Perry and Go Marine Group Pty Ltd (Compensation) - [2021] AATA 830

Perry and Go Marine Group Pty Ltd (Compensation) [2021] AATA 830 (9 April 2021)
Division:GENERAL DIVISION
File Number(s): 2019/4042, 2020/2940
Re:David Perry
APPLICANT

Go Marine Group Pty LtdAnd
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:9 April 2021
Place:Brisbane

The reviewable decisions are affirmed.
..............................[SGD]...............................
Deputy President J Sosso
Catchwords
COMPENSATION – osteoarthritis – aggravation of osteoarthritis – condition contributed to by employment – material degree test – pre-existing condition – obesity – decision affirmed
Legislation
Seafarers Rehabilitation and Compensation Act 1992 (Cth)
Cases
Bailey v Broadsword Marine Contractors Pty Ltd [2017] FCAFC 219; (2017) 257 FCR 549
Comcare v Sahu-Khan [2007] FCA 15
REASONS FOR DECISION
Deputy President J Sosso
9 April 2021
INTRODUCTION

Mr David Perry (the Applicant) seeks a review of two reviewable decisions of Go Marine Group Pty Ltd (the Respondent) made pursuant to the Seafarers Rehabilitation and Compensation Act 1992 (the Act) concerning the Applicant’s left knee. Those reviewable decisions are:
(a)a reviewable decision of 8 April 2020 (2020/2940) affirming a deemed determination made on or about 20 January 2020 – Exhibit 2 T5 p. 15, which disallowed a claim for incapacity for work, medical and related expenses in relation to aggravation of arthritis of the left knee. The decision was made in relation to an incident which occurred in November/December 2010, and will be referred to as “the paint tins incident”; and
(b)a reviewable decision of 31 May 2019 (2019/4042) affirming a deemed determination made on or about December 2017 – Exhibit 1 T44 p. 128, which disallowed the Applicant’s claim for incapacity for work, medical and related expenses in relation to arthritis of the left knee. This decision was made in relation to an incident which occurred in May 2010, and will be referred to as “the grate incident”.
The Applicant was born in 1965 and at the time of the Hearing was aged 55 years – Exhibit 1 T7 p. 18. From approximately 1986 the Applicant was employed as an integrated rating in the marine industry, which was essentially a labouring job – Exhibit 1 T27 p. 53, T28 p. 67. The Applicant left high school at 14 years of age and subsequently worked in various jobs involving manual labour – Exhibit 1 T28 p. 67.
From the evidence before the Tribunal, it would appear that the Applicant was in the employ of the Respondent from 1 July 2008 until 7 December 2010 – Exhibit 5 R3 p. 20 para 3.2.
In 1995 the Applicant was employed by ASP Ship Management and was working on the boat “CSL Innovator” which transported sugar from Australia to Indonesia. On 8 March 1995, whilst working on the ship, the Applicant slipped on a wet surface and injured his right knee – Exhibit 5 R5 p. 59.
The Applicant was examined and subsequently operated on by Dr Greg Gillett, Orthopaedic Surgeon. In his report of 11 April 1995 (the day of the operation), Dr Gillett wrote to the Applicant’s treating General Practitioner in the following terms – Exhibit 1 T 45 p. 138:
“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.”
About two to three months after the medial meniscectomy, the Applicant had an anterior cruciate ligament reconstruction – Exhibit 1 T4 p. 8.
The Applicant stated that he had approximately nine months off work and returned as a full-time Integrated Rating thereafter. However, the Applicant claimed that he had ongoing symptoms in his right knee which included a dull ache to the left of the right kneecap if he walked for periods totalling three to four hours and stiffness if he sat for long periods – Exhibit 1 T34 pp. 101- 102 paras 10 – 13.
On 12 February 2010 the Applicant was examined and assessed by Dr Cameron Cooke, Orthopaedic Surgeon – Exhibit 1 T4 p. 7.
The Applicant informed Dr Cooke that he had been unable to fully extend his right knee and experienced pain within the knee joint, particularly on the medial side. Pain was experienced when he was working on a ship when the sea was rough and when walking on uneven ground. Conversely, the Applicant informed Dr Cooke that he had not experienced any locking or ongoing instability within the knee – Exhibit 1 T4 p. 8.
Dr Cooke reported that the Applicant informed him that he was unable to crawl into small spaces when at work and had difficulty walking sideways. Further, he experienced knee discomfort when the sea was rough – Exhibit 1 T4 p. 9.
Radiographs performed on 15 June 2009 disclosed mild tricompartmental osteoarthritis of the right knee with a degree of narrowing of the medial tibiofemoral articulation – Exhibit 1 T4 p. 9.
Dr Cooke made the following diagnosis – Exhibit 1 T4 p. 10:
“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.”
The Applicant reported an incident which occurred on 1 May 2010 whilst he was aboard the “Toisa Dauntless” (the grate incident). An Incident Report prepared at the time contains the following information about this incident – Exhibit 1 T5 p. 12:
“Casualty tripped on grating that had been cut away from a deck lug for a previous contract. He was moving a mooring rope and did not see the grate had been cut away and placed his foot in the hole and stumbled to the deck. Since this incident he has complained of a sore knee. Now some days later he decided that it is not improving and needed a formal report into the incident.”
In his Workers’ Compensation Claim Form dated 2 July 2010, the Applicant described the incident as follows – Exhibit 1 T7 p. 21:
“Preparing for mooring, had just taken a step back …my left foot fell down cut away grate, causing myself to fall backwards to the deck. This caused my left knee to twist as my foot was down in hole of grating. I was stepping back.”
The Applicant gave the following testimony about this incident – Transcript (Tr.) 21.1.2021 p. 10:
“…my foot went down the hole, I fell backwards, and my leg got – my foot got trapped in there, my knee got twisted, my groin got all twisted out of shape and my leg was splayed…I had no problems with my left knee, I had no pain I had nothing. My strong knee, if I could say that, compared to the right one… I’ve been suffering the pain ever since…”
An X-ray of the Applicant’s left knee was performed on 3 June 2010 by Dr Peter Ross. In his notes of that date, Dr Ross made the following observations – Exhibit 1 T46 p. 183:
“LEFT KNEE XRAY
There is minimal osteoarthritis. I do not see a joint effusion. There are multiple small metallic foreign bodies in the lower anterior thigh and I think within the femur.”
On 17 June 2010 the Applicant was examined by Dr Cooke. In his report of the same date, Dr Cooke made the following observations – Exhibit 1 T45 p. 162-163:
“Presenting Complaint and Relevant History
This 44 year old seafarer sustained a workplace injury to his left knee on 3 May. David reports at the time they were tying up at the berth on an oil rig when his foot got caught in a grate. He subsequently twisted his left knee and felt a cracking sensation. David stayed at sea for approximately four weeks. He stated that for the first couple of days he took things fairly easy. He has been experiencing medial joint line pain and locking. David has also been experiencing anterior knee pain with ascending stairs.
David reports he is otherwise in good health. He has a prior right anterior cruciate ligament reconstruction.
Examination Findings
David was mobilising with a normal gait. Examination of the left knee revealed tenderness over the medial joint line. I was unable to detect an effusion. There was a preserved range of motion. Meniscal provocation tests caused some discomfort. The knee appeared stable on the coronal and sagittal planes.
Investigations
Plain x-rays performed on the knee do not show any significant abnormality.
Assessment
I suspect David has sustained either a chondral injury or meniscal tear.”
Dr Cooke referred the Applicant for an MRI scan, and on 19 June 2010 wrote to Dr Wuth, the Applicant’s treating GP, in the following terms – Exhibit 1 T45 p. 161:
“I saw David today with the MRI scan. This shows that he has a radial tear involving the posterior horn and medial meniscus. There is also a moderate degree of chondromalacia patellae.
I have explained to David that I feel he has two pathologies causing his current knee symptoms. He describes posteromedial knee pain with squatting which I feel is secondary the meniscal tear and would be improved with an arthroscopy. The anterior knee pain is most likely secondary to his retropatellar chondral changes is unlikely to be helped with any form of surgery. David is going to have a think about his options and will contact my rooms if he wishes to proceed with an arthroscopic debridement.”
On 30 July 2010 liability was accepted for the Respondent’s left knee injury – Exhibit 1 T44 p. 129.
Dr Cooke performed a left knee arthroscopy on the Applicant on 3 August 2010. The following findings were made by Dr Cooke – Exhibit 1 T45 p. 153:
“The findings were that of Grade III chondral changes over the femoral condyle and over the central aspect of the patella. A chondroplasty was performed. There was synovitis over the anterior portion of the knee and this was also debrided.”
Following his surgery, the Applicant underwent a rehabilitation program which included physiotherapy. He was examined on at least two occasions post-operation by Dr Cooke. On 12 August 2010 Dr Cooke opined that the Applicant was “making good progress at this early stage.” Dr Cooke was also happy for him to do all “activities as tolerated” – Exhibit 1 T45 p. 152.
The Applicant was again examined by Dr Cooke on 9 September 2010, who reported he “was pleased to hear that he is much improved compared with his preoperative status.” Dr Cooke noted that the Applicant was doing a weights program which was planned to conclude in two weeks. After this Dr Cooke was “happy for David to then return to his normal work duties as tolerated” – Exhibit 1 T45 p. 151.
On 23 October 2010 the Applicant was examined by Dr Harland who issued an Australian Maritime Safety Authority Certificate of Medical Fitness certifying that he was fit to return to work as an Integrated Rating – Exhibit 1 T12 p. 28.
The Applicant recommenced full-time duties and in November 2010 was working on the “Miclin Endurance” which was laying beacons on the sea bed for a new pipeline in Bass Strait. Employment duties entailed working on the night shift between 6:00 pm and 6:00 am and ensuring cargo on board was correctly restrained – Exhibit 1 T26 p. 47 paras 23 – 24. In his statement of 3 December 2012, the Applicant provides the following account of the paint tins incident – Exhibit 1 T26 p. 48 paras 25 – 32:
“25. As part of my duties I was also required to take a stocktake of all the paint cans in the paint locker. This required us to take out all of the paint cans in the paint locker and identify which of them was lead based paint.
26. There were approximately 80 cans. They were approximately 16 litres each drum and weighed approximately 20 kg each, each 16l drum had a corresponding hardener or thinner which was 4-5 litres, along with 4 litre cans of associated paints and primers.
27.In the locker where they were held, there were three shelves which housed the paint cans. The top shelf was above chest height, the middle shelf was about waist height and the lowest shelf was deck level.
28. The paint locker was in a very confined space and we had to in fact crouch down to get to the pain underneath the bottom shelving of the locker.
29.Our job was to take out all the drums individually to do the stocktake, and then put them back. We would perform a two man lift, when possible in getting the 20 kg drums off the shelves and move the lead based paint to another area about 30 metres away. We did this activity over approximately three nights.
30.Within about an hour or so of performing this activity on the first day, I felt a sharp left leg pain from down the groin through to the knee. I initially thought that this was my prior knee injury playing up so I just kept working.
31. The next day I performed the rest of these activities and put the paint cans back into the shelves. I was then taking the rubbish out aboard the ship and as I was doing so I stepped of [sic] a walk way on to some uneven weld on the deck and bent my right knee inwards. The step was 300mm high, and the sea was rough.
32. I continued to have right knee pain with restricted movement; I coughed whilst in bed and felt a movement in my groin. I finished the remainder of my duties whilst taking it easy.
33. When the ship berthed in Foster, Melbourne in early December 2010, I went to Foster Medical Centre and sought treatment in relation to my left groin and right knee”
It will be noted that in this statement made two years after the paint tins incident, the Applicant makes no reference to his left knee being injured, instead reference is limited to his left groin and right knee.
On 7 December 2010 the Applicant was examined by Dr Tzy Ning Chuo of the Foster and Toora Medical Centres in Victoria. The Applicant complained of two conditions he was suffering from. The first was a right knee injury which Dr Chuo noted occurred “3 weeks ago” and had resulted in the right knee “locking intermittently” and the Applicant suffering “pain over the lateral aspect and back of R knee”. Second, since the accident the Applicant has noticed “L groin lump when coughing” which was associated with “heavy lifting on ship” – Exhibit 5 R6 p. 65.
Dr Chuo issued a Certificate of Capacity in which she referred to right knee pain and intermittent locking as well as right knee ligamental strain/meniscal tear – Exhibit 5 R6 p. 67.
It will be noted that Dr Chuo made no reference either in her contemporaneous clinical notes or Certificate of Capacity to the Applicant’s left knee. When the Applicant gave evidence he testified that he and Dr Chuo “had a bit of a problem with our communicating with our language…The lady I couldn’t quite understand her accent…her English was beautiful, perfect…but I think some things she didn’t pick up on” – Tr. 21.1.2021 pp. 15 – 16.
On 23 December 2010 the Applicant was assessed by Dr Wuth. It is of some importance to set out extracts of the notes of that examination and assessment – Exhibit 1 T46 p. 176:
“While at sea
Injured R knee stepping down
Had ACL injury in past
See letter fromn [sic] Dr
Knee pain settlign [sic] since back, but need lx as was locking
Examination
R knee – ROM OK, some pain near hamstring insertion laterally
For referral and XR
Also L inguinal hernia…
Some cough impulse L side…”
It will be noted that Dr Wuth makes no mention of the Applicant’s left knee, and specifically refers to the injury to the right knee.
The Applicant continued to see Dr Wuth in the first half of 2011, and complained of ongoing knee pain, especially at night – Exhibit 1 T46 p. 180.
During this period the Applicant was also being treated by Dr Cooke on referral by Dr Wuth. Dr Cooke examined the Applicant on 22 January 2011, and in a letter of the same date to Dr Wuth made the following observations – Exhibit 1 T45 p. 149:
“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.”
Dr Cooke again assessed and examined the Applicant on 5 February 2011 following an MRI being performed on the Applicant’s knee – Exhibit 1 T45 p. 148:
“I saw David today for follow up of his knee MRI. This confirms that he has moderate degenerative changes in the medial tibiofemoral articulation. The reconstruction of the ACL looks intact. There is also a ganglion cyst within the posteromedial aspect of the knee.
I have explained to David that I feel his current symptoms are primarily due to aggravation of his underlying medial compartment osteoarthritis. David is intending to lose some weight presently which would help with his knee symptoms. I would hope that his knee symptoms will improve over the coming months. I plan to see David again in two months to check on his progress.”
On 1 March 2011 the Applicant lodged a claim for compensation with respect to his right knee condition referable to the incident of 14 November 2010. In the claim the Applicant stated he injured his right knee when his slipped in a walkway when taking garbage out – Exhibit 1 T14 pp. 30 – 33.
On 18 April 2011 this claim was accepted for “a temporary aggravation” of the Applicant’s “right knee degenerative condition” – Exhibit 1 T21 p. 41.
The Applicant also lodged a claim for compensation on 4 March 2011 in relation of his hernia condition which it was said arose out of the paint tins incident – Exhibit 1 T44 p. 129.
No claim was lodged, however, for any injury to the Applicant’s left knee arising out of the paint tins incident.
On 18 May 2011 the Applicant was found guilty of two counts of giving false evidence pursuant to s 33(1) of the Australian Crime Commission Act 2002 and was sentenced in the District Court of Queensland to imprisonment for 12 months – Exhibit 5 R8 pp. 78, 80 – 81.
On 16 September 2011 the Queensland Court of Appeal allowed the Applicant’s appeal against conviction on one count and set it aside and entered a verdict of acquittal. The appeal against the second count was dismissed. The Applicant was ordered to be released immediately on specified conditions – Exhibit 1 R8 p. 79.
The Applicant was referred to Associate Professor Peter Steadman, Consultant Orthopaedic Surgeon, for examination and assessment. Dr Steadman examined the Applicant on 11 December 2012 and provided a detailed report dated 18 December 2012 – Exhibit 1 T27 pp. 51 – 61. The Applicant was referred to Dr Steadman in relation to the injuries he sustained as a result of the paint tins incident.

Dr Steadman provided the following summary of his clinical examination of the Applicant – Exhibit 1 T27 p. 54:
“On examination of both knees, he has scars. The left one has a gunshot scar at the suprapatellar area. The quadriceps measures 64 cm. The right has a middle third patellar tendon harvest over the area between the patella and the tibial tubercle consistent with a previous surgery and he has lost 20 degrees of flexion. He has no effusion. Again his quadriceps is equal and symmetrical at 64 cm.
His hips are not uncomfortable to flex and rotate. There is no evidence of any dystrophy and he has equal power, sensation and reflexes.
Mr Perry is morbidly obese.”
In response to the Question of what condition/s the Applicant then suffered from, Dr Steadman opined as follows – Exhibit 1 T27 p. 57:
“Mr Perry suffers from right knee pain.”
Dr Steadman opined that the Applicant was suffering from right knee osteoarthritis and that the history of right knee problems were related to his 1995 injury. Further, Dr Steadman made these observations – Exhibit 1 T27 p. 58:
“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 Cooke prepared a further report on the Applicant which is dated 21 July 2015. He referred to the left knee arthroscopy of 3 August 2010 and opined that the Applicant had “made a good recovery from this surgery” – Exhibit 1 T37 p. 110.
The focus of Dr Cooke’s investigations was the Applicant’s right knee. Dr Cooke made these observations – Exhibit 1 T37 p. 110:
“Mr Perry was referred back to me on 20 January 2011. He reported that he injured his right knee when he was coming out of his cabin. He stated he had a prior right knee ACL reconstruction some 15 years prior and up until the recent event, only had mild symptoms secondary to underlying osteoarthritis. An MRI scan was subsequently arranged on the right knee. This showed moderate degenerative changes in the tibiofemoral compartment along with mild patellofemoral degenerative changes. Mr Perry was advised conservative treatment for his knee. He subsequently had visco supplementation with an intra-articular Synvisc Injection, performed on his right knee on 26 November 2012. He had a good response to this.”
In response to the Question of whether the Applicant ceased work due to his left or right knee condition, or a combination of both, Dr Cooke gave the following response – Exhibit 1 T37 p. 110:
“The reason Mr Perry ceased work was due to aggravation of underlying osteoarthritis of his right knee.”
Subsequently, Dr Cooke made these observations – Exhibit 1 T27 p. 111:
“After the injury to the left knee, Mr Perry returned to his work duties as a Stevedore. It was the right knee injury that prevented him from continuing his work activities.”
The Applicant made a further Workers’ Compensation Claim on 12 December 2017 for arthritis of the left knee. This claim was made in relation to the grate incident – Exhibit 1 T39 pp. 113 – 117. Two medical certificates completed by Dr Garth Crichton dated 29 January 2018 and 23 July 2018 were provided by the Applicant. Dr Crichton certified that the Applicant was suffering from left knee osteoarthritis, the cause of which was “Prior work related meniscus injury requiring surgery” – Exhibit 1 T40 – 41 pp. 118 – 119.
On 6 December 2019 the Applicant made a further Workers’ Compensation Claim for “aggravation of arthritis” of his left knee with respect to the paint tins incident – Exhibit 2 T4 pp. 10 – 14.
On 8 April 2020 the Applicant’s claim for incapacity for work and medical and related expenses in relation to “aggravation of arthritis – left knee” was disallowed – Exhibit 2 T6 pp. 17 – 21.
In affirming a deemed determination, the decision-maker observed regarding the claimed condition of aggravation of left knee arthritis – Exhibit 2 T6 p. 19:
“…there is no medical evidence to suggest that you suffered an aggravation as a result of the November 2010 incident. I note that you have not provided any medical evidence in support of your claim.”
The decision-maker went on to make the following findings – Exhibit 2 T6 p. 20:
“The available evidence indicates that you had earlier suffered from a left knee injury in May 2010, however, you recovered after treatment and returned to work.
The evidence does not indicate that you suffered from a left knee injury in or around November 2010…
We also note that on 1 March 2011, you submitted a claim for compensation in respect of your right knee condition referable to alleged events on 14 November 2010. You claimed to have injured your right knee, on approximately 14 November 2010, when you ‘slipped in a walkway’ when ‘taking garbage out’.
There is presently no medical evidence supporting a conclusion that your former employment has materially contributed to your currently claimed aggravation of left knee arthritis.
Accordingly, we are not satisfied that liability exists under section 26 of the Act for the claimed aggravation of left knee arthritis.
It therefore follows that liability does not exist to pay for incapacity payments under section 31 and medical treatment under section 28 of the Act for the aggravation of left knee arthritis.
Even if liability existed under section 26, we have also noted that the available specialist evidence that Dr Cooke and Dr Steadman points to a conclusion that it was an injury other than your left knee condition which resulted in an incapacity for work.”
In a statement dated 23 May 2019, the Applicant claimed that both the grate and paint tin incidents had resulted in injuries to his left knee. This, it will be recalled, is somewhat different to the Applicant’s statement of 3 December 2012 (Exhibit 1 T26 pp. 46 – 50). With respect to the grate incident the Applicant stated – Exhibit 1 T43 p. 122:
“19. I was tying vessel up at a berth in Dampier when my left foot got caught in a grate causing me to fall backwards to the working deck spraining my left leg and twisting my left knee. I felt a cracking sensation in my left knee, with extreme pain.”
With respect to the paint tins incident, the Applicant provided the following account – Exhibit 1 T43 pp. 123 – 124:
“29. Our instructions were to take out all the drums individually to do the audit, and then separate and isolate the lead based paint and re-stow the non-lead based paint back in the locker. We would perform a two-man lift, when possible in getting the 20 kg drums off the shelves and move the lead based paint to another area about 30 metres away into bins. We did this activity over approximately three nights as we had other duties to attend too [sic].
30. Within about an hour or so of performing this activity on the first day, I felt a sharp left leg pain from the left groin through to the left knee. This occurred when I went to pull out a 16L paint tin. I initially thought that this was my prior left knee injury playing up so I just kept working and took the pain medication.
31. The next watch we performed the rest of these activities and put the final paint cans back onto the shelves. I was then taking the galley rubbish out to the bins, as the cook would leave it at the last door in the accommodation to save them having to put their deck safety gear on and as I was doing so I tried to step off the walk way. My left leg seemed to stop working and I had no control coming off the step. My right foot landed on some uneven weld on the deck and bent my right knee inwards causing pain. The step was 300mm high, and the sea was rough. I remained on my feet as I grabbed, I believe, the rubbish crusher with my right hand.
32. I continued to have right knee pain with restricted movement and left knee pain; I coughed whilst in bed and felt movement in my groin where I had felt the pain on the right doing the paint audit. I made a report to the chief officer who made an appointment for me to see a medical doctor.
33. When the vessel berthed at Barries Beach Victoria, on 6^th December 2010, I attended Foster Medical Centre and sought treatment in relation to the left leg pain and cough impulse and right knee injury…
37. I saw Dr Cooke in around January 2011 and he performed an MRI of my right knee in February. Dr Cooke suggested upon review of the MRI that I had physiotherapy however I could not afford it. I also raised the ongoing pain in my left knee.”
On 31 May 2019 the Applicant’s 12 December 2017 claim for arthritis of the left knee was disallowed – Exhibit 1 T44 pp. 128 – 132.
The decision-maker referred to two workers’ compensation medical certificates issued by Dr Crichton as well as medical reports of Dr Cooke – Exhibit 1 T44 p. 130.
The following reasons were given by decision-maker for disallowing the claim – Exhibit 1 T44 p. 131:
“…there is presently no specialist evidence supporting a conclusion you suffer from the claimed left knee arthritis. I have noted the medical certificates issue [sic] by Dr Crichton asserting a diagnosis of left knee osteoarthritis. There is no clinical reasoning provided to explain on what basis the GP was satisfied of that diagnosis or what radiological testing, if any, took place. On the face of the available evidence, it would appear the GP simply accepted your self-reported history of symptoms.
However, even assuming the diagnosis is able to be clinically justified, the ‘material’ contribution test must be satisfied…
The available evidence indicates that you had earlier suffered from a left knee injury in May 2010, however you recovered after treatment and returned to work.
Since that time in 2010, there is a significant gap in the available records of any left knee symptoms or any indication of the employment, recreation or other activities you have engaged in other than a clear indication that you had a period of incarceration.
Furthermore, there is presently no medical evidence supporting a conclusion that your former employment has materially contributed to your currently claimed left knee osteoarthritis.
Although the GP noted your asserted cause, it appears the GP was not prepared to ‘tick’ the relevant box on the medical certificates to certify that the diagnosis was consistent with the asserted cause.
Accordingly, I am not satisfied that liability exists under section 26 of the Act for the claimed left knee arthritis.
It therefore follows that liability does not exist to pay for incapacity payments under section 31 and medical treatment under section 28 of the Act for the left knee arthritis.
Even if liability existed under section 26, I have also noted that the available specialist evidence that Dr Cooke and Dr Steadman points to a conclusion that it was an injury other than your left knee condition which was bringing about an incapacity for work. Indeed, that was also your claim regarding the right knee injury which was disallowed and not successfully appealed.”
THE HEARING
A Hearing was convened in Brisbane on 21 January 2020 and the parties participated remotely by means of Microsoft Teams.
The Applicant was self-represented and did not call any witnesses.
The Respondent was represented by Mr Charles Clark of Counsel and the only witness called was Dr Steadman.
The Applicant elected to give evidence and was subject to cross-examination by Mr Clark.
THE LEGISLATION
The Act provides a comprehensive scheme in relation to the rehabilitation and workers’ compensation for seafarers and certain other persons. The legislative scheme is closely modelled on the provisions contained in the Safety, Rehabilitation and Compensation Act 1988.
Part 2 of the Act provides for compensation for injuries, property loss, or damage, as well as medical and related expenses.
Subsection 26(1) provides that if an employee suffers an injury that results in his or her death, incapacity for work, or impairment, compensation is payable for that injury.
Section 28 provides, inter alia, for compensation for the cost of medical treatment of an injured worker, being treatment that was reasonable for the employee to obtain in the circumstances.
The term “injury” is defined in s 3 as follows:
“injury means:
(a)a disease; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include anything suffered by an employee as a result of reasonable disciplinary action taken against the employee, or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
“Disease” is likewise defined in s 3 as follows:
“disease means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or aggravation that was contributed to in a material degree by the employee’s employment.”
“Ailment” is defined in s 3 to mean:
“any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
The injury and disease provisions in the Act were carefully considered by the Full Federal Court in Bailey v Broadsword Marine Contractors Pty Ltd [2017] FCAFC 219. The majority of the Full Court (Reeves and Derrington JJ) provided the following analysis of the Act:
62. It follows that the concept of “injury” as it is used in s 26 is comprised of two broad types of bodily condition which have a relevant connection to the employees’ employment. In general terms they are:
(a) Firstly, a disease (which is defined to include any “ailment”) which was contributed to in a material degree by the employee’s employment; and
(b) Secondly, an “injury (other than a disease)” being a physical or mental injury arising out of, or in the course of, the employee’s employment.
63. The consequence of the above is that the expression “injury (other than a disease)” is a composite expression comprising both the bodily condition identified as a “physical or mental injury” and the relevant connection with the employee’s employment. However, it can be immediately noticed that within the concept of “injury (other than a disease)” the legislation again uses a definition of the word “injury” being a “physical or mental injury”. That concept is sometimes referred to as “injury in its primary sense”, its “ordinary sense” or “injury simpliciter”. These expressions connote that the word is not being used as a composite expression, the elements of which found liability, but as the description of a certain type of bodily condition. In some of the authorities in this area the expression “injury (other than a disease)” is referred to as an “injury simpliciter” or “injury in its primary sense”. When that occurs it can usually be seen that what is actually being identified is “injury” as a bodily condition per se, rather than the concept of a bodily condition which has a relevant causal nexus with the employee’s employment.
64. The word “disease” has also caused confusion amongst the authorities on this topic. As a subset of the definition of “injury” it has a composite meaning; a particular type of bodily condition which was contributed to in a material degree by the employee’s employment. However, the primary sense in which the word “disease” is used in the authorities is as an “ailment”. Unfortunately the word “ailment” is defined by using the word itself. It is likely that the word “ailment” in the expression “physical or mental ailment” is intended to convey its ordinary meaning; being “an illness, disease, or disorder, usually a mild one; a minor complaint affecting part of the body” (Oxford English Dictionary, 2017) or a “morbid affection of the body or mind; indisposition; a slight ailment” (The Macquarie Dictionary, 2017). Additionally, the statutory definition of “disease” extends the ambit to conditions that are both sudden onset and gradual development.
65. Section 10 of the SRCA consists of a number of facilitative deeming provisions relating to causative steps or temporal aspects of claims by employees for compensation for diseases. For present purposes it is s 10(7) which is relevant as it deems an employee not to have suffered an injury in certain circumstances. It provides:
10 Provisions relating to diseases
...

(7) For the purposes of this Act, a disease suffered by an employee, or an aggravation of such a disease, is not taken to be an injury to the employee if the employee has at any time, for purposes connected with his or her employment or proposed employment in the maritime industry, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
66. In this subsection the word “disease” is used in its primary sense in that it does not refer to the concept of an ailment coupled with a causal nexus to an employee’s employment.”
It will also be noted that the test of contribution in the definition of “disease” is that of a “material degree”.
The term “material degree” was helpfully explained by the Finn J in Comcare v Sahu-Khan [2007] FCA 15 as follows:
“13. The modern approach to statutory interpretation, as is now well accepted, attributes a greater significance to context and legislative purpose than previously was the case: see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, at 408. That approach, in my respectful view, was adopted unexceptionably by French and Stone JJ in Canute in their treatment of the legislative history of the definition of "disease" in the SRC Act. I agree with what their Honours have said and, in particular, in their conclusion that the inclusion of the word "material" imposes an "evaluative threshold" below which a causal connection may be disregarded.
14. What is problematic is identifying where that threshold lies. Treloar’s case set its own threshold of sorts for satisfying the 1971 Act’s "contributing factor" requirement. It would, for example, exclude a de minimis contribution or one which did not influence the course of events. But once an employment was found to be a contributing factor to the condition in question, it did not matter whether the contribution was of any particular size or degree: Treloar, at 329. It has not been uncommon for courts, in dealing with statutes requiring such a contribution to be found, to describe that contribution as "material": see eg Repatriation Commission v Bendy [1989] FCA 170; (1989) 10 AAR 323 at 325. That usage is not how the term "material" in the phrase "in a material degree" is used in the SRC Act. The legislative history of this definition makes this plain.
15. There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word "material" in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions of the SRC Act were engaged. This said I consider that one of the meanings of the word "materially" in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is –
"4. In a material degree; substantially, considerably."
An example given of this usage is that of contributing "materially to the funds required" for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the "loose sense" of the definition of "material" in the Macquarie dictionary "namely, ‘of substantial import or much consequence’ [rather than the] legal sense of ‘pertinent’ or ‘likely to influence’".
16. Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) "in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation");
(iii) whether this will be so in a given case will be a matter of fact and degree.”
CONSIDERATION
Contentions of the Parties

The Respondent contends, with respect to the grate incident, that the Applicant suffers from a pre-existing degenerative condition which compounds his left knee pain and which is unrelated to his employment – Exhibit 5 R3 p. 21 para 4.1.
Further, it is contended that the Applicant did not suffer an injury or disease as claimed in May 2010 and his left knee arthritis was not contributed to, to a material degree, by his employment in general or the grate incident in particular – Exhibit 5 R3 p. 21 paras 4.2 – 4.3.
The Respondent relies, in particular, on the reports and testimony of Dr Steadman and denies liability under s 26 of the Act – Exhibit 5 R3 p. 22 paras 4.4 – 4.6.
Likewise, with respect to the paint tins incident, the Respondent contends that the Applicant suffers from a pre-existing degenerative condition unrelated to his employment. Further, it is contended that the Applicant did not suffer from an injury or disease as claimed. The claimed “aggravation of left knee arthritis” was not, it is contended, contributed to, to a material degree, by the Applicant’s employment generally, or the paint tins incident in particular – Exhibit 5 R3 p. 22 paras 4.7 – 4.10.
In his Outline of Applicants Submissions (OAS), the Applicant makes the following submissions:
“FACTUAL EVIDENCE
35. The applicant was injured in the workplace and had surgery performed on his left knee with unrepairable injuries.
36. The applicant has been disabled from this accident
CONCLUSION
37. The trauma to the left knee caused by ‘the grate accident of May 2010’ has changed the pathology of the left knee which makes it compensatable [sic] under the SCR ACT
38. The heavy lifting in November 2010 re-aggravated the May 2010 injury
39. All these occurred before obesity was diagnosed or existent
40. On any reasonable assessment the evidence establishes a material link between the accident and the injury the applicant suffers”.
The Respondent relies, primarily, but not exclusively, on the diagnoses of Dr Steadman whilst the Applicant relies on the medical report of Dr Dane Andersen of the Princess Alexandra Hospital, Orthopaedic Unit which is dated 30 December 2019 – Exhibit 4. The diagnoses of both Doctors are dealt with below.
Medical evidence: Dr Steadman
As previously noted, the Applicant was examined and assessed by Dr Steadman in December 2012. Dr Steadman’s report, dated 18 December 2012, has been addressed above.
The Applicant was further examined by Dr Steadman on 22 April 2020 and the Tribunal has been provided with his detailed report which is dated 1 May 2020 – Exhibit 5 R2 pp. 5 – 18.
Dr Steadman first set out the Applicant’s injury history, which he was provided with– Exhibit 5 R2 p. 7:
“He said he fell down a hole in 2010 and sustained an injury to his left knee but says the right knee was also injured around that time. He says the left knee was arthroscoped by Dr Cameron Cooke and Marine Care paid for the operation which was to manage arthritis. Dr Cooke told him that he had arthritis and he said that he returned to work. The left knee was further aggravated when he was dealing with a paint order on a boat and there were 16 litre paint drums. He was pulling them out of a special storage cupboard and passing them forward when his left knee and groin started hurting. He said that pulling them out caused pain. He did not recall any other substantial injury. He said he never really got better and the operation that Dr Cooke did never really resolved the left knee problem. He persisted with use of OxyContin.”
Next, Dr Steadman carried out a file review, and made the following observations – Exhibit 5 R2 pp. 8- 9:
“In my medical report dated 18.12.2012, I conclude in a summary table that he had left knee arthritis related to a previous injury in 1995. I note in retrospect that this is a typographical error as the report refers to the right knee and should not be considered to be relevant.
I do however note in that report that I examined his left knee and he had a gunshot wound scar over the suprapatellar area…
In a pain drawing provided on the date of that examination 11.12.2012, he indicates no discomfort in the left knee. The right knee has drawings over it in both an anterior and posterior bodily direction. His BMI at that time was noted to be 45.29…
In his arthroscopy report of 03.08.2010 Dr Cook indicates changes much as the MRI with an ulcer drawn over the lateral condyle that indicates grade 3 along with a drawing on an arrow towards the medial meniscus. No patella commentary is present until he does his written operative report on the same date and indicates that there were grade 3 chondral changes over the femoral condyle and over the central aspect of the patella. He indicates a chondroplasty was performed and that synovitis in the knee was also debrided. He makes no comment regarding any meniscal pathology that was treated and but was reported on the MRI and the operative drawing does not indicate that there is any partial meniscectomy.”
Dr Steadman opined that the x-rays performed “show that he does not have any very substantial arthritis of the left knee” – Exhibit 5 R2 p. 10.
Subsequently, Dr Steadman summed up his diagnosis as follows – Exhibit 5 R2 p. 11:
“The information indicates that he had an injury to his left knee in the first of 2 events. The first injury under the care of the orthopaedic surgeon Dr Cameron Cook resulted in an arthroscopy that in essence appears only to have diagnosed arthritis in a morbidly obese man. The 2^nd injury appears to be a minor aggravation moving some paint drums which he admits to today as well and says that it probably was not really an injury as opposed to some pain doing that activity.
There is no indication that he continued to complain of left knee pain and both Dr Cook and my further examination indicate that his left knee became asymptomatic. The issues to consider is whether his morbid obesity and constitutional factors are the main contributing factors to the left knee which is a highly relevant consideration.”
A number of Questions were asked of Dr Steadman. In response to a Question as to whether the Applicant suffers an underlying, pre-existing or constitutional condition, the following answer was provided – Exhibit 5 R2 p. 12:
“…when he had an arthroscopy with Dr Cooke in 2010 it indicated constitutional degeneration of the knee without any evidence of an acute injury on MRI. For example there was no evidence of a meniscal tear or bone bruise or even associated with the arthritis there was no subchondral oedema of substance to report.”
Dr Steadman was asked if the Applicant’s work-related injury from May 2010 continued to produce disabling effects. His answer was as follows – Exhibit 5 R2 p. 13:
“I do not think the current outcome is reflective of the 2010 injury or its consequences. I do not think the arthritis of the right knee is because the left knee arthritis progressed. I think the main factor is his morbid obesity and age.”
The same Question was posed regarding the November 2010 paint tins incident, and Dr Steadman’s answer was as follows – Exhibit 5 R2 p. 13:
“In my opinion this condition has passed. That meaning the lifting of the drums did not have a permanent long-term side-effect or an ability to alter the outcome of the long-term arthritic condition, mostly overwhelmed by his morbid obesity.”
In Dr Steadman’s opinion, the Applicant continues to suffer from mild osteoarthritis of the left knee but the material contributing factors for this condition were said to be as follows – Exhibit 5 R2 p. 14:
“Largely bodily weight and its consequences known as morbid obesity.”
Medical evidence: Dr Andersen
The Applicant was examined and assessed by Dr Andersen on 17 December 2019. Dr Andersen diagnosed the Applicant as suffering from post-traumatic osteoarthritis of the left knee.
Dr Andersen made the following observations – Exhibit 4 p. 1:
“He has a complicated history of multiple injuries to both knees. His left distal femur sustained a gunshot wound in 1989 and then he had a fall down a grate in 2010, resulting in a torn left meniscus and a meniscectomy under Dr Cooke. Since then, he has had worsening pain which he feels is a sharp pain to the central portion of his knee and is worse on mobilising and turning left. Due to his pain, he is unable to work in his previous occupation as a [sic] oil rig/tanker crewman. He does not take any analgesia at this point in time…
The impression is post-traumatic osteoarthritis. He has been discussed with Dr Dawra, who has reviewed his imaging. Despite him having osteoarthritis, given that he is 54-years old, morbidly obese and an active smoker, there are many roadblocks with him having a successful knee replacement. We have advised David about losing weight and engaging with a physiotherapist as planned, which he is keen on doing. We have also advised him to return to swimming and hydrotherapy and we have asked him to discuss with you regarding regular analgesia, especially of the anti-inflammatory type, rather than opioid-type. We have also strongly advised him to stop smoking.”
Analysis
The Tribunal did not have the benefit of receiving testimony from Dr Andersen, however Dr Steadman did testify and was subject to cross-examination by the Applicant. The Tribunal was impressed by the testimony of Dr Steadman who gave considered and measured responses to the Questions posed by Mr Clark and the Applicant. Suffice it to say, Dr Steadman’s testimony was wholly consistent with the views he expressed in both of his reports which have been set out above.
It is not in dispute (Outline of Respondent’s Submissions (ORS) paras 4 – 5) that:
(a)the Applicant injured his left knee in the grate incident;
(b)the Applicant subsequently underwent surgery on his left knee performed by Dr Cooke;
(c)the Applicant injured his right knee in the paint tins incident.
It is also not disputed that medical research has established a clear link between obesity and knee joint osteoarthritis. When giving testimony, Dr Steadman made the following observations about the stress and strain on the knee joints of a person bearing the weight of the Applicant – Tr. 21.1.2021 p. 58:
“There is strong evidence that when a person walks, that they take six times their body weight through the knees when they’re walking at the different, sort of, biomechanical points. And the consequences of that is that weight can be a very important issue when it comes to the weight and it’s [sic] impact upon the knee joint particularly.”
In his 2012 report, in response to the Question of what sort of treatment he would recommend for the Applicant, Dr Steadman said – Exhibit 1 T27 p. 59:
“Weight loss would be the main strategy. If he could lose 50 kilograms his knee pain would go away.”
One key issue, then, is the link between the Applicant’s weight and his left knee condition.
With respect to the grate and paint tins incidents, the Applicant submits (OAS para 39) that these occurred before his obesity was diagnosed or existent.
The Tribunal has difficulties with this submission. The Applicant was assessed by Dr Daoud on 4 March 2011, which was approximately four months after the paint tins incident. In his report, Dr Daoud states that on “examination he is morbidly obese.” – Exhibit 1 T16 p. 35. Likewise, in his report of 18 December 2012, Dr Steadman refers to the Applicant as being 172 cm tall, weighing 134 kg, having a BMI of 45 and being “morbidly obese” – Exhibit 1 T27 p. 54. Further, Associate Professor Andrew Renaut, who assessed the Applicant on 17 December 2012 also opined that he was “morbidly obese” – Exhibit 1 T28 p. 69.
When questioned by Mr Clark about Dr Daoud’s report, the Applicant gave the following testimony – Tr. 21.1.2021 p. 38:
“The second paragraph he recorded you though as being morbidly obese? --- By March, yes, I’d put on a lot of weight from November when I come off the vessel. I started putting weight on onboard the vessel and then when I got off because I couldn’t move around and my weight ballooned then. I’d never had any rehabilitation I guess properly.”
The Applicant has a long history of having injuries to the lower part of his body. He was shot in his left thigh in 1989 and has leg and knee injuries since, at least, 1995. It is unlikely that he was transformed into a morbidly obese person in the space of only four months. It is more likely that the Applicant had excessive weight for a longer period of time, and, most probably, at the time of both the grate and paint tins incidents.
Indeed, Dr Gillett in his 4 April 1995 report describes the Applicant as “a large man” who had “difficulty in weight bearing” – Exhibit 1 T45 p. 139. This description of the Applicant is consistent with the proposition that he was bearing excessive weight for a considerable period of time. When questioned by Mr Clark about this reference, the Applicant said – Tr. 21.1.2021 p. 20:
“I’m a very powerfully built person, I have very broad shoulders…Dr Gillett never used the word obesity.”
Having observed the Applicant give this evidence, the Tribunal was not convinced of his explanation of Dr Gillett’s observations.
However, what is not in dispute is that the Applicant has been morbidly obese in the years following both the grate and paint tins incidents.
Next, the Applicant claims that he has suffered pain in his left knee since the grate incident – Tr. 21.1.2021 p. 17:
“Okay, all right. Okay, now, just so that I’m clear as to what you’re saying dealing with the grate incident in May 2010? --- Yes.
It’s your evidence that you’ve had pain in your left knee ever since? --- Yes, when I’m going up and down stairs, if I do any physical activity, turning left. If I walk for any period of time my left sort of foot turns out to my left and my knee clicks. But I don’t walk far anymore anyway because of the pain.
All right, look, just so that you’re clear the point I want to be clear about is that you say you’ve had pain in your left knee ever since the grate incident in May 2010, is that so? --- Yes.”
Certainly, following the grate incident the Applicant took proactive measures to remedy the problems he was suffering with his left knee. As previously explained, the Applicant was treated by Dr Cooke who performed a left knee arthroscopy. The undisputed evidence is that this procedure was successful, and Dr Cooke noted following a 9 September 2010 consultation that the Applicant was “much improved compared to his preoperative status” – Exhibit 1 T11 p. 26. Dr Cooke in a letter to Dr Wuth of the same date noted that the Applicant was doing a weights program with his physiotherapist which was due to conclude in two weeks. Dr Cooke then opined – Exhibit 1 T45 p. 151:
“I would be happy for David then to return to his normal work duties as tolerated.”
It is also tolerably clear from the evidence presented that the Applicant suffered an injury to his right knee as a result of the paint tins incident. It is not necessary, for the purposes of this determination, to make any findings as to whether it “was really not an injury but the knee just became sore” as Dr Steadman observed in his 1 May 2020 report – Exhibit 5 R2 p. 13.
What is central, however, to this determination is whether the Applicant’s left knee was injured, or whether any underlying injury was aggravated, as a result of the paint tins incident.
If the Applicant was suffering pain and discomfort in his left knee, then it would ordinarily follow that he would have brought that pain and discomfort to the attention of his treating clinicians. This is even more obvious having regard to the fact that these medical professionals were proactively treating him for his right knee and groin issues.
Mr Clark contends (ORS para 5) that none of the contemporary medical records contains any reference to the Applicant suffering from left knee issues following the paint tins incident.
Mr Clark drew the Applicant’s attention to the clinical notes of Dr Chuo of 7 December 2020. As noted above, Dr Chuo examined the Applicant in her surgery in Victoria shortly after the paint tins incident. There is no reference in her notes to the Applicant complaining of any left knee issues – Exhibit 5 R6 pp. 65 – 66.
During the Hearing the following exchange occurred – Tr. 21.1.2021 p. 30 – 31:
“Okay, you’d agree with me there’s no reference to any left knee pain in respect of your account at the time and what ensured thereafter, is there? --- In regards to that from one down to two I was only talking about my right knee…
The answer’s no.”
Reference was also made to Dr Chuo’s Certificate of Capacity, also completed in December 2010 – Exhibit 1 T13 p. 29. Again, there is no reference in that document to any left knee issues.
This was put to the Applicant by Mr Clark and the following exchange occurred – Tr. 21.1.2021 p. 33:
“Okay, there’s no reference to the left knee whatsoever is there? --- No. No, the reference was made to the left knee I guess was in regards to the groin and the pain between the two and I guess it wasn’t put in there as an issue. It was the groin pain which was my main concern at the time. But the left pain has never – the left knee pain has never gone away. As Dr Wuth said, it will never go away.”
When the Applicant returned from Victoria to Brisbane he was examined by Dr Wuth on 23 December 2010. In Dr Wuth’s clinical notes he refers to examining the Applicant’s right knee and noting pain “near hamstring insertion laterally” but made no reference to pain in the left knee – Exhibit 1 T46 p. 176.
During cross-examination, Mr Clark put it to the Applicant that there was no reference to any left knee pain in Dr Wuth’s notes, and the Applicant’s response was as follows – Tr. 21.1.2021 p. 34:
“Well, no, not in that report because I was there to see him about the right knee and groin.”
On 22 January 2011, some four weeks after seeing Dr Wuth, the Applicant was again examined by Dr Cooke – Exhibit 1 T45 pp. 149 – 150. The observations of Dr Cooke have been quoted above. Again, there is no reference in Dr Cooke’s report that the Applicant complained of any pain in his left knee.
The omission of any reference in Dr Cooke’s report to left knee pain was the subject of the following exchange between Mr Clark and the Applicant – Tr. 21.1.2021 p. 36:
“You’d agree with me there’s no reference to any left knee symptoms? --- No, but I wasn’t there about my left knee. What I’ve come to understand is is that the doctors will only write down what you’re there for, not any peripheral issues. When I went to the AAT last time when I was going to have the case the lawyers said to me this is about one muscle, one muscle only. So you’re not going in there and getting a broad brush of the injury, it’s about the one issue and the one issue only. And I said, ‘Well, what about all those other injuries?’ And they said ‘Well, that’s not part of it’. I said ‘Okay’. And so I cancelled the claim.”
After further questioning about this consultation and whether the Applicant had any recollection of mentioning left knee pain to Dr Cooke, he provided the following answer – Tr. 21.1.2021 pp. 37 – 38:
“Look, I have no recollection of bringing up anything about my left knee with Dr Cook at that time because I was there for my right knee. I don’t think I even told him that I had the hernia… No I accept that, that I never raised it with him.”
Likewise, the Applicant accepted that Dr Cooke’s report of 5 February 2011 again failed to mention his left knee – Exhibit 1 T45 p. 148, Tr. 21.1.2021 p. 38.
Of particular importance is the first report of Dr Steadman. Dr Steadman examined the Applicant on 11 December 2012, and his detailed report contains information on both knees.
It will be recalled that Dr Steadman examined both knees and specifically referred to a gunshot scar at the suprapatellar area of the left leg – Exhibit 1 T27 p. 54.
Despite Dr Steadman examining both knees, there is no mention in his report of the Applicant complaining of left knee pain, or otherwise referring to any aggravation of the pain he may have been suffering in that knee referable to the paint tins incident. During cross-examination the following exchange occurred between Mr Clark and the Applicant about this consultation – Tr. 21.1.2021 p. 41:
“And you didn’t make any complaint whatsoever to him of any left knee pain. What do you say to that? --- I was there to see him about my right knee.”

The Applicant was examined on 23 July 2013 by Dr David Phillips of the Hernia Clinic Brisbane. In his report of 7 August 2013, Dr Phillips made the following observations – Exhibit 1 T32 p. 88:
“Mr Perry experiences pain in his left groin on twisting movements to the left side. Pain slowly subsides overnight; he also feels some movement in his left groin if he coughs.”
Again, there is no reference in Dr Phillips’ report to any left knee pain symptoms.
The first record of the Applicant complaining of left knee pain after the paint tins incident is the report of Dr Cooke of 21 July 2015 – Exhibit 1 T37 pp. 109 – 111.
Dr Cooke stated that the reason for the Applicants consultation “was due to ongoing difficulties with his left knee” – Exhibit 1 T37 p. 109.
Dr Cooke noted that the Applicant underwent a left knee arthroscopy on 3 August 2010 and “made a good recovery from this surgery” – Exhibit 1 T37 p. 110.
The bulk of Dr Cooke’s report is focused on the Applicant’s right knee, and he opined that it “was the right knee injury that prevented him from continuing his work activities” and that the Applicant “ceased work subsequently due to his right knee injury” – Exhibit 1 T37 p. 111.
It is tolerably clear that in the period November 2010 until July 2013 the Applicant was assessed by various clinicians. In not one of the reports that were prepared by those clinicians is there any reference to the Applicant complaining of left knee pain. If, as the Applicant contends, he has been in constant left knee pain since the grate incident, and the paint tins incident further aggravated the pain he was suffering, one would expect a reference to this state of affairs in the copious medical reports that were generated.
The absence of any contemporary medical reports referring to left knee pain strongly suggests that the Applicant did not report such a state of affairs to the doctors who were treating him. The Applicant’s explanation that he went to the Doctors for other reasons and therefore did not mention his left knee pain strains credibility. If the Applicant was in such pain he would have mentioned it to the Doctors treating him. The fact that he did not, and in context of him commencing various legal proceedings, leads inexorably to the conclusion that he was not suffering such a degree of pain that he thought it necessary to raise it with the various clinicians.
This necessarily leads to the issue of the state of the Applicant’s left knee.
The Applicant was examined by Dr Steadman on 11 December 2012. In his report of 1 May 2020 he made these observations with respect to his examination of the Applicant’s left knee in 2012 – Exhibit 5 R2 p. 8:
“I examined his left knee and he had a gunshot wound scar over the suprapatellar area, the quadriceps measured 64 cm and he had a reduced range of motion in the right knee with a normal examination of the left. I referred to my clinical notes at the time that indicated that he had a 0 – 140 degrees of motion of the left knee.
In a pain drawing provided on the date of that examination 11.12.2012 he indicates no discomfort in the left knee. The right knee has drawing over it in both an anterior and posterior bodily direction. His BMI at that time was noted to be 45.29.”
During cross-examination by Mr Clark, Dr Steadman explained the above observations – Tr. 21.1.2021 p. 60:
“And you say that the range of motion of the left was measured from zero to 140 degrees. Is that so? --- Yes.
Okay. Will I take that to mean that that finding indicating that he had a normal range of motion or movement in respect of his left knee? --- Yes, that’s right. So in, you know - there’s another minor comment to make there is that often the normal range of motion is about 150 degrees or a little bit above. But in patients who are often obese is that when you bend their leg up, their thigh kisses against their calf and that, sort of, limits the movement. So 140 is, for him, at that time when I examined him, I felt was a normal range of motion, because of that kissing effect.”
Dr Steadman also referred to X-rays that were performed on both of the Applicant’s knees on 9 September 2019 – Exhibit 5 R2 p. 10.
Before turning to Dr Steadman’s observations, it is relevant to note that the Tribunal has been provided with a report of an X-ray on both of the Applicant’s knees performed on 3 November 2015. The analysis of the X-rays reported by Dr Lush included the following findings – Exhibit 1 T38 p. 112:
“…There are moderately advanced degenerative changes involving the knee joints bilaterally with spiking of the tibial spines and bony spurring of the articular margins. There is narrowing of both medial joint compartments indicating generalised articular cartilage loss. The lateral joint compartments appear reasonably well preserved bilaterally. There are moderate degenerative changes involving the patellofemoral articulations bilaterally with bony spurring of the articular margins. There is no significant joint effusion on either side.”
Turning now to the X-ray of 9 September 2019, Dr Steadman first made this observation – Exhibit 5 R2 p. 10:
“He says that he has been to see Dr Cunneen and his x-rays were reviewed that show that he does not have any very substantial arthritis of the left knee.”
Dr Steadman made these comments – Exhibit 5 R2 p. 10:
“X-rays show both knees. The right knee has arthritis while the left knee has some narrowing of the medial compartment and some minor patellofemoral degeneration.”
Mr Clark asked Dr Steadman the following Questions about the September 2019 X-ray – Tr. 21.1.2021 p. 66:
“Okay. Now, you say that the right knee has arthritis? --- Yes.
While the left knee has some narrowing of the medial compartment with some minor patellofemoral degeneration? --- Yes.
Now, what are we talking about there in respect of the left knee? --- Well, it shows arthritic changes, but they’re not very severe…”
As will be seen, the X-rays of November 2015 and September 2019 are consistent and in Dr Steadman’s opinion the left knee is only suffering from non-severe arthritic changes.
Subsequently, Dr Steadman dealt with the issue of why the Applicant was experiencing pain in his left knee – Exhibit 5 R2 p. 11;
“There is no indication that he continued to complain of left knee pain and both Dr Cook and my further examination indicate that his left knee became asymptomatic. The issues to consider is whether his morbid obesity and constitutional factors are the main contributing factors to the left knee which is a highly relevant consideration.”
As previously noted, Dr Steadman observed that the Applicant’s grate injury of his left knee in May 2010 was not significant, with his MRI at the time not showing “any evidence of an acute injury”, and, in particular, “no evidence of a meniscal tear or bone bruise” and “no subchondral oedema of substance to report” – Exhibit 5 R2 p. 12.
Dr Steadman opined that the grate injury would have had a recovery period “of 2 months at most” and the available medical records indicated that the Applicant experienced “a full recovery” – Exhibit 5 R2 p. 12.
Dr Steadman accepted that the Applicant has suffered, and continues to suffer, from “mild osteoarthritis of the left knee” but that this was not “reflective of the 2010 injury or its consequences”. Further, the Applicant’s injury of his right knee in the paint tins incident did not result in an “overuse of the left knee” Exhibit 5 R2 pp. 13 – 14.
In Dr Steadman’s opinion, the paint tins incident may not have resulted in the Applicant injuring his right knee, but “the knee just became sore” and he opined “that this would only take a couple of weeks to recover”. In short, “the lifting of the drums did not have a permanent long-term side-effect or an ability to alter the outcome of the long-term arthritic condition, most overwhelmed by morbid obesity.” – Exhibit 5 R2 p. 13.
In short, Dr Steadman was of the opinion that the material contributing factors to the Applicant’s current left knee condition was “largely bodily weight and its consequences known as morbid obesity” – Exhibit 5 R2 p. 14.
Dr Steadman’s report is comprehensive and he had the benefit of examining and assessing the Applicant in 2012. Further, Dr Steadman was fully briefed with previous medical reports and imaging results.
In comparison, the Applicant relies on a brief two page report from Dr Andersen.
The Tribunal has not been presented with Dr Andersen’s qualifications or experience. Further, Dr Andersen did not have the benefit of either having observed the Applicant over a long period of time, or, more importantly, being briefed with his medical history, including previous imaging and reports.
Dr Andersen opined that his “impression” was “post-traumatic osteoarthritis” – Exhibit 4 p. 1. However, he did observe that the Applicant was “54-years old, morbidly obese and an active smoker” – Exhibit 4 p. 1.
It is upon this sole report with a bare minimum of reasoning that the Applicant seeks to advance his case.
As noted, Dr Andersen was not called to give evidence and was not subject to cross-examination. The Tribunal does not make any critical comments about Dr Andersen’s report or the views he expressed. Clearly, as a professional in the field of orthopaedics he is well qualified to make the observations contained in his report.
However, insofar as there may be a divergence of opinion between Dr Steadman and Dr Andersen, the Tribunal has no hesitation in accepting the considered diagnosis of Dr Steadman for all of the reasons outlined above.
Findings
The available medical evidence indicates that the Applicant is suffering from mild osteoarthritis of the left knee.
The Tribunal accepts the diagnosis of Dr Steadman that any aggravation of the Applicant’s underlying osteoarthritis of the left knee would have resolved within a relatively short period after the grate incident. Further, insofar as the grate incident aggravated any underlying condition or resulted in an injury to the left knee, the arthroscopy performed by Dr Cooke was wholly successful – Exhibit 1 T11 p. 26.
The Tribunal further accepts that the osteoarthritis of the Applicant’s left knee is relatively mild and the main contributing factor to the problems he is experiencing is the effect of the excessive weight he carries.
The Tribunal does not accept, on the basis of the evidence presented, that the paint tins incident has resulted in any aggravation of the Applicant’s underlying osteoarthritis of the left knee.
The evidence presented fails to disclose that the Applicant complained of any pain in his left knee for some years after the paint tins incident. It is improbable, having regard to the way that the Applicant has been felicitous in bringing to the attention of Doctors his other complaints and pain symptoms, that he would have consciously omitted to have drawn left knee pain to the attention of his treating clinicians.
The Tribunal has previously explained that the definition of “disease” in s 3 of the Act requires that the ailment or aggravation of such ailment be contributed to in a material degree by an employee’s employment.
It cannot be said that the Applicant’s employment has contributed in a material degree to his current left knee condition. Insofar as he has osteoarthritis in his left knee (and Dr Steadman opines that it is a mild case), then whatever impact the grate and paint tins incidents had has long dissipated.
The evidence presented overwhelmingly points to the Applicant’s morbid obesity as being the cause of his current condition. The weight he is bearing has had, and continues to have, a deleterious impact on his knees with all of the unfortunate consequences that flow therefrom.
The Tribunal casts no aspersions on the Applicant’s testimony. The Tribunal found the Applicant a pleasant and cooperative person who gave evidence to the best of his ability and presented his case in a competent manner.
Further, the Tribunal has no doubt that the Applicant has suffered, and continues to suffer, pain in both his knees and does not doubt his version of what occurred in both the grate and paint tins incidents.
However, the Tribunal does not accept that the Applicant’s employment has materially contributed to his current left knee condition, and this conclusion flows inexorably from the sheer weight of the medical evidence presented.
CONCLUSION
The reviewable decisions are affirmed.

I certify that the preceding 162 (one hundred and sixty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

..............................[SGD]...............................
Associate
Dated: 9 April 2021

Date of hearing: 21 January 2021

Date final submissions received: 1 February 2021

Counsel for the Respondent: Mr Charles Clark

Solicitor for the Respondent: Ms Laura Howse