Simeoni and Comcare (Compensation)
[2022] AATA 2856
•1 September 2022
Simeoni and Comcare (Compensation) [2022] AATA 2856 (1 September 2022)
Division:GENERAL DIVISION
File Number(s): 2018/4320, 2018/4525 & 2020/6754
Re:John Simeoni
APPLICANT
AndComcare
RESPONDENT
Decision
Tribunal:Deputy President B W Rayment OAM QC
Date:1 September 2022
Place:Sydney
................................[SGD]........................................
Deputy President B W Rayment OAM QC
Catchwords
COMPENSATION – whether the Applicant is entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) – preliminary jurisdictional question concerning the operation of the Act and the Compensation (Commonwealth Government Employees) Act 1971 (Cth) – relevant law and material considered – decisions under review set aside and substituted.
Legislation
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Ascic v Comcare [2021] FCA 1498
Brennan v Comcare (1994) 50 FCR 555
Comcare v Pantic (2012) 203 FCR 83
Hoyle v Telstra Corporation Ltd (1997) 75 FCR 390
Re Morley and Comcare (1996) 40 ALD 725
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
1 September 2022
The applicant seeks by this review to challenge several reviewable decisions of Comcare. The reviewable decisions were two of 27 July 2018 and one of 30 October 2020.
The reviewable decisions of 27 July 2018 affirmed two original decisions of 19 June 2018, which had decided that Comcare had no present liability for incapacity payments under s.19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act) as from 27 March 1992, and the other determination was that as from 19 June 2018 Comcare had no present liability for medical expenses under s.16 of the 1988 Act or for incapacity payments under s.19 of the 1988 Act also as from 19 June 208.
The reviewable decision of 30 October 2020 related to a claim made on 18 June 2020 for secondary right knee osteoarthritis. Comcare rejected that claim on 24 September 2020 and on 30 October 2020, Comcare made a reviewable decision affirming the decision of 24 September 2020.
The review of the earlier reviewable decisions first came before the Tribunal in late 2019 but was adjourned after Ms Wright, for the respondent, took a threshold point suggesting that the claims for incapacity payments and medical expenses were barred by provisions of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act). That suggestion was not made in the earlier reviewable decisions, and was not made in the respondent’s statement of facts issues and contentions. Her oral submission was framed as a submission that the Tribunal had no jurisdiction to entertain the review.
On 10 March 2020, the respondent filed written submissions dated 6 March 2020 dealing with the allegations relying on the 1971 Act, and disputing the jurisdiction of the Tribunal to review the earlier reviewable decision. The submissions refer to ss. 39(14), 45(9), 46(5) and 50 of the 1971 Act and to the decision of the Full Court of the Federal Court in Hoyle v Telstra Corporation Ltd (1997) 75 FCR 390 (Hoyle).
In Hoyle, the two appellants sought compensation under sections 24 and 27 of the 1988 Act for impairments which had become permanent at a time when the 1971 Act was in force.
The case raised questions about the 1971 Act and the transitional provisions in the 1988 Act.
The two appellants were Telstra employees whose injuries made them totally incapacitated for work. Before the commencement of the 1988 Act, they each received weekly payments of compensation under the 1971 Act.
Under the 1988 Act, it is open to an injured worker to receive, in addition to weekly payments, an amount for permanent impairment in addition to the weekly payments. By contrast, under the 1971 Act, the position was more complicated, and was dealt with as provided in ss.45, 46, 49, 50 and s.50 of the 1971 Act, mentioned below. That difference required attention to the transitional provisions in the 1988 Act, especially s.124.
Section 124 of the 1988 Act provides as follows:
(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a) where the injury, loss or damage was suffered before the commencement of the 1930 Act—under the 1912 Act;
(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c) in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered.
(3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a) the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or
(b) the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
(i) where the impairment or death occurred before the commencement of the 1930 Act—under the 1912 Act;
(ii) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act
(iii) in any other case—under the 1971 Act as in force when the impairment or death occurred.
(4) The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:
(a) where the impairment or death occurred before the commencement of the 1930 Act—the 1912 Act;
(b) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—the 1930 Act as in force when the impairment or death occurred; or
(c) in any other case—the 1971 Act as in force when the impairment or death occurred.
(5) A person is not entitled to compensation under section 29 in respect of any period occurring before the commencing day.
(6) A person is not entitled to compensation under subsection 17(5) in respect of the death of an employee, or under section 19, 20, 21, 22 or 31 in respect of an incapacity, where the compensation relates to a period occurring before the commencing day, if:
(a) that person received weekly payments of compensation in respect of that death or incapacity in relation to that period under the 1912 Act, the 1930 Act or the 1971 Act; or
(b) that person was not entitled to receive weekly payments of compensation in respect of that death or incapacity in relation to that period:
(i) where the death or period of incapacity occurred before the commencement of the 1930 Act—under the 1912 Act;
(ii) where the death or period of incapacity occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the death or period of incapacity occurred; or
(iii) in any other case—under the 1971 Act as in force when the death or period of incapacity occurred.
(7) The rate of compensation (if any) that a person is, by virtue of this section, entitled to receive under subsection 17(5) in respect of the death of an employee, or under section 19, 20, 21, 22 or 31 in respect of an incapacity, where the compensation relates to a period occurring before the commencing day, shall be the same as the rate of compensation that would have been payable to that person in relation to that period, if this Act had not been enacted, under:
(a) where the period occurred before the commencement of the 1930 Act—the 1912 Act;
(b) where the period occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—the 1930 Act as in force during the period; or
(c) in any other case—the 1971 Act as in force during the period.
(8) A person is not entitled to compensation under subsection 16(1) or (6) or section 18 in respect of any cost, the liability to pay which arose before the commencing day, or of any expenditure incurred before that day, if:
(a) an amount was paid in respect of that cost or expenditure under the 1912 Act, the 1930 Act or the 1971 Act; or
(b) an amount was not payable in respect of that cost or expenditure:
(i) where the liability for the cost arose, or the expenditure was incurred, before the commencement of the 1930 Act—under the 1912 Act;
(ii) where the liability arose, or the expenditure was incurred, after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the liability arose or the expenditure was incurred; or
(iii) in any other case—under the 1971 Act as in force when the liability arose or the expenditure was incurred.
(9) The amount of the compensation (if any) that is, by virtue of this section, payable under subsection 16(1) or (6) or section 18 in respect of any cost, the liability to pay which arose before the commencing day, or of any expenditure incurred before that day, shall be the same as the amount that would have been payable in respect of that cost or expenditure, if this Act had not been enacted, under:
(a) where the liability for the cost arose, or the expenditure was incurred, before the commencement of the 1930 Act—the 1912 Act;
(b) where the liability arose, or the expenditure was incurred, after the commencement of the 1930 Act but before the commencement of the 1971 Act—the 1930 Act as in force when the liability arose or the expenditure was incurred; or
(c) in any other case—the 1971 Act as in force when the liability arose or the expenditure was incurred.
(10) Where:
(a) proceedings for the recovery of compensation under the 1912 Act, in respect of any injury suffered before the commencement of the 1930 Act, were not maintainable by a person because of section 5 of the 1912 Act;
(b) a claim for compensation by a person under the 1930 Act, in respect of an injury suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act, was not admissible because of section 16 of the 1930 Act; or
(c) a claim for compensation by a person under the 1971 Act, in respect of an injury suffered after the commencement of the 1971 Act but before 1 July 1986, was not admissible because of section 54 of the 1971 Act, as that section was in force before 1 July 1986;
that person is not entitled to compensation under this Act in respect of that injury.
(11) Section 48 does not apply where the damages referred to in that section were recovered before the commencing day.
(12) Section 49 does not apply in relation to a prescribed dependant who recovered the damages referred to in that section before the commencing day.
The appellants were denied any payment for permanent impairment under the 1988 Act, by Telstra, the AAT on review, the trial judge (Sackville J) and the Full Court on appeal.
The Full Court described the appeal as turning on sub-sections (3) and (4) of s.124. The Full Court discerned a general principle in s.124(1A) and (2) to the effect that a claimant for compensation for injuries occurring at a time when the 1971 Act was in force, should not be worse off because of the enactment of the 1988 Act, but should not, in general, be better off. In the result the Full Court held that s.124(3) and (4) should be construed according to that principle.
Under s.39(14) of the 1971 Act ,which provided for payment of a lump sum for loss of parts of the body, such as loss of an eye, loss of hearing, loss of leg at or above the knee and other parts, payments of the lump sum were not permitted to be made for “… so long as the employee is, or is likely to become, totally incapacitated for work where the incapacity for work results, or, if it occurs, will result, in whole or in part from the injury”. In other words, a lump sum under s.39 was not payable at all under the 1971 Act if, as was the case with the two appellants, they were permanently incapacitated for work as a result of their injuries. Rather those persons would continue to receive weekly payments, unless other provisions of the 1971 Act applied.
Those other provisions were s.45, which applied where the injury resulted in the employee being totally incapacitated for work; section 46, which applied if the employee became partially incapacitated for work, together with s.49 which in certain circumstances permitted the employee to apply for the redemption of a payment by the payment of a lump sum, and s.50, which applied if a lump sum were paid under s.39 or s.49 and the employee later became totally incapacitated for work. Then weekly payments calculated in accordance with s.50(2) were payable.
Sections 46 of the 1971 Act was as follows:
(1) Where an injury to an employee results in the employee being
partially incapacitated for work, the succeeding provisions of this section
have effect.
(2) Subject to this section, compensation is payable to the employee, during
the period of the incapacity, of an amount per week equal to-
(a) the lesser of the following amounts, namely-
(i) $90 or such higher amount as is prescribed; or
(ii) the amount (if any) by which the average weekly earnings of the
employee before the injury exceeds from time to time the amount per week that he is able to earn in some suitable employment or business; or
(b) the amount (if any) by which the amount per week that would be payable
to him under the last preceding section, disregarding sub-sections (2A) and
(7) of that section, if he were totally incapacitated for work exceeds from
time to time the amount per week that he is able to earn in some suitable
employment or business,
whichever is the greater.
(3) If, as a result of the partial incapacity for work-
(a) the employee is retired from his employment, or the minimum amount per
week payable to the employee in respect of his employment by the Commonwealth
is reduced; and
(b) as a result of the retirement or reduction, as the case may be, the employee is in receipt of a pension under a superannuation or provident scheme established or maintained by the Commonwealth or by a prescribed authority of the Commonwealth,
the compensation payable to the employee in respect of each week during the period of the incapacity shall not exceed the amount, if any, by which the average weekly earnings of the employee before the injury exceed from time to time the sum of-
(c) the amount per week that he is able to earn in some suitable employment
or business; and
(d) the amount of-
(i) if a part of the pension is, under the scheme, attributable to
contributions for the pension paid by the employee-the part of the pension
paid or payable to the employee in respect of that week that is not
attributable to those contributions;
(ii) if the employee has paid contributions under the scheme, the schemedoes not identify a part of the pension as being attributable to those
contributions and the Commissioner has determined that it is reasonable that a
part of the pension should be treated as if it were attributable to those
contributions-the part of the pension paid or payable to the employee in
respect of that week that is determined by the Commissioner to be the part
that is to be treated as not attributable to contributions for the pension
paid by the employee; or
(iii) in any other case-the pension paid or payable to the employee in
respect of that week.
(4) In ascertaining for the purposes of the last two preceding sub-sections the amount per week that an employee is able to earn, any amount that he is able to earn in respect of overtime shall be taken into account.
(5) Subject to the next succeeding section, where a determination is made that an amount of compensation is payable to the employee under section 39 in respect of an injury that caused a loss referred to in that section or a determination is made that the liability of the Commonwealth to make further payments to the employee under this section in respect of an injury is to be redeemed, compensation is not payable to the employee under this section in respect of a period of incapacity for work resulting from that injury, being a period occurring after the date of the making of the determination.
The Full Court dealt with the question whether there was any entitlement to lump sum payments under s.24 and s.27 of the 1988 Act, and rejected that claim as had each of Comcare, the Tribunal and Sackville J.
The Full Court commented that if, at some time before the commencing day under the 1988 Act, either of the appellants had ceased to be totally incapacitated for work, there would have been an entitlement to compensation under s.39(3) of the 1971 Act. They also commented that if either of the appellants had ceased to be totally incapacitated at some time after the commencement of the 1988 Act, s.124 might not preclude entitlement to compensation under s.24 of the 1988 Act, a matter not determined by the Full Court.
The respondent submitted as follows in paragraphs 2-10 of its submissions dated 6 March 2020:
On 21 August 1979, the applicant submitted a claim for compensation for injury for an injury that occurred on 1 May 1979 at 11.30am. He stated he suffered an injury to his head, nose and right knee, working on the slaughter floor when he was knocked down by a steer, which had escaped rom the stunning area (T6). Liability was accepted under the 1971 Act. The compensable condition was concussion and bruising to right knee sustained on 1 May 1979 (the CC).
Subsequent claimed recurrences/symptoms involving the right knee and related surgeries are detailed in the respondent’s statement of facts, issues and contentions dated 26 July 2019 (RSFIC).
The RSFIC also details a number of periods for which incapacity/time off work was claimed and paid, including:
- 2 to 11 May 1979 (T18).
- 20 July 1984 to 27 July 1984 and from 10 February 1986 to 1 April 1986 (T25).
- 26 July 1989 to 28 July 1989 (T33).
The applicant returned to full duties on 30 August 1990 (T45).
On 30 July 1991, Comcare determined that the applicant suffered a loss as a result of his compensable injury under s 39 of the 1971 Act and that the degree of that loss was 25% of the right leg at or above the knee (T48).
On 5 August 1991, the applicant was certified as fit for his present duties following a fitness for duty assessment (T49).
On 27 March 1992, the applicant left his Commonwealth employment (T51). He accepted a voluntary redundancy.
After leaving his Commonwealth employment, the applicant looked after his own 500 acre beef farm and invested in commercial property.
On 16 December 2014, Comcare determined the applicant suffered from a 26% permanent impairment of his right knee as a result of his right knee replacement and determined his entitlement under s 24 was $46,011.37 minus the $9,616.87 previously paid on 30 July 1991. Comcare also determined the applicant’s entitlement under s 37 was $19,908.78, meaning he received total compensation of $56,303.28 under ss 24 and 27 of the SRC Act at this time (105).
It relied upon s.46(5) of the 1971 Act and on Comcare v Pantic [2012] FCA 388 (Finn J).
Section 46(5) of the 1971 Act provided as follows:
Subject to the next succeeding section, where a determination is made that an amount of compensation is payable to the employee under section 39 in respect of an injury that caused a loss referred to in that section or a determination is made that the liability of the Commonwealth to make further payments to the employee under this section in respect of an injury is to be redeemed, compensation is not payable to the employee under this section in respect of a period of incapacity for work resulting from that injury, being a period occurring after the date of the making of the determination.
Section 47 of the 1971 Act provided as follows:
If, after the making of a determination that an amount of compensation is payable to an employee under section 39 in respect of an injury resulting in a loss referred to in that section, the employee undergoes medical treatment in relation to that injury, being medical treatment in relation to which sub-section (1) of section 37 applies –
(a) any incapacity of the employee for work resulting from that medical treatment or occurring by reason that the employee is undergoing that medical treatment shall, for the purposes of this Act, be deemed to have resulted from that injury; and
(b) compensation is payable to the employee in respect of that incapacity in accordance with section 45 or section 46, as the case may be, but sub-section (9) of section 45 or sub-section (5) of section 46, as the case may be, does not apply in relation to the period of that incapacity.
T48 does show that on 30 July 1991 the respondent paid the sum of $9,616.87 to Mr Simeoni purportedly under s.39 of the 1971 Act, notwithstanding that on 1 December 1988 the 1988 Act had commenced. That payment, if properly made under the 1971 Act would ordinarily mean that according to the 1971 Act, he had no further entitlement to weekly compensation under the 1971 Act, by virtue of s. 49(5) of the 1971 Act.
However, the 1971 Act was no longer in force after 1 December 1988, when the 1988 Act commenced. Section 124 affected a claim made after 1 December 1988 under s.24 of the 1988 Act, and provided that the quantum of any payment under ss.24 or 25 of the 1971 Act for an impairment that occurred before 1 December 1988 was to be the same as if the 1988 Act had not been passed: see s.124(4).
The payment made on or about 30 July 1991 could only be under s.24 of the 1988 Act. The quantum determined upon by Comcare had regard to s.39 of the 1971 Act, which was in accordance with s.124(4) of the 1988 Act.
However no provision of s.124 of the 1988 Act imported s.49(5) of the 1971 Act into the new regime operative from 1 December 1988 under s.124 of that Act.
T105 shows that on 16 December 2014 (after Hoyle had been decided) Comcare made payments to the applicant under sections 24 and 27 of the 1988 Act, totalling $56,303.28.
Relying on the payment of $9,616.87 under s.39 of the 1971 Act, Ms Wright for Comcare, said that because of s.46(5) of the 1971 Act, payments of weekly compensation cannot be made to the applicant after the determination of 30 July 1991. That submission is, with respect, erroneous for the reasons I have mentioned in [24] above.
In Brennan v Comcare (1994) 50 FCR 555, Burchett J (with the concurrence of Ryan J) analysed the situation of impairments arising after 1 December 1988, where the injury occurred while the 1971 Act was in force. His Honour explained that one injury may produce more than one impairment, including an impairment constituted by a worsening of an impairment previously compensated. If the worsening occurs after 1 December 1988, it may be compensated under s.24 (or s.25). A s.24 claim validly made under the 1988 Act for a new impairment is available even if it stems from an injury suffered before the 1988 Act commenced, in accordance with s.124(1).
Probably little turns on the fact that Comcare erroneously described its payment made on or about 30 July 1991 as one made under the repealed Act. That fact did not and could not attract s.46(5) of the 1971 Act, because that section, like all of the 1971 Act had been repealed.
Ms Wright also sought to support the jurisdictional submission on the basis of a number of other reported cases and one Tribunal decision, and with respect, none of those cases seems to me to bear on the matters I have discussed above. Those cases include Re Morley and Comcare (1996) 40 ALD 725 at [13], Comcare v Pantic (2012) 203 FCR 83 (Finn J), and Ascic v Comcare [2021] FCA 1498 (Banks-Smith J) at [37], [38], [41] and [42].
I reject Comcare’s jurisdictional challenge, and I now turn to the facts relied upon in the applicant’s attack on the various reviewable decisions.
On 1 May 1979 the applicant was working for an abattoir in Casino when a steer escaped on the slaughter floor. Mr Simeoni was in the path of the steer and was knocked over onto the concrete floor. He says he was trampled by the steer which injured his right knee, and he attributes the very significant trouble he since had with his right knee to the injury. He had a few days to a week off work, but gradually, he experienced severe pain in his knee, although he continued to work until 1992. There was a history of swelling in the right knee, and numbness as well. It was difficult for him to stand on the concrete floor for long periods.
There was a further injury during his employment when on 12 February 1981, he was kicked in the right knee by a calf. A medico-legal witness, Dr Pillemer, believes that this injury aggravated his condition.
He had a series of arthroscopies on his right knee. The first was in 1986 and his surgeon was Dr Ashwell. The second was in March 1990, and the surgery was again done by Dr Ashwell.
The applicant believed that because he had taken a redundancy in 1992, and no longer worked for the Commonwealth, he could no longer make a claim on Comcare, which had accepted liability for the arthroscopies. It was not until 2006 that he sought to reopen his claim with Comcare, and Comcare did not have contemporaneous information from him for the fourteen years between 1992 and 2006.
After his redundancy in 1992 the applicant did work on his 500 acre farm. He says that he avoided heavy work because of his knee problem, and either employed contractors or asked his sons to help.
He engaged again in part-time casual work for AQIS from 2002 for 10 years. He could not work full time and found it hard to work more than a few hours or one day at a time, again because of his knee problem. In the mornings his knee was stiff and painful, and swollen.
In 2005 he had Dr Pearce perform his third arthroscopy on his right knee, but continued to find his knee sore and stiff afterwards.
In August 2006 he made a further claim for compensation which resulted in a determination and reconsideration stating that he was not stable for assessment.
In February 2010 he said that his right knee gave way when he was carrying a side of pork, and he twisted his left knee.
In May 2010 Dr Pearce did an arthroscopy on his left knee.
On Easter Monday 2010, Mr Simeoni says that he had a quad bike incident on his farm. There is a difference between his oral evidence and the notes of his general practitioner and orthopaedic surgeon about this incident. His oral evidence was to the effect that he put out his right leg to stabilise himself, and bruised his right calf but not his knee. The notes of the Dr Currie reported in August 2010 that he had rolled the quad bike, and hurt his right knee. Ms Wright, cross-examining Mr Simeoni, suggested that he then injured his right posterior cruciate ligament.
A time sheet showed that on the following day after the Easter Monday, from 7 am, he did a day’s work for AQIS, and Dr Pillemer said that if he had caused a break in his posterior cruciate ligament on the Monday, he could not have worked the next day.
I am prepared to accept and act upon that evidence if in fact, the quad bike incident occurred on Easter Monday, 5 April 2010. Whatever injury was suffered on the Easter Monday did not produce the tear of the right posterior cruciate ligament.
There is a suggestion of a second or different quad bike incident in 2010, contained in the notes of Dr Currie at R4 page 72. Mr Simeoni was clear in his oral evidence before the Tribunal that he had had only one quad bike incident and the second statement of Mr Simeoni explains that the one incident was in April. Mr Simeoni had a hospital note from St Vincent’s Private Hospital at Lismore dated 8 May 2010 referring to a quadbike incident “5 weeks ago”, which enabled Mr Simeoni to recall that the incident occurred on Easter Monday in April 2010 rather than in August 2010. Mr Simeoni is likely to have remembered how many quad bike incidents he had. The general practitioner’s note may be inaccurate as to what the applicant said. It is in any event indistinct as to what follows the words “last week” in the note. When Dr Pearce, the then treating orthopaedic surgeon received the MRI in 2010, he did not suggest that any quad bike incident, of August or any other recent date may have caused the tear in the posterior cruciate ligament. Rather, he thought, it related to the original work injury (of 1979). He so told Comcare at R4 page 20 in December 2010, and he described he posterior cruciate ligament tear as “old”. He may have been able to make that remark because of indications on the MRI. Dr Bookless, called later, said that the MRI did not have the appearance of a fresh injury (Tr 130).
If any relevance attaches to the quad bike incident, it seems to have been treated by Dr Pearce as (at most) aggravating an old injury. Dr Harrison described the 1979 injury as the injury, as discussed below.
The MRI done on the applicant on 18 November 2010 for Dr Pearce showed a full thickness tear of the right posterior cruciate ligament. Dr Pearce performed a further arthroscopy on the right knee in February 2011. In November 2012, Dr Pearce performed a total right knee replacement. Comcare paid for that operation.
Having taken a history from Mr Simeoni and sought to trace the history of what occurred to the right knee, Dr Pillemer formed the opinion that the source of the need for the total knee replacement of the right knee was the incident of 1979, together with the incident of 1981. He also said that the early development of osteoarthritis in the (right) knee was predictable with a torn cruciate ligament and patellofemoral arthritis. He said that the x-rays of 2006 showing that he had mild to moderate narrowing of the medial compartment, with small osteophyte formation indicated a considerable period of time in the development of the arthritis.
The various reports of Dr Pearce seem to be consistent with the evidence of Dr Pillemer. Dr Pearce treats the right knee arthroscopies and replacement as work-related, as does Dr Pillemer.
Dr Pillemer’s opinion also coincides with a detailed report written by Dr James Harrison, an orthopaedic surgeon who examined him on 6 October 2011, and who is now deceased. His report (T76) attributes the 1979 incident to the tear in the posterior cruciate ligament. He says that the 1979 incident is the accident where posterior cruciate ligament disruption occurred that along with attritional changes, the underlying cause of progressive incapacity he has had in relationship to diminished knee function on the (right side). On examination of the right knee, he said that the applicant had a posterior sag that is confirmed due to disruption of the posterior cruciate ligament.
In cross-examination, Ms Wright took Dr Pillemer to the report of Dr Battacharayya of 2006. The MRI of 2010 was, of course, not available to that doctor. The MRI showed that the posterior cruciate ligament was torn. Dr Pillemer was inclined to prefer the examination reported by Dr Harrison, who did have the benefit of the 2010 MRI.
Dr Bookless was called by the respondent. Cross-examined by Mr Mrsic, he said that assuming the 1979 incident caused a tear in the posterior cruciate ligament, that may cause an early onset of osteoarthritis. During cross-examination by Mr Mrsic, he rather agreed that he had not concentrated on the posterior cruciate ligament, which turned out to be very important not only to Dr Pillemer but to Dr Pearce and Dr Harrison.
Dr Bookless, disagreeing with Dr Pillemer, in his report, formed a similar view about the need for the right knee replacement was also osteoarthritis rather than any work injury. Dr Bookless seems to have adopted early views formed by Comcare in 1979 to the effect that the 1979 incident with the steer cleared up within a few months. Dr Pillemer noted the quite different history of problems with the right knee, involving five separate arthroscopies, pain swelling and numbness over many years, and the tear to the posterior cruciate ligament, and Dr Pillemer attributed the right knee problems leading up to the total knee replacement in November 2012 were caused by the incidents of 1979 and 1981. I find that view more persuasive. The total right knee replacement, as I have said, was paid for by Comcare in any event.
Returning to the chronology, the next major event was to the left knee. The applicant suffered increasing pain in that knee and in October 2016 Dr Pearce performed a total left knee replacement. The evidence does not satisfy me that the total replacement of the left knee was work-caused. It seems more likely that osteoarthritis was the main cause of the need to replace that knee, as Dr Bookless, qualified by the respondent suggested. The applicant’s answers about this matter during his cross-examination (Tr 37) did not satisfy me that the suggested twisting of the left knee when the right knee gave way was what led to that knee’s replacement.
The disputes in this case in monetary terms (apart from any question about the left knee operations) seem to relate to a claim by the applicant for income lost before the right knee replacement from especially from 1992 to 2012. The quantification of that claim would be a matter for Comcare, after these proceedings have been resolved.
There is incidental confirmation of the applicant having lost income from his farm as a result of the need to employ contractors to do work that, but for the right knee problems, he would have been able to do himself.
Ms Wright took a number of points against the case made by the applicant. She submitted that the timesheet to which I referred (particularly on the day after Easter Monday in 2010) should not be admitted into evidence, without the leave of the Tribunal, given under s.66(1) of the 1988 Act. The applicant was cross-examined at length about the quad bike incident, both as to whether there was also an incident in August and as to whether the right knee was then injured, based upon the doctors’ notes. The relevance of the timesheet was clearer after the cross-examination than before it. There was no application on either side to recall Mr Simeoni to give such evidence as he could give about the timesheet, or to cross-examine him further. In any event, I treat the quad bike incident or incidents as peripheral to the review. The main point is that the 1979 incident caused the posterior cruciate ligament injury, according to Dr Pearce, Dr Harrison and Dr Pillemer, and as I have discussed, the Easter Monday is relevant only on the hypothesis that August was not the true date.
It should be mentioned that the applicant was at a loss to recall many of the events which went back some 40 years during his evidence. Matter which tended to confirm his evidence was all the more important in the case after his cross-examination. The timesheets fell into that category. They are regular on their face and were in the category of business records. As it happens, they have assisted me to make findings in the case. I grant leave nunc pro tunc for their tender.
Another point made on behalf of the respondent is that notice was not given of a condition of osteoarthritis to the respondent, in or about 2005. This relates particularly to the third reviewable decision. The respondent relied upon Dr Pearce telling the applicant in 2005 that osteoarthritis was particularly affecting the medial compartment. Further, the respondent relied upon the applicant telling Dr Bhattacharyya in 2006 that an arthroscopy in 2005 found degenerative changes (T53 at page 79). Dr Bhattacharyya so informed Comcare on 27 March 2006.
One way in which the current case has been put, no doubt based upon the expert evidence including that of Dr Pillemer, is to claim that the early onset of osteoarthritis (in the right knee) which contributed to a continuation of the problems caused to the applicant by his right knee was itself work-caused as a result of the tear of the posterior cruciate ligament. The understanding of the applicant is not shown to extend to that particular matter of medical science, now explained in the 2018 report of Dr Pillemer, which Comcare has had an opportunity to answer.
The left knee on the other hand seems to have had its origin in arthritis which became manifest five years later, and owed nothing to any torn cruciate ligament or, so far as I can see, any work-related cause, despite the reference in the evidence to a twisting of the left knee when the right leg gave way in 2010.
The matter which was known to the applicant (and, presumably to his solicitors) and conveyed to Dr Bhattacharyya in 2006 was promptly notified to Comcare by Dr Bhattacharyya. The respondent qualified Dr Bookless, and I do not take him to have disagreed that a torn posterior cruciate ligament could provoke the early onset of osteoarthritis. The second report of Dr Pillemer of 4 July 2019 states that such a PCL injury is well recognised as a precursor to the development of arthritic change in the knee.
I reject a claim of lack of notice.
The applicant is therefore entitled to receive compensation for loss suffered as a result of the right knee problems but not for the left knee, and to have an order for costs for the review proceedings. I will hear both parties on the appropriate terms for substituted decisions, which the respondent has not so far addressed. The applicant’s submissions do not suggest the precise terms of any appropriate substituted decisions. If agreement cannot be reached on appropriate terms for final orders, I ask to receive the submissions of both parties on or before 12 September 2022.
I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
.............................[SGD]...........................................
Associate
Dated: 1 September 2022
Date(s) of hearing: 11 November 2019, 21 - 22 July 2021 & 11 November 2021 Date final submissions received: 13 April 2022 Counsel for the Applicant: Mr J Mrsic Solicitor for the Applicant: Mr J Clarke, Grieve Watson Kelly Lawyers Solicitor for the Respondent: Ms S Wright, AGS
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