Comcare v Simeoni

Background 4 On 1 May 1979, the respondent was knocked over and trampled by a steer at an abattoir in the course of his employment as a meat inspector with the Department of Primary Industries. He suffered an injury to his right knee. 5 The respondent made an application for compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth), which was accepted. 6 The respondent suffered a further injury to his right knee on 12 February 1981, when he was kicked by a calf in the course of his employment. 7 The respondent had an arthroscopy on his right knee in 1986 and again in 1990. 8 In 1992, the respondent took a redundancy and believed he was no longer entitled to compensation under the Act. However, he reopened his claim for compensation in 2006 following a third arthroscopy in 2005. 9 An MRI in November 2010 showed a full thickness tear of the respondent's right posterior cruciate ligament (PCL). A further arthroscopy was performed on the respondent's right knee in February 2011. In 2012, a total right knee replacement was performed. Comcare accepted liability for the cost of those procedures. 10 At Easter in 2010, the respondent had suffered a quad bike accident on his farm. There was an issue before the Tribunal as to whether or not the accident had caused the tear of the respondent's right PCL. The Tribunal found that he had not injured his PCL in the accident. 11 In February 2010, the respondent twisted his left knee, which he attributed to his right knee giving way while he was carrying a side of pork. In May 2010, an arthroscopy was performed on the respondent's left knee. In October 2016, a total replacement of his left knee was performed. 12 On 19 June 2018, a Comcare delegate made determinations that Comcare had no present liability for medical expenses under s 16 of the Act and incapacity payments under s 19 of the Act. On 27 July 2018, both determinations were affirmed upon internal review by Comcare. 13 On 31 July 2018, the respondent filed an application in the Tribunal for review of the reconsideration decisions. That application was given the file numbers AAT 2018/4320 and AAT 2018/4525. 14 On 18 June 2020, the respondent made a claim for compensation under s 14 of the Act for secondary right knee osteoarthritis arising from the 1979 accident. 15 On 24 September 2020, a Comcare delegate determined that Comcare had no liability for the right knee osteoarthritis. On 30 October 2020, the determination was affirmed upon internal reconsideration. On the same day, the respondent lodged with the Tribunal an application for review of the reconsideration decision. That application was given the file number AAT 2020/6754. 16 There were three medical experts who gave evidence before the Tribunal: Dr Pillemer, an orthopaedic surgeon, Dr Bookless, also an orthopaedic surgeon, and Dr Christian, an occupational physician. However, the Tribunal's reasons dated 1 September 2022 only referred to the evidence of Dr Pillemer and Dr Bookless and did not make any mention of Dr Christian's evidence. 17 Dr Pillemer's opinion was that the need for the total replacement of the respondent's right knee stemmed from the accidents of 1979 and 1981. In his view, those accidents had resulted in the torn right PCL and damage to the patellofemoral joint which resulted in arthritis in the right knee. On the other hand, Dr Bookless considered that the osteoarthritis in the right knee had developed independently of any work injury. The Tribunal preferred Dr Pillemer's evidence to the evidence of Dr Bookless. 18 However, the Tribunal was not satisfied that the total replacement of the respondent's left knee was causally related to the 2010 accident. 19 The Tribunal concluded: The applicant is therefore entitled to receive compensation for loss suffered as a result of the right knee problems but not for the left knee, and to have an order for costs for the review proceedings. I will hear both parties on appropriate terms for substituted decisions, which the respondent has not so far addressed. 20 In response, Comcare submitted that the Tribunal had already made a decision under s 43 of the Act and was functus officio, and declined to make submissions about appropriate orders. 21 On 12 September 2022, the Tribunal made the following orders: 2018/4320, 2018/4525 1. The Reviewable Decision dated 27 July 2018 is set aside. 2. In substitution it is decided: (a) The Applicant continues to suffer from the effects of his right knee injury sustained on 1 May 1979 in the course of his Commonwealth employment. (b) The Respondent continues to be liable to pay compensation to the Applicant under s.16 and s.19 of the Safety Rehabilitation and Compensation Act 1988 ("the SRC Act") for the Applicant's right knee injury from 27 March 1992 to date. (c) The matter is therefore remitted to the Respondent for calculation of the Applicant's entitlements under s.16 and s.19 of the SRC Act for his right knee injury from 27 March 1992 to date. 3. The Respondent is to pay the Applicant's reasonable party/party costs and disbursements of these Applications as agreed or taxed. 2020/6754 1. The Reviewable Decision dated 30 October 2020 is set aside. 2. In substitution it is decided: (a) The Applicant sustained an ailment being right knee osteoarthritis which was contributed to a significant degree by the Applicant's Commonwealth employment and is thereby a disease and accordingly an injury under the SRC Act. (b) The Applicant's right knee osteoarthritis resulted in incapacity for employment. (c) The Respondent is therefore liable to pay compensation to the Applicant for his right knee osteoarthritis under s.14 of the SRC Act. (b) The matter is therefore remitted to the Respondent for calculation of the Applicant's entitlements under the SRC Act for his right knee osteoarthritis (sic.) 3. The Respondent is to pay the Applicant's reasonable party/party costs and disbursements of this Application as agreed or taxed

Consideration 22 Comcare's Notice of Appeal describes six questions of law and some 13 grounds of appeal. In our opinion, it is only necessary to consider the grounds concerning the Tribunal's failure to take into account the evidence of Dr Christian and Comcare's contention that Dr Christian's evidence should be accepted. 23 Section 14(1) of the Act provides that, subject to Part II, Comcare 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. 24 The expression "injury" is relevantly defined in s 5A to mean, "an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment"; and, "a disease suffered by an employee". 25 The Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth), the relevant provisions of which commenced on 13 April 2007, amended the definition of "disease" in the Act. 26 Before the amendment, "disease" was relevantly defined in s 4(1) to mean, "(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". 27 Since the amendment, "disease" has been defined in s 5B(1) to mean, "(a) an ailment suffered by an employee; or (b) or an aggravation of such an ailment; that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee". Under s 5B(3), "significant degree", means, "a degree that is substantially more than material". 28 The expression "ailment" is defined in s 4(1) to mean, "any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)". 29 In AAT 2018/4320 and AAT 2018/4525, the Tribunal was required to review the reconsideration decisions of 27 July 2018 affirming the determinations of 19 June 2018 that Comcare had no present liability for medical expenses under s 16 of the Act and incapacity payments under s 19 of the Act for the right knee injury sustained in 1979. Neither the parties' submissions nor the Tribunal's reasons precisely articulate the issues the Tribunal was required to decide. However, the parties seemed to proceed on the basis that the issues were: (1) whether the cost of ongoing medical treatment was attributable to the injury to the respondent's right knee sustained in 1979 (for s 16); and (2) whether any incapacity for work was as a result of that 1979 injury (for s 19). 30 In AAT 2020/6754, the Tribunal was required to review the reconsideration decision of 30 October 2020, affirming the determination of 24 September 2020 that Comcare had no liability for the respondent's claim under s 14 of the Act for right knee osteoarthritis. It seemed to be common ground that right knee osteoarthritis was a "disease" and an "ailment", and that the issues for the Tribunal were: (1) if the osteoarthritis was an ailment suffered before 13 April 2007, whether it was contributed to in a "material" degree by the right knee injury suffered in 1979; and (2) if the osteoarthritis was an ailment suffered on or after 13 April 2007, whether it was "contributed to, to a significant degree" by the 1979 right knee injury. 31 Three medical experts gave oral evidence and were cross-examined before the Tribunal. The first was Dr Pillemer, who was called by the respondent. The second was Dr Bookless, who was called by Comcare. The third was Dr Christian, who was also called by Comcare. 32 Dr Pillemer's opinion was that the respondent had sustained a tear of his PCL in either the accident in 1979 or the accident in 1981. Dr Pillemer considered that this had led to the early development of osteoarthritis in the respondent's right knee and ultimately to a need for his right knee replacement. 33 Dr Bookless considered that the respondent had sustained a soft tissue injury to his right knee in 1979 and that the effects of the injury ceased within three months after it was sustained. Dr Bookless' opinion was that the osteoarthritis in the respondent's right knee was due to constitutional disposition and underlying degeneration as part of the natural ageing process. Dr Bookless considered that the respondent's employment did not make any contribution to his condition of right knee osteoarthritis. 34 Dr Christian's opinion was that the respondent had sustained a patella injury at the right knee in 1979. Dr Christian conducted a careful examination of the medical and surgical notes. He considered that the notes from 1986 indicated that, apart from retropatellar changes, the rest of the knee joint was normal, with no mention of any tibiofemoral joint changes. He considered that by 2005, the knee pain appeared to have altered, with pain felt within the knee joint itself. Surgical notes in 2005 reported finding degenerative changes at the medial femoral condyle and a degenerative tear of the medial meniscus. Dr Christian considered that the evidence suggested that the patella injury had settled, and the ongoing knee pain was now related to tibiofemoral arthritic change. He considered that this was a different condition than the retropatellar condition from 1979. He considered that, given that in 1986 (seven years post injury), there were no tibiofemoral changes found at surgery, the changes found in 2005 (some 26 years post injury), could not be assessed as having been caused by the 1979 accident. He considered the tibiofemoral arthritic changes were normal and common age-related changes and observed that the same changes had occurred in the left knee, which was not injured in 1979. 35 Dr Christian noted that his conclusions were generally in line with those noted by Dr Bookless but differed from the opinion of Dr Pillemer. When considering Dr Pillemer's opinion, Dr Christian acknowledged that it was at least a possibility that the respondent sustained a PCL injury in the 1979 accident, but considered there to be evidence against that. He noted that the respondent had a number of orthopaedic surgeon reviews over the years subsequent to that injury and that up to 2011 there had not been any clinical evidence of PCL injury. Dr Christian considered it unlikely that the respondent had sustained a PCL injury in the 1979 accident, as, if there was clinical evidence of PCL pathology, the surgical notes would have indicated as much. 36 The Tribunal's reasons discussed the evidence of Dr Pillemer and Dr Bookless. The Tribunal considered Dr Pillemer's evidence to be consistent with various reports of Dr Pearce, who had performed several arthroscopies on the respondent's right knee, and of Dr Harrison, who had examined him in 2011. The Tribunal referred to the evidence of Dr Bookless to the contrary, but concluded that it found Dr Pillemer's view "more persuasive". 37 The Tribunal accepted, in accordance with the evidence of Dr Pillemer, that the respondent had suffered a tear of his PCL in the work accident of 1979, which had been a precursor to the development of arthritic change in the knee. The Tribunal found that the respondent sustained an "ailment" being right knee osteoarthritis which was contributed to in a significant degree by his employment, and that it had resulted in incapacity for employment. The Tribunal found that, accordingly, the respondent was entitled to receive compensation for loss suffered as a result of his "right knee problems". 38 The Tribunal decided that: (a) Comcare continues to be liable to pay compensation to the respondent for his right knee injury under ss 16 and 19 of the Act; and (b) Comcare is liable to pay compensation to the respondent for his right knee osteoarthritis under s 14 of the Act. 39 It is evident that the Tribunal made its decisions by preferring the evidence of Dr Pillemer to that of Dr Bookless. The Tribunal's reasons make no mention of Dr Christian's evidence. 40 Comcare submits that the appropriate inference is that the Tribunal overlooked the evidence of Dr Christian and its contention that Dr Christian's evidence should be accepted over Dr Pillemer's evidence. 41 The respondent submits that the appropriate inference is that Dr Christian's evidence was subsumed by the Tribunal's preference for Dr Pillemer's evidence over Dr Bookless' evidence. The respondent argues that Dr Christian summarised his position as agreeing with Dr Bookless and disagreeing with Dr Pillemer, such agreement extending to the core issue of whether the PCL tear was caused by the 1979 work accident. The respondent also submits that Dr Christian acknowledged that he did not have enough understanding of the 1979 accident, from the respondent or the medical reports, to know the exact mechanism of the injury to the knee, and that he agreed that it was possible and "entirely plausible" on the history that the respondent did suffer a PCL tear when trampled by the steer in 1979. The respondent submits that having resolved the conflict between the opinions of Dr Pillemer and Dr Bookless, the Tribunal was not obliged in its reasons to make any specific reference to Dr Christian and was not obliged to note that it had rejected his evidence or had considered it to be ultimately immaterial or of no weight. 42 In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26, Gummow and Callinan JJ (with whom Hayne J agreed) held at [24] that, "[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord [the applicant] natural justice": see also Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41 at [90]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [13]. 43 The Tribunal may also fall into jurisdictional error by failing to consider particular documents and other evidence, depending on their importance to the exercise of the Tribunal's function and the seriousness of any error: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [111]-[112]; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 at [68]-[70]; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 at [52]-[56]. 44 In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184, the Full Court held at [47]: The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 45 Comcare submits that the Tribunal's failure to make any mention of Dr Christian's evidence indicates that the Tribunal overlooked and failed to consider both that evidence and Comcare's argument that his evidence should be accepted. The respondent's submission that Dr Christian's evidence was subsumed by the Tribunal's preference for the evidence of Dr Pillemer over that of Dr Bookless suggests that the Tribunal reasoned that there was no need for it to mention Dr Christian's evidence because its rejection of Dr Bookless' evidence meant that Dr Christian's evidence must also be rejected. In other words, the respondent argues that from the rejection of Dr Bookless' evidence, the Tribunal should be understood to have implicitly considered and rejected Dr Christian's evidence. 46 In a report dated 4 April 2019, Dr Christian stated that his conclusions were "generally in line with those noted by Dr Bookless", and that they were, "both of the opinion that Mr Simeoni's ongoing knee issues and work restrictions are not related to the 1979 accident, which caused patellofemoral injury". Dr Christian stated that, "our overall conclusions regarding Mr Simeoni's current work restrictions as not being due to that injury are the same". 47 Although Dr Christian considered that his conclusions coincided with those of Dr Bookless, their reasoning was not identical. In particular, Dr Christian's opinions were based on a thorough examination of the clinical and surgical records following the 1979 accident. Dr Christian reasoned that since there were no tibiofemoral changes found at surgery in 1986 (seven years post injury), the changes found in 2005 (some 26 years post injury) could not be assessed as being caused by the 1979 accident. Further, Dr Christian reasoned that if the respondent had sustained a PCL injury in the 1979 accident, any clinical signs of PCL pathology were likely to have been indicated in the subsequent surgical notes and prior to identification of that pathology by MRI in 2010. 48 The Tribunal's reasons do not deal with whether the absence of evidence of any tibiofemoral changes until 2005 suggests the changes were not causally related to the 1979 accident. Neither do the Tribunal's reasons deal with the significance of the absence of any evidence of PCL pathology until 2010. The Tribunal's failure to deal with these aspects of Dr Christian's reasoning suggests they were overlooked rather than being subsumed by the rejection of Dr Bookless' opinions. 49 The Tribunal's only critical analysis of Dr Bookless' reasoning was to say that he, "agreed that he had not concentrated on the posterior cruciate ligament". The Tribunal concluded that, "I find [Dr Pillemer's] view more persuasive". The only discernible explanation for that preference is Dr Bookless' absence of concentration on the PCL. The Tribunal did not deal with issues common to the opinions of Dr Bookless and Dr Christian such as the age-related or idiopathic osteoarthritis in the respondent's left knee being consistent with the osteoarthritis in the right knee also being age-related or idiopathic. 50 It cannot be inferred that the Tribunal concluded that it was unnecessary to specifically mention Dr Christian's evidence because its preference for Dr Pillemer's evidence over Dr Bookless' evidence meant that the evidence of Dr Christian had to be rejected. In other words, the respondent's argument that Dr Christian's evidence was subsumed by the Tribunal's rejection of Dr Bookless' evidence cannot be accepted. 51 The respondent also submits that an inference is available that the Tribunal did not refer to Dr Christian's evidence because it considered that evidence to be immaterial or of no weight. The respondent relies on Dr Christian's acknowledgement under cross-examination that he did not have enough understanding of the 1979 accident to know the exact mechanism of the injury to the knee, and that his agreement that it was "possible" and "entirely plausible" that the respondent did suffer a PCL tear in that accident. 52 However, the respondent takes these aspects of Dr Christian's evidence out of context. After acknowledging that he did not have enough understanding of the 1979 accident to know the exact mechanism of the injury, Dr Christian was taken to the account of the accident the respondent gave to a surgeon in 1986. Dr Christian's evidence was that this account did not assist to rule in or rule out that the accident caused a PCL tear. He was then asked to assume that the steer had trampled on the respondent's right knee, and responded that if the steer trampled, "right on top of the patella, or the kneecap, pushing that in, that would be an entirely plausible cause for retropatellar injury". Dr Christian went on to give the following evidence: But then looking beyond that at the investigations, and the subsequent history and symptoms and examinations, it's my view that that makes a PCL tear very unlikely to have occurred but it's still possible. But, in my view, remote or relatively unlikely. But it's purely from the history alone that that was all we were looking at in that it would be a possibility for sure. 53 The Tribunal made no finding that the steer had trampled on the respondent's right knee. Dr Christian's concession that it was possible that the respondent sustained a PCL injury in the 1979 accident was qualified by his view that this was "very unlikely" to have occurred. 54 Dr Christian's evidence was a central part of Comcare's case. If his evidence was accepted by the Tribunal, it would have been dispositive. The Tribunal could not reasonably have regarded Dr Christian's evidence as being immaterial or of no weight. 55 If the Tribunal's reasons disclosed at least some consciousness of Dr Christian's evidence, it might more readily be concluded that the Tribunal did not overlook that evidence. However, the Tribunal made no mention of Dr Christian or his evidence at all. 56 The appropriate inference is that the Tribunal overlooked and failed to consider Dr Christian's evidence and Comcare's argument that his evidence should be accepted. That was an error of law. 57 The appeal should be allowed. The Tribunal's decisions must be set aside and the matter remitted to the Tribunal to be decided according to law. 58 Comcare informed the Court that it would not seek any order for costs against the respondent in the event that the appeal succeeded. There will be no order as to costs. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rangiah, Halley and O'Sullivan.