O'Callaghan and Comcare (Compensation)

[2019] AATA 2511

O'Callaghan and Comcare (Compensation) [2019] AATA 2511 (13 August 2019)

Division:GENERAL DIVISION

File Number(s):      2017/4317

2018/1204

Re:Stephen O'Callaghan

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:13 August 2019

Place:Canberra

The decisions under review are affirmed.

........................................................................

Mr S. Webb, Member

COMPENSATION – right ankle injury claim – osteoarthritis - causation - nature and conditions of employment – reliability of applicant’s uncorroborated evidence – employment contribution not ‘to a significant degree’ – no physical injury in the primary sense – decision affirmed

COMPENSATION – psychological injury claim – psychological ailment not significantly contributed to by employment – no mental injury – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14

Cases

Flounders v Millar [2007] NSWCA 238
Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Repatriation Commission v Smith [1987] FCA 260
Sydney South West Area Health Authority v Stamoulis [2009] NSWCA 153

Secondary Materials

Anforth, Ballard and Sutherland, Annotated Safety, Rehabilitation and Compensation Act 1988 (Federation Press, 11^th ed, 2018)

REASONS FOR DECISION

Mr S. Webb, Member

13 August 2019

1. Stephen O’Callaghan was employed as a police officer by the Australian Federal Police (AFP) for more than 30 years. He played a number of sports, including first grade rugby league at the professional level. He developed a painful osteoarthritic condition in his right ankle. This prevented him from engaging in physical activities to the same degree and his psychological health deteriorated. He attributes his right ankle and psychological conditions to his previous AFP employment. He claimed compensation. Comcare determined to reject his claims by primary determination and on reconsideration.

2. Mr O’Callaghan has two active applications for review before the Tribunal: application 2017/4317 in respect of his psychological injury claim; and application 2018/1204 in respect of his claim that his right ankle condition is caused by the nature and conditions of his previous employment as a police officer. For ease of reference, I will refer to the Tribunal ‘T’ documents in application 2017/4317 as the ‘AT’ documents.

3. Prior to the hearing, I was informed that Comcare accepts Mr O’Callaghan’s right ankle condition significantly contributed to the psychological ailment he claims as an injury. Thus, if Mr O’Callaghan’s right ankle ailment is found to be a compensable injury for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), Comcare accepts that his psychological injury claim will also succeed (application 2017/4317). I understand Mr O’Callaghan accepts that the contrary also holds – if his right ankle injury claim fails, so too will his psychological injury claim. Having reviewed the relevant materials, I think it is appropriate to accept the concessions made by the parties. For this reason, the focus of the hearing was placed on Mr O’Callaghan’s right ankle injury claim and related evidence.

   BACKGROUND FACTS

4. Mr O’Callaghan played soccer from an early age until he was 13 years old, in 1971.

5. He played rugby league from the age of 12 or 13 until he was 33 years old.

6. On leaving school at the age of 16, he was apprenticed to a carpenter in Young.

7. From 1974 to 1980, he played rugby league in district teams in Young, Ulladulla and Queanbeyan, training twice each week and playing a district league game on the weekend. Mostly, he played in the position of Full Back or Five Eighths. He is right foot dominant, but kicked with either foot when playing.

8. From 1981 to 1987, he played 1^st Grade rugby league, professionally, for The Raiders team in Canberra. He played in the positions of Full Back and Five Eighths, although sometimes he played on the wing. During the season, he attended training three times each week and played a 1st grade game on the weekends. The season began in late January, with training and selections until February and games commencing in March, and it ended in September each year.

9. In the off-season period, he would play cricket and undertake physical training, involving running round ovals and performing ‘sprints’, as well as swimming, cycling and weights.

10. From 1988 to 1991, he undertook player and coaching roles with rugby league teams in Gungahlin and Collector.

11. Mr O’Callaghan gave evidence that he could not recall sustaining any injury to his right ankle in the course of undertaking these activities, although he recalled experiencing muscle corks on a number of occasions.

12. In 1981, he underwent a sesamoldectomy on the left foot. Mr O’Callaghan gave evidence that he hurt his left foot ‘walking barefoot and trod on something’.

13. On 25 May 1982, he completed a Statement of Personal Medical History in which he referred to ‘Football injuries’. The description of these injuries is not legible, although it refers in part to ‘corked thigh’.[1]

    [1] Exhibit 2, page 3.

14. He was found to be fit and subsequently, on 9 August 1982, he commenced employment as a Constable in the Protective Services Unit of the AFP in Canberra. In January 1983 he was temporarily transferred to a Shift Supervisor position in the Bureau of Criminal Intelligence. In May 1983, he applied and was recommended for transfer to the position of PT Instructor. It is not clear if the transfer occurred and, if so, how long he performed duties as a PT Instructor.

15. On 12 May 1986, he consulted the Canberra Sports Podiatry Clinic in respect of issues with his feet. The precise nature of the condition and the symptoms that caused Mr O’Callaghan to consult a podiatrist in 1986 are not clear on the present materials. Subsequent podiatry appointments are recorded on 2 October 1990, 11 May 1993, 21 January 1998, 30 April 2001 and 28 April 2003.[2]

    [2] Exhibit 11, page 5.

16. Mr O’Callaghan gave evidence that he was performing general policing duties at a shopping centre in 1992 and twisted his right ankle, after which he ‘limped around a bit’. He stated –

    I recall walking back from the job that we attended when I trod in a hole in the car park, twisting my right ankle pretty badly. I self-managed this injury as was the nature of how things worked back then and simply applied the RICE principle of rest, ice, compression and elevation.[3]

    [3] Exhibit 5, paragraph 3.

17. He says he did not report this incident, seek medical treatment or take time off work as a result. There are no contemporaneous records of this alleged incident.

18. Mr O’Callaghan’s evidence is that he sustained ‘a number of subsequent injuries to my right ankle particularly following the 1992 incident as that incident weakened my ankle’.[4] There are no incident reports or other contemporaneous records of any such injuries to his right ankle until 12 August 2009.[5]

    [4] Exhibit 5, paragraph 5.

    [5] See for example AT5, Exhibit 9 and AT25a.

19. There is an AFP Medical Record of Mr O’Callaghan experiencing bilateral foot symptoms in January 1994, including

    1. Tender R & L fasciitis

    2. R lateral heel…[6]

    [6] T57b, folio 194.

20. The extent to which, if at all, these symptoms relate to symptoms Mr O’Callaghan experienced in 1986, which caused him to consult a podiatrist, is not established on the present evidence. Furthermore, it is not clear if the note in respect of “R lateral heel” symptoms refers to symptoms that may be related to Mr O’Callaghan’s right ankle.

21. On 7 October 1994, Mr O’Callaghan consulted Dr Czoban, Police Medical Officer. The doctor noted –

    R lateral ankle pain; NB past history.

    …[7]

    [7] T57b, folio 194.

22. Details of the “past history” Dr Czoban noted are not clear. Dr Czoban reported –

    This member has bilateral feet problems with particular symptoms in the right ankle, requiring orthotics (which have given some relief) and more ankle support than is currently provided by elastic-sided Baxter boots.

    I recommend that he be provided with higher lace-up boots…[8]

    [8] Ibid, folio 193.

23. As can be seen, Mr O’Callaghan’s symptoms in 1994 were such that Dr Czoban considered more ankle support was required than the standard issue Baxter boots provided. This was so even despite Mr O’Callaghan obtaining some relief from orthotics. Mr O’Callaghan explained that Baxter boots did not cover the ankle or provide ankle support – the boots were of a pull-on kind, loose at the neck and rising only to the top of the ankle joint. His evidence is that Dr Czoban’s recommendation was refused.

24. On Dr Czoban’s report and clinical notes of consultations with Mr O’Callaghan in 1994, and Mr O’Callaghan’s history of podiatric appointments from 1986, the inference may be drawn that Mr O’Callaghan had a history of foot and right ankle symptoms at that time, reaching back to 1986.

25. Mr O’Callaghan stated that he consulted Mr Lee, a podiatrist at the “Walking Clinic” in 1994.[9]  Mr O’Callaghan’s evidence is that Mr Lee provided orthotics. Mr O’Callaghan explained that he used the orthotics when wearing the Baxter boots and the orthotics were up-graded ‘every few years’ thereafter.

    [9] Exhibit 5, paragraph 8.

26. In 1996, Mr O’Callaghan was transferred into the Special Operations Team (SOT). He was provided with Magnum lace-up boots. These boots provided better ankle support than the Baxter boots, as the Magnum boots extended two inches above the ankle joint and the laces could be tightened around the ankle. Of these boots, Mr O’Callaghan stated –

    From August 1996 I would wear the Magnum boots on a regular basis in both SOT and General Duties Policing. While there were a few incidents that caused discomfort, the boots had generally provided me with more comfort and confidence than the Baxter’s.[10]

    [10] Exhibit 5, paragraph 10.

27. In this SOT role, Mr O’Callaghan was involved in physical duties and three week-long training sessions, annually - ‘Validation weeks to maintain your qualifications and requalify’.[11] He stated that –

    … these involved retesting on firearms and safety tactics. It also included touch football on the parade ground at Weston, running, gym work, roping and fully kitted up assaults on the house we had built at Weston and Government Buildings awaiting demolition. There was also a week of navigation validation each year out in the bush (National Parks).[12]

    [11] Ibid, paragraph 11.

    [12] Ibid.

28. Mr O’Callaghan’s evidence is that the training sessions included ‘rappelling off buildings’, ‘hanging off four wheel drives’ and training in the bush with heavy packs in all conditions. He asserts that he refused to play touch football on frosty ground due to the risk of slipping and hurting his ankle.

29. Mr O’Callaghan does not recall any specific incidents involving his right ankle during these training sessions. His evidence is that even if he had experienced a right ankle injury he would not have reported it, as doing so may have caused him to be disqualified from the course and considered a ‘whinger’.

30. He does not recall an incident reported by Dr Hutton, treating General Practitioner, on 10 September 2002 – ‘S twisted left ankle during training for police physical’.[13] The doctor issued a medical certificate “for light duties until 30/9/02”, being a period of more than 2 weeks. There is no Incident Report pertaining to this incident.

    [13] AT5, folio 19.

31. In early 2003, just before the Canberra bushfires, Mr O’Callaghan says he joined the Special Response and Security (SRS) Team as a tactical operator. This role involved physical training sessions ‘at the beginning of each shift’[14], including games such as ‘flockey’ (an indoor hockey game) and touch football. Mr O’Callaghan was required to pass an annual physical test. The role involved elements of weight bearing, as the standard gear carried by each person amounted to approximately 30 kgs. He stated –

    16. Our daily routine would include commencing work at 8am, go for a run and then off to the gym. The SRS is [sic] those days were all about running. I did the runs initially on the bitumen roads around Weston with the rest of the team but after a while I found I would get sore ankles and knees so tried to avoid it. We also participated in pack marches with weighted backpacks through the bush. I also found that the yearly PT test did create additional pain in my ankles and knees. As stated above there were also organised activities such as Flocky and football but I stopped participating because it was slippery and I was worried I would roll my right ankle[15].

    [14] Exhibit 5, paragraph 13.

    [15] Ibid, paragraph 16.

32. Darren Mackereth, a colleague of Mr O’Callaghan’s at the time, stated –

    In regard to Steve O’CALLAGHAN I can recall that he did more gym strength work than others due to lower limb issues as the running caused him problems.[16]

    [16] Exhibit 1, paragraph 5.

33. The nature and circumstances of the ‘lower limb issues’ Mr Mackereth referred to, that caused running to be problematic, are not clearly established. It is not possible to go any further with Mr Mackereth’s statement, as he was not called to give oral evidence.

34. Mr O’Callaghan stated that, in the course of training, playing flockey, he stood on an ice-hockey puck and ‘rolled’ his right ankle. He was unable to continue with the game. Consequently, he experienced ‘pain, discomfort and difficulty performing my duties for some weeks after’.[17] He did not take time off work or seek medical treatment, but says he made an incident report and ‘limped around for a while’. He says he purchased an ankle support from a chemist, which he wore for ‘a couple of weeks’, and took painkillers. Mr O’Callaghan’s account of this alleged incident is unsupported by other evidence - there is no Incident Report or any other material to corroborate Mr O’Callaghan’s account of this alleged event in the materials before the Tribunal. On Mr O’Callaghan’s account, others must have witnessed the alleged incident in the course of training that day, but no such witnesses have been identified or called to corroborate his account. Mr Mackereth makes no reference to an incident of the kind Mr O’Callaghan alleges.

    [17] Exhibit 5, paragraph 13.

35. I note that Mr O’Callaghan has given inconsistent statements and evidence about this alleged incident. In his 28 May 2019 Statement, he said –

    “12. In 2002, I transferred to the newly formed Special Response Security Team…

    13. … I had previously participated in playing flocky and had badly rolled my right ankle.

    …

    16. … During a previous game of Flocky that I participated in some time in 2002, I recall that I rolled my right ankle which is why I stopped participating in this activity.[18]

    In his oral evidence, he asserted that he did not join the SRS Team until 2003, ‘just before the Canberra bush fires’, and he was adamant that the alleged incident, of rolling his ankle on an ice hockey puck, occurred sometime thereafter as he did not play flockey before joining SRS.

    [18] Exhibit 5, paragraph 12, 13 and 16.

36. Pausing at this point, it is curious to note that Dr Hutton recorded an injury to Mr O’Callaghan’s left ankle during training in September 2002, for which Mr O’Callaghan was placed on light duties for more than 2 weeks. Mr O’Callaghan denied any recollection of this incident and was, therefore, unable to describe the circumstances in which he injured his left ankle. Considering these matters and Mr O’Callaghan’s inconsistent statements regarding the alleged (but uncorroborated) right ankle injury, it appears to me that serious questions arise about the reliability of his evidence. These are matters to which I will return shortly.

37. In 2008, Mr O’Callaghan was issued with Danner boots, which provided ‘better support than the Magnum’.[19]

    [19] Exhibit 5, paragraph 19.

38. Notwithstanding the issue of Danner boots, Mr O’Callaghan ‘rolled’ his right ankle during training in the Namadgi National Park on 12 August 2009. He did not seek medical treatment and did not take time off work. He completed an Incident Report, in which he stated –

    Short Description       Trod in a hole and rolled over on my right ankle

    Full Description:

    While participating in a navigation exercise in Namadgi National Park I trod in a hole and rolled over on my right ankle. Resulting in pain in both my right ankle and knee.[20]

    [20] Exhibit 9, folio 9.

39. Thereafter, Mr O’Callaghan states he was unable to complete a Close Personal Protection course and he transferred to the AFP ACT Policing Firearms Registry in November 2009 and, subsequently, he was transferred to General Duties Policing at the Belconnen Police Station.

40. In records of medical consultations with his treating doctors in 2009 and 2010, there is no reference to him raising any issue with his right ankle while performing duties in these roles.

41. In January 2010, he underwent a hernia repair operation. Subsequently, in July 2010 and August 2011, arthroscopic procedures were carried out on his right hip.[21]

    [21] AT5, folios 28-32; See also Exhibit 10.

42. On 27 August 2010, Dr Matthias, a psychiatrist, reported on Mr O’Callaghan’s psychiatric state to Dr Hutton. In so doing, she reported that he had experienced stressors in his AFP employment, but did not refer to any injury or symptoms involving the right ankle.[22]

    [22] AT8.

43. It was in the context of rehabilitation following right hip surgery that Mr O’Callaghan asserts his right ankle ‘blew up’ and was painful.

44. On 20 October 2011, Dr Bathgate, a sports physician, reported –

    Stephen also reports today swelling and discomfort in his right ankle. This is most likely due to some underlying chondral damage from his years of football playing.[23]

    [23] Exhibit 10.

45. On 21 November 2011, Dr Hutton noted –

    hip is settling but RIGHT ankle is swollen and painful

    no injury

    current rx no meds exercising physio

    Objective:

    Bony swelling over lateral malleolus pain is midline

    Actions:

    Diagnostic imaging requested: CT RIGHT ankle[24]

    [24] AT5, folio 32.

46. Dr Hutton’s note refers to symptoms affecting the lateral part of Mr O’Callaghan’s right ankle. Dr Czoban noted symptoms in a similar location in 1994.

47. Mr O’Callaghan’s right ankle symptoms did not resolve.

48. On 22 November 2011, a CT scan was taken. This was reported to reveal significant osteoarthritic changes in Mr O’Callaghan’s right ankle.[25]

    [25] T4, folio 12.

49. On 5 April 2012, Dr Hutton noted –

    ankle pain stops him running or standing for long pain on moving to and from desk has seen Dr Klar and is going to have xr and mri[26]

    [26] AT5, folio 33.

50. On 18 April 2012, Dr Klar, an orthopaedic surgeon, reported –

    I reviewed Steve, who is a 54-year-old AFP member, on 30 March 2012, with end-stage varus osteoarthritis of his right ankle.

    He noted the pain starting in October 2011. Prior to that he does not recall any significant injuries to his ankle and he has had a right knee arthroscopy in 2001, and right hip arthroscopies in 2010 and 2011.

    On examination he has a neutral alignment of his hindfoot, his pulses are strong and he has a large exostosis developing over his fibula consistent with end-stage osteoarthritis.

    …

    It would seem likely that his work with AFP tactical policing over the last 15 years has contributed to the ankle arthritis.

    …[27]

    [27] T7 folio 16.

51. On 6 July 2012, an X-ray[28] and an MRI[29] were taken of Mr O’Callaghan’s right ankle. The X-ray was reported to show ‘moderate to severe ankle joint degenerative change’.  The MRI was reported to show –

    Moderate to severe ankle joint arthrosis. Previous tear of the ATFL with degenerative ossicles within the anterolateral gutter and below the medial malleolus.[30]

    [28] T8.

    [29] T9.

    [30] T9.

52. On 28 August 2012, Dr McNicol, an orthopaedic surgeon produced a report to Comcare, in which he diagnosed osteoarthritis of the right ankle and said –

    With respect to the right ankle it is my opinion that Mr O’Callaghan must have suffered injuries to the right ankle in the past. He denies this other than to say that at times he had giving way with his ankle wearing ill-fitting police boots.

    …

    It is my opinion that the right ankle condition was pre-existing but became symptomatic due to an altered gait pattern consequent upon the right hip conditioning.

    …

    It is my opinion Mr O’Callaghan has suffered previous trauma to the right ankle with injuries to the lateral ligament complex and possibly minor avulsion fractures at the same time.[31]

    [31] T11, folio 31.

1. On 7 September 2012, Dr Klar recommended right ankle fusion surgery.[32]

   [32] T12.

2. On 21 September 2012, Comcare determined to accept liability for ‘aggravation of osteoarthritis – localised – ankle or foot (right)’ under s 14 of the SRC Act.[33]

   [33] T14.

3. On 2 November 2012, Dr Sullivan, a foot and ankle surgeon, reported –

   He has severe ankle arthritis. He enquired today about an ankle arthroscopic debridement. This is not going to give him any benefit as he has bone on bone, grade four.[34]

   [34] T15.

4. On 5 January 2013, Mr O’Callaghan’s AFP employment ceased.[35]

   [35] AT10.

5. On 23 April 2013, Dr San Wong, a rheumatologist, reported –

   … While he was going through rehabilitation [relating to the right hip procedures] he had sudden ankle swelling with pain involving the ankle.

   …

   …The right ankle had previous injury, where he sprained it but never had other significant injury like fracture. He does not have any chronic pain problem. He did get intermittent discomfort on the ankle in the past but not to this severity.[36]

   [36] Exhibit 7, page 1.

6. On 25 June 2013, Dr San Wong reported ‘severe degenerative arthritis’ and requested a further MRI.[37] The MRI was taken and reported on 15 August 2013.[38] On 22 October 2013, Dr San Wong reported –

   … The MRI detect severe ankle arthritis with also some synovitis and joint effusion.[39]

   [37] T19.

   [38] T20.

   [39] T21.

7. On 17 February 2014, Dr Vecchio, a physician, reported to Comcare, stating –

   In my opinion, the right hip is irrelevant to the right ankle condition which has been separately traumatised over a period of time to result in very significant right ankle osteoarthritis. Whilst I do not have the specific details of the injuries that may have contributed to this, recurrent inversion and other injuries to the right ankle could have contributed to right ankle osteoarthritis.

   … Right ankle osteoarthritis, unrelated to the right hip condition but likely related to cumulative microtrauma and recurrent inversion and other injuries to his AFP employment.[40]

   [40] T27, folios 66 and 67.

8. On 25 March 2015, Dr Stubbs, an orthopaedic surgeon, reported to Comcare, stating –

   The question of the initiating factors of both the right hip and right ankle osteoarthritis is an interesting one. Mr O’Callaghan has no family history of these problems. He does have a brother who possibly has a seropositive inflammatory type arthritis but this is certainly not the kind of arthritis Mr O’Callaghan has. Both look to be post-traumatic in nature and are very well established at the time of initial presentation; they had been going on for at least a decade before Mr O’Callaghan presented.[41]

   [41] T35, folio 105.

9. On 14 March 2016, Dr Hutton reported to Comcare and said –

   Stephen O’Callaghan has longstanding accepted Comcare claims for osteoarthritis in his hip and ankle, he is particularly limited by his ankle, with daily pain, difficulty walking over uneven ground and generally limiting his activity. He is unable to walk greater than 1.5 km and cannot run or engage in previously enjoyed sporting activities such as cricket and horse training/trotting.[42]

   [42] AT17; AT19; See also T46.

10. On 7 July 2016, an MRI of Mr O’Callaghan’s right ankle was reported to show ‘degenerative changes of the ankle joint’, which are described in detail.[43]

    [43] T41, folio 136.

11. On 5 August 2016, Dr Lam, an orthopaedic foot and ankle surgeon, reported the following history in respect of Mr O’Callaghan’s right ankle condition –

    He was a member of the AFP. He did search and rescue work for a number of years. He had sustained multiple injuries to the right ankle during his time with the AFP. As a result he has developed right ankle arthritis. He reports increasing right ankle arthritis pain which is limiting his walking. He would like to be able to return to running activities.[44]

    [44] T42, folio 137; See Exhibit 8; See T45.

12. Dr Lam was not called to give oral evidence, so the basis from which this history was drawn could not be tested. Nonetheless, it is likely that it was drawn from information provided by Mr O’Callaghan.

13. On 15 August 2016, an X-ray and a CT scan of Mr O’Callaghan’s right ankle were reported to show –

    Moderately severe ankle joint OA with inferolateral tilting of the talus, loose bodies and marginal spurring predisposing to bony anterior and posterior ankle impingement. Posterior subtalar joint and talonavicular joint OA. Small plantar calcaneal spur.[45]

    [45] T43.

14. On 21 December 2016, Mr O’Callaghan claimed compensation for injury in the form ‘of “Anxiety, Depression due to workplace stress’.[46]

    [46] AT22, folio 80.

15. On 16 January 2017, Comcare determined to refuse this claim.[47] On 20 February 2017, Comcare issued a reconsideration decision, affirming its determination to reject Mr O’Callaghan’s psychological injury claim.[48]

    [47] AT23.

    [48] AT2.

16. On 17 February 2017, Dr Machart, an orthopaedic surgeon, reported to Comcare, stating –

    Diagnosis

    ...

    -    Right ankle osteoarthritis does not bare [sic] a relationship to the right hip. Anyone suggestion that altered gait caused osteoarthritis or symptoms of osteoarthritis in the right ankle I would disagree with. Altered gait would cause diminished weight on the right ankle rather than increase because of the nature of antalgic gait.

    -    - Looking at the potential or possible aetiology of the right ankle arthritis, this could be constitutional. In most cases ankle osteoarthritis follows injury. While Mr O’Callaghan reported that he suffered several twisting injuries to the ankle, it is reasonable to assume that the recurrent sprains were the cause of the osteoarthritis in the right ankle.

    -    …[49]

    [49] T48, folio 152.

17. On 22 May 2017, Dr Hutton concurred with this assessment.[50]

    [50] T52.

18. On 24 August 2017, Dr Kelman, an orthopaedic surgeon reported that Mr O’Callaghan’s right ankle osteoarthritis was post-traumatic in origin. He considered it ‘reasonable that posttraumatic osteoarthrosis is as a result of his policing career’.[51]

    [51] T53, folio 172.

19. On 28 August 2017, Mr O’Callaghan lodged a compensation claim in respect of a right ankle injury caused by ‘numerous micro-traumas from operational policing’ in AFP employment.[52] This claim has been referred to as a ‘nature and conditions’ claim.[53]

    [52] T54b, folio 179.

    [53] T54a, folio 175.

20. On 12 December 2017, Comcare determined to refuse the claim.[54] Comcare issued a reconsideration decision on 9 March 2018, in which it affirmed the determination rejecting Mr O’Callaghan’s claim.[55]

    [54] T55.

    [55] T58.

21. Mr O’Callaghan applied to the Tribunal for review of Comcare’s decisions to reject his psychological injury claim (application 2017/4317) and his right ankle ‘nature and conditions’ injury claim (application 2018/1204).

22. Subsequently, in the course of the resulting Tribunal proceedings, expert medical reports were obtained by the parties from Dr Saboisky, a psychiatrist;[56] Dr Oelrichs, a psychiatrist;[57] Dr Machart;[58] and Dr Kelman.[59] Dr Kelman and Dr Machart gave concurrent evidence at the hearing – related documents are in Exhibits 13, 14 and 15.

    [56] Exhibit 4.

    [57] Exhibit 3.

    [58] Exhibit 12.

    [59] Exhibit 11.

    ISSUES

23. In view of the agreement between the parties that Mr O’Callaghan’s right ankle injury claim is determinative of the success or failure of his psychological injury claim, which in my assessment is consistent with the materials, with my approval, the main focus of the hearing was squarely directed to the right ankle claim.

24. In that regard, the issue for determination is whether Mr O’Callaghan sustained an ‘injury’ to his right ankle for which Comcare is liable to pay compensation. Following Military Rehabilitation and Compensation Commission v May,[60] there are a number of elements –

    [60] [2016] HCA 19.

    (a)Is Mr O’Callaghan’s right ankle condition an ‘injury’ in the form of a ‘disease’ for the purposes of s 5A of the SRC Act? It will be a ‘disease’ under s 5B if it is –

    (i)an ‘ailment’ or an ‘aggravation of such an ailment’; and

    (ii)his AFP employment contributed to the ailment to a significant degree.

    (b)If not, did Mr O’Callaghan sustain an ‘injury (other than a disease)’ or an aggravation of an injury to his right ankle for the purposes of s 5A? He will have done so if -

    (i)he sustained a physical injury in the primary sense; and

    (ii)this is a physical injury ‘arising out of, or in the course of’ his AFP employment; or

    (iii)he sustained an aggravation of a physical injury; and

    (iv)the aggravation ‘arose out of, or in the course of’ his AFP employment.

    DISEASE

25. Comcare argues that Mr O’Callaghan’s AFP employment did not significantly contribute to his right ankle osteoarthritis. In Comcare’s submission, his right ankle osteoarthritis is, in all likelihood, post-traumatic in origin and it was well established at least 10 years prior to the alleged sudden onset of symptoms in August 2011. Comcare asserts that the available evidence establishes that Mr O’Callaghan did not take any time off work as a result of any traumatic incident involving his right ankle and he did not seek medical treatment for right ankle symptoms at any time from the commencement of his AFP employment in 1982 to August 2011.

26. Comcare argues that Mr O’Callaghan’s unsupported assertion that he experienced multiple micro-traumas affecting his right ankle when undertaking strenuous physical activities while assigned to SOT and SRS is not reliable and should be given no weight. In Comcare’s submission, his evidence is not sufficient to establish the existence of a substantial right ankle injury or repetitive minor traumas, or micro traumas, affecting his right ankle or foot during the period of his AFP employment. Furthermore, in Comcare’s view, the present evidence does not establish that Mr O’Callaghan undertook regular strenuous physical activities in his employment before he joined SRS in or about January 2003 – he undertook only infrequent strenuous physical activities when serving in the SRT from 1997. Comcare says that, absent proven physical injury or repetitive micro traumas at least 10 years before August 2011, none of these activities were sufficient to cause or aggravate ligamentous, musculoskeletal or osteoarthritic changes in his right ankle. Even though Mr O’Callaghan did sustain a right ankle injury while undertaking activities in SRS in 2009, Comcare argues that this injury could not have significantly contributed to Mr O’Callaghan’s right ankle osteoarthritis ailment, which was well established before 2001. For these reasons, Comcare urged me to conclude that Mr O’Callaghan’s right ankle osteoarthritis is not a ‘disease’ for the purposes of s 5A(1) and s 5B.

27. Mr O’Callaghan disagrees. In his submission, the operational duties he undertook in AFP employment involved strenuous physical activities in which his right ankle was affected by multiple, repetitive micro-traumas. He asserts that the micro-traumas are not confined to incidents in which he rolled or twisted his right ankle. He maintains that, even though he cannot recall details of many incidents in which he rolled or twisted his right ankle, he would have done so on many occasions. He states that, on each occasion, he would not have reported the incident, as it was not until he transferred to the SOT team in 1997 that the injury and incident reporting requirements were emphasised. Mr O’Callaghan asserts, furthermore, that he would not have taken time off work or sought medical treatment for such right ankle injuries, as to do so would have cost him training opportunities and would have caused him to be considered a whinger.

28. In Mr O’Callaghan’s submission, the operational duties and activities he undertook in AFP employment significantly contributed to his right ankle osteoarthritis or to the aggravation of that condition to the extent that his right ankle osteoarthritis is a ‘disease’ for the purposes of s 5A(1) and s 5B.

29. The test to be applied is set out in s 5A(1) of the SRC Act. In the first instance, for the purposes of s 5A(1)(a) in respect of a ‘disease’, s 5B applies –

    5B  Definition of disease

    (1)  In this Act:

    disease means:

    (a)  an ailment suffered by an employee; or

    (b)  an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

    (2)  In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

    (a)  the duration of the employment;

    (b)  the nature of, and particular tasks involved in, the employment;

    (c)  any predisposition of the employee to the ailment or aggravation;

    (d)  any activities of the employee not related to the employment;

    (e)  any other matters affecting the employee’s health.

    This subsection does not limit the matters that may be taken into account.

    (3)  In this Act:

    significant degree means a degree that is substantially more than material.

    Standard of proof

30. At this point, it is convenient to deal with submissions made for Mr O’Callaghan about the balance of probabilities standard of proof. The proposition pressed is that the language and proofs of medicine adopted by medical scientists, and medical experts giving evidence, are to be understood in a medical context, noting that standards of proof within a legal context adopt a different language. Where a medical scientist describes injury or disease causation in terms of possibility, that, so the argument goes, is a medical assessment, applying medical standards. A different causal test applies under the SRC Act – “decision-makers under the Act are only required to be satisfied that it is more likely than not that the work nexus played a causal role in the injury”.[61] Counsel for Mr O’Callaghan, Mr Anforth, made extensive submissions on this point, largely quoting passages he contributed to the Annotated Safety, Rehabilitation and Compensation Act 1988.[62] The extracts from judgements referred to therein are not controversial. Nevertheless, there are two fundamental points to be made.

    [61] Applicant’s Opening, 4 June 2019, [12] citing [68].

    [62] [2018], Anforth and Ballard and Sutherland, 11^th Edition, pages 772-773.

31. Firstly, the balance of probabilities test requires reasonable satisfaction in a legal context - it is a departure from scientific assessment. Under the SRC Act it is for a decision maker to apply the legal test of causation and, in so doing, the decision maker must consider and evaluate all of the evidence. Where the language of medical experts does not rise above possibility of causation in medical terms, it is for the decision maker to determine, in consideration of the evidence as a whole, if this possibility amounts to a probable cause in the legal sense. As Ipp JA clearly stated in Sydney South West Area Health Authority v Stamoulis[63]-

    A finding of causal connection may be made when the expert evidence does not rise above the possible; the question is always whether the evidence as a whole establishes causation on a balance of probabilities.

    [Citations removed].

    [63] [2009] NSWCA 153 at [138].

32. Secondly, where expert evidence does not provide clarity, the balance of probabilities reasonable satisfaction civil standard of proof may involve the drawing of inferences. But indefinite evidence or indirect inferences are not sufficient. An appropriate degree of confidence based on reason is required – “If the court is left to speculate about possibilities as to the cause of the injury, the plaintiff must fail”.[64] There is no authority for a decision maker under the SRC Act to simply choose between possibilities – reasonable satisfaction in a legal context requires more than conjecture, based on choosing between possibilities, theories or guesses of equal plausibility or likelihood on the ground that one seems more likely or probable than another. This is so even if a possibility is real rather than fanciful. As Beaumont J said when discussing the civil standard in Repatriation Commission v Smith[65] -

    There is, in this connection, a distinction of substance to be drawn between probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other.

    [64] Flounders v Millar [2007] NSWCA 238 at [35].

    [65] [1987] FCA 260 at [25].

33. Furthermore, reasonable satisfaction is a positive state arrived at on evaluation of evidence and the application of logic or reasoning. The point was succinctly put by Gyles JA in Sydney South West Area Health Authority v Stamoulis at [39] –

    The point remains that, in the absence of scientific clarity, causation may be found in arriving at legal responsibility by inference and with evaluative judgment, provided that actual satisfaction is reached and that, as was made clear in Travel Compensation Fund v Tambree [2005] HCA 69; (2005) 224 CLR 627, the finding is in accordance with principle and not a “value judgment at large” (per Gleeson CJ at [29]).

    Issues of credit

34. It is necessary at this point to deal with issues of Mr O’Callaghan’s credit. I have serious reservations about the reliability of his evidence and the accuracy of his memory.

35. Having heard Mr O’Callaghan’s evidence, it is quite clear his memory is faulty. He revised his evidence when closely examined on key points. There are inconsistencies in his evidence. For example, Mr O’Callaghan gave evidence that he could not recall consulting Dr Hutton having “twisted left ankle training for police physical” for which he was placed on light duties for two weeks in September 2002; whereas he asserts a clear memory of hurting his right ankle in the alleged ‘flockey’ incident in 2003 (despite alleging in his written statement that it occurred in 2002), even though he did not seek medical treatment for this alleged injury. Mr O’Callaghan gave evidence that it was his practice after joining SRS to lodge Incident Reports for all incidents involving injury, yet he did not lodge an Incident Report in respect of the alleged ‘flockey’ incident in 2003.

36. While it may be accepted that Mr O’Callaghan has real difficulties recalling precise details of events that occurred many years ago, his memory appears somewhat selective and the revision of his evidence in respect of specific alleged events smacks of convenience. Even if I am wrong about this, to my mind, Mr O’Callaghan’s uncorroborated evidence on controversial points must be treated cautiously - I will not reject his uncorroborated evidence on controversial points, but I will carefully assess the weight it should be given.

    Ailment

37. The word ‘ailment’ is given meaning by s 4(1) of the SRC Act –

    ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

38. There is no dispute Mr O’Callaghan suffers from physiological changes in his right ankle and related osteoarthritis. The specific changes are described in: CT scans taken on 23 November 2011 and 15 August 2016; X-rays taken on 6 July 2012 and 15 August 2016; and MRIs taken on 6 July 2012, 15 August 2013 and 7 July 2016. The changes, and the related diagnosis of right ankle osteoarthritis, are confirmed by the evidence of Dr Kelman, Dr Machart, Dr Vecchio, Dr Stubbs, Dr Klar, Dr Lam, Dr Sullivan, Dr McNichol, Dr Bathgate and Dr Hutton.

39. I am reasonably satisfied that the changes in Mr O’Callaghan’s right ankle are within the meaning of ‘ailment’ under s 4(1) of the SRC Act.

    Employment contribution to ailment

40. As will appear, considering the whole of the evidence, the circumstances and duration of Mr O’Callaghan’s AFP employment, and the physical activities he undertook outside that employment, the real possibility exists that his AFP employment may have contributed to his right ankle ailment but, on balance and applying the reasonable satisfaction standard, neither possibility is established by probative evidence or well-founded inference as a probability.

41. The medical evidence of Dr Kelman, Dr Machart, Dr McNichol, Dr Bathgate, Dr Vecchio and Dr Stubbs clearly establishes that the changes in Mr O’Callaghan’s right ankle are probably post-traumatic in origin, and they were well established and had been going on for well over a decade before the onset of persistent symptoms in or about August 2011.

1. From this it follows that the traumatic origin of Mr O’Callaghan’s right ankle osteoarthritis would have occurred well before 2001.

2. There is no independent evidence of Mr O’Callaghan sustaining any right ankle injuries prior to 12 August 2009 – the only evidence is Mr O’Callaghan’s own uncorroborated account, as recounted by doctors who have examined him from time to time since 2011. There is, however, material that establishes Mr O’Callaghan experienced foot and right ankle symptoms from 1994 and, by inference, from 1986. The circumstances in which these symptoms arose are not apparent on the present materials.

3. I note Dr McNichol’s observation on 28 August 2012 –

   Investigations suggest however that he may have had previous injuries to the right ankle including rupture of the anterior talofibular ligament and/or trauma resulting in some minor avulsion fractures particularly from the medial malleolus. Mr O’Callaghan denies previous ankle problems however.[66]

   [66] T11, folio 29.

4. The expert medical evidence of Dr Kelman and Dr Machart, which I accept, is that an injury of this kind would probably result in substantial pain and difficulty walking and performing work duties, in all likelihood necessitating a number of days off work or a period of reduced duties, at least. There is no reliable evidence that Mr O’Callaghan sustained a right ankle injury necessitating any time off work from the commencement of his AFP employment to 12 August 2009.

5. On the 7 October 1994 report of Dr Czoban, Mr O’Callaghan had “bilateral feet problems with particular symptoms in the right ankle” at that time. The doctor noted Mr Callaghan’s previous history – the inference may be drawn that this note refers to a previous history of symptoms that may be relevant to Mr O’Callaghan’s right ankle. If Dr Czoban thought that these symptoms were related to a work injury, perhaps the alleged incident Mr O’Callaghan described in his evidence as occurring in 1992, one might reasonably expect that he would say so – Dr Czoban was an AFP Medical Officer. But the doctor made no such suggestion. Applying the reasonable satisfaction standard, the present evidence does not establish that the foot and right ankle symptoms Dr Czoban noted in 1994 were causally related to Mr O’Callaghan’s AFP employment. The same finding can be made in respect of bilateral feet symptoms from 1986.

6. Mr O’Callaghan’s evidence, that he rolled his right ankle when stepping into a hole in a carpark in 1992, is not corroborated by other evidence. He did not lodge an Incident Report or seek medical treatment. He did not take any time off work. If the incident occurred, as Mr O’Callaghan alleges, it would appear to have been very minor. Mr O’Callaghan’s unsupported evidence about this alleged incident must be weighed in consideration of concerns I have expressed about the reliability of his memory and his evidence. I need go no further on this point, however, even if I accept Mr O’Callaghan’s account as true (and I make no such finding), it is not presently established by probative evidence that the incident significantly contributed to his right ankle osteoarthritis.

7. By Mr O’Callaghan’s own account, on transferring into the SOT team in August 1996, he was provided with Magnum boots that provided more ankle support, which he then wore on a regular basis. Notwithstanding this, he asserts that he experienced “a few incidents that caused discomfort”.[67] He was closely examined on this point, but his oral evidence was vague and shed no clearer light on the alleged ‘incidents that caused discomfort’ in his right ankle while undertaking operational or training duties wearing more supportive footwear. This evidence is not sufficient to establish that any incident affecting Mr O’Callaghan’s right ankle occurred or that, if it did, such incident significantly contributed to his right ankle osteoarthritis.

   [67] Exhibit 5, paragraph 10.

8. Mr O’Callaghan gave evidence of week-long strenuous physical training programs after joining the SOT team in which he asserts he hurt his right ankle but persevered without medical treatment or taking time off work – he could not recall specific details of any such alleged incident, however. Once again, Mr O’Callaghan’s uncorroborated evidence is not sufficient to establish that an incident affecting his right ankle occurred in the circumstances alleged, or that any such incident significantly contributed to his right ankle osteoarthritis.

9. As I have said, there are real concerns about the reliability of Mr O’Callaghan’s uncorroborated assertion that he rolled his ankle in 2003 when playing ‘flockey’ after transferring into the SRS team in or about January of that year. Despite his evidence that he lodged an Incident Report, no such report appears in the documents before the Tribunal. Setting aside doubts about the reliability of Mr O’Callaghan’s evidence, even if it were to be accepted that the alleged ‘flockey’ incident occurred, and I make no such finding, it is not presently established that this significantly contributed to cause or aggravate his right ankle osteoarthritis. Mr O’Callaghan acknowledges that he did not seek medical treatment and he did not take time off work. Furthermore, on the evidence of Dr Kelman, Dr Machart, Dr Stubbs, Dr Vecchio, Dr Bathgate and Dr McNicol, the alleged incident would have occurred after Mr O’Callaghan’s right ankle osteoarthritis was well-established, less than 10 years before the onset of enduring right ankle symptoms in 2011. The same can be said of the right ankle injury reported on 12 August 2009.[68] Dr Machart confirmed that Mr O’Callaghan’s right ankle osteoarthritis could not be attributable to an injury in 2009. Considering the expert evidence, I am not persuaded that the alleged incident in 2003 or the right ankle injury in 2009 significantly contributed to Mr O’Callaghan’s right ankle osteoarthritis.

   [68] Exhibit 9.

10. Mr O’Callaghan denies any incident affecting his right ankle during sporting activities outside employment, including when playing 1^st grade rugby league in the Canberra Raiders team from 1981 until 1987, and subsequently in player and coaching roles with rugby league teams until 1992. This, notwithstanding Dr Kelman and Dr Machart agreed that playing 1^st grade rugby league was probably the most significant contributing factor to the post traumatic changes and subsequent osteoarthritis in Mr O’Callaghan’s right ankle. Their assessment is consistent with Dr Bathgate’s opinion in 2011 that Mr O’Callaghan’s right ankle symptoms at that time were most likely due to underlying chondral damage from his years playing football.[69] Considering this, I accept Dr Machart’s evidence, with which Dr Kelman substantially agreed, that once the injury, that Dr McNicol identified had occurred, it was inevitable that Mr O’Callaghan would come to suffer right ankle osteoarthritis. It is more probable than not that this occurred in the context of Mr O’Callaghan’s sporting activities, but this is a matter I do not need to determine. The issue for the Tribunal to decide is if Mr O’Callaghan’s AFP employment contributed to a significant degree to his right ankle ailment.

    [69] Exhibit 10.

11. Dr Kelman gave evidence that Mr O’Callaghan’s activities in AFP employment may have contributed to the progress of the osteoarthritic changes in his right ankle. When questioned about this, the doctor explained that the physical activities Mr O’Callaghan undertook in his AFP employment were probably significant in accelerating degenerative processes of osteoarthritic change in his right ankle.

12. Dr Machart agreed this was possible, but considered any contribution would have been minor.

13. Dr Kelman’s opinion is consistent with opinions provided by Dr Vecchio, Dr Stubbs and Dr Machart (in his first report). It appears that Dr Vecchio, Dr Stubbs and, at least initially, Dr Kelman and Dr Machart were not provided with a full and complete history of Mr O’Callaghan’s sporting activities, and his professional engagement playing first grade rugby league for several years. Dr Vecchio and Dr Stubbs were not called to give evidence, so it is not possible to know if this information would cause them to alter their opinions. Dr Kelman adhered to his original opinion when fully apprised of Mr O’Callaghan’s sporting activities. Dr Machart did not.

14. Furthermore, it is quite clear that Dr Kelman and Dr Machart relied upon the information and history Mr O’Callaghan provided about his activities in AFP employment, including alleged incidents in which he asserts he hurt his right ankle.

15. As I have said, I have serious reservations about the evidence given by Mr O’Callaghan in respect of incidents affecting his right ankle he alleges occurred in the course of his AFP employment that are not supported by corroborating evidence. Nonetheless, even if the alleged incidents Mr O’Callaghan referred to in his evidence (including those in 1992, 1996 and 2003) were to be accepted in the terms he described, the extent to which these contributed to his right ankle osteoarthritis ailment is not clear cut. About this, there are two things to say.

16. Firstly, I am not persuaded that the alleged incidents Mr O’Callaghan asserts affected his right ankle during his AFP employment, taken separately or together, are likely to have significantly contributed to the traumatic physiological changes Dr McNicol referred to in 2012, namely rupture of the lateral ligamentous complex and some avulsion fractures to the medial malleolus in Mr O’Callaghan’s right ankle. On the evidence of Dr Machart, the rupture of ligaments and avulsion fractures would be unlikely to resolve in one or two days even with rest, ice, compression and elevation, and the resulting symptoms would be likely to prevent him from undertaking normal operation duties for days or weeks. Mr O’Callaghan took no time off work after each alleged incident in 1992, 1996 and 2003. His evidence of symptoms and incapacity is not consistent with an injury of the kind Dr McNicol described.

17. Secondly, the symptoms Mr O’Callaghan described would be consistent with minor right ankle injuries that did not prevent him from persisting with his normal operational duties. On the evidence of Dr Kelman and Dr Machart, the occurrence of such injuries may have contributed to degenerative osteoarthritis in Mr O’Callaghan’s right ankle. On their evidence, the extent of any such contribution would be affected by the frequency of incidents and the nature and intensity of forces involved. Dr Kelman and Dr Machart were in broad agreement that rotational forces or significant impacts, well in excess of the forces involved in common daily activities, may cause damage or micro traumas, especially in an already damaged ankle joint. Their evidence diverged, however, on the extent to which Mr O’Callaghan’s activities in AFP employment caused micro traumas in his right ankle and contributed to his right ankle ailment.

18. On this point, Dr Kelman explained that strenuous physical activities Mr O’Callaghan undertook in his AFP employment may have caused damage and micro traumas to his right ankle cartilage, and it is possible that these may have contributed to his right ankle osteoarthritis ailment. The nature, frequency and number of alleged incidents involving rotational force or significant impact on Mr O’Callaghan’s right ankle sufficient to cause micro trauma to the cartilage or any other part of his right ankle are not established. Considering Mr O’Callaghan’s evidence, the right ankle incidents he described over the period of his AFP employment are not frequent or severe (he did not require time off work after any of the alleged incidents). Furthermore, the precise nature, duration, frequency and intensity of strenuous physical duties Mr O’Callaghan says he undertook in his AFP employment are very far from clear. It is probable that Mr O’Callaghan undertook more strenuous physical activities under a daily training regimen once he transferred to the SRS team on a full time basis. This did not occur until 2003, at which time, on evidence given by Dr Kelman and by Dr Machart, his right ankle osteoarthritis was already well-established.

19. Thus, in large part, the activities Dr Kelman considered likely to have caused damage and micro traumas to Mr O’Callaghan’s right ankle, which he thought were likely to have made a considerable contribution to his right ankle osteoarthritis ailment, occurred after that ailment was well established. Furthermore, the activities and incidents on which Dr Kelman relies are drawn from MR O’Callaghan’s evidence, which in crucial regards lacks corroboration, detail and consistency.

20. For this reason, I prefer Dr Machart’s evidence that Mr O’Callaghan’s duties in AFP employment might have contributed to his right ankle ailment, but if there was any such contribution, it would probably have been minor.

21. In summary on this point, on balance, the present evidence does not establish that the nature and conditions of Mr O’Callaghan’s AFP employment, or any activities he undertook in the course of that employment, significantly contributed to his right ankle osteoarthritis.

    Employment contribution to aggravation of ailment

22. The next issue to decide is if Mr O’Callaghan’s AFP employment significantly contributed to an aggravation of his right ankle ailment.

23. There are two steps to consider: firstly, whether the evidence establishes that an aggravation occurred; and secondly, whether the employment is proved, on the balance of probabilities, to have contributed to the aggravation to a significant degree.

24. The word ‘aggravation’ is given meaning under s 4(1), namely –

    aggravation includes acceleration or recurrence.

25. On the evidence of Dr Kelman and Dr Machart it is possible that the right ankle incidents Mr O’Callaghan described, including the incident in 2009, may have contributed to the degenerative osteoarthritis in his right ankle. Dr Kelman thought these incidents may have added to osteoarthritic changes or accelerated degeneration of cartilage in Mr O’Callaghan’s right ankle, and that any such change would be significant and likely to advance the onset of symptoms. Dr Machart thought that the progress of osteoarthritic change in Mr O’Callaghan’s right ankle and the onset of symptoms were inevitable once the traumatic injury Dr McNicol described had occurred. In his opinion, minor traumas would not be likely to accelerate the rate of progressive degeneration of cartilage or to advance the onset of symptoms to a significant degree.

26. On balance, I prefer the evidence of Dr Machart on this point. Dr Kelman’s opinion proceeds on his assessment that the activities Mr O’Callaghan undertook in AFP employment contributed to physiological changes in his right ankle. There are four difficulties with this.

27. Firstly, the precise nature, frequency, duration and intensity of activities Mr O’Callaghan undertook are not established – the evidence addressing these matters is vague, imprecise and largely uncorroborated. So, too, is the evidence of any effect on Mr O’Callaghan’s right ankle.

28. Secondly, despite the lack of detailed evidence addressing such matters, Dr Kelman explained the forces required to effect physiological changes in Mr O’Callaghan’s right ankle (with which Dr Machart disagreed) would be consistent with the forces produced by the strenuous activities he undertook in his employment. On the present evidence, this is rather speculative.

29. Thirdly, in Dr Kelman’s assessment (with which Dr Machart agreed), the osteoarthritic changes in Mr O’Callaghan’s right ankle were well established more than 10 years before the onset of symptoms in 2011. There is no contemporaneous evidence of Mr O’Callaghan sustaining a right ankle injury prior to 2009, and the only evidence of right ankle symptoms before 2009 is the evidence of Dr Czoban in 1994.

30. And lastly, Dr Kelman’s opinion that the degenerative progress of right ankle osteoarthritis was accelerated, and the onset of right ankle symptoms was advanced, proceeds without a clear temporal frame – it is not presently established when Mr O’Callaghan sustained the right ankle injury Dr McNicol identified. Furthermore, Dr Kelman accepted that other factors may have affected the natural progression of Mr O’Callaghan’s right ankle osteoarthritis, including age. Without knowing when the originating right ankle injury occurred, the duration of consequent physiological changes, to cartilage for example, and the progress of degenerative osteoarthritic processes cannot accurately be assessed. The task becomes more complex when contributing factors, such as age, are considered. This notwithstanding, Dr Kelman adhered to his expert opinion that strenuous activities Mr O’Callaghan undertook in his AFP employment significantly contributed to aggravate his right ankle ailment. To my mind, the basis on which he did so is somewhat conjectural.

31. Considering these matters, while similar observations may be made in respect of aspects of Dr Machart’s evidence, I think his expert opinion is more cogent and logically consistent with the evidence as a whole, and it should be preferred.

32. On balance, it is not established that Mr O’Callaghan’s duties and operational activities in his AFP employment involved traumas to his right ankle, however described, which contributed to a significant degree to aggravate his right ankle osteoarthritis.

33. To be clear, even if it is accepted that Mr O’Callaghan hurt his right ankle while undertaking activities in his AFP employment, including incidents in which he rolled or twisted his right ankle, or that resulted in right ankle micro traumas, the balance of the medical evidence does not establish that these alleged incidents or traumas contributed to accelerate or ‘aggravate’ Mr O’Callaghan’s right ankle ailment to a degree that is substantially more than material.

34. Thus, having carefully considered the matters set out in s 5B(2), I am reasonably satisfied the nature and conditions of Mr O’Callaghan’s AFP employment did not contribute to a significant degree to cause or aggravate his right ankle ailment.

35. From this it follows that Mr O’Callaghan’s right ankle ailment is not a ‘disease’ under s 5B of the SRC Act.

    INJURY (OTHER THAN A DISEASE)

36. The next question is whether Mr O’Callaghan sustained an ‘injury (other than a disease)’ to his right ankle arising out of, or in the course of his AFP employment for the purposes of s 5A.

37. Comcare asserts that the question should be answered in the negative. In Comcare’s submission, the available evidence does not establish that the injury under claim arose out of, or in the course of Mr O’Callaghan’s AFP employment. Comcare argues that Mr O’Callaghan’s sporting activities, and playing rugby league in particular, are the probable cause of physical changes and subsequent osteoarthritis in his right ankle. The present evidence does not establish, so the argument goes, that the operational duties Mr O’Callaghan undertook in AFP employment caused or aggravated a physical injury to his right ankle that is causally related to osteoarthritic changes, or the progress of such changes, in that joint and associated physiological structures.

38. Mr O’Callaghan asserts that he sustained a number of rolling or twisting injuries to his right ankle, as well as repetitive micro traumas affecting that joint, in the course of his AFP employment. In his submission, these injuries and traumas are physical injuries, sufficient to cause or aggravate physiological changes in his right ankle. He argues that, at the very least, his operational duties in AFP employment materially contributed to cartilaginous and osteoarthritic deterioration in his right ankle and this, he says, is an ascertainable physiological change that is consistent with an injury for which he is entitled to be compensated.

39. The causal tests to be applied are set out in s 5A(1)(b) and (c) of the SRC Act –

    5A  Definition of injury

    (1)  In this Act:

    injury means:

    (a)  … ; or

    (b)  an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

    (c)  an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

    but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

1. As can be seen, an ‘injury (other than a disease)’ is confined to ‘a physical or mental injury’ ‘arising out of, or in the course of, the employee’s employment’. An ‘aggravation’ is similarly confined to ‘aggravation of a physical or mental injury’, where the ‘aggravation … arose out of, or in the course of the employee’s employment.

2. The phrase ‘physical or mental injury’ in this context refers to an injury in the primary sense, an injury simpliciter, being something that can be described as a sudden and ascertainable or dramatic physiological change, or a disturbance of the normal physiological state.[70] Considering this, the majority in Military Rehabilitation and Compensation Commission v May,[71] discussed the meaning of injury in the phrase ‘physical or mental injury’,[72] albeit in reference to legislation that is cast in different but comparable terms which is no longer in force, and said this of the significance of ‘suddenness’ -

   However, as the Full Court correctly held, "suddenness" is not necessary for there to be an "injury" in the primary sense. A physiological change might be "sudden and ascertainable". A physiological change might be "dramatic". The employee's condition might be a "disturbance of the normal physiological state". That an "injury" in the primary sense can arise, and can be described, in a variety of ways does not mean that "suddenness" is irrelevant. As the Full Court said, "suddenness" is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.

   [Original emphasis.]

   [70]Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45, per Gleeson CJ and Kirby J at [39].

   [71] [2016] HCA 19 at [47].

   [72] Ibid, per French CJ, Kiefel, Nettle and Gordon JJ at [44]-[49].

3. Thus, in order to properly determine whether an injury in the primary sense has occurred, it is necessary to carefully consider the precise evidence, fact by fact, of the nature and incidents of physiological change.

4. It does not follow, however, that any physiological change should be taken to be an injury in the primary sense for the purposes of s 5A(1)(b). Were that to be so, no adjectival qualification would be called for, and use of words such as ‘sudden’, ‘dramatic’ or ‘disturbance’ to qualify physiological change as an injury in the primary sense would be superfluous. Nor is it appropriate to resort to old conceptions of injury, involving accident or mishap, when construing s 5A of the SRC Act. The language of the section must be applied in its terms.[73] Quite clearly the words ‘other than a disease’ apply.

   [73] Kennedy Cleaning v Petkoska [2000] HCA 45, per Gleeson CJ and Kirby J at [22].

5. The natural progress of a disease (in the ordinary sense) may result in gradual deterioration without a sudden, identifiable or dramatic physiological change occurring, or without disturbance of the normal physiological state pertaining in the context of progressive disease. The occurrence of an identifiable event, such as a lesion, a rupture or a break or some other kind of dramatic or disruptive physiological change, may serve to differentiate a physiological change that may qualify as an injury in the primary sense from the natural progression of an underlying, closely related disease, although the extent to which an injury may reflect an identifiable event will depend on the particular circumstances.

6. Once it is established that a ‘physical or mental injury’ exists, then it is necessary to determine if that injury arose out of, or in the course of the particular employment. In order to meet this test a causal or temporal connection with the employment is required. An ‘injury (other than a disease)’ will exist if the requisite connection with employment is established.

7. The present evidence establishes that Mr O’Callaghan has post-traumatic osteoarthritis in his right ankle. On Dr McNicol’s 22 August 2012 report, it is probable that Mr O’Callaghan suffered right ankle injuries including rupture of the anterior talofibular ligament and some minor avulsion fractures particularly from the medial malleolus at some point in the past. Dr Machart gave evidence, with which Dr Kelman agreed, that an injury of this kind would not be caused by micro traumas, but could result from twisting or rolling the right ankle joint, and it would be expected to cause significant disabling symptoms, probably requiring time off work for several days. Mr O’Callaghan denies suffering an injury to his right ankle that caused him to take time off work during the period of his AFP employment; although his evidence is that he rolled his right ankle in 1992 and on subsequent occasions, but he did not require any time off work.

8. I accept the evidence of Dr Machart and I am reasonably satisfied that an injury of the kind Dr McNicol described would, in all likelihood, have resulted in pain, difficulty walking and some restriction of capacity to undertake operational police activities over a number of days at least, probably requiring time off work. I am not persuaded by Mr O’Callaghan’s uncorroborated evidence that he sustained an injury of this kind while employed by the AFP. Even if his account of the incidents he described is accepted, his evidence of the effect each incident had on his ability to function is not consistent with expert evidence of the probable effects of the injury Dr McNicol identified. It is not established, therefore, that any of the alleged incidents Mr O’Callaghan described, in which he says he hurt his right ankle during the course of his AFP employment, materially caused the physical injury Dr McNicol identified.

9. In 1994, Dr Czoban reported that Mr O’Callaghan was experiencing bilateral feet problems and “particular symptoms in the right ankle”[74]. The doctor’s notes refer to Mr O’Callaghan’s previous history. As I have said, the inference may be drawn that the history Dr Czoban referred to included a history of right ankle symptoms. It appears that Mr O’Callaghan attended the Canberra Sports Podiatry Clinic in 1986, 1990, 1993, 1998, 2001 and 2003. The extent to which these consultations related to right foot symptoms involving Mr O’Callaghan’s right ankle and associated physiological structures or changes is not presently established.

   [74] T57b, folio 193.

10. Nevertheless, the available evidence points strongly to Mr O’Callaghan experiencing right ankle symptoms soon after ending his rugby league activities in 1992 and experiencing problems with his ‘feet’ from 1986.

11. Considering this history, it is possible, even likely, that the right ankle injury Dr McNicol identified occurred before 1994. Dr Machart explained that some time would be required for osteoarthritis to develop after an injury of this kind – he gave evidence that the right ankle injury Mr O’Callaghan experienced in 2009 could not have caused the physiological changes observed on investigation in 2011 as insufficient time had elapsed. The amount of time that elapsed between the occurrence of the right ankle injury Dr McNicol identified and the onset of Mr O’Callaghan’s post-traumatic osteoarthritis is not established.

12. It is possible, but not established as a probability, that the right ankle injury underlying Mr O’Callaghan’s right ankle osteoarthritis occurred in 1992, when he says he rolled his right ankle at work, soon after he ceased active involvement in rugby league. Bearing in mind the serious doubts I have expressed about the reliability of Mr O’Callaghan’s evidence on key points, if he sustained a right ankle injury in 1992 as he alleges, it was not of sufficiently severity to require him to take any time off work and, by his own account, he continued with his normal operational duties, albeit that he “limped around a bit”.

13. On balance, the present evidence does not establish that the physical right ankle injury underlying Mr O’Callaghan’s right ankle osteoarthritis occurred during his AFP employment.

14. Much was said during the hearing about micro trauma. While it is conceivable that a micro trauma might be associated with physiological change, albeit, perhaps, at a minute or even microscopic scale, for this to constitute a physical injury in the primary sense, evidence is required to determine if the change is one that is sudden and ascertainable, dramatic or disruptive of the normal physiological state.

15. The present evidence does not rise to this level of particularity. All that can be said is it is possible that micro traumas occurred in Mr O’Callaghan’s right ankle during the course of his employment. The precise details of what those changes may have been and in what circumstances they occurred are not presently established.

16. I reach the same conclusion in respect of cartilaginous changes in Mr O’Callaghan’s right ankle. It is possible, even likely, that changes of this kind occurred during the course of his AFP employment, but the specific details of what occurred when are not established. On the evidence of Dr Stubbs, by 2012 the “osteoarthritis has reached a stage of subchondral bone formation and complete loss of articular cartilage”.[75] Dr Machart and Dr Kelman gave evidence that these physiological changes were long standing, having occurred more than 10 years before the scans were taken in 2011. By implication, these changes may have occurred at some point, or over some period, not yet identified or established, during Mr O’Callaghan’s AFP employment.

    [75] T35, folio 104.

17. In the context of post-traumatic, degenerative osteoarthritic disease (in the ordinary sense), it is not sufficient to prove that degeneration occurred over the course of 30 years employment when gradual progressive degeneration is the natural course of that disease. The extent to which changes of this kind may be considered as a physical injury in the primary sense or the natural progress of post traumatic osteoarthritis of indeterminate origin is a matter for evidence.

18. Dr Kelman and Dr Machart agreed that the natural course of Mr O’Callaghan’s right ankle osteoarthritis would result in gradual deterioration of the cartilage in his right ankle, leading ultimately to the “bone on bone”[76] “end-stage osteoarthritis”[77] that was identified in 2012.

    [76] T15.

    [77] T7, folio 16 – 17.

19. Applying the reasonable satisfaction standard, the present evidence, including the expert evidence of Dr Kelman and Dr Machart, does not establish that a primary physical injury to cartilaginous tissue in Mr O’Callaghan’s right ankle occurred during the course of his AFP employment; rather, the evidence suggests that the degenerative osteoarthritis in Mr O’Callaghan’s right ankle progressed with some inevitability, absent any sudden or ascertainable or dramatic physiological change occurring. While physiological changes may have occurred, albeit small in magnitude or microscopic in nature, the present evidence does not establish that such changes are consistent with occurrence of an injury in the primary sense.

20. For these reasons, Mr O’Callaghan’s assertion that he sustained a physical injury arising out of or in the course of his AFP employment is not made out and the test set out in s 5A(1)(b) is not satisfied.

    AGGRAVATION OF A PHYSICAL INJURY

21. The final issue for determination is whether Mr O’Callaghan sustained an aggravation of a physical injury (in the primary sense) that arose out of, or in the course of, his AFP employment for the purposes of s 5A(1)(c).

22. It is necessary to consider the evidence, fact by fact, of any aggravation of the physical or mental injury (in the primary sense). Where it is established that aggravation of a physical or mental injury (in the primary sense) has occurred, then it is necessary to determine if the aggravation arose out of, or in the course of, the employee’s employment.

23. This is not simply matter of deciding if his right ankle osteoarthritis was accelerated by or became worse during his AFP employment. Mr O’Callaghan’s right ankle osteoarthritis is not an injury in the primary sense, rather it is a degenerative condition more akin to an ailment or a disease (applying the ordinary meaning of those words). That said, an aggravation of a physical injury may arise in circumstances where the effects of the injury are accelerated, recur, or are in some way worsened or intensified. Changes of those kinds may relate to the progress of post traumatic osteoarthritis.

24. On the question whether operational activities Mr O’Callaghan undertook in the course of his AFP employment accelerated the deterioration of cartilage or aggravated his right ankle osteoarthritis, Dr Kelman and Dr Machart agreed that this was possible.

25. Dr Kelman explained that, in his opinion, strenuous physical activities, particularly activities involving running, jumping, carrying weights, rappelling from buildings or traversing uneven ground, and activities in which Mr O’Callaghan’s right ankle twisted or rolled, would be capable of accelerating or worsening deterioration of Mr O’Callaghan’s right ankle cartilage. In his opinion, the activities and incidents Mr O’Callaghan described would probably be sufficient to have had this effect and can be said, therefore, to have aggravated his right ankle osteoarthritis.

26. This evidence raises the possibility that Mr O’Callaghan’s right ankle osteoarthritis and the degeneration of his right ankle cartilage may have been accelerated by activities he is assumed to have undertaken in his AFP employment, but the possibility only rises to a level of probability if the assumed facts are true and the particular details support or are consistent with the occurrence of an aggravation when precise mechanisms of cause and effect are analysed.

27. While in some regards the ‘natural progress’ of right ankle osteoarthritis may be an abstract or general notion, for present purposes it is a phenomenon to be assessed in the particular circumstances of Mr O’Callaghan’s case, with an eye to contextual factors, such as his age and family history. Clearly enough, the ‘natural progress’ of right ankle osteoarthritis may vary from person to person, and it may be affected by activity. The conception of ‘natural progress’ is one that takes account of usual daily activities – I struggle to comprehend the concept of ‘natural progress’ of right ankle osteoarthritis if one is to exclude usual activities in the particular case.

28. Other than the general proposition that strenuous physical activity may accelerate the natural progress or deterioration of right ankle osteoarthritis, the basis on which Dr Kelman concluded that Mr O’Callaghan’s activities in AFP employment accelerated, worsened or aggravated his right ankle osteoarthritis requires careful consideration. As I understand his evidence, the aggravating mechanism is the occurrence of rotational or high impact force during strenuous physical activities causing more rapid degeneration of right ankle cartilage. While this may readily be understood in general terms, it is necessary to consider the particular circumstances of Mr O’Callaghan’s case, and doing so is not assisted by vague or imprecise evidence about physical activities he undertook, and assumptions or speculation about the resulting effect of such activities on his right ankle.

29. Mr O’Callaghan’s post-traumatic right ankle osteoarthritis would be expected to progress, naturally, in the context of usual daily activities, including activities in which he commonly engaged such as walking, running, jumping and carrying weights. It is possible that some of the operational activities he described, beyond his usual activities, may have involved significant impact on his ankle, but there is very scant evidence about the precise nature, duration, frequency and intensity of such activities, and no precise evidence of the forces that were likely to have been involved. I am not persuaded that the assumed facts Dr Kelman relied upon are proved with sufficient particularity to enable a proper assessment of cause and effect when determining, on the balance of probabilities, if an aggravation has occurred.

30. Dr Machart gave evidence that, following the post traumatic onset of osteoarthritis many years ago, progressive deterioration of the cartilage in Mr O’Callaghan’s right ankle was inevitable, leading ultimately to the bone on bone end stage that became symptomatic in 2011. In his opinion, this eventuality was just a matter of time. Dr Machart explained that the progress of Mr O’Callaghan’s right ankle osteoarthritis might have been accelerated by activities in his AFP employment, but only if the activities involved significant rotational or high impact force upon his right ankle, such as jumping out of a multistorey building, or frequent trauma. In his assessment, the activities and incidents Mr O’Callaghan described, which did not require medical treatment or any time off work, did not involve sufficient force or impact and were not of a kind likely to have caused any acceleration of the natural progress of his right ankle osteoarthritis. Dr Machart explained that the ankle joint and cartilage are structures that cope with significant force involved in usual activities, including walking, running, jumping and carrying weights. While twisting and rolling forces on the ankle structure may cause ligamentous and other damage, in Dr Machart’s view, the few incidents Mr O’Callaghan described of rolling his ankle, and the training activities he described in the SOT and SRS teams, were not likely to have accelerated or worsened degeneration of the cartilage in his right ankle or accelerated his right ankle osteoarthritis.

31. On balance, I prefer the evidence of Dr Machart on this point. He set out a clear rationale addressing the evidence, without speculation or unsupported assumptions. His evidence that significant force would be required to accelerate cartilaginous deterioration or to aggravate the osteoarthritis in Mr O’Callaghan’s right ankle is compelling.

32. On balance, considering the whole of the evidence, I am unable to reach a state of reasonable satisfaction that Mr O’Callaghan sustained an aggravation of a physical injury to his right ankle arising out of or in the course of his AFP employment. It is not established, on the balance of probabilities, that his right ankle osteoarthritis was accelerated, worsened or otherwise aggravated by or in the course of his duties in AFP employment. It is also not established as a probability that any acceleration, worsening or aggravation of his right ankle osteoarthritis arose out of or in the course of that employment.

33. From this it follows that Mr O’Callaghan’s assertion that he sustained an aggravation for the purposes of s 5A(1)(c) of the SRC Act is not made out.

    CONCLUSION

34. Mr O’Callaghan’s assertions that the nature and conditions of his AFP employment significantly contributed to the osteoarthritis ailment in his right ankle, or the aggravation of that ailment, are not made out on the present evidence.

35. In all likelihood, Mr O’Callaghan sustained a primary injury to his right ankle in which ligaments were ruptured and avuncular fractures were sustained. It is not established that this injury occurred in the course of his AFP employment. It is probable that it gave rise to the onset of osteoarthritis, the natural progress of which involved the gradual deterioration of cartilage in his right ankle, leading ultimately and inevitably to “subchondral bone formation and complete loss of articular cartilage”[78], which Dr Klar described as “end stage osteoarthritis”[79].

    [78] T35, folio 104.

    [79] T7.

36. Physiological change occurring in the natural progress of Mr O’Callaghan’s right ankle osteoarthritis is not a right ankle injury in a physical sense and it is not an ‘aggravation’ of such an injury. I am not persuaded that the activities Mr O’Callaghan described in the course of his AFP employment, including the incidents in which he alleges he rolled his right ankle and activities that are said to have caused right ankle micro traumas, are established as causing an ascertainable or dramatic physiological change in his right ankle, or an aggravation of post traumatic degenerative processes in that joint.

1. That being so, I am reasonably satisfied that Mr O’Callaghan did not sustain a physical right ankle injury in the primary sense or an aggravation of such an injury arising out of, or in the course of his AFP employment.

2. From this it follows that the tests relating to a ‘disease’, an ‘injury (other than a disease)’ and ‘aggravation of a physical or mental injury (other than a disease)’ for the purposes of s 5A(1)(a), (b) and (c) of the SRC Act are not satisfied.

3. Mr O’Callaghan’s claim for compensation in respect of a right ankle injury allegedly caused by the nature and conditions of his AFP employment is not made out. The reconsideration decision that affirmed the determination to refuse this claim will be affirmed.

4. By agreement of the parties, in these circumstances, Mr O’Callaghan’s claim for compensation in respect of a psychological injury is also not made out, and the reconsideration decision that affirmed Comcare’s original determination to refuse that claim, too, will be affirmed.

   DECISION

5. The reconsideration decisions under review are affirmed.

I certify that the preceding 173 (one hundred and seventy-three) paragraphs are a true copy of the reasons for the decision herein of Member Simon Webb.

........................................................................

Associate

Dated: 13 August 2019

Date(s) of hearing: 

25 June 2019 – 26 June 2019

Solicitors for the Applicant

Counsel for the Applicant

Solicitors for Respondent:

Counsel for Respondent:

Mr David Healey, David Healey Solicitors

Mr Allan Anforth

Ms Carmen King, McInnes Wilson Lawyers

Ms Kate Slack