McLaren and Military Rehabilitation and Compensation Commission
[2008] AATA 43
•14 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 43
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W200600150
VETERANS APPEALS DIVISION ) Re JOHN STUART MCLAREN Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Mr S Penglis, Senior Member
Dr P Staer, MemberDate14 January 2008
PlacePerth
Decision Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal:
(a) sets aside the reviewable decision of the respondent dated 28 March 2006;
(b) decides in substitution therefor that the applicant is entitled to compensation pursuant to ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 calculated on the basis of a degree of permanent impairment of 10%..................[Sgd Mr S Penglis]..................
Senior Member
CATCHWORDS
Compensation - has applicant reached a level of impairment to warrant payment of permanent impairment compensation – whether injury “resulted” in permanent impairment – whether applicant prohibited from receiving compensation due to alleged wilful and false representation – applicant held to have suffered an injury which had resulted in permanent impairment warranting payment of compensation and was not prohibited from receiving such compensation by s 7(7) of the Safety, Rehabilitation and Compensation Act 1988.
LEGISLATION
Ss 4, 7(7), 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988.
CASES
Watkins and Comcare (2002) 69 ALD 498
Comcare v Amorebieta (1996) 66 FCR 83
Williams and Australian Postal Corporation (1998) AATA 12695
Stewart and Comcare (2003) AATA 27
REASONS FOR DECISION
14 January 2008 Mr S Penglis, Senior Member
Dr P Staer, MemberBACKGROUND
1. The applicant applied to enlist in the Australian Army Reserves in or about August 2003. He was accepted into the Army Reserves in November 2003.
2. The applicant immediately commenced recruit training at Kapooka where, some days later, he suffered an injury to his right knee.
3. Later that month, the applicant was discharged from the Army Reserves and made a claim for compensation for “injury to right knee” under the Safety Rehabilitation and Compensation Act 1988 (“SRC Act”).
4. In a determination dated 11 February 2004, a delegate of the respondent informed the applicant that, with respect to a “claim for compensation for an injury to right and left knee”,
“ …. on the basis of the available evidence, I determine that you have suffered an aggravation of a disease to which your military service contributed in a material degree, namely an underlying pre-existing degenerative condition affecting both knees, including a moderate effusion in the right knee and bilateral patellofemoral crepitus”
5. In a determination dated 16 December 2005, a delegate of the respondent held that the degree of whole person impairment had not stabilised at 10% or more by the application of Tables 9.2 or 9.5 and therefore denied liability to make a lump sum payment to the applicant.
6. The applicant requested a reconsideration, which a delegate of the respondent then undertook and published on 28 March 2006, being the reviewable decision.
7. In that decision the delegate of the respondent held that he was satisfied that the applicant suffered from an impairment “which is permanent and unlikely to improve”, but upheld the initial determination on the basis that
“I am not satisfied that you suffer from a whole person impairment of 10% or more and consequently you do not have an entitlement to compensation under ss 24 and 27 of the SRCA.”
THE ISSUES
8.In written submissions which Mr Clark, counsel for the respondent, provided to the Tribunal, the issues for determination were helpfully summarised as follows:
“1. Does the applicant reach the 10% level of impairment to warrant a payment of permanent impairment compensation?
2. By virtue of the application of s.7(7) of (the SRC Act) is the applicant prohibited from receiving permanent impairment lump sum compensation?
3. Did the applicant suffer an injury which has ‘resulted in permanent impairment’ (see the Act, s.24)?”
10% Level Of Impairment?
9. Pursuant to Table 9.2, the percentage whole person impairment is 10% if the applicant establishes (relevantly) a loss of less than half the normal range of movement of his knee.
10. Pursuant to Table 9.5, a finding of 10% whole person impairment is made out if the applicant can establish that he “can rise to standing position and walk but has difficulty with grades and steps”.
11. The applicant gave evidence to the effect that he has a loss of less than half the normal range of movement of his knee and adduced other non-expert evidence with a view to corroborating his evidence. Importantly, however, the applicant’s position in this regard was confirmed by medical evidence.
12. On 7 December 2005 the applicant was assessed by Dr Psaila-Savona for the purpose of his claim for permanent impairment. In his report dated 8 December 2005, at page 5, Dr Psaila-Savona wrote that:
“The right knee appears slightly swollen and it is very likely there is still effusion in the joint. However, he was able to flex the knee fully and extend it fully. The Lachman Test was negative.
Examination of the left knee revealed no abnormality. He had full flexion of extension and all movements were painless.
He was able to squat halfway down and said he could probably continue to do so but with difficulty. I did not ask him to kneel as he said that was painful.”
13. In his oral evidence before the Tribunal, Dr Psaila-Savona confirmed that he had carried out his testing according to the appropriate principles and procedures, as reflected in the Tribunal’s decision in Watkins and Comcare (2002) 69 ALD 498.
14. In his report of 14 December 2006, Dr Psaila-Savona noted that in a note dated 31 January 2006 (which post-dated Dr Psaila-Savona’s examination of the applicant) Dr Sacha Saralan wrote that the applicant “is able to get to about 120° of flexion, but with difficulty and with pain”. In this regard Dr Psaila-Savona wrote:
“With this finding (the applicant) would have qualified for a 10% whole person impairment under Table 9.2 since it indicates loss of less than half normal range of movement of the knee. However, this was not confirmed by my examination on 7 December 2005 and by other medical examiners on previous occasions”.
15. The note of Dr Saralan dated 31 January 2006 was admitted into evidence before the Tribunal, but the Doctor was not made available for cross-examination notwithstanding that counsel for the respondent wished to cross-examine the doctor. Accordingly, little weight ought be attributed to the Doctor’s note on its own.
16. The “other medical examiners on previous occasions” referred to by Dr Psaila-Savona were:
· an entry in the Palm Springs Medical Centre notes dated 14 December 2005;
· a “Compensation Claim for Permanent Impairment” form dated 1 November 2005;
· reports by Dr Anderson of Murdoch Orthopaedic Clinic dated 10 March 2004, 18 March 2004 and 7 October 2004.
17. As for the entry in the Palm Springs Medical Centre notes dated 14 November 2005, the relevant passages cited by Dr Psaila-Savona were:
“problem with knees – did Rally Australia on w/e, has had to strap his knees – has had to increase his Voltaren and PF”.
18. As to this the Doctor observed “this is hardly indicative of significant impairment qualifying under either Table 9.2 or Table 9.5”.
19. The Tribunal disagrees with the Doctor’s observation: the relevant note is neither consistent nor inconsistent with satisfaction of the relevant items of Table 9.2 or Table 9.5 that are under consideration as the matters noted are not determinative.
20. Dr Psaila-Savona also noted that on 13 September 2005 the applicant performed an ECG stress exercise test. The Doctor observed:
“Although clearly this was for assessment of his heart condition, the test indicates that he was able to exercise for 7.08 (presumably 7 minutes 8 seconds). There is no indication in the report of any difficulty in carrying out this test”.
21. Again the Tribunal does not consider this observation to be inconsistent (nor consistent with for that matter) with satisfaction of whether the relevant items of Tables 9.2 or 9.5 have been satisfied.
22. As for the 1 November 2005 “Compensation Claim for Permanent Impairment”, again this was a document before the Tribunal, but whose author was not presented for cross-examination: the author presumed to be Dr Saralan. In any event, the relevant notation was that the applicant had “extension of right knee not quite full (about 2-3° off). Flexion of both knees normal”. Of this Dr Psaila-Savona observed:
“It is difficult to measure 2-3 ° of lack of extension and I presume that the doctor had a feeling that the extension was not quite full. However, when I examined him a month later there was a full range of movement in both knees”.
23. The Tribunal does not find this note of assistance in determining the matter. It certainly does not support Dr Psaila-Savona’s views but the Tribunal does accept the doctor’s observation that it is difficult to measure 2-3 degrees of lack of extension. Given that, and given that the author of the document was not made available for cross-examination, this evidence is to be given little weight.
24. We then turn to the reports of Dr Anderson to which Dr Psaila-Savona referred stating:
“There is nothing in these reports which permits me to say that (the applicant) qualifies for a higher assessment of impairment under the abovementioned Tables”.
25. It would appear that in preparing his report dated 14 December 2006, Dr Psaila-Savona did not have a copy of Dr Anderson’s most recent report (dated 20 November 2006). In that report, Dr Anderson wrote, amongst other things, that he had that day seen the applicant “for an up-to-date assessment of his knees” and wrote:
“On the examination couch, I was able to demonstrate a good range of knee flexion to 120° in each knee. There was some associated patello-femoral crepitus and discomfort on the extremes of flexion but no knee effusion was evident today”.
As noted by Dr Psaila-Savona in his report (in reference to Dr Saralan’s note of 31 January 2006) a finding of 120 degrees of flexion would qualify the applicant for a 10% whole person impairment under Table 9.2 “since it indicates loss of less than half normal range of movement of the knee”. Notwithstanding, in his report Dr Anderson opined that the applicant “would at least be deemed to have a 10% disability in that his history as noted above has outlined difficulty with grades and steps”, making no reference in that regard to the applicant’s knee flexion or Table 9.2.
26. The most recent medical assessment of the applicant was performed by Dr John Bell, a consultant orthopaedic surgeon, on behalf of the solicitors for the respondent. He saw the applicant on 3 May 2007. Relevant to consideration of Table 9.2, Dr Bell wrote in his report dated 11 May 2007:
“The range of movement, when non weight bearing was reasonable with full extension and he lacked 20° of flexion on both sides. There was discomfort at the extremes of movement in both knees. McMurray’s test was negative on both knees”.
27. Notwithstanding, Dr Bell assessed the applicant under Table 9.2 as having 0% impairment in either knee.
28. Dr Bell gave evidence before the Tribunal and explained his conclusion as reflecting the fact that, having regard to the applicant’s history of problems with both knees, and the medical procedures that had been undertaken, he expressed a view that it is difficult to assess any significant permanent impairment of 10% or more under Tables 9.2 or 9.5 notwithstanding that the applicant lacks 20 degrees of flexion on both sides as he considered a lack of 20 degrees of flexion to be what would be expected from someone presenting with a history of knee problems such as the applicant’s and he therefore did not consider the activities during the Army Reserve training to have resulted in any impairment.
29. Although causation is certainly a factor to be considered in determining the applicant’s entitlement to compensation, as was rightly identified in the written submissions filed by counsel for the respondent, that is a separate issue from the issue of whether or not the applicant has reached the 10% level of impairment pursuant to the Tables. That exercise does not involve issues of causation: it is simply a determination of whether or not, as a matter of fact, usually assisted by expert evidence, one or more items of the Tables are satisfied.
30. The Tribunal therefore finds that the medical evidence substantiates the applicant’s evidence of a loss of less than half the normal range of movement of his knee, and the Tribunal therefore finds as a fact that to be so.
31. As for Table 9.5, again the applicant gave evidence to the effect that he had difficulty with grades and steps and adduced other non-expert evidence with a view to corroborating his evidence.
32. In his 20 November 2006 report, Dr Anderson wrote:
“I understand (the applicant) has previous (sic) been assessed regarding the question of ongoing disability. He presented me with two Tables, namely a Table 9.2 and a Table 9.5, relating to a disability assessment. He is concerned that he has been assessed as having no percentage disability, although based on Table 9.5 he would at least be deemed to have a 10° (sic) disability in that his history as noted above has outlined difficulty with grades and steps”.
33. In this regard the Tribunal notes that:
· there is nothing in the applicant’s “history as noted above” that outlines any difficulty with “grades and steps”;
· there is nothing in any of Dr Anderson’s reports to indicate any objective testing in this regard.
34. It was submitted on behalf of the respondent that it was not “without significance” that Dr Psaila-Savona was the only assessor to perform the necessary objective testing in this regard. The Tribunal had the benefit of the doctor’s oral testimony and he was cross-examined by the applicant. Not only does the Tribunal accept that Dr Psaila-Savona was the only assessor to perform the necessary objective testing, it was clear that such testing was detailed and thorough.
35. It was submitted on behalf of the respondent that the evidence of the applicant’s witness, Mr Wilcox, with whom the applicant walked, was inconsistent with the applicant’s evidence with respect to Table 9.5. Counsel for the respondent also urged the Tribunal not to forget that the applicant continues to work as a serving police officer with no physical restrictions.
36. Having considered all of the evidence in this regard, the Tribunal is, on balance, persuaded by the objective evidence given by Dr Psaila-Savona to that of the applicant and Dr Anderson. The Tribunal considered the evidence of Mr Wilcox in part to contradict that of the applicant but in other parts to support it. Accordingly, insofar as the applicant and his witnesses may have been inconsistent with the evidence of Dr Psaila-Savona, the Tribunal prefers the evidence of the doctor to the evidence of the others.
37. The Tribunal therefore finds that the applicant has not established any level of impairment pursuant to Table 9.5.
38. Finally on this point, the Tribunal notes that, on behalf of the respondent, it was submitted that:
“Issues of credit and reliability in respect of the applicant loom largely throughout this matter. On this specific point, the applicant conceded at the time of Dr Psaila-Savona’s assessment that he had no specific knowledge of what was contained in Tables 9.2 and 9.5. By the time of Dr Bell’s and Dr Anderson’s assessment, the applicant’s stated knowledge of the contents of the Tables had changed quite markedly”.
39. It is apparent from the reports referred to and the evidence given by the applicant in cross-examination that when the applicant met Dr Psaila-Savona he did not have specific knowledge of what was contained in Tables 9.2 and 9.5, but that this had changed by the time he saw Dr Anderson in November 2006 and Dr Bell in 2007.
40. This fact has been taken into account by the Tribunal in weighing up the competing evidence with respect to Tables 9.2 and 9.5 and is a reason, but not the only reason, why the objective and measurable evidence has been given greater weight than subjective evidence such as that given by the applicant and others on his behalf.
Section 7(7) of the SRC Act
41. S 7(7) of the SRC Act provides as follows:
“A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act. If the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilfully and false representation that he or she did not suffer, or did not prove he suffered, from that disease.”
42. When the applicant applied to enlist with the army, he filled in a questionnaire. In that questionnaire he disclosed that he suffered from knee injury or pain and had undertaken surgery to “any joint … or any limb”.
43. The focus of the respondent’s submissions in this regard, however, was the medical examination of the applicant which was undertaken by Dr Anne Durack on 20 September 2003 and which led her to record both knees as being “clinically normal”.
44. Dr Durack gave evidence before the Tribunal. She had no specific recollection of her consultation with the applicant and had been unable to locate any notes of her consultation.
45. Notwithstanding, the doctor gave evidence of what her normal method was when conducting an assessment of the applicant. The doctor’s evidence was that she would have asked questions clearly designed to elicit any history of knee problems. The doctor gave evidence to the effect that had she been informed of a prior history of knee symptoms including surgery, she would have referred the applicant for further orthopaedic assessment before concluding her assessment.
46. The respondent therefore submits that, having regard to the doctor’s usual practice and what she in fact recorded, “it can be safely inferred that no significant history of knee symptoms involving surgery was disclosed” as, had that occurred, the doctor, would not have noted the applicant’s knees as both being “clinically normal”. The respondent urges the Tribunal to find that the applicant was in fact asked questions designed to illicit any history of knee problems and that the only explanation for the doctor’s record that both knees were clinically normal was that the applicant wilfully and falsely misrepresented the position to Dr Durack.
47. Whilst the Doctor’s evidence as to her usual practice is accepted, that does not of itself mean the Tribunal should make a positive finding of the nature urged upon it on behalf of the respondent. Such a positive finding ought only be made if the whole of the evidence justifies such a conclusion.
48. In this regard, the Tribunal notes that Dr Durack was unable (understandably) to recall the applicant and therefore give any evidence as to what did in fact happen during the consultation. Moreover, the respondent was unable to produce the Doctor’s contemporaneous notes.
49. The Tribunal then turns to the applicant’s evidence. He emphatically denied being asked questions by Dr Durack. It was submitted on behalf of the respondent that such evidence should not be accepted in view of the Doctor’s evidence as to her usual practice and certain issues said to affect the applicant’s credibility, namely:
· his denial that none of the surgeons who operated on him alerted him to the fact that he was suffering from a degenerative condition;
· the applicant’s lack of access to workers compensation as a policeman;
· the cause of the applicant’s knee injury on 16 August 1998.
50. As to the first of these issues, it was submitted that there is evidence to indicate that when he was assessed by Dr Durack, the applicant was suffering from a disease, namely osteoarthritic degeneration of his knees. There is ample evidence to support that submission, and the Tribunal so finds.
51. It was then submitted that, having regard to the fact that he had previously undergone two arthroscopic procedures in respect of both knees, he must have known from the surgeons that operated on him that he suffered from such a condition and that therefore his denial on oath of such knowledge was “frankly patent nonsense”.
52. No evidence was adduced before the Tribunal from the doctors who operated upon the applicant, and there is no documentation before the Tribunal which the applicant would have seen prior to his assessment by Dr Durack from which it can be concluded that he in fact had been informed of his condition. Whilst one may well speculate that the applicant would have been informed of the condition by those who operated upon him, there is no proper basis by which the Tribunal can, having regard to the state of the evidence before it, reach such a conclusion by inference alone. Mere suspicion or speculation cannot give rise to the findings of fact: more is needed.
53. As to the second issue, the lack of access to workers compensation for a policeman in Western Australia who has experienced knee problems such as those suffered by the applicant may well (to use the words of counsel for the respondent) provide “a powerful motive to make a wilful and false representation regarding (the applicant’s) knee condition in any induction of medical examination”.
54. The existence of a motive to do so, however, is no basis, without more, for finding that a false representation was in fact made. Whilst it certainly provides a background against which the specific evidence must be considered – which is the course the Tribunal has adopted – it is of itself not a basis to reject any part of the applicant’s evidence.
55. In this regard the Tribunal notes that the applicant’s decision to join the Army reserves at 39 years of age, overweight and with prior troubles with his knees lend some weight to the proposition that the applicant joined the reserves for the sole purpose of claiming compensation for his knees where no compensation was available to him in the police force.
56. As to the third issue advanced in this regard, counsel’s written submissions couched it in the following terms:
“All of the contemporaneous records compiled by himself and his doctors all suggest that the perpetuating event was when he merely twisted his knee when alighting from a police car. The underlying theme of the respondent’s case is that the applicant has such pre-existing degenerative knees that he is likely to suffer temporary aggravations as a result of fairly inconsequential events. Yet in the face of these contemporaneous records in the period from August 1998 until March 1999, the applicant continues to insist that he injured his right knee (or both knees) during a fall (or falls) on a reef during a rescue of some fishing boat. This assertion by the applicant is plainly untenable and reflects adversely on his credit and reliability”.
57. The Tribunal agrees that, in his evidence before the Tribunal, the applicant sought to place greater emphasis as to the cause for his injury on 16 August on the rescue of a fishing boat off a reef in the afternoon of the same day that he had earlier injured his right knee when alighting from a motor vehicle. The documentary evidence before the Tribunal clearly establishes that at all times prior to the hearing the applicant referred to his injury being caused when alighting from a police car. In particular, the medical records refer to him injuring his knee as a result of alighting from a motor vehicle (and not when rescuing a fishing boat from a reef). The Tribunal therefore finds that the applicant has sought to minimise the impact of him being injured by simply alighting from a police vehicle and to maximise the impact of the subsequent rescue of the fishing vessel.
58. The Tribunal does not however consider this to warrant any general finding of credibility beyond this specific issue. The Tribunal carefully observed the applicant giving his evidence, including in cross-examination, and answering questions put to him by the Tribunal. The Tribunal has also considered the oral evidence of the applicant against the documentary evidence before it. The Tribunal was impressed by the applicant’s demeanour and the manner in which he gave evidence. His evidence was given in a forthright manner and, save for the exception which has been referred to, the Tribunal did not discern any attempt on the part of the applicant to craft his answers in a manner which he may have thought would best assist his application.
59. In the absence of any specific evidence from Dr Durack (or in documentary form) regarding her assessment of the applicant, and in light of the applicant’s denial of having been asked questions which, if asked, ought to have resulted in the applicant informing the doctor of his history of knee surgery, in the absence of any evidence to corroborate any suspicion as to the applicant having joined the Army reserves for the purpose suggested on behalf of the respondent and given the Tribunal’s findings with respect to the general credibility of the applicant, the Tribunal concludes that there is no proper basis on the evidence by which it could make a positive finding against the applicant of the sorts contended for on behalf of the respondent.
60. The Tribunal does not therefore uphold the respondent’s contentions in this regard.
61. For the sake of completeness the Tribunal notes that the applicant took exception to the submissions advanced on behalf of the respondent relating to the applicant’s credibility. Although the Tribunal has generally not upheld those submissions, the Tribunal notes that it considers the submissions to have been fairly made in the sense that a reasonable basis existed for the making of each submission.
Causation
62. S 24(1) of the SRC Act provides
“Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.”
63. S 27 of the SRC Act deals with the quantification of non-economic loss payable in respect of an injury under s 24.
64. Accordingly, in order to succeed in this matter, the applicant must establish that he suffered injury as an employee of the Commonwealth which has resulted in permanent impairment.
65. It was not seriously disputed by the respondent that the applicant has established that he suffered an injury whilst in the employ of the Commonwealth. In this regard the Tribunal notes that “injury” is defined in s 4(1) of the SRC Act to include
“an aggravation of a physical … injury … suffered by an employee (whether or not that injury arose out of, or in the course of the employee’s employment), or in an aggravation that arose out of, or in the course of that employment.
”
66. The Tribunal finds that on or about 12 November 2003, whilst in the employ of the Commonwealth, the applicant aggravated an existing underlying degenerative condition and thereby suffered an “injury” for the purpose of the SRC Act.
67. The respondent submitted, however, that “any impairment suffered by (the applicant) arises as a result of his non-compensable underlying constitutional degenerative condition and not as a result of his injury during recruit training”.
68. As it was put in written submissions provided by counsel for the respondent after the hearing of evidence:
“… the central tenet of the respondent’s case is that the applicant has an underlying degenerative condition which is prone to temporary aggravation from time to time which did not progress the underlying degenerative condition”.
69. A preliminary issue arising in this regard is whether it is open to the Tribunal to consider the issue (with the potential of finding in favour of the respondent) given that the determinations made on behalf of the respondent on 11 February 2004, 16 December 2005 and 28 March 2006, the latter being the reviewable decision, found in favour of the applicant on this point.
70. Where an applicant applies to the Tribunal to reconsider a decision, the whole of the decision is the subject of review by the Tribunal. In particular, the Tribunal is not bound by any part of the decision, and this is so irrespective of whether or not an applicant challenges all or only some parts of a decision. Accordingly, before a Tribunal is able to make a positive finding in favour of an applicant, it must be satisfied on the evidence before it that all requirements for compensation are made out. The Tribunal would be in error if it did otherwise.
71. In this case, the issue was raised on behalf of the respondent well prior to the hearing in its Statement of Facts and Contentions and in its Outline of Submissions. The Tribunal enquired of the applicant whether he was aware of the issue and able to deal with it. He said he was; as was indeed evident from correspondence to the Tribunal which was subsequently admitted into evidence, the applicant’s cross-examination of the respondent’s medical experts and the applicant’s own submissions to the Tribunal.
72. The Tribunal therefore concludes that, as a matter of law, it is empowered to (and indeed obliged to) consider the issue raised by the respondent and that, in doing so, procedural fairness has been accorded to the applicant.
73. Turning then to the evidence, the respondent relied primarily upon a written report of an orthopaedic surgeon, Dr Van der Rijt, and the report of Dr Bell.
74. Dr Van der Rijt was an orthopaedic surgeon who examined the applicant soon after suffering his injury during recruit training. He reported as follows:
“In discussion with Recruit McLaren I showed him other arthroscopic photographs and he indicates he had significant ‘scuffing’ in the articular surface. The description from Dr (sic) McLaren is of him having three compartment degenerative disease and this would be consistent with his current symptoms and physical findings. It is pertinent to note he has an effusion in both knees whilst the left knee is asymptomatic.
His diagnosis is an exacerbation of an underlying osteoarthritic change present in both knees. I consider the condition to be old and pre-existing and the exacerbation is related to the activities. This exacerbation will settle quickly with anti-inflammatory medication and modification of activities.
He is not fit for military training in the current or the long term. The working diagnosis is degenerative arthropathy and this will be exacerbated by military training. He will develop symptoms which will prevent him completing training.
He is not fit to continue with recruit training. He should take anti-inflammatory medication. He should undertake modified exercise focusing on quads strength and lower limb strength, utilising low impact activities such as bike riding, light gym training and hydrotherapy. He will recover from the current exacerbation in symptoms over this next six to eight weeks. He should be fit to return to his work as a police officer”.
75. As for Dr Bell’s report of 11 May 2007, counsel for the respondent referred specifically to the following:
“6.On the balance of probabilities, did the applicant’s employment with the Army Reserves make a material contribution to the applicant’s condition?
Although he describes specific injuries that occurred during his Army reserve training, he did have previous problems with both knees prior to the Army training and it is difficult to support his view that the Army reserve training made a material contribution to his continuing knee problems.
Capacity
7. The activities that the applicant is currently able to perform.
He is able to perform his duties as a police officer on a motorcycle. He is struggling to do so with problems in both knees.
8. The applicant’s fitness for pre-injury occupation or duties.
He is overweight with bilateral knee problems and struggling to perform his present duties and it is of concern that his knee problems will worsen with the passage of time.
Permanent Impairment
9. Whether the condition resulted in an impairment.
It is difficult to support the view that the activities during the Army Reserve training over a period two to four weeks has been significantly causative of the present problems in both knees and resulting in any impairment.
10. Whether the impairment is permanent.
He has permanent impairment in both knees which I believe is largely and significantly related to underlying degenerative changes and this does date back to injuries and operations prior to November 2003”.
76. On behalf of the respondent it was submitted that the Tribunal ought conclude that “there is no impairment contributable to what occurred in recruit training”.
77. The issue for determination is whether the injury has any causative (i.e. operative) effect on the permanent impairment to the applicant’s right knee.
78. Whilst the contemporaneous opinion recorded by Dr Van der Rijt that “this exacerbation will settle quickly with anti-inflammatory medication and modification of activities” is certainly supportive of the respondent’s submission, it must be considered along with the other evidence before the Tribunal.
79. As for Dr Bell’s report, it is notable that the Doctor did not opine that the Army Reserve training had no contribution to the applicant’s continuing knee problems. Rather, the Doctor’s opinion was couched in terms of “material contribution” (emphasis added). Moreover, the Doctor did not opine that it is difficult to support the view that the activities during the Army Reserve training over a period of two to four weeks has been to any degree causative of the present problems in both knees and resulting in any impairment, but rather expressed the view that it is difficult to support the view that such activity “has been significantly causative” (emphasis added).
80. Accordingly, Dr Bell has not purported to express a view that the injury suffered by the applicant during Army Reserve training has had no contribution to the applicant’s continuing knee problems or, put another way, is not causative of the present problems.
81. Generally speaking, the applicant’s medical history was not otherwise in contention. The applicant’s medical history prior to the incident at Kapooka was helpfully summarised in the respondent’s Statement of Facts and Contentions as follows:
“1. The applicant was born on 6 July 1964.
2.The applicant enlisted in the Royal Australian Navy (‘the Navy’) on 7 October 1980 and voluntarily discharged from the Navy in November 1988.
3.In an entry medical examination record dated 7 October 1980 the applicant indicated he had not suffered from any injury to his legs and was certified category 1 for enlistment.
4.In medical examination records dated 13 May 1983, 20 November 1983, 15 September 1985 and 10 June 1986, the applicant’s legs were examined and certified “normal”.
5.In an outpatient health record dated 21 January 1988, the applicant complained of right knee pain and was diagnosed with ‘right infra patellae bursa’.
6.An x-ray of both knees dated 29 February 1988 was reported as showing ‘joint spaces are maintained. No bony abnormality defined’.
7.In an outpatient record dated 29 February 1988, the applicant told Dr McWilliam, Orthopaedic Surgeon, that he first noticed swelling in his right knee on 22 December 1987. The right knee was aspirated on 14 January 1988 and some red liquid removed. Dr McWilliam made a provisional diagnosis of recurrent infra patella bursa right knee and recommended surgery to excise the bursa.
8.Surgery on the right knee was undertaken on 14 March 1988 and the excised bursa sent for laboratory examination.
9.In a test result dated 16 March 1988 the excised specimen was recorded as showing ‘wall of bursal cyst showing non-specific changes’.
10.In a report dated 15 April 1988, Flinders Lane Physiotherapy reported the applicant as having slightly reduced range of movement of his right knee. The applicant was also recorded as having ‘gait was very poor with limited knee control’ and ‘increased sensation lateral aspect of knee’. Treatment consisted of hydrotherapy, mobilisation of knee, the use of ultrasounds TENS, gait re-education and strengthening and proprioieptive exercises. Following treatment the applicant had some improvement but complained of pain during squatting and stair climbing. Further strengthening exercises were recommended.
11.In a report dated 12 May 1988, Flinders Lane Physiotherapy recorded the applicant as having a full pain free range of movement. The applicant said he had begun jogging with no ill effects and the only remaining problem was recorded as being difficulty kneeling due to pain across the scar area from surgery.
12.Dr McWilliam reviewed the applicant on 23 May 1988 and noted he still complained of pain on kneeling on the right knee (both on haunches and over the knee cap). Dr McWilliam expected the condition to improve slowly.
13.The applicant commenced seeing Dr Greenwell at Palm Springs Medical Centre in the middle of 1988. In the first consultation the applicant noted he had an operation on his right knee for a removal of patellar bursa.
14.In a discharge health statement dated 3 November 1988 the applicant was recorded as having; ‘knee pain’ on 9 March 1988 and was certified category 1 on discharge.
15.The applicant joined the Western Australian Police Force in 1990.
16.In a file note dated 23 January 1992, the applicant said that on 8 January 1992 he attended the Warnbro Medical Centre due to discomfort in his right knee. He was referred to Dr McWilliams at St Joseph Hospital, Bicton who, after review, thought there was no chipped bone and that discomfort was being caused by fluid under the right knee. Dr McWilliams said the likely cause of the injury was by excessive kneeling and playing with the applicant’s one year old daughter.
17.In a letter dated 23 November 1998, Dr Rod McLaren, orthopaedic surgeon, wrote he had reviewed the applicant for right knee pain. The applicant said he had suffered an injury on 16 August 1998 when he was getting out of a police car. On examination, Dr McLaren noted the applicant had some wasting in the right quadriceps and a tiny effusion. He recorded right medial joint tenderness with a full range of stable movements. Dr McLaren suspected the applicant had some medial meniscal disruption or damage to the articular surface of the medial femoral condyle. He recommended an arthroscopy.
18.In a report dated 3 December 1998, Dr McLaren noted he had performed an arthroscopy on the applicant’s right knee the week before. He found there was an area on the intercondylar side of the medical femoral condyle where the articular surface was quite scuffed up. There was also some fissuring of the lateral tibial plateau and an area of fibrillation and fissuring on the median ridge of the patella. These areas were smoothed over during the operation.
19.On 4 January 1999, Dr McLaren wrote that he had reviewed the applicant post surgery and the right knee continued to improve, but the applicant was still getting some anterior knee pain with activities which load the patello femoral joint. The Doctor thought the applicant was probably fit to return to work but may need to exercise caution with climbing activities. He was to continue with his exercise program.
20.In a review report dated 29 March 1999, Dr McLaren wrote that the applicant’s right knee continued to improve and was almost symptom free. The applicant said he was having some patella symptoms in his left knee which Dr McLaren thought probably related to a similar disruption in the left knee. Dr McLaren recommended the applicant continue with his exercise programme.
21.On 8 May 2001, Dr Peter Bath, orthopaedic surgeon, wrote that the applicant underwent arthroscopic surgery of his left knee on 30 April 2001.
22.In a note dated 5 November 2001, Dr Michael Halliday, orthopaedic surgeon, wrote that he reviewed the applicant on 27 September 2001. Dr Halliday said the applicant had a steroid injection into the distal radial ulnar joint of his wrist under image intensification but it made little difference to his symptoms. The applicant complained of ongoing pain over the ulnar side of the left writs. Initially he had problems with his left knee and in fact required surgery to the knee. He later noticed the pain in the left wrist”. (sic)
82. The applicant’s post-Kapooka medical history was helpfully summarised in the respondent’s Statement of Facts and Contentions as follows:
“44.The applicant was medically discharged from the Reserves on 27 November 2003 as a result of his right knee injury.
45.In a medical certificate dated 1 December 2003, Dr Greenwell certified the applicant unfit for duty from 1 December 2003 to 28 December 2003.
46.In a letter dated 22 December 2003, Dr Bath reviewed the applicant and thought that he should be fit to return to his normal police duties on 28 December 2003.
47.…
48.…
49.Dr Anderson performed arthroscopic surgery on the applicant’s right knee on 11 March 2004.
50.…
51.In a consultation dated 19 May 2004, Dr Greenwell noted the applicant’s right knee had a full range of movement with nil effusion.
52.The applicant underwent arthroscopic surgery to his left knee in October 2004. Dr Anderson noted that the applicant had a fairly significant problem in each knee at a relatively young age for which there was no simple surgical solution for any ongoing symptoms. Dr Anderson wrote that hopefully conservative measures would keep things under control.
53.In a consultation note dated 4 April 2005, the applicant complained of ongoing problems with both knees, especially his right knee which would lock. He was referred to Dr Anderson for review and recommended ongoing physiotherapy.
54.In a medical certificate dated 4 April 2005, Dr Michael Walsh certified the applicant unfit for reserve service from 4 April 2005 to 4 April 2006 and for the foreseeable future.
55.A CT scan of the patello-femoral joints dated 15 April 2005 was reported as showing ‘slightly reduced tubercle lateralisation and mild lateral patellar tilt on the left’.
83. In addition, the evidence is that Dr Anderson performed further arthroscopic surgery on both knees on 26 May 2005.
84. The evidence of the applicant was in effect that the problem with his knees has worsened since the injury he suffered at Kapooka. He says that the injury did not settle (let alone quickly) as evidenced by his subsequent medical history. He has returned to full time work as a police officer, but with modified duties to accommodate his knee problems (such as riding a motorbike rather than driving a police vehicle and spending more time behind a desk).
85. The evidence does not justify a finding that the “exacerbation” (to use Dr Van der Rijt’s word) of the applicant’s underlying osteoarthritic condition in both knees settled quickly and had no continuing effect. To the contrary, the Tribunal is satisfied on the evidence that the ‘exacerbation” (aggravation) of the underlying osteoarthritic condition has contributed to the permanent impairment of the applicant’s right knee: it has aggravated the effects of the underlying condition. The fact that such contribution is not material (or its causative role of the present problems is not significant) is not to the point: see, for example: Comcare v Amorebieta (1996) 66 FCR 83.
86. The Tribunal therefore finds that the injury suffered by the applicant in November 2003 has contributed to the permanent impairment of the applicant’s right knee.
87. Having arrived at that position, it is unnecessary for the Tribunal to further consider to what extent the degree of permanent impairment has resulted from the injury as:
(a)s 24(5) of the SRC Act does not have the effect of limiting the compensable degree of impairment to a degree of impairment proportionate to the cause or contribution of the work-place injury and excluding any pre-existing impairment: Comcare v Amorebieta (supra);
(b)no medical evidence was adduced before the Tribunal apportioning the contribution of the November injury to the symptoms now complained of by the applicant: see, for example, Williams and Australian Postal Corporation (1998) AATA 12695; Stewart and Comcare (2003) AATA 27.
88. The Tribunal therefore concludes that the applicant has suffered an injury which has resulted in permanent impairment warranting payment of compensation and that the applicant is not prohibited from receiving such compensation by s 7(7) of the Act.
I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member
Signed: ...........[Sgd C Skinner]...........
AssociateDates of Hearing 31 October and 1 November 2007
Date of final submissions 2 December 2007
Date of Decision 14 January 2008
Counsel for the Applicant Self-represented
Counsel for the Respondent Mr C J Clark
Solicitor for the Respondent DLA Philips Fox
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