Simeoni and Comcare (Compensation)
[2025] ARTA 1717
•15 August 2025
Simeoni and Comcare (Compensation) [2025] ARTA 1717 (15 August 2025)
Applicant:John Simeoni
Respondent: Comcare
Tribunal Number: 2018/4320, 2018/4525, 2020/6754
Tribunal:Senior Member G McCarthy
Place:Canberra
Date:15 August 2025
Decision:
The decision under review is affirmed.
……………[SGD]…………………..
Senior Member G McCarthy
Catchwords
COMPENSATION – accepted compensable condition, ‘concussion and bruising to right knee’, when applicant struck down and trampled by a steer in an abattoir in the course of his employment on 1 May 1979 – compensation paid for medical expenses and permanent impairment – reviewable decision denying liability for incapacity for work resulting from the compensable condition from 27 March 1992 – reviewable decision denying liability for medical expenses and incapacity for work resulting from the compensable condition from 19 June 2018 – reviewable decision denying liability for right knee osteoarthritis, claimed as a new compensable injury – liability for incapacity for work in relation to the compensable condition from 27 March 1992 precluded under statute consequent on the applicant earlier accepting a lump sum payment in relation to the condition – no liability for medical expenses in relation to the compensable condition because condition resolved prior to 19 June 2018 – no liability for right knee osteoarthritis because not satisfied of a causal connection with the applicant’s employment – decisions affirmed
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, Sch 16
Compensation (Commonwealth Government Employees) Act 1971 ss 39, 46
Safety, Rehabilitation and Compensation Act 1988 – ss 5A, 5B, 14, 16, 19, 53, 124
Cases
Beezley v Repatriation Commission [2015] FCAFC 165
Comcare v Pantic [2012] FCA 388
Comcare v Simeoni [2024] FCAFC 31
HNGN and Military Rehabilitation and Compensation Commission [2018] AATA 4096
Hoyle v Telstra Corporation Limited [1997] FCA 257
Lang v The Queen [2023] HCA 29
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Perich and Secretary, Department of Social Services [2018] AATA 963
Re O’Callaghan and Comcare [2019] AATA 2511
Woodhouse v Comcare [2021] FCAFC 95
Secondary materials
Administrative Review Tribunal (Expert Evidence) Practice Direction 2024
dated 9 December 2024
Statement of Reasons
These three proceedings concern the applicant’s claims for compensation arising from an injury to his right knee suffered in the course of his employment.
The applications sought review of the respondent’s reviewable decisions denying liability for the claims. The applications were first heard concurrently by the Administrative Appeals Tribunal (the AAT). On 12 September 2022, the AAT ordered the reviewable decisions be set aside and made orders in substitution.
The respondent appealed from the AAT’s orders to the Federal Court.
On 15 March 2024, a Full Court of the Federal Court allowed the appeal, set aside the AAT’s decisions and remitted the matter to the AAT to decide according to law.[1]
[1]Comcare v Simeoni [2024] FCAFC 31
On 14 October 2024, this Tribunal was established and the AAT ceased to exist. Pursuant to Schedule 16, Part 5, item 24 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, the Tribunal is empowered and was required to hear and determine the applicant’s applications to the AAT as remitted by the Federal Court.
Whilst I must determine the applicant’s three applications afresh, the parties requested by agreement that I do so by reference to the evidence that was before the AAT, without taking further evidence, and I adopted that course.
Factual and medical background
Most primary facts relevant to the determination of these applications are not in dispute. I set them out below, to be understood as findings of fact. Some important alleged facts were disputed. In these cases, I have noted the evidence and then made findings of fact, where possible, according to the whole of the evidence.
On 1 May 1979, the applicant was working as a meat inspector in an abattoir. He was employed by the Commonwealth Department of Primary Industries. On that day, he suffered an injury to his right knee when he was knocked down by a steer in the course of his employment.
The applicant gave evidence that he was also trampled by the steer. There is contemporaneous evidence from 1986 after the accident corroborating his claim[2] and I find accordingly. That said, for reasons that follow, I do not attach any significance to that finding. What matters is that he suffered an injury to his right knee when knocked down and trampled by the steer.
[2] T documents, 2018/4320 at T23/36
In this remittal hearing, the applicant submitted I should find not only that he was trampled by the steer but that it trampled on his right knee.[3] The applicant made that claim in his oral evidence,[4] but I was not taken to any contemporaneous or any earlier evidence to that effect including his witness statements in these proceedings nor could I find any. I am not persuaded this happened, but the applicant repeatedly omitted to mention this detail to his employer, his many doctors and his solicitors all of whom were focusing on the injury to his knee. I decline to make that finding. Again however, for the reasons that follow, I do not think a finding to that effect is of consequence one way or another.
[3] Applicant’s written submissions dated 20 September 2024 at [3]
[4] Transcript of proceedings, 21 July 2021, page 14, line 14
In his notice of injury dated 21 May 1979, the applicant wrote:
during the course of my duty I was knocked down by a bullock which had escaped from the killing area.[5]
[5] T documents, 2018/4320 at T5/15
In his notice of injury by way of a description of his injury, the applicant wrote:
Concussion & bruising to right knee and nose.[6]
[6] T documents, 2018/4320 at T5/15
The applicant was absent from work from 1 May to 11 May 1979 as a consequence of his injuries.[7]
[7]T documents, 2018/4320 at T7/20
In his first witness statement dated 8 July 2019, the applicant described the accident as follows:
On 1 May 1979 I was working at the abattoir in Casino .. when a steer escaped on the slaughter floor. I was in the escaped steer’s path. I was knocked to the concrete floor and then trampled by the steer. When I was trampled, I sustained an injury to my right knee, and I have been having ongoing problems with my right knee ever since. At the time, I have a vague recall of having two days to maybe a week off work, but then returning to normal duties.[8]
[8]Applicant’s statement dated 8 July 2019 at [6]
The applicant stated he had “ongoing pain, discomfort and swelling after the accident.”[9]
[9]Applicant’s statement dated 8 July 2019 at [9]
In an undated letter but seemingly sent shortly before 15 October 1980, some 18 months after the accident, the applicant wrote to his employer seeking reimbursement for an x-ray examination of his right knee and stating his knee was still painful.[10]
[10] T documents, 2018/4320 at T8/21
In reply, by letter dated 15 October 1980 which refers to the applicant “recently” submitting medical accounts for reimbursement and “still experiencing discomfort”, the applicant’s employer requested “an injury report detailing the present situation regarding your injured knee.”[11]
[11] T documents, 2018/4320 at T9/22
In response to that request, by report dated 17 October 1980, Dr White, an orthopaedic surgeon, wrote:
This man was seen [by me] at the request of his local medical officer ..
He stated that he had had an accident at work in May 1980 (sic) when he was run over by a steer. He suffered concussion and hurt his right knee at the time and was off work for a few weeks.
Following this he has had pain on both sides of the right patella and has noted that the fairly constant pain is accompanied by clicks in the knee.
On examination I noted that he had some pain on compressing the right patella from above and that the right knee, and in fact the left to a lesser extent, had a fair amount of crepitations on movement. All his ligaments appeared to be intact.
Some X-rays I saw, including an arthrogram were all normal.
I consider that he has chondromalacia patellae which can occur following such an accident. At this stage I feel that physiotherapy in the form of quadriceps strengthening exercises should be employed. It may be necessary, if he experiences sufficient disabling pain in spite of advanced muscle development, to consider surgery (emphasis added).[12]
[12] T documents, 2018/4320 at T10/23
In the context of his report, I understood Dr White’s statement about “a fair amount of crepitations on movement” of the right and left knees to be him hearing noises on moving the applicant’s knees.
Chondromalacia patellae is, as I understand it, a condition involving the softening and breakdown of cartilage under the kneecap which can lead to pain.
In a report dated 3 November 1980, the applicant’s general practitioner, Dr Castagna, wrote to the applicant’s employer as follows:
I was first consulted by this patient on the 1st May, 1979 after he had been knocked over by a bullock and had injured his right knee. his initial complaint was mainly of headaches, but over the ensuing months he began to be plagued by ever increasing knee pain.
I reviewed him in August, 1980 and he stated that the knee had gradually got worse and that he had also had “cracking” knees. On examination he had crepitation in his right knee and I ordered repeat knee X-ray and Arthrogram of that knee. The results of both were normal failing to show any bony or meniscus injury.
A provisional diagnosis of chondromalacia of patellae was made and he was commenced on Butazolidin, which he states eases his symptoms.
He has been reviewed by Dr. David White who agrees with the diagnosis.[13]
[13] T documents, 2018/4320 at T11/24
On 12 February 1981, the applicant suffered a further injury to his right knee in the course of his employment when kicked by a calf. The injury report states:
Whilst inspection (sic) calves and vealers at … he was kicked on the right knee by a vealer.[14]
[14] T documents, 2018/4320 at T12/25
In his witness statement dated 8 July 2019, the applicant described the further accident on 12 February 1981 as follows:
Early one morning while working .. on 12 February 1981 I was inspecting the calves at the abattoir. I was kicked in the right knee by a calf. I do not recall having any time off for that injury. I was still having the pain and discomfort around my right knee at that time.[15]
[15]Applicant’s statement dated 8 July 2019 at [12]
Whilst there were initial indications of recovery, the applicant’s right knee continued to cause him pain notwithstanding medical intervention. This led Dr Castagna to refer the applicant to another orthopaedic surgeon, Dr Ashwell, for review. I did not have the letter of referral, but it was likely sent in late 1985 or early 1986.
In a report dated 31 January 1986, Dr Ashwell wrote to Dr Castagna about his examination of the applicant’s right knee. Dr Ashwell relevantly wrote:
[Following the injury], his discomfort gradually increased in frequency and severity and in 1980 he underwent arthrogram of his knee which was apparently normal. He is now moderately disabled with pain occurring anteriorly in his knee constantly and this is worse with walking up steps, kneeling or walking uphill more than 50 yards. He also complained that his knee was stiffening and occasional swelling of his knee with activity. There has not been any locking or giving way. He takes Voltaren and digesic tablets for the pain ..
On examination of his right knee there is no evidence of wasting of the quadriceps .. and there is no evidence of effusion. He has tenderness on the under surface of the patella and over the fatpad. .. He had full range of knee movement with minimal discomfort. .. There was no evidence of a meniscal lesion.
He has anterior knee pain in his right knee which is most likely due to retropatella chondritis as a result of the injury in May 1979. I have suggested that he undergo an EUA and arthroscopy and patella shave to try and ease his discomfort and I will organise this in the near future (emphasis added).[16]
[16] T documents, 2018/4320 at T23/36
On 11 February 1986, Dr Ashwell performed an arthroscopy on the applicant’s right knee (the first arthroscopy). In his report dated 11 February 1986, Dr Ashwell wrote:
I performed an EUA and arthroscopy on this man’s right knee today. He had an area of degenerative cartilage on the medial facet of the patella which I trimmed and drilled. The purpose of this is to allow a new growth of fibrocartilage. The remainder of his knee joint was essentially normal (emphasis added).[17]
[17] T documents, 2018/4320 at T24/38
On 7 January 1988, Dr Ashwell again saw the applicant in response to the applicant experiencing right shoulder/neck pain and ongoing discomfort in his right knee. As I understood it, this occurred on referral from Dr Castagna. In his report to Dr Castagna, Dr Ashwell wrote about the applicant’s shoulder and neck and the treatment provided, but there is no mention of anything seen or done or recommended in relation to the applicant’s right knee. The only comment about the right knee was as follows:
His right knee discomfort is still troubling him intermittently but he can cope provided he stays off hard surfaces.[18]
[18] T documents, 2018/4320 at T29/45
On 3 March 1988, Dr Ashwell again saw the applicant. Dr Ashwell reported that since the last review the applicant “has been in hospital with a bleeding peptic ulcer.” Dr Ashwell reported on improvement of the applicant’s right shoulder discomfort. The only comment about the applicant’s right knee was as follows:
His left wrist has also been sore recently and his knees have been aching.[19]
[19] T documents, 2018/4320 at T30/46
Dr Ashwell recommended physiotherapy in relation to the applicant’s shoulder, but made no mention of anything seen or done or recommended in relation to the applicant’s right knee.
The applicant submitted I should find the peptic ulcer was caused (at least in part) “due to the strong analgesics [the applicant] was taking for his right knee injury.”[20] I make no such finding. The only mention of medication of any kind in Dr Ashwell’s report is the applicant treating himself with Voltaren tablets, as I understood it to help with his back pain, five weeks prior to onset of the ulcer.
[20] Applicants written submissions dated 26 November 2021 at [9]
That said, I accept the applicant was taking analgesics to assist with the discomfort to his right knee but there is no evidence connecting the analgesics with the ulcer.
In a report to the respondent dated 31 October 1989, Dr Castagna “certified” that the applicant was still affected as a result of the injury on 1 May 1979. Dr Castagna wrote:
Mr Simeoni sustained an injury causing swelling, bruising and concussion of his right knee, which resulted in Retro-patella Chondritis.
It has been necessary for Mr Simeoni to take strong analgesia to relieve his pain and this has been the principle form of treatment over the last three years.
Mr Simeoni was seen on the 25.07.89 after a particularly severe flare up of his knee condition. This was not preceded by any trauma therefore there has been no aggravation of the original injury.
At this time he was prescribed further analgesia and treatment with non-steroidal anti-inflammatory agents such as Voltaren along with heat and rest for the joint.
There has been marginal relief since this treatment, but no real improvement of his condition.[21]
[21] T documents, 2018/4320 at T34/50
On 18 January 1990, Dr Ashwell again reviewed the applicant’s right knee. In his report of that date, Dr Ashwell wrote:
This man returned today for review of his right knee. He is still having discomfort at the front of his knee and particularly if he sits in the one position or gets up from the crouching position. He always has a dull ache in his knee and on examination he had tenderness around the patello-femoral joint with no muscle wasting and full movement. He has recurrence of his right anterior knee pain due to chondromalacia patellae and I have recommended and (sic) EUA and arthroscopy and lateral release (emphasis added).[22]
[22] T documents, 2018/4320 at T35/51
On 30 March 1990, Dr Ashwell performed a second arthroscopy on the applicant’s right knee (the second arthroscopy). In his report of that date, Dr Ashwell wrote:
I performed and (sic) EUA and arthroscopy on this man’s right knee today with chondrectomy of the under surface of the patella, a lateral release and division of a synovial suprapatella plica. He had partial almost complete chondral damage on the lateral facet of the patella which required trimming. There was no exposed bone. There was a synovial suprapatella plica extending half way across the knee joint which I divided. A lateral release was performed with drain inserted for 4 hours. There was a small frayed area on the inner edge of the posterior horn medial meniscus which I trimmed.[23]
[23] T documents, 2018/4320 at T36/52
The applicant gave evidence, which I accept, about the ongoing problems with his right knee between May and June 1990:
By late May 1990 I had only been back at work for a few days and I was already finding it difficult to cope. My right knee symptoms were persisting, and the swelling was re-occurring when I was standing for prolonged periods whilst at work. I noticed that my knee right (sic) was not as stable after the surgery. The stability of the knee was an ongoing problem post this surgery.
Dr Ashwell around the end of May 1990 recommended that I undergo physio and that I take a month off work (emphasis added).[24]
[24] Applicant’s statement dated 8 July 2019 at [20] – [22]
The applicant’s evidence is consistent with a report dated 24 May 1990 from Dr Ashwell to Dr Castagna in which Dr Ashwell states:
This man’s right knee symptoms are persisting with a limp and swelling with prolonged standing at the end of the day’s work. He has only been back at work 3 days and already found difficulty coping.
On examination there was no effusion but he had slight loss of full nerve. I have referred him back for physiotherapy and advised him to take at least a month off work.[25]
[25] T documents, 2018/4320 at T37/53
On 21 June 1990, Dr Ashwell again saw the applicant regarding his right knee. In his report to Dr Castagna of that date, Dr Ashwell reported the applicant was still experiencing discomfort in his knee although “discomfort has been improved with patella taping”. Dr Ashwell recommended ongoing physiotherapy and opined the applicant could return to light duties in about 2 weeks’ time at about 3 hours a day for a further 4 weeks.[26]
[26] T documents, 2018/4320 at T39/55
On 5 August 1991, Dr Prochazka, a senior medical officer with the applicant’s employer, wrote a report regarding the applicant’s fitness for duty. Regarding his right knee, Dr Prochazka wrote:
In 1979 injured by a runaway steer on the slaughter floor. He was concussed, bruised and right knee was injured. The knee ached and became stiff (no locking or giving way).
CLINICAL FINDINGS
Clinically some loss of muscle definition in the right knee with 1-2 cm loss of circumference. There is full range of movement, no effusion (today), knee is stable.
Mr Simeoni cannot run, he has difficulties walking up steps or inclines or standing on cold concrete floors for lengthy periods of time.
He is fit to continue at present with his duties. He has symptoms with most activities but copes. He cannot be expected to continue doing his current duties should his condition deteriorate. I cannot forecast with confidence that he will be fit for more than 6 months. He will eventually need to be re-trained into a largely sedentary occupation. I doubt that surgical intervention will alter his work capacity, as far as meat inspection duties are concerned (emphasis added)[27]
[27] T documents, 2018/4320 at T49/69
On 27 March 1992, the applicant accepted a voluntary redundancy and left his employment with the Commonwealth.[28]
[28] T documents, 2018/4320 at T51/71 and T125/273; Applicant’s statement dated 8 July 2019 at [27]
The applicant gave evidence that he accepted the voluntary redundancy, “due to the issues with my right knee and the view of the doctor that I would not be able to manage full-time duties long-term”.[29]
[29] Applicant’s statement dated 8 July 2019 at [27]
The applicant gave evidence, which I accept, that after leaving his employment with the Commonwealth, he attempted to manage his farm but was “unable to be very hands-on and most of the heavy work or physical work was contracted out to other people.” The applicant stated his capacity “to do any meaningful work was restricted heavily due to my knee injury” and that he was “not able to make a personal income in comparison to my income as a full-time meat inspector.”[30]
[30] Applicant’s statement dated 8 July 2019 at [28]
The applicant gave evidence, which I accept, that in 2002 he returned to work as a meat inspector on a relieving contract basis but found that if he did more than one or two days in a row “it significantly aggravated the pain and discomfort and swelling in my knee”. The applicant stated he worked for a few hours, 3 or 4 days a week if work was available, and did this work until 2011.[31]
[31] Applicant’s statement dated 8 July 2019 at [30]
On 20 September 2005, at the request of his new general practitioner, Dr Currie, the applicant underwent an x-ray of his right knee. The report of that date from the radiologist, Dr Dyer, to Dr Currie following his examination of the x-ray states:
There is mild osteoarthritis of the right knee joint, especially involving the medial tibiofemoral compartment.[32]
[32] Respondent's tender bundle, R4 at 83
As best I can ascertain, this is the earliest record of osteoarthritis in the applicant’s right knee.
In November 2005, at the request of his new general practitioner, Dr Currie, the applicant saw Dr Pearce, another orthopaedic surgeon, in relation to the ongoing concerns with his right knee.
By letter dated 14 November 2005, Dr Pearce wrote to the applicant’s general practitioner, Dr Bird,[33] regarding his examination that day of the applicant’s right knee and left foot. Regarding the right knee, Dr Pearce wrote:
He has recently had a lot of medial sided knee pain and tenderness. There is no specific injury but he has had problems in the past. He is a very active farm worker. Clinically he shows some evidence suggestive of a medial meniscal tear. I think it is only reasonable, given his level of symptoms, to offer to perform an arthroscopy (emphasis added).[34]
[33] The evidence is unclear as to why Pierce wrote to Dr Bird, rather than Dr Currie, but I attach no significance to this as understand Dr Bird and Dr Currie were in the same practice evidenced by their common address
[34]Respondent's tender bundle, R4 at 13
I was not taken to any medical record, but accept the applicant’s evidence that on 29 November 2005, Dr Pearce performed an arthroscopy on the applicant’s right knee (the third arthroscopy).[35]
[35]Applicant’s statement dated 8 July 2019 at [33]
By letter dated 12 December 2005, Dr Pearce wrote to Dr Bird regarding the outcome of the third arthroscopy. He wrote:
This pleasant fellow underwent a knee arthroscopy recently. We noted a fair degree of degenerative changes, particularly of his medial femoral condyle. There was also a degenerative tear of his medial meniscus. These areas were debrided.
John’s knee is likely to cause further problems in the future. He has osteoarthritis particularly affecting the medial compartment. It is possible that he would benefit from a unicompartmental knee replacement in the future to keep him mobile (emphasis added).[36]
[36]Respondent's tender bundle, R4 at 14
In February 2006, the applicant claimed compensation for the cost of the third arthroscopy. This led to the respondent arranging for Dr Bhattacharyya, another orthopaedic surgeon, to examine the applicant’s right knee. The applicant attended an appointment with Dr Bhattacharyya on 23 March 2006. Dr Bhattacharyya wrote a report dated 27 March 2006, which relevantly states her findings on examination:
On examination of the right knee there were scars of arthroscopic surgery which were well healed. There was moderate effusion present in the right knee. There was tenderness present over the medial joint line. There was no localised tenderness under the patella on examination today. There was no collateral or cruciate ligament laxity.
The patient brought only one x-ray dated 6.3.06. X-ray of the right knee showed mild degenerative osteoarthritis indicated by mild to moderate medial compartment joint space narrowing and small marginal osteophytes (emphasis added).[37]
[37] T documents, 2018/4320 at T53/80
On 18 September 2006, Dr Ashwell provided a medico-legal report of that date in support of the applicant’s third claim for compensation, this time for degenerative tear right medial meniscus discussed below. In his report, Dr Ashwell summarised the medical history following the injury on 1 May 1979. He referred to the third arthroscopy conducted by Dr Pearce and stated he understands “the procedure was a partial medial meniscectomy and chondrectomy”.[38]
[38] T documents, 2018/4320 at T58/102
In his report, Dr Ashwell stated the applicant’s “present complaints” as follows:
He has constant pain on the medial aspect and the back of his right knee. He has intermittent swelling particularly with prolonged standing. He has difficulty walking and standing on hard surfaces, going up and down stairs or hills. He can spend about one hour on his feet before he requires to stop and rest. He can walk one block. He has difficulty getting out of a chair and also has increased discomfort first thing in the morning.[39]
[39] T documents, 2018/4320 at T58/103
Dr Ashwell provided a summary of investigations and tests, the accuracy of which I accept:
06/03/06 report of x-ray of his right knee showed mild osteoarthritis with mild to moderate narrowing of the medial compartment and small osteophytes. There were no signs of a fracture or loose body.[40]
[40] T documents, 2018/4320 at T58/104
Dr Ashwell concluded with his opinion:
He has suffered an injury to his right knee at work on 01/05/79 and has gradually developed increasing signs and symptoms of osteoarthritis in his right knee with a subsequent degenerative medial meniscus tear.
His injury is consistent with the history as stated and his employment is a substantial contributing factor.[41]
[41] T documents, 2018/4320 at T58/104
Dr Ashwell added his opinion that in the future the applicant would most likely require a knee replacement.
The applicant gave evidence, which I accept, that in early February 2010 he was carrying a side of pork towards a table in his shed. Whilst doing so, he felt his right knee give way which caused his left knee to twist. He experienced pain and discomfort on the inner side of his left knee.[42] The applicant said he underwent x-rays on his left and right knee, following which he saw Dr Pearce.[43]
[42] Applicant’s statement dated 8 July 2019 at [38]
[43] Applicant’s statement dated 8 July 2019 at [39]
By letter dated 24 March 2010, Dr Pearce provided Dr Currie with a report concerning his examination of the applicant’s left knee. Dr Pearce stated the left knee is “exquisitely tender on the medial side of the knee” but “appears stable”. He added that the x-ray “doesn’t show a lot of changes”, but commented that the applicant “seems to have damaged his medial meniscus … I think we’re going to need to do an arthroscopy.”[44]
[44]Respondent's tender bundle, R4 at 16
In his witness statement dated 8 July 2019, the applicant stated that in August 2010 he was riding his quad bike when it slipped into a rut. He stated “I stuck my right leg out to stop the quad bike from rolling on its side and I fell off the bike scraping my calf against a tree or dried mud. The quad bike continued to move further down the paddock until it stopped about 10 metres from me.”[45] The applicant stated -
I do not recall whether it was a week or a longer period from the quadbike incident and my attendance with my GP on 23 August 2010. I attended my GP to discuss my right knee which was swollen and hurting. I recall mentioning to my GP at some time earlier I had bruised my right calf in the bike incident and that my calf felt woody, and I believe that my right knee and calf were conflated into the same incident as being exacerbated by this quadbike accident. .. I do not recall there being an aggravation in my right knee arising from the quadbike incident.
I have seen the notes of my GP dated 23 August 2010, 16 September 2010, 10 November 2010, 18 November 2010, 1 December 2010 and 10 January 2010 (sic). I disagree with his references to me hurting my right knee in the quadbike incident.
My solicitors have shown me the reporting letters and clinical notes of Dr Pearce for 2010. I have seen the entry on 10 November 2010 and disagree that I aggravated my right knee in a quadbike accident. I have also seen the reporting letter of the same date and disagree that I jarred my knee in the incident at home (quadbike incident).[46]
[45]Applicant’s statement dated 8 July 2019 at [42]
[46]Applicant’s statement dated 8 July 2019 at [43] – [45]
In his supplementary statement dated 11 November 2019, the applicant said that on 10 November 2019 he was shown a patient questionnaire dated 8 May 2010, prepared for the purpose of an arthroscopy conducted by Dr Pearce on his left knee on 8 May 2010.[47] The applicant said the questionnaire “assisted my memory” and that the quadbike accident happened around Easter Monday, 5 April 2010, not August 2010.[48]
[47] Applicant's supplementary statement dated 11 November 2019 at [4] and [9]
[48] Applicant’s supplementary statement dated 11 November 2019 at [6]
The applicant referred to a comment in the patient questionnaire that states “Patient had a quad bike accident 5 weeks ago, patient still has swelling to (R) knee and no feeling in right (R) knee”.[49] The applicant said he would have told the nurse about “the scratch” to my calf sustained in the quadbike accident and that the difficulties in his right knee feeling swollen and numb “was the norm for my right knee and has been for years”.[50]
[49] Applicant’s supplementary statement dated 11 November 2019, Annexure "A"
[50]Applicant’s supplementary statement dated 11 November 2019 at [6]
In support of his position that no injury or aggravation of an injury of consequence occurred from the quadbike accident on 5 April 2010, the applicant relied on his timesheets that record him coming to work the next day, 6 April 2010, at 7am to perform his duties as a meat inspector.[51]
[51] The timesheets were admitted by the AAT over objection and, per above, form part of the evidence before me
The applicant’s position was that he had only one accident, on Easter Monday, 5 April 2010, and that he has “only ever had one in my whole life.”[52]
[52] Transcript of proceedings, 21 July 2021 at page 56, lines 18-22
The respondent submitted there was a second accident in August 2010, with reference to the medical notes of Dr Pearce and Dr Currie.
In a letter dated 10 November 2010 to Dr Currie, Dr Pearce wrote “Recently he has jarred the knee on a quad bike and now he has a lot more pain and swelling. The x-rays confirmed pre-existing changes of the medial compartment.”[53]
[53] T documents, 2018/4320 at T64/119
In a letter dated 10 November 2010 to the respondent, Dr Pearce stated the applicant “jarred the knee further with an incident at home. However, this incident has aggravated a pre-existing problem.”[54]
[54] T documents, 2018/4320 at T62/117
Dr Currie’s handwritten note to “Comcare” states the applicant “was seen on 23.8.2010 after rolling his quad bike on his farm”.[55] In his consultation notes dated 23 August 2010, Dr Currie states “rolled quad bike last week on his farm”, “limping but mobile”.[56] Both notes refer to the applicant suffering bruising and swelling to his right knee. The consultation notes records that on 23 August 2010, an X-ray was taken of the applicant’s “right knee” and an ultrasound was conducted on the applicant’s “right lower leg and knee”.
[55] T documents, 2018/4320 at T63/118
[56]Respondent's tender bundle, R4 at page 72
A handwritten letter of referral from Dr Currie to M Hayward, a physiotherapist, dated 16 September 2010 states “John rolled his quad bike a few weeks ago aggravating an old right knee injury”.[57]
[57]Respondent's tender bundle, R4 at page 81
A handwritten letter of referral from Dr Currie to Dr Pearce dated 3 November 2010 commences by stating “Thanks for seeing John who rolled his quad bike a few weeks ago.”[58]
[58]Respondent's tender bundle, R4 at page 80
Dr Currie’s contemporaneous medical notes are consistent with the applicant’s evidence in his statement dated 8 July 2019 where he states he fell off his quad bike “sometime in mid-August 2010” and that he cannot now recall “whether it was a week or a longer period from the quad bike incident and my attendance with my GP on 23 August 2010.”[59]
[59] Applicant's statement dated 8 July 2019 at [42] – [43]
Per the applicant’s supplementary statement dated 11 November 2019, it was not until 10 November 2019 when shown the patient questionnaire that the applicant revised his evidence to state the accident occurred on 5 April 2010.
I reviewed Dr Currie’s notes from April 2010. There is no mention of the applicant seeing Dr Currie at all in April or in May 2010. The first mention of a quadbike accident is the entry made on 23 August 2010
Having regard to all the contemporaneous evidence, I am satisfied the applicant had two quad bike accidents: one approximately five weeks prior to 8 May 2010 and another a week or so prior to 23 August 2010. Notwithstanding the applicant’s evidence, the clear and repeated notes from Dr Currie in August, September and November 2010 can only be explained by the applicant having a quad bike accident approximately a week prior to 23 August 2010.
That said, I do not imply anything untoward about the applicant. I accept him as an honest witness, but mistaken on this point having regard to the extensive contemporaneous evidence.
Also, in my view, nothing turns on either of the quadbike accidents.
Regarding the accident in April 2010, there is no medical record of any injury suffered. The only record of an injury is the note made of his answers in the patient questionnaire on 8 May 2010 and his answers do not attribute the swelling or lack of feeling in his knee with to the accident. It is also clear the applicant had been struggling with swelling and discomfort in his right knee for years. Also, assuming the accident happened on 5 April 2010, the timesheets for 6 April 2010 suggest the accident was without material consequence.
Referring to the second accident in August 2010, I am satisfied the applicant jarred his right knee when he “stuck [his] right leg out to stop the quad bike from rolling on its side” which led to bruising, swelling and aggravation of the pre-existing problem.
The more important question, for the reasons that follow, is whether the applicant likely suffered a tear to the posterior crucial ligament (PCL) his right knee when he fell off his quadbike, noting that a few months later an MRI scan conducted on 18 November 2010 revealed “a full thickness tear of the PCL in its mid-portion”.[60]
[60]T documents, 2018/4320 at T65/120
There is no direct evidence of a PCL tear occurring in the course of the quadbike accident, and so the question became whether that should be inferred from other evidence.
The applicant submitted such an inference would be contrary to the evidence, namely the evidence of Dr Pillemer, an orthopaedic surgeon, who opined that if the applicant suffered a full thickness tear of his PCL on 5 April 2010, he would not have been able to present to work at 7am the following day. The applicant relied also on the evidence of Dr Christian, an occupational physician, who acknowledged that if the applicant was back at work the day after the quad bike accident “you wouldn’t be expecting any significant injury to the knee.” This evidence is of no value regarding the accident in August 2010.
The respondent submitted the inference should be drawn with reliance on the contemporaneous medical notes.
After considering the whole of the evidence, I think it possible but highly unlikely the applicant tore his PCL in a quadbike accident on 5 April 2010. Such an injury is inconsistent with the absence of any record of the applicant visiting his GP in April or May 2010. It is also inconsistent with him going to work the following morning.
After considering the whole of the evidence, I think it possible the applicant tore his PCL in a quadbike accident in August 2010, but I am not satisfied it is likely.
According to the records, Dr Currie examined the applicant’s right knee on 23 August 2010 and found bruising and swelling. There is no suggestion of a PCL tear, much less a PCL tear that had been recently suffered. There is no suggestion of the applicant reporting symptoms that Dr Currie might have thought were indicators of a PCL tear. On examination, if the applicant had torn his PCL a week or so earlier, it is more likely Dr Currie would have noted it rather than missed it.
According to the records, Dr Pearce, as an orthopaedic surgeon examined the applicant’s knee on 10 November 2010 on referral consequent on the quadbike accident. He found the applicant had “aggravated a pre-existing problem” and “now he has a lot more pain and swelling”. He recommended a magnetic resonance imaging (MRI) scan “to assess the status of the knee at this stage”.[61]
[61] T documents, 2018/4320 at T64/119
On 18 November 2010, the applicant underwent an MRI scan on his right knee. The report dated 19 November 2010 relevantly states:
The complex degenerative tear of the medial meniscus with horizontal, vertical and oblique undersurface components. .. There may also be a near full thickness radial component affecting the posterior horn close to the junction with the posterior root. The lateral meniscus is intact and unremarkable.
The ACL is intact and unremarkable. The MCL is a little thickened and bowed medially due to medial meniscus body extrusion but is generally of normal signal, no definite tear seen. The LCL is of slightly increased signal, suggesting an old low-grade partial thickness tear (strain). There is a full thickness tear of the PCL in its mid-portion.
Cartilage within the medial compartment is completely denuded with underlying marrow oedema, in keeping with severe diffuse chondrosis. (emphasis added)[62]
[62]T documents, 2018/4320 at T 65/120
On 1 December 2010, Dr Pearce wrote to the respondent in relation to the MRI scan. He relevantly stated:
The MRI confirms further damage to the medial meniscus as well as an old posterior cruciate ligament injury, which I think relates to his original work injury. He also has degenerative changes in the medial compartment. He has ongoing discomfort in this knee and at this stage requires a further arthroscopy to see if we can settle it down (sic) the knee (emphasis added).[63]
[63] T documents, 2018/4320 at T 67/123
Dr Pearce wrote a similar letter of the same date to Dr Currie.[64]
[64] T documents, 2018/4320 at T 68/124
On or about 23 February 2011, Dr Pearce performed another arthroscopy on the applicant’s right knee (the fourth arthroscopy) which “confirmed degenerative changes throughout the knee joint worse in the medial compartment.”[65]
[65] T documents, 2018/4320 at T 71/127
On 6 October 2011, Dr Harrison, another orthopaedic surgeon, saw the applicant at the request of the applicant’s solicitor for the purpose of preparing a medico-legal report. Dr Harrison saw the applicant approximately 11 months after the PCL tear was noted on the MRI scan and 12 months prior to a total knee replacement. He wrote a medico-report dated 6 October 2011[66] which I have read.
[66] T documents, 2018/4320 at T76/132
Referring to the second arthroscopy conducted on 30 May 1990 by Dr Ashwell, Dr Harrison stated that Dr Ashwell -
trimmed the inner edge of the posterior horn of his medial meniscus “which was frayed” not apparently realising that he had a posterior cruciate ligament unstable knee.[67]
[67] T documents, 2018/4320 at T76/132 at 133
Dr Harrison stated that on his examination of the applicant’s right leg -
he has a posterior sag that is confirmed as due to disruption of the posterior cruciate ligament on that side which presumably occurred in the original accident when he was trampled on by the steer.[68]
[68] T documents, 2018/4320 at T76/132 at 136
Dr Harrison provided his opinion as follows:
As a sequel to a frank and significant accident on 1 May 1979 at work when he was trampled by a steer, Mr Simeoni sustained a moderate head injury and a significant injury to the right knee at which time it is most likely that he ruptured the posterior cruciate ligament that has left him vulnerable to increasing patterns of patello-femoral discomfort since then. Notwithstanding sequential arthroscopies (where the operating surgeons initially did not appear to be aware of a posterior cruciate ligament deficiency in well-meaning attempts at lateral capsular release to alter patello-femoral pressure through that knee, he has gone on to experience increasing pain, diminished capacity to stand, walk, move quickly, squat, kneel, travel up and down steps ..
The [1 May 1979] accident and not subsequent consequences of time and the nature of conditions of his work and well-meaning efforts at treatment, is the accident where posterior cruciate ligament disruption occurred that along with other attritional changes, the underlying cause of progressive incapacity he has had in relationship to diminished knee function on that side and a trend to increased symptoms will continue, in my opinion. (sic) (emphasis included).[69]
[69] T documents, 2018/4320 at T76/132 at 136 - 137
Regrettably, Dr Harrison died prior to the hearing of this matter.
On 27 November 2012, Dr Pearce performed a total replacement of the applicant’s right knee. A note from the hospital physiotherapist states the operation occurred “as the end stage management of severe degenerative changes in John’s knee.”[70]
[70] T documents, 2018/4320 at T82/147
On 25 October 2016, the applicant underwent a total replacement of his left knee.
Legal background
By application dated 21 August 1979, the applicant claimed compensation for the injury suffered on 1 May 1979. He described his injury as “injury to head nose and right knee”.[71]
[71] T documents, 2018/4320 at T6/17
In response to the question “how did injury occur”, the applicant wrote:
While on inspection duty on the slaughter floor I was knocked down by a steer which had escaped from the stunning area.[72]
[72] T documents, 2018/4320 at T6/17
On 27 August 1997, evidenced by an information sheet of that date, the Commonwealth accepted liability for “concussion and bruising to right knee”[73] (the compensable condition) and paid the applicant compensation under the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) as then in force.[74]
[73] T documents, 2018/4320 at T7/20
[74] T documents, 2018/4320 at T7/20
In the information sheet, there is the following entry written by a compensation clerk:
5. Nature of Injury:
(i) Doctor’s Diagnosis – Concussion & bruising to right knee
(ii) Claimant’s statement - concussion bruising to (r) knee + nose
APPROVAL RECOMMENDED: Yes[75]
[75] T documents, 2018/4320 at T7/20
On 1 December 1988, the 1971 Act was repealed and the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) commenced.
On or about 28 August 1990, the applicant made a second claim for compensation, this time for permanent injury to his right knee.[76]
[76] T documents, 2018/4320 at T43/59
In response to the application, by letter dated 27 March 1991, the respondent advised the applicant that if the permanent impairment to his right knee occurred before 1 December 1988 compensation for permanent impairment under sections 24 or 25 of the SRC Act was not payable and “an assessment under section 39 of the [1971 Act] should be made.” The respondent added:
Under the 1971 Act persons were entitled to a lump-sum if they were not or likely to become totally incapacitated and if the condition was permanent and static.
Please find enclosed a Schedule of Questions to ascertain the percentage loss for completion by your specialist.[77]
[77] T documents, 2018/4320 at T46/63
On 2 May 1991, Dr Ashwell answered the questions in the schedule. He stated the injury was “permanent”; the percentage permanent loss of efficient use of the right leg in and for the purposes of his employment as a meat inspector was 25%; and the condition became “permanent and static” prior to 13 June 1987.[78]
[78] T documents, 2018/4320 at T47/65
With reliance on Dr Ashwell’s answers, on 30 July 1991 the respondent determined compensation was payable to the applicant under s 39 of the 1971 Act and that the degree of loss was 25%. It assessed compensation payable at $9,616.87 which it paid the applicant.[79]
[79] T documents, 2018/4320 at T48/67
In February 2006, the applicant lodged a “Gap in Treatment” form for the purpose of seeking compensation for the cost of the third arthroscopy. Dr Currie noted the degenerative tear to the medial meniscus found by Dr Pearce when conducting the arthroscopy.[80] The applicant’s claim led to the respondent seeking a report from Dr Bhattacharyya,[81] who provided her report dated 27 March 2006 noted above.
[80] T documents, 2018/4320 at T51/71
[81] T documents, 2018/4320 at T52/73
On 28 July 2006, the applicant lodged a third claim for compensation, this time for permanent impairment of his right knee under ss 24 and 27 of the SRC Act for a claimed “degenerative tear right medial meniscus”.[82]
[82] T documents, 2018/4320 at T56/97
By letter dated 17 August 2006, the respondent informed the applicant that he was not eligible for compensation at this time because the impairment to his knee had not changed “qualitatively and quantitatively”.[83] As best I can ascertain, that claim was not pursued.
[83] T documents, 2018/4320 at T57/99
On 28 May 2014, the applicant lodged a fourth claim for compensation dated 19 March 2014, again for permanent impairment to his right knee.[84] This claim post-dated the applicant’s total right knee replacement. This led to the respondent requesting the applicant to attend an examination by Dr Burke, a consultant occupational physician, to help assess the degree of permanent impairment. Dr Burke provided a report dated 29 October 2014 in which he wrote:
Mr Simeoni suffers from a right total knee replacement for degenerative disease of the right knee. The original inciting injury was an injury to his right knee on 01 May 1979.
Prognosis for his current condition is reasonable. He has had a total knee placement. This has been reasonably successful and it is unlikely there will be a significant improvement for the duration beyond its current state.
His original condition has been superseded by a total knee replacement subsequent to the original condition, which was bruising to the right knee.
In my opinion, his employment continues to contribute to his condition. The current symptoms and disability in his right knee are a direct result of the incident which occurred on 01 May 1979.[85]
[84] T documents, 2018/4320 at T96/168
[85] T documents, 2018/4320 at T102/200-201
By letter dated 16 December 2014, the respondent informed the applicant it accepted his claim for permanent impairment, notwithstanding its earlier acceptance on 30 July 1991 of the applicant’s claimed permanent impairment under s 39 of the 1971 Act, because it was satisfied the applicant had suffered an increase in the level of permanent impairment of 10% or greater.[86] The impairment being 10% or greater overcame the preclusion under s 25(4) of the SRC Act from paying further amounts of compensation for permanent impairment unless the increase in the degree of impairment is “10% or more”.
[86] T documents, 2018/4320 at T105/209
Acceptance of the claim led to an assessment of a 26% permanent impairment, a payment of $36,394.50 under s 24 of the SRC Act for permanent impairment and $19,908.78 under s 27 of the SRC Act for non-economic loss suffered as a result of the permanent impairment.[87]
[87] T documents, 2018/4320 at T105/215
By letter dated 25 May 2017 from his solicitor, the applicant made a fifth claim for compensation, this time for “time off work and lost earnings” from 1992 arising out of the injury to his right knee sustained on 1 May 1979.[88] In effect, the applicant was seeking reinstatement of his incapacity payments from 27 March 1992 when he ceased his employment with the Commonwealth (the incapacity claim).
[88] T documents, 2018/4320 at T109/219
In the same letter, the applicant’s solicitor foreshadowed a claim for compensation arising from an injury to the applicant’s left knee in 2009 or 2010 which, he said, led to the total left knee replacement on 25 October 2016. The applicant’s solicitor contended the injury to the applicant’s left knee resulted from him favouring his right leg due to his right knee injury and his awkward gait caused by that injury.
In relation to the fifth claim for compensation, the respondent sought medical evidence to substantiate that the applicant’s incapacity arose from the accident on 1 May 1979. The respondent noted it had paid incapacity payments for many periods between 26 July 1989 and 29 August 1990; that the applicant had engaged in paid employment from 1992; and that the applicant had suffered further injuries to his right knee and ankle (for example an accident on his quad bike whilst working on his farm) subsequent to leaving his employment with the Commonwealth in 1992.
The applicant contended all the evidence the respondent needed was already on the respondent’s file evidenced by the respondent paying for multiple surgical procedures on the applicant’s right knee and compensating him for a 26% permanent impairment in respect of his right knee consequent on the total knee replacement.
To help it assess the applicant’s claim for incapacity payments, the respondent requested the applicant to attend appointments with Dr Christian, an occupational physician, and Dr Bookless, an orthopaedic surgeon. The applicant attended those appointments and the doctors provided reports which I deal with below.
By letter dated 22 May 2018, the respondent informed the applicant that the reports from Dr Christian and Dr Bookless (as previously provided to the applicant) “suggest you do not presently suffer from the effects of your compensable condition” and that compensation for medical expenses under s 16 of the SRC Act and incapacity under s 19 of the SRC Act may not be payable. The respondent invited the applicant to provide any further medical evidence to support his claims by 5 June 2018.
By letter in reply dated 7 June 2018, the applicant’s solicitor again relied on the respondent’s payment for multiple surgical procedures and its acceptance on 16 December 2014 of a 26% permanent impairment. The solicitor contended there “can be little doubt” the applicant is not fit for work and described the further opinions obtained by the respondent that any work-related contribution to the injuries ceased within a few months of the original incident as “simply fanciful”.[89] [90]
[89] T documents, 2018/4320 at T129/279
[90] The opinion that the injury ceased within a few months of the incident was expressed by Dr Bookless only. Dr Christian considered the knee pain arising from the 1 May 1979 injury continued for many years but had “settled” by 2005 or 2006
On 19 June 2018, the respondent made two determinations in response to the applicant’s claims for compensation.
In the first, the respondent determined it had no present liability for incapacity payments under s 19 of the SRC Act from 27 March 1992 (being the date the applicant ceased his employment by the Commonwealth) with reliance on Dr Bookless’ report (primary determination No 1).
In the second, the respondent determined it had no present liability for medical expenses under s 16 of the SRC Act or incapacity payments under s 19 of the SRC Act from 19 June 2018 (being the date of the determination) with reliance on the reports of Dr Christian and Dr Bookless (primary determination No 2).
By letter dated 7 July 2018, the applicant applied for reconsideration of primary determination No 1.[91] The applicant stated he would write separately regarding primary determination No 2, but (as best I can ascertain) I do not have a copy of that application. That said, the applicant’s covering email dated 7 July 2018[92] indicates an application for reconsideration of primary determination No 2 was sent at the same time. This seemed to be accepted by the parties and I proceeded on that basis.
[91] T documents, 2018/4320 at T133/286
[92] T documents, 2018/4320 at T132/285
By letter dated 27 July 2018, the respondent affirmed both determinations (the reviewable decisions).[93]
[93] T documents, 2018/4320 at T137/291
By single application dated 31 July 2018,[94] the applicant applied to the AAT for review of both reviewable decisions.
[94] T documents, 2018/4320 at T1/1
For administrative reasons, as I understand it, the reviewable decision in respect of the first determination became the subject of proceeding 2018/4320.
The reviewable decision in respect of the second determination became the subject of proceeding 2018/4525.
On 18 June 2020, the applicant’s solicitor filed a document headed “statement of claim” in proceedings 2018/4320 and 2018/4525 but, in the document, recast the applicant’s case.
In the document, the applicant claimed for ‘right knee osteoarthritis’ as a new injury. He pleaded that prior to 13 April 2007 the applicant developed osteoarthritis in his right knee which was caused by the injury sustained in the accident on 1 May 1979. The applicant claimed the right knee osteoarthritis is an ‘ailment’ as defined in s 4 of the SRC Act; a ‘disease’ as defined in s 5B of the SRC Act because it was contributed to, to a significant degree, by his employment by the Commonwealth; and therefore a compensable injury as defined in s 5A(1)(a) of the SRC Act.
The applicant pleaded in the alternative, as an injury, that the applicant’s body “underwent sudden physiological change” when his right knee was “removed” on 27 November 2012. This, the applicant pleaded, constituted a physical injury suffered as a result of medical treatment of an injury pursuant to s 4(3) of the SRC Act. On this basis, the applicant pleaded compensation was payable in respect of the total knee replacement. As best I can ascertain, this claimed injury was not pursued. Whilst the respondent paid for the surgery as a cost arising from the compensable condition, it was difficult to see how an elected and successful total knee replacement can itself be characterised as a new injury.
Regarding the osteoarthritis, the applicant pleaded that he continues to require treatment as a result of his right knee osteoarthritis and therefore continues to incur treatment expenses for which he should be reimbursed by way of compensation under s 16 of the SRC Act.
The applicant pleaded that he was partially incapacitated for work from 27 March 1992 (when he left his employment with the Commonwealth) to 27 November 2012 (when his right knee was replaced) as a result of his right knee osteoarthritis and totally incapacitated for work from 27 November 2012 as a result of his right knee osteoarthritis and/or total knee replacement for which he should be paid incapacity benefits under s 19 of the SRC Act.
The respondent filed a ‘defence’ in which it pleaded the matters claimed were outside the AAT’s jurisdiction because initial liability for the claims had not been the subject of an initial determination. The respondent also pleaded that the claim for incapacity “is prevented” by s 46(5) of the 1971 Act.
The respondent treated the statement of claim as an initiating claim for compensation for right knee osteoarthritis.
By letter dated 24 September 2020, the respondent informed the applicant that it was not satisfied there was a causal relationship between the claimed right knee osteoarthritis and the compensable condition, namely “concussion and bruising to right knee” suffered on 1 May 1979. The respondent relied on the reports from Dr Christian and Dr Bookless dated 10 April 2018 and 30 April 2018, respectively, for why the osteoarthritis of the applicant’s right knee was age-related and degenerative. The respondent also stated it was not satisfied the replacement of the right knee constituted a new injury[95] (the 2020 primary determination).
[95] T documents, 2020/6754 at T12/51
On 24 September 2020, applicant applied for reconsideration of the 2020 primary determination, contending without any particularisation that the respondent had “failed to consider all the medical evidence on the file.”[96]
[96] T documents, 2020/6754 at T13/53
By letter dated 30 October 2020, the respondent affirmed its determination made on 24 September 2020. In its reasons, the respondent accepted the applicant suffered from right knee osteoarthritis, consistent with all medical opinion, but was not satisfied it was significantly contributed to by the injury suffered on 1 May 1979. The respondent maintained that the osteoarthritis arose from underlying degeneration as part of a natural age-related process or change (the 2020 reviewable decision).[97]
[97] T documents, 2020/6754 at T1.1/6
By application dated 30 October 2020, the applicant applied to the AAT for review of the 2020 reviewable decision. That application became the subject of proceeding 2020/6754.
On 5 March 2021, the applicant filed an amended statement of claim in which he noted the 2020 primary determination given on 24 September 2020, the request for reconsideration and the 2020 reviewable decision given on 30 October 2020 but did not change the substance of the claim.
On 1 April 2021, the respondent filed an ‘amended defence’, the details of which I address below in my summary of the respondent’s submissions in the 2020 proceeding.
PROCEEDINGS 2018/4320 AND 4525
Given the way these proceedings were litigated, it is preferable first to note the respondent’s submissions.
The respondent’s submissions
In response to the claim for medical expenses under s 16 of the SRC Act, the respondent noted that all claims made for expenses incurred prior to 19 June 2018 have been paid. It submitted no subsequent claim for reimbursement for medical expenses has been lodged with the respondent. The respondent submitted that where a decision has not been made to reject a claim for reimbursement of medical expenses, the Tribunal has no power to review such a claim because it has not been the subject of a decision and/or a reconsideration decision with the consequence that there is no reviewable decision for the Tribunal to review.[98]
[98]Respondent's submissions on jurisdiction dated 6 March 2020 at [1.3]
The respondent also submitted that any medical expenses incurred subsequent to 19 June 2018 are not payable because they could not be “in respect of the cost of medical treatment obtained in relation to the injury”, being the injury sustained on 1 May 1979. The respondent relied on the medical expert evidence to the effect that the applicant’s injury suffered on 1 May 1979 had resolved within a few months according to Dr Bookless, or “settled” by 2005-2006 according to Dr Christian.
Accordingly, the respondent submitted any subsequently incurred medical costs were not “in relation to” the injury.
In response to the claim for incapacity for work from 27 March 1992, the respondent submitted that by reason of the applicant receiving a lump sum payment for permanent impairment on 30 July 1991 pursuant to (it was said) s 39 of the 1971 Act, he was not entitled thereafter to receive payments for incapacity irrespective of whether payments would otherwise be payable under s 19 of the SRC Act.
Leaving aside medical incompetence, it is inherently unlikely that Dr Ashwell (twice) and Dr Pearce conducted arthroscopies on the applicant’s right knee in response to the applicant’s ongoing complaints of knee discomfort and yet, on each occasion, did not conduct what seems to be a simple and obvious test to verify whether the ligaments were intact or, alternatively, conducted the test and missed a PCL tear.
I then had the evidence of Dr Pillemer as to how the presence of a PCL tear can be otherwise tested. He referred to the “draw test”, also noted by Dr Harrison, where the patient flexes their knee and hip. Dr Pillemer said:
If you’ve got a posterior cruciate ligament [injury], the tibia falls back on the femur, that direction. And it’s a very specific finding. It is very clear. ..
If [the injury is] obvious, it takes you three seconds. If it’s not obvious, you may spend 10 to 15 seconds being - to confirm it in your own mind. .. But it’s a very straightforward diagnosis.[162]
[162] Transcript of proceedings 22 July 2021 at page 84, lines 16 - 33
Dr Pillemer acknowledged that in 1980 Dr White examined the applicant’s knee and reported “all his ligaments appeared to be intact”, which is inconsistent with a PCL tear, but took issue with Dr White’s use of the term “appeared”. Dr Pillemer stated -
Now, you can’t make a statement like that without qualifying it. Your ligaments are either intact or they’re not intact. If you’re going to say appear to be intact, you’ve got to say, “there was a little bit of laxity but I wasn’t sure, or I didn’t compare to the other side”. But that’s not a statement that you make about ligaments in the knee. They’re either intact or they are not intact. The knee is either stable or it’s not stable. .. So I would say all his ligaments appeared to be intact means either he’s not sure or he didn’t spend a lot of time looking at it, or he didn’t compare it to the opposite side. But it’s not a statement that I would rely on.[163]
[163] Transcript of proceedings 22 July 2021 at page 82, lines 20 - 29
With respect, I do not interpret the word “appeared” in that way. In my view, the word “appeared” is a reference to what Dr White found on examination with, perhaps, an inference that he was not stating, categorically, that the ligaments were intact: it is what he found. If the draw test is as simple and as clear as Dr Pillemer states, it is inherently unlikely that Dr White, as an orthopaedic surgeon investigating pain and discomfort in the applicant’s right knee, would report the PCL appeared intact when it was not.
I then had the evidence of Dr Prochazka in 1991 who noted with reference to the accident in 1979 “the knee ached and became stiff (no locking or giving way)”, which appears to be a reference to Dr Ashwell’s report dated 31 January 1986, and then made his own clinical findings including “knee is stable”.
I then had Dr Bhattacharya’s report on her examination of the applicant’s right knee on 23 March 2006 and that “on examination of the right knee … there was no collateral or cruciate ligament laxity.” Dr Pillemer stated he had not previously seen Dr Bhattacharya’s report and acknowledged her report of her examination was “inconsistent”[164] with his opinion that the PCL tear occurred on 1 May 1979, but contended PCL laxity can be tested and missed “very commonly” and “quite easily”.[165] Dr Pillemer contended that just because no cruciate ligament laxity was found does not mean there was not a torn PCL at the time.[166]
[164] Transcript of proceedings 22 July 2021 at page 87, lines 13-16
[165] Transcript of proceedings 22 July 2021 at page 87, lines 25-26
[166] Transcript of proceedings 22 July 2021 at page 87, lines 27- 30
True, the absence of cruciate ligament laxity on examination does not mean, categorically, there was not a PCL tear, but in my view it is a very strong indicator that there was no such tear. In my view, in the absence of anything to the contrary, it is likely that Dr White’s, Dr Prochazka’s and Dr Bhattacharya’s examinations of the applicant’s right knee were properly conducted and no PCL tear was found because there was no tear to find.
The applicant relied also on the report of Dr Pearce dated 1 December 2010 in which he states that the MRI scan confirms “further damage to the medial meniscus as well as an old posterior cruciate ligament injury, which I think relates to his original work injury.” There were many difficulties with this evidence, hence the little weight that could be given to it.
The report from the radiologist does not state the PCL tear was “old”. The basis for why Dr Pearce described it as “old” is unknown. Arguably, he was intending to distinguish it from a new or fresh PCL tear but I do not think any further inference could be drawn. In particular, whether he intended to convey the tear was a few months old, a few years old or longer or whether the time when the tear occurred cannot be ascertained is all unknown. Nothing is stated as to why Dr Pearce thought the “further damage” shown on the scan relates to his original work injury. It is unclear whether Dr Pearce was attributing some or all of the further damage, and in particular the PCL tear, to the original work injury. Dr Pearce did not give evidence in these proceedings.
Seemingly in an effort to obtain evidence that the PCL tear likely occurred when the applicant was knocked over and trampled by the steer, the medical experts were asked to comment on the prospect of a PCL tear depending on whether the applicant felt this way of that or the knee was positioned this way or that when he was trampled, but this was of no real value because of the absence of evidence about precisely what happened in the accident.
I return to the ‘real question’: can I be reasonably satisfied on the whole of the evidence that the PCL tear likely occurred when the applicant was struck down by the steer on 1 May 1979?
The period between when the applicant was struck down by the steer and when the PCL tear was found spans 31 years. Throughout that time, the applicant led an active life much of it working on his farm where any number of reported and unreported slips, accidents and falls might have occurred some of which might have led to the PCL tear. He might, or might not, have suffered the PCL tear when he fell off his quadbike. I agree with Dr Bookless that it is impossible to determine when the PCL tear occurred.[167]
[167] Transcript of proceedings, 11 November 2021 at page 161, lines 33 – 36; Bookless report dated XXX at XX
In my view, it is not even possible to determine with any reasonable satisfaction that the PCL tear happened as a consequence of an accident, fall or some kind of trauma. Degenerative osteoarthritis was noted in the applicant’s right knee in 2005. The PCL tear was not noted until 18 November 2010. This raised the prospect that the PCL tear was degenerative in the sense that it arose from the osteoarthritis.
Dr Bookless thought that was the most likely explanation. He and Dr Christian referred to the osteoarthritis in the applicant’s left knee that developed reasonably consistently to that in his right knee leading to knee replacements in both knees (2012 and 2016) to contend the osteoarthritis was degenerative and age-related and the PCL tear occurred as part of that condition.
Dr Pillemer disagreed. He opined –
a posterior cruciate ligament tear doesn’t occur purely from degeneration in isolation. I did say that if you’ve got advanced arthritis of the knee you can occasionally find tears of the chronic ligament and that’s felt to be part and parcel of the whole chronic condition.[168]
[168] Transcript of proceedings 22 July 2021 at page 92, lines 25-29
As to whether chronic arthritis can cause a degenerative PCL tear or a PCL tear can lead to chronic arthritis, Dr Pillemer described it as “a chicken and egg thing” in the sense that it’s “a mixture of the two actually”, but opined in this case the PCL tear “made the arthritis come on earlier than would otherwise have been the case”.[169]
[169] Transcript of proceedings 22 July 2021 at page 93, lines 17 - 22
As for why in this case the PCL tear came first and led to the arthritis, the value of Dr Pillemer’s opinion collapsed when he acknowledged he was “basing it entirely on Dr Harrison’s report”.[170]
[170] Transcript of proceedings 22 July 2021 at page 93, line 29
Having regard to the whole of the evidence the important aspects of which I have set out above, I am not satisfied the PCL tear occurred or likely occurred on 1 May 1979. In my view, on the evidence, it is highly unlikely that it did. When and how it did occur is not a finding I could make or needed to make.
Consequentially, subsequent questions about contribution and degree of contribution of the PCL tear to the applicant’s osteoarthritis do not arise.
Where I am not satisfied of a causal link between the applicant’s osteoarthritis and his employment by the Commonwealth, the decision under review will be affirmed.
I certify that the preceding 275 paragraphs are a true copy of the reasons for the decision herein of Senior Member McCarthy
………………..….[SGD]……………………………..
Tribunal Officer
Date of hearing: | 5 November 2024 |
| Counsel for the Applicant: Solicitors for the Applicant: | J Mrsic Grieve Watson Kelly Lawyers |
| Counsel for the Respondent: Solicitors for the Respondent: | S Wright Australian Government Solicitor |
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