenant Barnett), which he states he cannot recall, and the loss of opportunity to arrange specialist medical examinations in the period from 1977 to 2011 after Mr McCarthy was discharged from the Navy and while he was working for other employers.

12. With regard to whether the ‘want, defect or inaccuracy in the notice’ was occasioned by mistake or reasonable cause, Mr Hawker submitted that the available evidence supports a conclusion that Mr McCarthy had no knowledge of the 1930 Act or of the requirement to give notice of the accident. However, ignorance of the law does not fall within the meaning of reasonable cause.

13. Second, with regard to the claim for compensation signed on 5 August 2011, and which Mr McCarthy failed to make within six months of the accident(s) occurring, Mr Hawker referred to the proviso in s 16(1)(ii), and submitted that ignorance of the legal requirement in s 16(1) to make a claim does not amount to mistake or other reasonable cause.

14. With regard to the substantive issue, Mr Hawker submitted that the tear of Mr McCarthy’s meniscus occurred while Mr McCarthy was on leave in January 1969 and did not arise out of or in the course of Mr McCarthy’s employment. The osteoarthritis Mr McCarthy suffers is a direct result of the treatment Mr McCarthy received for a non-compensable injury and, therefore, the Respondent is not liable for that disease under the SRC Act.

    DISCUSSION

15. Having heard the expert evidence, there appears to be no dispute that the incident on 18 December 1968, when Mr McCarthy says he was hit on the right knee with a hockey stick, was not the cause of the meniscal tear in that knee. Dr Maxwell and Dr Bodel agreed that the tear to the meniscus occurred on 19 January 1969 at a time when Mr McCarthy was on leave. The injury on this date did not, therefore, arise out of or in the course of his employment by the Commonwealth.

16. Where the experts disagreed was in relation to the incident on 11 February 1969 which did occur in the course of Mr McCarthy’s employment. Dr Maxwell stated that the incident on this date, when Mr McCarthy’s knee locked while he was running to his cabin in the rain, was caused by the already torn meniscus “flipping between the femoral and tibial joint services” causing the knee to lock and the crunching sound described by Mr McCarthy. Dr Bodel considered it likely that additional structural damage – an extension of the tear – occurred on this date.

17. In forming his opinion, Dr Bodel gave weight to Mr McCarthy’s recollection that the 11 February 1969 incident was the most significant of the three incidents he recalled, involving a crunching noise when the knee locked and causing the most pain. Dr Maxwell explained Mr McCarthy’s recollection of this being the most significant incident by reason of the fact that he was running at the time his knee locked. The locking, and resultant crunching, caused by the torn meniscus “flipping” into the joint, was therefore what Dr Maxwell described as more “violent” and more painful. In my view, Dr Maxwell’s explanation is the more persuasive.

    Notice

18. There is no evidence of Mr McCarthy giving formal notice of any of the incidents in which he says the knee was injured. He believed his obligation was to report such incidents to the Sick Bay on the Base and this he did. His service medical records, in particular those completed by Lieutenant Barnett, record his having reported the incidents on 19 January 1969 and 11 February 1969 to the Sick Bay at HMAS Nirimba. Mr McCarthy gave evidence that he had no knowledge of any requirement to give notice of such incidents beyond reporting injuries to the Sick Bay.

19. After the meniscectomy – the removal of the torn meniscus – performed by Dr Selby Brown on 21 March 1969, Mr McCarthy underwent rehabilitation, including physiotherapy, and over the period July to December 1969 appears to have made a good recovery. At the time Mr McCarthy was discharged from the Navy, on 7 July 1976, no associated symptoms are recorded. Mr McCarthy’s evidence is that he only began to experience problems with his knee in the late 1980s and 1990s when the knee became sore and gradually became more painful. He first consulted a doctor about this in August 2002.

20. Mr McCarthy said that, at that time, it had still not occurred to him that there was a connection between the knee pain he was experiencing and the problems he had with this knee while in the Navy. It was not until about 2008, in response to a newspaper advertisement, that he first consulted a solicitor about his knee problem and he was advised that he could not make a claim because the injury occurred when Mr McCarthy was on leave. Then, after a lunch for retired Navy personnel and at the suggestion of one of the others at the lunch, he consulted an RSL advocate who helped him complete a claim form.

21. Turning to the application of s 16(1) of the 1930 Act, noting that I prefer Dr Maxwell’s opinion as to what occurred on 11 February 1969 but assuming that Dr Bodel is correct and that additional damage to the meniscus in Mr McCarthy’s right knee occurred in the incident on 11 February 1969, there is no evidence of Mr McCarthy himself giving formal notice of the incident on 11 February 1969 “as soon as practicable” after it happened and before he voluntarily left the employment of the Commonwealth.

22. There is, however, case law pertaining to whether treatment in an Australian Defence Force medical facility can constitute notice for the purposes of s 16. In Muras and Department of Defence (1998) 52 ALD 579, the Tribunal held that mere admission to a naval hospital is not notice for the purposes of the Act. The fact that Mr McCarthy reported to the Sick Bay therefore does not, of itself, satisfy the requirements of notice.

23. Nevertheless, in Siemsen and Comcare [1999] AATA 871, the Tribunal found that the notice requirements were satisfied where the daily medical records of a naval medical facility specified the elements required in a notice by s 16(2). This was on the basis that the medical records would have been part of the RAN file held by the Commanding Officer. The specification of the matters required in s 16(2) on the medical records therefore constituted notice to the officer in charge of the Applicant’s employment (as per s 16(3)).

24. Section 16(2) of the Act specifies that notice must contain the name and address of the injured person, a statement in ordinary language of the cause of the injury, and the date of the accident. Most significantly, the entry of Dr Barrett in the medical record of 11 February 1969 states Mr McCarthy’s name, address (being HMAS Nirimba) and that the injury for which he treated Mr McCarthy occurred when his knee crunched and locked whilst running to his cabin in the rain. The requirements of notice in s 16(2) are likely satisfied.

25. I was not pointed to evidence of the procedure for the reporting of injuries to the Commanding Officers. Mr McCarthy could shed no light on this. As far as he was aware, all that was required was that he report to the Sick Bay. Nevertheless, considering that contemporaneous medical records satisfy the requirements of s 16(2), and making the reasonable assumption that the medical records would be placed on the personnel file with the Commanding Officer (satisfying s 16(3)), it is likely that the notice requirement is satisfied.

    Claim

26. However, Mr McCarthy did not make a claim for compensation within six months of the accident as required by s 16(1). With regard to the provisos to s 16(1), even if I were to accept that the notice requirement was satisfied, the failure to make a claim was caused by Mr McCarthy’s ignorance of the requirements of the law. The Full Federal Court decision in Commonwealth of Australia v Connors (1989) 86 ALR 247 (Connors) binds the Tribunal. Northropp and Ryan JJ said, at 250, referring to s 16(1) of the 1930 Act:

    From the authorities it is clear that in this context the word ‘mistake’ includes mistake of law as well of fact but that ignorance of the law in the sense of a failure to advert to the existence of a right to a claim, does not constitute, by itself, a mistake and cannot, by itself, constitute other ‘reasonable cause’.

27. As Mr Hawker pointed out, the decision in Connors has been followed by the Tribunal in cases such as Wallace and Comcare [2002] AATA 1131 and Hunt and Military Rehabilitation and Compensation Commission [2010] AATA 259. It is clear from the case law that a lack of awareness of the right to make a claim amounts to ignorance: Telstra Corporation v Roycroft (1997) 77 FCR 358, 364-5, 367.

28. In considering whether the failure to make a claim was the result of mistake or reasonable cause, the Tribunal must have regard to the period of six months referred to in s 16(1) of the 1930 Act; Muras and Department of Defence (1998) 52 ALD 579, at 584; Long and Comcare [2003] AATA 116, at [28]. Mr McCarthy stated that he did not submit a claim after the incidents in 1969 as he was not aware of the need to do so. All he was aware of was that, if he had an injury, he had to report to the Sick Bay. Although the symptoms to his knee had resolved by the time of his discharge from the Navy, the injury was a significant one, required surgery, and then physiotherapy for at least 3 months afterwards. I am satisfied, from the evidence, that Mr McCarthy did not make a claim within six months of the incident on 11 February 1969 because he was unaware of his right to make such a claim. In fact, he was unaware of the possibility of a claim until at least 2008. The Commonwealth is therefore not liable to pay compensation for the purported injury of 11 February 1969.

    Osteoarthritis

29. With regard to Mr McCarthy’s recent claim for compensation for osteoarthritis of his right knee, s 4(3) of the SRC Act states:

    (3) For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:

    (a) compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and

    (b) it was reasonable for the employee to have obtained that medical treatment in the circumstances.

30. There is no issue as to the reasonableness of the treatment, the meniscectomy performed by Dr Selby Brown, which both Dr Maxwell and Dr Bodel agreed was accepted practice at the relevant time. Moreover, both Dr Bodel and Dr Maxwell agreed that the surgery is likely to have made a significant contribution to the osteoarthritis affecting Mr McCarthy’s right knee. However, since the application of s 16(1) of the 1930 Act excludes liability for the payment of compensation for the alleged injury on 11 February 1969, the application of s 4(3) of the SRC Act means that the osteoarthritis affecting Mr McCarthy’s knee does not constitute an ‘injury’ for the purposes of the SRC Act.

31. Thus, I regret, as a result of the operation of the law, Mr McCarthy’s claims for compensation cannot succeed and the decisions under review must be affirmed.

    DECISION

32. The decisions under review are affirmed.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley

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

Associate

Dated 21 February 2014

Date(s) of hearing	6-7 February 2014
Date final submissions received	7 February 2014
Counsel for the Applicant	J Mrsic
Solicitors for the Applicant	Green & McKay Solicitors
Counsel for the Respondent	M Hawker
Solicitors for the Respondent	Sparke Helmore Lawyers