Wade and Military Rehabilitation and Compensation Commission

[2007] AATA 1182

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1182

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600451

VETERANS’ APPEALS DIVISION		)
Re		JEFFERY WADE

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member P McDermott
Dr M Denovan, Member

Date28 March 2007  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..........[Sgd]...........

P McDermott

SENIOR MEMBER

CATCHWORDS

COMPENSATION – left knee injury – injury sustained while in the Royal Australian Navy – whether applicant is entitled to receive payments for non-economic loss – applicant’s entitlement to be assessed under the 1930 Act – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 27, 124

REASONS FOR DECISION

28 March 2007  Senior Member P McDermott
Dr M Denovan, Member    

Introduction

1.      Mr Jeffrey Wade was an employee of the Royal Australian Navy from 8 April 1960 until 11 April 1962. He complained of a left knee injury that he sustained whilst playing service sport in 1961. We have to decide whether he is entitled to receive non economic loss payment in respect of this condition.

The Factual Background

2.      Mr Wade is 65 years old. In 1961 Mr Wade sustained a left knee injury while playing a service rugby union game against the New South Wales Police Force. He describes the incident in his statement dated 4 February 2007 (exhibit A1) as follows:

“…when scoring a try I was mindful of defending players about to tackle me that I dived not realizing that the goal post was so close and I came into contact with the right goal post with my left knee…”

3.      He was assisted off the field by medical staff and ice was applied to his knee. Mr Wade saw a medical attendant on his ship the next morning who also recommended applying ice to the injury. He describes that from time to time his left knee would get sore or tender.

4.      After discharge from the Royal Australian Navy Mr Wade worked at various organisations and went into his own window manufacturing business until 1981. Since 1981 he has been on disability pension.

5.      On 29 June 2000 Mr Wade submitted a claim for rehabilitation and compensation for a degenerative left knee that occurred in 1961. This was disallowed by the respondent on 21 August 2000.

6. The applicant subsequently applied for reconsideration of this determination on 10 January 2006. On 21 February 2006 the respondent revoked the determination and accepted liability in respect of a ‘swollen left knee’. This liability was extended on 19 May 2006 to include ‘osteoarthritis of the left knee’. In relation to permanent impairment the delegate found that the applicant had suffered a 30% loss of efficient use of the left knee due to the accepted condition. The date that the injury became permanent was determined to be 1961, and accordingly under section 124 of the Safety, Rehabilitation and Compensation Act 1988 (“SRCA”) the applicant’s entitlement under section 24 of the SRCA was to be assessed under the 1930 Act.

7. In relation to compensation for non-economic loss the delegate determined that because the applicant had not lodged a claim prior to 7 December 2000 then pursuant to section 27(3) of the SRCA he was not entitled to a section 27 payment.

Application Before the Tribunal

8.      On 9 June 2006 the applicant requested a reconsideration of the determination dated 19 May 2006. On 15 June 2006 the decision was affirmed. Mr Wade has sought a review of this decision by this Tribunal.

Issues For Determination

9. We have to consider whether Mr Jackson is entitled to non-economic loss payments under the SRCA in respect of the left knee condition.

The Medical Reports

10.     In an outpatient record for HMAS Penguin, x-ray report of both knees on 3 February 1962 reports ‘old injury of left knee. Now has excess fluid and is tender over medial joint line’. The next entry dated 10 April 1962 states ‘no osseous lesion detected in right or left knees’.

11.     In an outpatient reference sheet record dated 4 February 1962 there is an entry that the applicant injured his left knee whilst playing football for HMAS Melbourne last June. It was noted that ‘intermittently it becomes painful, and during the last few weeks…it has become so painful he has been unable to double (?)’. On examination the knee was noted to be slightly swollen and there was excess fluid in the joint. Mr Wade was observed to be tender over the medial joint line.

12.     On 4 April 1962 the applicant was complaining of pain intermittently in the left knee since July 1961. “On examination walks, trots, squats well. Full flexion and extension for both knees. Left thigh is a quarter of an inch less in circumference than the right. Well musculature”.

13.     On 10 July 2000 the Redcliffe Caboolture Health Service District medical records recorded the applicant complained of ‘left knee pain. Injury from the 1960’s knee gave way. Continued left knee problems since then’.

14.     In an x-ray report dated 10 July 2000 Dr Mark Coppersmith reported that there is evidence of ‘mild to moderate osteoarthritis affecting all compartments as indicated by mild joint space narrowing and osteophyte formation’ in the applicant’s left knee. Also noted was a small, severe degenerative change at the proximal tibiofibular joint.

15.     It is reported the applicant was admitted on 15 December 2000 at the Caboolture hospital for a left knee arthroscopy.

16.     On 15 December 2000 the applicant underwent a left knee arthroscopy. The left knee was ‘collapsing and locking since a rugby injury in 1991’.

17.     On 12 April 2001 general practitioner Dr Trevor Vincent wrote to Dr Michael Flemming and noted the applicant was having injections up to three times a week due to chronic back pain and severe left knee pain following the arthroscopy. He said the applicant reports that his knee frequently locks or gives way and that he is having frequent falls. He complains bitterly about the frequency and severity of pain.

18.     On 9 July 2001 in an orthopaedic clinic ‘ongoing left knee pain’ was noted.

19.     On 14 December 2001 Dr M Flemming wrote to Dr Lions at Ningi medical centre and recorded that the applicant had been seeing him over the last few years regarding bi-lateral knee pain with the left worse than the right.

20.     On 15 February 2006 Dr Dianne Monsour, Department Veterans’ Affairs interpreted the medical records back in 1962 and concluded that from the information available it was impossible to determine whether Mr Wade had a medical collateral ligament sprain or a medical meniscus injury to the left knee.

21.     On 27 February 2006 Dr A Powell confirmed the applicant had ongoing chronic pain, instability and swelling of his left knee caused by degenerative disease, which was the result of an injury in June 1961 whilst he was serving in the Navy.

22.     On 10 April 2006 orthopaedic surgeon Dr David Walters related the applicant’s description of how his injury had occurred in June 1961. He noted that the knee became swollen after it struck a goal post and ever since that time he has had intermittent pain, swelling and giving way.

23.     Dr Walters said that the applicant thinks the giving way became the most important symptom from about 1980 onwards. He noted the applicant has used a walking stick since 1990 to give support to the left knee and to prevent falls. Dr Walters considered the condition became permanent in June 1961.

Evidence of Applicant

24.     Mr Wade gave evidence at the hearing. He said he did not bother claiming compensation for his left knee problem until 2000 because it did not overly worry him until that time. He acknowledged his knee had always been niggly, however he continued playing lawn bowls until 1999. He said that he agreed with the contents of Dr Walters’ reports with the exception of the date of onset of his left knee condition.

25.     When asked to comment on the Redcliffe Caboolture hospital notes he said he ‘probably should have used better English’. He said he could not be held responsible for what doctors write in their notes, however he did not believe the medical records accurately reflected the problem he was having on the occasions he presented. Mr Wade insisted he had occasional pain only since 1961 and he dismissed the pain as ‘an old football injury’. He said that he was a rugby referee after 1961 and contended that had his knee been an ongoing problem since 1961 such a pursuit would not have been possible.

26.     Mr Wade agreed with Mr Clark, for the respondent, that the entry dated 5 February 2001 which noted his left knee was ‘collapsing and locking since a rugby injury in 1991’ was most likely an error and should have read 1961.

27.     Mr Wade said that he was worried about his left knee that is why he went to doctors, however they did nothing until 1999. He bought the walking stick in 1990 because it was a crutch to lean on.

28.     Mr Wade contends that his knee condition did not become permanent until 1999. He argues that he would not have been able to pursue activities such as bowls and refereeing if his condition became permanent prior to 1999. He also points to the fact that he did not receive specialist treatment prior to this time.

Medical Witness

29.     The only medical witness was Dr David Walters, an orthopaedic surgeon. His reports are found in the T documents (T16 & T18). Two further reports were also admitted in evidence:

·report dated 24 November 2006 (exhibit R1);

·report dated 3 January 2007 (exhibit R2).

30.     In his report dated 3 January 2007 Dr Walters stated that Mr Wade’s knee was damaged and became symptomatic in 1961 because of damage to the surface of the joint. Dr Walters said that this is the earliest state of osteoarthritis, and the condition would have become progressively worse over the elapsed time since, as is the nature of osteoarthritis. Dr Walters said that Mr Wade’s current state is due to a gradual deterioration over the years of the surface of the left knee joint. There has been no further injury or sudden development. Dr Walters opined there has been no change in the underlying pathophysiological condition, but the current condition is a worsening or continued deterioration of the existing condition.

31.     Dr Walters told the Tribunal that whilst the left knee injury in 1961 was recorded as a soft tissue injury, it was more significant than that. He said that he realised that the left knee condition did not trouble Mr Wade as much initially, however he recalled that Mr Wade reported the knee giving way since 1980’s and giving him intermittent trouble since the time of the injury.

32.     Dr Walters said that Mr Wade received significant damage at the time of injury and his knee gradually just got worse. He said that the ‘die was casted in 1961, and that the progress from 1961 onwards and events of 2000 were inevitable. Dr Walters said that there were no factors that made the progress of the applicant’s knee condition worse. He opined that this was totally consistent with Mr Wade having continued to referee football until 1981and playing lawn bowls until late 1999.

Findings of Tribunal

33.     It is not in dispute that Mr Wade suffers a 30% loss of efficient use of his left leg above the knee due to his accepted condition.

34. Section 124 of the SRCA requires that entitlement to lump sum compensation under section 24 be assessed according to the Act in force at the time the “impairment” became “permanent”.

35.     The term ‘impairment” is defined as “the loss, the loss of use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function”. The term “permanent” is defined as 'likely to continue indefinitely”.

36.     The incident which caused Mr Wade’s injury occurred in June 1961. Dr Walters has given evidence that at the time of the injury in 1961 Mr Wade sustained damage to the surface of his left knee joint, and that was the commencement of osteoarthritis.

37.     In both his oral and written evidence Dr Walters has indicated that Mr Wade’s condition continued indefinitely since 1961. Dr Walters clearly indicated that in 1961 the pathological process that caused Mr Wade’s condition commenced and continued a predictable and inevitable course since that time.

38.     Dr Walter’s opinion is consistent with the medical records detailed above which indicate that since 1962 Mr Wade has been reporting ongoing symptoms in his left knee to various medical practitioners, which he repeatedly states commenced in 1961 following the football injury.

39.      That Mr Wade reports needing a walking stick due to his left knee condition since 1990 is consistent with Dr Walters evidence that osteoarthritis is a progressive condition that would have worsening over time, and is inconsistent with Mr Wade’s contention that his knee did not bother him until 1999.  

40.     We considered it significant that in his closing statement Mr Wade said that he felt the amount of compensation payment he had received was inadequate compensation as it amounted to ‘no more than the cost of a cup of coffee’ for each day that he has been impaired due to his left knee condition. Mr Wade based his own calculations on the number of days since 1961, not 1999.

41.     We consider that the reports of Dr Walters are comprehensive. They demonstrate a careful evaluation of the condition of Mr Wade. There is no medical evidence that contradicts the opinion of Dr Walters.

42.     We accept therefore that Mr Wade has suffered from impairment as defined in the Act since 1961, and that impairment has been permanent, as defined in the Act, since that time.

43. Section 27(3) of the SRCA Act provides that in relation to permanent impairment commencing before 1 December 1988, unless an application for compensation for non-economic loss in relation to that impairment has been made before the 7 December 2000, no payment for non-economic loss can be made.

44.     As Mr Wade’s application for lump sum payment was received on 1 March 2006 he is not entitled to a non-economic loss payment.

Decision

45.     We affirm the decisions under review.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott and Dr M Denovan, Member.

Signed:  Stephen O’Grady             

Legal Research Officer

Date/s of Hearing  13 and 14 November 2006
Date of Decision  28 March 2007
The applicant represented himself at the hearing.
Counsel for the Respondent     Mr C Clark, of Counsel
Solicitor for the Respondent     Australian Government Solicitor