Nichols and Comcare [2003] AATA 53 (20 January 2003)

Last Updated: 21 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 53

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/353

GENERAL ADMINISTRATIVE DIVISION ) No A2001/374

Re PETER NICHOLS

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr G A Mowbray

Date 20 January 2003

Place Canberra

Decision In matter A2000/353 the Tribunal affirms the decision under review of 1 September 2000. In matter A2001/374 the Tribunal sets aside the decision under review of 5 September 2001 and remits the matter to the Respondent for reconsideration with a direction that it determine the Applicant's entitlements under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 Act on the basis that the Applicant continues to suffer from work related synovitis and a work related aggravation of a Baker's cyst in his right knee. The Tribunal orders the Respondent to pay the Applicant's costs in A2001/374 as agreed or taxed.

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

Member

CATCHWORDS

COMPENSATION - multiple knee injuries - whether current conditions work related - whether permanent impairment due to work related conditions - whether ongoing entitlement to compensation for medical treatment or incapacity for work

Safety, Rehabilitation and Compensation Act 1988 ss 4, 16, 19, 24

Re Carson and Telstra Corporation (2001) 33 AAR 351

Lees v Comcare (1999) 29 AAR 350; 56 ALD 84

Comcare v Nichols [1999] FCA 209

Re Quinn and Australian Postal Corporation (1992) 15 AAR 519

Commonwealth v Borg (1991) 20 AAR 299n

Re Kary and Comcare [1999] AATA 687

Re Hardy and Comcare (1998) 54 ALD 586

REASONS FOR DECISION

20 January 2003 Mr G A Mowbray

1. This matter concerns two applications by Peter Nichols for review of decisions of Comcare. The first application (A2000/353) is for review of a decision dated 1 September 2000 that denied a claim for permanent impairment for injuries to Mr Nichols' right knee during his employment with ACT Electricity and Water (ACTEW). The second application (A2001/374) is for review of a decision of 5 September 2001 that Comcare was no longer liable for any ongoing knee symptoms because Mr Nichols' compensable condition had resolved.

2. This matter was heard on 21 and 22 January 2002. Counsel for Mr Nichols was Mr Ian Bradfield and counsel for Comcare was Ms Lorraine Walker.

Background

3. Mr Nichols was born on 15 November 1971. After completing Year 10 he spent three years working as a labourer then returned to secondary college to obtain his Year 12 certificate. He completed Year 12 at the end of 1992.

4. In January 1993 Mr Nichols began a 4-year apprenticeship as an electrician with ACTEW. When the contract for his apprenticeship expired in January 1997 he was not offered permanent employment, having not completed all the formal requirements of his apprenticeship. He has since had only intermittent employment in a variety of jobs, including part-time bar work, light cleaning and a position as a chicken boner. At the time of the hearing he was looking after his 3-year-old son as a full-time carer.

5. Mr Nichols has had an unfortunate history of injuries to his right knee. A total of five incidents of different types and of varying degrees of severity were identified during the course of the hearing

* an injury in February 1992 during a rugby league match (the 1992 football incident)

* a trip on the stairs at a technical college that Mr Nichols attended as part of his apprenticeship on 3 May 1993

* an accident in July 1993 at Mr Nichols' part-time work as a barman at Tuggeranong Valley Rugby Union Club

* an accident on 25 January 1994 in which Mr Nichols slipped while working for ACTEW (the January 1994 trench incident)

* a motor vehicle collision on 19 November 1996 in the parking area when Mr Nichols was arriving for work (the November 1996 motor vehicle accident).

6. Mr Nichols has also undergone several operations on his right knee. It is more appropriate to delay the description of what each operation is said to have achieved, as the precise relationship between each injury, each operation and Mr Nichols' ongoing symptoms is a complex one that is central to the dispute before the Tribunal.

7. It is obvious and undisputed that the first and third injuries listed above were not related to Mr Nichols' employment with ACTEW. A claim relating to the second injury was rejected, a decision which was not challenged and is not before the Tribunal. A claim for the fourth injury was accepted. Although details of the history of this claim, apart from the original claim form, were not placed into evidence, the condition appears to have been accepted as twisted knee (right) or something similar.

8. In relation to the last incident in November 1996 Mr Nichols submitted a claim for "traumatic synovitis". Comcare accepted liability and payments for medical treatment and incapacity continued to be made for some time after Mr Nichols' employment with ACTEW had ceased in January 1997.

9. On 22 October 1999 Mr Nichols' solicitors wrote to Comcare applying on his behalf for a lump sum benefit for 10% permanent impairment of the whole person as a result of injuries to his right knee whilst working with ACTEW. On 26 June 2000 Comcare rejected the claim, which it described as being "in respect of traumatic synovitis right knee". Strictly speaking this may not have been a correct description of the claim, but the error is of little consequence.

10. On 4 August 2000 Mr Nichols' solicitors requested a reconsideration of the permanent impairment claim. On 1 September 2000 an Independent Review Officer affirmed the previous determination, finding that the aggravations caused by the two accepted injuries had subsided and that any continuing symptoms were solely the result of the rugby league injury prior to Mr Nichols' employment. An application for review of this decision was lodged with the Tribunal on 18 September 2000. This is the subject of matter A2000/353.

11. It was subsequently appreciated by both parties to the first application that the decision of 1 September 2000 had found inter alia that "any continuing symptoms... do not constitute an injury for the purposes of section 14 of the Act". This was considered to be a primary determination denying ongoing liability. Mr Nichols requested a reconsideration on 23 August 2001. Comcare affirmed this particular aspect of the decision on 5 September 2001, and a second application for review was lodged with the Tribunal on the same day. This is the subject of matter A2001/374.

Issues

12. The issues arising for consideration can be summarised as follows

* the conditions Mr Nichols currently suffers

* whether these conditions are work related

* whether Mr Nichols suffers a work related permanent impairment, and if so to what degree

* whether Mr Nichols continues to be entitled to compensation payments for medical treatment or incapacity for work due to work related conditions.

Legislation

13. The relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") are as follows

"4 Interpretation

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

...

"impairment" means the loss, the loss of the 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.

"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.

...

(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

(a) an incapacity to engage in any work; or

(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

..."

"16 Compensation in respect of medical expenses etc.

(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

..."

"19 Compensation for injuries resulting in incapacity

(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

..."

"24 Compensation for injuries resulting in permanent impairment

(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

(a) the duration of the impairment;

(b) the likelihood of improvement in the employee's condition;

(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d) any other relevant matters.

...

(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

(6) The degree of permanent impairment shall be expressed as a percentage.

(7) Subject to section 25, if:

(a) the employee has a permanent impairment other than a hearing loss; and

(b) Comcare determines that the degree of permanent impairment is less than 10%;

an amount of compensation is not payable to the employee under this section.

..."

Evidence

14. The documents before the Tribunal consisted of two sets of "T-documents" filed under section 37 of the Administrative Appeals Tribunal Act 1975 (Set 1 documents labelled T1 to T56, Set 2 T1 to T10), Applicant's exhibits A1 to A15 and Respondent's exhibits R1 to R19.

15. Oral evidence was given by Mr Nichols, Dr Graeme Griffith, a consultant surgeon, and Dr Jeremy Hopkins, a consultant orthopaedic surgeon.

Mr Nichols' Evidence

16. Mr Nichols stated that in order to improve his job prospects he returned to college for two years at age 19 to 20. He majored in physical education, which included both practical and theory components. The practical component involved participation in a variety of sports including rugby league, indoor cricket and indoor soccer. The theory component included a coaching course.

17. He had not had any problems with his knee prior to 1992. In February 1992 he was tackled during a rugby league match. His foot stuck in the ground facing forward as his body twisted in the tackle. He immediately left the field with an injury to his right knee. He walked home rather than riding his bicycle.

18. His general practitioner, Dr Lee, referred him to Dr Gillespie, an orthopaedic surgeon, who suspected cartilage and possibly ligament damage. An arthroscopy would be required to determine the extent of the injury, and Mr Nichols was placed on a waiting list.

19. In the meantime Mr Nichols returned to school. He had spent about a week treating his knee with ice and then afterwards used hot or cold towels. He resumed physical education in the second half of 1992 without any pain, and successfully completed his courses (Exhibit A3). His knee felt "100 per cent". He would ride his bicycle between his home in Oxley and the college at Erindale, often more than once a day as he would return home for lunch (Mr Nichols' estimate of the distance between the two at 7 or 10km seems somewhat exaggerated).

20. Mr Nichols commenced his apprenticeship with ACTEW on 27 January 1993. The first three months were a probationary period before committing to the full four years of the apprenticeship. During this time the suitability of apprentices was assessed, including their suitability for the physical requirements of the job. Apprentices were also expected to perform a lot of heavy manual work as they were at the bottom of the hierarchy. Mr Nichols gave examples of digging trenches, climbing ladders, crouching and crawling into small spaces. The exact nature of the work depended on the section an apprentice was attached to, with a new rotation every 3 months. Each rotation included an assessment (see Exhibit A4). Mr Nichols did not have any problem with his knee when he started the apprenticeship.

21. On 3 May 1993 Mr Nichols was walking down a flight of stairs at the technical college that he and other apprentices attended as part of their apprenticeship. Someone's bag clipped his foot, he fell down the stairs and twisted his right knee. Mr Nichols stated that a claim for compensation was not completed until some time later because he was given the wrong form by his supervisor. When the claim was denied he was unaware of the procedures available to challenge the decision.

22. At this time Mr Nichols was also working part-time as a barman at the Tuggeranong Valley Rugby Union Club. In July 1993 he slipped on a wet tile floor and hit his kneecap. It became bruised and swollen. This was an impact injury rather than a twisting injury.

23. On 12 August 1993 Mr Nichols underwent an arthroscopy. He was only off work for a short time after this and continued with his apprenticeship. Under cross-examination he stated he did not see the findings of this operation and did not recall being told he was on the waiting list for a further operation.

24. By January 1994 he was attached to ACTEW's bulk electricity section. For several days he was working at the high voltage substation at Gold Creek running cables in trenches. These cables were eight inches round and weighed more than 35 kilograms per metre of cable. The cables were on runners rather than being lifted, so the work involved crouching, pulling and bending. Mr Nichols did not have any problems performing this work.

25. On 25 January 1994 Mr Nichols was following another employee down a ladder into a trench when he slipped. He put his foot out to land, but instead of hitting the trench floor his foot landed on a cable. His right knee went out at right angles and there was a popping sensation. Mr Nichols was unable to get himself out of the trench and he was driven home.

26. The injury failed to respond to treatment. He was placed on light duties involving paperwork for about six months in total. Dr Gillespie performed an operation on 4 May 1994, and Mr Nichols was on crutches both before and after that operation. In the longer term he was able to resume his apprenticeship without problems. In fact following the operation his right knee was more stable than his left. He also continued riding his bicycle and participating in sports such as touch football and rugby league.

27. On the morning of 19 November 1996 the car in front of Mr Nichols reversed into his own as he was arriving for work. His right knee struck the window winder on the inside of the driver's-side door. His general practitioner Dr De Sailly diagnosed traumatic synovitis. He was again referred to Dr Gillespie, with complaints of his knee clicking and dropping in its socket. He underwent another operation in March 1997.

28. Following this operation Mr Nichols underwent physiotherapy for about two months, which included strengthening and stretching exercises and use of an exercise bike. He continued to exercise after this treatment ceased, purchasing a mountain bike. To this day riding was his preferred mode of transport. He rode from his home near Karabar High School to the shops at the centre of Queanbeyan three times a week, and had extended his riding to as far as Fyshwick (Mr Nichols' estimate of the distance between Karabar and central Queanbeyan at a total of 15km for the round trip appears to be a severe overestimate). He also walked and swam for exercise.

29. It was not until several years later that doctors suggested he had not done sufficient work to build up his quadricep muscles and stabilise his knee, a suggestion he found offensive when he had in fact done more than what had been required of him. He found the recommendation that he cycle laughable because that was what he was already doing. He had not had any contact with Comcare between 1997 and 1999 and had decided he needed to look after his rehabilitation himself.

30. At some time after the motor vehicle accident Mr Nichols became aware of a swelling behind his knee. Following an ultrasound in 1999 this was diagnosed as a Baker's cyst. The swelling is not constant but is caused by certain activities that Mr Nichols now tries to avoid. These include overextending or straightening the knee, kneeling, descending uneven hills and using stairs. The cyst produced more pain when swollen and felt as if he was walking around with a squash ball behind his knee. The last occasion the swelling had occurred was about six months before the hearing. The swelling generally lasted for three to four days and he would use anti-inflammatories and ice to treat it.

31. Mr Nichols had been advised that an operation to excise the cyst was possible, but that it could return again. He was reluctant to undergo the operation without a guarantee it would work, and had been told of another patient who had undergone the operation four times.

32. His knee felt worse in cold weather. He could feel a clicking sensation with every step and did not feel stable descending stairs or traversing uneven or rocky ground. He made a conscious effort not to overextend his knee. He had trouble crouching and could not kneel on his right knee. It was uncomfortable or painful attempting to do so.

33. Mr Nichols had applied for numerous jobs as an electrician in the first of half of 1997 after his apprenticeship ended, but was unsuccessful. In his opinion his knee had affected his chances. He was expressly told by some prospective employers that he knew well that his compensation case was one reason for not employing him.

Medical Evidence

Dr Gillespie

34. Dr Gillespie, an orthopaedic surgeon, surprisingly was not called to give oral evidence by either party. However a considerable number of his reports and notes as Mr Nichols' treating surgeon were put into evidence. The medical witnesses who examined Mr Nichols at a later date placed reliance on his findings. Dr Griffith said during his oral evidence that Dr Gillespie had to be considered the ultimate authority on the nature of Mr Nichols' injuries and that his arthroscopic findings would take precedence over any clinical findings. The latter could only describe likely pathology rather than directly observing it. It is therefore appropriate to set out the contents of Dr Gillespie's reports at some length.

35. On 13 May 1992 Dr Gillespie reported to Dr Lee that Mr Nichols

"[S]ustained an injury to his right knee while playing football for the school two months ago. The nature of the injury was a twist and it was followed by the fairly rapid onset of a marked effusion.

He had no specific treatment immediately after the injury, and is now bothered by recurrent catching/clicking, and giving-way.

...

I think that this young man has sustained a tear of the anterior cruciate ligament of his right knee, and probably has some associated lateral meniscus pathology as well.

In the first instance, I think that he should have the knee arthroscoped to confirm the diagnosis, and to treat any meniscal pathology. Depending on the resolution of his symptoms after that, and his sporting ambitions, he might be a suitable candidate for ACL reconstruction.

For the time being, his name has been added to the waiting list a[t] Woden Valley Hospital." (Exhibit R19)

36. On 12 August 1993 Dr Gillespie performed an arthroscopy on Mr Nichols' right knee. His operation report (Exhibit R3) contains the following information

"Pre-operative diagnosis

Meniscus tear ± ACL tear right knee.

Operation performed

Arthroscopic partial lateral meniscectomy and debridement of ACL stump right knee.

Operation details

...

Abnormal findings: there was an old tear of the ACL from its femoral origin. The stump was debrided using the arthroscopic shaver. In the lateral compartment, there was a horizontal flap tear of the posterior horn, which was resected to a stable rim.

Summary: ACL tear + lateral meniscus tear right knee, ? will consider ACL reconstruction in the future."

37. On 2 December 1993 Dr Gillespie responded to a request for information from Comcare (Exhibit R4). Presumably this enquiry was the result of Mr Nichols' compensation claim for the accident in May 1993 - see Exhibits R15 and R16. Dr Gillespie provided the following information

"Mr Nichols has sustained a tear of the anterior cruciate ligament of his right knee, with associated lateral meniscus damage.

I first saw Mr Nichols on 5/5/92, when he gave a history of having injured his right knee some two months previously while playing football. When I saw him on 5/5/92, I recommended arthroscopy of the knee and this was undertaken on 12/8/93 at Woden Valley Hospital. This arthroscopy confirmed the above diagnoses.

Mr Nichols has permanent instability in his right knee, secondary to ACL insufficiency. His knee will be unstable under load, and he will probably have difficulty participating in sports that require running, in combination with sudden changes of direction.

I have recommended arthroscopic ACL reconstruction and he is currently on the waiting list for this surgery.

When Mr Nichols regains stability in his knee, the prognosis for normal function in the knee is quite good."

38. Dr Gillespie again wrote to Comcare on 17 February 1994 (Exhibit R5), by which time Mr Nichols had suffered his first injury for which liability was accepted

"[T]he current situation is that he now has a symptomatically unstable knee, which is repeatedly giving way underneath him. He had an episode of giving way whilst at work on 3.5.93 and was most recently seen by me on 14.2.94, with a similar problem. He now has signs of further damage to his lateral meniscus, despite the fact that a partial lateral menisectomy was performed when his knee was arthroscoped on 12.8.93

As I mentioned to you on the 'phone, the problem is that although his initial injury is probably outside the responsibility of Comcare, he is going to be troubled by repeated re-injuries to the knee in the workplace, until his knee is surgically stabilised. Given that he needs further arthroscopic surgery as a result of this latest injury, it would seem to me to be a more sensible approach to proceed with a definitive stabilisation procedure, so that the likelihood of a further re-injury, and further liability to Comcare, is minimised."

39. On 21 February 1994 Dr Gillespie reported to Dr Bennett that Mr Nichols had

"[L]ongstanding instability in his right knee, secondary to an ACL injury sustained in 1992. His most recent episodes of instability have occurred at work, and are currently the subject of a claim with Comcare.

When I saw him on 14.2.94 he had signs of ACL insufficiency... and a postitive lateral McMurray's test, suggesting further lateral meniscus injury.

The definitive management of his condition would require a cruciate reconstruction and appropriate lateral meniscus surgery." (Exhibit R6)

40. On 4 May 1994 Dr Gillespie again operated on Mr Nichols' knee. The operation report (Exhibit R18) includes the following

"Pre-operative diagnosis

ACL deficiency right knee.

Operation performed

Arthroscopic ACL reconstruction right knee using middle-third of patellar tendon.

Operation details

...

The middle-third of the patellar tendon was harvested... A 10mm patellar tendon graft was obtained with 10mm x 25mm bone blocks at either end.

The knee was then arthroscoped through standard anterior portals. There was evidence of previous meniscal injury, but both meniscal remnants were intact.

...Knee range of motion, graft isometry and knee stability was satisfactory after insertion of the graft."

41. On 4 February 1997 Dr Gillespie reported to Dr De Sailly on Mr Nichols' latest injury in November 1996 (Exhibit R7)

"The circumstances of the injury is that he struck the front of his right knee on the handle of the car door. The window winder struck him anterolaterally on the joint line. He has been bothered by anterior knee pain since that accident and when he flexes his knee in the prone position, he can feel something "slipping" across the front of the knee along the anterolateral joint line. I felt this sensation for myself, and I suspect that this is some thickening or inflammation in the anterolateral joint capsule of his knee... There is also some tenderness and clicking along the anterolateral joint line...

Peter is concerned that the persistence of this clicking/slipping sensation, and is keen to have the problem resolved if possible. I have recommended an arthroscopy and if necessary resection of the relevant soft tissue band."

42. On 18 March 1997 Dr Gillespie reported to Comcare (Set 1 T24)

"I first saw Mr Nichols in 1992 with an ACL tear of the right knee. He underwent an ACL reconstruction in May 94 and subsequently did well. When last seen in October 94 in regard to his knee reconstruction his knee was stable and had a full range of movement.

He represented on 31.1.97, giving a history of having injured his right knee in a motor vehicle accident...

Since that he had felt something slipping around inside his knee. The mobile lump was felt along the antero-lateral joint line.

Clinically, his knee was stable when examined on 31.1.97. He had some tenderness and clicking along the antero-lateral joint line, which was reproduceable with knee flexion. My impression was that there may have been some thickening or inflammation of his joint capsule and I recommended a knee arthroscopy which he will have in the near future.

As far as I am aware the problem has arisen as a result of the accident described...

As far as I know there is no underlying condition. At this stage his symptoms are ongoing, but hopefully they will be resolved by his arthroscopy. At present he is incapacitated because of pain and this sensation of something slipping across the knee... He will be unable to work for a week or two after his knee operation.

At the moment he is fit to undertake a vocational rehabilitation programme but this should not commence until after he has recovered from his surgery. It is possible that he will require rehabilitation at some time in the future... He may require physiotherapy post-operatively. The prognosis for a satisfactory recovery is quite good."

43. On 19 March 1997 Dr Gillespie performed his third operation on Mr Nichols. The operation report (Exhibit R8, also at Set 1 T30 with a later report date but otherwise identical) reads in part

"Pre-operative diagnosis

Synovitis right knee.

Operation performed

Arthroscopic partial synovectomy right knee.

Operation details

...

...The ACL graft was inspected and was intact. Both menisci remnants were inspected and were stable. The articular surfaces were undamaged.

In the superolateral aspect of the knee adjacent to the patella, there was an area of haemorrhagic synovitis, consistent with the injury described. The inflamed area was resected using the arthrosocpic shaver.

Summary: Post-traumatic localised haemorrhagic synovitis - resected arthroscopically."

44. On 22 May 1997 Dr Gillespie responded to further queries by Comcare (Exhibit R9, also at Set 1 T30)

"i) Definitive diagnosis - post-traumatic synovitis right knee.

He had a localised area of haemorrhagic synovitis in the supero-lateral aspect of the knee capsule, which corresponded to the site of injury previously described.

ii) The work related injury of November 6 [sic], 1996 has caused his localised synovitis...

iii/iv) As I have not reviewed Mr Nichols since his knee surgery, I cannot say with certainty that the reason he is off work is because of ongoing symptoms in his right knee, but it may well be that his recovery from surgery is a little slower than normal.

v) I expect that Mr Nichols should be fit to resume the duties he had... by early mid June 97."

45. On 5 July 1999 Dr Gillespie provided a report to Mr Nichols' solicitors (Exhibit R10)

"I first saw Mr Nichols in 1992 with an ACL tear of the right knee. He underwent an ACL reconstruction in May 94 and subsequently did well. When last seen in October 94 in regard to his knee reconstruction his knee was stable and had a full range of movement.

He returned to see me on 31.1.97, with a history of having injured his right knee in a motor vehicle accident...

Since then, he felt something slipping around inside his knee. The mobile lump was felt along the antero-lateral joint line.

He had an arthroscopy of his knee which was performed on 19.3.97...

Mr Nichols has not returned for formal clinical review following his arthroscopy on 19.3.97, so I am unable to advise you of his present condition...

In my opinion, your client's interest and disabilities were attributable to the accident of which he complained.

My feeling was that it was unlikely that the injury would have any permanent deleterious effect on his future earning capacity. As far as I am aware, he has not required any further medi[c]al or surgical treatment.

I doubt that he would have been left with any significant whole-person impairment as a result of this injury, however, I have not had the opportunity to review him since 19.3.97."

46. Finally, on 30 August 1999 Dr Gillespie reported to Dr De Sailly that Mr Nichols

"[H]as been bothered by pain in the popliteal fossa of his right knee. He thinks the pain has been present for quite a while, and may well have been present (according to Peter) since the injury of 19.11.96. He now finds that he gets pain in the back of his knee, and that a cystic swelling develops in the same location...

He has had an ultrasound of his right popliteal fossa done previously, and this has demonstrated the presence of an enlarged semimembranosus bursal cyst.

The cyst was not palpable to examination on 26.8.99, and it may well have enlarged and collapsed. Peter seems fairly confident that the cyst will return with activity.

Surgical excision of these cysts is associated in my experience with quite a high recurrence rate, so unless the pain was completely disabling I would not be in a hurry to advise excision. However, if Peter wishes me to review it then I will be happy to do so. An ultrasound-guided aspiration of the cyst may be just as helpful as surgical excision."

Dr Griffith and Dr Hopkins

47. Dr Griffith gave oral evidence in addition to his three written reports of 2 June 1999, 2 October 1999 (both at Set 1 T38) and 19 July 2000 (Set 1 T 50). In those reports, particularly the first, he had attributed the damage to Mr Nichols' anterior cruciate ligament (ACL) to the accident on 25 January 1994 based on a history that appears not to have included details of the rugby league injury in February 1992. However in his first report Dr Griffith had surmised the existence of an injury causing meniscal damage based on Dr Gillespie's first operation in August 1993.

48. When told of the rugby league injury and that Mr Nichols had been able to return to his sporting activities, Dr Griffith said this suggested a partial tear of the ACL, which could often heal. While structurally significant the injury would not necessarily cause an alteration in knee function, and it was difficult to say whether a lack of symptoms meant the tear was minor, because the quadriceps muscles could compensate for the injury to a remarkable degree. There had been at least partial division of the ligament. Debridement essentially involved tidying up the injured area.

49. It was probable that the rugby league injury had caused damage to Mr Nichols' meniscus. Such a tear would not heal itself. Whether this had a functional effect depended on the size of the fragment. If it became caught this would cause locking of the knee. There was no doubt there had been a significant injury at some time prior to August 1993 when Dr Gillespie performed an arthroscopy with Mr Nichols under anaesthesia.

50. Dr Hopkins also provided oral evidence supplementary to his three reports of 29 January 2001 (Exhibit R12), 7 March 2001 (Exhibit R13) and 6 July 2001 (Exhibit R14). He too had initially obtained a history from Mr Nichols that did not include the rugby league injury, although he was not critical of Mr Nichols for this omission. It also appears that the history in Dr Hopkins' reports switches the May 1993 and January 1994 injuries.

51. Dr Hopkins attributed the ACL injury to the rugby league incident in 1992. From Dr Gillespie's August 1993 report the ligament had completely ruptured a considerable time previously, and this was the most likely cause. Not all ACL tears required surgery. With muscle rehabilitation footballers could control their knee's stability.

52. Dr Hopkins was not previously aware that Mr Nichols had returned to sport following the February 1992 injury without pain. He found this surprising given the arthroscopy findings in August 1993. A possible explanation was that the February 1992 injury had been a partial tear or rupture and that the May 1993 injury completed the rupture. He also agreed that a complete rupture would normally cause a lot of pain. Whether or not a person could walk afterwards and whether they would be off work until an operation would depend on what else had happened.

53. Dr Griffith said that generally speaking a "tear" was partial whereas "rupture" would refer to a complete severance of the ligament. However this depended on the clinical findings. Dr Hopkins agreed with this generalisation, however he also commented that Dr Gillespie's first arthroscopy had found a "stump", indicating complete disruption. In addition one did not debride a minor tear.

54. Dr Griffith said that the January 1994 injury was immediately incapacitating and grossly symptomatic. Mr Nichols had reported persistent locking afterwards. Dr Griffith regarded this accident as a major contributing factor to Mr Nichols' problems. The rugby league incident was significant, but the condition of the knee was very materially worse after the January 1994 accident. There was possible additional pathology to the ACL and signs of additional damage to the meniscus.

55. In cross-examination Dr Griffith indicated his understanding that Mr Nichols was placed on a waiting list for arthroscopy because of the January 1994 injury. However Dr Griffith also stated that this type of accident was not something that would normally cause rupture of the anterior cruciate ligament. Rupture of the ACL was more common with an accident where the foot was fixed in place, such as occurred in football.

56. The popping that Mr Nichols described could have been due to some damage to the meniscus. More probably it was due to rupture of a ligament, most likely the lateral one.

57. Dr Hopkins agreed the January 1994 accident was significant, but not for the reason that it necessitated repair of the ACL. From Dr Gillespie's reports and notes Mr Nichols had already been placed on the waiting list for reconstruction before this occurred. For a young person it was usual to undertake a reconstruction, but this was not an urgent matter. Injuries could happen as a result of instability in the meantime, which could cause cartilage tears, especially of the menisci. Such injuries would cause pain without affecting pathology.

58. Dr Griffith said the ACL reconstruction by Dr Gillespie had been excellent. There was, however, some residual incapacity. The last few degrees of flexion were critical for proper locking of the knee. Without this the knee could give way. Mr Nichols' problems with walking downhill were suggestive of this instability. In his report of 2 October 1999 (Set 1 T38) he assessed Mr Nichols as having a 10% permanent impairment due to the loss of less than half the normal range of movement. Permanent impairment had been considerably greater prior to the surgical repair of the anterior cruciate ligament.

59. The key to avoiding any loss of function was good rehabilitation, especially of the quadriceps muscles which stabilised the knee and applied force in the correct direction. It could take a long time for joints to regain the full range of movements, a period of months at least, because of loss of use, muscular weakness and pain. Loss of range of movement was not necessarily permanent. There was no anatomical reason for the loss to be permanent.

60. In his report of 2 June 1999 (Set 1 T38) Dr Griffith stated that there was no anatomical basis for Mr Nichols' perception his leg was mechanically unstable except for relatively weak right quadriceps muscles. In his report of 19 July 2000 he indicated that strengthening of the quadriceps would help stabilise Mr Nichols' knee but it was not possible to determine whether this would reduce the level of permanent impairment (Set 1 T50).

61. Cycling was an excellent rehabilitation activity because it was not weight-bearing or jarring. Dr Griffith would expect a significant improvement if Mr Nichols had been cycling regularly for a couple of years. Assuming there were no other problems such as nerve damage, there should not be any wasting of the quadriceps muscles if Mr Nichols was physically active.

62. In cross-examination Dr Griffith said it was common for a person to have difficulty kneeling after an ACL reconstruction. The usual donor site for the reconstruction was a tendon behind the knee. Kneeling placed direct pressure on this site. The degree of limitation would vary depending on how much the site was irritated. It was painful rather than a mechanical problem.

63. Dr Griffith was asked what treatment options were available apart from cycling regularly. He suggested that a steroid injection under local anaesthetic or a further diagnostic arthroscopy were possible steps. However surgery was a last resort rather than a first choice. It was up to Mr Nichols to decide how much his symptoms affected him.

64. Dr Hopkins agreed the reconstruction had had an excellent result. There was minor laxity of the ACL and the medial ligaments. There was no ongoing impairment from the ACL. Mr Nichols' knee had an excellent range of movement and he could walk reasonable distances. At the time of examination he was not taking medication or undergoing treatment. In his report of 29 January 2001 Dr Hopkins noted some quadriceps insufficiency (Exhibit R12).

65. The feeling of instability on hills or rough ground was a mild sequelae of the ACL injury and reconstruction. Residual difficulties were frequent. Given the length of time since the surgery it was likely they would remain. Using Table 9.5 of the Comcare Guide Mr Nichols had a permanent impairment of about 10%. This was attributable to the rugby league injury. The meniscus injury and synovectomy would also contribute but the ACL injury was the main factor. In his report of 7 March 2001 Dr Hopkins had suggested approximately half of Mr Nichols' current impairment could be attributed to the persisting synovitis from the motor vehicle accident in 1996 (Exhibit R13).

66. Dr Griffith said the synovitis caused by the motor vehicle accident was not a structural injury. The ACL reconstruction was not disturbed and there was no meniscal tear. On his examination there was still some low-grade synovitis present, which caused discomfort only. Dr Hopkins stated the synovitis was caused by the direct blow in the motor vehicle accident. It was localised and did not evolve over time.

67. Dr Griffith said the Baker's cyst was a semi-membranous bursa. There were many of these around the knee joint providing lubrication. If a bursa was inflamed it could accumulate fluid, or alternatively an inflammation of the knee could drain into a bursa. It could swell up to golf ball size. The cyst was essentially harmless but created a functional problem. It was not interfering with mechanical function as such and was not a large factor in Mr Nichols' loss of range of movement. The extent of its contribution depended on the size of the cyst. Surgery was not a preferred option and the cyst could return if excised. Dr Gillespie's advice to this effect was perfectly reasonable.

68. Dr Hopkins gave evidence that a Baker's cyst could be associated with anything that produces fluid. Its size could increase and decrease and it might or might not resolve completely. Mr Nichols' cyst could have been initiated or provoked by any of his injuries or the ACL reconstruction. Depending on its size it could make crouching or squatting quite uncomfortable or impossible. Otherwise it would not cause any problems and was not affecting knee function. Dr Hopkins did not regard it as a permanent impairment. It could subside without intervention, be aspirated or surgically removed. If it were sufficiently symptomatic on an ongoing basis he would recommend excision. He was not as pessimistic as Dr Gillespie on the likelihood of recurrence but acknowledged Dr Gillespie's view as perfectly valid.

69. In Dr Griffith's opinion Mr Nichols was fit for some employment, but some of the tasks he had performed as an electrician would present problems. For example he would have difficulty crawling into spaces or squatting. It would be very dangerous if his knee gave way while on a ladder or scaffolding. Retraining into an area such as electronics or electrical retail was a good option. Dr Hopkins agreed that Mr Nichols' difficulty with kneeling would make it difficult for him to work as an electrician.

70. In his first report Dr Griffith said that loss of at least part of the right lateral meniscus could predispose Mr Nichols to early onset arthritis in the future (Set 1 T38). The joint was not currently arthritic.

Dr De Sailly

71. Mr Nichols' general practitioner wrote a report on 10 May 2000 (T44). In it he set out "[t]he history as I know it". In his opinion Mr Nichols' earning capacity had been greatly reduced and he was not able to carry out he normal duties of an electrician. He would eventually require surgery to his Baker's cyst, possibly more than once as cysts had a history of recurrence. He would also develop osteoarthritis in his injured knee.

Consideration of Issues and Findings

"Cease liability/effects" decisions

72. As I have said before, in many "cease liability" or "cease effect" decisions under the Act there appears to be a misunderstanding of the nature and effect of the determination that is made and of the statutory provisions relied on. In Re Carson and Telstra Corporation (2001) 33 AAR 351 Deputy President Estcourt stated

"49. It would only be a rare case where a reconsideration of the substantive determination under s.14 that Comcare was liable to pay compensation in accordance with the Act would be warranted. Such a case might arise, for example, if it was subsequently discovered that the injury had never in fact occurred or that the person claiming was never in fact an employee.

50. In such a case a reconsideration of the s.14 determination under s.62 resulting in a revocation would surely carry with it the result that no future claims in respect of that incident could properly be made, but in other cases, the revocation of a determination under relevant sections would not have the effect of preventing altogether further or other claims for compensation.

...

55. Telstra by its determination of 21 February 1995 was not, properly understood, denying those findings implicit in the original determination, it was merely determining that, on the available medical evidence, it was no longer liable for payment of medical expenses or incapacity payments.

56. That is to say, the effect of the determination that "liability in respect of this injury ceased on and from 5 February 1995" was not a decision to "cease liability" altogether or to "cease liability" under s.14, but rather a purported determination to cease the payment of compensation under s.16 and s.19 of the Act.

...

58. The conclusion I have reached, namely, that at its highest, Telstra's determination only ceased payments of compensation under s.16 and s.19 of the Act and did not effectively revoke the earlier determination to accept liability under s.14, thereby preventing further claims for compensation being made at a later time, is also consistent with the reasoning of the Full Court in Plumb v Comcare (1992) 39 FCR 236."

73. Implicit support for this approach is found in Lees v Comcare (1999) 29 AAR 350; 56 ALD 84, especially at [34] upon which Deputy President Estcourt relies. I agree with and adopt the views of Deputy President Estcourt.

74. In these proceedings the second matter is a cease liability decision.

The burden of persuasion

75. It is neither particularly apt nor appropriate to refer to a common law concept of a burden or onus of proof placed on a particular party in administrative proceedings in the Tribunal. However there has been a line of authority in both the courts and the Tribunal on what has been described as the "burden of persuasion" in these matters.

76. First, in relation to claims to establish liability for an injury or permanent impairment flowing from that injury, the Tribunal must be satisfied on the balance of probabilities of the existence of the injury or the permanent impairment and that they were work related. A succinct statement of this is found in Comcare v Nichols [1999] FCA 209 where Justice Heerey said at [23]

"However Mrs Nichols also contended that (i) she had a cervical spondylosis (ii) which was work-related and (iii) which contributed to her present incapacity. If all three elements were established she would have an entitlement to compensation. The Tribunal had to be satisfied of the existence of each element."

77. Secondly, where the relevant reviewable decision is one "ceasing liability" the authorities refer to an obligation on the Tribunal to be satisfied on the balance of probabilities that the particular condition has ceased. In Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 525 Justice O'Connor and Mr Barbour spoke of an obligation to produce material supporting a change in circumstances

"In our view, as it is clear from the statutory intention that the respondent can only reconsider a determination when there has been a change in circumstances, it seems justifiable to expect the respondent to be able to produce material in these proceedings supporting its assertion that the applicant is no longer entitled to compensation. There is no strict burden of proof as such but there must be additional evidence to indicate that there has been such a change in circumstances."

78. Justice Jenkinson in Commonwealth v Borg (1991) 20 AAR 299n at 307 put it in these terms

"I think that the Act required on its proper construction that the delegate should not make the determination he did make unless he was persuaded that one of the entitling circumstances had on or before 28 July 1988 ceased to exist."

79. In Comcare v Nichols Justice Heerey said at [22]

"In the present case, Mrs Nichols was receiving compensation in respect of an injury (RSI) which had been found in 1985 to result in incapacity for work. Comcare contended in 1996 that she no longer suffered from RSI. Comcare therefore had to establish this fact. Perhaps more accurately, it was the Tribunal, as an administrative decision-maker, which had to satisfy itself that this was the case. It was so satisfied."

80. Nichols is consistent with the earlier authorities and is the approach I will adopt in considering the "cease liability" matter in these proceedings.

From what conditions does Mr Nichols suffer?

81. It is not disputed that Mr Nichols has experienced a number of injuries to his right knee

* a school football injury in February 1992

* a trip on the stairs at a technical college on 3 May 1993

* an accident while working part-time as a barman in July 1993

* a trench accident on 25 July 1994 while working for ACTEW

* a motor vehicle accident on 19 November 1996 when arriving at work.

The first, fourth and fifth of these are of principal concern in these proceedings. Comcare contends that while the first was not work related it is the source of much of Mr Nichols' current difficulties. The fourth and fifth were accepted as work related.

82. The conditions for which Mr Nichols seeks compensation are

* what might best be summarised as instability of the right knee resulting from an injury or injuries to the anterior cruciate ligament (ACL) and associated damage to the lateral meniscus, and a subsequent ACL reconstruction

* traumatic synovitis

* a Baker's cyst.

Again both parties essentially agree that Mr Nichols has suffered from these conditions.

83. The evidence on the ongoing effects of the traumatic synovitis is somewhat limited. In March 1997 Dr Gillespie "resected arthroscopically" the inflamed area. Apparently the condition has virtually resolved as a consequence of that surgery, although the medical evidence points to some continuing low grade synovitis.

84. I find that Mr Nichols continues to experience problems from the ACL instability and the Baker's cyst. These are the main issues in contention. I also find that there is some limited continuing low grade synovitis.

Are Mr Nichols' conditions work related?

85. Although Comcare accepted that the traumatic synovitis arose out of Mr Nichols' employment - the November 1996 motor vehicle accident - as noted above this condition has virtually resolved.

86. Turning to the ACL condition, Mr Nichols claims that after the 1992 school football injury he largely recovered and was asymptomatic. He was not only able to complete his schooling in physical education at Erindale College but was able to participate in vigorous sport. He was doing everything he had done before. On the other hand the January 1994 trench incident was of enormous significance. It put him on crutches, off work and on light duties and resulted in further injury. As a consequence of this and the later ACL reconstruction, and to a lesser extent the November 1996 motor vehicle accident, he now felt a clicking sensation with every step as well as instability descending stairs or crossing uneven ground. His bushwalking and jogging had to be curtailed, although he continued cycling.

87. Comcare however asserts that the critical event was not the January 1994 trench incident but the 1992 school football one. Mr Nichols was not asymptomatic after the football incident. In fact he was placed on a waiting list for arthroscopy and possible ACL reconstruction which was subsequently performed in May 1994. The January 1994 trench incident did not affect the underlying condition nor the pathology of the knee. Indeed it was because of the football injury that Mr Nichols suffered the instability evidenced in the trench accident and on a number of other occasions before the ACL reconstruction. Mr Nichols' current instability was a residual effect of the various surgical procedures, but especially the ACL reconstruction, which came about as a result of the football injury.

88. Dr Griffith's evidence was

* the football incident was significant but probably only resulted in a partial division of the ACL (and not a rupture) which could often heal, as well as damage to the meniscus

* the 1994 trench incident was immediately incapacitating and grossly symptomatic and a major contributing factor to Mr Nichols' difficulties. The knee was very much worse after this incident

* the trench incident was not something which would normally cause a rupture of the ACL; this was more likely to have occurred during football. On the other hand the popping that Mr Nichols described at the trench incident was most probably due to a ligament rupture

* there was no anatomical basis for Mr Nichol's perceived instability except for weak quadriceps muscles

* it was common for a person to have difficulty kneeling after an ACL reconstruction as the donor site was a tendon behind the knee.

89. In Dr Hopkins' view

* the ACL injury was due to the 1992 football incident

* this was clear from Dr Gillespie's August 1993 report which indicated the ligament had completely ruptured a considerable time previously

* it is possible that the tear in 1992 had only been partial but had been completed in the May 1993 technical college accident

* the trench incident in January 1994 was significant but it was not the reason for the ACL repair

* this incident could have caused a meniscus injury without affecting the ACL pathology

* Mr Nichols' feeling of instability was a mild sequelae of the ACL injury and reconstruction. Such residual difficulties were frequent and were likely to remain.

90. To the extent that there is any conflict between the views of Dr Griffith and Dr Hopkins, I have preferred those of Dr Hopkins who has made clear his reliance on Dr Gillespie's contemporaneous reports rather than Mr Nichols' memory. Dr Griffith expressly deferred to Dr Gillespie as the ultimate authority on Mr Nichols' injuries. Dr Griffith's opinions are also to some extent tainted by reliance on an inaccurate history. In particular I reject Dr Griffith's view that the January 1994 trench incident made the ACL reconstruction necessary. It is clear from Dr Gillespie's report that at least by December 1993 Mr Nichols was on the waiting list for ACL reconstruction.

91. Having considered all the evidence especially the written reports of Dr Gillespie set out at paragraphs 0 to 0 I am satisfied that

* Mr Nichols suffered a very significant non-compensable ACL rupture during a football match in February 1992

* this injury was aggravated by the compensable trench incident in January 1994

* this 1994 incident did not change the underlying ACL pathology

* the ACL reconstruction was a direct result of the football injury, as is the current right knee instability

* neither the ACL reconstruction nor the right knee instability is attributable to any compensable employment incident, including the January 1994 trench incident.

On the basis of Dr Gillespie's May 1994 report I cannot be satisfed that the January 1994 trench incident even caused additional tearing of the meniscus.

92. Mr Nichols first became aware of the Baker's cyst sometime after the November 1996 motor vehicle accident. The swelling comes and goes and is caused by overextending or straightening the knee, kneeling, descending uneven hills and using stairs. When it swells up Mr Nichols may need to rest for a period of days. Although the cyst did not become apparent to Mr Nichols until after the 1996 accident and was diagnosed by ultrasound in 1999, Dr Lee, Mr Nichols' general practitioner recorded its existence in July 1993 (Exhibit A6).

93. It is clear from the medical evidence that although the cyst was not caused by the motor vehicle accident, it was probably aggravated by it. Both Drs Griffith and Hopkins suggest that the accident provided the preconditions for swelling of the cyst. Furthermore, it only became symptomatic after the accident. On the evidence I am therefore satisfied that Mr Nichols' current problems from the Baker's cyst relate back to that work related motor vehicle accident.

Does Mr Nichols suffer work related permanent impairment?

94. Section 24(1) of the Act provides

"(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury."

The definition of "impairment" in section 4(1) is

"[T]he loss, the loss of the 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."

"Injury" is defined in that section as

"...

(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;

..."

95. It is clear from section 24(1) and the definition of "injury" that for a permanent impairment to be compensable that impairment must be a consequence of a work related incident (or disease). It is not sufficient that the impairment is to a part of the body that has coincidentally also suffered a work related injury.

96. In Mr Nichols' case the medical evidence which I have discussed above has led me to conclude that Mr Nichols' ACL reconstruction and right knee instability were a direct result of a non-compensable football injury. Both Dr Griffiths and Dr Hopkins have assessed Mr Nichols as having a 10% permanent impairment. But I am satisfied from the evidence including that of these two medical specialists that this is largely attributable to the football injury and its aftermath including the ACL reconstruction, not the subsequent trench and motor vehicle incidents.

97. Mr Bradfield for Mr Nichols referred me to Re Kary and Comcare [1999] AATA 687 as providing a comparable situation to that of Mr Nichols. In my view, Kary is distinguishable on the facts. It dealt with aggravation of an asymptomatic degenerative condition where the non-work factors could not be separated out. That is not this case. Here there was clear pathology from a non-work incident resulting in impairment. The non-compensable impairment can be separated out as the Tribunal was also able to do in Re Hardy and Comcare (1998) 54 ALD 586, with which the current matter is more truly comparable.

98. In his 7 March 2001 report (Exhibit R13) Dr Hopkins stated that approximately half of this 10% permanent impairment could be attributed to synovitis from the 1996 motor vehicle accident. However, as noted at paragraph 0 the evidence suggests that this condition has largely resolved. Dr Griffith testified that any persisting synovitis would cause discomfort only. In any event, it is unnecessary to reach a view on this as none of the evidence suggests that any impairment from synovitis could meet the threshold of 10% in section 24(7) of the Act.

99. Mr Bradfield for Mr Nichols conceded that the Baker's cyst did not result in an impairment of 10% or more. This concession was well taken as Dr Griffith said the cyst was not interfering with mechanical function and was not a large factor in the loss of range of movement. Dr Hopkins did not regard it as a permanent impairment. Even if the work related synovitis and Baker's cyst were combined, there is no evidence to suggest that together the resulting impairment would reach the 10% threshold.

100. In summary, I am not satisfied that the permanent impairment Mr Nichols suffers due to his ACL reconstruction and related instability is work related. On the evidence it is due to the 1992 football injury. Furthermore, I am not satisfied that any permanent impairment related to synovitis and/or the Baker's cyst arising from the 1996 motor vehicle accident would meet the 10% threshold either individually or combined.

Has liability ceased for the purposes of sections 16 and 19 of the Act?

101. As I have made clear at paragraph 0, consistent with Carson I regard the cease liability decision of 5 September 2001 (A2001/374) as amounting to a purported determination to cease payment of compensation under sections 16 and 19 of the Act. Ms Walker for Comcare also took this approach in her submissions. Those sections relevantly provide

"16(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment."

"19(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies."

Each of those sections requires that there be an ongoing injury which is work related.

102. For the reasons given above, I am comfortably satisfied that Ms Nichols' ongoing ACL problems including his right knee instability are a result of the 1992 football injury and not employment caused. He is therefore not entitled to medical expenses under section 16 nor incapacity payments under section 19 for this condition. I note in passing that the evidence makes clear that Mr Nichols' prospects as an electrician were effectively doomed before he started his apprenticeship by his pre-existing need for an ACL reconstruction, which would leave him with difficulty in kneeling, crawling and climbing ladders.

103. However, the evidence does point to some persisting synovitis and ongoing problems with the aggravation to the Baker's cyst, both of which are a consequence of the 1996 motor vehicle accident. For example, both Drs Griffith and Hopkins referred to the presence of low grade synovitis. There was also evidence of the need for anti-inflammatory drugs and from Dr Hopkins of the possibility of surgery to remove the Baker's cyst. Although Mr Nichols did not prefer this course, it would be inappropriate to cease liability for medical treatment while this remains a real possibility.

104. Whilst the synovitis causes some discomfort only, Mr Nichols said that the swelling associated with the Baker's cyst generally lasted for three or four days. However, the evidence does not assist me in determining whether the Baker's cyst has or continues to incapacitate Mr Nichols for work, within the terms of section 4(9) of the Act, over and above the incapacity that he clearly suffers as a result of the ACL injury flowing from the football incident.

105. It is therefore appropriate to remit this matter to Comcare for determination of any entitlement to medical and incapacity payments with a direction that Mr Nichols continues to suffer from work related synovitis and Baker's cyst.

Conclusions

106. In summary, I conclude

* Mr Nichols continues to experience problems with right knee instability and a Baker's cyst. There is also some limited continuing low grade synovitis

* Mr Nichols' ACL reconstruction was a direct result of a non-compensable football injury, as is the current right knee instability. Neither the ACL reconstruction nor the right knee instability is attributable to any compensable employment incident

* Mr Nichols is therefore not entitled to any compensation for permanent impairment related to the ACL condition

* Mr Nichols' current problems from the Baker's cyst relate back to a work related motor vehicle accident, as does the continuing synovitis. He may be entitled to medical expenses under section 16 and/or incapacity payments under section 19 for these conditions

* any permanent impairment related to synovitis and/or the Baker's cyst arising from the 1996 motor vehicle accident does not meet the 10% threshold either individually or combined.

Decision

107. The reviewable decision of 1 September 2000 in A2000/353 is affirmed. Mr Nichols is not entitled to his costs in this matter.

108. The reviewable decision of 5 September 2001 in A2001/374 is set aside and the matter remitted to Comcare for reconsideration with a direction that it determine Mr Nichol's entitlements under sections 16 and 19 of the Act on the basis that Mr Nichols continues to suffer from work related synovitis and a work related aggravation of a Baker's cyst in his right knee.

109. The Tribunal orders Comcare to pay Mr Nichols' costs in A2001/374 as agreed or taxed.

I certify that the 109 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray

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

Associate

Dates of Hearing 21-22 January 2002

Date of Decision 20 January 2003

Counsel for the Applicant Mr I Bradfield

Solicitor for the Applicant Ms S Snell, Baker Deane & Nutt

Counsel for the Respondent Ms L Walker

Solicitor for the Respondent Ms K Kumar, Dibbs Barker Gosling