Steven Cotic and Military Rehabilitation and Compensation Commission
[2015] AATA 103
•26 February 2015
[2015] AATA 103
Division Veterans' Appeals Division File Numbers
2013/4272
2014/4336
Re
Steven Cotic
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 26 February 2015 Place Perth Application 2013/4272
The decision under review is affirmed.
Application 2014/4336
The decision under review is affirmed.
........................[sgd]......................................
S D Hotop
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant served in Australian Army from 1978 to 1980 – applicant injured left knee in course of service in May 1978 – applicant claimed compensation – compensation payable to applicant for 'torn left medial meniscus' – lump sum compensation paid to applicant for partial loss of efficient use of left leg - in 2012 applicant claimed compensation for osteoarthritis of left knee – compensation payable to applicant for 'osteoarthritis of left knee' – applicant claimed compensation for permanent impairment resulting from compensable left knee injuries – compensable left knee injuries and resulting permanent impairment occurred in 1978 – permanent impairment resulting from osteoarthritis injury same as permanent impairment resulting from meniscus injury – applicant has not suffered new or distinct permanent impairment – no further permanent impairment compensation payable to applicant – decisions under review affirmed
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971 (Cth), s 5(1) and 39
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 14(1), s 24, s 27, s 123, s 123A, s 124 and s 147(1)
CASES
Department of Defence v West (1998) 85 FCR 491
REASONS FOR DECISION
Deputy President S D Hotop
26 February 2015
Introduction
Steven Cotic (“the applicant”) has applied to the Tribunal for review of the following “reviewable decisions” made by delegates of the Military Rehabilitation and Compensation Commission (“the respondent”) under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”):
·a reviewable decision, dated 29 July 2013, which affirmed a determination, dated 11 October 2012, that the respondent was not liable to pay compensation for permanent impairment under s 24 of the SRC Act and compensation for non-economic loss under s 27 of the SRC Act to the applicant in respect of a compensable injury, namely, “torn left medial meniscus” (Application 2013/4272);
·a reviewable decision, dated 13 August 2014, which affirmed a determination, dated 29 July 2013, that the respondent was not liable to pay compensation for permanent impairment under s 24 of the SRC Act and compensation for non-economic loss under s 27 of the SRC Act to the applicant in respect of a compensable injury, namely, “osteoarthritis of left knee” (Application 2014/4336).
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T108, pp 1–205) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:
·Exhibits A1 and A2 tendered by the applicant;
·Exhibits R1 and R2 tendered by the respondent; and
·the oral evidence of the applicant and Dr Philip Hardcastle.
The Factual Background
The following relevant background facts are not in dispute and are found by the Tribunal on the basis of the T Documents and Exhibit R1.
The applicant, who was born in January 1959, enlisted in the Australian Regular Army (“Army”) for three years in January 1978.
On 1 May 1978 the applicant, in the course of his service in the Army, injured his left knee. (T3)
On 31 May 1978 the applicant made a claim for compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”) in respect of an injury described as “torn cartridge [sic] with ligament damage” said to have been sustained by him on 1 May 1978 at 0530 hours when he twisted his knee at physical training. (T4)
On 17 June 1978 the applicant was admitted to 2nd Military Hospital for surgery with a diagnosis of “torn medial meniscus left knee” and “ruptured anterior cruciate ligament & some degenerative changes”, and was discharged on 14 July 1978. (T6)
On 12 January 1979 a delegate of the Commissioner for Employees’ Compensation (“Commissioner”) made a determination under the 1971 Act as follows:
“(1) The said Steven COTIC (hereafter referred to as the employee) sustained personal injury arising out of or in the course of the employee’s employment on 1 May 1978, namely, torn left medial meniscus
(2)In accordance with the provisions of Section 27 of the said Act, the Department of Defence is liable to pay compensation in respect of the said personal injury.” (T8)
A report of an x-ray of the applicant’s left knee on 9 May 1980 states:
“ In lateral projection, there is a tiny irregularity of the anterior aspect of the intercondylar eminence of the tibia, ? related to previous injury to a cruciate ligament. There is a little osteophytic marginal lipping of the patella and a minor hypertrophic change in relation to the medial compartment of the tibio-femoral joint consistent with relatively early degenerative changes in the knee joint.
No other abnormality is seen.” (T10)
Dr Geoffrey Bendeich, Orthopaedic Surgeon, made a report, dated 3 June 1980, regarding the applicant to the Commonwealth Department of Health in which he expressed (inter alia) the following opinions:
“ …
3.In the absence of further treatment the condition of his knee is permanent and he will develop secondary osteoarthritic changes in the joint. Depending on his disability and the demands placed upon his knee ligamentous reconstruction may need to be considered.
4.Because of above permanent disability should not be assessed at this stage.
5.I suggest re-examination in two years time.
…”(T12)
The applicant was discharged from the Army on 10 July 1980. (T45)
Dr Henry Hill, Orthopaedic Surgeon, made a report, dated 17 September 1982, regarding the applicant to the Commonwealth Department of Health in which he expressed (inter alia) the following opinions:
“ …
6. I consider the [left knee] condition is now permanent and static.
7.… I would say most likely the knee became static between September 1976 and August 1979.
8a.I would consider he has a permanent disability of the order of 15% loss of efficient use of the left leg at the knee.
…” (T17)
On 26 October 1982 a delegate of the Commissioner made a determination under the 1971 Act as follows:
“ The personal injury sustained by the said STEVEN COTIC on 1 May 1978 namely torn left medial meniscus resulted in 15 per cent loss of efficient use of the left leg at or above the knee and he is thereby entitled to compensation under Section 39 of the Principal Act and the Act and Regulations in force immediately before 1 September 1979 in the sum of $2812.50.” (T18, p 26)
Dr John Hill, Orthopaedic Surgeon, to whom the applicant had been referred by Dr Budrikis, a general practitioner, wrote a letter, dated 7 April 1983, to Dr Budrikis in which he commented (inter alia):
“ His x-ray shows what appears to be some early osteoarthritis in the medial compartment …” (T19)
By letter, dated 2 May 1983, Dr Hill informed Dr Budrikis that (inter alia) an arthroscopy of the applicant’s left knee on 11 April 1983 confirmed “degenerative changes” which were “only mild and confined to the medial joint space”. (T20)
Dr Hill made a report, dated 16 June 1987, regarding the applicant to the Commonwealth Department of Health which stated:
“ I saw this man as arranged on 26.5.87. He tells me his knee is a little sore in the colder weather but it is not locking and swelling as it was before. He is unable to run any distance, and if he attempts this the knee becomes painful. Heavy labouring, and such activities produce pain and swelling in the knee and he avoids these.
On examination of the left knee, he had a trace of quadriceps wasting. A medial meniscus scar was noted. There was no effusion in the joint and he had a full range of movement. There was 10° of varus laxity and positive Lachman sign. There was a mildly positive Pivot shift.
I had x-rays taken which are reported as follows:
‘ A large separate ossific body in the supra-patella region and a little lipping is seen in the supra-patella margin. Some narrowing is seen at the medial Joint space with a little irregularity of the margins of the medial tibial plateau noted.
Current alignment in the erect position is demonstrated.’
DATED: 02.06.87 SIGNED A KAM (RADIOLOGIST)
This man’s disability I would assess as being equivalent to fifteen to twenty per cent (15 – 20%) loss of efficient function of this leg. There is the potential of an increase in this disability particularly if he should undertake heavy work or vigorous sport.
In response to your more specific questions, this man does suffer from medial compartment osteoarthritis as a result of the torn medial meniscus and the ligament damage. At this stage no further treatment is indicated. He is not totally incapacitated for work, but can undertake light work or sedentary duties. I would not anticipate he would become totally incapacitated in the future.
The restrictions that would be imposed on him are those jobs that involve a lot of lifting, prolonged standing, squatting and kneeling.
I believe his condition has stabilised, at least in the foreseeable future.” (T29)
In response to a request by a delegate of the Commissioner for a “more specific” assessment of “the percentage loss of efficient function” of the applicant’s left leg, Dr Hill, by letter dated 7 September 1987, informed the delegate as follows:
“ … I would quantify the percentage loss of efficient function of Mr Cotic’s leg as 17½ per cent …” (T31)
On 28 October 1987 a delegate of the Commissioner made a determination under the 1971 Act as follows:
“ The personal injury sustained by the said Steven Cotic on 1 May 1978 namely ‘torn left medial meniscus’ resulted in 17-1/2% loss of efficient use of the left leg at or above the knee and he is thereby entitled to compensation under Section 39 of the Principal Act and the Act and Regulations in force immediately before 13 June 1987 in the sum of $7168.88 less previously paid $2812.50, being a payment of $4356.38.” (T32, p 44)
The applicant underwent an arthroscopy of his left knee on 30 August 1991 and further arthroscopic surgery on his left knee on 6 May 1994 (T35, T37).
By letter dated 20 June 1995, Dr Graham Forward, Orthopaedic Surgeon, wrote to Dr Lawrence Ng, a general practitioner, as follows:
“ Thank you for sending Steven along who has continual trouble with the left knee despite seven arthroscopic interventions. He does not trust the knee, it continually gives way on him and he favours it with walking. He certainly could not play any sport and can hardly manage in his work operating a Tavern.
He told me that in 1978 he sustained a severe injury to the knee when he leap-frogged into a pothole.
Clinically there is chronic ACL deficiency with a very unstable knee. There are also medial and lateral osteophytes palpable and some restriction of full flexion. He does have early degenerative changes as a result of repeated subluxation of the knee. Despite his age and this wear within the knee, I think he would benefit from stabilisation with an ACL reconstruction. He does understand that this will not necessarily change his pain pattern but it will certainly stop the knee from giving way on him and give him more certainty of his leg.
…” (T39)
By letter dated 23 October 1995, Dr Forward informed Dr Ng that the applicant had an ACL (anterior cruciate ligament) reconstruction one week ago and that he was "doing well”. (T40)
By letter dated 27 March 1996, Dr Forward informed Dr Ng that the applicant “would benefit from arthroscopy and notchplasty” (T44), and, by letter dated 20 May 1996, Dr Forward wrote to Dr Ng as follows:
“ Arthroscopy showed the reconstructed cruciate ligament to be well synovialised and the knee to be stable. A limited notchplasty was performed where there was some impingement of the thick graft in the roof of the femur. More importantly the previously observed widespread severe medial compartment osteoarthritis was again noticed. I think it is here that his symptoms are arising.
On review his knee feels better having recovered more extension. He is pleased that the knee is stable, but disappointed that his arthritic symptoms are giving him such trouble. I doubt that he will have a long future ahead of him in heavy lifting and bending required to run a bar.
…” (T47)
By letter dated 30 January 1997, Dr Forward informed Dr Ng that the applicant’s “left knee … is now showing advanced degenerative changes” and that the “knee is varus with patellofemoral and medial compartment crepitus” (T48), and, by letter dated 23 February 1998, Dr Forward informed Dr Ng that the applicant’s knee was “getting worse”, that he had “noticed increasing varus” and that his “main problem” was “medial knee pain” (T56).
Following a claim by the applicant for lump sum compensation for permanent impairment in respect of his compensable left knee injury under the SRC Act, the applicant was assessed by Dr Michael Bowles on 21 December 1999. Dr Bowles completed a “Permanent Impairment and Non-Economic Loss Questionnaire” form in which he (inter alia) described the applicant’s permanent impairment as “(L) knee, degenerative changes 2° to medial meniscectomy & ACL rupture” and assessed his “whole person impairment” as 20% under Table 9.5 in the Guide to the Assessment of the Degree of Permanent Impairment. (T61)
By letter dated 7 September 2000 a delegate of the respondent notified the applicant of a determination made under the SRC Act as follows:
“ I refer to your application for a lump sum payment for permanent impairment for a left knee condition and to your acceptance of the offer.
On the basis of the available evidence, I determine that you have suffered a further deterioration of your left knee. Your current permanent impairment is 20%.
I note that you have previously received two lump sum payments under the 1971 Act for this condition totalling $7168.88. In October 1982 you received $2812.50 for 15% loss of efficient use of your left leg (LOEU) and in October 1987 you received $4356.38 for a further 2.5% LOEU.
You are now assessed as suffering from a 20% LOEU which is a further deterioration of 2.5%. The amount of compensation owing to you is $23,014.28 less the previous amount paid to you. This leaves a total of $15,845.40.
Further to this, there is an outstanding overpayment of incapacity entitlement of $2631.03. This will be deducted from the lump sum leaving a new total of $13,214.37.
…” (T65)
That determination was affirmed by a “reviewable decision” made by a delegate of the respondent under s 62 of the SRC Act on 8 February 2001. (T68)
By letter dated 12 January 2009, Dr Forward wrote to Dr Ng as follows:
“ Thank you for sending Steven back who now has progressive pain, swelling and catching in his left knee. He has noticed that it has gone further into varus alignment.
Clinically there is marked wasting of the quadriceps muscles. The knee is in varus alignment with 10° of fixed flexion deformity. The anterior draw test shows some ACL laxity and there is coarse patellofemoral crepitus.
The x-ray shows severe medial compartment osteoarthritis with moderate patellofemoral wear. There are multiple large loose bodies within the knee.
The amount of wear has progressed to the point where the only useful intervention here would be knee replacement. …” (T76)
On 27 July 2012 the applicant made a claim for compensation under the SRC Act in respect of a condition described as “osteoarthritis of left knee” which was a “progression from torn medial meniscus” sustained in 1978. (T91)
On 22 October 2012 a delegate of the respondent made a determination under the SRC Act that liability to pay compensation to the applicant “be extended to include an Osteoarthritis Of Left Knee condition”, the date of that injury being determined as 7 April 1983. (T97, pp 174–175)
Meanwhile, on 11 October 2012, a delegate of the respondent made a determination, on the basis of a report of Dr Barrie Slinger dated 11 July 2012 (see paragraph 33 below), that no additional compensation for permanent impairment and non-economic loss was payable to the applicant under ss 24 and 27 of the SRC Act in respect of his “torn left medial meniscus” injury. (T93)
The abovementioned determination of 11 October 2012 was affirmed by a “reviewable decision” made by a delegate of the respondent under s 62 of the SRC Act on 29 July 2013. (T108)
On 29 July 2013 the delegate also made a determination that the applicant was not entitled to compensation for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act in respect of his “osteoarthritis of left knee” injury. (T108)
On 13 August 2014 a delegate of the respondent made a “reviewable decision” under s 62 of the SRC Act affirming the abovementioned determination of 29 July 2013 that compensation for permanent impairment and non-economic loss was not payable to the applicant under ss 24 and 27 of the SRC Act in respect of his “osteoarthritis of left knee” injury. (Exhibit R1)
Recent Expert Medical Reports
Dr Barrie Slinger
At the request of the Department of Veterans’ Affairs (“DVA”), Dr Slinger, Consultant Orthopaedic Surgeon, assessed the applicant on 26 June 2012 in relation to his claim for compensation for permanent impairment in respect of his “torn left medial meniscus” injury. Dr Slinger provided a report, dated 11 July 2012, to the DVA as follows:
“ …
Thank you for referring this man who I reviewed on 26 June 2012 at which time I was in receipt of your letter requesting assessment for a claim submitted for compensation for a torn left medial meniscus condition.
FILE MATERIAL:
At the time of review I was in receipt of a number of medical documents in particular those from orthopaedic colleagues Mr Henry Hill, Mr John Hill and Mr Graham Forward.
HISTORY:
Occupation/Work Duties:
This man enlisted in the Royal [sic] Australian Army in 1978 and was discharged after almost three years’ service in 1980.
Mechanism of Alleged Injury/Sequence of Events:
The history available is that of what was described as significant injury to the knee in an incident at physical training on 1 May 1978 with marked swelling and inability to straighten the knee.
Initial/Early Treatment Received:
Surgery was performed on 18 June 1978 at which a torn medial meniscus was excised. At the same time a tear of the anterior cruciate ligament was identified. Prior to that incident he had had symptoms in 1975 whilst playing football but most of that settled over a period of a few days and he had no further problems until the incident of May 1978.
Subsequent Progress/Specialist Management:
Since that time he has had multiple surgical procedures each of which has been followed by physical therapy with a rehabilitation program.
In 1986 he had surgery in the nature of a lateral meniscectomy then further surgery for lateral meniscectomy in 1991 and again a lateral meniscectomy in 1994.
Over the years he has had recurrent swelling and pain about the knee requiring the abovementioned surgery and in 1995 he had ACL reconstruction with satisfactory result although he did require revision with arthroscopic and notch plasty to reduce the hypertrophied ACL graft which was impinging in the intercondylar notch.
Since that time he has had continuing symptoms and has been reviewed by his treating orthopaedic surgeon Mr Graham Forward, the accepted position being that he now has degenerative change with severe medial compartment osteoarthritis with moderate patellofemoral wear together with multiple loose bodies within the knee. It was Mr Ford’s [sic] opinion that the amount of wear had progressed to the point where the only useful intervention would be knee replacement. However prior to this he was going to seek attention to an intercurrent problem with the shoulder.
Current Status:
At present pain persists about the left knee. He feels that the kneecap is sliding up and down and is not moving in its excursion as the other knee does because of what has been described as rotation of the leg. Limping occurs at times which also includes discomfort about the hip. Clicking occurs with flexing the knees. There is swelling after walking which is limited to some five minutes or as with jumping on the spot. Kneeling he avoids. Crouching is possible although limited and he has difficulty on recovery. Locking occurs on occasions and pain occurs particularly after sitting when standing. Negotiating stairs is an aggravation both up and down, preferring to use the rail. Sleep is interrupted if he lies on that knee and the knee itself feels loose.
Current Work Status:
Not applicable. Incarcerated at Casuarina Prison.
Present Activities:
Not applicable: Incarcerated at Casuarina Prison.
Present Treatment:
At present he is incarcerated at Casuarina Prison and is not receiving any treatment nor does he require any medication. In the past various medications including anti-inflammatory tablets produced severe gastric upset.
Most recently the only intervention has been referral to an orthotist for provision or [sic] orthotics in shoes to correct what was supposedly a malrotation.
PHYSICAL EXAMINATION:
To examination he was a pleasant fellow who provided a clear history. Height was 174 cm, weight 93 kg and he walked with a limp affecting the left lower limb.
Lower Limbs:
In the left lower limb as a whole there was a prominent varus deformity below knee.
Over the knee proper there was a small effusion. Vastus medialis component of the quadriceps was wasted and there was a small effusion with moderate collateral ligament instability and no anteroposterior instability whilst resisted quadriceps contraction reproduced pain at the patellofemoral joint. Movement was from 5° to 95°.
Crouching was accomplished to half expected range. Kneeling was not attempted because of anticipated discomfort.
INVESTIGATIONS:
No radiology was available.
The most recent films of 2009 of the left knee show marked medial joint space narrowing on the left and pronounced medial joint space narrowing in the right knee. The previous ACL reconstruction on the left was noted, with irregularity of the tibial plateau articular surface plus advanced patellofemoral joint degenerative change and a loose body in the suprapatellar recess plus an additional loose body at posterior. There were degenerative changes in the right side of the femoral articulation.
…”
In the remainder of his report Dr Slinger addressed questions asked of him by the DVA in the course of which he:
·indicated that the applicant’s left knee condition, namely, “torn medial meniscus with secondary osteoarthritis”, was permanent, having become permanent in “2000”;
·assessed the applicant’s “whole person impairment” resulting from his left knee condition as 10% under Table 9.2 in the Guide to the Assessment of the Degree of Permanent Impairment;
·expressed the opinion that the applicant’s “whole person impairment” resulting from his left knee condition could reasonably be expected to be reduced to 5% if he had a total knee replacement. (T89)
Dr Slinger provided a supplementary report, dated 17 December 2012, to the DVA as follows:
“ Thank you for your letter of 30 November 2012 requesting a supplementary report on the above named.
To answer your questions:
1. On what date did Mr Cotic’s knee condition become static?
The date this man’s condition became static is 2000.
2.What is the current percentage loss of efficient use (%LOEU) of the relevant body part that is impaired as a result of the accepted condition(s) having regard to the relevant medical guides?
The current percentage loss of efficient use of the relevant body part is 10%.
3.Do you consider that the percentage loss of efficient use could be reduced by further medical or rehabilitative treatment? If ‘yes’ please identify what treatment you would recommend and what resultant percentage loss of efficient use could reasonably be expected to be achieved as a result of this treatment?
The percentage loss of efficient use could not be reduced by further medical or rehabilitative treatment at the present time. In the future if there is progressive pain and stiffness at the knee because of progressive degenerative change then the percentage of whole person impairment would increase and that increase would be minimised effectively by total joint replacement.
4.Is the employee totally incapacitated for work or likely to become so due to the accepted condition?
The employee is not totally incapacitated for work. If there is progressive pain and stiffness about the knee he may become incapacitated but then following total joint replacement I anticipate he would be fit to return to at least sedentary activity.
…” (T104)
Dr Slinger provided a further supplementary report, dated 18 March 2013, to the DVA as follows:
“ Thank you for your recent letter.
In respect to the left knee, I confirm the following:
1.What was the percentage impairment, expressed as a loss of efficient use, of the right leg at or below the knee, on 30 November 1988, taking into consideration the original injury and the surgery in 1986.
The percentage impairment expressed as the loss of efficient use of the left leg at or below the knee on 30 November 1988 taking into consideration the original injury and the surgery in 1986 is 5%.
2.Have the effects of the surgery in 1991 and 1994 resulted in a distinct and separate impairment under either table 9.2 or 9.5, and if so, please rate that impairment accordingly.
The effects of the surgery in 1991 and 1994 result in a distinct and separate impairment under table 9.2 of 5%.
In other words, at the present time total impairment assessment is 10%.
I draw your attention to what I assume is a typographical error in your report where you detail the right knee and in fact I assume this is the left knee and that is what I have addressed in the above.
…” (T106)
Dr Slinger provided a short supplementary report, dated 3 April 2013, to the DVA as follows:
“ Thank you for your recent letter. I can only answer your questions on the basis that this man now had a percentage impairment at the left knee of 10%. The original injury and the surgery of 1986 are responsible for some half of that percentage impairment as are the effects of the surgery of 1991 and 1994.
…” (T107)
Dr Slinger also provided a report, dated 10 December 2013, to the respondent’s solicitors as follows:
“ Thank you for your correspondence. I have read your enclosures and of course your questions. To answer your questions:
21.In your report, we request that you provide your answers to the following questions:
21.1does the assessment of 5% LOEU which was said to be attributable to Mr Cotic’s TLMM condition and 1986 surgery (see paragraph 19.1 above) represent an additional impairment suffered by him or the level of his impairment as at 30 November 1988?
The assessment of 5% LOEU which was said to be attributable to Mr Cotic’s TLMM condition and 1986 injury [sic] represents an additional impairment suffered by him but it is the level of his impairment as at 30 November 1988 and not an additional impairment.
21.2does the assessment of 5% WPI which was said to be attributable to the effects of Mr Cotic’s 1991 and 1994 surgeries also include the impairments/effects arising from his OA condition?
The assessment of 5% WPI is attributable to the effects of Mr Cotic’s 1991 and 1994 surgeries including the impairment/effects arising from his OA condition.
21.3what are the precise effects and/or impairment suffered by Mr Cotic arising from his 1991 and 1994 surgeries?
The precise effects and impairment suffered by Mr Cotic arising from the 1991 and 1994 surgeries are degenerative or osteoarthritis.
21.4what are the precise effects and/or impairment suffered by Mr Cotic arising from his OA condition?
The precise effects and impairment suffered by Mr Cotic arising from his OA condition are pain and stiffness about the knee as I have detailed in my report.
21.5when did Mr Cotic’s impairment from his OA condition become permanent?
I detailed in my report of 17 December 2012 that this man’s condition of osteoarthritis became static or permanent in 2000.
21.6what is the level of LOEU or WPI under Tables 9.2 and 9.5 suffered by Mr Cotic arising from his OA condition only? Note that if the OA condition became permanent after 1 December 1988, then Tables 9.2 and 9.5 are applicable.
Assessment of impairment under Table 9.2 is 10% loss of less than half the normal range of movement of the knee. With respect to impairment using Table 9.5 this is 20%, can rise to standing position and walk but has difficulty with grades, steps and distances.
…”(Exhibit A1)
Dr Philip Hardcastle
Dr Hardcastle, Consultant Orthopaedic Surgeon, provided a report, dated 21 February 2014, to the respondent’s solicitors. That report, as amended in minor respects by Dr Hardcastle in his oral evidence (see paragraphs 41-44 below), states as follows:
“ …
Thank you for your letter of 18 February 2014 requesting an independent assessment of Mr Steven Cotic who was reviewed at Casuarina Prison on 21 February 2014.
I acknowledge your list of documents under the Schedule starting T2 1478 [sic] through to T108 with a number of other undesignated documents including:
·Dr B Slinger report (10/12/2013).
·Principles of Assessment which include Chapter 9, Appendix 1 Table of Maims and Guidelines.
BACKGROUND
Mr Cotic was born in Croatia and came to Australian [sic] when he was eight and a half years of age leaving school in Year 10. He did an apprenticeship as a diesel mechanic fitter and completed this and went into the Army where he was in the Infantry for three years and did no overseas service.
Following his discharge from the Army he worked as a boilermaker/welder for three years and then did roof tiling for three years before going into work in a management capacity. He has worked in a car yard and in hotels in this capacity both in the city and country for about fifteen years.
He has been able to get certificates in art design, textiles and has done a University Arts Degree while in jail which took six years.
He said he has had four episodes or periods in prison for trafficking offences and has achieved some degrees as referred to above in this period, and also qualified as a slaughterman and he worked following one of his discharges at Harvey Beef for a year.
He is currently serving three years with two years to complete this and is keeping himself occupied five hours a day sewing canvases and for two or three hours a day he does screen painting where he makes screens with names and information on them and this does seem to be a relatively complex process and in the evenings he does paintings in his cell.
He is computer literate and can type with both hands.
PAST HISTORY
He has had no previous medical problems. He did undergo surgery for a left shoulder injury in about 2005 and still gets some discomfort from this.
He has had several motor vehicle accidents without any claims and no specific injuries though he has had some neck and right shoulder pain after the accidents but no knee symptoms.
Prior to the development of knee symptoms he did have a football injury in about 1975 when he said his knee swelled after he was running and he went down but I could not get any more details on this or any specific mechanism of injury. I am of the understanding that he made a full recovery.
PERSONAL DETAILS
He is in a de facto relationship currently and has three adult children but no grandchildren.
He is a non-smoker who drinks alcohol socially. He likes painting and darts but the darts is restricted by his shoulder and periods of standing with respect to his knee.
DETAILS OF INJURY
He reports in May 1978 it was early in the morning and they were doing a hill run in the Hunter Valley and it was misty at about 3.30am [sic], and he had to frog leap over different people and there were potholes on the road. He reports that having done one frog leap the next person who had bent down was close to the person who had just come over and so he had to jump quickly over this person and landed with his left leg on one of the potholes at an angle. He fell to the ground and the knee locked up when he tried to stand and he was unable to stand with swelling immediately.
He was taken back to the barracks and the knee was still locked, and I understand he had an operation relatively early in the military hospital which was a medial meniscectomy.
This was followed by rehabilitation and he still had some problems with lifting and was also told that he had a cruciate problem as well, which is the reason for his delayed recovery from this surgery.
It took six weeks before he could start moving and rehabilitating adequately and he got back to the Infantry but was downgraded by 10%.
PROGRESS
He said that he has favoured his leg and following discharge he worked in the capacities as mentioned under ‘Background’ including boilermaker/welder and roof tiler. The only time he has lost off work have been for a number of the operations that he has had on his knee which he cannot specifically remember the number but estimates it is about nine on the left knee including an ACL reconstruction by Mr Graham Forward in 1994.
He said his right knee started to give problems in the early 1980s and he was having problems with stairs and saw a specialist and this was accepted, and he undertook an arthroscopic procedure at Fremantle Hospital in 2001 and was given a 10% disability for his right knee.
He said that he has had one injury that he recalls in about 2008 throwing a tyre onto a truck from the ground and he injured his left shoulder and also had a knee injury on the left. He had some increased pain but he did not have any surgery following this, because I understand the advanced degeneration made the decision to consider total knee replacement if symptoms dictated it at that stage, and he has continued to avoid that decision until the present.
He has not had any injections on the knee and physiotherapy has been mainly in the post-operative period, though he has done a few gym programs with the last one being in about 1995.
Currently he does not take any medication and does wear orthopaedic shoes.
STATUS AT PRESENT
There are no back complaints or other regions where he is getting symptoms apart from both knees and the ankle on the left.
He said his left knee symptoms are worse than the right though they both swell regularly as do the ankles, and the left locks at night, and he has to loosen it and this is a problem but he does not get any locking on the right.
There is no specific giving way on either side particularly now since his ACL reconstruction.
On the left he gets pain on the medial and lateral sides and this is aggravated by sitting, walking, and stairs which he can manage with difficulty using his right to lever up, and standing, and he estimates he can walk at least 200m or fifteen minutes. He cannot run.
He estimates he can lift 5kg – 10kg off the ground and can manage reasonable weights at waist height but would have difficulty carrying them. He also has difficulty squatting and kneeling on both sides.
He gets numbness over the front aspect of his left knee on a regular basis where he has had a lot of surgery but none on the right.
Both ankles he said have started to swell and initially this was on the left but now he is getting some swelling on the right and occasional shooting pain on the left which comes proximal up to the knee.
He said that his left shoe where he wears a wedge in the foot on the lateral side (which is 5–7 degrees) and he showed this on the shoes that he was wearing at the time of this assessment.
CURRENT ACTIVITIES
He is currently restricted by his confinement in jail but can drive an automatic only when he is outside.
He said that his exercise is limited with walking and he is generally spending his time doing the sewing five hours a day, screen printing in the afternoon and painting in his cell in the evenings. He does not have a computer but he can watch TV.
CLINICAL ASSESSMENT
He was a well looking man of solid build who had short silver hair and was about 173cm in height, weighing 95kg. He had a very mild limp on the left.
Upper Limbs
He had callosities on both palms but no laxities, swellings, or tremor and a full range of upper limb movement.
Back/Spine
He had normal curves with forward flexion the fingertips coming to the ankles and normal spinal rhythm.
Lower Limbs
There was no gluteal wasting and straight leg raising was 90 degrees on both sides.
His alignment demonstrated 8cm of varus between the medial condyles and he had scars over the left knee including oblique transverse and arthroscopy ones and small arthroscopy scars on the right knee.
Hip examination demonstrated tenderness over the greater trochanter on the left but otherwise he had a full range of hip movement.
Examination of the left knee demonstrated tenderness over both medial and lateral joint line with a very small effusion with the knee being stable and negative rotation tests but he had pain on both compression and distraction. There was a small fixed flexion deformity with flexion to 115 degrees
Examination of the right knee demonstrated no effusion with tenderness over the medial and lateral patellar regions and he had patellofemoral crepitus to movement with the range from 0–125 degrees. There was some pain with compression on Apley’s testing but not distraction and he had negative McMurray’s manoeuvres, negative apprehension test and good stability.
Both ankles demonstrated normal alignment and on the left there was a small amount of swelling or oedema with the range of movement of the ankles being slightly restricted on the left with 15 degrees loss of dorsiflexion and small reduction in inversion with eversion and plantar flexion being virtually equal and good stability on both sides.
Reflexes were present in the knees and difficult to elicit in the ankles and motor and sensory examination was normal.
He could stand on his toes and heels and squat with the knees flexing to 30 degrees.
Quadriceps circumference on the right 10cm above the patellar was 49cm and 48cm on the left, and at the level of the knee they were equal at 40cm with calf circumferences being 38cm on each side in the maximal diameter position to observation.
INVESTIGATIONS
No investigations were available for review.
OPINION
The history is consistent with an injury to the knee where there is documented evidence of an injury to the medial meniscus which was excised on the 18 June 1978 and an anterior cruciate ligament tear was recorded as being present at the same time. It cannot be ascertained from the initial report of Geoffrey Bendeich of 3 June 1980 as he refers to the previous injury to the knee in 1978, but does not specifically state whether at the time of the medial meniscectomy the anterior cruciate ligament rupture was chronic or acute. Therefore it has to be accepted that the unstable knee has resulted from the same injury as the torn medial meniscus.
Subsequent knee stabilisation surgery has been performed with an excellent result and there has been progressive degenerative disease since then. He has held down a number of physical occupations since discharge from the Army over a period of approximately six years as a boilermaker/welder and roof tiler, but since then has been doing more managerial positions with limitations of physical capacity.
He has also developed symptoms in relation to his right knee and I understand has an accepted 10% disability on this side.
The reported oedema that he has in the ankles more marked on the left may possibly be indirectly related to the knee problem on the left, due to the progressive varus deformity as the degenerative osteoarthritis progresses and the medial joint space narrows resulting in increased bowing of the left which he demonstrated today and was measured at 15 degrees.
He currently is at the point where it may be beneficial for him while he is in confinement to consider some local knee injections with or without Synvisc to try and improve his walking capacity as an interim measure, before a more definitive unicompartmental knee replacement is undertaken which is the next step in his management.
I do not see any further indication for arthroscopic surgery but would consider given the current circumstances that it is not unreasonable to consider trying to improve symptoms in the short term to allow increased mobility, particularly walking and exercise for his own general health. It is important that he does not put on any further weight prior to undertaking any surgical arthroplasty procedure on the knee.
A tibial osteotomy is a consideration in terms of surgery, but from my clinical examination and reviewing the enclosed reports particularly taking into account the number of surgical procedures that have been performed, a tibial osteotomy would more than likely only offer him a very limited outcome.
In reply to your specific questions:
TLMM Condition
39.Does the applicant continue to suffer impairment from his TLMM condition? Note that ‘impairment’ is relevantly defined as ‘…..the loss of use, or the damage or malfunction of any part of the person’s body, of any bodily system or function, or of any part of such a system or function’.
He does have an impairment in relation to his left knee as a result of the TLMM condition which has gradually deteriorated.
40.If yes to paragraph 39 above, is his impairment permanent? In considering whether a condition is permanent, regard is given to the duration of the impairment, the likelihood of improvement in the condition, whether the employee has undergone all reasonable rehabilitative treatment and any other relevant matters.
The impairment is permanent.
41.If yes to paragraph 40 above:
41.1has there been a change in the level of permanent impairment suffered by the applicant since he was last reviewed by Dr Bowles on 21 December 1999 and assessed that [sic] at 20% LOEU (see paragraph 21 above)?
Dr Bowles gave 20% under Table 9-5, and in using this Table I do not believe there has been any change in this level of impairment.
41.2 If yes to paragraph 41.1 above:
Not applicable.
41.2.1when did the change in the permanent impairment most likely occur, and what caused it?
Not applicable.
41.2.2has the permanent impairment changed to such an extent that it can properly be characterised as a different or new impairment to that which existed in October 1987 when the applicant was assessed by Dr Hill (see paragraph 13 above) or is it a gradual worsening of that condition? In giving your answer, please identify what factors led to the permanent impairment.
It is a different impairment due to the progression of the osteoarthritis, which is a worsening of the condition, but not a new condition as they are inter-related. Under Table 9.5 (global assessment of impairment of overall limb function) he would still now rate the same under that criteria in any case.
41.2.3what is the degree of the applicant’s permanent impairment in accordance with Tables 9.2 (for assessment of joint function) or 9.5 (for global assessment of impairment of overall limb function) of Chapter 2 of the Comcare Guide (See relevant extracts at pp102-109). Please also identify which Table best applies in assessing the applicant’s impairment and why. (Note that a claim could be considered under Table 9.2 or 9.5 but not both. However, where both tables are applicable, any ambiguity is to be resolved so that the employee has the benefit of the most favourable result).
Both Tables are applicable in this case for Mr Cotic, but the severest impairment lies with Table 9.5, so this is the Table that is to be utilised.
I assess Mr Cotic as having a 20% whole person impairment, as he can rise to standing position and walk but has difficulty with grades, steps and distances.
41.2.4can you please isolate the degree of impairment (under the Table you use) which was present when the applicant was assessed for permanent impairment by Dr Bowles in December 1999. (See paragraph 21 above and pp30-41). We note in this respect that Dr Bowles has assessed the applicant back in 1999 by applying the LOEU criteria (under the 1971 Act) and not under the Comcare Guide Table.
I do not appear to have the report of Dr Bowles and can therefore not see his examination findings at that time. I do not believe it is appropriate to retrospectively try to access this assessment [sic].
42.Does the applicant suffer impairment from his Osteoarthritis condition which is different from the impairment arising out of the TLMM condition? Note that ‘impairment’ is relatively defined as ‘…..the loss of use, or the damage or malfunction of any part of the person’s body, of any bodily system or function, or of any part of such a system or function’.
The trauma sustained in May 1978 has caused the degeneration which has progressed slowly over the intervening period.
43.if yes to paragraph 42 above, is his impairment permanent? In considering whether a condition is permanent, regard is given to the duration of the impairment, the likelihood of improvement in the condition, whether the employee has undergone all reasonable rehabilitative treatment and any other relevant matters.
The impairment is permanent. There will be no improvement in the condition.
44.if yes to paragraph 43 above:
44.1what are the effects and/or impairment suffered by the applicant? If possible, please identify the bodily parts, functions or systems that are impaired.
As above.
44.2in your view what was the cause of the permanent impairment (was it for example, the trauma suffered by the applicant on 18 June 1978 [sic] or natural progression of that injury, or the result of treatment he had for the injury or any other factor) and did it become permanent before or after 1 December 1988?
The trauma sustained in May 1978 has caused the degeneration which has progressed slowly over the intervening period.
44.3what is the applicant’s level of impairment? Please note that if the impairment become permanent before 1 December 1988, your calculation of impairment must be conducted under the 1971 Act in accordance with the ‘Table of Maims’ at section 39(4) and (11)-(14) of the 1971 Act (see relevant extracts at pp115-117), but if it is after 1 December 1988, then Tables 9.2 or 9.5 of Chapter 2 of the Comcare Guide at pp102-105 should be applied, as discussed in paragraph 41.2.3 above.
As stated. His condition currently is permanent unless he undergoes a knee replacement. If that was the situation, likely within the next 5-10 years, then his level of impairment will alter. It has to be taken into account that arthritis in the knee is permanent once it occurs and progresses slowly over a long period of time. Once arthritis is present knee replacement surgery can improve the function significantly but is undertaken in most cases because of pain and functional loss. The aim of knee replacement is to stop the pain and provide much better function.
…” (part of Exhibit R2)
[The Tribunal notes that the respondent’s solicitors’ briefing letter of 18 February 2014 to Dr Hardcastle included the heading “Osteoarthritis condition” immediately above question 42, which is omitted in Dr Hardcastle’s report.]
Additional Medical Material Tendered by the Applicant
The applicant tendered in evidence a report of an x-ray of his left knee, dated 19 December 2014, which states as follows:
“ X-RAY LEFT KNEE
Clinical History
Bowing. ?Post traumatic. ?? Paget’s.
Findings
Evidence of previous anterior cruciate ligament repair noted, with tibial and femoral anchor screws noted.
This is noted on a background of tricompartmental degenerative changes with joint space loss, subchondral sclerosis and marginal osteophytes most prominent of the medial tibio-femoral compartment. Relatively mildly [sic] changes of the lateral compartment with marked osteophytes of the patello-femoral compartment noted. In addition there is a large 18 mm ossific foreign body seen inferior to the patella. Probable small joint effusion. Weight bearing views demonstrate near complete joint space loss of the medial compartment.
In addition there is mild degenerative change of the medial compartment of the right knee on the single image.” (Exhibit A2)
The Applicant’s Evidence
The applicant gave brief oral evidence in which he criticised Dr Hardcastle’s examination and report and the decisions under review in this proceeding. As regards his left knee, he said that it is “getting worse and worse”.
The Evidence of Dr Philip Hardcastle
Dr Hardcastle said that, once osteoarthritis is present in the knee, it is permanent and that, once it has started, it is a slow and gradual process over a long period of time. As regards the applicant’s left knee, Dr Hardcastle noted the “In-Patient Summary” document relating to the applicant’s left knee surgery in June 1978 which referred, inter alia, to “some degenerative changes” (see paragraph 7 above) and the report of an x-ray of the applicant’s left knee on 9 May 1980 which referred, inter alia, to “relatively early degenerative changes in the knee joint” (see paragraph 9 above), and he opined that the osteoarthritis of the applicant’s left knee had probably commenced on or about the date of the relevant injury in May 1978, and had certainly commenced well before 1988.
Dr Hardcastle expressed the opinion that the applicant’s torn left medial meniscus injury sustained on 1 May 1978 resulted in a permanent impairment of his left knee and that that permanent impairment commenced at the time of the injury. He likewise expressed the opinion that the applicant’s osteoarthritis condition resulted in a permanent impairment of his left knee at the time of, or very shortly after, the commencement of his osteoarthritis in May 1978.
In relation to his answer to question 41.2.2. in his report of 21 February 2014 (set out in paragraph 38 above), Dr Hardcastle said that, as a result of the osteoarthritis of the applicant’s left knee, the resulting impairment of his left knee is greater in degree but that that impairment is of the same nature as the impairment resulting from his torn left medial meniscus injury.
Dr Hardcastle was referred to the report of the x-ray of the applicant’s left knee dated 19 December 2014 (set out in paragraph 39 above) – in particular, the reference to the “near complete joint space loss of the medial compartment” – and the x-ray report of 12 January 2009 (T75) which noted “marked medial joint space narrowing” in the applicant’s left knee. Dr Hardcastle said that he would have expected that there “would have been a little bit of change as part of the natural progression” of degeneration in the condition of the applicant’s left knee in the period between the two reports, but that, given that the two reports were made by two different radiologists, he was unable to say whether the two phrases, namely, “near complete joint space loss” in the 2014 report and “marked medial joint space narrowing” in the 2009 report, indicated that there had been a significant deterioration in the applicant’s left knee condition in the intervening period. He added that those two phrases “can mean the same thing”.
The Relevant Legislation
The SRC Act
Pursuant to ss 14(1) and 147(1) of the SRC Act, the respondent is liable to pay compensation in accordance with that Act “in respect of an injury suffered by [the applicant] if the injury results in death, incapacity for work, or impairment”. Where such an injury results in a permanent impairment, compensation is payable, in accordance with s 24 of the SRC Act, in respect of that injury, and where such compensation is payable under s 24 of the SRC Act, additional compensation is payable, in accordance with s 27 of the SRC Act, for any non-economic loss suffered as a result of the relevant injury or impairment.
Part X of the SRC Act contains transitional provisions dealing with the application of that Act to injuries suffered before the date of commencement of that Act (namely, 1 December 1988), including the following relevant provisions:
“ 123A Injuries suffered before the commencing day
A reference in this Part to an injury suffered before the commencing day is a reference to an injury within the meaning of whichever of the 1912 Act, the 1930 Act or the 1971 Act was in force when the injury was suffered, as that Act was then in force.”
“ 124 Application of Act to pre-existing injuries
(1)Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A)Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2)A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a)where the injury, loss or damage was suffered before the commencement of the 1930 Act – under the 1912 Act;
(b)where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c)in any other case – under the 1971 Act as in force when the injury, loss or damage was suffered.
(3)A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a)the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or
(b)the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
(i) where the impairment or death occurred before the commencement of the 1930 Act – under the 1912 Act;
(ii) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the impairment or death occurred; or
(iii) in any other case – under the 1971 Act as in force when the impairment or death occurred.
…”
The phrase “commencing day” is defined in s 123 to mean “the day on which this Part commences” – namely, 1 December 1988. The phrases “the 1912 Act”, “the 1930 Act” and “the 1971 Act” are defined in s 4(1) as follows:
“ the 1912 Act means the Commonwealth Workmen’s Compensation Act 1912.
the 1930 Act means the Commonwealth Employees’ Compensation Act 1930.
the 1971 Act means the Compensation (Commonwealth Government Employees) Act 1971.”
The 1971 Act
Section 39(11) of the 1971 Act provided as follows:
“ The compensation payable under this Act in respect of an injury resulting in partial loss by an employee of the efficient use of a part of the body specified in sub-section (4) or of the efficient use of such a part of the body for the purposes of the employment of the employee immediately before the injury, not being a loss referred to in sub-section (6), (7), (9) or (10), is such percentage of the amount of compensation that would be payable under sub-section (3) in respect of an injury resulting in the loss by the employee of that part of the body as is –
(a)the percentage by which the injury resulted in the efficient use, immediately before the injury, of that part of the body being reduced; or
(b)the percentage by which the injury resulted in the efficient use, immediately before the injury, of that part of the body for the purposes of the employment of the employee immediately before the injury being reduced,
whichever is the greater percentage.”
The parts of the body specified in subs (4) of s 39 included:
“ … leg at or above knee”.
Section 39(15) provided:
“ In this section, ‘loss’ means a permanent loss.”
In s 5(1) “permanent” is defined to mean:
“ likely to continue indefinitely”.
The Issues
The matter for the Tribunal’s determination is whether the respondent is liable to pay compensation for permanent impairment under s 24 of the SRC Act and compensation for non-economic loss under s 27 of the SRC Act in respect of each of the applicant’s compensable injuries, namely, “torn left medial meniscus”, and “osteoarthritis of left knee”.
The determination of the abovementioned matter requires the Tribunal initially to consider the application of s 124(3) of the SRC Act and to determine the following issues:
·the date on which the applicant suffered each of the abovementioned compensable injuries;
·whether the applicant suffered a permanent impairment as a result of either or both of the abovementioned compensable injuries, and, if so, the date(s) on which such permanent impairment(s) occurred;
·if the applicant suffered a permanent impairment as a result of each of the abovementioned compensable injuries, whether the permanent impairment suffered by him as a result of the “osteoarthritis of left knee” injury is different from the permanent impairment suffered by him as a result of the “torn left medial meniscus” injury.
Consideration
The “torn left medial meniscus” injury
It is common ground that the applicant suffered the “torn left medial meniscus” injury on 1 May 1978, and the Tribunal so finds.
The Tribunal is satisfied, on the basis of the report of Dr Geoffrey Bendeich, dated 3 June 1980 (see paragraph 10 above), that the applicant’s “torn left medial meniscus” injury had resulted in a permanent impairment as at 9 May 1980 (being the date on which Dr Bendeich examined the applicant). The Tribunal, however, is satisfied, on the basis of Dr Hardcastle’s evidence (see paragraph 42 above), that the permanent impairment resulting from that injury occurred at the time when the applicant suffered that injury, namely on 1 May 1978, and the Tribunal so finds.
The “osteoarthritis of left knee” injury
The Tribunal notes the respondent’s determination of 22 October 2012 (see paragraph 28 above) which accepted liability to pay compensation to the applicant in respect of the “osteoarthritis of left knee” injury and which determined the date of that injury as 7 April 1983. The Tribunal infers that the determination of that date of the injury was based on Dr John Hill’s report of that date (see paragraph 14 above).
The Tribunal, however, is satisfied, on the basis of Dr Hardcastle’s evidence (see paragraph 41 above) and the contemporaneous medical documentation referred to by him, that the applicant suffered the “osteoarthritis of the left knee” injury at or about the time when he suffered the “torn left medial meniscus” injury on 1 May 1978, and the Tribunal so finds.
It is common ground that the applicant’s “osteoarthritis of left knee” injury has resulted in a permanent impairment. However, the medical evidence before the Tribunal regarding the date when that resulting permanent impairment occurred is not consistent.
Dr Bowles, in the “Permanent Impairment and Non-Economic Loss Questionnaire” form completed by him on 21 December 1999 (referred to in paragraph 24 above), indicated that the loss of efficient use of the applicant’s left knee became permanent in “Nov 95” and became “static” in “Nov 95” (T61, p 86). There is, however, no explanation by Dr Bowles in that form as to the basis on which he selected that date, and, having regard to the whole of the evidence before the Tribunal, the basis on which Dr Bowles selected that date is not apparent. The Tribunal, however, is prepared to infer that the date of November 1995 selected by Dr Bowles is the date on which, in his opinion, the specified impairment became “static” rather than the date on which that impairment became “permanent” in the statutorily-defined sense of “likely to continue indefinitely”.
Dr Slinger, in his report of 11 July 2012 (see paragraph 33 above), expressed the opinion that the applicant’s left knee condition, namely, “torn medial meniscus with secondary osteoarthritis”, became permanent in “2000”. In a supplementary report, dated 17 December 2012, Dr Slinger expressed the opinion that the applicant’s left knee condition became “static” in “2000” (see paragraph 34 above). There is, however, no explanation by Dr Slinger in those reports as to the basis on which he selected that date, and, having regard to the whole of the evidence before the Tribunal, the basis on which Dr Slinger selected that date is not apparent. The Tribunal notes, however, that Dr Slinger, in his report of 10 December 2013 (see paragraph 37 above), stated, in answer to question 21.5, that the applicant’s “condition of osteoarthritis became static or permanent in 2000”. It seems clear to the Tribunal that the date of “2000” selected by Dr Slinger is the date when, in his opinion, the applicant’s osteoarthritis condition became “permanent” in the sense of “static” rather than the date on which that condition became “permanent” in the statutorily-defined sense of “likely to continue indefinitely”.
Dr Hardcastle, who ( unlike Dr Bowles and Dr Slinger) was called as a witness and gave oral evidence, expressed the opinion, based on contemporaneous medical documentation, namely, an “In-patient Summary” document relating to the applicant’s left knee surgery in June 1978 and a report of an x-ray of the applicant’s left knee on 9 May 1980, that the osteoarthritis of the applicant’s left knee had probably commenced at or about the time of the relevant injury to the applicant’s left knee in May 1978 (see paragraph 41 above). He also expressed the opinion that osteoarthritis in the knee is a permanent condition which gradually deteriorates from the time of its inception, and he opined (see paragraph 42 above) that the applicant’s osteoarthritis condition resulted in a permanent impairment of his left knee at the time of, or very shortly after, the commencement of his osteoarthritis in May 1978.
The Tribunal attaches greater weight to the opinion evidence of Dr Hardcastle regarding the date on which the impairment resulting from the osteoarthritis in the applicant’s left knee became permanent than it attaches to the abovementioned opinions of Dr Bowles and Dr Slinger regarding that matter. As previously mentioned, neither Dr Bowles nor Dr Slinger provided an explanation or basis for his opinion, whereas Dr Hardcastle provided, in the Tribunal’s opinion, a cogent explanation for his opinion which was not diminished in cross-examination.
The Tribunal accepts Dr Hardcastle’s evidence (referred to in paragraphs 41 and 42 above) and, on the basis of that evidence, it is satisfied that the applicant’s “osteoarthritis of left knee” injury resulted in a permanent impairment which occurred within a very short time of his suffering that injury in May 1978, and the Tribunal so finds.
Is the permanent impairment suffered by the applicant as a result of the “osteoarthritis of left knee” injury different from the permanent impairment suffered by him as a result of the “torn left medial meniscus” injury?
On the basis of the medical evidence before it – in particular, the evidence of Dr Hardcastle – the Tribunal is satisfied that the permanent impairment suffered by the applicant as a result of each of the abovementioned compensable injuries is of the same nature, namely, the partial loss of the use, or the malfunction, of the left knee, and it so finds.
The applicant submitted, however, that, in recent years, his left knee impairment has become significantly worse, and, in support of that submission, he tendered a report of an x-ray of his left knee, dated 19 December 2014 (set out in paragraph 39 above). He submitted that that report demonstrated a significant deterioration of his left knee condition since the previous x-ray report of 12 January 2009 (T75).
Having regard to the applicant’s submission, the question arises as to whether the pre-existing permanent impairment of the applicant’s left knee has, since 1 December 1988 (being the date on which the SRC effectively came into force and the 1971 Act ceased to be in force), deteriorated to such an extent that “it is properly to be characterised as a further or different impairment to that which existed at [that] date”: Department of Defence v West (1998) 85 FCR 491 at 512.
Has the applicant, since 1 December 1988, suffered a further or different permanent impairment resulting from his compensable left knee injuries?
The latest assessment of the permanent impairment of the applicant’s left knee prior to 1 December 1988, which is in evidence before the Tribunal, is that of Dr John Hill in his report of 16 June 1987 and letter of 7 September 1987 (see paragraphs 16 and 17 above) in which he assessed that impairment as a 17½% loss of efficient function of the applicant’s left leg. The Tribunal notes the reference in the x-ray report of 2 June 1987, included in Dr Hill’s report of 16 June 1987, to “some narrowing … at the medial joint space …”.
In the period since 1 December 1988:
·on 20 May 1996 Dr Forward referred to “widespread severe medial compartment osteoarthritis” in the applicant’s left knee (T47);
·on 30 January 1997 Dr Forward noted that the applicant’s left knee was “now showing advanced degenerative changes” (T48);
·on 21 December 1999 Dr Bowles referred to “degenerative changes” in the applicant’s left knee “secondary to medial meniscectomy and ACL rupture” and assessed his “whole person impairment” as 20% under Table 9.5 in the Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”) (T61);
·on 12 January 2009 an x-ray showed “marked medial joint space narrowing” in the applicant’s left knee (T75);
·on 12 January 2009 Dr Forward reported that that x-ray “shows severe medial compartment osteoarthritis with moderate patellofemoral wear” in the applicant’s left knee (T76);
·on 11 July 2012 Dr Slinger reported that he had assessed the applicant’s “whole person impairment” in respect of his left knee condition, namely, “torn medial meniscus with secondary osteoarthritis”, as 10% under Table 9.2 in the Guide (T89), and on 10 December 2013 Dr Slinger reported that his assessment of the applicant’s “whole person impairment” in respect of his left knee osteoarthritis condition was 10% under Table 9.2, and 20% under Table 9.5, in the Guide (Exhibit A1);
·on 21 February 2014 Dr Hardcastle reported that his assessment of the applicant’s “whole person impairment” in respect of his left knee condition was 20% under Table 9.5 in the Guide (Exhibit R2);
·on 19 December 2014 an x-ray of the applicant’s left knee demonstrated “near complete joint space loss of the medial compartment” (Exhibit A2).
On the basis of the medical evidence referred to in paragraphs 64 and 65 above, the Tribunal is satisfied that the permanent impairment of the applicant’s left knee as at 30 November 1988 has deteriorated since that date. Having regard to Dr Hardcastle’s evidence (see paragraph 44 above), and in the absence of a contrary expert medical opinion, the Tribunal is not satisfied that that deterioration represents other than a gradual worsening of the permanent impairment of the applicant’s left knee by reason of the natural progression of the degenerative osteoarthritis in his left knee. Furthermore, the Tribunal is not satisfied that the permanent impairment of the applicant’s left knee as at 30 November 1988 has, since that date, deteriorated to such an extent that it is now “properly to be characterised as a further or different impairment to that which existed” as at 1 December 1988: West (above).
The Tribunal concludes, therefore, that the permanent impairment suffered by the applicant as a result of the “osteoarthritis of left knee” injury is not different from the permanent impairment suffered by him as a result of the “torn left medial meniscus” injury, and that neither, nor both, of those injuries has, or have, resulted in a further or different permanent impairment in the period from 1 December 1988 to date.
Is the applicant entitled to compensation under s 24 of the SRC Act in respect of the permanent impairment resulting from his compensable left knee injuries?
The Tribunal has found that the permanent impairment resulting from the applicant’s compensable left knee injuries, namely, “torn left medial meniscus” and “osteoarthritis of left knee”, occurred prior to 1 December 1988 (the date when the SRC Act effectively came into force) – more specifically, in or about May 1978 – and that no further or different permanent impairment has resulted from either or both of those injuries in the period from 1 December 1988 to date.
It follows from that finding that the applicant’s entitlement to compensation in respect of that permanent impairment fell to be determined under the 1971 Act.
The applicant’s entitlement to permanent impairment compensation under the 1971 Act
The relevant provision of the 1971 Act was s 39(11) which provided for the payment of compensation “in respect of an injury resulting in partial loss [defined in s 39(15) to mean ‘a permanent loss’] by an employee of the efficient use of a part of the body specified in sub-section (4)”, including (relevantly) “leg at or above knee”.
As previously mentioned (see paragraphs 13 and 18 above):
·on 26 October 1982 a determination was made that the applicant was entitled to compensation of a lump sum under s 39 of the 1971 Act in respect of his “torn left medial meniscus” injury on the basis that that injury had resulted in 15% loss of efficient use of the left leg at or above the knee;
·on 28 October 1987 a determination was made that the applicant was entitled to further compensation of a lump sum under s 39 of the 1971 Act in respect of his “torn left medial meniscus” injury on the basis that that injury had resulted in 17½% loss of efficient use of the left leg at or above the knee.
The Tribunal notes, furthermore, that, on 7 September 2000, a determination was made that the applicant was entitled to further lump sum compensation for permanent impairment and non-economic loss under, respectively, s 24 and s 27 of the SRC Act in respect of his “torn left medial meniscus” injury on the basis that that injury had resulted in 20% loss of efficient use of the left leg. That determination was affirmed by a “reviewable decision” made under s 62 of the SRC Act on 8 February 2001 (see paragraph 25 above).
The applicant is not entitled to permanent impairment compensation under the SRC Act
Pursuant to s 124(3)(a) of the SRC Act, a person is not entitled to compensation under s 24 of that Act in respect of a permanent impairment that occurred before 1 December 1988 if (relevantly) “the person received compensation of a lump sum in respect of that impairment … under … the 1971 Act”.
The Tribunal is satisfied, and finds, that the applicant, pursuant to the determinations referred to in paragraph 71 above, received compensation of a lump sum in respect of a permanent impairment, namely, “loss of efficient use of the left leg at or above the knee”, resulting from his “torn left medial meniscus” injury under the 1971 Act.
It follows, pursuant to s 124(3)(a) of the SRC Act, that the applicant is not entitled to compensation under s 24 of the SRC Act in respect of that permanent impairment (which, the Tribunal has found, occurred before 1 December 1988), and the Tribunal so determines.
It also follows, in the Tribunal’s opinion, that the determination of 7 September 2000 and the reviewable decision of 8 February 2001 made under the SRC Act (see paragraphs 25 and 71 above) were wrongly made.
As regards the permanent impairment resulting from the applicant’s compensable “osteoarthritis of left knee” injury (which permanent impairment, the Tribunal has found, occurred before 1 December 1988), the Tribunal notes that it was not until 22 October 2012 that a determination was made that the “osteoarthritis of left knee” injury was a compensable injury (see paragraph 28 above). Accordingly, no determination regarding the applicant’s entitlement to compensation has been made under s 39 of the 1971 Act in respect of that injury, and the applicant has not received compensation of a lump sum in respect of permanent impairment resulting specifically from that injury under the 1971 Act, within the meaning of s 124(3)(a) of the SRC Act.
The Tribunal, however, has found that the permanent impairment resulting from the “osteoarthritis of left knee” injury is of the same nature as the permanent impairment which has resulted from the “torn left medial meniscus” injury and is not a separate and distinct permanent impairment. That being the case, and given that compensation has been paid to the applicant pursuant to s 39(11) of the 1971 Act in respect of the partial loss of efficient use of the left leg at the knee resulting from the “torn left medial meniscus” injury, no additional compensation would be payable to the applicant under s 39(11) in respect of the same partial loss of efficient use of the left leg at the knee resulting from the “osteoarthritis of left knee” injury.
It follows, pursuant to s 124(3)(b) of the SRC Act, that the applicant is not entitled to compensation under s 24 of the SRC Act in respect of permanent impairment resulting from his “osteoarthritis of left knee” injury, and the Tribunal so determines.
Conclusion
The Tribunal concludes, therefore, that the respondent is not liable to pay to the applicant compensation for permanent impairment resulting from the “torn left medial meniscus” injury and the “osteoarthritis of left knee” injury under s 24 of the SRC Act and compensation for non-economic loss under s 27 of the SRC Act.
The Tribunal notes, furthermore, that the applicant has been paid permanent impairment compensation in respect of his “torn left medial meniscus” injury on the basis of a 20% “whole person impairment”, under Table 9.5 in the Guide, resulting from that injury. That assessment of his “whole person impairment” resulting from that injury is supported by Dr Bowles, Dr Slinger and Dr Hardcastle.
Even if (contrary to the Tribunal’s opinion) the applicant was eligible to claim permanent impairment compensation under s 24 of the SRC Act in respect of his “torn left medial meniscus” and “osteoarthritis of left knee” injuries, the Tribunal notes that he has not provided any medical evidence on the basis of which it could properly be determined that he has a “whole person impairment” resulting from those injuries of greater than 20% (for which he has already been paid compensation).
Decision
For the above reasons:
Application 2013/4272
·the decision under review is affirmed;
Application 2014/4336
·the decision under review is affirmed.
I certify that the preceding 82 (eighty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop. ....................[sgd D Brodie]..........................................
Administrative Assistant
Dated 26 February 2015
Dates of hearing 14 July 2014, 2 February 2015 Applicant In person Counsel for the Respondent Mr B Dube Solicitors for the Respondent Australian Government Solicitor
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