Moore and John Holland Pty Ltd (Compensation) - [2016] AATA 571

Moore and John Holland Pty Ltd (Compensation) [2016] AATA 571 (3 August 2016)

Division

GENERAL DIVISION

File Number(s)

2014/6624

Re

Kevin Moore

APPLICANT

And

John Holland Pty Ltd

RESPONDENT

DECISION

Tribunal
Dr Damien Cremean, Senior Member

Date 3 August 2016

Place Melbourne
The Tribunal affirms the decision under review
[sgd]........................................................................
Dr Damien Cremean, Senior Member
COMPENSATION–injury — injury simpliciter — disease — pre-existing osteoarthritis—“aggravation”—“significant”— incapacity for work — decision affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth) sections 4, 5A, 5B, 14, 67.
Cases
Comcare v Riordan [2015] FCA 1166.
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 331 ALR 369.
Tippett v Australia Postal Corporation (1998) 27 AAR 40
Weigand v Comcare Australia [2002] FCA 1464.
REASONS FOR DECISION
Dr Damien Cremean
3 August 2016
Introduction

Application is made to review a decision dated 5 November 2014(“the reviewable decision”) made by the Respondent which, upon a reconsideration, affirmed a determination dated 26 August 2014 denying liability to pay compensation to the Applicant under the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) for a condition described as acute on [sic]chronic left knee pain.
The Applicant argues the reviewable decision is wrong in law and against the weight of the evidence.
The initial claim for compensation was lodged by him on 7 February 2014.
At the hearing conducted subsequently the Applicant gave sworn evidence.
Medical evidence was given by Mr Khan, Consultant Orthopaedic Surgeon Mr Doig, Orthopaedic Surgeon, Dr Kostos, Consultant Rheumatologist and Mr Haig, Consultant Orthopaedic Surgeon.
In what follows I provide an outline of the evidence of the Applicant and of each medical witness.
Outline of evidence
Applicant
The Applicant gave evidence that he is aged 65 and was born on 18 October 1950.
He is married with 3 children.
In his Witness Statement confirmed as true and correct with amendment the Applicant said he hurt his left knee while working for the Respondent on two occasions --on 17 October 2013(“the October incident”) and 6 February 2014(“the February incident”).
On 23 March 2016 he underwent full knee replacement surgery and was in hospital for 3 weeks.
He had commenced working for Freight Basis in 1971 in various roles including forklift driver, labourer and storeman. He finished there in the late 1980’s.
Then he went to work for Visy as a forklift driver and also as a machine operator and in the despatch area.
He left Visy in February 2006 and commenced working with the Respondent as a ‘peggie’ in about November 2008.
As a peggie the Applicant’s job was to maintain the toilets, the lunchroom areas and perform other tasks.
After a short break he re–started with the Respondent as a machine operator working on a regional rail link project.
The Applicant continued working for the Respondent until August 2014.
The Applicant says that over the years he has had quite a lot of knee problems in both knees. He has a long history of operations to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Moore and John Holland Pty Ltd (Compensation) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] AATA 571
Decision Date: 3 August 2016

CaseChat Overview and Summary

The matter before Senior Member Dr Damien Cremean concerned a claim for compensation by the Applicant, Mr Moore, against his former employer, John Holland Pty Ltd. The Applicant alleged that he suffered an injury to his left knee arising out of or in the course of his employment with the Respondent, or that his employment significantly contributed to an aggravation of a pre-existing ailment in his left knee. The Applicant had a long history of knee problems and multiple surgeries on both knees prior to his employment with the Respondent. He specifically identified two incidents during his employment: one on 17 October 2013 and another on 6 February 2014, which he claimed aggravated his left knee condition, ultimately leading to a full knee replacement in 2016.

The central legal issue for determination was whether the Applicant's left knee condition constituted a compensable "injury" under the relevant legislation, specifically section 14 of the Act. This required the court to consider whether the condition was an "injury" as defined in section 5A(1) of the Act, which includes either a physical or mental injury arising out of or in the course of employment, or a "disease" as defined in section 5B(1), which encompasses an ailment or aggravation of an ailment contributed to to a significant degree by employment. The court was also required to assess whether any such injury or disease resulted in an "incapacity for work" as defined in section 4(9) of the Act. The parties had made submissions following the High Court's decision in *Military Rehabilitation and Compensation Commission v May*, with the Applicant arguing that his condition was a disease by way of aggravation of an ailment significantly contributed to by his employment, and alternatively, that it was a physical injury under section 5A(1)(b).

The Senior Member reasoned that while the Applicant had sustained incidents during his employment that affected his left knee, he had not demonstrated a resultant incapacity for work. The evidence indicated that despite the incidents and ongoing knee issues, the Applicant continued to work and did not seek medical attention or time off immediately after the incidents, prioritising his earnings. The Senior Member concluded that the Applicant had not suffered an incapacity for work as a consequence of any injury or aggravation of an ailment arising from his employment with the Respondent.

Consequently, the Senior Member affirmed the reviewable decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In what follows I provide an outline of the evidence of the Applicant and of each medical witness.Outline of evidence Applicant The Applicant gave evidence that he is aged 65 and was born on 18 October 1950. He is married with 3 children. In his Witness Statement confirmed as true and correct with amendment the Applicant said he hurt his left knee while working for the Respondent on two occasions --on 17 October 2013(“the October incident”) and 6 February 2014(“the February incident”). On 23 March 2016 he underwent full knee replacement surgery and was in hospital for 3 weeks. He had commenced working for Freight Basis in 1971 in various roles including forklift driver, labourer and storeman. He finished there in the late 1980’s. Then he went to work for Visy as a forklift driver and also as a machine operator and in the despatch area. He left Visy in February 2006 and commenced working with the Respondent as a ‘peggie’ in about November 2008. As a peggie the Applicant’s job was to maintain the toilets, the lunchroom areas and perform other tasks. After a short break he re–started with the Respondent as a machine operator working on a regional rail link project. The Applicant continued working for the Respondent until August 2014. The Applicant says that over the years he has had quite a lot of knee problems in both knees. He has a long history of operations to both knees. The most serious would be his full left knee replacement in 2016. It appears he first hurt his right knee in 1989 when he fell at work and struck it against a steel grate. He injured his right knee again on a number of other occasions including in 1994 when he twisted it stepping in a hole while alighting from a forklift. In that year also he injured his left knee while at work when slipping from the step of a forklift. Then in 1999 he hurt his left knee again at work while handling sheets of cardboard on pallets. He had arthroscopic surgery on that knee following this in about May 1999. He had already had arthroscopic surgery on that knee in June 1995. In about April and December 2003, and also in December 2004, the Applicant had further arthroscopic surgery to his right knee followed by a half-knee replacement in May 2006. He then had arthroscopic surgery to that knee in October 2008. In November 2008 he underwent arthroscopic surgery on his left knee again. In March 2010 the Applicant believes he had arthroscopic surgery on both knees. A claim for impairment benefits in respect of his right knee was resolved in about August 2011. In the October incident the Applicant recalls hurting his left knee at work. He was rolling up some hose when he tripped on a tie bar and landed on his left knee and right wrist. He reported this incident but did not seek first-aid. He said that this incident was something he didn’t worry too much about and that it was nothing major. He said he didn’t feel too bad at the time. He did not however take any time off work after this due the good money he was earning. In his Statement he says: I didn’t want to take time off after the injury to go and see a doctor or physiotherapist. I was earning good money, and I might have lost income if I’d gone onto light duties. So I continued at work, although my knee kept playing up. He only visited a medical practitioner he said on 20 January 2014 when he went to see Dr Kumar of the Sunbury Medical Centre.

Decision

Reasons for decision

This of course is to his credit. But at the same time it shows he suffered no resultant incapacity after sustaining his injury.Conclusion. For the reasons I have given I am satisfied the reviewable decision must be affirmed.

Ratio Decidendi

Legal Principle Established

The Respondent argues that the Applicant did not suffer a compensable injury or aggravation of one arising out of or in the course of his employment with the Respondent or a disease or aggravation of a disease contributed to, to a significant degree, by his employment. Consideration By section 14 of the Act the Respondent is liable to pay compensation in accordance with the Act in respect of any injury suffered by an employee if the injury results in death, incapacity for work, or impairment. By section 4(9) of the Act an incapacity for work means an incapacity suffered by an employee as a result of an injury being an incapacity to engage in any work or to engage in work at the same level the employee was engaged in immediately before the injury occurred. An injury is defined in section 5A(1) of the Act as (a) a disease suffered by an employee or (b)an injury (other than a disease) suffered by an employee being a physical or mental injury arising out of or in the course of the employee’s employment. A disease is defined in section 5B(1) of the Act as an ailment suffered by an employee or an aggravation of such an ailment that was contributed to, to a significant degree, by the employee’s employment. An ailment is defined in section 4(1) as any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). The word aggravation is not defined in the Act but by section 4 (1) it includes acceleration or recurrence. A significant degree is defined in section 5B(3) of the Act meaning a degree that is substantially more than material. Matters that may be taken into account in determining this question include those set out in section 5B(2) and the list is not exhaustive. The question for me to determine is whether or not the correct or preferable decision is that the Applicant’s left knee condition is compensable under section 14. I see that condition on the evidence described generally as acute or chronic left knee pain. I am required to consider whether that condition should be regarded as an injury under the Act which has resulted in an incapacity for work. Both parties had the opportunity to make submissions after the hearing having regard to the decision of the High Court in Military Rehabilitation andCompensation Commission v May [2016] HCA 19; (2016) 331 ALR 369 when it was handed down and each party filed submissions accordingly. In those submissions the Applicant maintains the position that he has suffered an injury in the sense of a disease by way of an aggravation of an ailment and that such aggravation was significantly contributed to by his employment with the Respondent. The date of injury under section 7(4) of the Act is placed as 7 February 2014 which is the date of medical treatment and is also the date the claim was lodged. This submission relies on the definition of injury under the Act as being a disease suffered by an employee under section 5A(1) (a). It is submitted on the Applicant’s behalf that the decision in May has no real impact on this matter. It is argued in the alternative however that the Applicant has suffered an injury under section 5A (1) (b).

Division	GENERAL DIVISION
File Number(s)	2014/6624
Re	Kevin Moore
APPLICANT
And	John Holland Pty Ltd
RESPONDENT

Tribunal	Dr Damien Cremean, Senior Member
Date	3 August 2016
Place	Melbourne