Stephen Keys and Comcare
[2013] AATA 782
[2013] AATA 782
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4742
Re
Stephen Keys
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 5 November 2013 Place Canberra The decision under review is affirmed.
.........................[sgd]...............................................
Mr S. Webb, Member
WORKER’S COMPENSATION – knee injury claim – alleged sprain and aggravation of osteoarthritis - former employee undertaking a rehabilitation program – functional capacity assessment relating to prospective employment for the purpose of the rehabilitation program – knee pain – unreliable evidence – not established that left knee symptoms commenced or increased in compensable circumstances – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss. 36, 37
Australian Security Investments Commission v Hellicar [2012] HCA 17
Jones v Dunkel (1959) 101 CLR 298
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58
REASONS FOR DECISION
Mr S. Webb, Member
5 November 2013
Stephen Keys was injured in his employment with the ACT Government. He undertook a rehabilitation program designed to assist him into suitable employment. In this context, he lodged a claim for compensation in respect of a left knee injury, said to have occurred while undertaking a functional capacity assessment relating to potential employment as a security guard. Comcare decided to reject the claim. This decision was affirmed on reconsideration. Mr Keys applied for review.
The issue for determination is whether Mr Keys suffered a left knee injury in the circumstances he alleges on 2 February 2012, either in the form of a physical injury arising in the course of or arising out of his employment, or in the form of a disease, being an ailment, or the aggravation of an ailment, to which his employment contributed to a significant degree.
At the hearing, I was informed that Comcare did not press any issue of notice, pursuant to s 53 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), and no issue was taken in respect to the Tribunal’s jurisdiction in respect of alleged aggravation of left knee osteoarthritis. I am satisfied that these concessions are correctly made. Furthermore, it was correctly accepted that Mr Keys is an ‘employee’ for the purposes of the Act. It is not necessary to go any further with these issues.
Even though Mr Keys’ claim turns on the sharp point of what occurred on 2 February 2012, he contests much of the factual history. While it is not necessary to comprehensively resolve such disputation in order to determine the application, it may assist understanding to set out the factual background.
Factual background
Mr Keys was employed as a Disability Services Officer by the ACT Department of Disability, Housing and Community Services. On 17 July 2008, he sustained an injury and was incapacitated for work. He successfully claimed compensation. That notwithstanding, his employment was terminated on 22 April 2009.
On 21 December 2010, Mr Keys’ former employer issued a determination under s 36 of the Act, referring him to CRS Australia for assessment of his “capability to undertake a rehabilitation program”, specifically “To assist Mr Keys to identify and apply for suitable jobs”[1].
[1] Exhibit 4, Attachment A.
On 19 January 2011, Mr Keys was referred to Sara Churches, a rehabilitation consultant, for a vocational assessment. The assessment was conducted on 3 February 2011 and a report was produced[2]. The report canvasses several vocational options, including that of Security Officer. It appears that the employment requirements of a Security Officer include being “physically fit (may be required to pass a medical examination)”, passing a National Police Check, and obtaining a security licence. Mr Keys disputes that employment as a Security Officer is suitable employment for him, but this is not presently determinative.
[2] Ibid, Attachment B.
On 10 May 2011, Mr Keys met with Rachel Graf, an employment services consultant at CRS Australia, and his prospective employment options were discussed.
On 8 August 2011, Mr Keys and Ms Churches attended a medical review with Dr Jamiel, Mr Keys’ treating general practitioner. The doctor cleared Mr Keys to undertake security training[3].
[3] Exhibit 5, Attachments C and P, page 57.
It appears that Keys successfully completed a Certificate II course in Security Operations on 19 August 2011. Subsequently, even though there is some disputation on this point, it appears that Mr Graf sent a number of emails to prospective employers, including to Michael Sliwka of the Sydney Night Patrol & Inquiry Company Pty Ltd (SNP Security)[4]. Mr Keys set out his understanding of oral communications with Ms Graf in an email on 26 September 2011 – he understood that Ms Graf had arranged an interview for him with Mr Sliwka on 23 September 2011, in respect of a prospective graduated return to work. Ms Graf did not correct or contradict the contents of this email in her subsequent reply.
[4] Exhibit 5, Attachment D.
On 23 September 2011, Mr Keys attended the premises of SNP Security at the appointed time, but no interview took place. Instead, Mr Sliwka informed him that he should complete an application form. On 26 September 2011, Ms Graf confirmed that this was correct and she informed Mr Keys that “This form needs to be completed and returned to SNP Security for processing which takes approximately 2 weeks”[5]. Mr Keys’ evidence is that he collected an application form from SNP Security, but he also completed an on-line application for two advertised positions.
[5] Ibid, Attachment D.4, page 25.
On or about 27 September 2011, Mr Keys commenced volunteer work with the Salvation Army, working five hours per day, two days per week.
On 29 September 2011, Ms Graf remarked “… that you have applied for these positions independent of your, and our, contact with [Mr Sliwka]”.[6] That notwithstanding, having heard Ms Graf’s evidence, I am satisfied that Mr Keys’ application to SNP Security was made in the context of the employment services Ms Graf provided – it was she who arranged the ‘interview’ with Mr Sliwka and negotiated the prospect of SNP Security employing Mr Keys on a graduated return to work as an “accommodation”[7] to Mr Keys, and it was she who confirmed that he should send the completed application form to SNP Security for processing. By his own account, that is what Mr Keys did, albeit in response to two publicly advertised positions.
[6] Ibid, Attachment D.2 page 23.
[7] This descriptor appears in an email drafted by Ms Churches and sent by Ms Graf to Mr Keys on 29 September 2011 – Exhibit 7 and Exhibit 5, Attachment D.2, pages 23-24.
It is curious, therefore, and not adequately explained, why, on 1 December 2011, Priscilla Palombi of SNP Security informed Ms Graf and Les Gehrig, an employment services consultant who had been directed to have no further involvement in Mr Keys’ rehabilitation[8], that no application had then been received from Mr Keys[9]. On Ms Graf’s evidence, Mr Gehrig had special knowledge and expertise in respect of rehabilitation involving security work, and he was the usual contact for SNP Security and other security firms. Ms Palombi and Mr Gehrig were not called to give evidence.
[8] Exhibit 9.
[9] Exhibits 8 and 11.
On 8 November 2011 Ms Churches and Kylie Johnson, Mr Keys’ rehabilitation case manager, signed a rehabilitation plan determination under s 37(1) of the Act in reference to a Return to Work Plan that appears to have commenced on 26 October 2011[10]. The Return to Work Plan contains the following notation –
“The following recommendations regarding rehabilitation/work restrictions are also relevant: “Mr Keys is able to undergo a return to work program… The work restrictions can be that Mr Keys not work in the same department and to be assisted with being provided with alternate [sic] employment” (Dr Zsadany’s report 10 October 2008)”
[10] Exhibit 4, Attachment C.
The goals of the Plan are –
“Mr Keys to be provided with every assistance to enable him to find alternative employment. This will include vocational retraining, a graduated return to work and Mr Keys’ participation in suitable work placements.
…
Through rehabilitation services and assistance, Mr Keys to return to suitable alternative employment, equivalent to pre-injury hours.”
The responsibilities of the rehabilitation provider under the Plan include –
“Action Outcomes expected
Job seeking with Employment Services Consult ant Attainment of employment
…
Provider travel Attend medical review…
…
Training for Security and Security Licence Attainment of qualifications for
job seeking”
Curiously, the Plan sets out detailed actions and expected outcomes with a Target Start Date of 1 June 2011 and a Target End Date of 31 January 2012. Why an earlier start date appears has not been explained. Nonetheless, this part of the Plan requires Mr Keys to do a number of things, including –
“When suitable work has been sought, to attend medical review with the Rehabilitation Consultant to confirm suitability to commence employment. Confirmation of suitability to commence work, and negotiation of work conditions (ie. GRTW hours etc)”
On 1 December 2011, Mr Keys and his legal representative, Judith Keys, met with Ms Churches and Ms Graf. It was arranged that Mr Keys would contact Ms Palombi at SNP Security.
On 9 December 2011, Mr Keys met with Ms Graf and, briefly, with Ms Churches who recorded the following note –
“…
- ESC [Ms Graf] discussed obtaining police check…
- Stephen gave feedback regarding interview with Priscilla at SNP – they have work at the airport. He filled out paperwork and SNP will get back to him.
Plan of Action
Next week apply for to [sic] recruitment agencies, follow up with SNP and MSS and work out action plan.
…”[11]
[11] Exhibit 5, Attachment H.
On 20 December 2011, Ms Churches sent Mr Keys an amended Return to Work Plan, extending the Plan to 29 February 2012 and covering the “Extra cost required for Police check to gain employment in security work”[12].
[12] Ibid, Attachment K, page 40.
On 13 January 2012, Ms Graf sent an email to Ms Palombi at SNP Security asking about “the possibility of doing a work trial for Stephen Keys? Stephen has an appointment on 25th January for security work at the airport”[13]. Similar emails were sent to other security firms[14]. On 17 January 2012, Ruchika Garg of SNP Security sent Mr Keys an email confirming the interview and attaching an application form for him to complete[15]. The application form sets out the following information in respect of the recruitment process –
“As part of our Recruitment process, you may be required to attend a Pre-Employment Functional Assessment with our company’s medical provider. You are free to withdraw your application for employment now, should you not wish to consent to this process.”[16]
[13] Ibid, Attachment I, page 34.
[14] Exhibit 4, Attachments G, H and I.
[15] Exhibit 4, Attachments K and L.
[16] Exhibit 4, Attachment L, page 45.
On 20 January 2012, Ms Graf communicated with Caroline Rumble of ActewAGL regarding a possible work trial for Mr Keys[17].
[17] Exhibit 5, Attachment L, page 43.
It appears that an SNP Security Pre-Employment Functional Assessment (the Functional Assessment) was scheduled to take place on 23 January 2012, but Mr Keys asked for it to be moved. This was done and he undertook the Functional Assessment on 2 February 2012. The Functional Assessment was conducted by Hannah Bingham-Wallis, an occupational therapist employed by Konekt Australia Pty Ltd. Ms Bingham-Wallis’ report is in Exhibit 1.
What took place during the Functional Assessment is controversial. Mr Keys set out his account of what occurred in paragraphs 8 and 9 of his Witness Statement in Exhibit 4, and in paragraph 10 of a further statement in Exhibit 5.
On 10 February 2012, Ms Graf sent the following email to Ms Churches –
Could you please contact Stephen to organise a suitable time in order to see the doctor with him.
After Stephen’s appointment with Konnect [sic] he feels that he has injured his knee and would like to see the GP to determine injury and see if Security is suitable employment.”[18]
[18]Exhibit 4, Attachment M, page 53.
On the same day, Mr Keys was informed that SNP would not be continuing with his application for employment[19].
[19] Ibid, Attachment N.
On 19 February 2012, Mr Keys attended Dr Jamiel, but the Doctor’s clinical notes do not refer to any complaint of left knee symptoms. Mr Keys told me that he wanted to raise the issue in the context of the rehabilitation program, with Ms Churches in attendance, as he was concerned whether security employment was suitable for him.
On 20 February 2012, Mr Keys and Ms Churches attended an appointment with Dr Jamiel, who noted –
“…
Work Trial with ACTEW
Had injury with Security training (test with Konect [sic]) Injured L knee, kept doing the volunteered work. Better now
Happy to go for trial
…”[20]
Mr Keys says he was concerned about his knee in the context of volunteer work he was undertaking with the Salvation Army and a proposed work trial with ActewAGL, and Dr Jamiel agreed that he could wear a knee brace for this purpose. It is notable that Dr Jamiel did not record any clinical findings in respect of Mr Keys’ left knee and he did not note the presence of an effusion or other pathology.
[20] Exhibit 5, Attachment P, page 54.
On 15 March 2012, Dr Jamiel noted “L knee pain better”, “usuing [sic] knee splint” and “to continue on the same plan”. It is notable that Dr Jamiel’s subsequent clinical notes do not record any complaint of left knee symptoms until 3 May 2012 – “L knee pain work related - referral to KNee Surgeon”[21].
[21] Ibid, page 53.
On 7 May 2012, Mr Keys signed a compensation claim form in respect of a left knee injury said to have occurred on 2 February 2012 in the form of “pain in left knee – diagnosis not yet available – referred to specialist on 15-5-12”, with first medical treatment being obtained from Dr Jamiel on 19 February 2012[22]. It is quite clear, however, that even if Mr Keys complained of left knee symptoms on 19 February 2012, and that is not made out, Dr Jamiel did not prove medical treatment for such a complaint on that day.
[22] T5 folio 7.
On 15 May 2012, Mr Keys was examined by Dr Hocking, an orthopaedic surgeon. Dr Hocking reported that –
“Stephen had a moderate sized knee effusion and he had pain over the medial joint line. There were palpable osteophytes on the medial side.
I have arrange [sic] for Stephen to have a new set of xrays taken today which show medial compartment and patella femoral compartment osteoarthritis.
It would seem that Stephen has medial compartment osteoarthritis on the background of a previous meniscectomy in 1987. Stephen reports that his knee was functioning well up until his most recent test and he claims that the test that he was required to do for his work preparation was responsible for the change in symptoms that he is having in his knee. The natural history of an open medial meniscectomy would be eventual medial compartment osteoarthritis which is what we are seeing now.”[23]
On this evidence, it appears that Mr Keys may have developed a left knee effusion after he consulted Dr Jamiel on 19 and 20 February 2012, and 15 March 2012, when no such effusion was noted. This could not be tested, however, as Dr Jamiel and Dr Hocking were not called to give evidence.
[23] T8 folios 20-21.
On 19 June 2012, in response to a number of questions posed by Comcare, Dr Jamiel reported that –
“1- 3/5/2012 , Stephen Injured his Left Knee during a Security Work Assessment (fitness Test). Climbing onto an office step repeatedly over a 4 minutes period, developed Left Knee Pain.
…
3- Referred to Knee Surgeon Dr Richard Hocking.
4- Left Knee Sprain (no evidence of Ligament Tear or any other pathology).
5- History of L knee Operation (Left Medial Menisectomy). The condition possible aggravation of the pre-existing condition.
…
7- Assessment fitness test as a contributing factor and his previous L knee surgery and injury in 1987 with wear and tear factor.”[24]
As can be seen, Dr Jamiel reported no left knee pathology, indicating that he did not observe a left knee effusion when Mr Keys complained of left knee pain.
[24] T11 folio 26.
On 6 July 2012, Mr Keys consulted Dr Hocking, who reported to Dr Jamiel that –
Stephen feels that his pain is not improving with medications and he would like to be considered for a total knee replacement. We have had a discussion about the operation today and the risks and benefits and Stephen is requesting that we try to arrange this for him.
On 9 July 2012, Dr Hocking wrote to Comcare and said –
Mr Stephen KEYS was under workers compensation at the time of having a fitness for work assessment when he experienced an exacerbation of his left knee pain. Stephen’s left knee pain has been unremitting and is now non responsive to medications. Stephen has a background of arthritis in the knee which he feels has been exacerbated by the work fitness test. He is at the point now where he feels he needs to go ahead with a total knee replacement and I am writing to request approval for this.
On this evidence, it appears that Mr Keys’ left knee was symptomatic before he undertook the Functional Assessment on 2 February 2012. Mr Keys hotly contests this, but under cross-examination he conceded that he may have experienced joint instability in his left knee previously.
On 20 August 2012, Comcare decided to reject Mr Keys’ claim for compensation in respect of an alleged injury to his left knee[25].
[25] T19.
On 14 September 2012, Mr Keys was assessed by Dr Le Leu, a consultant occupational physician[26]. Dr Le Leu reported “osteoarthritis and ligament damage to the left knee”[27] and that “He [Mr Keys] says he was so desperate to get back to work he did not say he had injured his left knee. He believes he injured his left knee again as a result because he had to do 20 squats and 20 lunges as part of picking things up from the floor”[28]. On this evidence, it appears that Mr Keys completed 20 squats and 20 lunges during the Functional Assessment. This is consistent with the Functional Assessment report, but Mr Keys told me that he did not do the squats and lunges as his left knee was sore.
[26] Exhibit 4.
[27] Exhibit 4, page 8.
[28] Ibid, page 3.
Following a request by Mr Keys for reconsideration of Comcare’s determination, a reviewable decision was issued on 4 October 2012, affirming the determination.
On 22 October 2012, Mr Keys applied for review.
On 1 February 2013, Mr Keys was assessed by Dr Cairns, a consultant orthopaedic surgeon[29], who reported –
“Mr Keys advised that on 02 February 2012, while participating in a fitness assessment and undertaking an aerobic step test, stepping up and down from an approximate 35cm step at a pace determined by a metronome, after one minute he experienced the onset of significant pain over the anteromedial and central aspects of his left knee, with a feeling of “tightness” posteriorly, which forced him to desist after one minute. He was unable to complete the following tasks, and proceeded home limping on his painful left knee which he treated by rest.[30]
…
The underlying, pre-existing condition [tricompartmental osteoarthritis] was historically symptomatically provoked by the exercise activity undertaken on 02 February 2012.
…
Mr Keys’ current condition is the emergence of symptoms derived from symptomatic provocation of the pre-existing condition allegedly provoked during the fitness activity on 02 February 2012.”[31]
On this evidence, it appears that Mr Keys attempted but did not complete tasks, such as squats and lunges, during the Functional Assessment. Mr Keys gave oral evidence confirming this, but he also gave evidence that he could not undertake these tasks at all.
[29] Exhibit 3.
[30] Ibid, page 2.
[31] Ibid, page 6.
Consideration
Mr Keys says that there are two avenues to consider. Firstly, the sudden onset of pain in his left knee on 2 February 2012 during the Functional Assessment resulted from a strain, or from some other physical phenomena in the structures and tissues of his left knee, occasioned by the stepping activity. Mr Keys maintains that, as the activity was part of his rehabilitation program, the physical injury arose out of or in the course of his previous employment.
Secondly, Mr Keys says that previously asymptomatic arthritis in his left knee, being an ailment consequent to a meniscectomy in 1987, was rendered symptomatic by the repetitive stepping activity. This rendering, so the argument goes, equates to a significant contribution by his previous employment, albeit in the context of a rehabilitation program, such that the aggravated ailment is brought within the meaning of ‘disease’ under s 5B of the Act, constituting an ‘injury’ for which compensation is payable.
Mr Keys provided voluminous material and submissions in support of these contentions. Much was said about the credit or reliability of witnesses and alleged inconsistency on Comcare’s part, as well as about inferences that should or should not be drawn, weight that should be given or not given, and the balance of persuasion.
I have carefully considered each of these matters and, on the evidence before me, I am satisfied that Mr Keys’ claim is not made out. That is so even though I am reasonably satisfied that the Functional Assessment was part of the rehabilitation program determined by Ms Churches and Ms Johnson on 8 November 2011, and that it was, therefore, within the protection of Mr Keys’ employment for the purposes of the Act. The Functional Assessment was antecedent to a proposed return to work plan negotiated or facilitated by Ms Graf with SNP Security, although this was ultimately not successful or carried through.
At the heart of the claim is Mr Keys’ assertion that he experienced left knee symptoms on 2 February 2012 while undertaking activities in the course of the Functional Assessment. There is no directly contemporaneous evidence to support his assertion. The only document describing what occurred during the Functional Assessment does not support Mr Keys’ assertion that he sustained an injury. On this point, his evidence stands alone, even though he reported the alleged injury to Ms Graf on 10 February 2012 and to Dr Jamiel on 19 or 20 February 2012. The evidence of Dr Hocking, Dr Cairns, Dr Le Leu and Dr Jamiel proceeds on the basis that Mr Keys’ account of sustaining an injury, involving the onset of left knee symptoms during the Functional Assessment, is true.
I am satisfied that Mr Keys’ account of what occurred during the Functional Assessment on 2 February 2012 is not reliable and, on the balance of probabilities, it cannot be accepted as proved.
The most contemporaneous evidence is the Functional Assessment report prepared by Ms Bingham-Wallis on 2 February 2012. This stands contrary to Mr Keys’ assertion of a left knee injury in several important ways.
Firstly, it contains no suggestion that Mr Keys experienced any difficulty whatsoever with his left knee when undertaking any activities during the functional assessment on that day, rather Ms Bingham-Wallis reported that –
“-Candidate restricted to no strenuous cardiovascular activity/lifting due to heart rate exceeding max heart rate.
- Benefit from improving cardiovascular fitness + strength.
- Cont BP monitoring with GP.”[32]
[32] Exhibit 1, page 16.
Secondly, Ms Bingham-Wallis recorded that Mr Keys undertook 10 repetitions of “Squatting”, 3 repetitions of “Bilateral lift – Floor to waist” involving a 20 kilogram weight, and 10 repetitions of “Repetitive lunging”. Mr Keys maintains that he was unable to undertake any of these activities as his left knee was too painful. If Mr Keys had, in fact, injured his left knee in the manner alleged, it is highly unlikely that he would be able to undertake 10 squats or repetitive lunges. No cogent or logical explanation has been raised as to why Ms Bingham-Wallis would record these activities if Mr Keys did not undertake them, as he alleges.
Thirdly, Ms Bingham-Wallis recorded Mr Keys’ heart rate in respect of each activity – squatting: “HR 139”; floor to waist lift: “HR 136”; and repetitive lunging: “HR 137” [33]. She also noted “Candidate able to complete repetitions however exceeded his max HR + would be restricted”. On their face, these records appear to indicate that Mr Keys undertook the particular activities while Ms Bingham-Wallis monitored his heart rate. But Mr Keys denies undertaking the activities. No cogent explanation has been advanced as to how Ms Bingham-Wallis recorded different heart rates for each activity if Mr Keys did not undertake or complete them. The proposition that the increase in his heart rate is in some way attributable to spikes in the level of pain he was experiencing in his left knee may be a possibility. I cannot rule that out, but it is not supported by other evidence and there are serious doubts about the reliability of Mr Keys’ account.
[33] Exhibit 1, page 10.
The implication of Mr Keys’ evidence is that Ms Bingham-Wallis’ handwritten notes in the Functional Assessment report are wrong or false. Resolving the conflict between the contents of the report and Mr Keys’ version of what occurred is a matter for evaluative assessment, or weight, when finding the facts.
Inference
In Mr Keys’ submission, it is Comcare that is seeking to draw inferences from Ms Bingham-Wallis’ Functional Assessment report in order to meet his evidence. He says that Ms Bingham-Wallis might be expected to expose the true complexion of the facts, in respect of what took place during the Functional Assessment, if called. But Comcare failed to call her to give evidence.
For this reason, applying Australian Securities and Investments Commission v Hellicar[34] and Jones v Dunkel[35], Mr Keys urged me to draw an adverse inference, such that Ms Bingham-Wallis’ evidence would not assist Comcare’s case and little weight should be given to her notes and purported observations in the Functional Assessment report, as no adequate explanation has been given by Comcare for the failure to call her. Mr Keys argues that to do otherwise would be unfair, as Ms Bingham-Wallis’ controversial evidence has not been tested.
[34] [2012] HCA 17.
[35] (1959) 101 CLR 298, per Kitto J at 308.
I reject these submissions.
I accept that Comcare’s legal representatives made efforts, albeit somewhat late in the proceedings, to locate Ms Bingham-Wallis, in order to arrange for her to give evidence. Bradley Dean, a senior lawyer employed by the Australian Government Solicitor representing Comcare, gave oral evidence about the nature, extent and timing of these efforts. It is unfortunate that they were not commenced earlier in the proceedings and that they were not successful. In view of the evolving nature of the issues in dispute between the parties, and the manner in which each party developed its case prior to hearing, I am satisfied that an adequate explanation has been given as to why Ms Bingham-Wallis was not called by Comcare.
It appears that Mr Keys’ legal representative, Judith Keys, also made efforts to assist locating Ms Bingham-Wallis, but made no effort to contact or call her directly, indicating, belatedly, that she would be required for cross-examination. It is quite clear that her evidence, as the only witness to what occurred with Mr Keys during the Functional Assessment on 2 February 2012 and the author of notes in the Functional Assessment report that stand contrary to Mr Keys’ claim, would be of some significance. In the usual course, especially where a party is legally represented, one might expect Ms Bingham-Wallis to be required for cross-examination. But this requirement was not included in the Hearing Certificate filed by Mr Keys on 28 June 2013, although I understand that it was communicated to Comcare some time later.
Despite express opportunity, neither party applied for an adjournment of the hearing or for a delay in concluding the case for the purposes of calling Ms Bingham-Wallis. I have formed the opinion that it is not necessary to do so. As will appear, I am satisfied that the evidence Ms Bingham-Wallis might be expected to give, if called, is unlikely to advance the matter such that a different result would be obtained. Furthermore, even though Mr Keys raised a number of related matters in his evidence and in submissions[36], no cogent reason or persuasive submission has been advanced to fault or contra-indicate the reliability of the contents of her report.
[36] See Exhibit A5, page 14 at [10], for example.
As regards the drawing of an adverse inference, unlike ASIC v Hellicar and Jones v Dunkel, in this case there is direct contemporaneous evidence, albeit contested, from a qualified occupational therapist operating in a professional capacity who observed what occurred at the point of the alleged injury, and who set out notes of her observations in a report completed on the same day.
If either party requires an inference to be drawn from the Functional Assessment report, it is Mr Keys and not Comcare. It is Mr Keys’ claim that rises for determination. The report, as written, supports the proposition contended for by Comcare, that Mr Keys completed the Assessment, without injury, but was deemed to fail for reasons relating to his heart. Mr Keys urges me to accept his version of what took place during the Functional Assessment over what is recorded in the Functional Assessment report prepared by Ms Bingham-Wallis. This requires the drawing of an inference that Ms Bingham-Wallis did not accurately or truthfully record what occurred.
It is important to observe immediately that the present evidence does not establish or point to the likelihood that Ms Bingham-Wallis conspired with persons associated with Mr Keys’ former employer or with his rehabilitation in the production of her report, or that the report has been tampered with or altered by her, or by other persons, to defeat Mr Keys’ claim. Contentions of that nature were not seriously agitated or pressed, and to the extent that they were, I reject them.
The Functional Assessment report is clearly a key piece of evidence that was not brought into existence at Comcare’s instigation or at the request of Mr Keys’ former employer, or those involved in his rehabilitation. The contents of the report stand against Mr Keys’ version of events. If there was independent evidence contra-indicating the contents of Ms Bingham-Wallis’ observations in the Functional Assessment report, this would require careful consideration, increasing the desirability of calling her and strengthening Mr Keys’ arm in pressing for an adverse inference to be drawn. But no such evidence has been adverted to. The only contra-indication arises from Mr Keys’ accounts, albeit repeated or relied upon as true by medical practitioners or rehabilitation providers to whom he reported his alleged injury many days, weeks or months later.
The uncontroverted facts are that Ms Bingham-Wallis was employed or engaged by Konekt Australia Pty Ltd to conduct the Functional Assessment on 2 February 2012 (originally scheduled for 23 January 2012) for SNP Security. I am satisfied that she was not employed or engaged by Mr Keys’ former employer, or by CRS Australia, his rehabilitation provider. The Assessment was recorded on a Functional Assessment form and it proceeded with Mr Keys completing Section 1 of the form, setting out medical and other information, and Ms Bingham-Wallis completing Sections 2 to 7 of the form. Mr Keys and Ms Bingham-Wallis both signed the form on 2 February 2012. Mr Keys’ recollection of what occurred in respect of the Functional Assessment form and the manner in which Ms Bingham-Wallis made notes appears in his oral evidence and in documents he placed before the Tribunal, including Exhibits 4 and 5. It appears that Mr Keys did not make any contemporaneous record of the injury he now alleges – he did not report it or lodge an incident report or notify anybody involved with his rehabilitation until 10 February 2012, eight days later.
The present evidence does not establish that Ms Bingham-Wallis produced any further documents or reports, or that she had any further or subsequent involvement in Mr Keys’ Functional Assessment.
Conjecture about whether the evidence Ms Bingham-Wallis might give, if called, would contradict her written cotemporaneous notes, or that she might explain her notes in a manner that might lend support to Mr Keys’ version of events is not helpful. It is necessary to consider the evidence Ms Bingham-Wallis would be likely to give, if called, as opposed to evidence she might possibly have been in a position to give[37]. This assessment is to be made having regard to what the present evidence establishes she did in connection with the Functional Assessment and the report she prepared. There is no useful purpose in speculating about whether or not Ms Bingham-Wallis could shed further light on the circumstances of the Functional Assessment.
[37] ASIC v Hellicar at [160]
It appears to me that the evidence Ms Bingham-Wallis would be likely to give, if called, might be to the effect that either she recalls Mr Keys and what occurred during the Functional Assessment on 2 February 2012, and her recollection accords with what she recorded at the time, or, conversely, that she does not independently recall Mr Keys and what occurred during the Functional Assessment, whereupon she might be expected to refer to her contemporaneous notes, or a combination of both. To my mind, it is unlikely that Ms Bingham-Wallis would give evidence from her recollection in contradiction of what she recorded contemporaneously in her professional role as an occupational therapist conducting a functional assessment of a person in a prospective employment context.
Even though there are some unanswered questions about the circumstances in which “P” came to be changed to “F”, or vice versa, on page 10 of the Functional Assessment report, this does not disturb the cogency or reliability of the report as a whole. To my mind, it remains a powerful and compelling piece of contemporaneous evidence. On Mr Keys’ evidence, either he did not undertake squats and repetitive lunges after the stepping exercise that, he says, caused sudden strong pain in his left knee, or he commenced such exercises but did not complete these activities. Ms Bingham-Wallis’ notes on page 14 of the Functional Assessment report reveal that he undertook these activities, albeit with an elevated heart rate.
There would need to be some reliable foundation of evidence on which to draw an adverse inference discounting this evidence. The matters raised and the submissions pressed by Mr Keys do not meet this requirement.
As I have said, Mr Keys’ account of the circumstances in which the injury under claim is said to have occurred stands alone. Medical reports and other evidence that essentially rely upon his account add little, but serve to raise questions about the consistency and reliability of Mr Keys’ recollection of what occurred during the Functional Assessment – there is no directly contemporaneous record of Mr Keys recording what he says took place or raising the alleged injury at the time.
There is some power in the proposition advanced for Comcare that it is Mr Keys who relies on facts the true complexion of which one might expect Ms Bingham-Wallis to expose, such that, as he did not call her to give evidence, an adverse inference should be drawn – that her evidence would not support his account. But it is not necessary to do so as, without any adverse inference being drawn, Mr Keys’ case is not made out.
Evaluation of the evidence
There is a stark conflict between Mr Keys’ account of what occurred during the Functional Assessment on 2 February 2012 and the contemporaneous document produced and signed by Ms Bingham-Wallis on that day. An evidentiary conflict of this kind requires an evaluative assessment of the evidence of each witness, having regard to the balance of probabilities and the established contextual facts, and apportioning appropriate weight - the evidence of one may be accepted over the evidence of the other, which may be rejected or given little weight for want of credit.
I am reasonably satisfied that the present evidence does not establish, on the balance of probabilities, that Mr Keys experienced sudden onset left knee symptoms while undertaking repeated stepping exercises during the Functional Assessment, or that he experienced such symptoms at any time during the Assessment, while undertaking activities including squats and repetitive lunges.
Much was said during the hearing about inconsistencies in accounts Mr Keys provided to medical practitioners and others over time, and in his oral evidence, about his knee condition and the circumstances of his claimed injury. I do not intend to delve far into these, nor is it necessary to address related submissions in any detail. Mr Keys has given inconsistent accounts of what he alleges occurred during the Functional Assessment, and he has given inconsistent accounts of his history of left knee symptoms before and after that event. He has been extensively examined on these inconsistencies. Contrary to Mr Keys’ submission, this is not a matter of speculation.
In his claim, Mr Keys stated in respect of a witness to the Functional Assessment “witness unaware of my injury”[38], and in a Witness Statement on 18 January 2013 that “I did not say anything about my knee to the woman conducting the physical assessment”[39]. Under cross-examination Mr Keys gave contradictory explanations. First, he said that he stopped during the stepping exercise, grabbed his knee and indicated that he had injured his knee, but he did not say much because he was keen to get back to work. When pressed, he explained that he thought that he may have twisted his knee, it made a noise and he swore, but he “didn’t overplay the situation” and “didn’t mention it when doing the steps, but did later”. When further pressed, he explained that there was no noise, but his knee felt like it dislocated.
[38] T5 folio 10.
[39] See Exhibit A4, page 4 at [9], for example.
In a subsequent statement on 29 April 2013 he explained that, when asked to do squats and lunges, he told Ms Bingham-Wallis that he could not do them because his knee was sore – “when I injured my knee, I was in pain – I stopped the stepping exercises and grabbed my knee because of the pain… each time when I refused to do the exercise [squatting, bilateral lifts and repetitive lunging], I grimaced and said “My knee”, in explanation why I couldn’t do it”[40]. Under cross-examination he explained that he did try to do the subsequent exercises, but he was not able to complete any of them. Mr Keys’ explanation of the recorded increase in his heart rate on completion of activities he says he could not do, or could not complete, is that “it is highly likely that my heart rate spiked because of the injury to my knee and the associated pain”[41]. Under cross-examination he admitted that he could not explain the records of his elevated heart rate on completion of these activities.
[40] See Exhibit A5, page 14 at [10].
[41] Ibid.
The only person who witnessed these events, who could corroborate Mr Keys’ account, is Ms Bingham-Wallis. But her contemporaneous but untested evidence stands contrary to Mr Keys’ uncorroborated retrospective accounts.
I have reached the conclusion that Mr Keys’ evidence on these points is not reliable and the evidence of Ms Bingham-Wallis set out in the Functional Assessment report is to be preferred - insofar as Mr Keys’ account of what occurred during the Functional Assessment on 2 February 2012 departs from the contemporaneous records of Ms Bingham-Wallis, I do not accept it. In reaching that conclusion it is not necessary for me to make any findings about Mr Keys’ motivation. It may be true that he was receiving compensation payments at the time of the alleged injury, but it does not follow that he would obtain no further benefit if his claim for a left knee injury is accepted.
I am reasonably satisfied that Mr Keys undertook and completed each of the activities recorded by Ms Bingham-Wallis during the functional assessment, and that his heart rate was such that he failed the assessment. It is possible that he experienced symptoms in his left knee during the assessment, but this is not presently established on the balance of probabilities, and it is contra-indicated.
I am satisfied that Dr Jamiel, Dr Hocking, Dr Le Leu and Dr Cairns each formed opinion about the occurrence of an injury to Mr Keys’ left knee on 2 February 2012 on the basis that his account of what occurred during the Functional Assessment is true, relying on the existence of those alleged facts. But those alleged facts are not established by probative evidence.
For this reason, the value of the medical opinions each of these doctors formed on the basis that those alleged circumstances are true is reduced[42]. It follows that little weight can be given to the opinions of Dr Jamiel, Dr Hocking, Dr Le Leu and Dr Cairns about the causal relationship between activities Mr Keys undertook during the Functional Assessment and the onset or exacerbation of left knee symptoms in respect of a left knee sprain or the symptomatic provocation of osteoarthritis.
[42] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 per Mason A.C.J., Wilson, Brennan, Deane, Dawson JJ at [9].
Even if it is accepted that Mr Keys experienced symptoms in his left knee on 10 February 2012 when Ms Graf noted “… he feels that he has injured his knee and would like to see the GP to determine injury…”, or on 19 or 20 February 2012 when he says he informed Dr Jamiel of the alleged injury, the proximate cause of those symptoms is not presently clear and it is not presently established that they arose on 2 February 2012 during the Functional Assessment. Ms Graf did not record any details of the injury alleged by Mr Keys and there is only scant detail in the clinical notes and reports of Dr Jamiel.
I accept the evidence of Dr Cairns that a total meniscectomy, such as that undertaken on Mr Keys, is very likely to result in arthrosis and arthritis with the passage of time. And that very minor activity, such as turning over in bed or stepping off a curb, may render the arthritis symptomatic, triggering the sudden onset of pain that may be unrelenting and leading, ultimately, to a requirement for knee replacement surgery. That notwithstanding, on Dr Cairns’ evidence, the process or mechanism by which osteoarthrosis is rendered symptomatic is presently not known and the timing of the onset of symptomatic osteoarthritis following meniscectomy is uncertain – “It is just something that happens”.
I have no difficulty accepting that Mr Keys is on this trajectory and that he suffers from osteoarthritis in his left knee. I also accept that the activities he undertook during the Functional Assessment were capable of provoking symptoms in his left knee. Indeed, almost any activity may have been sufficient to provoke such symptoms. But that is not the test of causation that must be applied. For his claim to succeed, it must be established that he suffered a frank injury in the course of or arising out of his previous employment, or that the employment contributed to a significant degree to an ailment. Neither test is presently satisfied. It is not established that he sustained a frank injury or that he experienced the onset or aggravation of left knee symptoms on 2 February 2012. When his undoubted left knee arthritis was rendered symptomatic, and the contribution of his previous employment to that occurrence, is not presently established.
Conclusion and decision
It is not presently established, on the balance of probabilities, that Mr Keys sustained a frank injury to his left knee in the circumstances alleged, while undertaking the Functional Assessment on 2 February 2012. Nor is it presently established that his left knee arthritis was aggravated or rendered symptomatic at that time - I am not satisfied that the Functional Assessment activities Mr Keys undertook on 2 February 2012 contributed to a significant degree to the symptomatic onset or aggravation his left knee arthritis.
That being so, I am unable to find that Mr Keys suffered a frank physical injury or an injury in the form of a disease to his left knee in the circumstances under claim.
It follows that his claim is not made out and the decision under review must be affirmed.
It is not necessary to go further to address issues ventilated during the hearing under s 5A, 5B, 6 and 7 of the Act.
I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ........................[sgd]................................................
Associate
Dated 5 November 2013
Dates of hearing 11 and 12 September 2013 Date final submissions received 27 September 2013 Counsel for the Applicant Judith Keys Counsel for the Respondent Andrew Berger Advocate for the Respondent Bradley Dean Solicitors for the Respondent Australian Government Solicitor
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