O’Kane and Comcare (Compensation)

[2016] AATA 389

O’Kane and Comcare (Compensation) [2016] AATA 389 (10 June 2016)

Division	GENERAL DIVISION
File number	2014/4630
Laurence O’Kane
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Dr James Popple, Senior Member
Date	10 June 2016
Place	Canberra

Comcare’s decision on 18 July 2014 is affirmed.

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

James Popple, Senior Member

CATCHWORDS

COMPENSATION — liability accepted for workplace injury to right knee — claim for further compensation for current impairment — whether current impairment a result of accepted injury — whether accepted injury aggravated pre-existing condition — current impairment a result of gout and its natural progression — reviewable decision affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 14, 24, 25(4), 27

CASES

Browne v Dunn (1893) 6 R 67

Jagelman v Federal Commissioner of Taxation (1995) 31 ATR 467

Re Minister for Immigration and Multicultural Affairs; ex parte S154/2002 (2003) 77 ALJR 1909

Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555

Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

REASONS FOR DECISION

Dr James Popple, Senior Member

10 June 2016

Summary

1. The applicant injured his right knee at work.  Comcare agreed that he was entitled to be paid compensation for permanent impairment and non-economic loss under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).  The applicant made a claim for further compensation for permanent impairment and non-economic loss in respect of the same injury.  Comcare disallowed that claim.

2. I affirm Comcare’s decision.  The applicant’s current impairment is a result of gout and its natural progression, and not a result of the injury.  Comcare is not liable to pay him further compensation.

   Background

3. Mr Laurence O’Kane started working as a bus driver for the Australian Capital Territory Internal Omnibus Network in 1976.  On 3 February 2002, he injured his right knee when he slipped on oil at a bus depot.  Comcare accepted liability for compensation in respect of what it called a “strain of medial collateral ligament of knee (right)” (the accepted injury).

4. On 24 February 2006, Mr O’Kane made a claim for compensation for permanent impairment.  In his claim form, he said that his “permanent injury/impairment(s)” were “right knee” and “aggravation of gout”.  On 26 July 2006, Comcare disallowed his claim.  On 26 September 2006, Mr O’Kane requested a reconsideration of that determination.  On 18 April 2007, Comcare affirmed its determination.  However, on 17 June 2008, the Tribunal[1] decided—Mr O’Kane and Comcare having agreed—that Mr O’Kane had suffered 20% whole person impairment (WPI) as a result of the accepted injury, and that Comcare was liable to pay him compensation for permanent impairment (under s 24 of the SRC Act) and non-economic loss (under s 27).

   [1]     Constance SM in application 2007/1576.

5. On 22 July 2011, Mr O’Kane underwent a total knee replacement of his right knee.  On 2 October 2011, he had another operation on that knee: a revision of the knee replacement and a washout of the joint.  I will call these two operations the arthroplasty.

6. On 20 December 2013, Mr O’Kane made a claim for further compensation for permanent impairment and non-economic loss in respect of the accepted injury. On 3 March 2014, Comcare disallowed that claim. Comcare assessed Mr O’Kane’s WPI as 20%. As there had not been an increase of 10% or more in his WPI rating, no further compensation was payable (because of s 25(4) of the SRC Act). On 31 March 2014, Mr O’Kane requested a reconsideration of that determination. On 18 July 2014, Comcare affirmed its determination.

7. On 8 September 2014, Mr O’Kane applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.

   Decision under review

8. The decision under review is Comcare’s decision on 18 July 2014 affirming its determination that Mr O’Kane was not entitled to further compensation for permanent impairment and non-economic loss.

   Issues

9. Comcare now says that Mr O’Kane’s impairment is—and has always been[2]—a result of gouty arthritis (gout) and its natural progression, and not the result of the accepted injury. Mr O’Kane says that his current impairment has one or more of three causes: the accepted injury, the gout, and the arthroplasty. He says that, whichever was the actual combination of these causes, he is entitled to compensation—or to further compensation (under s 25(4))—for permanent impairment and non-economic loss.

   [2] It is open to me to find that Mr O’Kane’s impairment was never the result of the accepted injury, notwithstanding that Comcare previously accepted liability (see [26] below).

10. The issues in this review are:

    ·is Mr O’Kane’s current impairment a result of gout and its natural progression;

    ·did the accepted injury allow or promote the onset of gout;

    ·did the accepted injury aggravate pre-existing asymptomatic gout to cause it to become and remain symptomatic;

    ·is Mr O’Kane’s current impairment a result of the accepted injury;

    ·is his current impairment a result of the accepted injury and the arthroplasty;

    ·was the arthroplasty a new “injury”, separate from the accepted injury;

    ·was the arthroplasty a new “impairment” arising from the accepted injury, separate from the impairment (20% WPI) in relation to which Mr O’Kane was compensated; and

    ·what is the correct assessment of Mr O’Kane’s WPI?

    Some of these issues overlap.  Some arise only if other issues are resolved in a particular way.

    What is the relationship (if any) between the accepted injury, Mr O’Kane’s gout and his current impairment?

    The parties’ assertions

11. Mr O’Kane says that he experienced pain immediately after the accepted injury on 3 February 2002.  He says that “[s]ince that time the pain has waxed and waned on a daily basis over the years depending on the level of activity, medication and surgical procedures, but has never resolved”.  He accepts that gout has contributed to his current knee condition, but says that he had no gout prior to the accepted injury, “or at least none of which he was aware or was symptomatic”.

12. Comcare points to a report prepared by Dr Mohamad Mourad, a consultant orthopaedic surgeon, on 6 February 2015.  Dr Mourad saw Mr O’Kane on 16 January 2015.  His report says that Mr O’Kane told him then that, after the accepted injury, “the symptoms of pain and swelling went away on their own after two days, but he noticed that his knee would swell recurrently thereafter”.  During cross-examination, Mr O’Kane confirmed that he had told Dr Mourad that his symptoms went away one or two days after the accepted injury.

13. Dr Judith May, a sports physician, aspirated fluid from Mr O’Kane’s knee.  From a letter that Dr May wrote to Mr O’Kane’s GP on 19 December 2002, it appears that this happened either when Mr O’Kane saw Dr May on 12 February, or on another day in February 2002.  I will call this the February aspiration.  She aspirated fluid from his knee, again, in December 2002.  I will call this the December aspiration.  On each occasion, the aspirated fluid revealed uric acid crystals.

14. Comcare says that I should be satisfied on the evidence that “the pain (if any) experienced by [Mr O’Kane] resolved within a day or two after” the accepted injury.  Mr O’Kane says that I should be satisfied on the basis of contemporaneous evidence that his knee pain was ongoing from the date of the accepted injury.  This contemporaneous evidence is that Mr O’Kane’s knee was swollen when he went to hospital shortly after the accepted injury;[3] that he saw Dr May about his knee nine days after the accepted injury;[4] and that he had a surgical procedure on his knee in December 2002.[5]  None of this evidence is inconsistent with a finding that Mr O’Kane’s pain resolved within a day or two after the accepted injury, especially if (as Comcare asserts) his primary symptoms were due to gout and not due to the accepted injury.

    [3]     Mr O’Kane cites “contemporaneous notes from Calvary Hospital [in Canberra] referred to by Dr Le Leu concerning [Mr O’Kane’s] attendance shortly after the injury and notes of swelling and bruising”.  I have not been provided with those notes.  I have before me four reports from Dr Leon Le Leu, who is an occupational physician.  The only relevant reference that I can find is Dr Le Leu writing (in his report of 14 December 2013) that, after the accepted injury, Mr O’Kane’s “knee ‘blew up’ and he was taken to Calvary Hospital to have it checked”.  It is possible, but by no means certain, that Dr Le Leu had a copy of the hospital’s notes when he wrote this.  The only notes from Calvary Hospital that are before me are dated 15 December 2004 and 2 January 2008.

    [4] See [13] above. Mr O’Kane says that the medical records show that he saw his GP twice in the 2–3 weeks after the accepted injury. The documents to which he referred me relate to one (possibly two) consultations with Dr May in February 2002.

    [5] I take this to be a reference to the December aspiration (see [13] above).

    The rule in Browne v Dunn

15. Mr O’Kane’s counsel points out that it was not put to Mr O’Kane directly at the hearing that the pain in his right knee had resolved within a day or two of the accepted injury—only that he had said as much to Dr Mourad in January 2015.  Mr O’Kane implies that, because of the rule in Browne v Dunn,[6] it is not open to me to find that his pain had resolved within a day or two.  During cross-examination, Mr O’Kane confirmed that he had been honest with Dr Mourad, responded accurately to the questions that Dr Mourad had asked, and did not hide anything from him.  Comcare points out that Mr O’Kane was not re-examined on the question whether he gave misleading or inaccurate information to Dr Mourad.  Comcare says that it follows that Comcare has complied with the rule in Browne v Dunn “to the extent to which (if any) it applies in a proceeding of this kind”.

    [6] (1893) 6 R 67.

16. In Sullivan v Civil Aviation Safety Authority, a majority of the Full Court of the Federal Court said that:

    … any submission that the Tribunal is universally—or even generally—required to apply the rule in Browne v Dunn in the conduct of its hearings is a submission doomed to failure.[7]

    However, as Logan J said in Sullivan:

    … while, in form, a tribunal such as the Administrative Appeals Tribunal is strictly inquisitorial, the “core function” of such a tribunal is one of review.  In undertaking such a review and where there are interested parties to the review with conflicting positions, there can be circumstances where it would be procedurally unfair for the Administrative Appeals Tribunal to base its decision on the acceptance of a particular witness called by one party without affording another party due notice of a differing version.  To recognise this is not to subvert [Re Minister for Immigration and Multicultural Affairs; ex parte S154/2002[8]] by assimilating the differing nature of judicial and administrative review proceedings.  It is just that the inherently flexible content of a procedural fairness obligation can, where that obligation attends the exercise of administrative power, entail a requirement which resembles that which would flow in a judicial proceeding from observance of the rule in Browne v Dunn.[9]

    The Federal Court noted in the earlier case of Jagelman v Federal Commissioner of Taxation that:

    … it has been pointed out in a number of cases that the application of the rule in Browne v Dunn must depend upon the circumstances of the case.  Where the issues in a case are such that it would readily be apparent to a party that a particular imputation has been made, there will be no necessity to put that imputation to a witness who denies it and, in consequence, there will have been no denial of procedural fairness …[10]

    [7] (2014) 226 FCR 555 at 596 [159] per Flick and Perry JJ.

    [8] (2003) 77 ALJR 1909.

    [9] (2014) 226 FCR 555 at 568 [48] per Logan J.

    [10] (1995) 31 ATR 467 at 473 per Hill J.

17. Mr O’Kane gave evidence that he had “experienced ongoing difficulties with [his] right knee”.  His counsel submits that this can only be read as implying that the pain was ongoing from the date of the accepted injury.  At the hearing, Mr O’Kane was asked directly whether he had told Dr Mourad that the “symptoms went away on their own a day or two after” the accepted injury.  Mr O’Kane answered: “yes”.  Mr O’Kane’s counsel submits that Mr O’Kane is “a simple man who is clearly hard of hearing who very much answered ‘yes’ to any question in cross-examination”.  Many of Mr O’Kane’s answers to questions in cross-examination were a simple “yes”.  But not all of them.  Several of his answers were more complex, and indicated that he understood what he was being asked during the hearing and answered accordingly.

18. I think that, in this review, it must have been readily apparent to Mr O’Kane that Comcare was imputing that his pain was not ongoing but had in fact resolved within a day or two after the accepted injury—as he told Dr Mourad that it had.  I do not think that it can be a denial of procedural fairness for me to find that Mr O’Kane’s symptoms went away within a day or two of the accepted injury, even though that proposition was not put to him directly at the hearing.

    The medical evidence

19. Dr Mourad (who is a consultant orthopaedic surgeon) and Dr Leon Le Leu (an occupational physician)[11] gave evidence at the hearing.  They agreed that gout is an inflammatory response to the presence of uric acid crystals in a joint, which leads to effusion into the joint and (possibly, eventually) destruction of the joint.  They agreed that it can occur even without a family history—there is no known history of gout in Mr O’Kane’s family—and that various lifestyle factors can increase the risk of gout developing.  Dr Mourad and Dr Le Leu differed as to the effect (if any) that the accepted injury could have had on Mr O’Kane’s gout.  Neither of them suggested that the accepted injury could have caused the gout, or aggravated a pre-existing gout, except by causing traumatic damage to his right knee.

    [11]    See also note 3 above.

20. Dr Le Leu said that recent research suggests that a joint that is damaged, including by trauma, is more likely to act as a seabed for uric acid crystals leading to an increased tendency for those crystals to depose in the damaged joint.  Dr Le Leu was of the view that the accepted injury could have caused trauma in Mr O’Kane’s knee, which could have caused, or exacerbated, Mr O’Kane’s gout.

21. Dr Mourad disagreed with Dr Le Leu that that was the case in this review.  He said that he could see “no evidence that there was actual trauma besides Mr O’Kane’s recollection of events”.  He referred to the consultation that Mr O’Kane had with Dr May in February 2002, saying:

    It is clear from Dr Judith May’s letter on 19 December 2002 that his presentation [was] consistent with an acute effusion of his right knee.  Now, whether this was caused by trauma or by an acute episode of gout I cannot tell for certain.  Given that he had the knee aspirated and then Dr May goes on to say that the aspiration revealed uric crystals then my understanding of this—this is an acute gout presentation.  There’s no evidence of trauma.  She makes no mention of blood in the joints.  She makes no mention of any bruising being present.  There is no recollection of any fractures taking place.  So what I am trying to convey to the [Tribunal] is that I don’t think Mr O’Kane presented with acute trauma on that day.  It was actually an acute episode of gout.

    It appears, from the context of his evidence, that Dr Mourad was referring here to the February aspiration.

22. Dr Le Leu conceded that there was no medical evidence that Mr O’Kane’s right knee suffered a trauma due to the accepted injury.  But he said that it is possible that any evidence of trauma (for example, blood in the joint) could have cleared between the date of the accepted injury and the aspiration of the knee.  He meant this in relation to the December aspiration, but it is unlikely that he meant it also in relation to the February aspiration.  Dr Le Leu did not have a copy of Dr May’s December 2002 letter with him when he gave his evidence (by telephone), and he noted that the earlier aspiration could have happened “some months before [the letter], closer to the event”—that is, closer to the date of the accepted injury.  He was not asked whether evidence of trauma could have cleared in a period of as little as 3½ weeks after the accepted injury: from 3 February until the end of February 2002.

    Findings

23. I believe Mr O’Kane when he says that, for years, he has experienced pain in his right knee that has waxed and waned on a daily basis but never resolved.  But, having regard to all of the evidence, I make the following findings on the balance of probabilities.  Mr O’Kane was injured—the accepted injury—on 3 February 2002 when he slipped on oil at a bus depot.  The pain that he experienced as a result of the accepted injury resolved within a day or two of the injury.  Mr O’Kane’s current impairment is a result of gout and its natural progression.  The accepted injury did not allow or promote the onset of gout, or aggravate a pre-existing gout.  Mr O’Kane’s current impairment is not a result of the accepted injury.

24. I have made these findings having particular regard to the following:

    ·Mr O’Kane told Dr Mourad (in January 2015) that the pain in his right knee had resolved within a day or two of the accepted injury;

    ·the contemporaneous evidence is consistent with that finding;

    ·the fluid that Dr May aspirated from Mr O’Kane’s knee in February 2002 revealed uric acid crystals, which suggests that he was then suffering from gout;

    ·the same is true of the aspiration in December 2002;

    ·there is no evidence to suggest that the accepted injury caused a trauma in the right knee which could have caused or aggravated his gout—notably:

    othere is no evidence that there was blood in the joint, or bruising, or a fracture at the time of the February aspiration, which happened no more than 3½ weeks after the accepted injury; and

    othe same is true of the December aspiration, which happened on one of the four days after 15 December when Mr O’Kane suffered “an acute onset of a knee effusion” with “no precipitating trauma”.

    Other issues

25. Because of the findings that I have made, I do not need to consider the remaining issues in this review, relating to the arthroplasty and the correct assessment of Mr O’Kane’s WPI.[12]

    [12] See [10] above.

    The effect of this decision

26. I have found that Mr O’Kane’s current impairment is not a result of the accepted injury.  It follows, from that and from my other findings, that his impairment was never the result of the accepted injury.  These findings are open to me, notwithstanding that Comcare previously accepted liability to pay Mr O’Kane compensation in respect of that accepted injury.  As the Full Court of the Federal Court explained in Telstra Corporation Ltd v Hannaford, the Tribunal (when reviewing a decision that further compensation is not payable under ss 24 and 27 of the SRC Act) can “make findings of fact that effectively undercut the necessary findings of fact made” by an original decision-maker under s 14.[13] As Mr O’Kane’s impairment was never the result of the accepted injury, Comcare was not liable for the accepted injury (under s 14), and not liable to pay Mr O’Kane compensation for permanent impairment and non-economic loss (under ss 24 and 27). However, this review is a review of Comcare’s decision not to pay Mr O’Kane further compensation. It has no effect on Comcare’s previous decisions to pay him compensation.

    [13] (2006) 151 FCR 253 at 274 [59] per Conti J, with whom Heerey and Dowsett JJ agreed.

    Conclusion

1. Mr O’Kane’s current impairment is a result of gout and its natural progression, and not a result of the accepted injury. Comcare is not liable to pay him further compensation under s 25(4) of the SRC Act.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

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

Associate

Dated 10 June 2016

Date of hearing	25 February 2016
Date final submissions received	18 April 2016
Counsel for the Applicant	Mr Allan Anforth
Solicitors for the Applicant	Blumers Lawyers
Counsel for the Respondent	Mr Peter Woulfe
Solicitors for the Respondent	Claims and Liability Management Division, Comcare