Polkinghorne and Comcare - [2001] AATA 16

DECISION AND REASONS FOR DECISION [2001] AATA 16

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/724

GENERAL ADMINISTRATIVE DIVISION       )
           Re      WILLIAM POLKINGHORNE
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr B.G. Gibbs, AM, Senior Member

Date16 January 2001
PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  (sgd) B.G. Gibbs
  Senior Member
COMPENSATION – fall from water tower 1972 while serving in Army – compensable ankle injury – further ankle injury 6 November 1985 – whether applicant entitled to compensation since date of further injury
Safety, Rehabilitation and Compensation Act1988 ss.4, 14, 16, 62, 118
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321

REASONS FOR DECISION

16 January 2001 Mr B.G. Gibbs, AM, Senior Member
Introduction

This is an application by Mr William John Polkinghorne for review of a reviewable decision made pursuant to section 62 of the Safety, Rehabilitation and Compensation Act1988 ("the Act").
The reviewable decision, which was made on 21 May 1999, revoked a determination made under the Act on 19 April 1999.
The determination made on 19 April 1999 was expressed as follows:
"I refer to your claim for compensation for a left ankle condition.
On the basis of further evidence, I determine that you have suffered an injury arising out of your military service and that liability be extended to include chronic left ankle instability with the subsequent development of ankle osteoarthritis requiring fusion between the tibia, talus and lateral malleolus.
Although the Department has extended liability for your condition, payment of money to a client is not automatic. There is a range of benefits for which you may qualify, depending on your circumstances. Please use the enclosed leaflet to identify which benefits may apply to you and, if you believe you have an entitlement, complete the enclosed form and return it to me.
The Department will pay for any surgery to correct the conditions for which liability has been extended. However, any request for authorisation of surgery must be accompanied with brief details of the proposed procedures to be done and the expected outcome."
In revoking the earlier determination, the reviewable decision made on 21 May 1999 was expressed as follows:
"I refer to the decision made on 19 April 1999 in respect of a chronic left ankle instability with the subsequent development of ankle osteoarthritis requiring fusion between the tibia, talus and lateral malleolus.
DECISION
It is my decision to revoke the determination dated 19 April 1999.
REASONS
I have on my own motion, pursuant to Section 62(1)(a) of the above Act, revoked my decision of 19 April 1999 for the following reasons:
1.The decision to accept liability was made on the basis of the medical reports of Mr Clive Jones dated 29 March 1999 and Dr M Turner dated 15 April 1999. The decision taken was made without the full extent of your injuries attributed to the 1985 [post-military service] accident being known to me.
2.Further investigation into liability was undertaken, and Mr Clive Jones, in response to a telephone call on 11 May 1999, from Mr Kowalski of this Office confirmed that:
(a)The operation you required was a subtalar fusion of the left ankle;
(b)That the operation was required as a result of the arthrodesis of your left ankle;
(c)That the arthrodesis was required as a result of the 1985 [non-compensable] injuries, and not the 1972 [compensable] injury; and
(d)That the Department of Defence was not liable for the subtalar condition.
The Department of Defence has no liability for your current condition relating to the subtalar problem.
However, as advice was given that this Office would accept liability, and as you had already undergone the preliminary medical treatment for your scheduled operation, I will as a matter of good conscience and equity, [but without any admission of liability], authorise the payment of reasonable medical costs of the operation and hospitalisation for the estimated three days required."

Representation

At the hearing before this Tribunal Mr Polkinghorne was represented by Mr M. Carey, of Counsel, and Mr C. Miles, of Counsel, appeared for the respondent.
Material
The Tribunal had before it documents ("the T documents") lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Other material, to some of which it shall be necessary to refer, was also tendered and received in evidence during the hearing.
Witnesses
During the hearing evidence was given by:
·     The applicant Mr Polkinghorne;
·     Mr C.W. Jones, an Orthopaedic Surgeon;
·     Mr H.L. Weaver, an Orthopaedic Specialist (Medico-Legal), formerly an Orthopaedic Surgeon;
·     Mr M.J. Shannon, an Orthopaedic Surgeon.

The Claim

As indicated, Mr Polkinghorne seeks to have the reviewable decision made on 21 May 1999 reversed. Again as indicated, the reviewable decision revoked an earlier determination accepting liability for a left ankle injury.
The effect of the reviewable decision is to deny any and all liability to pay compensation to Mr Polkinghorne, in respect of an injury which is said to have arisen out of or in the course of Army service in 1972.
Mr Polkinghorne made a claim dated 18 February 1976 pursuant to the Compensation (Australian Government Employees) Act 1971 for a left foot and ankle condition. Liability was accepted in March 1976 for "torn tendons left ankle" and the date of injury was accepted as being 12 May 1972.
A report of the incident dated 17 May 1972 described the incident as follows:
"I was fitting the full tank of shower heater when I slipped. I landed on my ankle. After which I found I couldn't work."
The incident occurred in Bogia, PNG. On 22 May 1972 a Medical Officer noted that the injury was a "sprain of lateral ligaments of the left ankle".
A further claim appears to have been made pursuant to the Act in respect of the same injury, dated 19 January 1991.
Contentions of the Applicant
Mr Polkinghorne contends that the injury which he sustained in the course of Commonwealth employment on 12 May 1972 has made, and continues to make, a contribution to his present condition. He asserts that he is entitled to:
(a)arrears of weekly payments for total incapacity pursuant to sections 8, 9 and 19 of the Act, as a result of surgery to the left leg and foot; and
(b)continuing medical and related treatment expenses pursuant to section 16 of the Act.

Contentions of the Respondent

In a statement of facts and contentions dated 8 November 2000 the respondent contended as follows:
"30.The Department of Defence contends that the Claimant no longer suffers from an injury to the left ankle in respect of which compensation is payable pursuant to the Safety, Rehabilitation and Compensation Act 1988 ("the Act") and contends that the Claimant has not suffered from such an injury since his discharge in 1974.
31.The Department of Defence therefore contends that the Claimant has no entitlement to compensation pursuant to the Act since 6 November 1985.
32.The Department of Defence contends that any need for medical treatment or time off work since 1985 was and is attributable to injuries suffered by the Claimant on 6 November 1985, being injuries to which the Act does not apply, such that the Claimant has no entitlement to incapacity benefits or medical expenses on and from that date.
33.The Department of Defence contends that the Claimant suffered from an injury on 6 November 1985 which acted as a novus actus interveniens, breaking any connection between the Claimant's 1972 injury and the effects of the injury suffered by the Claimant on 6 November 1985.
34.The Department of Defence refers to comments made by the Tribunal in Re Dukic and Australian Capital Territory Health Commission (1988) 14 ALD 636, in which case the Tribunal said:
"The facts of this case and O'Mallon's case are not on all fours. Both, however, are cases where the applicant made her own decision to cease work, did so without medical advice to so retire and did so in circumstances which suggest that the reason for leaving that work was something other than the results of the injury. In those circumstances it is asking a lot to expect the delegates of the Commissioner or this Tribunal to accept a claim, made much later, that the resignation was in fact the sequel to an earlier compensable injury. The fact that some medical practitioner may subsequently express the view that a cause and sequel event is feasible does not effectively make it compensable."
The Department of Defence contends that these comments have application in the within matter.
35.The Department of Defence contends that the injury suffered by the Claimant in 1972 no longer contributes to any condition currently suffered by the Claimant, and that any such contribution had wholly ceased on and from 6 November 1985.
36.In the alternative, the Department of Defence contends that the Claimant has already received compensation in respect of incapacity benefits, medical expenses and permanent impairment in relation to his injuries, by virtue of the awards of compensation referred to in paras 27 (c) and (d) hereof, and is prevented from obtaining further compensation in relation to the injuries pursuant to s. 118 of the Act."

Legislative Framework

The word "injury" is defined in section 4(1) of the Act, as follows:
"'injury' means:
(a)a disease suffered by an employee; 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 any such disease, injury or aggravation 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 also defined in section 4(1):

"'disease' means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;"

The words "aggravation" and "ailment" are defined in section 4(1) of the Act as follows:
"'aggravation' includes acceleration or recurrence;"
"'ailment' means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);"
Section 14(1) of the Act provides that the respondent is liable to pay compensation in accordance with the Act, in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
In so far as is relevant, section 16 of the Act provides as follows:
"16(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
16(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment."
In Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626, Windeyer J at page 641 said in respect of the meaning of the term "the employment":
". . . When the Act speaks of 'the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed."
In Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 the Full Court of the Federal Court said at page 328:
". . . In our opinion, it follows from what is said and, indeed, from what is not said in these passages and from a consideration of the plain words that once it is established that an employee in the doing of his work was exposed to 'a state of affairs to which he would otherwise not have been exposed' or to 'some characteristic of or condition in which the work was to be performed' and that such exposure was in truth a 'contributing' factor to the condition in respect of which he seeks compensation, then it matters not whether the contribution was of any particular size or degree. The same applies, where the complaint is not one of initiation of the condition but of its aggravation, in the sense of making it worse, or its acceleration in the sense of speeding up the progress of a progressive disease. In all cases the question is whether there has been a 'contribution'."

The Full Court then went on to consider what is meant by the requirement that a contribution be material:

"Consistently with what was said by Windeyer J, 'contribution' does not require that the contributing factor be a causa sine qua non; the 'but for' test is not appropriate nor is the causa causans or 'real effective cause' or 'proximate cause' formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then they do not 'contribute'.
The use of the word 'material' in conjunction with the words 'contributing factor' in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small."

Mr Polkinghorne's Evidence

Mr Polkinghorne was born on 17 November 1953 and has been in receipt of a disability pension since 1995.
On 27 April 1971 he joined the Australian Army.
In 1972, while serving in Bogia, PNG, where he assisted in the construction of water towers, he suffered a fall from a tower "somewhere between 20 and 40 feet or thereabouts", onto his left leg.
Immediate treatment was the strapping of his left leg and the administering of some tablets. Mr Polkinghorne said that he then rested for four or five days "until the swelling went down".
After completion of the construction work he returned to Australia, resuming his duties with 1 Field Hospital, in Sydney, "but more often than not I was either up at 2 Military Hospital or at the RAP getting treatment on the left foot".
Mr Polkinghorne asserted that at no time prior to his fall while in PNG did he have any problems with his left leg. This included his employment as a drainer prior to joining the Army. He explained that the work of a drainer involved using a pick and shovel in the construction of sewers, storm water drains and holes for septic tanks.
It was Mr Polkinghorne's evidence that after his return to Australia he received treatment for his left ankle, the nature of the treatment being "a course of tablets and so forth, anti-inflammatory type of stuff". He said that he was also placed on light duties. However, because the treatment was not successful he underwent an operation in 1972, at 2 Military Hospital.
Mr Polkinghorne stated that following the operation:
"I was – I was bedridden for probably four or five days and I think that, from memory, it was probably four, maybe five days after the operation that I started to get a – I started to get very sick and I started to get burning sensations and so forth in my leg, I remember that very clearly, and they took the plaster cast off and I was found to have a very bad infection in the wound." (trans, p.9)

Treatment for the infection was the injection of crystallised penicillin. The treatment was successful and after about 15 days he was discharged from hospital and admitted to a convalescent wing of the hospital where he remained for a further 8 weeks. He was then placed on light (office) duties.

Mr Polkinghorne stated that, in June or July 1973 he was posted back to his Unit. However, because he continued to have problems with his left ankle he was "more often than not put back on light duties or a sit-down job".
It was Mr Polkinghorne's evidence that on 27 April 1974 he was voluntarily discharged from the Army because he could no longer perform his duties.
Following his discharge he immediately returned to his former employment as a drainer, working with his father. However, he found that he could not cope with the nature of the work:
". . . I couldn't walk on uneven ground at all. I had to be climbing up and down off the machines all the time. I just couldn't put any weight on the leg at all properly. Well, I could, but I couldn't put it on for long periods of time." (trans, p.11)

It was Mr Polkinghorne's assertion that in 1996 he made a claim for compensation, but that he never had a response from the Department of Defence.

Mr Polkinghorne stated that from about 1978 to about 1984 he travelled around Australia, working in various labouring jobs. He asserted, however, that none of the jobs involved heavy work and that all of the jobs were of short duration. This included one particular job where he worked in an abattoir.
It was Mr Polkinghorne's evidence that from about 1973 to 1995 he experienced problems with alcohol, which he said affected his memory in respect of that period of time.
In 1984 Mr Polkinghorne returned to Melbourne, taking up employment as a machine operator with Vita Pacific, making up the insides of doonas.
Mr Polkinghorne said that for 90 per cent of the time he worked sitting down, and that the only time he had to stand was when the machine "blocked up". When this occurred he would have to climb up and unblock the machine.
Mr Polkinghorne stated that on 6 November 1985, while employed by Vita Pacific, the machine that he was operating became blocked. In order to rectify the blockage he climbed to the top of the machine. However, after dealing with the blockage he stepped backwards and fell onto the concrete floor.
Mr Polkinghorne said that because of the fall his left ankle "gave way" and he was unable to stand up.
Following the accident, Mr Polkinghorne was referred to an orthopaedic surgeon, Mr Clive Jones. He also made a claim for workcare, which was accepted. He explained that he commenced receiving payments of weekly compensation (weekly wages).
Mr Polkinghorne stated that following the accident in 1985 he underwent several operations, all of which were performed by Mr Jones. He further stated that, following the series of operations he returned to his employment with Vita Pacific, however, after a period of some two or three months his employment was terminated, the reason being:
"They basically said that I wasn't capable of performing the job at that time because of the injury to my leg and the consequence there was no other positions available at the time and therefore I'd have to be term – my employment to be terminated." (trans, p.14)
Following the termination of his employment, Mr Polkinghorne made a claim for lump sump compensation. His claim was successful in the amount of $21,000. He also made a further claim, for damages, which was also successful for about the same amount.

Following the termination of his employment with Vita Pacific, Mr Polkinghorne sought other employment, working first with United Doors. However, the nature of the work necessitated lengthy periods of standing. He was not able to cope with this and so moved to employment with Mulcahy Mazda, greasing and oiling motor vehicles. During the course of that employment, he experienced a further accident:
" I slipped on this ladder going down the pit and hit my foot rather heavily on the floor and I don't think I actually – from memory I don't think I actually did any damage to the foot but what, as a consequence the steel pins that were in there had to come out; that's what that operation was. The steel – all it was, was the steel pins had to come out because of that particular jarring incident." (trans, p.15)

Following the operation, which was performed by Mr Jones, Mr Polkinghorne was off work for several weeks, receiving weekly payments of workcare benefits.

Although he returned to work with Mulcahy Mazda, Mr Polkinghorne again found that he could not cope with the lengthy periods of standing, and so joined the Corps of Commissionaires, performing security duties in respect of a building occupied by Australia Post. The nature of his duties required him to remain seated at a desk checking passes.
In 1994 Mr Polkinghorne's position was made redundant. As a result of this, he was given a redundancy package.
Mr Polkinghorne said that in this same year, 1994, his marriage broke up. As a result of this and the loss of his employment, he resolved to give up his drinking habit, placing himself into the Salvation Army Anchorage Drug and Alcohol Rehabilitation Program in Abbotsford, living there for a period of two years. He claimed that at the end of that time he remained sober.
Mr Polkinghorne then entered a support housing programme in Box Hill, working both there and with the Salvation Army, on a voluntary basis for a period of some three years, repairing watches. While thus employed Mr Polkinghorne received a disability support pension, which he continues to receive. He stated that the pension is in respect of his left leg and chronic obstructive airways disease ("COAD"), the latter condition being first diagnosed in 1990. From his evidence, it appears that the pension may also be in respect of alcoholism and a lower back condition. It was his assertion, however, that the back condition has never affected his ability to work, that it is not related to work and that he has never made a claim for the condition.
Mr Polkinghorne stated that in 1999 he saw Mr Jones:
". . . I'd been having problems with this – this leg for, well, since 1972 and it sort of calmed itself down at about 1980 and from about 1995, or 6 it gradually, over a period of time, became more and more painful to the point where winter time, especially winter time, I couldn't put any weight on it at all. I couldn't walk on it without the use of this stick, which I, again, have been using on and off since '72." (trans, p.19)

He further stated that Mr Jones recommended he undergo a subtalar fusion. Because of this, Mr Polkinghorne made a (military) claim for compensation which was eventually accepted, but only to the extent of payment for a period of three days hospitalisation.

It was Mr Polkinghorne's evidence that it was not until three operations had been performed that fusion occurred. However, he explained that he is not able to walk without the aid of a walking stick. On some days he wears an orthopaedic boot, but only when swelling in the left foot does not prevent him from doing so.
As indicated above, Mr Polkinghorne's evidence-in-chief was that between 1978 to 1984 he worked at labouring jobs that did not involve heavy work. In cross-examination, however, he stated that during this period there were occasions when he was able to undertake work of a heavy nature.
When he applied for the position of machine operator with Vita Pacific in 1984, Mr Polkinghorne was required to complete an application form. Amongst other questions the form required him to state whether he had ever suffered any non-industrial accidents, to which he answered, "no". When questioned about this, Mr Polkinghorne said that he did not think the questions related to his employment by the Army.
When asked to elaborate on the circumstances of his fall while employed with Vita Pacific, Mr Polkinghorne said that he fell about 12 feet; that his left leg became caught in a chain; that in the process he wrenched his left foot; and that he ended up hanging upside down by that foot, with both shoulders touching the floor. He said he felt pain in the left foot which was exactly the same as the pain he experienced as a result of his fall in 1972.
As indicated earlier, after his fall in 1985 Mr Polkinghorne claimed workcare. It is noted that in doing so he recorded in his claim form that he had not previously suffered any similar injury or condition. When asked why this was so, Mr Polkinghorne responded by stating:
"I didn't think that the – the first – to be very honest with you I didn't think that the first accident had anything to do with the second accident and I didn't think they needed to know anything about the first accident. Bear in mind that I'd been performing my job quite – quite well and without any problems up until that accident. . . ." (trans, p.35)

Mr Polkinghorne accepted that the answer that he gave on his application form was not an honest one.

On or about 5 February 1987, while still employed by Vita Pacific, Mr Polkinghorne suffered a further injury when he "stepped on something", causing his left ankle to give way from under him. He subsequently made a further claim for compensation, again omitting to record the 1972 injury, and the 1985 injury while employed with Vita Pacific.
On 29 September 1987 Mr Polkinghorne suffered a further injury, this time while collecting mail at his home. In a claim which he subsequently made for compensation he recorded that his left ankle "just gave out".
Although he recorded in his claim form that he had previously suffered similar injuries in 1985, 1986 and 1987, Mr Polkinghorne again did not record the injury that he sustained in 1972.
On 24 July 1986 Mr Polkinghorne was examined by a consultant surgeon, Miss Schellenberger. In a report (R8) subsequently rendered by her, the doctor recorded Mr Polkinghorne's medical history. In doing so, Miss Schellenberger recorded that after he had seen an orthopaedic surgeon, Mr Schulman, in 1973, (who performed a W. James tendon repair to the left ankle), Mr Polkinghorne stated that he had no further complaints with his left ankle, which he stated was "fair".
Mr Polkinghorne denied having made such a statement:
. . . if she's written in that report that I said to her that my left ankle was fine after that operation and I'd had no more then that's totally wrong." (trans, p.39)
In the same report Miss Schellenberger further reported Mr Polkinghorne as stating that on discharge from the Army an orthopaedic surgeon assessed his left ankle and that he was cleared 100 per cent fit. Mr Polkinghorne likewise denied making such a statement.
Mr P. Colville, an orthopaedic surgeon, examined Mr Polkinghorne on 1 April 1987. In a report dated 2 April 1987 (R9), the doctor recorded Mr Polkinghorne as stating to him that he was "discharged as fully fit from the Army and continued in service for two years after that episode". Mr Polkinghorne again denied making any such statement.
On 6 November 1987 Mr Polkinghorne was seen by Mr D. O'Shaughnessy, an orthopaedic surgeon. In a report dated 7 November 1987 the doctor recorded (R10), that Mr Polkinghorne informed him his only previous operation was an appendectomy, which was carried out in about 1986. When questioned about this, Mr Polkinghorne said the statement made by the doctor was "absolute lunacy".
On 15 July 1988 Mr Polkinghorne attended the Bridge Industrial Clinic in Port Melbourne. He was seen by his general practitioner Dr M. Cass who rendered a report (R11) dated the same date. In his report the doctor recorded that Mr Polkinghorne informed him that severe ligamentous injury to his left ankle, which occurred in 1972, was repaired surgically at the military hospital in Sydney, and that "he fully recovered". Mr Polkinghorne stated in evidence that he made no such statement about recovery.
During cross-examination, Mr Polkinghorne acknowledged that after 1972 he played some tennis and golf and that he went water skiing and fishing, but not a great deal when compared with pre-1972. He added that he has done none of these activities since 1985.
The evidence before the Tribunal is that on or about 10 August 1988, while employed by Crockford and Robertson Pty Ltd, Mr Polkinghorne lodged a claim for compensation (R15) in respect of a "painful left ankle" injury, apparently occasioned while moving a large container.
Reference has already been made to certain claims for compensation made by Mr Polkinghorne.   It is noted that, in respect of the claim which he lodged in 1985, he made a statement to insurance investigators (R17), which in part was as follows:
". . . In 1972 in Papua New Guinea whilst in the Army, I had a fall off a water tower and injured my left ankle.
I sprained my ankle and when I returned to Sydney, the Army arranged for Dr. Schulman to operate on it.   He performed a Watson James tendon repair.
In 1973 I was declared fit by Dr. Schulman to return to full duties, I do not receive a pension for this injury from the Army.
From the time of discharge from the Army in 1974 until my accident at Vita Pacific, I have not had any problems with this ankle.
My surgeon, Mr. C. Jones has told me that my original injury was still alright [sic] and that the new injury from the accident had not damaged it."     (R17)

Although Mr Polkinghorne did not recall having made the statement, he did not deny having done so.

In a further statement to insurance investigators, made on 28 October 1987 (R18), Mr Polkinghorne said, in part:
". . . In 1972 when I was in the Army I had an injury to the same leg resulting in ligament and tendon damage which was operated on. In 1973 I was given a complete medical clearance as fit to return. This injury is similar but not the same." (R18)
On 19 January 1999 Mr Polkinghorne made a claim for compensation in respect of his 1972 injury (T3/6). It is noted, however, that in doing so no mention is made of the injury which he sustained in 1985. That is to say in answer to the question "Have you ever had a similar injury or illness?", Mr Polkinghorne recorded "No". It is further noted that in making his claim he also recorded (at Part 4) that "The resulting fall is the sole cause of my current problem". The reference to "the resulting fall" is a reference to the 1972 incident.
It was Mr Polkinghorne's evidence that although the claim made by him on 19 January 1999 was lodged on his behalf by the staff at Anzac House, he did not himself fill it out. He did accept, however, that upon its completion he checked the details recorded therein and signed the claim form.
Medical Evidence
As mentioned earlier, following his accident on 6 November 1985, Mr Polkinghorne was referred to an orthopaedic surgeon, Mr Clive Jones.
In a report dated 19 November 2000 (A3), Mr Jones stated in part:
". . . My first contact with him was in 1985, when he was thirty-two years old working as a machine operator with Vita Pacific.   He re-injured his ankle on 6/11/85, climbing off a machine on to a greasy rail.
Clinically the ankle showed evidence of instability and early post traumatic osteoarthritis.   An attempted repair procedure did not succeed, and in April, 1986, with on-going pain and inability to function, the left ankle was surgically arthrodesed.   Satisfactory and solid fusion between the tibia and talus was obtained, and litigation regarding the injury was subsequently settled.   Mr. Polkinghorne was unable to work in his previous capacity following ankle fusion, and eventually obtained lighter employment.   I last saw him regarding the ankle in 1990.   There were subsequent odd attendances in 1993 and he was not seen again until March, 1999.   By that time there had been major problems with alcohol, some depression and marital breakdown.   For some two or three years prior to that consultation, he had become aware of increasing pain on the lateral side of the left foot, which appeared to be arising from the subtalar joint.   This was aggravated when he was mowing the grass at home and stood on one of his dog's bones.
A subtalar joint injection using steroids and Marcain confirmed that the pain was arising in that area, and subsequently a subtalar fusion was carried out on 19/5/99.   An extra articular fusion procedure using iliac crest was performed.   Unfortunately, the graft failed to incorporate, and fusion was not obtained.   The subtalar joint remained painful, and the fusion was revised in November, 1999.   This time successful re-fusion was obtained.   When Mr. Polkinghorne was last seen in the middle of this year, his pain had been largely relieved, but there was on-going disability in the form of stiffness in the left leg.   I concluded that the condition was stable and that things were unlikely to change.
. . ."
Mr Jones explained that the 1972 fall experienced by Mr Polkinghorne resulted in a severe inversion injury to the left ankle joint. Repair of the (unstable ankle was undertaken, using peroneus brevis tendon, a procedure which frequently leads to osteoarthritis of the ankle joint.
Mr Jones further stated that Mr Polkinghorne's ankle was already arthritic when first seen by him in 1985, and was also unstable. A salvage ankle fusion was carried out in 1986, which led to a satisfactory resolution of this problem.
In his report, Mr Jones relevantly stated:
". . .
It is well accepted that fusion of the ankle throws excessive strain on the adjacent subtalar joint. Mr. Polkinghorne commenced to experience subtalar joint pain in 1996 or 1997, and fusion of that joint which unfortunately failed on the first occasion has been obtained. The latest CT scans demonstrate unequivocally that the fusion is solid and no further surgical treatment is thought necessary."
It is noted that a military medical summary dated 28 March 1973 (T10/42-43), records that following a "Watson Jones" repair in respect of his left ankle, Mr Polkinghorne developed wound infection and "Staph Aureus was cultured otherwise uneventful post-operative course".
Mr Jones said in evidence that the long term effect of a "Watson Jones" tenodesis is now recognised as "almost inevitably the development of osteoarthritis of the ankle" and that "if he had an injection on top of that, that would probably make the likelihood of osteoarthritis doubly certain". He explained that the osteoarthritis is usually slow in developing, taking probably in the order of 10 to 15 years manifesting in increasing pain and stiffness in the joints.
Mr Jones stated in evidence that when he examined Mr Polkinghorne's left ankle in 1986 (arthroscopy), osteoarthritis was present, which he attributed to the 1972 incident.
In cross-examination Mr Jones' attention was drawn to a report, which he rendered on 29 March 1999 (T16/73). In that report the doctor stated that, following the tenodesis procedure performed some three months after the 1972 injury, Mr Polkinghorne functioned reasonably well until the 1985 incident. That being so, the doctor regarded that incident as a very significant event:
". . . That's not uncommon in clinical practice. People will often carry a problem and be more or less unaware of it until some specific episode occurs that draws their attention to it, brings it out into the open, and they continue to have trouble virtually from the time of the injury." (trans, p.77)

When asked what specific injury did Mr Polkinghorne suffer as a result of the 1985 episode, Mr Jones replied:

"Well, his ankle was somewhat unstable, so I believe that he stretched up his tenodesis and aggravated the underlying arthritic problem in the ankle joint." (trans, p.77)

Mr Polkinghorne was examined by Mr Hugh Weaver, an orthopaedic surgeon on 11 October 1999. The doctor later provided two reports for the purposes of these proceedings, dated 28 January 2000 (A1) and 15 November 2000 (A2), respectively.
In the second of his reports the doctor observed that he had read the various operation reports made by Mr Jones in respect of Mr Polkinghorne, spanning the period from November 1985 to September 1990.
Having made that observation, the doctor went on to state:
". . .
I would point to the proposition that most of these reports seem to relate to the question of continued involvement of Mr. Polkinghorne's left ankle, as opposed to the sub-talar joint.   Referring back to my report of 28th January, 2000, I note that Mr. Polkinghorne told me that he had obviously undergone a series of operations on the ankle region during the period in question; however, he has subsequently undergone at least one further procedure, which took place subsequent to the fall which Mr. Polkinghorne sustained in his own back yard some time around 1999.   I understand, without having seen any further operation reports, that it was presumably at this late stage that the sub talar joint was arthrodesed.
This is in distinction to the proposition that all of Mr. Jones' earlier reports relate to the concept that the series of operations undertaken over the period from 1985 to 1990 was directed at the ankle, as opposed to the sub talar joint itself.
The only element in this material which does raise a query for me is the comment contained in the operation report dated 20th November, 1985:   Mr. Jones clearly indicates in that report that, at the time that he re-explored Mr. Polkinghorne's left ankle, he found at that stage that there was evidence of a fresh rupture of the tenodesis which had previously been performed on the lateral ligamentous complex.   In other words, there is a suggestion that Mr. Polkinghorne was exhibiting evidence of an injury to this lateral ligamentous complex which had been incurred recently.   It would therefore seem that this injury was presumably related in a causal fashion to the employment incident which he incurred in November, 1985, when he was dealing with a machine blockage.
In other words, some question of appointment of liability for his ankle problem probably has to be made between the earlier episode, which occurred with the Army in 1972, and the episode in 1985, when he hurt himself whilst working in a factor situation.
The second element relates once again to this question of the relationship of his ankle and sub talar joint problems.   I am again a little in the doubt regarding the situation of his sub talar joint during the earlier years; although, as I have suggested in my original report, it is not unreasonable that the sub talar joint might have incurred at least some injury, at the same time as the ankle joint, in either or both of the 1972 and/or 1985 incidents.   What would seem to be the case is that, having stumbled in his own back yard in 1999, Mr. Polkinghorne then incurred a further injury which presumably represented 'the last straw' as far as the sub talar joint was concerned.   It is my understanding (once again without even having sighted any further operation notes, subsequent to 1996) that it was only as recently as 1999 or thereabouts that the sub talar joint fusion itself was performed.
All that I can indicate in this regard is that, by the time that I assessed him as recently as October, 1999, it was clearly the case that Mr. Polkinghorne was demonstrating what seemed to be soundly arthrodesed ankle and sub talar joints.   It remains my understanding at this stage that the sub talar arthrodesis is the one which was achieved within much more recent times."

During examination-in-chief Mr Weaver was asked what his understanding was of the nature of the injury suffered by Mr Polkinghorne in 1972.
"My understanding is that he fell from a considerable height, I believe about 30 feet, from a tower in a New Guinea village in 1972. In fact, I think he said he fell backwards. The character of his problems, overall, seem to suggest to me that this was a sort of axial compression to his leg, to the involved leg, in which he literally transmitted force from the whole weight of his body through, respectively, the ankle and subtalar joints and then through his heel to the ground. Now, there is evidence that he almost certainly sustained an injury at that time to the lateral ligament complex of his left ankle and that is, as I have described in my report, it is a complex of ligaments that actually covers both the ankle and subtalar joints. My suspicion is that he probably incurred what is called some osteochondral damage, probably to both joints at the time of injury, even though I don't know that the situation was recognised from the outset. From what I understand of his early situation, he was clearly complaining of the kind of hind foot pain which could be associated with, for instance, a fractured calcaneum, a ruptured ligament complex, an injury to the ankle joint itself, an injury to the subtalar joint itself or, in fact, an injury involving both joints. Now, he underwent that early operation and what sounds to have been a fairly standard Watson-Jones ligament repair and at that relatively early stage, unless there was specific concentration upon things such as bone scans, it might have been very difficult to find what, if any, x-ray evidence there was for joint injuries. But it remains my suspicion that he probably instituted pathology to both joints in that original fall." (trans, p.89)

The reference to "both joints" is a reference to the (left) ankle joint and the subtalar joint.

Mr Weaver explained that in referring to osteochondral damage, he was referring to damage which is literally that of a micro level to the blood supply, which is supplying, for example, the linking cartilage of the subtalar joint:
". . . The cartilage itself has to be sustained. It has no blood supply of its own, but it is sustained by very dense bone just underneath it and in that bone there are micro blood vessels that bring the nutrients to the cartilage itself. Now, any kind of trauma and particularly direct trauma of the kind we are talking about here can cause, sometimes, little micro-fractures within the subchondral bone itself. They would not even show up on x-ray. And this is the sort of thing you do a bone scan to try and demonstrate that there was some pathology there. And the suspicion that I have is that this man initiated this kind of osteochondral damage within possibly both joints at the time of his original injury. Now, the significance of the micro-fractures and disruption of blood supply is that the cartilage, the glassy lining material that I have talked about, will die without adequate nutrition and dead cartilage leads on, in turn, to the development of osteoarthritis within the affected joint. So my thesis, and it is one that I put forward in the absence of any x-ray material relevant at the time, is that he probably incurred, at the very least, some osteochondral damage to either or both of those joints. It is very common, for instance, in such a direct fall for people to get what is called a dome injury to the talus itself. They actually break a little piece of cartilage and it stays there and will develop subsequently as a loose body. And it classically occurs in either or both of the corners of the joint. That block of bone as it sits within the mortis of the ankle joint itself. So we are talking about a subtle and complex, and potentially long term problem. It may take months to years to develop." (trans pp.90-91)
During his evidence Mr Weaver explained the nature of a "Watson Jones" repair. In doing so he made the point that the purpose of the operation is to try and stabilise not only the talus, but also the subtalar joint, thereby preventing abnormal movement which will pre-dispose to the development of arthritis in the joint.
It was Mr Weaver's evidence that by and large, the "Watson Jones" repair operation is good, continuing in the short to medium term.
Having examined the operation reports of Mr Jones, it was Mr Weaver's observation that following the 1985 incident Mr Jones encountered
". . . a lot of osteoarthritic change in that left ankle, degenerative change which would have taken a long period to have developed, months, more than months. So in other words, I have got very little doubt that the pathology there significantly predates the 1985 episode." (trans, p.93)

He added that this pathology was "probably significantly related" to the 1972 incident.

It was Mr Weaver's view that from 1990, the medical issue has been the situation in respect of Mr Polkinghorne's subtalar joint.
"I was originally shown a succession of reports that detail what Mr Jones had done over the period up to 1990. I notice that he had a bit of difficulty in achieving a – he obviously concentrated his attack, if I can put it in those terms, on the ankle joint initially over the period from 1985 to 1990 and he attempted to achieve an arthrodesis of the ankle joint and he eventually did. And he took out the internal fixation and he has finally examined the ankle joint in September 1990 and he has taken out the metal, or most of it, and he found at that stage that there was a sound fusion of the ankle joint itself. Now, up to that point he clearly or from his operation notes, it would seem that he had concentrated pretty much exclusively on the ankle joint and it is from 1990 that – the ankle joint is finished now and we can forget about it, because it is no longer there, effectively. So from 1990 onwards we are talking about what is going on in the subtalar joint." (trans, pp.93-94)

When asked what in his view was then happening in respect of the subtalar joint, the doctor then went on to say:

"Well, the subtalar joint is now left to do more work than it would normally and over the – I can't remember for [how] long he continued to work, but in any day to day situation he is putting a lot of strain on the joint. I come back to the proposition that it is quite feasible, but the evidence of this is difficult to determine either way. I believe that that subtalar joint was probably commencing to be degenerate from 1972 onwards. Now, we have got the – there is no question about the fact that in 1985 he aggravated the situation by falling off the machine and then from 1985 to 2000 or 1999, he is further aggravated by walking around and he had a stumble at his home at some stage and during the 14 year period, the subtalar joint, from 1985 to '99 has been trying to work pretty much on its own and certainly from 1990 to 1999 it has been working on its own. So that period is significant, but I come back to the proposition that I suspect that his pathology was at least initiated long prior to 1990. In other words, I don't think that he has sequentially developed, first of all, an ankle problem and the ankle problem had been dealt with and that is all fine and we are finished with that, and now we go on and we start for the first time to initiate problems in the subtalar joint. And I come back to the proposition for saying that because we know that from 1985, at the very least, he ruptured his lateral ligament complex, which partly involves the subtalar joint." (trans, p.94)

In addressing the issue of degenerative change, Mr Weaver stated as follows:
". . . I have no difficulty with the proposition that the 1985 episode; one, re-ruptured the ligament complex and; two, potentiated further damage to either or both of those joints during the period from 1985 onwards and; three, the point you have just made, fusing the ankle joint then places further stress on the subtalar joint. But the thing that we can't or I can't ignore is that from 1972 to '85, although he was asymptomatic and walking well and requiring no treatment, he was developing degenerative change in that ankle joint, which was apparent when Clive Jones did his first operation a fortnight following the 1985 incident. That pathology did not develop in the two week period, but developed over the 13 year period preceding." (trans, p.103)
Mr M. J. Shannon, an orthopaedic surgeon, examined Mr Polkinghorne for the first time on 9 November 1999, and again on 19 September 2000. He also provided three reports for the purposes of these proceedings, dated 15 November 1999 (R1), 25 September 2000 (R2), and 30 October 2000 (R3).
It was Mr Shannon's opinion that, if it be assumed that Mr Polkinghorne's left ankle was normal prior to the 1972 injury, and that he had arthritis in 1985, then it is reasonable to attribute the arthritis, however mild or asymptomatic it may or may not have been, to the 1972 injury.
Mr Shannon expressed the view that the arthritis appeared to progress fairly rapidly following the 1972 incident, although Mr Polkinghorne apparently did not seek treatment until 1985, when he ruptured his graft. There then followed a series of operations,
"so that clearly this had a significant influence on the osteoarthritis and as I say, the arthritis that Mr Jones describes in his arthroscopy is not all that dramatic. So I would not exclude that the '85 incident was significant, but what I am saying is that I think the arthritis was present before that." (trans, p.116)

Mr Shannon explained that because Mr Polkinghorne has an arthrodesed ankle, he no longer has osteoarthritis. However, up to the time of the arthrodesis, his various day to day activities would all have had some influence on the arthritic process.

When asked whether the operations performed in 1999 and 2000 to fuse the subtalar joint were related to the 1972 injury, Mr Shannon expressed the view that:
"I guess that they are still in part related to that in that you have a sequence of events and the '72 injury, I believe, initiated the sequence of events which led to osteoarthritis of the ankle and the subsequent injury then obviously accelerated that sequence of events and has subsequently led to the subtalar arthritis. So it is one thing following another." (trans, p.119)
In his report dated 25 September 2000, Mr Shannon stated in part:

That Mr Polkinghorne had arthrodesis of his ankle and subtalar joints for arthritis following chronic instability;
That the cause of the instability was the injury in 1972 and this resulted in stabilisation and the subsequent development of osteoarthritis. The graft ruptured in 1985 and the arthritis was aggravated;
That his condition continues to be contributed to by his Army service.

Findings

While I make no specific finding as to the veracity of Mr Polkinghorne's evidence in these proceedings, I do, however, consider it appropriate to record that I consider his evidence in respect of the filling out of his claims for compensation and the giving of some medical histories to be so indeterminate as to be less than helpful in assisting the Tribunal in the conduct of its review (see paragraphs 52-53, 55-58, 60, 66).
As to the substantive issues, I find from the whole of the material before me, as follows:
(a)that in 1972 while serving in the Army, Mr Polkinghorne suffered a compensable injury to his left ankle;
(b)that although thereafter until 1985 he remained asymptomatic, Mr Polkinghorne developed osteoarthritis in the left ankle, a condition which it is reasonable to attribute to the 1972 injury;
(c)that in 1985 Mr Polkinghorne suffered an injury, which was not compensable;
(d)that as a result of the 1985 injury Mr Polkinghorne underwent an arthrodesis of the left ankle;
(e)that as a result of the arthrodesis Mr Polkinghorne required a subtalar fusion of the left ankle;
(f)that the respondent was not liable for the subtalar condition;
(g)that Mr Polkinghorne no longer suffers from an injury to the left ankle in respect of which compensation is payable pursuant to the Act, nor has he suffered from such an injury since his discharge from the Army in 1974; and
(h)that any need for medical treatment or time off work by Mr Polkinghorne since 1985 was and remains attributable to injuries suffered by him on 6 November 1985, being injuries to which the Act does not apply, such that he has no entitlement to incapacity benefits or medical expenses on and from that date.

Decision

In view of the findings set out above, the decision of the Tribunal will be that the decision under review is affirmed.
I certify that the ninety-four [94] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.G. Gibbs, AM, Senior Member
(sgd)         Catherine Thomas
                 Personal Assistant
Dates of Hearing  20-21.11.00
Date of Decision  16.01.01
Counsel for the Applicant            Mr M. Carey
Solicitor for the Applicant            Messrs Slater & Gordon
Counsel for the Respondent        Mr C. Miles
Solicitor for the Respondent        Messrs Tress Cocks & Maddox