Perry and Go Marine Group Pty Ltd (Compensation)
[2023] AATA 4214
•20 December 2023
Perry and Go Marine Group Pty Ltd (Compensation) [2023] AATA 4214 (20 December 2023)
Division:GENERAL DIVISION
File Number(s):2022/8396
Re:David Perry
APPLICANT
Go Marine Group Pty LtdAnd
RESPONDENT
DECISION
Tribunal:Senior Member R Bellamy
Date:20 December 2023
Place:Brisbane
The reviewable decision is affirmed.
.............................[SGD]...............................
Senior Member R Bellamy
Catchwords
COMPENSATION – aggravation of pre-existing degenerative condition –– whether temporary or ongoing aggravation – material degree test – whether employer liable for preinjury sustained in other employment – pre-existing condition – decision affirmed
Legislation
Seafarers Rehabilitation and Compensation Act 1992 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
R v Perry [2011] QCA 236
Woodhouse v Comcare (2021) 285 FCR 14
REASONS FOR DECISION
Senior Member R Bellamy
20 December 2023
INTRODUCTION
Mr David Perry is 57 years old. He was educated to year eight and spent his entire working life on ships. He also worked as a union official between 1998 and 2007. This application concerns an injury to Mr Perry’s right knee that occurred in 2010. His right knee was first injured at work in 1995. After two operations and a period of rest, he returned to his duties, however he developed osteoarthritis in that knee. In 2010, while working for the Respondent employer, Mr Perry again injured his right knee at work. I will refer to this injury as “the 2010 injury”. There was also an injury to his left knee in 2010 but that is not relevant to this application. The contentious issue in this application is whether the 2010 injury caused only a temporary aggravation of the underlying osteoarthritis, as the Respondent contends, or whether it had an ongoing impact as Mr Perry contends.
The Seafarers Rehabilitation and Compensation Act 1992 (“the Act”) provides for rehabilitation and workers’ compensation for seafarers and certain other persons. Subsection 26(1) relevantly provides that if an employee suffers an injury that results in incapacity for work or impairment, compensation is payable for that injury. “Injury” is broadly defined but it must arise out of, or in the course of, employment.
Section 8 of the Act provides that an incapacity for work is an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work as an employee at the same rank or level at which he or she was engaged immediately before the injury happened.
Section 28 provides for, among other things, compensation for the cost of medical treatment for an injury.
Section 31 of the Act effectively provides that where an employee is incapacitated for work as a result of an injury, compensation is payable to for the period of incapacity. For the first 45 weeks, compensation is payable in an amount equal to the employee’s normal weekly earnings (minus earnings in suitable employment) and thereafter, compensation is payable in an amount equal to a prescribed portion of their normal weekly earnings.
Mr Perry made a compensation claim with respect to the 2010 injury. On 18 April 2011, he received a letter that stated:
“Liability is accepted by Allianz for and (sic) behalf of GO OFFSHORE PTY LTD for a temporary aggravation to your right knee degenerative condition, which was sustained on 14/11/2010.
As your claim has now been accepted, it is important for you to-ensure you have obtained a medical certificate from your treating doctor reflecting the status of your work capacity and outlining the treatment which is required to treat your condition.
You are required to ensure you have a current medical certificate at all times throughout the duration of your claim otherwise this may lead to a delay in the payment of your wages.”[1]
(Underlining added)
[1] Exhibit T1: Section 37 T-Documents, T14, page 32.
Mr Perry was imprisoned on 18 May 2011 for two offences of lying in an Australian Crime Commission hearing. On appeal, one conviction was quashed, he was re-sentenced to imprisonment for the time he had already served, and he was released on 16 September 2011.[2] Mr Perry said that when he was imprisoned, his employment was terminated, and his employer claimed he had abandoned his employment although they knew where he was.
[2] R v Perry [2011] QCA 236.
In March 2012, Mr Perry made a claim for incapacity payments dating back from 16 September 2011.[3] In April 2012, he provided a medical certificate certifying him unfit for work until 1 June 2012.[4] His claim for this period was not determined within the statutory time limit so it was deemed to have been disallowed pursuant to s 73(6) of the Act.[5] As there was no determination, it is not apparent whether Mr Perry’s claim was evaluated or ignored. Nor is it apparent what the outcome of the internal review was because I do not have evidence of that before me, although it does seem that Mr Perry applied to the Tribunal to review that decision and he ultimately withdrew the application. I do not have a copy of the application or the withdrawal request before me.
[3] Exhibit T1: Section 37 T-Documents T15, page 33.
[4] Exhibit T1: Section 37 T-Documents T17, pages 37 to 39.
[5] Exhibit T1: Section 37 T-Documents T18, page 40.
There is no evidence before me that Mr Perry made any claim relating to the 2010 injury for any period after 1 June 2012 before he made the current claim in 2021.
FIRST PRELIMINARY ISSUE – THE SCOPE OF THE CLAIM
On 23 September 2021, Mr Perry submitted a claim for compensation for incapacity for work and medical expenses[6] and he subsequently submitted some medical evidence[7]. The 2021 claim form does not indicate a period to which the claim relates. In the hearing, Mr Perry said he has not been able to work on ships since the injury occurred. Mr Perry did not have a lawyer assisting him when he submitted his claim, and he navigated the Tribunal proceedings without the assistance of a lawyer which, he pointed out, is difficult for someone with his limited education. It was apparent that Mr Perry was frustrated at times with the review process, despite the Tribunal’s efforts to assist him. I acknowledge Mr Perry’s admirable efforts in circumstances where the Respondent had the assistance of a solicitor and counsel and he did not.
[6] Exhibit T1: Section 37 T-Documents T25, pages 58 to 64.
[7] The claim was not taken to have been made until he submitted the medical evidence.
The Respondent denied Mr Perry’s claim on 28 June 2022.[8] The statement of reasons said:
“…it appears to me that you are seeking to agitate an issue that properly belonged to the earlier litigation which you commenced before the Tribunal and ultimately withdraw. However, for completeness, I have proceeded to consider the substantive merits of your claim on the assumption you are now claiming to have a present entitlement to compensation. Given you have previously had liability accepted for a right knee injury arising from the incident on 14 November 2010, and you previously claimed for incapacity payments from September 2011, on the most beneficial interpretation of your claim, I have proceeded to consider same on the basis you are asserting you have a present entitlement to compensation for the right knee injury, however described.”
(Underlining added)
[8] Exhibit T1: Section 37 T-Documents T26, pages 65 to 68.
This seems to be an odd construction of Mr Perry’s 2021 claim. First, his previous claim, which was deemed to have been disallowed, covered the period 16 September 2011 to 12 June 2012. There is nothing before me to indicate that a claim for a later period or ongoing liability was the subject of a determination. Second, it is not apparent how restricting Mr Perry’s claim to a present entitlement benefitted him.
Mr Perry sought review of the determination and on 21 September 2022 the Respondent affirmed the decision after receiving advice from Comcare. That advice included the following statement:
“…it is clear that the claim for compensation dated 23 September 2021 is for the same injury which was claimed on 1 March 2011 and for which liability was accepted on 18 March 2011. As a result, the claim dated 23 September 2021 is invalid and no determination is necessary, nor is it necessary for the employer to consider the 23 September 2021 claim ‘for completeness’.”[9]
[9] Exhibit T1: Section 37 T-Documents T31, pages 77 to 78.
I cannot make any sense of this reasoning, given the evidence before me.
Mr Perry applied to the Tribunal for review of the decision that affirmed the determination. Section 80 of the Act provides for the Tribunal to review the decision. This is a review de novo. The Tribunal stands in the shoes of the original decision-maker and takes into account relevant evidence and information that is currently available.
I do not see any reasons to construe Mr Perry’s claim as a claim for present entitlement only. The claim, on its face, was not limited to a present entitlement. As Mr Perry gave evidence in the hearing that he has not been able to work since the 2010 injury, I asked him to clarify the period he intended his 2021 claim to cover. He indicated he had intended to claim for the whole period since the injury. The claim form can easily be read in that way and I think that is the most reasonable interpretation of the claim form.
Nor does Mr Perry’s claim appear to be limited by operation of law. For instance, I am unable to find in the Act or Regulations any time limit on making claims and the Respondent has not identified any time limit. The only limit that appears to apply is the exclusion of the period up to 1 June 2012 because the evidence before me indicates that a claim relating to that period was determined and finalised.
The Respondent suggested that Mr Perry’s claim might not be within time with respect to giving notice of a continuing injury under s 62 of the Act. However, s 62 relevantly requires written notice to be given of an injury as soon as practicable after an employee becomes aware of the injury. Mr Perry did that in 2010 after he sustained the injury. His application concerns that injury. The Respondent also characterised Mr Perry’s application as re-litigating an earlier claim that he withdrew without producing any further compelling evidence, and suggested that this could give rise to an abuse of process. However, I do not accept that, as a matter of law, Mr Perry is seeking to re-litigate the withdrawn claim. It may be that, logically, if he could not establish a continuing aggravation in 2012 then he would not be able to establish a continuing aggravation after that time. However, that depends on which evidence I prefer. The Respondent did not point to any prejudice that could arise if the Tribunal were to determine the claim that Mr Perry actually made.
The Tribunal’s review of the reviewable decision, being the disallowance of Mr Perry’s 2021 claim, will consider liability from 2 June 2012 onward.
SECOND PRELIMINARY ISSUE – THE DISTINCT EMPLOYERS
The 1995 injury was sustained in the employ of a previous employer. Mr Perry was under the impression that s 128 of the Act had the effect of making the Respondent fully liable for his present condition even if it was attributable to his previous employment because that employment was also on ships. However, s 128 of the Act provides that where an injury arises out of, or in the course of, employment with more than one employer, and one of the employers has paid compensation in respect of the injury, that employer may recover a contribution from the other employer. It does not provide that an employer must compensate a person for a pre-existing condition that arose from other employment. Any liability for any injury (including degenerative disease) arising from the 1995 incident would lie with the 1995 employer.
Accordingly, references in these reasons to an injury arising from, or in the course of, or that was materially contributed to by, Mr Perry’s employment are references to his employment with the Respondent, and not to any previous employment.
THE MEDICAL EVIDENCE
From around 1986 Mr Perry was employed as an Integrated Rating in the marine industry, which was essentially a labouring job. There is no evidence that he had any problem with his right knee before an incident on 8 March 1995 where he slipped on a wet surface and his right knee twisted and gave way. At the time, he was employed by ASP Ship Management.
Mr Perry was examined by Dr Greg Gillett, Orthopaedic Surgeon. Dr Gillet performed a medial meniscectomy for a displaced bucket handle tear. He wrote a report on the day of the operation, 11 April 1995, to Mr Perry’s treating General Practitioner.[10] In that report, he said:
“I have arthroscoped David’s knee today. The findings were that he had a displaced bucket handled tear of his medial meniscus. The medial collateral ligament is stable. The anterior cruciate ligament clinically reveals one plus drawer and a negative pivot shift but it is ruptured on the arthroscopic examination. The lateral side is normal and the patello-femoral joint is normal.
The displaced bucket handle has been arthroscopically excised.
He will now undertake a rehabilitation programme and in the longer term may require a cruciate ligament reconstruction but I would be optimistic that he won’t and he will do well with an exercise programme.”
[10] Exhibit T1: Section 37 T-Documents T5.
A few months after the medial meniscectomy, Mr Perry had an anterior cruciate ligament reconstruction. According to Mr Perry, he had nine months off work before returning as a full-time Integrated Rating. There is some evidence of ongoing symptoms in his right knee.
On 12 February 2010, nine months before the injury, Mr Perry was examined and assessed for permanent impairment by Dr Cameron Cooke, Orthopaedic Surgeon. Mr Perry said that was for the purpose of getting mortgage insurance, although he could not explain why the report was addressed to the “Registrar of the Supreme Court/District Court”.
Dr Cooke’s report[11] contained the following:
[11] Exhibit T1: Section 37 T-Documents T7.
“Mr Perry reports that since the injury and subsequent surgery, he has been unable to fully extend his knee. He describes start up pain within the knee joint particularly on the medial side. He states that if he is working on a ship when the sea is rough, he will experience pain in his knee the following day. He finds that uneven ground also causes medial pain. He has not experienced any locking. He has not experienced any ongoing instability within the knee.
Current Treatments
Mr Perry takes Panadol Osteo for his leg symptoms.
…Work Activity Limitations
Mr Perry reports that he is unable to crawl into small spaces when at work. He has difficulty walking sideways. He reports knee discomfort when the sea is rough.
Daily Living and Recreational limitations
Mr Perry reports that stairs cause him discomfort and he has trouble negotiating these in a regular manner. He finds that mowing the lawn and using the whipper snipper causes discomfort.
Physical Examination
…He mobilised with a normal gait. There was a flexed attitude to the right knee…There was a fixed flexion deformity of 5°. Active flexion was to 120°.
Diagnostic Investigations
Plain radiographs performed on 15/06/2009 show mild tricompartmental osteoarthritis with a degree of narrowing of the medial fibiofemoral articulation.”
Dr Cooke made the following diagnosis:
“Assessment
The described injury is consistent with causing the anterior cruciate ligament disruption, and medial meniscectomy.
Medical and Therapeutic Management Issues
Mr Perry has received appropriate investigations and treatment for his knee. There is no current treatment required. In the long term, Mr Perry may require surgery if his degenerative osteoarthritis continues to progress and causes more symptoms resulting in functional limitation. I would expect that this would be at least five to ten years in the future. In my opinion, the described injury has resulted in the post traumatic osteoarthritis.”
(Underlining added)Mr Perry’s evidence to the Tribunal was that, at that time of that assessment, he had some impairment and it never got better but he was able to perform the functions of his job. It did not limit his movement but after several hours he would get sore and have to take Panadol Osteo.
In May 2010, Mr Perry sustained an injury to his left knee.
On 14 November 2010, when Mr Perry was working on the Miclyn Endurance in the Respondent’s employment, he had another accident in which he injured his right knee. Mr Perry later submitted a worker’s compensation claim.
Dr Cooke examined Mr Perry on 22 January 2011. In a letter to Dr Wuth (Mr Perry’s GP) he said the following:[12]
[12] Exhibit T1: Section 37 T-Documents T10, pages 23 to 24.
“David reports he sustained an injury to his right knee in early December when out at sea. At the time it was quite rough and he tripped over a step when coming out of his cabin. He reports that he was limping for some five to six days after the injury and while on the boat has experienced a number of episodes of locking within the knee.
David had an ACL reconstruction on the right knee some fifteen years ago and generally has been managing quite well, although he did have some minor symptoms secondary to his osteoarthritis.
Examination
David was mobilising with an antalgic gait secondary to right knee pain. I was unable to detect an effusion in the knee. There was mild tenderness over the lateral joint line. There was a preserved range of motion. There was a mild anterior drawer. Meniscal provocation tests were negative.
Investigations
Recent x-rays performed on the knee show evidence of a prior ACL reconstruction with some mild to moderate degenerative changes within the joint.
Assessment
David may have sustained a meniscal injury or aggravated his underlying degenerative arthritis.”
(underlining added)
An MRI was done on Mr Perry’s knee on 1 February 2011.[13] The report indicated that the ACL graft remained intact although there was a degree of anterior tibial draw, and that the posterior cruciate ligament was intact.
[13] Exhibit T1: Section 37 T-Documents T11, pages 25 to 26.
Dr Cooke examined Mr Perry on 5 February 2011.[14] Dr Cooke reported that the MRI confirmed moderate degenerative changes in the medial tibiofemoral articulation, while the reconstruction of the ACL appeared intact. There was also a ganglion cyst within the posteromedial aspect of the knee. Dr Cooke thought Mr Perry’s current symptoms were primarily due to aggravation of his underlying medial compartment osteoarthritis, and he hoped the symptoms would improve over the coming months.
[14] Exhibit T1: Section 37 T-Documents T12, page 27.
In March 2011, Mr Perry lodged a claim for worker’s compensation. In April 2011, liability was accepted for a “temporary aggravation” of his “right knee degenerative condition”.
According to Mr Perry, since the 2010 injury, he has been unable to:
· walk long distances or short distances over uneven ground without pain and locking;
· run or jog;
· crawl on his right knee;
· twist without pain;
· climb stairs without constant stopping or climb a vertical ladder without pain;
· stand or sit for any length of time;
· bend the knee fully without pain, or straighten it; or
· kneel on the right knee.[15]
[15] Exhibit A2.
Some of these symptoms and restrictions were noted in Dr Cooke’s report that was done prior to the injury: Mr Perry had mentioned difficulty walking on uneven ground without pain, crawling into a small space, negotiating stairs and bending the knee.
Professor Peter Steadman, Consultant Orthopaedic Surgeon, examined Mr Perry on 11 December 2012 and he provided a report on 18 December 2012.[16] Mr Perry told Professor Steadman that after the incident he had managed to keep working for the next 14 to 15 days before returning to town. He took some Panadol Osteo and anti-inflammatories. He had then seen Dr Wuth who had referred him to Dr Cooke. He had not had any treatment since then, saying he could not afford physiotherapy. He had not returned to work since the incident. He was not taking any analgesics but two weeks prior, Dr Cooke had given him a Synvisc injection for his right knee, which is normally given for arthritis. Mr Perry described it as a “liberating experience” and said his knee was feeling very good. Mr Perry’s Body Mass Index (“BMI”) was 45. I mention this because Dr Steadman thought obesity was a significant contributing factor to his problems with Mr Perry’s right knee.
[16] Exhibit T1: Section 37 T-Documents T19.
Dr Steadman had access to an X-ray taken in June 2009 which showed osteoarthritis of the right knee, an X-ray dated January 2011 confirming right knee osteoarthritis, and the MRI that was done in February 2011.
Dr Steadman opined that Mr Perry was suffering from right knee osteoarthritis and that his history of right knee problems was related to his 1995 injury. Specifically, he said:
“Mr Perry has ongoing pain and discomfort but the work related condition has not substantially altered the course of his right knee problem. He has been on a gentle slide of constitutional degeneration following the injury of 1995.”
Dr Steadman concluded that Mr Perry had experienced a progressive problem in his knee following the injury in 1995 and that the injury on 14 November 2010 was “in essence a short term aggravation of the longer term problem”. He thought the aggravation had passed but that “his main claim for the knee problem lies in the injury of 1995.” Professor Steadman thought Mr Perry was, at that time, only capable of undertaking sedentary work, taking into account his obesity and the knee problems. He did not think any additional treatment was likely to be of value, although repeated Synvlsc injections could be of some benefit. He recommended weight loss would as the main strategy, saying that if Mr Perry could lose 50 kilograms his knee pain would go away.
On 21 July 2015, Dr Cooke provided a report that primary addressed the prior injury to his left knee and confirmed that Mr Perry’s incapacity for work was due to the condition in his right knee.
On 29 January 2018, Dr Garth Crichton provided a medical certificate certifying Mr Perry as unfit for work between 29 January and 30 June 2018 due to “prior work related meniscus and ACL injuries requiring surgery.”[17]
[17] Exhibit T1: Section 37 T-Documents T24, page 57.
On 21 July 2022, Piyush Raj provided a workers’ compensation medical certificate certifying Mr Perry as unfit for any type of work due to his right knee post traumatic osteoarthritis from “prior work related meniscal and ACL injuries requiring surgery” and that Mr Perry required treatment from 21 July to 21 October 2022.[18]
[18] Exhibit T1: Section 37 T-Documents T32, pages 79 to 82.
In September 2021, Mr Perry submitted a claim for lost wages and medical expenses.
In April 2023, Professor Steadman provided another report on the Applicant’s right knee.[19] At this time, Mr Perry had a BMI of 44.
[19] Exhibit R3.
Professor Steadman reviewed previous medical reports and diagnostic tests. He observed that an X-ray on 3 November 2015 confirmed bilateral knee osteoarthritis, an X-ray on 9 September 2019 confirmed bilateral knee arthritis with the right being worse than the left, and an X-ray on 15 July 2020 confirmed advanced osteoarthritis of the right knee.
Professor Steadman said the X-rays performed over a long period of time were consistent and sequential in regard to the progression of osteoarthritis, and that there was every likelihood that the mild osteoarthritis of the right knee represented a clinical continuum from the 1995 ACL reconstruction, particularly the resection of the bucket handle tear of the medial meniscus. He noted that overall evidence suggested that medial compartment osteoarthritis following medial meniscectomy was a common and potentially debilitating condition. He expressed the view that it was likely that the main contributing factor to Mr Perry’s osteoarthritis in his right knee was the 1995 injury that led to the medial meniscectomy and ACL reconstruction. He said compounding factors that would likely lead to additional deterioration included morbid obesity, which he described as a major contributing factor.
Professor Steadman did not think it likely that the 2010 injury was not substantial enough to alter the course of the underlying osteoarthritis when all factors were considered. He opined that the effect of the 2010 injury as a contributing factor would have ceased shortly after the incident – around four to six weeks. Professor Steadman pointed to the evidence in Dr Cooke’s 2011 report and the MRI which indicated that there was no material change in Mr Perry’s right knee following the 2010 injury.
Relevant to that, when asked to identify the physiological impact of the 2010 injury, i.e. how it had aggravated the underlying condition, Professor Steadman gave a somewhat speculative answer. He said it could have been a soft tissue injury or something to that effect that caused some inflammation that led to pain and swelling in the knee. He clarified that the arthritis itself was not an injury but a process, and that if it were to be represented graphically, there was a gentle slope of downward deterioration from 1995 through to the present day, but in 2010 there might be a little (downward) spike when the knee became sore after the injury. He said an aggravation involving soft tissue will pass after about four to six weeks, and then the gradual decline will resume.
Professor Steadman considered that Mr Perry was only fit for sedentary work and that his incapacity for other work was due to morbid obesity, right knee osteoarthritis and left knee osteoarthritis. He attributed 25% of Mr Perry’s current condition to the 1995 injury and 75% to constitutional morbid obesity comorbidity factors.
In his oral evidence, Professor Steadman explained that although people have an ACL reconstruction to prevent arthritis, depending on the severity of the injury that caused the ACL disruption, a significant proportion of people go on to get arthritis. He said the X-rays showed quite an acceleration of Mr Perry’s arthritis in the last five years, and that it is now quite severe and looking very worn out. Professor Steadman pointed out that the arthritis in Mr Perry’s right knee is not localised – it affects the whole knee – and that is consistent with the 1995 injury and its consequences.
According to Mr Perry, he has not been employed since the injury because he is no longer fit to work at sea and he had not been able to secure alternative employment. He said that prior to the injury his right knee was in manageable shape and he could work. He described the injury as a watershed moment where his knee took a turn for the worse, he has not been able to work since, and his knee has never been the same since. He was unwilling to accept that he was overweight and that his weight could be a contributing factor to the condition of his right knee. At times, he accepted that his current condition was a consequence of the 1995 incident.
CONSIDERATION
As stated above, Mr Perry’s entitlement to lost wages for any period after 1 June 2012 depends on him being unable to work in that period due to an injury arising out of, or in the course of, his employment. Under section 3 of the act “Injury” is defined to mean:
(a) a disease; or
(b) an injury; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee being an aggravation that arose out of, or in the course of, that employment.
To find in Mr Perry’s favour, I would have to find that the 2010 injury itself caused ongoing incapacity or that the 2010 injury aggravated the pre-existing osteoarthritis. An aggravation of the pre-existing condition would suffice because the definition of “disease” includes an “ailment or an aggravation that was contributed to in a material degree by the employee's employment”. “Ailment” is defined to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. The pre-existing condition, as it is described by Professor Steadman, meets the definition of “ailment” and an aggravation of it meets the definition of “disease”.
The case of Woodhouse v Comcare (2021) 285 FCR 14 concerned liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”). In that case, the Full Court of the Federal Court said, in relation to the equivalent section in the SRC Act:
“Section 14 only imposes liability on Comcare where, amongst other things, the ailment in respect of which the claim is made remains an “injury”. In the case of an ailment said to constitute an “injury” on the basis that it is a “disease”, the ailment must be one which continues to owe its existence to the contribution to, in a material degree, the employee’s employment. (For the avoidance of doubt, this does not require causation in the sense of a “but for” test: Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232 [67]). In those unusual cases, such as the present, where the disease persists but only by reason of factors unconnected to the contribution of the employment, Comcare’s liability will have ceased.
Conversely, the applicant’s preferred construction should be rejected. Comcare has no liability under s 14 in relation to an ailment, the continued existence of which can no longer be said to have the necessary causal connection to the employee’s employment. The mere fact that the ailment suffered may once have had the necessary connection is irrelevant. Even where the ailment continues unabated, if it ceases to have the characteristic of being one which was relevantly contributed to by the employee’s employment, Comcare’s liability ceases.[20]
(Underlining added)
[20] [89]-[90].
For how long after the 2010 injury did that injury materially contribute to Mr Perry’s right knee condition such that he could not perform his duties? In early 2010, Dr Cooke did not expect Mr Perry’s underlying condition to cause limitation for another 5 to 10 years. Professor Steadman’s evidence is that the 2010 injury would have resolved after four to six weeks and that, apart from a temporary spike, it did not alter the course of the pre-existing degenerative condition. However, Mr Perry claims to have been unable to work after the 2010 injury, and Professor Steadman assessed him in 2012 as only fit for sedentary work. It is difficult to reconcile this evidence.
There is reliable evidence that just prior to the 2010 injury, Mr Perry was experiencing some discomfort, pain and restriction of movement in his right knee. However, he was able to work, sometimes with the help of analgesia. In the days immediately following the injury Mr Perry continued to work but he was limping for five or six days, he had experienced a number of episodes of locking within his knee, and he was not able to continue to perform his duties thereafter.
Professor Steadman gave evidence that the MRI and Dr Cooke’s assessment done in early 2011 indicated no material change following the injury. He thought any physiological impact of the 2010 injury would have been soft tissue injury. Dr Cooke hoped the symptoms would improve in the months following the injury. There was no further examination of Mr Perry’s knee until December 2012 – over a year after the injury – when Professor Steadman examined it. By that time, Mr Perry had spent time in prison and lost his job, and he was claiming for lost wages dating back to September 2011.
I find it significant that according to Professor Steadman, the arthritis in Mr Perry’s right knee is not localised and that is consistent with the condition arising from the 1995 injury. I also find it significant that Mr Perry was already experiencing some pain and limitation of movement prior to the injury. According to Professor Steadman, a major contributing factor to Mr Perry’s right knee condition is excess weight, and that was the case when he saw him in 2012. I accept his expert opinion about that.
In 2018, Dr Crichton thought Mr Perry was unfit for work due to “prior work related meniscus and ACL injuries requiring surgery” which is a reference to the 1995 injury and subsequent condition. The 2022 medical certificate also refers to “prior work related meniscal and ACL injuries requiring surgery”. Mr Perry himself gave evidence that his current condition was due to the 1995 injury although he also said the 2010 injury aggravated it and pointed out that it was this injury that stopped him working.
While the evidence does not all fit neatly together to fully explain what happened with respect to Mr Perry’s knee, on balance, I am inclined to accept that the 2010 injury caused soft tissue damage over the top of the underlying degenerative condition, but it did not accelerate the progression of that condition. It is impossible to know when the soft tissue damage healed because Mr Perry’s right knee was not assessed between March 2011 and December 2012. Dr Cooke hoped it would resolve in a matter of months. Professor Steadman thought it should have resolved within six weeks. However, Dr Cooke physically examined Mr Perry shortly following the injury and he had an X-ray and MRI to assist him, so I prefer his opinion. I am satisfied that the effects of the 2010 injury lasted several months. I do not, however think the medical evidence goes as far as establishing, on balance, that the effects lasted to June 2012 and beyond.
CONCLUSION
I am not satisfied that in June 2012 or any time after that, the 2010 injury was a factor that materially contributed to Mr Perry’s ongoing right knee condition. The reviewable decision is affirmed.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy
.........................[SGD]...................................
Associate
Dated: 20 December 2023
Date of hearing: 20 October 2023 Date final submissions received: 26 October 2023 Dated of decision: 10 November 2023
Date of hearing: 8 and 9 November 2023Solicitor for the Applicant: Mr David Perry
Self-Represented
Counsel for the Respondent: Mr Charles Clarke
Solicitor for the Respondent: Ms Hannah Laviano, Sparke Helmore
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
T1
Section 37 T-Documents T1 to T34
T
Various
10 November 2022
A1
Applicant's Statement of Facts Issues and Contentions
A
20 July 2023
20 July 2023
A2
Letter from David Perry to Mathew Hawker
A
17 January 2023
23 January 2023
R1
Respondent's Statement of Facts Issues and Contentions
R
27 June 2023
27 June 2023
R2
Respondent’s Briefing letter to Professor Steadman
R
23 February 2023
20 April 2023
R3
Report of Professor Steadman
R
17 April 2023
20 April 2023
R4
Letter from David Perry to Mathew Hawker
R
17 January 2023
17 January 2023
R5
David Perry Cooks Job Description
R
Undated
17 January 2023
Exhibit List
1
3
0