Thompson and Australian Postal Corporation [2000] AATA 25 (24 January 2000)

Last Updated: 25 January 2000

DECISION AND REASONS FOR DECISION [2000] AATA 25

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/176

GENERAL ADMINISTRATIVE DIVISION )

Re Paul THOMPSON

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Dr J D Campbell, Member

Date 24 January 2000

Place Sydney

Decision The Tribunal affirms the decision under review.

..............................................

M T Lewis

Presiding Member

CATCHWORDS

COMPENSATION - liability - pre-existing condition of osteoarthritis - whether an injury or aggravation of pre-existing disease - whether injury or aggravation of disease is work-related

Safety, Rehabilitation and Compensation Act 1988 - ss 4, 14, 7(7)

Health Insurance Commission v Van Reesch and Anor (1996) 45 ALD 302

REASONS FOR DECISION

24 January 2000 Mrs M T Lewis, Senior Member Dr J D Campbell, Member

1. This is an application by Paul Thompson ("the Applicant") for review of a reconsideration decision of a Delegate of the Australian Postal Corporation ("the Respondent") dated 19 December 1997 (T20). That decision affirmed an earlier determination of a delegate of the Respondent dated 6 November 1997 (T18), which found that there was no liability to pay compensation to the Applicant in respect of his right knee condition.

2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. The Applicant and his wife, Kerry Thompson, both gave oral evidence at the hearing. Dr Sullivan, called by the Applicant, gave evidence by conference telephone. Dr Lyons, called by the Respondent, gave oral evidence.

The following documentary evidence was tendered on behalf of the Applicant -

* Reports of Dr J A Sullivan, orthopaedic surgeon, dated 10 July 1999 (exhibit A) and 7 April 1998 (exhibit B)

* Report of Dr T H J Yew, general practitioner, dated 25 March 1998 (exhibit C)

The following documents were tendered on behalf of the Respondent -

* Clinical notes of Macquarie Health Centre dated 13 July 1997 (exhibit 1)

* Reports of Dr W J Lyons, orthopaedic surgeon, dated 29 June 1998 (exhibit 2), and 10 August 1998 and 26 August 1998 (exhibit 4)

* Knee arthroscopy sheet from clinical notes of Dr Sullivan (exhibit 3).

background

3. The Applicant was born on 7 January 1946. He joined the Post Master General's Department (PMG) as it then was, as a labourer and was later trained as a linesman - a position he held for over 21 years. In 1992 the Applicant left the PMG and became a full time carer for his children after the death of his wife. He recommenced employment with the Respondent in January 1995 as a postal transport officer with the North Western Mail Centre and has been employed there ever since.

4. On 23 May 1997, whilst climbing down from a truck during the course of his duties, the Applicant claims to have slipped and as a consequence experienced pain in his right knee. The Applicant did not lose any time from work at that stage. However his condition worsened in mid-July. After seeking medical treatment, the Applicant lodged an incident report on 21 August 1997 (T3) and on 28 August 1997 he lodged a claim for compensation with respect to incapacity for work and medical expenses (T4). The Applicant did not work for the period 14 July 1997 to 15 December 1997. He resumed work at the end of that period and has been performing his normal duties ever since.

5. In the event of a finding of liability, the Respondent asked the Tribunal to consider the operation of section 7(7) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). That section provides for preclusion of compensation payments where an employee has made a wilful and false statement in relation to a disease or aggravation of a disease, the subject of the claim for compensation.

legislation

6. Section 14(1) of the Act provides that the Respondent is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

7. The following relevant definitions appear in section 4(1) of the Act:

"4(1) In this Act, unless the contrary intention appears:

"aggravation" includes acceleration or recurrence;

"disease" means:

a) any ailment suffered by an employee; or

b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed Corporation;

"injury" means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;

8. Section 7(7) of the Act deals with wilful and false representations made by an employee and provides:

s7(7) A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed Corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

applicant's evidence

9. The Applicant said that on Friday, 23 May 1997, whilst alighting from the truck that he had been parking, his foot slipped off the last step and he hit the ground, twisting at the same time. He said that he felt a lot of pain in his right knee at the time. There was no witness to the incident, but the Applicant's supervisor, Mr Nelson, noticed that he was limping and he advised Mr Nelson of the incident. Mr Nelson later completed a witness statement (T3). The Applicant was then driven home by his wife and he continued to feel pain when he arrived home. He did not see a doctor the next day and returned to work the Monday following the weekend. The Applicant said that he continued to feel pain above his kneecap but he did not see a doctor during the period 25 May 1997 to 13 July 1997 because he thought that his knee would improve. He continued to work. He did not report the incident to the Respondent in writing at that stage. He felt the pain when he bent his knee, and at no time did the pain go away.

10. The Applicant's condition remained much the same until 13 July 1997 when he spent the day in Leura with his wife. On that day he bent his knee as he was getting out of his car and he felt the same pain that he always felt, but it was stronger. From that time his knee was sore and it began to swell. There was no other incident that the Applicant could recall that may have contributed to his pain. The Applicant and his wife spent the evening in the Blue Mountains and returned home earlier than planned on the following day because he had experienced a lot of pain the previous night. He attended the medical centre at Baulkham Hills on 14 July 1997. He could not recall the name of the doctor that he saw. However on 15 July 1997 he sought further medical treatment from another doctor who prescribed Panadol, but that did not relieve his pain. Blood tests on that occasion were negative for gout.

11. Some time later the Applicant saw Dr Yew, his treating doctor, who advised him to rest. Despite this, the pain in his knee did not change. He continued to see Dr Yew who eventually referred him to Dr Sullivan, orthopaedist. Dr Sullivan certified him unfit for work. On his second visit, Dr Sullivan recommended arthroscopic surgery for the following day. The Applicant underwent surgery on 8 August 1997. As a consequence of surgery the Applicant developed a staphylococcal infection, the effects of which caused him to remain off work until 15 December 1997.

12. The Applicant said that he told Dr Sullivan about the 23 May incident at work and as a result, proceeded to make a claim for weekly payments of compensation. However, the Respondent declined to make such payments (T18). The Applicant decided to return to work on 15 December 1997 and performed his usual work although he said that his mobility was "very limited". He walked with a limp and felt pain every time he put weight on his right knee. He said that he continues to feel pain in his right knee and he still receives treatment from Dr Yew.

13. The Applicant's evidence was that Dr Yew has treated him for some years for arthritis, and in cross-examination he revealed that this included arthritis in his knees. He did not dispute that his arthritis dated back to 1984 and agreed that he had received treatment for his knees since that time. The Applicant also agreed that it was arthritis in his knees rather than in some other part of his body that first caused him to seek treatment. He said that his arthritis caused mild pain in the winter months, for which he took Naprosyn, but he later conceded that he "probably" also took Naprosyn at other times of the year. He said that he did not suffer pain when bending his knees but he took Naprosyn for stiffness and soreness, which would occur randomly but particularly in winter. The Applicant confirmed that he lost no time from work because of arthritis but he continued nevertheless to see his doctor and receive prescriptions of Naprosyn. He agreed that throughout the period 1984 to 1997 he was aware of his arthritic condition.

14. The Applicant recalled Dr Lyons inquiring whether he had any symptoms in his knee, to which he replied "no". However, he did recall discussing the fact that he had arthritis in his knees and in his hands. He regarded the condition for which he saw Dr Lyons as being different from his symptoms of arthritis, which is why he denied ever having any symptoms. He did not consider his arthritis to be severe because it did not impair his lifestyle. The Applicant conceded that while on walks with the Scouts and whilst at work he experienced pain but he said that it did not prevent him from doing what he would normally do.

15. The Applicant was questioned about the completion of the medical questionnaire for superannuation purposes relating to his re-employment with the Respondent in 1994 (T7). In relation to the question "are you now suffering from, or have you ever suffered from or received treatment for any of the following conditions ...38.Arthritis ...?" the Applicant answered "no". He said that he knew that he had arthritis but he did not believe that he suffered from it. His understanding of the word suffer was that one needed to feel pain. He maintained that his answer was correct in the context of his understanding of the word suffer. In relation to question 63, "are you taking any form of medication?" the Applicant indicated that at the time he was not taking medication, so "no" in that instance was also an accurate answer. He denied any assertion that he had made a false statement. He also said that he did not answer "yes" to the question about arthritis because he thought, "...if I'd put "yes" there I wouldn't have worked for Australia Post". However he could not recall whether that was a motivating factor at the time, or just an opinion he formed during the hearing. The Applicant also said that he did not believe he had a serious arthritis problem and that it would not have prevented him from performing his job nor does it prevent him from doing his work now. He conceded that he now realises that his answer in the questionnaire should have been "yes".

16. The Applicant confirmed that he was aware of the requirements to make written incident and accident reports. He said that he did not report the incident on 23 May 1997 because he thought it would improve and because he found the paperwork daunting and the questions confusing.

17. After the incident on 23 May and for the following two months, the Applicant continued to perform his duties, which included driving a vehicle and lifting items of maximum weight 16 kilos on and off the van. He said that he was free of pain apart from when he bent his knee. He distinguished the pain he felt in his knee after the incident as being more marked when compared with the occasional pain he suffered during the winter in relation to his arthritis. He explained that he considered arthritis to be a discomfort rather than pain, unlike the pain in his kneecap and a "pulling" sensation when he bent his knee.

18. The Applicant agreed that his condition changed markedly after the incident on 12 July in the Blue Mountains. He said that while it was the same sort of pain it was stronger and was associated with swelling. When he saw a doctor after the incident on 12 July he did not mention the work incident but he did mention that he had pain when he bent his knee. He conceded that the incident in July lifted his symptoms to an entirely different plane. The Applicant agreed that he did not realise that when he saw the first two doctors after the 12 July incident that his condition could be related to the incident in May. He only discussed the event on 12 July, that being the most recent incident. It was not until he saw Dr Sullivan on 4 August 1997 that his belief changed.

19. The Applicant was questioned about his consultation with Dr Sullivan. He agreed that he provided a history and told Dr Sullivan that the only aggravating episode was when he climbed out of the car and bent his knee in July. He also told Dr Sullivan that he had suffered from arthritis for a number of years. He said that he did not mention the incident of 23 May because he did not believe it was important to his condition as it then was. The Applicant said that Dr Sullivan told him that his injury pre-dated July 1997, which is why he looked back to consider any other incident that might have contributed. When he mentioned the work incident he claims that Dr Sullivan said that it would fit into the time frame. On that basis the Applicant concluded that his condition came about as a result of the incident on 23 May. After his arthroscopy he lodged his claim for compensation (T4).

20. When completing the claim form, the Applicant did not declare that he had a similar sort of injury. The Applicant maintained that his arthritis was not similar to his work injury. When asked why he did not mention the incident in the Blue Mountains on his claim form, he said that he did not consider that to be an incident, and he did not know where to include it in the form.

evidence of kerry thompson

21. The Applicant's wife, Kerry Thompson, was taken to the events of 23 May 1997. Mrs Thompson recalled that when she called to collect her husband when his shift finished he told her that he had slipped off a truck and twisted his leg as he fell. She said that he limped towards the car. She observed that the Applicant "had a sore right leg" between the period 23 May to July 1997. She stated that he told her that his leg was sore and that he had a pulling feeling across the top when he bent his knee.

22. In relation to the incident in the Blue Mountains on 12 July 1997, Mrs Thompson said that after the Applicant stepped out of the car he told her that he had a pulling feeling across his knee. After walking around for a period he complained that his leg hurt more as time went on and it also started to swell. They returned to Sydney the next day.

23. Mrs Thompson confirmed that she was aware that the Applicant had suffered from arthritis. She said that he did not complain of pain from arthritis but if he did not take Naprosyn he would complain of stiffness. In cross-examination, Mrs Thompson was unable to recall the state of the Applicant's knee condition over the four days following the injury on 23 May. However she acknowledged that she had discussed the incident with her husband several times over the last couple of years.

24. Mrs Thompson accompanied her husband to all of his appointments with Dr Sullivan and said "it all fell into place" after the events were discussed with him. She confirmed that the Applicant did not mention the May incident to Dr Sullivan at the initial appointment, and she thought that he "probably" mentioned it to him after the operation. Mrs Thompson explained that at the second visit, having already aspirated the Applicant's knee, Dr Sullivan explained that the "fluid tests" revealed an old injury. She said that her husband then asked the doctor if it was possible that the condition could have occurred as a result of an injury seven weeks previously.

25. Mrs Thompson said that the Applicant took one Naprosyn tablet every day. She knew this because she administered his medication. Whilst she acknowledged that the Applicant felt more stiffness in his fingers in Winter than in Summer, she noticed no difference in the amount of medication he took during the year.

medical evidence

26. Dr Sullivan, the Applicant's treating orthopaedic surgeon, provided a number of reports and gave telephone evidence to the Tribunal. He first saw the Applicant on 4 August 1997 after referral by Dr Yew. On 20 October 1997, Dr Sullivan wrote a letter in response to questions put to him by the Respondent (T14). Dr Sullivan reported that the Applicant recalled injuring his knee on 23 May 1997, that he did not have symptoms of pain in the knee with twisting and catching movements, but the major flaring symptoms were toward July when the knee became swollen. Dr Sullivan opined that the injury caused a significant aggravation and deterioration of his osteoarthritis.

27. In his report dated 7 April 1998 (exhibit B), Dr Sullivan again noted the 23 May incident and stated that the Applicant twisted and felt a sudden pain in the knee. In his oral evidence Dr Sullivan explained that the Applicant had not provided this history at the initial appointment, and that the detail of the May incident came about after he questioned the Applicant as to any specific event that may have occurred that could have caused the symptoms.

28. Dr Sullivan confirmed that the Applicant had informed him of his arthritis condition but had told him that it had not been particularly troublesome. X-rays showed early degenerative changes. Dr Sullivan said that initially he thought that the Applicant had suffered either a bucket handle tear of his medial meniscus or an acute severe synovitis, perhaps secondary to gout. However, ultimately he considered that it was not a bucket handle tear, which occurs with acute injury, but a variation of a "parrot beak tear". An analysis of synovial fluid suggested that the cause of the swelling in the knee was traumatic rather than an inflammatory condition. Dr Sullivan considered that the Applicant's symptoms suggested either an aggravation of a pre-existing condition or a new distinct injury.

29. On 8 August 1997 arthroscopy was performed which revealed gross synovitis and degenerative changes throughout the knee. The arthroscopy confirmed that the Applicant had a torn meniscus and underlying pre-existing osteoarthritis. Dr Sullivan considered that it was not uncommon for a person suffering from osteoarthritis to tear a meniscus and not be aware of the specific time when it occurred because only quite minimal trauma is all that is required and the symptoms then become worse after several days.

30. On 11 August 1997 the Applicant presented himself to the Hills Private Hospital because of pain and swelling. The Applicant had developed a post-operative sepsis. On 13 August 1997 the Applicant underwent a repeat arthroscopy and he was treated with antibiotics. By 28 August 1997 a further arthroscopy was required in order to improve his range of movement and to wash out the joint. Following this, the Applicant's knee gradually settled, but he continued to have ongoing pain and stiffness.

31. The Applicant continued to see Dr Sullivan for review and continued with hydrotherapy and physiotherapy. Gradual improvement was noted. By 20 October 1997 the Applicant could walk unaided over short distances but he was still unfit for work. On 12 December 1997 Dr Sullivan considered that the Applicant was fit for work on a modified duties programme. Based on the history provided to him by the Applicant, Dr Sullivan attributed the Applicant's knee injury to his employment and certified him unfit for duties from 13 July 1997 to 15 December 1997. Dr Sullivan told the Tribunal that he had no reason to disbelieve the Applicant's version of events and that he believed the Applicant contributed "quite admirably" to trying to get back to work given the level of his disability. Dr Sullivan noted that the complication suffered by the Applicant due to the infection contributed to his protracted recovery.

32. In his report dated 10 July 1999 (exhibit A), Dr Sullivan confirmed that the Applicant had pre-existing osteoarthritis when he presented on 4 August 1997. He also noted that the Applicant had not suffered severe episodes of pain, swelling and locking, and he went on to describe an acute injury when the Applicant got out of his car. Dr Sullivan stated that the post-operative sepsis led to further deterioration of the articular cartilage in the medial compartment, and caused the degenerative condition in the knee to accelerate. He opined that the injury described as having occurred in May 1997 caused a significant aggravation of the pre-existing degenerative changes in the knee, which were compounded by the effects of the post-operative sepsis.

33. In cross examination Dr Sullivan agreed that the condition of arthritis is a degenerative condition; and that the findings on arthroscopy revealed a level of degeneration that would have taken a number of years to develop. He confirmed that primary arthritis was not something that was caused by the incident on 23 May and that the arthroscopic result did not rule out an aggravation of the degenerative arthritis rather than representing a fresh trauma. Dr Sullivan agreed that the tear occurred in the degenerative part of the meniscus, which is more vulnerable to tearing with minor trauma. He said that the findings on arthroscopy suggested moderately advanced arthritis. Furthermore, the findings were consistent with a flare up of an arthritic condition or a flare up secondary to or of a traumatic episode. Dr Sullivan indicated that the findings at arthroscopy do not allow one to point to when a particular episode occurred.

34. Counsel for the Respondent questioned Dr Sullivan in relation to what the Applicant told him at the time of the initial consultation. Dr Sullivan revealed that the Applicant did not mention the 23 May incident but said that he had experienced pain and swelling over the last three weeks and that he mentioned possibly aggravating it when he climbed out of his car three weeks previously. Using his notes for reference, Dr Sullivan ascertained that it was toward the end of September that the Applicant recalled the earlier incident, which he dated as 23 May. He told Dr Sullivan that he did have symptoms and pain in the knee, but the major feeling was in July when the knee became more swollen. He later indicated that his knee swelled after something occurring in May and that he had intermittent swelling, with more marked swelling following the episode in July. Dr Sullivan conceded that if the Applicant had in fact told the Tribunal that his knee was not swollen from the episode in May that would tend to downgrade the significance of that event.

35. Dr Lyons examined the Applicant on 25 June 1998 at the request of the Respondent. He provided reports (exhibits 2 and 4) and gave oral evidence.

36. In his most recent report dated 26 August 1998 (exhibit 4), Dr Lyons considered that the Applicant's history suggested a soft tissue aggravation of his pre-existing degenerative change by an incident on 23 May 1997. He considered that the Applicant appeared to have recovered from this and from a further incident in July 1997 when further symptoms spontaneously developed, as they commonly do, in a knee showing degenerative changes.

37. In his report dated 10 August 1998 (exhibit 4), Dr Lyons made reference to Dr Sullivan's remarks that the Applicant had known for some years that he had arthritis and that on examination he denied ever having prior symptoms in his knees or any injury to the affected right knee. In his report of 29 June 1998 (exhibit 2) Dr Lyons indicated that the Applicant told him that he suffered from arthritis of the hands with no major symptoms, but there was no mention of his knees. The Applicant told Dr Lyons that after the 23 May incident, his knee settled completely except for what he described as a tight feeling above the knee cap when he bent his knee; his knee was not otherwise painful or swollen and he did not limp.

38. Dr Lyons concluded in his report dated 29 June 1998, that the Applicant undoubtedly had osteoarthritis in the right knee long before the May incident. He opined that some traumatic incident occurred to the Applicant's knee on 23 May 1997 and the type of injury may have caused a meniscal tear. He said that the May 1997 incident was the only one about which he had any knowledge. Dr Lyons also said that if the tear was traumatic, in the presence of reasonably major osteoarthritis, it would have been most unlikely to settle as completely as it did over the following two months.

39. After examining the arthroscopy sheet (exhibit 3), Dr Lyons concluded that the pathology in the Applicant's knee joint was primarily that of extensive degenerative osteoarthritis, and that the meniscal damage was degenerative in type, as opposed to a bucket handle or parrot beak tear. Further, he opined that these findings could be explained without any major incident or trauma. Dr Lyons was of the view that a chronic arthritic knee could have suffered some injury by twisting in May and settled itself and then developed spontaneously more significant symptoms later, causing swelling and apparent locking, which also paralleled the findings of Dr Sullivan. Dr Lyons believed that the septic arthritis coupled with the pre-existing osteoarthritis of the knee joint, are the overriding causes of the Applicant's current symptoms.

40. Upon learning that the Applicant had taken Naprosyn for a number of years, Dr Lyons said that it suggested that he must have had symptoms of some significance over that period. He also indicated that when the Applicant told him about the swelling of the knee that occurred in July, he did not point to any specific incident. After making him aware at the hearing of the incident on 12 July 1997, Dr Lyons was asked whether he still believed the incident in May was a contributing factor to the subsequent condition. He acknowledged that where a person has underlying osteoarthritis, a minor event could aggravate the knee. However, in light of the persistent swelling after the second incident, he considered that incident to be the precipitating injury and that the Applicant appeared to have largely recovered from the May incident. While Dr Lyons could not totally exclude the first incident as a minor contributing factor, he believed the second incident was far more obvious in its persistence of symptoms and particularly the persistent effusion. He noted that the Applicant was able to go back to work after the May incident and did not seek any medical attention, which suggests that the symptoms settled.

41. In cross-examination, Dr Lyons said that he had great difficulty accepting that the Applicant's arthritis was asymptomatic prior to the aggravation, given the pathology that was seen in the Applicant's knee joint. Furthermore, he considered that the symptoms experienced by the Applicant between May and July were due to the underlying osteoarthritis condition. He said that it is a product of an arthritic knee that it could typically illustrate symptoms without there being an injury. Dr Lyons did not dispute that there was some aggravation of underlying arthritis by an incident in May, but emphasised that any trouble had settled. In addition, he said that the arthroscopy taken two months later showed gross signs of degenerative change, inferring a long history which is consistent with the Applicant taking Naprosyn. In concluding, Dr Lyons stated that nothing could have happened in May to produce what Dr Sullivan found in the Applicant's knee some months later when arthroscoped.

applicant's submissions

42. In respect of the Applicant's credibility, the Tribunal's attention was directed to the fact that the Applicant has had over 30 years employment with the Commonwealth, he has taken minimal sick leave and this is his first claim for compensation. Following the incident on 23 May 1997 his motivation in returning to work was commendable. It was only when he became totally incapacitated for work in July that he took time off and even then it was only minimal. Furthermore, despite the issues before the Tribunal he is still employed by the Respondent and is under no threat of dismissal. Counsel pointed to the fact that it was never put to the Applicant that the incident on 23 May 1997 did not occur, and no evidence had been given to the contrary.

43. It was submitted that the Tribunal should accept the reports and evidence of Dr Sullivan, the Applicant's treating surgeon. Dr Sullivan, having operated on the Applicant's knee, was in the best position to draw conclusions about the Applicant's condition. Dr Sullivan was also supportive of the Applicant's contention that the injury occurred in May 1997. It was submitted that the Applicant had no reason to provide false evidence to his treating doctor.

44. It was submitted for the Applicant that Dr Lyons was a highly respected, albeit self-opinionated, orthopaedic surgeon, who has taken an opposite view to Dr Sullivan. The Tribunal was asked to weigh his evidence and cross-examination.

45. It was submitted that on the balance of probabilities the Applicant suffered an injury on 23 May 1997, and that injury was probably aggravated by something in July 1997. The injury in May was the aggravation to his pre-existing condition of osteoarthritis, and what occurred in July was either a further aggravation or just the normal progression of the injury.

46. Counsel referred to the incident report appearing at T3 and submitted that it was consistent with the Applicant's evidence to the Tribunal. Counsel also argued that the Respondent's forms have become too complex for the average worker to complete. In relation to the Applicant's interpretation of the word suffer, it was submitted that the Applicant felt that he was not suffering from arthritis. Because he did not think that his condition was a terrible complaint that would hinder him in carrying out his duties, he "smoothed over that" when completing the form and did not answer "yes". Counsel submitted that the Applicant should not be prevented from obtaining a favourable decision and asked the Tribunal not to place a great deal of weight on the form. Despite the criticisms made by the Respondent's counsel in respect of the manner in which the Applicant completed the forms, he is nothing but credible.

47. Finally, it was submitted for the Applicant that the Tribunal should find that the Applicant suffered the injury as described on 23 May 1997 and that the matter should be remitted to the Respondent for determination of the Applicant's entitlement to compensation payments.

respondent's submissions

48. Counsel for the Respondent submitted that the first issue for the Tribunal's consideration was whether the Applicant suffered from an injury within the definition of the Act. In particular, whether he suffered a frank trauma injury on 23 May 1997 resulting in the operation in August 1997, from which there was a complication of septic arthritis, which was the major contributing factor to his current condition. Alternatively the Tribunal must consider whether there was an aggravation of a disease on 23 May 1997 resulting in the operation. In the event that the Tribunal found that there was an aggravation of a disease, then the second issue would be whether the Applicant is precluded from receiving compensation by reason of section 7(7) of the Act.

49. It was submitted that the Applicant has a long-standing arthritic condition in his knees, particularly his right knee. It was conceded for the Respondent that an incident at work on 23 May 1997 might have occurred, but on any account it was a minor incident and there was no lasting effect. Therefore that incident was not a factor which ultimately led the Applicant to need an arthroscopy in August 1997. The Applicant did not complete an incident report at the time, nor he did he seek medical attention. He continued to work until July, and it was the Respondent's submission that the Applicant himself did not consider the injury to be significant. It was also submitted that the Applicant's suggestion that the incident report was too complex should not be taken seriously, as it is a straightforward one-page document.

50. It was submitted for the Respondent that there is clear evidence that on 12 July 1997 when the Applicant lifted his knee with a twisting motion to get out of his car, he felt a significant increase in his symptomatology for which he sought medical treatment the next day. It was the Respondent's submission that those circumstances are far more likely to have been the factor leading to his condition coupled with his underlying arthritis. The Tribunal was referred to the findings at arthroscopy. It was submitted that they displayed widespread and longstanding arthritis, thereby indicating that the Applicant had a significant arthritic condition.

51. Counsel referred to the Applicant's admission in cross-examination that he has had arthritis since 1984 and that he regularly takes Naprosyn to alleviate the condition. His wife gave evidence that she administers his medication on a daily basis, while the Applicant gave evidence that he took medication only in the winter. The Respondent submitted that this was one of a number of inconsistencies in the Applicant's evidence.

52. Counsel argued that the history the Applicant provided to Dr Lyons differed from the evidence given to the Tribunal. The Applicant's evidence to the Tribunal indicated a more severe degree of symptomatology than that reported to Dr Lyons. When the Applicant first saw doctors in July he gave no history of the May incident. It was submitted that descriptions given to doctors of when his pain began could be dated back to the incident in July rather than the May incident. In relation to the July incident, it was submitted that while what occurred does not sound dramatic, there is evidence that when a person suffers from significant osteoarthritis one does not need a particularly significant incident to aggravate the condition. The incident in July caused the Applicant to seek treatment the next day and cut short a holiday. It was the Respondent's contention that far more action was taken regarding the July incident than the May incident.

53. Counsel submitted that the Applicant gave a different account of his pain to Dr Sullivan from that given to the Tribunal. He initially told the Tribunal that he had always regarded the 23 May incident as the cause of his symptoms. However cross-examination revealed that this was not the case. The applicant had formed that belief after discussions with Dr Sullivan about the results of his findings.

54. In relation to the injury itself, the Respondent submitted that one could have a finding from pathology suggestive of trauma, and still have aggravation of osteoarthritis. It was submitted that there is long-standing degenerative arthritis in the Applicant's knee and the arthroscopy did not in fact reveal that there was a traumatic tear. While neither doctor could exclude the possibility that the 23 May incident occurred, this amounted only to possibilities rather than probabilities. The Respondent submitted that it was Dr Lyons' view, in light of all the history, that the incident that occurred in July was the more significant one. The Respondent submitted that Dr Sullivan arrived at a similar conclusion. Counsel highlighted Dr Sullivan's comment that "in the absence of swelling it downplays the significance of that first event."

55. In relation to section 7(7) of the Act, the Respondent submitted that the provision applies only in the case of a disease or an aggravation of a disease. It was submitted that there was no convincing evidence that a frank injury occurred on 23 May 1997. It was then submitted that an underlying disease exists, and if the Tribunal were to find that there was an aggravation on 23 May 1997, then section 7(7) would preclude the Applicant from receiving compensation. It was the Respondent's submission that the Applicant made a wilful and false statement in relation to question 38 of the Medical Report Form Questionnaire (T7). The Applicant answered "no" to the question of whether he suffered from arthritis or had medical treatment for that condition. The Respondent submitted that this was the wrong answer, even when putting aside the issue of semantics over the word suffered. Clearly the Applicant had sought medical treatment for his condition. When answering question 63: "Are you taking any form of medication?" the Applicant also answered "no". In cross-examination he said that was because he only took Naprosyn in the winter, but his wife contradicted that evidence. The Respondent then drew attention to the fact that the Applicant answered "yes" to a question asking if he had a condition requiring eyeglasses. The Respondent submitted that this indicated the Applicant was aware that he could answer "yes" to having a condition, without that condition being debilitating. The Respondent pointed to the Applicant's evidence where he revealed that he might have answered "no" because he was concerned that he may not have got the job. The Respondent submitted that the Applicant made false statements on the form, and that they were wilful.

56. The Respondent referred the Tribunal to the decision of the Federal Court in Health Insurance Commission v Van Reesch and Anor (1996) 45 ALD 302. The Respondent submitted that the present case could be distinguished from Van Reesch (supra) because in that case the Federal Court was dealing with an injury as opposed to a disease. The Respondent submitted that this case is essentially a disease claim, regarding an aggravation of a disease. In addition, the Respondent submitted that the aggravation occurred outside employment, on 12 July 1997.

consideration of evidence and findings of fact

57. The Tribunal must decide whether, on the balance of probabilities, the Applicant suffered either a new injury or an aggravation to a pre-existing condition of osteoarthritis, and if so, whether it came about as a result of his employment with the Respondent.

58. On the evidence, the Tribunal finds that on 23 May 1997, during the course of the Applicant's employment, he slipped while he climbed down from his truck and he felt pain in his right knee. The Respondent at no stage asserted that the incident did not occur nor was there any evidence to the contrary. The Tribunal accepts the Applicant's evidence insofar as how and when the incident occurred.

59. Having accepted that the incident occurred, the issue for the Tribunal is whether or not this incident contributed to the symptoms the Applicant suffered in his right knee which ultimately necessitated surgery, which in turn brought about further complications. There is no dispute that the Applicant was incapacitated for work during the period 14 July 1997 to 15 December 1997. The medical evidence provided by both Dr Lyons and Dr Sullivan supports the view that the staphylococcal infection contracted by the Applicant as a result of undergoing the surgery was the overriding cause of his incapacity for work, and the Tribunal so finds. The question for the Tribunal becomes one of liability only.

60. In examining the circumstances surrounding the May incident, it is relevant that firstly, the Applicant did not feel that his knee condition was significant enough to seek any medical attention during the period 23 May 1997 to 13 July 1997. The Tribunal finds on the Applicant's evidence that he was generally pain-free throughout this period apart from when he bent his right knee. He did not consider during the period May to July that the incident on 23 May 1997 was significant and he took no steps to report it formally. He performed his normal duties during this period. The Tribunal finds that the incident on 23 May 1997 was minor, and that on the balance of probabilities it did not cause any frank injury or aggravation of the Applicant's underlying degenerative osteoarthritis in his right knee.

61. The Applicant's pre-existing condition of osteoarthritis is well documented and not disputed by the Applicant's treating surgeon or indeed himself. Dr Lyons was of the view that the findings at arthroscopy revealed gross signs of degenerative change that inferred a long history of arthritis. Dr Sullivan also conceded that the arthroscopy revealed a degeneration that would take a number of years to develop. Both Dr Lyons and Dr Sullivan believed that with such a history it would take only a relatively minor event to aggravate such a condition. Therefore it is possible that an incident of the type that occurred in May could have precipitated the Applicant's condition. However, the Applicant's symptoms and conduct following the incident do not lend support to the probability that this occurred.

62. On the Applicant's own evidence it was the July incident that gave him the most pain and when his knee began to swell. He agreed that his condition changed markedly after the July incident and that his symptoms were lifted to another plane entirely. It was the July incident that caused the Applicant to seek medical attention rather than the incident in May.

63. When the Applicant initially saw Dr Sullivan in August he did not inform him of the May incident. It was not until the end of September, when the Applicant tried to recall if any other incident could have contributed to his condition, that the May incident was mentioned. The only incident that was discussed with Dr Sullivan before that time was the incident in July. This was also the case with Dr Gunasekera, the general practitioner whom the Applicant saw immediately after the July incident. However, when the Applicant saw Dr Lyons he spoke only of the incident at work and while he discussed experiencing a surge in symptoms in July, Dr Lyons gave evidence that the Applicant did not point to any precipitating incident.

64. In his report of 20 October 1997, Dr Sullivan noted the May incident, but commented that the major flaring symptoms were toward July when the knee became swollen. In fact Dr Sullivan conceded when giving oral evidence, that if the Applicant's knee was not swollen after the incident in May this would tend to downgrade the significance of the event.

65. Dr Lyons provided his original diagnosis on the basis that he only had knowledge of the May incident. However once apprised of all of the facts, he was of the view that in light of the persistent swelling and effusion after the July incident, that was the precipitating factor, rather than the May incident, from which he thought the Applicant had largely recovered. Dr Lyons was adamant that nothing could have occurred in May to produce the findings at arthroscopy some months later.

66. The Tribunal finds that the Applicant has not provided Dr Sullivan and Dr Lyons with all the facts. As such, this reflects negatively on the Applicant's credibility. The Tribunal is also concerned about the inconsistencies in the Applicant's evidence, and finds on the totality of the evidence that the Applicant has attempted to recreate the evidence in his own interests.

67. It is clear that the Applicant has a serious condition with respect to his right knee. The Tribunal finds that with a significant underlying condition of osteoarthritis, the Applicant was susceptible to aggravations of even a minor incident, and he would have had difficulty identifying precisely what might have brought about his symptoms. The Tribunal cannot be satisfied that the incident in May was the precipitating incident for several reasons. The Applicant lost no time from work following the incident in May, he did not report the incident until some months later, and did not seek any medical attention until after the July incident when he developed far more severe symptoms. The medical evidence suggests that while the incident in May might have caused a minor aggravation, the effects settled within a short period without the need for time off work or medical treatment.

68. Accordingly, the Tribunal finds that the Applicant suffers from significant underlying degenerative osteoarthritis, that such a degenerative condition is susceptible to aggravation and indeed new injury, but neither of which occurred as a result of the incident on 23 May 1997 in the course of the Applicant's employment.

69. The Respondent asked the Tribunal to consider the application of section 7(7) to the Applicant's circumstances in the event that a finding was made that an aggravation of a disease attributable to the Applicant's employment had occurred.

70. Section 7(7) of the Act applies only in relation to a claim for compensation for a disease, or aggravation of such disease about which the false and wilful representation was made. It is unnecessary for the Tribunal to consider the application of that section, given that the Tribunal finds that the Applicant did not suffer either an injury simpliciter or an aggravation to a pre-existing disease that was attributable to the his employment.

71. For the reasons given above the Tribunal's affirms the decision under review.

I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis,

Senior Member.

Signed: .....................................................................................

Associate

Dates of Hearing 30 July and 2 August 1999

Date of Decision 24 January 2000

Counsel for Applicant Mr Mayell

Solicitor for Applicant Jones Staff & Co

Counsel for Respondent Mr Elliott

Solicitor for Respondent Hunt & Hunt Lawyers