O'Halloran and Military Rehabilitation and Compensation Commission

[2004] AATA 957

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 957

ADMINISTRATIVE APPEALS TRIBUNAL)

)                No Q2001/543

GENERAL ADMINISTRATIVE DIVISION  )
Re		RICHARD O’HALLORAN

Applicant

And  MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe

Date15 September 2004

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................[Sgd]........................

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – pensions and benefits – applicant employed by Commonwealth – whether injury arose out of or occurred in the course of employment – decision affirmed.  

Safety, Compensation and Rehabilitation Act 1988

REASONS FOR DECISION

15 September 2004 Senior Member McCabe

1.      Richard O’Halloran is the applicant in these proceedings. He has an injured left knee. He says he sustained the injury while working in the Navy. He has made a claim for compensation under the Safety, Compensation and Rehabilitation Act 1988 (the Act). The respondent is the Military Rehabilitation and Compensation Commission (MRCC). The respondent took over responsibility from Comcare for dealing with claims made by service personnel under the Act. The MRCC denies the injury is work-related, and says compensation should not be paid.

2.      The applicant has made several claims in respect of his injury. Application Q2002/873 was formally withdrawn at the hearing, which leaves application Q2001/543. For reasons that I will explain, the respondent’s decision in relation to that claim ought to be affirmed.

The material before the tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were also tendered in evidence at the hearing:

• Five reports of Dr Thomas dated 22 May 1997, 22 May 2000, 13 November 2001, 17 January 2002, 25 March 2003;
• A report of Dr Fraser dated 21 January 2003;
• A sketch plan of the ladder (and circumstances of the accident, the subject of the claim);
• Notes of Dr Cameron;
• Clinical notes of Dr Mansfield;
• A letter composed by Dr Jagusch dated 15 September 1999;

• Material summonsed from the Smithfield Medical Centre.

4.      The applicant gave oral evidence at the hearing.

5.      The hearing was held over two days. The applicant was represented at the hearing by Mr Winship. Mr Polin appeared for the respondent.

The facts

6.      Mr O’Halloran was born on 15 May 1950. He enlisted in the Navy in July 1966. He was discharged on 7 July 1988 but he has remained a member of the Australian Naval Reserve. He currently holds the rank of Chief Petty Officer, Marine Technical.  He lives in Yorkey’s Knob, in the Cairns area.

7.      The applicant possesses valuable technical skills required in the maintenance of ships. He is regularly called into the naval base in Cairns to assist. He described his work in the course of his evidence as follows:

I’m a specialist in a trade.  Sometimes I can be called for a six month stint relieving as the workshop supervisor.  Other times I can be in what they call maintenance planning position.  This year the only service I have done is four weeks reviewing technical manuals for Detroit diesel engines.

8.      He says he prefers to avoid:

physical work such as climbing ladders or lifting heavy objects. If I can virtually drive a desk or a computer or do some planning, I’m quite happy to do that.

9.      The applicant says his preference for sedentary work is due to his knee condition. He says he experiences pain and swelling whenever he strains his knee. The knee swells up as it fills with fluid. He has difficulty walking. When it swells, the knee must be aspirated.

10.     The applicant first injured his knee in a motorbike accident on 7 July 1968. He was on leave at the time. He was taken to Nambour Base Hospital after the accident with a swollen knee. He was subsequently transferred to the Repatriation General Hospital at Greenslopes, in Brisbane. His treating doctor aspirated the knee. The swelling returned within a few days but the doctors apparently decided against a further aspiration procedure at that point.

11.     Mr O’Halloran remained in hospital for a total of 39 days. The applicant denied the length of the stay indicated that the injury to his knee was really very serious. He attributed the length of the stay to the inefficiency of the hospital.

12.     After his discharge from hospital, the applicant returned to his posting at HMAS Cerebus to complete his training. He says his knee was still stiff and sore. He visited the hospital at Cerebus but was told he would recover. He completed his training and was posted to sea shortly after without further mishap. He was apparently declared to be medically fit for sea duty, and he said he did not have any further trouble with his knee at the time.

13.     The applicant acknowledged there was some “minor” trouble with his left knee in April 1983. His service medical records (T8 f14 of the T-documents) note he sustained a “Left knee medial lateral ligament sprain (insertion)”. He says he rested it for three or four days and took some painkillers and applied Dencorub, and it was fine. He said after that incident there was no trouble whatsoever – until the incident in December 1995, which he says is the source of his present problem.

14.     In December 1995, the applicant was working onboard HMAS Whyalla. The Whyalla is a patrol boat. He had been doing some repair work. As he was climbing a ladder from the engine compartment, he swung a bag of tools weighing about five kilograms over his head. He says the twisting motion and transfer of weight onto his left knee strained his knee. He said he felt a sudden pain. After leaving the ship, he said he limped back to his workshop. He went home some time later. He did not report to the doctor at that point because he assumed the knee would fix itself.

15.     The applicant said he awoke the following morning to find his knee had become swollen. In his evidence, he said the pain was extreme: it was like being knee-capped by the IRA, he said. He said his knee was the size of a football. He had difficulty getting out of bed or showering. He said he drove into the Naval base in his Landrover 4WD motor vehicle. It was a manual vehicle with a heavy clutch and he said the journey was very painful. He made his way to the naval medical personnel to ask for treatment, and he was sent to see Dr Jenkins, a civilian doctor in Cairns. He was sent off for X rays and given anti-inflammatory medication and painkillers. He stayed in bed for four or five days before returning to work. Mr O’Halloran described his return to work in the following terms:

[My leg] was still sore. I was still limping. But I’m one of those people, a loyalty to the job and to the Royal Australian Navy, get on and do your job. That’s what I was doing.

16.     He says he was unable to return to the sort of work he had been doing before December 1995. He was allocated more “desk” work, as a maintenance planner. His evidence makes it clear that he regards the incident on the Whyalla as being pivotal – his knee had been largely symptom free and had apparently recovered from the effects of the motorcycle accident in 1968. He says his knee has not been the same since.

17.     A more complicated story was revealed during the course of cross-examination. Mr O’Halloran’s assertion that his knee had been symptom-free (apart from the brief problem in 1983) between 1968 and December 1995 is wrong. It turns out he suffered a knee injury at home in June 1995. (He also claimed he suffered an injury at work on or about the same date, but his claim in respect of that injury was withdrawn after he admitted he was confused about dates. He insists there was an incident at work.) The injury was apparently very severe – he had to be driven to the doctor by his partner on that occasion because he could not drive himself. He now says that was a minor strain.

18.     The medical records of Dr Thomas revealed the applicant reported a blow to the knee in 1993 that resulted in swelling. The applicant told Dr Thomas he suffered problems from that time. Mr O’Halloran now says he only sustained a “small amount of swelling; small amount of pain”. That is difficult to square with the medical evidence. The applicant had to visit his doctor several times after the incident: the doctors notes referred to a “large tense effusion of the knee”. The applicant said the swelling took four or five days to go away. The applicant conceded in his evidence that problems have occurred ever since 1993 whenever he bumped or strained his knee, although he claims the pain was not as bad as it was after the incident on the Whyalla in December 1995.

19.     The applicant also admitted he had problems with his knee in December 1994 or January 1995 when he was in the United Kingdom on holiday. He dismissed the problem as a sprain caused by carrying luggage.

20.     The applicant was also asked in cross-examination about medical advice he had received about gout. Mr O’Halloran categorically rejected the suggestion he had gout. He produced a pathology report from Dr Jagusch that tends to support his view, but the vehemence with which he insisted that he did not suffer from the condition is puzzling.

Discussion of the evidence

21.     The applicant was a poor witness. He claimed in his evidence in chief that he had not suffered any real problems with his left knee after the accident in 1968 until he hurt himself onboard HMAS Whyalla in December 1995. That is wrong. He has been having knee problems since at least 1993, and perhaps since his accident in 1968. He was evasive in his evidence in relation to those events. I am prepared to accept his knee is probably deteriorating so that twists and strains are becoming more painful and debilitating. I cannot accept his evidence that the incident in December 1995 represented a new development. I think it was just one of a series of incidents, albeit that this incident happened to occur at work.

22.     I think the balance of the medical evidence supports this view. A number of medical reports were tendered to the Tribunal. Some of the reports were prepared with reference to the incident that was alleged to occur in June 1995. I note Dr Fraser said in his report of 20 January 2003:

I am of the opinion that the two traumatic incidents of 1995 gave rise to transient and temporary aggravation of the degenerative arthritic condition of that knee and have not given rise to any permanent impairment of function or any permanent disability.

23.     Dr Fraser attributed the degeneration to gout and to the after effects of the motorcycle accident in 1968. Dr Blue agrees in his report 31 March 2000 that the 1995 incident was merely a temporary aggravation of a pre-existing problem that was most likely caused or triggered by the motorcycle accident.

24.     Dr Thomas’s reports were tendered by the applicant. I note Dr Thomas concedes the development of the condition was related to the injury sustained in the motorcycle accident, and may have been affected by gout. He says it has been aggravated by “recurrent traumatic episodes over the years, especially whilst he was on military service…”. That conclusion is presumably based on the history provided by Mr O’Halloran who, as I have already observed, is an unreliable historian who tended to exaggerate the injury that occurred at work while down-playing the injuries he sustained elsewhere.

25.     After reading all of the medical evidence and the evidence of the applicant, I am satisfied the December 1995 incident aboard HMAS Whyalla amounted at most to a temporary aggravation of a pre-existing condition.

conclusion

26.     Comcare’s reasons for its decision are set out in its letter to the applicant dated 17 January 2001. The delegate explained he was satisfied on the balance of probabilities that the Commonwealth was not liable for the injury to the applicant’s left knee, or for any aggravation of the condition, because the injury did not arise out of or occur in the course of Mr O’Halloran’s employment: s 14. I think the evidence establishes the decision was correct. There has been no permanent impairment that would give rise to compensation under the Act. The decision under review is therefore affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe.

Signed:         .....................................................................................
  Associate:  Thomas Ritchie

Dates of Hearing: 26 November 2003; 9 June 2004
Date of Decision: 15 September 2004.
The applicant was represented by Mr Winship of counsel.
The respondent was represented by Mr Polin of counsel.